IN THE COURT OF COMMON PLEAS OF ROSS COUNTY, OHIO
STATE OF OHIO
Plaintiff CASE
NO. CR 000291
Vs.
NICOLETTE T**** JUDGE
NUSBAUM
Oral
hearing requested
DEFENDANT, NICOLETTE
T****’S MOTION TO SUPPRESS
EVIDENCE
SEIZED FROM 458 L***** STREET AND INCORPORATED
MEMORANDUM
OF POINTS AND AUTHORITIES
This document was written by Gaba Law Office, Columbus, O.
Now comes Defendant, Nicolette T****,
through undersigned counsel, and respectfully moves this Honorable Court to
suppress as evidence against her at trial any and all tangible evidence seized
and oral statements induced by law enforcement agents as a result of the search
executed at 458 L***** Street, Chillicothe, Ohio on August 28, 2007. The search warrant was defective and illegal. The search violated the Defendant’s rights
secured by the Fourth and Fourteenth Amendments to the United States
constitution, as well as Article I, Section 14, of the Ohio Constitution. This motion is filed pursuant to Crim. R.
12(B)(3).
As grounds for this motion, Defendant, through counsel,
states:
1. At the time Ms. T**** was seized and she and her home
searched, the arresting detectives had neither probable cause to believe that
an offense had been committed and that Ms. T**** had committed it, nor
reasonable suspicion to conduct a search.
Down loaded from gabatriallaw.com
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2. There is no basis upon which this Court can find that Ms.
T**** validly consented to a search of the home from which the police recovered
the alleged contraband, money and other items in this case.
3. Independent of any alleged consent to search the home, the
police had no legal basis upon which to search and seize items from 458
L***** Street.
The reasons
for this Motion are more fully supported in the Memorandum below.
Respectfully
submitted,
Elizabeth
Gaba
David
T. Spencer
Attorneys
for Defendant
1231
East Broad Street
Columbus,
Ohio 43205
(614)
586-1586 - telephone
(614)
586-0064 - facsimile
MEMORANDUM
This document was
written by Gaba Law Office, Columbus, O.
The Fourth Amendment to the United
States Constitution made applicable to the states by the Fourteenth Amendment,
Mapp v. Ohio, 367 U.S. 643, 646 , 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), states [t]he right of the people
to be secure in their person, houses, papers and effects, against unreasonable
searches and seizures, shall not be violated, and no Warrants shall issue,
but upon probable cause, supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons or things to be seized. Down
loaded from gabatriallaw.com
Article I, Section 14, of the Ohio
Constitution likewise grants citizens protection against unreasonable searches
and seizures: The right of the people to
be secure in their
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Persons, houses, papers, and possessions, against
unreasonable searches and seizures shall not be violated; and no warrant shall
issue, but upon probable cause …”
The rule of
exclusion, as set forth in Mapp, not only results in the exclusion of bad
evidence seized pursuant to a Fourth Amendment violation but also the exclusion
of all evidence obtained as a result of that particular Fourth Amendment
violation.
Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9
L.Ed.2d 441 (1962).
Down loaded from gabatriallaw.com
The
exclusionary rule was adopted to give effect to the Fourth Amendment right of
all citizens to be secure in their persons, houses, papers, and effects against
unreasonable searches and seizures. Under
this rule, evidence obtained in violation of the Fourth Amendment cannot be
used in a criminal proceeding. This
prohibition applies as well to the fruits of the illegally seized evidence. Mapp v. ohio 367 U.S. 643, 81 S. Ct. 1684, ,
6 L.Ed.2d 1081 (1961); Wong Sun v.
United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1962). This document was written by Gaba
Law Office, Columbus, O.
The main
purpose of the exclusionary rule is to deter government officials from
benefiting from the violation of an individual’s Fourth Amendment rights. This judicially created doctrine prevents the
police, who have acquired evidence as a result of a Fourth Amendment violation,
from using the tainted and illegally seized evidence in a court of law. “[E]vidence is inadmissible under the
exclusionary rule not only when obtained as a yield of an illegal search, but
also if it results from information derived from an illegal search.” State v. Rogers, 94 Ohio Law Abs. 110, 198
N.E. 2d 796,806 (C.P., Miami 1963) (quoting Day and Berkman, ‘Search and Seizure
and the Exclusionary
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Rule: A Re- Examination in the Wake of Mapp v. Ohio, W.
Reserve L. Rev. 97 (December 1961)).
I. FACTS
This case grew out of a Receiving
Stolen Property case filed against James C*******. Down loaded from gabatriallaw.com
On July 16,
2007 Case No. CRA 0702527 was filed in the Chillicothe Municipal Court charging
C******* with Receiving Stolen Property in violation of O.R.C. # 2913.51, a
felony of the fifth degree. An
arraignment was held on the same date and Defendant posted a bond of $48.00
(receipt no. 711750). The arraignment
was scheduled to continue on August 10, 2007.
Meanwhile,
the State of Ohio managed to gain an indictment against C******* on July 27,
2007, charging him with the very same violation. Personal service upon the C******* of the
summons and the indictment was accomplished on August 6, 2007. As is commonly known, once an indictment
based on the same alleged conduct is filed, the municipal court should be
divested of its jurisdiction to pursue the matter, pursuant to Criminal Rule
48, and the subject -matter jurisdiction vests solely in the court of common
pleas. Accordingly, when the Indictment
was gained, the State was obligated to dismiss the municipal case pending
against C*******. As such, the
arraignment scheduled for August 10, 2007 should have been abandoned. This document written by Gaba Law
Office
However, the
State did not dismiss the municipal court case in a timely fashion. The Municipal court proceeded with its
previously scheduled arraignment on August 10, 2007. C******* did not appear, as he had been
served with s the summons and indictment in his case. The lower Court set bond at $10,000.00 and issued
a warrant for
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C******* for failure to appear.
