[Cite as State v. Martin,

.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

STATE OF OHIO, : APPEAL NO. C-200067 TRIAL NO. B-1803702-B Plaintiff-Appellee, :

: O P I N I O N. VS. :

ABBEY MARTIN, :

Defendant-Appellant. :

Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Reversed, Convictions Vacated, and Cause Remanded.

Date of Judgment Entry on Appeal: July 30, 2021

Joseph T. Deters, Hamilton County Prosecuting Attorney, and H. Keith Sauter, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Raymond T. Faller, Hamilton County Public Defender, and Sarah E. Nelson, Assistant Public Defender, for Defendant-Appellant. OHIO FIRST DISTRICT COURT OF APPEALS

BERGERON, Judge.

{¶1} After discovering that two new residents of his jurisdiction had been

previously investigated for drug trafficking in Butler County, a Hamilton County

detective assumed that they would resume their illicit activities here. His suspicions

deepened when a late-night trash pull revealed indicia of recently-smoked

marijuana. But rather than marshal his own, up-to-date evidence of drug trafficking,

the detective applied for a search warrant based on years-old stale information from

Butler County. The trial court recognized that the affidavit fell below a showing of

probable cause, but denied the defendant’s motion to suppress based on the

application of the good-faith exception. We disagree with the applicability of the

good-faith exception on these facts, reverse the trial court’s judgment overruling the

defendant’s motion to suppress, and remand for the granting of the defendant’s

suppression motion.

I.

{¶2} Nearly six years ago—in September of 2015—Butler County police

officers began investigating a potential marijuana trafficking operation in West

Chester, Ohio. Confidential informants suggested that one subject of the

investigation, Jacob Stonitsch, purchased marijuana from Michigan dispensaries and

returned to Ohio to sell it. For the next 15 months, Butler County officers gathered

evidence against Mr. Stonitsch as they built their case. They obtained and reviewed

suspicious text messages, collected anonymous tips, and interviewed known

associates. Cell phone pings and a GPS tracker attached to Mr. Stonitsch’s vehicle

confirmed movements consistent with drug trafficking, including recurring trips to

Michigan. After well over a year of thorough and continuous investigation, a Butler

2 OHIO FIRST DISTRICT COURT OF APPEALS

County officer obtained a warrant to search the West Chester home shared by Mr.

Stonitsch and his then-girlfriend, defendant-appellant Abbey Martin. The

investigation culminated in drug charges against both individuals, all filed in Butler

County.

{¶3} None of this explains how Ms. Martin and Mr. Stonitsch ended up as

codefendants charged with drug trafficking in Hamilton County. To understand that

connection, we must fast-forward another 14 months. On March 30, 2018, a Butler

County officer involved with the previous investigation notified a Hamilton County

detective that Ms. Martin and Mr. Stonitsch recently moved to Colerain Township.

Along with other information about the Butler County investigation, the Butler

County officer provided the Hamilton County detective with a copy of the affidavit he

used to obtain the warrant to search their West Chester residence.

{¶4} The most recent information contained in this Butler County affidavit

dated from January 2017, roughly 14 months before the discussion with the

Hamilton County detective. Presumably, the information was intended to aid the

detective in launching a new investigation of possible trafficking in Hamilton County.

But for the next few months, no new evidence of drug trafficking—by Mr. Stonitsch

or by Ms. Martin—surfaced. No surveillance of the couple’s Hamilton County home

occurred, no tips or information implicating either individual in drug activity

materialized, and no efforts were made to track Mr. Stonitsch’s phone or to monitor

the whereabouts of his vehicle. Between March 30, 2018, and June 19, 2018, police

witnessed no drug-related activity whatsoever at Ms. Martin and Mr. Stonitsch’s new

address.

3 OHIO FIRST DISTRICT COURT OF APPEALS

{¶5} Nevertheless, on June 19, 2018, the Hamilton County detective

conducted a trash pull at their residence. After sifting through the trash, officers

discovered loose marijuana leaves, a marijuana cigar, “multiple” empty vacuum-

sealed plastic bags, and two cut straws—with one of those straws containing white

powder residue. The detective believed that the interior of the plastic bags smelled

like raw marijuana, but chose not to test the bags or straws for drug residue. He later

acknowledged that all of the trash pull evidence was consistent with personal drug

use and that he did not know how long the trash lingered on the curb.

{¶6} Armed with this trash-pull evidence, the Hamilton County detective

prepared a 34-paragraph affidavit for a warrant to search Ms. Martin’s home. But

rather than draft from a blank slate, he copied 28 paragraphs of his affidavit word-

for-word from the Butler County affidavit handed to him several months before. The

new affidavit did not explain, on its face, the copying of the Butler County text, which

created ambiguity about the identity of the “affiant” in various paragraphs (the

“affiant” sometimes referred to the Butler County officer and sometimes to the

Hamilton County detective). The detective italicized the 28 paragraphs of Butler

County text (presumably to distinguish it), added three paragraphs describing his

qualifications, and concluded with a three paragraph description of the evidence

obtained from the June 19 trash pull.

{¶7} After executing the warrant on June 26, 2018, the state charged Ms.

