[Cite as State v. Thompson,

.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BUTLER COUNTY

STATE OF OHIO, :

Plaintiff-Appellee, : CASE NO. CA2013-08-158

: OPINION - vs - 8/4/2014 :

CHARLES Z. THOMPSON, :

Defendant-Appellant. :

CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CR2013-01-0099

Michael T. Gmoser, Butler County Prosecuting attorney, Kimberly L. McManus, Government Services Center, 315 High Street, 11th Fl., Hamilton, Ohio 45011, for plaintiff-appellee

Scott N. Blauvelt, 246 High Street, Hamilton, Ohio 45011, for defendant-appellant

HENDRICKSON, J.

{¶ 1} Defendant-appellant, Charles Z. Thompson, appeals from his convictions for

trafficking in heroin, possession of heroin, having weapons while under disability, the illegal

use or possession of drug paraphernalia, and possession of marihuana following his plea of

no contest in the Butler County Court of Common Pleas. Appellant argues the trial court

erred in overruling his motion to suppress evidence obtained from an illegal search and

seizure. For the reasons set forth below, we overrule appellant's arguments and affirm his Butler CA2013-08-158

conviction.

{¶ 2} Following a controlled buy of narcotics by a confidential informant at 10

Stephens Street, Apartment 2 in Hamilton, Butler County, Ohio, Detective Robert Horton with

the Hamilton Police Department executed an affidavit of probable cause and sought a

warrant to search the premises for, inter alia, drugs, drug related paraphernalia, and

weapons. A warrant was issued on January 15, 2013, and two days later the warrant was

executed. Appellant, the tenant of the apartment, was found on the premises along with

heroin, marihuana, and a Taurus 9mm handgun. Appellant was arrested and indicted on one

count of trafficking in heroin in violation of R.C. 2925.03(A)(2), one count of possession of

heroin in violation of R.C. 2925.11, one count of having weapons while under disability in

violation of R.C. 2923.13(A)(3), one count of the illegal use or possession of drug

paraphernalia in violation of R.C. 2925.14(C)(1), and one count of possession of marihuana

in violation of R.C. 2925.11.

{¶ 3} On March 27, 2013, appellant filed a motion to suppress and dismiss, arguing

the search was unconstitutional as the warrant was issued without probable cause.

Appellant argued the affidavit submitted by Horton did not establish probable cause for the

search as the affidavit did not demonstrate the confidential informant involved in the

controlled buy was reliable. Appellant also argued the information contained within Horton's

affidavit was stale as the affidavit did not definitively state when the controlled buy occurred,

but rather indicated the buy occurred "within the past few days."

{¶ 4} A hearing on the motion to suppress was held on April 25, 2013, at which time

the search warrant, including Horton's affidavit of probable cause, was entered into evidence.

The affidavit was signed by Horton on January 15, 2013, and the search warrant was

approved and issued that same day. The affidavit provided, in relevant part, the following:

Detectives of the Hamilton Police Department Vice Investigations -2- Butler CA2013-08-158

Section have received information from a reliable confidential informant that Charles Zell Thompson has been selling heroin from 10 Stephens Street #2 in the City of Hamilton, Butler County Ohio. Within the past few days, Detective Horton met with a reliable confidential informant in an effort to purchase heroin from this residence. The reliable confidential informant was search [sic] and found to have no contraband or currency on their person. Detective Horton gave them photocopied funds to use to purchase heroin from 10 Stephens Street #2. The reliable confidential informant was observed by Detective Crouch and Detective Horton entering the common door of 10 Stephens Street and then walking down the steps towards apartment #2. A few minutes later the confidential informant exited the common door and they met with Detective Horton. This reliable confidential informant handed over a plastic bag containing a tan powder to Detective Horton and they were searched again. They were found to have no other contraband or currency on their person. The reliable confidential informant advised Detective Horton that they had gone into apartment 2 to make the purchase. The tan powder field tested positive as heroin. A check of Charles Thompson's driver license verified that he uses the address 10 Stephens Street #2 in the City of Hamilton, Butler County Ohio.

{¶ 5} At the motion to suppress hearing, Horton testified about the controlled buy and

his procurement and execution of the warrant. In regards to the controlled buy, Horton

explained that immediately prior to the buy, he searched the confidential informant to make

sure the informant did not have contraband or currency on the informant's person. The

confidential informant was then given photocopied funds to purchase the narcotics, and was

"visually observed, monitored the whole time, until [the informant] enter[ed] the residence."