On August 28, 2007 the U.S. marshals accompanied by the Chillicothe Task
force appearing at 458 L***** street, Chillicothe, Ohio. C******* was seized, arrested and held in
jail. Down loaded from gabatriallaw.com
The
following day, the Municipal court finally realized perhaps alerted by C*******
himself, that an indictment had been filed and they had no jurisdiction to hold
C******* on the failure to appear, and in fact, they did not even have
jurisdiction to issue the warrant on the failure to appear. As of August 6, 2007 they had no
jurisdiction over C******* at all. The
docket of the case notes, “Charge dismissed as Def[endant] has been indicted;
Common Pleas Summons served on 8/6/07 case should have been dismissed then”
(see municipal Docket, 8/29/07).
A simple
inquiry into the Common Pleas Court computerized records could have prevented
this miscarriage of justice. The Court,
and the Prosecutor knew, or should have known, that an indictment was returned
and filed, rendering the issue of the municipal arraignment moot, as there was
no jurisdiction to proceed on the arraignment.
A minimal investigation into the status of the case would have cured the
fact that two identical cases against
C******* were simultaneously being prosecuted, both by the City of
Chillicothe and by the State of Ohio. This document was written by Gaba Law Office, Columbus, O.
The Ross County Sheriff’s Office U.S.
23 Drug Task Force used this illegal bench warrant to gain entrance into the
Defendant’s residence at 458 L***** Street, Chillicothe, Ohio , where C*******
was located. During the execution of the
illegal bench warrant to arrest C*******
for his failure to appear at a non-existent hearing, the Ross county Sheriff’s
Office allegedly used the plain view doctrine, and uncorroborated skeletal
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conclusory statements from “reliable informants” to secure a
search warrant of 458 ***** Street. The
officer’s probable cause affidavit for the search warrant claimed that, after
they arrived to get C*******, they viewed a small amount of loose marijuana on
a table in the basement and a safe located in a closet with clothes hanging in
front of it. Of course, a small amount
of “personal use” marijuana and a safe, in and of themselves, could not
possibly be sufficient for a “drug raid “ search warrant. So there also appears in the affidavit, the
following statements: “Within the last month detectives have received
information from at least two different reliable informants who advised that
James C******* is selling marijuana and cocaine in the Chillicothe-Ross County area. Sources have also advised that he is living
at 458 L***** St. and keeping his drugs at his residence. Within the last week a reliable confidential
informant, who has provided detectives with reliable information in the past,
contacted detectives and advised that James C******* had a large amount of crack cocaine in his
house on L***** St. in Chillicothe Ohio.”1 The results of the subsequently issued search
warrant resulted in the instant case against Defendant. Down loaded from gabatriallaw.com
II. LAW AND ARGUMENT
a. Subject Matter Jurisdiction
The
Chillicothe Municipal lacking subject matter jurisdiction to issue the bench
warrant for Mr. C******* that is the basis for the current action against the
Defendant. Municipal courts have
subject-matter jurisdiction to entertain complaints with affidavits
____________________________ This document was written by Gaba Law Office, Columbus,
O.
1. See Det. Twila Goble’s Affidavit in support of search
warrant.
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alleging felony matters prior to an indictment
being filed based on the same alleged
conduct. See, e.g.,
Xenia Municipal Court Rules (“ Xenia Municipal court has jurisdiction *** [to]
conduct initial hearings, and/or any other necessary hearings, prior to
indictment of a defendant for felony
charges originating within the jurisdiction of the
Court.”) Once an indictment
based on the same alleged conduct is filed, the municipal court is divested of
its jurisdiction to pursue the matter, and the subject-matter jurisdiction
vests solely in the court of common pleas.
See id.
To maintain
a criminal action against a person in Ohio, the trial court must have subject
matter jurisdiction. See R.C.
#2901.11. The subject matter jurisdiction of Ohio courts of common pleas is
defined entirely by statute pursuant to Section 4, art. IV. The criminal law jurisdiction of common
pleas courts is defined by Ohio Revised Code Sections 2931.02 and 2931.03 which
“grant common pleas courts general original subject matter jurisdiction over the prosecution of all
crimes which take place within their geographical limits . . . “ State v. Neguse (1991), 71 Ohio
Appp.3d 596, 594 N.E. 2d 1116. This document was
written by Gaba Law Office, Columbus, O.
An active
warrant was issued for C******* out of the municipal case after the indictment
on the same issue was filed. Mr.
C******* was ultimately arrested on said municipal warrant, which lead to the
issuance of the search warrant, which forms the basis for the case against
Defendant. Down loaded from gabatriallaw.com
However, as
the Ohio Supreme Court has previously noted, “[a]n accused in a felony case is not
tried upon the affidavit filed against him, but on the indictment by the grand
jury.” (emphasis added). See
Foster v. Maxwell (1964), 177 Ohio St. 74.
In
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other words, once an indictment is returned, the indictment
“trumps” the complaint in municipal court, divesting the municipal court of its
jurisdiction to act on the complaint, and vesting sole jurisdiction with the court of common pleas
to entertain the indictment.
See, e.g., State v. Thacker (4th Dist., July 23,
2004), Lawrence App. No. 04CA5, 2004-Ohio-3978. Down
loaded from gabatriallaw.com
Mr. C******* was picked up, at the
Defendant’s house, on the warrant stemming from the municipal court case, while
at the same time there was an existing indictment based on the same alleged
conduct described in the complaint.