Martin and Mr. Stonitsch with trafficking in hashish, possession of hashish,

trafficking in marijuana, and possession of marijuana based on evidence seized

during the search. Both codefendants moved to suppress, asserting various

arguments against the validity of the warrant. The trial court, surveying the

4 OHIO FIRST DISTRICT COURT OF APPEALS

evidence, saw no probable cause, remarking that “[t]he evidence from one trash pull

on one day was not enough to corroborate the evidence from Butler County where

that evidence was 17 months to three years old.”

{¶8} Despite its finding that the affidavit failed to show probable cause, the

trial court denied the motion to suppress, applying the good-faith exception to the

exclusionary rule. Ms. Martin subsequently pled no contest on all counts. The trial

court sentenced her to the mandatory minimum of 5 years for trafficking in hashish

and 18 months for trafficking in marijuana, with sentences to be served concurrently.

Ms. Martin now appeals, asserting a single assignment of error.

II.

{¶9} In her sole assignment of error, Ms. Martin maintains that the trial

court erred when it denied her motion to suppress. “Appellate review of a motion to

suppress presents a mixed question of law and fact.” State v. Taylor,

,

,

(1st Dist.). So long as a trial

court’s findings of fact are supported by competent, credible evidence, we must

accept those findings as true.

In contrast, we review de novo “whether the facts

satisfy the applicable legal standard.” State v. Burnside,

, 2003-

Ohio-5372,

.

{¶10} Ms. Martin attacks the detective’s affidavit as so lacking in indicia of

probable cause that no reasonable official could have relied on it. The state

disagrees, insisting that if any error occurred below, it was the trial court’s

determination of the absence of probable cause. Since this debate informs the

proper application of the good-faith exception, we begin our analysis with the issue

of probable cause, and agree with the trial court’s assessment of its absence.

5 OHIO FIRST DISTRICT COURT OF APPEALS

A.

{¶11} “To establish probable cause to issue a search warrant, an affidavit

must contain sufficient information to allow a magistrate to draw the conclusion that

evidence is likely to be found at the place to be searched.” State v. German, 1st Dist.

Hamilton No. C-040263,

, citing United States v. Ventresca,

,

,

(1965). Probable cause, in turn, exists

when a “reasonably prudent person would believe that there is a fair probability that

the place to be searched contains evidence of a crime.”

citing Illinois v. Gates,

,

,

(1983). “It is a basic, fundamental

principle of the law of search and seizure that an affidavit for a search warrant must

present timely information.” (Emphasis added.) State v. Jones,

,

(6th Dist. 1991). See Sgro v. United States,

,

,

(1932) (“[I]t is manifest that the proof must be of facts so

closely related to the time of the issue of the warrant as to justify a finding of

probable cause at that time.”). Finally, “[t]o permit a search of someone’s home,

there must first be reliable evidence ‘connecting the criminal activity with the place

to be searched’ ” (i.e., the home). State v. Wallace, 6th Dist. Wood No. WD-19-080,

, quoting State v. Phillips, 10th Dist. Franklin No. 15AP-1038,

, citing United States v. Schultz,

(6th Cir. 1994).

{¶12} Thus, to establish probable cause, the detective’s affidavit needed to

contain timely information that would lead a reasonable person to conclude that Ms.

Martin’s residence likely contained evidence of drug trafficking on June 26, 2018

(when the warrant was executed). See State v. Goble,

,

, ¶ 8, 16 (6th Dist.) (trash pull “findings support[ing] only the commission of a

6 OHIO FIRST DISTRICT COURT OF APPEALS

minor misdemeanor, the possession of marijuana” are insufficient to provide

probable cause to search a residence for evidence of trafficking).

{¶13} Zeroing in on the requirement that an affidavit present timely

information, Ms. Martin portrays the 17-to-33-month-old Butler County information

as too stale to support a finding of probable cause. Even if we could overlook the

sheer age of the information, she emphasizes that all the Butler County evidence

concerned a former residence located in (obviously enough) Butler County—not the

Hamilton County residence for which the warrant was sought.

{¶14} While no arbitrary time limit dictates when information grows stale,

evidence generally “becomes stale ‘when enough time has elapsed such that there is

no longer “sufficient basis to believe * * * that the items to be seized are still on the

premises.” ’ ” State v. Rieves,

,

(8th Dist.),

quoting United States v. Lacy,

(9th Cir. 1997), quoting United

States v. Gann,

(9th Cir. 1984). When an affidavit “indicates

investigation into an ongoing criminal operation, such as drug trafficking, [it] may

support the issuance of a search warrant even where the information provided in the

affidavit is not recent.” State v. Morales,

,

(10th Dist.) (holding that a one-month delay between drug activity recounted in an

affidavit and application for a warrant did not demand reversal), citing United States

v. Ortiz,

(2d Cir. 1998). However, this principle is not boundless:

as the Sixth Circuit recognized, “[i]n the context of drug crimes, information goes

stale very quickly ‘because drugs are usually sold and consumed in a prompt

fashion.’ ” United States v. Brooks,

(6th Cir. 2010), quoting United

7 OHIO FIRST DISTRICT COURT OF APPEALS

States v. Frechette,

(6th Cir. 2009); see United States v.

Abernathy,

(6th Cir. 2016).

