[T]he affidavit securing the warrant in this matter is so facially deficient the officer could not have relied on it.
State v. Hilliard
2022 – Ohio – 2849
Seventh District Appellate Court
Belmont County, Ohio
At the time of the instant offense, Mr. Linnie Hilliard was under federally supervised release stemming from an unrelated conviction. The instant offense, which occurred on May 28, 2019, involved a drug investigation conducted by the Belmont County Major Crimes Unit consisting of sergeant, Detective #1, Detective #2, and Detective #3.
A housekeeper at the St. Clairsville Red Roof Inn entered room 208 to clean the room. She noticed at the time that the smoke detector was covered and observed a loose, white, powdery substance on a counter. She told her manager about what she discovered in the room, but it is unclear how long after she left the room she spoke to her manager. At some point, the hotel manager called sergeant, who was involved in an unrelated investigation and did not address the manager’s concerns. The manager later contacted Detective #1 and relayed the information given to him by the housekeeper.
The record does not show how much time that elapsed between the manager’s call to sergeant and his call to Detective #1. When Detective #1 contacted sergeant to advise him of the manager’s call, sergeant informed Detective #1 that he had received a similar call from the manager earlier in the day.
Red Roof Inn at 68301 Red Roof Lane, St Clairsville, Ohio. The events in Room #208 would lead to a search warrant, search, arrest, conviction and appeal. Room #208 may never again be so popular at the Red Roof Inn in St. Clairsville, Ohio.
The officers were informed by the manager that a West Virginia driver’s license in Mr. Hilliard’s name was linked to the room. The officers did not obtain or otherwise view the license or attempt to corroborate the manager’s assertion. Detective #1 later learned that Mr. Hilliard had a criminal record that included drug and weapons charges. He apparently obtained a printout of the record to confirm these charges. The two officers decided to conduct surveillance on the hotel room and begin an investigation.
At a suppression hearing in this case, it was testified that during surveillance, occupants who had been observed leaving the hotel room left the parking lot in two separate vehicles. The officers were unable to initiate a traffic stop of the first vehicle, but somehow learned that one passenger, S.M., had previously been jailed in Belmont County on drug charges. The officers successfully pulled over the second vehicle. It is unknown whether the two occupants in the second vehicle had prior criminal records. A search of this vehicle resulted in discovery of a burnt spoon, a digital scale, and unspecified pills. The record is silent as to whether charges resulted from that traffic stop, but it appears that those passengers provided no insight as to the activities that may have been conducted in room 208.
Based on the information received from the Red Roof Inn manager and the surveillance, Detective #1 obtained a search warrant for room 208, which was signed at 8:55 p.m. Significantly, the warrant was limited to room 208 and did not authorize a search of Mr. Hilliard’s person, or any other person. The warrant specifically allowed a search for “[I]llegal drugs, narcotics, money, cell phones, drug instruments, drug paraphernalia, any and all items related to drug trafficking.” The warrant specifically authorized a no-knock nighttime search.
The search team included Sergeant, Detective #1, Detective #2, and Detective #3. Detective #1, who provided the affidavit on which the warrant had issued, informed the team that a warrant had issued but did not tell them that it limited the search only to the room and did not authorize a search of Mr. Hilliard’s person. The officers first attempted to enter the room with a key card, presumably supplied by the manager, but the door was latched with a chain. Then they used a ram to force the door open and immediately located Mr. Hilliard. They tackled him to the ground and placed him in handcuffs. At that time, the officers informed Mr. Hilliard that he was being detained.
Dep. Carpenter conducted a frisk of Mr. Hilliard’s person and located what he immediately knew to be money inside one of Mr. Hilliard’s pockets. When he removed the money from the pocket, drugs also fell out. Dep. Carpenter continued his frisk and felt an object he immediately knew to be drugs near Mr. Hilliard’s buttocks. He removed Mr. Hilliard’s pants and removed the drugs from Mr. Hilliard.
Detective #1 searched the room. In plain view he located two digital scales on a table, empty ties-offs that are associated with the knotting and sealing of plastic baggies, and a pipe commonly used to smoke crack cocaine. He also located a glass vial of suspected Phencyclidine (“PCP”). Testing later revealed the substance was, in fact, PCP.
On August 26, 2019, Mr. Hilliard was indicted on the following charges:
Trafficking in cocaine, a felony of the first degree in violation of R.C. 2925.03(A)(2), (C)(4), (F) with two specifications for forfeiture of a cellphone in a drug case in violation of R.C. 2941.1417(A) and one specification for forfeiture of money in a drug case in violation of R.C. 2941.1417(A).
Aggravated possession of drugs, a felony of the third degree in violation of R.C. 2925.11(A), (C)(1), (B).
Possession of cocaine, a felony of the first degree in violation of R.C. 2925.11(A), (C)(4), (E).