Under Ohio jurisprudence, once the indictment is filed, litigation,
including prosecution related to the indictment shall only be within the
jurisdiction of the court of common pleas where the indictment was filed. Because an indictment of Mr. C********
regarding the same alleged conduct as in the complaint was returned while the
municipal case was still active, the indictment “trumped” the municipal case;
so when Mr. C******* was picked up on the municipal case warrant, there was no
subject-matter jurisdiction to enforce said warrant, as the matter had become
within the province of the common pleas court’s jurisdiction. Therefore, all actions stemming from that
action without subject-matter jurisdiction are void as a matter of law,
including this instant litigation. See
State v. Swiger (1998), 125 Ohio
App. 3d 456, 708 N.E.2d 1033 (referencing Patton v. Diemer (1988),
35 Ohio St.3d 68, 518 N.E.2d 941). This document was written by Gaba Law
Office, Columbus, O.
Based on the
foregoing reasons, Defendant respectfully prays that this Court dismiss this
matter and discharge Defendant forth with.
b. Lack of Probable Cause
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An arresting officer violates the right to be free from
unreasonable searches and seizures when the officer arrests a person without
probable cause Dowling v. City of Philadelphia, 855 F2d 136, 141 (3d Cir.
1988). Probable cause exists when the facts and
circumstances within an arresting officer’s knowledge are
sufficient to warrant a reasonable person to believe that an offense has been
or is being committed by the person to be arrested. Orsatti v. New Jersey State Police, 71 F.3d
480, 483 (3d Cir. 1995). When a defendant is named in a bench warrant probable
cause for arrest exists, and any Fourth Amendment argument arising out of the
arrest is without merit even if the bench warrant later turns out to be
invalid. U.S. v. Smith, 468 F.2d 381 (3d
Cir. 1972); U.S. v. Spencer, 684 F.2d 220, 223 (2d Cir. 1982) (maintaining that
a bench warrant is the equivalent to a judicial determination of probable
cause); Carter v. Baltimore County,
95 Fed Apppx. 471, 479 (4th Cir. 2004) (non-precedential opinion) (finding that once an arresting police
officer ascertained that the plaintiff was the individual listed on the bench a
warrant, the officer had “probable cause (and indeed the duty) to serve the
warrant and take [the plaintiff] into custody.”). However, this is only true as long as a
reasonably well trained officer would not have known that the arrest was
illegal despite there being a bench warrant. See U. S. v. Leon, 468 U.S. 897, 922 n.23
(1984)
Here
Detective Bower was the officer executing the bench warrant at the Defendant’s
residence for Mr. C*******. Officer
Bower was familiar enough with Mr. C******* and the underlying case, to know or
at least have a colorable suspicion that the bench warrant was invalid because
the case had been bound over to the Common Pleas Court at the time of its
execution. This document
was written by Gaba Law Office, Columbus, O.
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c. Protective Sweep Doctrine - Pretext Search Down loaded from gabatriallaw.com
Even if we
presume, arguendo, Municipal Court Judge Bunch did have the authority to
issue a bench warrant, and that the warrant was not invalid despite Officer
Bower’s knowledge; the facts Detective Bower alleged, to
supply probable cause for Det. Goble’s search warrant of Defendant’s residence,
were obtained without a valid warrant on Mr. C****.
The Fourth
Amendment to the Constitution of the United States commands:
“The right of the people to be secure in
their persons,
houses, papers, and effects, against
unreasonable searches
and seizures, shall not be violated, and no
Warrants shall
issue, but upon probable cause, supported by
oath or
affirmation, and particularly describing the place
to be
searched, and the persons or things to be
seized.”
The Fourth Amendment is made applicable to the states through
the Fourteenth Amendment. Wolf v. Colorado (1949), 338 U.S. 25, 69 S.Ct. 1359,
93 L.Ed 1782. For violations of the
Fourth Amendment, courts are commanded to apply the exclusionary rule,
suppressing use of any evidence that was illegally obtained. Mapp v. Ohio (1961) 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d
1081. This document was written by Gaba Law Office, Columbus,
O.
Section 14,
Article I of the Ohio constitution is virtually identical in its terms to the
Fourth Amendment. Suppression of
evidence is authorized by Crim R. 12(C)(3).
Thus, the reach of Section 14, Article I of the Ohio Constitution is
co-extensive with that of the Fourteenth Amendment. State v. Robinette (1997), 80 Ohio St.3d 234.
The heart of
the Fourth Amendment is its reasonableness test, and the mechanism the Fourth
Amendment establishes to insure that the reasonableness test is satisfied is
the
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companion requirement of a prior judicial warrant. Thus, “searches conducted outside the
judicial process, without prior approval by a judge or magistrate, are per se
unreasonable.” Katz v. United States
(1967), 389 U.S. 347, 357, 88 S.Ct. 507,
19 L.Ed.2d 576. This document was
written by Gaba Law Office, Columbus, O.
If the
bench warrant executed for Mr. C***** was defective the search warrant must
fail under the “derivative evidence” rule, which requires suppression of
evidence that was seized in a seemingly lawful manner, but about which police
learned because of a constitutional violation.
Nardone v. United States (1939) , 308 U.S. 338, 60 S.Ct. 266, 84
L.Ed.307. Applying that rule, when
information supporting probable cause for a search warrant was illegally
obtained, the warrant is irreparably tainted, and any evidence obtained
pursuant to the warrant must be suppressed.