{¶15} Here, the Butler County information reflected evidence that was, at

best, 17 months old. Several key pieces of information, including the traffic stop

referenced by the dissent, stretch back even further. Our sister courts have rejected

“fresher” evidence in analogous circumstances. See State v. Gales,

,

(8th Dist. 2001) (“Given the perishable nature of the

contraband at issue, there is no reason to believe that one might find heroin at the

address three months after this alleged admission and single, isolated surveillance[,]

* * * probable cause has grown stale.”); Goble,

,

, at

¶ 11 (finding evidence “nearly three years” old “too stale to have been of value in

making a probable cause determination”). The state identifies no cases upholding a

comparable, years-long delay between the collection of evidence and execution of a

warrant in a drug trafficking case, nor are we aware of any such precedent elsewhere

in Ohio. Without some compelling authority, we see no reason to extend the shelf

life of “stale” evidence so far beyond the bounds established by other Ohio courts.

{¶16} Of course, old information is not always stale information. We agree

with the state’s general proposition that when present evidence corroborates past

behavior, information that might otherwise be deemed stale may be “refreshed” to

help establish probable cause. See State v. Ingold, 10th Dist. Franklin No. 07AP-

648,

(“ ‘Where recent information corroborates otherwise

stale information, probable cause may be found.’ ”), quoting United States v. Spikes,

(6th Cir. 1998). This principle flows inexorably from our well-

established precedent that the staleness of evidence depends on the circumstances of

8 OHIO FIRST DISTRICT COURT OF APPEALS

each case. See German, 1st Dist. Hamilton No. C-040263,

.

The trouble is that, in this case, no such corroboration ever emerged. Between

January of 2017 (when the Butler County investigation concluded) and June of 2018

(when the trash pull occurred), the state adduced no evidence that connected Ms.

Martin or Mr. Stonitsch with drug trafficking. The slim contents of the trash pull

were all consistent with personal drug use; they did not suggest resumption of an

“ongoing criminal operation.” See Morales,

,

.1 Present corroboration can prevent old evidence from being stale—but this case

simply does not reveal any such substantiation.

{¶17} Exacerbating the age of the Butler County evidence is the fact that it

implicated an entirely different residence than the one that the Hamilton County

detective sought to search. Such situations defy the basic parameters of establishing

probable cause, which require the affidavit to demonstrate that “evidence is likely to

be found at the place to be searched.” (Emphasis added.) German, 1st Dist.

Hamilton No. C-040263,

. See Wallace, 6th Dist. Wood No.

WD-19-080,

. Evidence of drug trafficking in Butler County

could not be “still on the premises” in Hamilton County years later. (Internal

citations omitted.) Rieves,

,

. And in the 17-

month gap between the conclusion of the Butler County investigation in January

1We note that the dissent emphasizes the presence of vacuum-sealed bags in Ms. Martin’s trash, characterizing these bags as “unlikely to be a package for personal use.” But the detective conceded the bags he found “could be” signs of personal use, and he described them as “Ziploc” bags that might have been purchased “anywhere,” including a local Target or Kroger. The affidavit never explains how many vacuum-sealed bags were found or their sizes (contrasting, again, with the Butler County information that described the size of the bags at issue there).

9 OHIO FIRST DISTRICT COURT OF APPEALS

2017 and the trash pull in June 2018, police observed no evidence that Ms. Martin

engaged in drug-related activities at her Hamilton County residence.

{¶18} Finding the Butler County evidence stale, we must remove it from our

consideration and evaluate probable cause based on what remains: the trash pull.

See State v. Weimer, 8th District Cuyahoga No. 92094,

, ¶ 30

(“[W]e are unable to read the affidavit in its entirety because the law requires that we

excise its offending portions.”); Goble,

,

, at

¶ 11-13 (declining to consider portions of the affidavit as either “too stale” or

“lack[ing] any indicia of reliability,” then reviewing probable cause on the “sole

basis” of remaining trash pull evidence); Abernathy,

(“We do not

consider ‘recklessly and materially false statements’ * * * [n]or do we consider ‘stale’

information.”); United States v. Frechette,

(6th Cir. 2009) (“[S]tale

information cannot be used in a probable cause determination.”).

{¶19} The state concedes that the Butler County evidence, standing alone,

was too stale to establish probable cause. But it urges us to consider the evidence

anyway (similar to the dissent’s view) as “corraborat[ing] * * * background

information” within the meaning of State v. Jones,

, 2015-Ohio-

483,

. We respectfully disagree with this reading of Jones. In that

case, the Ohio Supreme Court held that “evidence seized from a single trash pull that

corroborates tips and background information involving drug activity is sufficient to

establish probable cause for a warrant.”

Specifically, it found that the Eighth

District erred in its decision to view trash-pull evidence in isolation where the

officer’s affidavit also contained other “information linking the address to

methamphetamine production and distribution from multiple sources.” Id. at ¶ 18.

10 OHIO FIRST DISTRICT COURT OF APPEALS

Staleness of evidence was not at issue in Jones. No party argued that the

“background information” in Jones was stale, misleading, or otherwise improper.

Instead, the question concerned whether trash pulls should “per se be viewed in

isolation when determining probable cause.” Id. at ¶ 15. The answer was a

resounding “no,” because “reviewing courts must examine the totality of the

circumstances” when evaluating probable cause. Id. at ¶ 13.