Aggravated possession of drugs, a felony of the fifth degree in violation of R.C. 2925.11(A),(C)(1), (A).
Motion to Suppress
Mr. Hilliard filed a motion to suppress based on deficiencies in the affidavit and the fact that the search warrant was expressly limited to a search of the hotel room, not his person. The court agreed with Mr. Hilliard as to the latter claim, but ruled in the state’s favor based on the inevitable discovery doctrine. According to the court, Mr. Hilliard would have been searched once he was arrested based on the discovery of drugs in the hotel room, and a body scanner used at the jail would have detected the drugs located near his buttocks. The court denied the motion to suppress in full.
Plead No Contest and Sentenced to Eleven to Sixteen- and One-Half Years
On May 7, 2021, Mr. Hilliard pleaded no contest to possession of cocaine. The remaining charges were dismissed. On May 19, 2021, the court sentenced Mr. Hilliard to an indefinite term of imprisonment with a minimum of eleven years and a maximum of sixteen and one-half years. The court awarded Mr. Hilliard 241 days of jail-time credit. The phones were found by the trial court to be subject to forfeiture (iPhone and Tracphone) and were ordered to be destroyed following any appeal. The seized money ($497) was ordered to be allocated to the law enforcement trust fund for the Belmont County Major Crimes Unit (60%=$298.20) and the law enforcement trust fund for the Belmont County Prosecutor’s Office (40%=$198.80).
It is from this entry that Mr. Hilliard timely appeals.
Veracity of the Supporting Search Warrant Affidavit
Mr. Hilliard argues that there is nothing within the affidavit to indicate the veracity or truthfulness of the housekeeper or manager’s claims. According to Mr. Hilliard, the affidavit indicates that the hotel provided the officers with observations of possible “illegal activity.” However, it contains no indication that Detective #1 or any other officer made an attempt to corroborate the claims. Detective #1 admittedly did not speak to the housekeeper to determine if what the manager relayed to him was true or accurate. The issue is whether the failure of the officers to include any information regarding the veracity of the housekeeper or hotel manager and their subsequent reliance on the hotel staff in securing the warrant renders the warrant unlawful.
In State v. Redelman, 2013 – Ohio – 657 the Twelfth District Court emphasized “[T]he fact that the affiant’s knowledge may be the result of double or multiple levels of hearsay does not, per se, invalidate the resulting search warrant.” The veracity or reliability of a hearsay statement can be corroborated through an independent police investigation. Citing Illinois v. Gates, 462 U.S. 213 (1983).
Hence, we must analyze the entire affidavit to determine whether Detective #1, in his affidavit, provided any basis for his reliance on the veracity of the housekeeper and the manager’s hearsay information to him or otherwise establishes that the housekeeper and manager’s observations were corroborated through a police investigation or were verified in any other way.
Further, an affidavit must “[C]ontain some information that would allow the magistrate to independently determine that probable cause presently exists-not merely that it existed at some time in the past.” Thus, a supporting affidavit that does not give any time frame for the events it describes fails, as a matter of law, to demonstrate probable cause, and a search warrant issued based solely on that affidavit is invalid.” State v. Hillegass, 144 Ohio App.3d 108, 111, (2001). The Supreme Court of Ohio has also emphasized the importance of a timeline when obtaining a search warrant: “Special considerations to be taken into account when determining whether to issue a search warrant include how stale the information relied upon is, when the facts relied upon occurred, and whether there is a nexus between the alleged crime, the objects to be seized, and the place to be searched.” State v. Castagnola, 2015-Ohio-1565.
The affidavit, here, states that the call from the hotel staff occurred on May 28, 2019 but does not provide the time of day. The housekeeper’s discovery could have occurred at any time that day. At the suppression hearing, Detective #1 did not specify what time he received a call from the hotel manager, however, he noted that Sergeant informed him that he had received the same call “earlier in the day.” The record contains information that there were two different calls to police after the discovery was made but is devoid as to the timing of the discovery, the time it was conveyed to the manager, and the timing of these calls. It does appear that some amount of time had passed between the housekeeper’s discovery and the officer’s decision to initiate an investigation. Significantly, the officers did not obtain the warrant until 8:55 p.m. Because the housekeeper’s discovery appeared to suggest that drugs were currently in the process of being possessed and consumed based on the loose powder and the covered smoke detector, the record contains the suggestion of staleness.
In addition to the lack of timeline as to the discovery, subsequent calls to police, and the initiation of an investigation, according to the affidavit the officers “observed an individual with previous drug realted [sic] arrest leaving room 208.” Specifically absent from the affidavit is any mention of the time this person arrived at and left room 208. While evidence of the time this person was observed entering the room could have reestablished timeliness, this critical information is missing. The affidavit also fails to provide any information regarding the nature of the visitor’s offense and how long ago it was committed.