State v. Carter (1994) , 69 Ohio St.3d 57.Down loaded from gabatriallaw.com
The officers in this case claim they
saw in plain view loose marijuana in the basement, pursuant to a “protective
sweep” of the residence following the arrest of Mr. C***** . The police however did not have articulatable
facts from which they could reasonably suspect that the premises in which the
defendant was arrested harbored another person or persons who could launch an
attack on the officers who are there, as required by Maryland v. Buie, 494 U.S.
325.
The Supreme
Court pointed out in Buie that in contrast to the investigative detention in
Terry and Long, “[a] protective sweep * * * occurs as an adjunct to the serious
step of taking a person into custody for the purpose of prosecuting him for a
crime,“ id., being thus comparable to a
search incident to an arrest. Further,
“an in-
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home arrest puts the officer at the disadvantage of being on
this adversary’s ‘turf.’” Id.
Nevertheless, returning to the requirements for a search in Terry and Long, the
Supreme Court wrote:
“We agree with the State, as did the court
below, that a
warrant was not required. We also hold that as an incident
to the arrest the officers could, as a
precautionary matter
and without probable cause or reasonable
suspicion, look in
closets and other spaces immediately
adjoining the place of
arrest from which an attack could be
immediately launched.
beyond that, however, we hold that there must
be
articul able facts which taken together with
the rational
inferences from those facts, would warrant a
reasonably
prudent officer in believing that the area to
be swept
harbors a individual posing a danger to those
on the arrest
scene.
This is no more and no less than was required in
Terry and Long, and as in those cases, we
think this balance
is the proper one.” Maryland v. Buie, 494 U.S. 325. At 334.
By adopting
the “reasonable and articul able suspicion” standard of Terry and Long,
the Supreme Court in Buie imposes a circumstantial predicate on the authority
conferred on law enforcement officers to conduct a protective sweep of a
defendant’s residence following his arrest.
There must be articul able facts from which police reasonably suspect
that the premises in which the defendant is arrested harbors another person or
persons who may launch an attack on the officers who are there. Absent that basis to act, a protective sweep
is an unreasonable search for the purposes of the Fourth Amendment, and any
incriminating evidence it produces must be suppressed. Buie, 494 U.S. at 327. Down loaded from gabatriallaw.com
In the
present case the officers were executing an arrest warrant for failing to
appear on a case for receiving stolen property.
The residence in question was not in an
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open rural area. The
Defendant greeted the officers at the door.
The officers immediately pushed their way into the house where Mr.
C****** greeted them in the living room.
Mr. C***** identity was verified and was subsequently handcuffed and
placed under arrest. The officers then
instructed the Defendant to get Mr. C***** a pair of shoes and a shirt. The Defendant then went back into the bedroom
to locate a pair of shoes and a shirt for Mr. C*****. while the Defendant was in the bedroom the
officers executed a protective sweep of the kitchen, bathroom and bedrooms on
the first floor. After a few minutes the
Defendant brought the requested clothes and shoes to the officers. At this point the officers had been in the
residence for a number of minutes, had located Mr. C****, had Mr. C**** under
arrest, had procured clothes and shoes, executed a protective sweep of the
first floor, and been informed that no one else was in the house. A more intrusive protective sweep at this
time was not warranted, the suspect was in custody, and a sweep of the first
floor of the residence had not revealed the presence of anyone else. Having executed the (illegal) bench warrant,
the only thing the officers are authorized to do at this point is to leave the
premises. However, this is not what the
officers proceeded to do. Instead of
leaving the Defendant’s home, Detective Bower proceeded to do a protective
sweep of the basement. Thereafter
Detective Bower returned from the basement and stated that he saw on a table in
the basement, rolling papers and some loose vegetation he assumed to be
marijuana. Whereupon, Detective Bower
and Det. Goble proceeded to get a search warrant for the residence based on
what he allegedly saw in the basement.
This document was written by Gaba Law
Office, Columbus, O.
The police
had no information or reasonable facts on which to base a belief that
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there were others in the house and as such the police
exceeded the limits of the bench warrant when Officer Bower extended the
protective sweep beyond the first floor of the residence. Consequently, the evidence of the rolling
papers and loose marijuana found in the basement used to obtain the search
warrant must be excluded in violation of the Defendant’s constitutional rights. Without the inclusion of the unlawfully
included items from the basement the search warrant ceased to satisfy the
probable cause requirement for the issuance of a search warrant. The search warrant without the offending
elements merely contains vague uncorroborated allegations by “reliable informants”
and a safe.
This case is
troubling because the implication from reading the affidavit to procure the
search warrant is that the police had information that Mr. C**** was dealing
drugs out of the Defendant’s residence and rather than do the necessary police
work to obtain probable cause for a search warrant the police used an invalid
bench warrant as a pretext to conduct an exploratory and illegal search of the
Defendant’s home.
d. THE SEARCH WARRANT WAS NOT SUPPORTED BY
PROBABLE CAUSE AS THERE WAS AN INSUFFICIENT NEXUS
BETWEEN THE PLACE TO BE
SEARCHED AND EVIDENCE OF ALLEGED CRIMINAL ACTIVITIES. This document was written by Gaba Law Office, Columbus,
O.
It is fundamental that the Fourth
Amendment requires “a nexus * * * between the item to be seized and criminal
behavior.” See Warden v. Hayden (1967),
387 U.S. 294. Thus, a search warrant
only issues upon a showing of probable cause to believe that the legitimate
object of a search is located in a particular place. See Steagold v. United States (1981)
451 U.S. 204. In assessing probable
cause as to the location of evidence, the United States Supreme Court has held
that “[t]he task of the issuing magistrate is simply to make a practical ,
common-sense decision whether, given all the circumstances set -14-
forth in the affidavit before him, including the
‘veracity’ and ‘basis of knowledge’ of
persons supplying the hearsay information, these is a fair probability that contraband
or evidence of a crime will be found in a particular place. See Illinois v. Gates (1983), 462 U.S.