{¶20} But the Jones court did not address the removal of stale evidence from

an officer’s affidavit, and we do not view the decision as implicitly overturning the

long-standing rule that “stale information cannot be used in a probable cause

determination.” Frechette,

. See, e.g., Weimer at ¶ 30; Goble at ¶ 11-

13;

. The fact that a trash pull is not per se viewed in isolation does

not mean that a trash pull should never be viewed in isolation. We assess affidavits

involving trash-pull evidence under the same totality-of-the-circumstances test that

we apply to any affidavit: we will consider background information that is properly

included in the affidavit, and we will not consider background information that is

“recklessly and materially false” or “stale and unreliable.”

.

{¶21} The Eighth District’s decision in State v. Weimer—discussed at length

by the Ohio Supreme Court in Jones—is instructive. In that case, as here, police

learned about the defendant’s prior criminal investigation in another town. Weimer,

8th District Cuyahoga No. 92094,

, at ¶ 5. Officers admitted that

their surveillance of the defendant’s new residence was “limited” and that they

“didn’t do anything for several months.”

Roughly a year after learning of the

prior investigation, police conducted a trash pull, which revealed evidence of

personal drug use: “two large plastic zip lock bags, two smaller sandwich-sized zip

11 OHIO FIRST DISTRICT COURT OF APPEALS

lock bags, and a metal spoon, all of which tested positive for cocaine.” Id. at ¶ 6.

Two days after the trash pull, the Weimer detective presented an affidavit to a

municipal court judge, but omitted key facts about the subjects of the investigation

and his own knowledge of contradictory information. Id. at ¶ 7, 31.

{¶22} On appeal, the Eighth District upheld the trial court’s decision to grant

the defendant’s motion to suppress. Id. at ¶ 49. It explained that it was “unable to

read the affidavit in its entirety because the law requires that we excise its offending

portions.” Id. at ¶ 30. The Weimer court emphasized that “aside from conducting a

one-time trash pull, the * * * police conducted no follow-up investigation, such as a

controlled buy linking [the defendant] to the activity suspected in the warrant. In

fact, the * * * police never observed [the defendant or his associate] engaging in any

criminal activity, nor did they document any suspected criminal activity occurring in

[the] home.” Id. at ¶ 29. After removing the “offending portions” of the officer’s

affidavit, the Weimer court concluded that it failed to support a finding of probable

cause, “even with the legal trash pull” evidence. Id. at ¶ 30. The Ohio Supreme

Court later clarified that this holding existed in harmony with its Jones decision: the

trash pull evidence in Weimer was properly “viewed in isolation because the other

evidence cited in the affidavit seeking a warrant was fatally flawed.” Jones,

,

,

.

{¶23} We find that the 28 paragraphs of copy-pasted Butler County evidence,

like the misleading information in Weimer, must be discounted as “stale” from our

evaluation of probable cause. Without any link to the Butler County information, the

remaining three paragraphs of trash-pull evidence cannot support probable cause for

a search of Ms. Martin’s residence. Ohio courts and the Sixth Circuit have repeatedly

12 OHIO FIRST DISTRICT COURT OF APPEALS

held that evidence of personal drug use recovered from a trash pull is insufficient,

standing alone, to establish probable cause. See, e.g., Goble,

,

, at ¶ 10, 16 (finding evidence of “several” marijuana stems and marijuana

“roaches” in trash pull insufficient to establish probable cause); State v. Kelly, 8th

Dist. Cuyahoga No. 91137,

(finding clear plastic bag with

“suspected marijuana residue” insufficient to support probable cause); Abernathy,

(holding that affidavit did not support probable cause where “the

only proper evidence the [a]ffidavit contained * * * was the ‘several’ marijuana

roaches and T2–laced plastic bags the police recovered from the trash pull”). “The

waste products of marijuana use do not, of themselves, indicate any continuing

presence of contraband in the home.” United States v. Elliott,

(S.D.Ohio 1984).

{¶24} For all of the foregoing reasons, we agree with the trial court’s

conclusion that the detective’s affidavit fell far below a showing of probable cause.

B.

{¶25} Although the trial court rejected a probable cause conclusion, it

declined to apply the exclusionary rule, citing the good-faith exception. On appeal,

Ms. Martin criticizes the court’s invocation of the good-faith exception and invites us

to reverse. For the reasons explained below, we agree and sustain her assignment of

error.

{¶26} “The exclusionary rule is a judicially created remedy for Fourth

Amendment violations,” and whether to apply it poses a separate question from that

of whether the Fourth Amendment was violated. State v. Castagnola,

,

,

, citing United States v. Calandra,

OHIO FIRST DISTRICT COURT OF APPEALS

338, 348,

,

(1974), and United States v. Leon,

,

,

(1984). Its purpose is not to compensate

the defendant whose rights have been infringed, but rather to deter police

misconduct in future cases. Id. at ¶ 96. The suppression of evidence exacts a high

cost on our criminal justice system, and no deterrence purpose is served “ ‘[w]here

the official action was pursued in complete good faith.’ ” State v. George,

,

(1989), quoting Leon at 919. Thus, “[w]hen police act

under a warrant that is invalid for lack of probable cause, the exclusionary rule does

not apply if the police acted ‘in objectively reasonable reliance’ on the subsequently

invalidated search warrant.” Herring v. United States,

,

,

(2009), quoting Leon at 922.