Thus, this affidavit fails to establish at what time the housekeeper made her initial discovery, when she told her manager, when each of the officers were alerted by the manager to the discovery, how long the ensuing investigation took, and when the person with a “known drug history” arrived and left the hotel room. The only specific time in this record is the time the warrant was obtained, 8:55 p.m.
Again, we emphasize that the observations relayed by the housekeeper appear to merely indicate the consumption of drugs. Detective #1 averred in the affidavit that the evidence led him to believe that the hotel room contained evidence of drug possession, and the observations made by the housekeeper tend to suggest drug consumption or use. There is no temporal context in the affidavit to demonstrate that the suspected drug possession continued to exist at the time the warrant was sought and issued, and had not ended at some point in the past, instead. There is likewise no indication that drug trafficking may be taking place, based solely on the information provided by hotel staff.
The second paragraph of the affidavit addresses Mr. Hilliard’s identity: “[R]ecords indicate room 208 is being rented by [Mr. Hilliard]. [Det. Schwarck] was able to confirm his identity through hid [sic] West Virginia driver’s license.” Mr. Hilliard contends that this statement is fatally unsupported as neither officer personally reviewed his driver’s license, but testified that they instead relied exclusively on information given by the manager.
Again, any hearsay in the affidavit must be supported by evidence of witness reliability or corroboration by some means. The question becomes whether Detective #1 corroborated the hotel manager’s identification of Mr. Hilliard, and it appears he did not. The problem is compounded when comparing Detective #1’s affidavit to his testimony. While he never expressly stated he reviewed the driver’s license himself in his affidavit, he strongly suggests this in his use of the language “I was able to confirm.” This phrase indicates that Detective #1, himself, confirmed Mr. Hilliard’s identity through observation or review of Mr. Hilliard’s driver’s license. At the suppression hearing, Detective #1 conceded that he relied on the manager’s description and never personally viewed the driver’s license on record at the hotel or any other records pertaining to the room’s registration. Again, while it can be appropriate to rely on hearsay evidence, Detective #1 had access to hotel registration documents but chose not to confirm the manager’s information, yet gave the impression he had in his affidavit. While this alone may not be fatal, this must be considered when viewing the information contained within the affidavit as a whole.
The third paragraph of the affidavit states: “[W]hile surveilling the Red Roof Inn detectives observed an individual with previous drug realted [sic] arrest leaving room 208.”. The affidavit listed only one visitor and, as noted by Mr. Hilliard, did not provide any details regarding how long this person was inside room 208. The affidavit does not provide details of this person’s charges nor how long ago he was arrested. The affidavit also completely omitted any information about the subsequent stop of another vehicle associated with visitors to room 208 and which apparently resulted in the seizure of drugs. As this information was not included within the affidavit at all, it cannot be considered in deciding whether the warrant was properly issued. The only valid information in this regard is that one person with a prior, unspecified, drug related arrest was inside the room for an unknown amount of time, and that visit may have been moments or hours before the warrant was secured.
In the affidavit, Detective #1 stated that he “noted that [Mr. Hilliard] has been arrested and placed into the Belmont County Jail for drug possession and gun charges. This was also confirmed by a computerized crime history.” Mr. Hilliard argues that this portion of the affidavit contains a false assertion that he had previously been convicted of felony drug possession. He explains that his previous arrest involved a charge pertaining to drug abuse instruments, a misdemeanor and a far different crime.
Detective #1 did not address how he first learned of Mr. Hilliard’s prior charges but claimed to have confirmed this through use of a computer search. At the suppression hearing, Detective #1 acknowledged his error, but did not believe that the difference between drug possession (a felony) and possession of drug abuse instruments (a misdemeanor) was problematic, because they are both drug-related crimes.
It is unclear whether Detective #1’s misstatements were the result of lackluster effort or an attempt to mislead the court. Although he is correct in that both the offense he described and the offense with which Mr. Hilliard was actually charged are drug-based crimes, one is a misdemeanor and one a felony. It is also true that he specifically averred that he corroborated the prior drug possession arrest through a computer search. Detective #1 allegedly obtained a copy of Mr. Hilliard’s record. As there is no indication that this record contained false information, this appears to lead to the conclusion that he was either careless in his review or that he did not actually review the information he received. From this record before us, we cannot be certain of Detective #1’s intent.
Regardless, based on the totality of the circumstances, Detective #1’s affidavit failed to provide critical information learned during the investigation. Among the missing evidence is any sort of timeline, information regarding the number of individuals who visited the room, and information regarding the criminal records for these visitors, if any. In addition, the warrant contained unverified hearsay and contained false information that casts doubt on the adequacy of the investigation regarding both Mr. Hilliard’s previous criminal charges and how his identity as the person who rented the room was investigated. While the state relied on witness testimony to fill some of these gaps at the suppression hearing, the record reveals this amounted to improper bolstering.