213. It is the duty of a trial court
reviewing a search warrant “to ensure that the magistrate had a substantial basis for concluding the
probable cause existed.” See State v.
George (1989), 45 Ohio St3d 325.This document was written by Gaba Law Office, Columbus, O.
The Third
Appellate District of Ohio had held that suppression was proper where a police
detective’s affidavit and oral testimony relating an informant’s statements and
defendant’s refusal to submit to a urine sample upon his trafficking arrest did
not establish probable cause for a search warrant. See State v. Swearingen
(1999) , 131 Ohio App.3d 124. In that
case, a detective testified before a magistrate that an informant had
participated in two controlled drug buys a with the defendant three weeks
before his arrest and that, upon his arrest, the defendant refused to provide a
urine sample. See id. On that basis, the detective sought and
obtained a warrant to search the defendant’s body and obtain a urine
sample. See id. Applying Gates analysis, the Swearingen Court
noted that the veracity of the informant was suspect and that the officer
failed to engage in any independent investigation to corroborate the
allegations. See id.
By applying
this analysis here, the warrant affidavit must fail First, the affidavit makes
reference to alleged drug possession or trafficking by C******. See Search Warrant Affidavit. No indicia of veracity or credibility are
given whatsoever for the “reliable informants,” and further no information
regarding L**** Street is provided,
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thereby leaving no reasonable way for the judge to whom the
affidavit was presented to verify the “veracity“ or “basis of knowledge” for
the two individuals. Further, there is
an insufficient nexus between the place searched --L***** Street --and the
alleged criminal activity, no controlled buys, no nothing. This document was written by Gaba Law Office, Columbus, O.
Aside from
the fact that the warrant affidavit is completely devoid of any indicia of
“veracity” or the “basis of knowledge” for the “reliable informants” the
affidavit is devoid of any assertions by the officer that she was able to
independently corroborate the information provided by the reliable
informants. Further, there was no
corroborating evidence submitted in the warrant affidavit to justify a finding
of probable cause that drugs would be located within L***** Street. In the absence of any independent evidence of
a drug offense, the detective instead made conclusory allegations about
possession. See Search Warrant
Affidavit. No factual basis for this belief
is cited. As the Supreme Court stated in
United States v. Ventresca (1965) , 380 U.S. 102, probable cause cannot
be established by affidavits which are purely conclusory, stating only the
affiant’s * * * belief that probable cause exists without
detailing any of the ‘underlying circumstances’ upon which that belief is
based.” There is no indication that the
detective contacted any other potential witnesses or did anything else
whatsoever to establish probable cause.
Down loaded from
gabatriallaw.com
The
affiant’s statements are all conclusory in nature in contravention of Ventresca. Such conclusory statements fail to give any
indication concerning how stale or remote in time the prior alleged incidents
were, see Sgro v. United States (1932) , 287 U.S. 206, and they also
fail to corroborate the affiant’s alleged source of information.
-16-
See Geordenello v. United States (1958) , 357 U.S. 480. Examples of clearly unacceptable sworn
statements by an affiant include: “he has cause and reason to suspect and does
believe” that evidence of a crime will
be found; a “wholly conclusory statement:”, and the officer “has received
reliable information from a credible person and do[es] believe” that evidence
will be found. See Illinois v. Gates
(1983), 462 U.S. 213.
This document was
written by Gaba Law Office, Columbus, O.
Based on the
foregoing reasons, the instant warrant affidavit is without probable cause, and
thus any and all evidence seized as a result must be suppressed at trial, and
any and all testimony offered as a result of said search must be excluded as
well.
WHEREFORE, the defendant respectfully requests this
court suppress all evidence seized pursuant to the search warrant executed on
458 L***** Street, Chillicothe, Ohio, on
August 29, 2007. Down loaded from gabatriallaw.com
Respectfully
submitted,
ELIZABETH
GABA
DAVID T.
SPENCER
Attorneys
for Defendant
1231 East
Broad Street
Columbus,
Ohio 43205
(614)
586-1586
Fax:
(614) 586-0064
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CERTIFICATE OF SERVICE
The undersigned hereby certifies that a copy of the
foregoing document was sent to the Ross county Prosecutor’s Office, Michael M.
Ater Esq., at 72 North Paint Street Chillicothe, Ohio 45601, on this 29th
day of August 2008, by facsimile transmission to (740) 702-3106 and/or hand
delivery and/or ordinary U.S. mail, postage prepaid
ELIZABETH
GABA
Down loaded from gabatriallaw.com
DAVID T.
SPENCER
Attorneys
for Defendant
This document was written by Gaba Law
Office, Columbus, O.
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IN THE COURT OF COMMON PLEAS, ROSS COUNTY, OHIO
STATE OF OHIO,
Plaintiff Case
No. CR 291
DECISION AND
JUDGMENT ENTRY
vs.
NICOLETTE T****,
Defendant
This action
came on for consideration on the 1st day of April 2009 upon the
defendant’s Motion to Suppress; the State’s Brief in Opposition thereto; and
the defendant’s Supplemental Brief. A
hearing on the defendant’s Motion to Suppress was conducted on March 2, 2009. The court received testimony from Detective
David Bower, formerly of the Ross County Sheriff’s Office, Deputy Gary Hall,
Detective Twila Goble and Detective Randy Sanders all of the Ross County
Sheriff’s Department. The parties
submitted the following stipulated facts:
Downloaded from the web site
gabatriallaw.com
1) James C******* was arrested for
Receiving Stolen Property in
the middle of July, 2007.