{¶27} Like any storied exception in the law, the good-faith exception carries

its own exceptions-to-the-exception, each tailored to reflect the deterrence rationale

described above. We will not apply the good-faith exception (and will apply the

exclusionary rule) in any of the four following scenarios:

(1) the magistrate or judge has been misled by false information that

the affiant knew or should have known was false;

(2) the issuing magistrate or judge has abandoned the judicial role;

(3) the police have relied on a warrant based on an affidavit so lacking

indicia of probable cause that no official could reasonably believe

in its existence; or

(4) the warrant is so fatally deficient that the officers executing it

cannot reasonably presume that it is valid.

14 OHIO FIRST DISTRICT COURT OF APPEALS

State v. Hampton, 1st Dist. Hamilton No. C-0801787,

. See

George,

,

; Leon at 923. The key question in this

case arises under the third scenario: whether a reasonably well-trained officer would

have known that the information contained in this affidavit was too stale (or, in the

case of the trash pull, simply insufficient) to support issuance of a warrant. Ms.

Martin maintains, and we agree, that the answer is yes.

{¶28} When assessing police reliance on an affidavit, “a court should

consider the total circumstances and assume that the executing officers have a

‘reasonable knowledge of what the law prohibits.’ ” Castagnola at ¶ 93, quoting Leon

at 919, fn. 20. See Gales,

,

(stating that courts

should “presume[] that the officer who claims good-faith reliance has a certain

minimum level of knowledge of what the law requires”). Police are not expected to

anticipate shifts in the law, or to interpret conflicting precedent. See State v.

Johnson,

,

,

(holding that

where existing case law supported officer’s conduct, officer could not be expected to

anticipate forthcoming, contrary United States Supreme Court ruling); State v. Eads,

,

(1st Dist.) (stating that officers may rely on

“statute or binding precedent, even if the statute or precedent were later held

unconstitutional or overruled.”). However, once courts announce a legal rule,

officers may no longer claim the good-faith exception for violations of that rule. See

Johnson at ¶ 43 (“In the aftermath of Jones, police officers can no longer harbor a

good-faith belief that attaching a GPS tracking device to a vehicle is not a search for

purposes of the Fourth Amendment.”). “[N]ow that the police are on notice” that a

15 OHIO FIRST DISTRICT COURT OF APPEALS

particular type of evidence is insufficient to show probable cause, “the good-faith

exception will not apply in the future.” Hampton at ¶ 22.

{¶29} Two principles of Fourth Amendment jurisprudence converge here: (1)

the need for a present showing of probable cause (i.e., staleness of evidence); and (2)

the insufficiency of trash pull evidence consistent with personal use, standing alone,

to establish probable cause. As applied to the facts of this case, neither presents a

new or ambiguous issue of law. The United States Supreme Court held nearly a

century ago that an affidavit must contain “proof * * * of facts so closely related to the

time of the issue of the warrant as to justify a finding of probable cause at that time.”

(Emphasis added.) Sgro,

,

,

. A reasonably

well-trained officer should have known that information obtained from a drug-

trafficking investigation in another county—conducted 17 to 33 months ago and

concerning a different residence—was too stale to justify issuance of a warrant for a

new residence without meaningful, present corroboration. See Gales,

,

(holding that “official belief in the existence of

probable cause [was] entirely unreasonable” because “[n]othing within the four

corners of the affidavit, closely related to the time of the issuance of the warrant,

showed a fair probability that heroin would be found at [the residence]”). Likewise, a

reasonably well-trained officer should have known that a marijuana cigar, some

marijuana leaves, two straws, and a couple of plastic bags—left on the curb and

accessible to the public for an unknown amount of time—were insufficient to

establish probable cause on their own. See Weimer, 8th District Cuyahoga No.

92094,

, at ¶ 25, 26; Goble,

,

, at

16 OHIO FIRST DISTRICT COURT OF APPEALS

¶ 16-18; Kelly, 8th Dist. Cuyahoga No. 91137,

; Abernathy,

; Elliot,

.

{¶30} The state urges that even if the Hamilton County detective was

mistaken about the existence of probable cause to search Ms. Martin’s residence, no

deterrence value exists in excluding the evidence of his search. We disagree. The

exclusionary rule is properly applied when an officer “ ‘could not have harbored an

objectively reasonable belief in the existence of probable cause.’ ” State v. Dibble,

,

,

, quoting Leon,

,

,

. If the officer knows (or should know) that the

affidavit cannot support probable cause, then he or she cannot circumvent the

Fourth Amendment by willfully ignoring the magistrate’s error in issuing the

warrant. Id. at ¶ 18 (holding that evidence should be suppressed if “ ‘ “officer had

knowledge, or may properly be charged with knowledge, that the search was

unconstitutional under the Fourth Amendment” ’ ”), quoting

, quoting

United States v. Peltier,

,

,

(1975).