While the confidential informant was making the buy, Horton positioned himself

approximately 30-40 yards away from the common door of the apartment complex in which

the buy occurred. Horton explained the apartment complex was a multi-family apartment

building and the common entry door to the building led to a hallway and staircase. Apartment

1 and Apartment 2 were located on the bottom floor of the building. From Horton's vantage

point, he observed the confidential informant go downstairs, but could not tell which

apartment the informant entered. The confidential informant later exited the apartment

-3- Butler CA2013-08-158

building carrying a plastic bag containing tan powder. The informant told Horton that he

purchased drugs from appellant in Apartment 2. A field test of the bag indicated the bag

contained heroin. No DNA samples or fingerprints were lifted from the bag. However, in an

effort to confirm the identity of the individual selling narcotics out of Apartment 2, Horton

checked the tenant list for the apartment and the "OLIG" database, both of which identified

appellant as the resident of Apartment 2.

{¶ 6} During cross-examination, Horton agreed his affidavit did not provide a specific

date on which the controlled buy occurred and did not indicate "exactly how many days had

passed since the drug deal had taken place." However, he clarified that the search warrant,

which was acquired on January 15, 2013, was obtained "within a week" after the buy. Horton

also acknowledged on cross-examination that as a result of the confidential informant's

cooperation in making the controlled buy, trafficking charges would not be brought against

the informant.

{¶ 7} On April 29, 2013, after determining there was a "substantial basis for the

issuance of the warrant," the trial court issued a decision denying appellant's motion to

suppress. Following the denial of his motion, appellant entered a no contest plea as to all

charges set forth in the indictment. Appellant was subsequently sentenced to four years in

prison.

{¶ 8} Appellant timely appealed, raising as his sole assignment of error the following:

{¶ 9} THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT IN

DENYING HIS MOTION TO SUPPRESS EVIDENCE.

{¶ 10} Appellant argues the trial court erred by denying his motion to suppress as

there was insufficient probable cause to issue the search warrant. Appellant contends

Horton's affidavit did not set forth sufficient facts for the judge issuing the warrant to assess

the confidential informant's credibility, veracity, and reliability. He further argues the search -4- Butler CA2013-08-158

warrant lacked probable cause because Horton's affidavit "was not adequate regarding the

time or date of the alleged drug transaction such that the issuing [judge] could determine the

information was not stale."

{¶ 11} Our review of a trial court's denial of a motion to suppress presents a mixed

question of law and fact. State v. Cochran, 12th Dist. Preble No. CA2006-10-023, 2007-

Ohio-3353, ¶ 12. Acting as the trier of fact, the trial court is in the best position to resolve

factual questions and evaluate witness credibility.

Therefore, when reviewing the denial

of a motion to suppress, a reviewing court is bound to accept the trial court's findings of fact if

they are supported by competent, credible evidence. State v. Oatis, 12th Dist. Butler No.

CA2005-03-074,

. "An appellate court, however, independently

reviews the trial court's legal conclusions based on those facts and determines, without

deference to the trial court's decision, whether as a matter of law, the facts satisfy the

appropriate legal standard." Cochran at ¶ 12.

{¶ 12} Pursuant to Crim.R. 41(C), a judge may issue a search warrant upon a finding

that "probable cause for the search exists." In determining whether probable cause exists to

support the issuance of a warrant, courts employ a "totality-of-the-circumstances" test, which

requires an issuing judge "to make a practical, commonsense decision whether, given all the

circumstances set forth in the affidavit * * * including the 'veracity' and 'basis of knowledge' of

persons supplying hearsay information, there is a fair probability that contraband or evidence

of a crime will be found in a particular place." State v. Moore, 12th Dist. Butler No. CA2005-

08-366,

, quoting State v. George,

(1989).

{¶ 13} "When reviewing a finding of probable cause in a search warrant affidavit,

reviewing courts 'may not substitute their own judgment for that of the issuing [judge] by

conducting a de novo determination as to whether the affidavit contains sufficient probable

cause upon which the reviewing court would issue the search warrant.'" State v. Luna, 12th -5- Butler CA2013-08-158

Dist. Butler No. CA2008-04-115,

, ¶ 12, quoting

. "The duty of

the reviewing court is simply to ensure that the [issuing judge] had a substantial basis for

concluding that probable cause existed." Moore at ¶ 12. Any after-the-fact scrutiny should

accord great deference to the issuing judge's determination and "doubtful or marginal cases

should be resolved in favor of upholding the warrant."