2) The case was set for arraignment in
Chillicothe Municipal Court
on August 10, 2007.
3) On July 27, 2007, James C******* was
indicted by the Ross
County Grand Jury for Receiving Stolen
Property out of the same
facts and circumstances. Downloaded from the web site
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4) On August 7, 2007, James C******* was
arraigned on the felony charge in the Ross county Court of Common Pleas. His bond he had posted in Municipal Court was
continued.
5) On August 10, 2007, James C*******
failed to appear at this previously scheduled Municipal Court arraignment. The municipal court case had not been
dismissed upon indictment by the Grand Jury.
6) On the same date, the Chillicothe Municipal
Court issued a warrant for his arrest based upon the failure to appear.
7) On August 28, 2007, James C*******
was arrested on that warrant. Downloaded from the web site
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Detective
Bower testified that on August 8, 2007, he was working with the U.S. Marshall’s
Office in executing outstanding arrest warrants in Ross County. He testified that these warrants were out of
both Common Pleas Court, as well as Municipal Court. He obtained what he referred to as a “master
list” of outstanding warrants. This list
did not differentiate between felony and misdemeanor warrants. In order to check to see if the
-2-
warrant was still valid, Detective Bower would call into
dispatch to see if it was still active, or he would call into Tracy Pinkerton
of the Sheriff’s Office to verify the validity.
Bower testified that he did this on the warrant for James C*******. He also testified that he would not go on
line to either the Common Pleas or Municipal Court websites to see if the
warrant appeared to be valid from that information. Downloaded from the web site gabatriallaw.com
Detective
Bower went on to testify that on August 28, 2007, in the early morning hours,
he contacted Detective Goble to see if she had any information on the current
whereabouts of James C*******.
Detective Goble informed Bower that she had information C******* was
selling drugs out of 458 L***** Street, and staying there with his girlfriend
Nicolette T****. Possessed with this
information, Bower and other members of the Marshall’s Office proceeded to that
address. Upon entry into the residence,
Bower observed C****** approximately twenty (20) feet inside the door. He was detained at this time. Upon the detention, Bower conducted a
protective sweep of the residence, both upstairs and downstairs. Upon searching downstairs, Bower observed
what he believed to be marijuana based upon his training and experience. He described the amount as being a small
amount, but larger than a thumbnail.
Downstairs,
-3-
he also observed two individuals in a back room in the
basement. Bower then contacted Detective
Goble again and informed her of the marijuana he had seen in the basement. Finally, Bower testified that at no time
prior to the execution of the warrant, did he have any contact with Deputy Gary
Hall. Downloaded from the web site
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Deputy Gary Hall then testified. He filed the initial complaint in the
Chillicothe Municipal court charging C****** with felony receiving stolen
property on or about July 13, 2007. He
testified that he had no contact with the case that he could recall. He could not recall if he testified at grand
jury which resulted in the indictment of the charge. He also testified that at no time did he dismiss
the Municipal Court charge. Finally, he
testified that he did not have any
contact with Detective Bower regarding James C******* between July 2007, and
August 28, 2007.
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Next, Detective
Goble took the stand. She testified that
in the morning of August 28, 2007, she was contacted by Detective Bower
regarding potential whereabouts of James C*******. She told Bower that she had information he
was selling drugs out of the residence of Nicolette
T**** at 458 L**** Street.
A short period of time later, Detective Goble
-4-
was contacted again by Bower who told her of the marijuana he
had seen in
plain view in the basement.
At that time, Detective Goble prepared an affidavit to obtain a search
warrant for the premises of 458 L**** Street.
A copy of this affidavit was admitted into evidence at the hearing. Goble testified that when listing information
obtained from the confidential informant in the affidavit, she does not list
specific numbers or amounts of convictions that have been obtained through
information provided by that particular informant. Downloaded from the web site gabatriallaw.com
Detective
Goble successfully obtained a search warrant for the residence, a copy of which
as also introduced into evidence at the hearing. This warrant was approved by Judge Bunch of
the Chillicothe Municipal Court. Downloaded from the web site
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Upon execution
of the search warrant, Detective Goble testified that she searched the
downstairs area of the residence. In the
basement, she observed sitting in plain view, marijuana located on a coffee
table.
Finally,
Detective Randy Sanders testified that he was on the team which executed the
search warrant on August 28, 2007. Once
inside, Sanders went to the upstairs portion of the residence. He testified that the
defendant in the case was in the room with him and Detective
Large. Once
-5-
inside the bedroom, Sanders located a safe in the
bedroom. Ms. T**** opened the safe at
the request of the detectives. Also in
the same bedroom upstairs, among other things, Sanders observed a purse located
on the floor near the corner of a bed located in that particular bedroom. He placed the purse on the bed and searched
the contents. Inside a zippered pouch in
the purse, Sanders located a baggie containing eight (8) pills, and a white
plastic container containing two (2) pills and a half of a third pill. These pills were collected as evidence as
seen on the inventory sheet submitted into evidence. Downloaded from the web site
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Sanders also
testified that he did not read the search warrant personally, but was told by
Detective Goble what the search included, namely drugs. He also testified that he has been involved
in nearly one thousand such searches, and on many occasions he has located
suspected drugs inside purses.