{¶31} The state here opted to forgo the types of investigative practices and

techniques—employed so successfully in Butler County years ago—that could have

yielded present probable cause. See Davis v. United States,

,

,

(2011) (“When the police exhibit ‘deliberate,’ ‘reckless,’

or ‘grossly negligent’ disregard for Fourth Amendment rights, the deterrent value of

exclusion is strong and tends to outweigh the resulting costs.”). Ohio case law

provides myriad examples of how the old Butler County information might have

been “refreshed” by present corroboration. Surveillance of the Hamilton County

residence might have revealed a pattern of activity consistent with trafficking. See,

17 OHIO FIRST DISTRICT COURT OF APPEALS

e.g., State v. Pillar, 8th Dist. Cuyahoga No. 84566,

(holding that

six weeks of surveillance and multiple citizen complaints corroborated evidence from

trash pull). A controlled buy or tip from an informant might have confirmed the

detective’s suspicion that Mr. Stonitsch and Ms. Martin were reverting to old habits.

See, e.g., Morales,

,

(holding that one-

month-old information on drug investigation was allowable, in part, because it was

corroborated by two controlled buys, tips, and surveillance.); Kelly, 8th Dist.

Cuyahoga No. 91137,

(upholding trial court’s grant of motion

to suppress where “[p]olice did not conduct surveillance or a controlled buy”).

Evidence that Mr. Stonitsch had resumed his trips to Michigan dispensaries, for

example, could suggest the existence of an ongoing criminal operation: a totally

different “character of [] crime” that might alter the staleness inquiry altogether. See

German, 1st Dist. Hamilton No. C-040263,

;

.

Even a second or third trash pull might have produced evidence of trafficking

inconsistent with personal drug use, which would bolster the case for probable cause.

See Rieves,

,

(finding probable cause where

trash pull produced evidence of 11 plastic bag “tear offs” and officer’s affidavit

explained why “[a] person using or consuming drugs would never have possession of

the ‘tear off’ portion of the bag.”).

{¶32} But no such additional investigation took place here. Instead, the

Hamilton County detective conducted a single trash pull. See Kelly, 8th Dist.

Cuyahoga No. 91137,

(citing the officer’s decision not to

conduct surveillance, a controlled buy, or follow-up testing as “fail[ing] to

demonstrate good faith * * * in obtaining the search warrant”). Goble, 2014-Ohio-

18 OHIO FIRST DISTRICT COURT OF APPEALS

3967,

, at ¶ 14 (faulting “the police department’s failure to conduct any

follow-up investigation, surveillance, or a controlled drug buy,” along with its

decision not to test “results of the trash-pull,” in another case). The Hamilton

County detective’s justification of his actions at the hearing on the motion to

suppress certainly raises concerns:

Old Information? The information based on the date, without the

totality of everything? We were able to freshen up that information

because clearly the investigation turned out that it was good

information and the behavior continued.

See Castagnola,

,

,

(referencing officer’s testimony at the motion to suppress hearing as evidence that he

relied on improper suspicions and assumptions to support probable cause). It is

axiomatic Fourth Amendment jurisprudence that the end cannot justify the means.

See, e.g., Castagnola at ¶ 104 (“ ‘There is always a temptation in criminal cases to let

the end justify the means, but as guardians of the Constitution, we must resist that

temptation.’ ”), quoting State v. Gardner,

,

,

.

{¶33} The trial court concluded that the good-faith exception should be

applied in this case because “it was up to the judge * * * to determine whether the

evidence met the standard of probable cause.” This statement is generally true, but

missing an important qualifier: a police officer is entitled to rely on a judicial

determination of probable cause so long as one of the four exceptions to the good-

faith exception does not apply. See George,

,

,

citing Leon,

,

,

; Castagnola,

OHIO FIRST DISTRICT COURT OF APPEALS

St.3d 1,

,

, quoting Leon,

,

,

.

{¶34} Where, as here, a warrant is issued based on an affidavit manifestly

lacking in probable cause, a reasonably well-trained officer should know better than

to execute it. Castagnola at ¶ 98 (Internal quotation marks omitted.) (“Suppression

remains an appropriate remedy * * * when an officer relies on a warrant that is based

on an affidavit so lacking in indicia of probable cause as to render official belief in its

existence entirely unreasonable.”). We therefore find that the good-faith exception

should not have been applied in this case, and that Ms. Martin’s motion to suppress

should have been granted.

***

{¶35} For all of the foregoing reasons, we sustain Ms. Martin’s assignment of

error and reverse the trial court’s judgment denying her motion to suppress. Her

convictions are vacated and the cause remanded to the trial court with instructions

that her motion to suppress be granted.

Judgment reversed, convictions vacated, and cause remanded.

HENDON, J., concurs. MYERS, J., dissents.

MYERS, J., dissenting.

{¶36} This case, unlike so many others that come before us, involves not a

warrantless search, but a search following a determination of probable cause by an

independent judge. There is no evidence that the officer seeking the warrant hid

anything from the judge, left any key information out of the affidavit, was deceptive,

or in any way misled the judge as to what the facts were. Because I would hold that 20 OHIO FIRST DISTRICT COURT OF APPEALS

the trial court correctly applied the facts to the law in finding that the good-faith

exception applied to the exclusionary rule, I respectfully dissent.