.

Reliability of the Confidential Informant

{¶ 14} Appellant contends Horton's affidavit provides no information to establish the

reliability of the confidential informant and that the information set forth in the affidavit could

not be deemed reliable as it originated from a source who "possesses a history of felony

convictions" and who had "received a significant benefit in exchange for his assistance in the

form of dropped drug trafficking charges." Appellant also contends the confidential

informant's information was not independently corroborated by law enforcement and that law

enforcement merely relied on hearsay information in seeking and procuring the search

warrant.

{¶ 15} With regard to hearsay information in an application for a search warrant, Ohio

courts have consistently found that hearsay information is relevant to the determination of

probable cause. Moore,

. Where a confidential or anonymous

informant is the source of the hearsay, there must be some basis in the affidavit to indicate

the informant's credibility. State v. Rivera, 12th Dist. Butler No. CA2008-12-308, 2010-Ohio-

323, ¶ 31. "An affidavit containing detailed information from informants (permitting an

inference that illegal activity was personally observed by the informants), police corroboration

of an informant's information through its own independent investigation, or additional

testimony by the affiant helps to bolster and substantiate the facts contained in the affidavit."

citing State v. Ingram, 12th Dist. Butler No. CA94-03-076,

, *2 (Sept. 26,

1994). -6- Butler CA2013-08-158

{¶ 16} The totality of the circumstances in the present case indicates the confidential

informant possessed credible and reliable information that there was a fair probability that

contraband or evidence of a crime would be found at 10 Stephens Street, Apartment 2.

Further the record demonstrates the confidential informant's information, combined with law

enforcement's own investigation corroborating such information, was sufficient to establish

probable cause to issue the warrant.

{¶ 17} Horton's affidavit states that a tip was received from a reliable confidential

informant that appellant was selling heroin out of 10 Stephens Street, Apartment 2. Law

enforcement took steps to corroborate this information by setting up a controlled buy using

the same confidential informant. Horton personally observed and monitored the buy,

checking to make sure the confidential informant did not have contraband or currency on the

informant's person before the buy. After the buy was complete, the confidential informant

handed over a plastic bag containing tan powder and told Horton that the bag was purchased

from appellant in Apartment 2. Law enforcement corroborated the informant's information by

field testing the contents of the plastic bag and by checking the tenant list of the apartment

building and the "OLIG" database to verify appellant's residency at 10 Stephens Street,

Apartment 2. These facts were all set forth in Horton's affidavit of probable cause. From

such facts, it is clear the confidential informant had specific information, which the informant

personally observed and which was corroborated by the law enforcement's own investigation,

that illegal activities involving trafficking in heroin was occurring at 10 Stephens Street,

Apartment 2. Accordingly, we find that the facts in the affidavit, when viewed together, were

sufficient to show there was a fair probability that contraband and evidence would be found at

10 Stephens Street, Apartment 2.

{¶ 18} In finding that the confidential informant possessed credible and reliable

information, we reject appellant's argument that this case is similar to State v. Davis, 166 -7- Butler CA2013-08-

,

(2d Dist.). In Davis, the Second District found an affidavit

clearly insufficient to establish probable cause for a search. Id. at ¶ 4. The affidavit in Davis

indicated that a confidential informant was given money on four occasions to purchase drugs.

The informant then gave the money to another individual ("X"), who left the informant's

residence, went to the defendant's residence, and on two of the four occasions, returned with

cocaine to complete the transaction. Id. at ¶ 40. The affidavit in Davis did not provide any

information from which the informant's reliability could be determined as it did not indicate

that the affiant-law officer saw any of the relevant matters, including the informant giving X

the recorded buy money, X going from the informant's house to the defendant's residence, X

leaving the defendant's house, or X giving the informant cocaine. Id. at ¶ 44. Further, the

informant in Davis did not see X go with the defendant into a room and return with drugs.

There was also no indication the informant was checked for contraband and equipped with a

wireless transmitter prior to the buys, and there was no subsequent, independent

communications between X and the police to verify the information contained within the

affidavit. Id. at 46. Based on these deficiencies, the Second District concluded the affidavit

did not support a finding of probable cause. Id. at ¶ 45-46.