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The first
issue which this court must address is whether Detective Bower had a right to
enter the residence at 458 L**** Street in order to arrest James C******* on
the warrant which was issued out of the Chillicothe Municipal Court. The stipulated facts clearly reveal that
James C******* was arrested on a warrant for his failure to appear at
arraignment
-6-
in the Chillicothe Municipal Court on the complaint which was filed for Receiving
Stolen Property. Mr. C******* did fail
to appear at the arraignment scheduled on August 10, 2007. However, his failure to appear occurred after
he was arraigned on the same felony charge in the Ross County Court of common
Pleas. The question arises whether the
Municipal Court was divested of jurisdiction to continue the warrant after Mr.
C******* was indicted by the Ross County Grand Jury on the same charge. Section 1901.20(B) states in pertinent parts
as follows:
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“The Municipal Court has jurisdiction to hear
felony cases committed within its territory. In all felony cases, the Court may conduct preliminary
hearings and other necessary hearings prior
to the indictment of the defendant….” (Emphasis added) .
Criminal
Rule 5(B) states in pertinent part as follows:
“In felony
cases a defendant is entitled to a preliminary hearing unless waived in writing …if the defendant does not waive the preliminary hearing, the judge
or magistrate shall schedule a preliminary
hearing within a reasonable time. …. The preliminary
hearing shall not be held, however, if the defendant is
indicted.” (Emphasis added)
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It is clear
that the procedural scheme established by statute and by
rule grants the Municipal Court jurisdiction only to conduct
a preliminary
-7-
hearing to determine probable cause. Clearly, the Municipal Court is divested of jurisdiction after the charge
has been presented to grand jury and the defendant has been indicted on the
same charge. Therefore, this Court
concludes that the warrant which was executed by Detective Bower was invalid
(emphasis added). Downloaded from the web site
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The Court must
next determine whether the good faith doctrine applies to the execution of this
arrest warrant. The exclusionary rule
does not apply to governmental action taken in good faith in reliance upon the
validity of a search or arrest warrant.
The good faith doctrine examines the officer’s conduct to determine
whether it is objectively reasonable and executed in good faith. Excluding evidence because a search warrant
is found to be constitutionally invalid will not further the ends of justice
when the officer acts objectively, reasonably and in good faith. United States v. Leon (1984) 468 U.S. 897; State v. Wilmoth (1986) 22 Ohio
St. 3d 251. The good faith doctrine
applies to arrest warrants. City of
Chillicothe v. Remy (2003) 2003 Ohio 2600 ; State v. Oke (2005) 2005 Ohio
6525. Detective Bower testified that he
got a list of active arrest warrants for individuals out of the courts of
Chillicothe and Ross County. He verified the arrest warrant for C******* was
still an active warrant through the Ross County Sheriff’s
-8-
Department. He then
obtained what he believed was an accurate address for Mr. C*******. In this situation the Court concludes that
Detective Bower acted objectively, reasonably, and in good faith when he
arrested Mr. C******* at the residence.
Therefore, his observations of Mr. C******* at 458 L**** Street are
legitimate and were legitimately included in the search warrant affidavit. However, the Court finds that the intrusion
of Detective
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Bower into the basement area where he observed the marijuana
was not objectively reasonable and not necessary for a protective sweep
pursuant to arrest. At the hearing,
Detective Bower was unable to set forth sufficient articul able facts from which he reasonably suspected that
the basement would harbor another person or persons who may launch an attack on
the officers who were present. Mr.
C******* was arrested upstairs near the door.
A protective sweep within that
area was certainly reasonable. However a
protective sweep away from Mr. C******* and into the basement was not
reasonable under the circumstances.
Therefore, this Court finds that Detective Bower’s observations of the
marijuana in the basement were not legitimately included in the search warrant
affidavit
and should not be considered.
-9-
A court may excise tainted material from an affidavit and
consider the legitimate material in determining whether the affidavit
establishes probable cause. This Court
must continue to consider the affidavit and what material contained therein may
be utilized to establish probable cause.
The second paragraph of the affidavit sets forth information concerning
two informants as follows; Downloaded from the web site
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“Within the last month Detectives have received
information from at least two different reliable
informants who advised that James
C******* is selling marijuana and cocaine in the Chillicothe - Ross County
area. Sources have also advised that he is living at 458 L**** Street
and keeping his drugs at his residence”. Downloaded
from the web site gabatriallaw.com
This portion
of the affidavit asserts that the informants are reliable but does not indicate
how they are reliable. The affidavit
does not assert any prior connection with the informants upon which to base her
conclusion that they are reliable. The
bald assertion they are reliable is insufficient. Further, the last sentence of this paragraph
refers to “sources”. It does not state
that these sources are reliable. It does
not state who these sources are. Are
these sources the same “two different reliable informants” or are they
independent sources? This paragraph does
not establish a sufficient indicia
of reliability for the two informants and cannot be
considered in establishing
-10-
probable cause unless the assertions are corroborated later
in the affidavit. The next paragraph of
the affidavit states as follows:
“Within the last week a reliable confidential
informant, who has
provided detectives with reliable information in the past, contacted detectives
and advised that James C******* had a large
amount of crack cocaine in his house on L***** Street in Chillicothe, OH” Downloaded
from the web site gabatriallaw.com
This paragraph
does not indicate whether this reliable confidential informant is one of the
two previously mentioned in the first paragraph. However, this paragraph does state that this
informant has provided to the detectives reliable information in the past. Further, this informant has provided specific
detail concerning an amount of controlled substance, the identity of the
controlled substance and on what street it will be located in Chillicothe, Ohio. The informant further identifies the specific
person who possesses this substance. It
is the Court’s opinion that this portion of the affidavit does establish the
credibility and reliability of the one informant who was provided the
information. It further provides
specific information concerning the substance, a general amount of the
substance, who possesses the substance and where it will be located. The court finds that this para- graph is
sufficiently reliable to consider in determining whether probable cause
exists. Downloaded from the web site gabatriallaw.com
-11-
The third paragraph of the affidavit
refers to the information provided by Detective Bower. This Court has previously found that
Detective Bower’s identification of James C******** at 458 L**** Street is subject to the Good
Faith Doctrine. However, any further
observations by Detective Bower will be excluded. Therefore, Detective Bower’s observation of
James C******* at 458 L**** Street identifies Mr. C******* with a specific
address and is considered in establishing probable cause.