{¶37} As does the majority, I will start with a discussion of probable cause. I

do not find this issue to be as simple as the majority deems it to be, when considering

all the facts available at the time and considering them in their totality, and not in

separate silos.

Probable Cause

{¶38} I agree with the majority in its setting forth the fundamental principles

of Fourth Amendment law and probable cause. As recognized by the majority, an

affidavit must contain sufficient information to allow the issuing judge to conclude

that evidence is likely to be found at the place to be searched. And, that information

cannot be so stale as to make it unlikely that the contraband will be found there. It

must be so closely related in time to justify a finding of probable cause at that time.

{¶39} I also agree that evidence from a single trash pull showing personal

use of drugs is insufficient, without more, to establish probable cause. But I disagree

with the majority that this is what we have in this case.

{¶40} Before I turn to an analysis of the case law, I think it is important to set

forth what facts were before the independent judge at the time he issued the warrant.

Martin and her codefendant boyfriend were the subjects of an investigation in Butler

County involving interstate trafficking in marijuana and hashish. That information,

admittedly over a year old, culminated in an arrest and conviction of Martin’s live-in

boyfriend. The Butler County officer contacted Colerain Township upon learning

that the two had moved to Hamilton County. The Colerain officer took this

21 OHIO FIRST DISTRICT COURT OF APPEALS

information and did some limited surveillance of the property, confirming Martin

and her boyfriend lived there.

{¶41} The Colerain officer then conducted a legal “trash pull” at the location.

He found, among other things, items that lead him to believe Martin and her

boyfriend were still engaged in drug-trafficking activities. This included “multiple

vacuum sealed plastic bags and additional tops of vacuum sealed plastic bags” (which

he later testified smelled of marijuana), “loose marijuana,” and two cut straws, one

having white powder residue.

{¶42} What else did the officer know? He knew that since the Butler County

warrant had been issued, Martin’s boyfriend had been convicted of attempted

trafficking in marijuana in February of 2018, just a few months before he applied for

the warrant. He also knew from running a Bureau of Criminal Investigation report

that Martin’s boyfriend, who lived in the house to be searched, had felony drug-

trafficking and possession charges. He also knew that in January 2017, the boyfriend

admitted to police that he planned to drive to Michigan to pick up 60 pounds of

marijuana. And, as reflected in the information received from Butler County and

contained in the affidavit, he knew that Martin’s boyfriend had prior drug charges

that he pled down in previous cases.

{¶43} The Colerain officer also knew that Martin’s boyfriend had been caught

during a traffic stop in Butler County in July of 2016 with an “empty vacuum sealed

bag containing marijuana residue” along with the words “12 ounces plus one gram

Super Lemon.” The affidavit identified “Super Lemon” as “a strain of high grade

marijuana.”

22 OHIO FIRST DISTRICT COURT OF APPEALS

{¶44} Finally, the officer knew from the 30-plus paragraphs of detailed

information he received from the Butler County warrant affidavit that Martin’s

boyfriend had previously been engaged in interstate transportation and trafficking of

high grade marijuana and hashish.

{¶45} Armed with this information, the Colerain officer sought a warrant to

search the residence for evidence of drug trafficking and possession. He included in

the affidavit a recitation of the entire Butler County affidavit. (I note that the

majority seems to criticize him for cutting and pasting, but what better way to

accurately portray the substantial and detailed information?) In addition to this

older, and I agree standing alone “stale,” information, he included the result of his

surveillance, the trash pull, and the recent conviction for attempted trafficking in

marijuana.

{¶46} An independent judge reviewed the totality of the information and

found probable cause to issue the warrant. The trial court found that there was not

probable cause to issue the warrant, and based on the appeal in front of us, we need

not decide whether this was a correct decision. We do need to decide whether the

Colerain officer acted in good faith in relying on the warrant. More on that to follow

after a brief discussion of the law with respect to probable cause and a trash pull.

{¶47} I agree with the majority that State v. Jones from the Supreme Court

of Ohio is the seminal and binding case in Ohio regarding single trash pulls. I

disagree with the application of that case here.

{¶48} In Jones, an affidavit in support of an application for a search warrant

of a house set forth detailed information about a trash pull there, which provided

evidence of methamphetamine production, items containing residue of the drug, and

23 OHIO FIRST DISTRICT COURT OF APPEALS

mail addressed to the defendant. Jones,

,

,

. The affidavit noted that the defendant matched the description

of a person with the same first name, who had been identified by a confidential

informant as a producer and seller of methamphetamine.

The affidavit also

associated the defendant with another woman who was linked to the production of

methamphetamine by six persons arrested for meth-related crimes, two of whom

stated the operation was based at the defendant’s house.

The affidavit stated that

a man arrested at that house a few months earlier was a known buyer of

pseudoephedrine, an ingredient of methamphetamine, and items testing positive for

methamphetamine were found on his person when he was arrested.

{¶49} The trial court granted the motion to suppress, viewing the trash pull

in isolation pursuant to the Eighth District’s decision in State v. Weimer, 8th Dist.

Cuyahoga No. 92094,

. Jones at ¶ 8. On appeal, the Eighth District

affirmed. Id. at ¶ 9. The state appealed, and the Supreme Court reversed. Id. at ¶

10, 19.