{¶ 19} The present case differs significantly from Davis, as Horton's affidavit does not

suffer from the same or similar infirmities. Horton, the affiant, was directly involved with the

informant, who bought the drugs and personally observed the drug transaction. Furthermore,

Horton searched the informant for contraband and money prior to the buy and observed and

monitored the informant as the informant entered appellant's apartment building to make the

buy. Following the controlled buy, the informant communicated his successful purchase of

heroin from appellant in Apartment 2, and Horton took steps to corroborate the informant's

information. We therefore conclude that, unlike in Davis, the facts set forth in Horton's

-8- Butler CA2013-08-158

affidavit provided the issuing judge with a substantial basis to believe that probable cause

existed for a search warrant for 10 Stephens Street, Apartment 2.

Timeliness of the Information

{¶ 20} Appellant also argues the warrant was improperly issued as the affidavit did not

set forth the date the controlled buy occurred, therefore limiting the issuing judge's ability to

determine whether the information in the affidavit had gone stale. Appellant argues that

because the affidavit did not describe an ongoing drug operation, the timing of the controlled

buy was crucial for determining whether there was a fair probability that contraband or

evidence of a crime would be found at 10 Stephens Street, Apartment 2.

{¶ 21} "The law of search and seizure requires that an affidavit demonstrate that the

information is timely." State v. Harry, 12th Dist. Butler No. CA2008-01-0013, 2008-Ohio-

6380, ¶ 12, citing State v. Jones,

(6th Dist. 1991). The facts set

forth in the affidavit must be closely related to the time the warrant is issued in order to justify

a finding of probable cause. Id.; State v. Prater, 12th Dist. Warren No. CA2001-12-114,

, ¶ 11. These facts are examined on a case by case basis. Harry at ¶ 12.

"While there is no arbitrary time limit on how old information can be, the alleged facts must

justify the conclusion that the subject contraband is probably on the person or premises to be

searched."

{¶ 22} Furthermore, "[a]lthough specific references to dates and times are best, there

is no hard and fast rule as to the staleness issue." State v. Proffit, 5th Dist. Fairfield No.

07CA36,

. "In determining whether information in an affidavit is stale,

courts should consider: (1) the character of the crime; (2) the criminal; (3) the thing to be

seized, as in whether it is perishable and easily transferable or of enduring utility to its holder;

(4) the place to be searched; and (5) whether the information in the affidavit relates to a

-9- Butler CA2013-08-158

single isolated incident or protracted ongoing criminal activity." Harry at ¶ 13, citing Prater at

¶ 13.

{¶ 23} Horton's affidavit was executed on January 15, 2013, and the affidavit

specifically set forth that the confidential informant's controlled buy of heroin from appellant at

10 Stephens Street, Apartment 2 had occurred "within the past few days." Ohio courts have

routinely rejected staleness challenges and affirmed probable cause findings where the

language used in the affidavit to describe the time frame of a controlled buy is given in terms

of hours, days, or weeks. See, e.g., Moore,

("within the last 72

hours"); State v. Bailey, 12th Dist. Butler No. CA2002-03-057,

("three

days prior" or "within 72 hours"); State v. Thymes, 9th Dist. Summit No. 22480, 2005-Ohio-

5505, ¶ 28 ("within the past three days"); State v. James, 8th Dist. Cuyahoga No. 95056,

, ¶ 28-34 ("within the past seventy-two hours"). This is especially true where

there is an indication of ongoing criminal activity. See Bailey at ¶ 12; Proffit,

(finding that the "has been maintaining" language in the affidavit was sufficient to

establish ongoing criminal activity). Here, the affidavit specifies that appellant "has been

selling heroin from 10 Stephens Street #2." (Emphasis added.) From such language, the

issuing judge was entitled to find that ongoing criminal activity was occurring at 10 Stephens

Street, Apartment 2. Furthermore, from Horton's averments, the issuing judge was entitled to

conclude that within a few days of the warrant's January 15, 2013 application date, drugs

were located within the apartment as a controlled buy on the premises had occurred. The

information in the affidavit was, therefore, timely.

{¶ 24} Accordingly, we find that appellant's motion to suppress was properly denied.

Under a totality of the circumstances analysis, the affidavit filed in support of the warrant

provided a substantial basis for the issuing judge to conclude there was a fair probability that

- 10 - Butler CA2013-08-158

drugs, drug related paraphernalia, and weapons would be found at 10 Stephens Street,

Apartment 2.

{¶ 25} Appellant's sole assignment of error is, therefore, overruled.

{¶ 26} Judgment affirmed.

RINGLAND, P.J., and S. POWELL, J., concur.

- 11 -