An affidavit
submitted in support of a search warrant enjoys a presumption of validity. State v. Jones (2000) 90 Ohio St.3d 403;
State v. Ralston (2007) 2007 Ohio 177. When
conducting a review of an affidavit, trial and appellate courts must afford
great deference to the magistrate’s probable cause determinations and doubtful
or marginal cases should be favorable in upholding the warrant. State v. George (1989) 45 Ohio St.3d 245;
State v. Sheppard (1998) 84 Ohio St. 3d 230; State v. Kinney (1998) 83 Ohio
St.3d 85. An issuing magistrate must
make a practical, common sense
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decision whether, in light of all the circumstances set forth
in the affidavit,
-12-
including the voracity and the basis of knowledge of those
persons who
provide hearsay information, a fair probability exists that
contraband or evidence of a crime will be found in a particular place. Illinois v. Gates
(1983) 462 U.S. 213; State v. Garner (1995) 74 Ohio St. 3d 49.
Granting the
probable cause determination made by the issuing magistrate the deference which
it is due, this Court finds that the information contained in the affidavit
legitimately still establishes probable cause for the issuance of the
warrant. The remaining information in
the affidavit establishes that a reliable confidential informant had provided
Detectives with reliable information in the past and that said informant told detectives
that James C******* had a large amount of crack cocaine in his house of L****
Street. Additionally, the remaining
information contained in the affidavit identifies James C******* as being at
the residence at 458 L**** Street when he was arrested. This constitutes probable cause for the
issuance of the search warrant.
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This Court
must next determine whether the purse of this defendant was properly seized
pursuant to the search warrant. The
warrant itself authorized a search for evidence of the commission of the
criminal offenses of Trafficking in Drugs, 2925.03 R.C., Drug Abuse 2925.11 R.C. or Drug
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Paraphernalia Offenses, 2945.14 R.C. Specifically
marijuana. The search Downloaded from the web site
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warrant did not authorize the search of any specific person
in the residence nor did it authorize the search of purses of any
occupants. Neither the warrant or the
affidavit focused on the defendant.
Rather, both focused on the residence of James C*******. The Court finds that Detective Sanders went
beyond the scope of the warrant when he seized the purse of the defendant. The warrant did not direct the search of the
defendant. The affidavit did not establish
that the defendant was engaged in drug trafficking or drug possession at the
residence. The testimony of Detective
Sanders did not establish that the search of the purse was necessary for his
protection or the protection of other officers.
There was no probable cause to search the purse of the defendant and the
warrant did not establish authority for the search of the purse. See State v. Tucker (1944) 98 Ohio App 3d
308; State v. McFarland (2002) 150 Ohio App 3d 396. The Defendant’s Motion to Suppress is
sustained (emphasis added).
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-14-
/s/ Scott W.
Nusbaum
SCOTT W. NUSBAUM
JUDGE, Common Pleas
Court
Courtroom # 2
Ross County, Ohio
Recipients of Judgment Entry:
Mr. Michael M. Ater Elizabeth Gaba
Prosecuting Attorney Attorney for Defendant
72 North Paint Street 1231 E. Broad Street
Chillicothe, OH 45601 Columbus, OH 43205
IN THE COURT OF COMMON PLEAS
ROSS COUNTY, OHIO
STATE OF OHIO
CASE
NO. CR 291
Plaintiff
JUDGE NUSBAUM
-vs.-
NICOLETTE T****
Defendant MOTION
TO DISMISS
Now comes the State of Ohio by the
Prosecuting Attorney, Michael M. Ater and respectfully requests the above
captioned matter be dismissed for the reason that the suppression of the
State’s evidence has rendered the State’s case so weak that there is no
reasonable possibility of successful prosecution. Respectfully
submitted,
/s/
Michael M. Ater
Prosecuting
Attorney
Ross
County, Ohio
72
N. Paint Street
Chillicothe,
OH 45601
(740)
702-3115
PROOF OF SERVICE
I do hereby certify that a true copy of this foregoing Motion
was served upon Elizabeth Gaba, Attorney for Defendant, at 1231 East Broad St.,
Columbus, OH 43205 this 5th day of May, 2009, by regular U.S. Mail.
/S/
MICHAEL ATER
Prosecuting
Attorney
IN THE COURT OF COMMON PLEAS
ROSS COUNTY, OHIO
STATE OF OHIO,
CASE
NO. CR 291
Plaintiff
-vs.-
JUDGE
NUSBAUM
NICOLETTE T****
Defendant
ENTRY
Upon Motion of the State of Ohio and
for good cause shown, this matter is hereby dismissed.
/s/ Scott W. Nusbaum
Scott
W. Nusbaum
Judge, Court of
Common Pleas
Ross County, Ohio
Courtroom # 2
Recipients of Journal Entry:
Michael M. Ater
Prosecuting Attorney
72 N. Paint St.
Chillicothe, OH 45601
Elizabeth Gaba
Attorney for Defendant
1231 E. Broad Street
Columbus, Ohio 43205