{¶50} The Supreme Court held that courts should use a totality-of-the-

circumstances test to determine whether probable cause exists to issue a search

warrant if the supporting affidavit relies in part on evidence seized from a trash pull.

Id. at ¶ 1. The court held that evidence seized from a single trash pull that

corroborates tips and background information involving drug activity is sufficient to

establish probable cause for a warrant. Id.

{¶51} In finding no probable cause in this case, the majority finds that the

stale information would not support probable cause. I would agree with that

determination if that is all we had in this case. Then, the majority says that ignoring

24 OHIO FIRST DISTRICT COURT OF APPEALS

the stale information, the evidence from the single trash pull was insufficient to

establish probable cause. But that is not what Jones instructs us to do. As held in

Jones, evidence seized from a single trash pull that corroborates tips and background

information involving drug activity is sufficient to establish probable cause for a

warrant. Id. at ¶ 1. I would find that the evidence found in the trash pull

corroborates the background information received from Butler County. Here we

have neither JUST stale evidence, nor JUST a single trash pull. And, the evidence

from the trash pull also resulted in an unusual find—not just baggies or zip-locks, but

vacuum-sealed bags. These same types of bags were found on Martin’s boyfriend

when he was stopped in Butler County.

{¶52} The issuing judge could also have found that the trash pull included

not just evidence of personal use, but also evidence of trafficking. First, the bags

were vacuum-sealed bags, which seems unlikely to be a package for personal use.

And the affidavit noted they were consistent with drug trafficking. Second, the bags

smelled of marijuana.

{¶53} As the Supreme Court of Ohio emphasized in Jones:

In conducting any after-the-fact scrutiny of an affidavit submitted in

support of a search warrant, trial and appellate courts should accord

great deference to the magistrate’s determination of probable cause,

and doubtful or marginal cases in this area should be resolved in favor

of upholding the warrant.

{¶54} Jones,

,

,

,

quoting State v. George,

,

(1989), paragraph two

of the syllabus.

25 OHIO FIRST DISTRICT COURT OF APPEALS

{¶55} Again, I raise these issues not to decide the issue of whether the trial

court was correct in concluding there was no probable cause, but rather to point out

that I do not think this conclusion is as clear cut as the majority finds it to be. And if

an issuing judge found probable cause on these facts, and if that determination is

supportable, as I suggest it might be, then how can we find that the officer (who

disclosed everything to the judge, made clear that some of the information was old,

hid nothing, made no attempt to deceive) “relied on a warrant based on an affidavit

so lacking in indicia of probable cause that no official could reasonably believe in its

existence?” I suggest we cannot make this finding.

Good-Faith Exception

{¶56} The majority has correctly set forth the test for application of the good-

faith exception to the exclusionary rule. I agree that officers are presumed to know

the law that governs their conduct under the Fourth Amendment. And I agree that

this includes not relying on stale information, and not relying on a single trash pull

that shows evidence only of personal use. But as discussed above, that is not what we

have here. We have old information of drug trafficking, new information of a single

trash pull with evidence supportive of drug trafficking and evidence that

corroborates the background older information, a recent drug conviction, and

evidence of similar unique packaging.

{¶57} Was this affidavit so lacking in an indicia of probable cause that no

reasonable officer would have relied on the warrant? Could someone say that based

upon the totality of the information, it would be more likely than not that evidence of

marijuana trafficking would be found in this home? An “indicia” of probable cause

solely requires some “evidence,” “sign,” or “indication” of probable cause. Black’s

26 OHIO FIRST DISTRICT COURT OF APPEALS

Law Dictionary (11th Ed. 2019). See George,

,

(a warrant approved by a judge which describes a growing marijuana plant in an

enclosed residential yard and authorizes a search of the residence, yard, and

outbuildings was not so lacking in indicia of probable cause as to render official

belief in its existence entirely unreasonable); State v. Scott, 3d Dist. Marion No. 9-

20-05,

(good-faith exception applies regardless of whether the

information in the affidavits is otherwise too stale to support findings of probable

cause because each of the affidavits contains information, collected over many years,

that connected the defendant to a fairly large-scale, longstanding marijuana growing

operation); State v. Akers, 12th Dist. Butler No. CA2007-07-163,

(presence of marijuana remains in a sandwich bag and a piece of junk mail

addressed to the home’s resident obtained from the trash pull at defendant’s home

was sufficient to demonstrate that the officers were acting in objectively reasonable

reliance on the search warrant).

{¶58} The fact that the officer could have done more is not an issue we

decide. Of course he could have. The issue is whether the evidence should be

excluded because no reasonable police officer could believe an indicia of probable

cause existed. And that is where I diverge from the majority. I do not think that a

reasonable officer would find the affidavit to be so lacking in an indicia of probable

cause as to believe no probable cause existed. Again, one judge found there was

probable cause, one judge found there was not, and this judge suggests that there is

at least an argument that there is probable cause after examining the law and the

facts. We should not hold the officer to a higher standard.

27 OHIO FIRST DISTRICT COURT OF APPEALS

{¶59} Therefore, I would affirm the trial court’s finding that the good-faith

exception to the exclusionary rule applies.

SYLVIA SIEVE HENDON, retired, from the First Appellate District, sitting by assignment.

Please note:

The court has recorded its entry on the date of the release of this opinion

28