Due to these circumstances, particularly the lack of any timeline, this bare-bones affidavit did not provide a fair probability that contraband or evidence of a crime would be found in room 208 following a time period of what appears to be, at the least, several hours after a housekeeper observed possible evidence of the consumption of drugs. A warrant was used to search room 208 and seize, among other things “all items related to drug trafficking.” However, this warrant was issued based on an affidavit that did not support any search, and certainly not one that seems geared towards drug trafficking.
Good Faith Exception
“The good-faith exception does not allow police to rely blindly upon a judge’s issuance of a warrant, but instead requires all law enforcement officials to have some ‘minimum level of knowledge of the law’s requirements.’ ” State v. Weimer, 2009 – Ohio – 4983 at 46. “Ohio courts have generally held police officers responsible for knowing not only when the warrant is based on a conclusory ‘bare-bones’ affidavit, but also for knowing whether allegations have sufficient factual basis or require further corroboration, and whether observed facts reasonably lead to an inference of wrongdoing.” Id. at 47.
Here, we have a conclusory, bare-bones affidavit that omits critical information Detective #1 may have actually possessed and included incorrect or misleading information due to either carelessness or intentional indifference to the truth. The record reveals that the affidavit securing the warrant in this matter is so facially deficient the officer could not have relied on it, despite the fact that if all the information actually known to the officer had been included within the affidavit, it likely would have established probable cause.
While the search ultimately revealed evidence of drug activity, “[T]here 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.” State v.Castagnola 2015 – Ohio 1565 at 104 citing State v. Gardner, 2012-Ohio-5683.
As such, Mr. Hilliard’s first assignment of error has merit and is sustained.
Information for this article was obtained from State v. Hilliard, 2022 – Ohio – 2849.
This case was issued by the Seventh District Appellate Court which is only binding in the following Ohio Counties: Belmont, Carroll, Columbiana, Harrison, Jefferson, Mahoning, Monroe and Noble.
- What was wrong with Detective #1’s affidavit? The U.S. Supreme Court held in Franks v. Delaware, 438 U.S. 154 (1978) “There is, of course a presumption of validity with respect to the affidavit supporting the search warrant.”. However, that decision goes on to caution law enforcement when it stated “Affidavits or sworn or otherwise reliable statements of witness should be furnished, or their absence satisfactorily explained. Allegation of negligence or innocent mistake are insufficient.”. In this case Detective #1 did not provide the detailed information in the affidavit to provide enough probable cause for the warrant to be signed. Specifically, the detective did not verify the information that originated from the housekeeper, the timelines associated with the investigation, how long the visitor in Room #208 visited, the identity of the renter of Room #208 and the specific crimes Mr. Hilliard was convicted. All of this led to the Seventh District Appellate Court determining the affidavit for the search warrant was bare-bones and did not rise to the level of probable cause.
- Why wasn’t the Good Faith Exception applied to save the search warrant? The Good Faith Exception is technically only applied to Search Warrants. The exception was created by case law in 1984. The U.S. Supreme Court issued United States v. Leon, 468 U.S. 897 (1984) and held “[T]he Fourth Amendment exclusionary rule should be modified so as not to bar the admission of evidence seized in reasonable, good faith reliance on a search warrant that is subsequently held to be defective.”. There are some legal doctrines specific to search warrants that the Good Faith Doctrine will not apply, and a bare-bones affidavit is one. The Sixth Circuit best described the balance between a bare-bones affidavit and a successful save by the Good Faith Doctrine in 2004 when it opined “There must be daylight between the bare-bones and substantial basis standard if Leon’s good faith exception is to strike the desired balance between safeguarding Fourth Amendment rights and facilitating the criminal justice system’s truth-seeking function.”. United States v. Carpenter, 360 F.3d 591, 595 (6th 2004). In this case there was not enough daylight to apply the Good Faith Exception.
- What should not be lost in this case is that Detective #1 had a gut feeling that Mr. Hilliard was a drug dealer and he was right! Of course, having a gut feeling and establishing probable cause is distinguishable. I do believe that with some additional effort by the detective, he could have established enough probable cause to have the search warrant survive an appeal. The court even recognized that the detective likely had enough information for probable cause when it opined “[I]f all the information actually known to the officer had been included within the affidavit, it likely would have established probable cause.”. Id at 53.
- Law enforcement should learn from this case that a few extra steps can make the difference between Mr. Hilliard serving eleven to sixteen and a half years and charges being dismissed. Not only should law enforcement learn from this case but the judge who signed the search warrant should also recognize that he too erred.
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Don’t let your training fail you!
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