Some of the criminal behavior dated back six years.
Given the ongoing nature of drug trafficking, we find the information contained in the affidavit was sufficiently contemporaneous in time to support a finding of probable cause.
State v. Gleason
2022 – Ohio – 3893
Fifth District Appellate Court
Perry County, Ohio
October 31, 2022
The Central Ohio Drug Enforcement Taskforce (CODE) had received information regarding Ms. Marilyn Gleason and her two brothers, Bryan and Alan Ferguson, were selling methamphetamine since 2014. The siblings live in adjacent houses on State Route 669 NE in Perry County. Ms. Gleason lived at 7650 State Route 669 NE, Bryan at 7626, and Alan at 7642. A search warrant for Ms. Gleason’s home was obtained on Friday October 3, 2020 by Perry County Sherriff’s Office Detective Lieutenant Kevin Starrett, also member of the CODE Taskforce.
Ms. Gleason lived at 7650 State Route 669 NE, Bryan at 7626, and Alan at 7642 where the Central Ohio Drug Enforcement Taskforce served a search warrant. Was the affidavit information too stale to rise the the level of probable cause?
Search Warrant Affidavit
The information available to Lt. Starrett and relied upon in his affidavit for the search warrant were as follow:
On August 19, 2014, Ms. Gleason purchased methamphetamine at a residence in Crooksville, Ohio which was under surveillance for drug activity. She was stopped as she left the residence by Starrett and consented to a search which yielded .31 grams of methamphetamine. At that time, Ms. Gleason provided her address at 7650 State Route 669 NE.
On October 10, 2014, an active methamphetamine lab was discovered by Perry County Sheriff’s deputies at 7626 State Route 669 NE. Alan Ferguson was charged and convicted in that matter.
On March 17, 2017, CODE officers conducted a search at Bryan Ferguson’s home at 7626 State Route 669 NE. Methamphetamine was located in Ferguson’s bedroom and on the person of Christopher Gleason, Ms. Gleason’s son.
On June 27, 2019, Bryan Wolfe visited the Ferguson property and later sold drugs to an informant. While doing so, Mr. Wolfe told the informant that his supplier, Michael Whitehouse, would be delivering an ounce of methamphetamine to the Fergusons on State Route 669. In the process of making the delivery, Whitehouse was intercepted by law enforcement and found to have two ounces of methamphetamine in his vehicle.
On August 27, 2019, Starrett met with Tracy Love who was under indictment in Muskingum County for aggravated trafficking in drugs. With the assistance of counsel Love provided a proffer. Love provided addresses for Ms. Gleason and her brothers, indicated Bryan Ferguson was dealing large quantities of methamphetamine and that she had seen these large quantities as recently as a month before her proffer. Love permitted a search of her cell phone which produced messages between Love and Ms. Gleason indicating Ms. Gleason was trafficking in methamphetamine for Love. In the messages Love was demanding money owed her by Ms. Gleason.
On July 30, 2020, the Federal Bureau of Investigation was investigating activities by Michael Siegenthal who was caught conspiring to rob and murder several drug dealers in the Zainesville and Muskingum County area. Siegenthal identified Ms. Gleason and her brothers as methamphetamine dealers. He indicated they sold from their residences and a garage on the hill at their property. Siegenthal further stated he had purchased methamphetamine from Ms. Gleason on July 29, 2020 and that she and her brothers were known to possess up to half a pound of methamphetamine at a time. As to the layout of the property, Siegenthal stated Ms. Gleason lived in the house on the left side of the driveway and one of her brothers lived in the house on the right side of the driveway.
On September 30, 2020, Russell Knight was observed by law enforcement officers at the Ferguson/Gleason property. While he was there, several other vehicles came and went. Officers attempted to stop Knight as he left, but he fled into the woods on his dirt bike. Knight was, however, arrested the following day and admitted to buying methamphetamine from Bryan and using methamphetamine on the property. He stated the sale took place in a garage on the property.
On October 2, 2020, Starrett presented an affidavit containing the above outlined facts to Perry County Municipal Court Judge Dean Wilson. Judge Wilson signed the search warrant the same day.
Search Warrant Execution
The warrant was executed on October 6, 2020 at 7650 State Route 669 NE. Inside Ms. Gleason’s residence officers located methamphetamine, cocaine, oxycodone, scales, baggies, drug paraphernalia, weapons, and pay/owe sheets connected to Ms. Gleason. Any business should keep accurate records.
Ms. Gleason was arrested and subsequently interviewed. She admitted she and her brother Bryan were selling methamphetamine from their property.
On May 26, 2021, the Perry County Grand Jury returned an indictment charging Ms. Gleason with five counts of aggravated possession of drugs, and one count each of aggravated trafficking in drugs, illegal manufacture of drugs, and possession of cocaine. Ms. Gleason pled not guilty to the charges.
On February 17, 2022, Ms. Gleason filed a motion to suppress the evidence obtained as a result of the search of her home alleging the information contained in the affidavit was insufficient, stale, and lacked indicia of reliability. At a hearing held on February 23, 2022 the parties stipulated that October 2, 2020, when the warrant was issued, was a Friday and October 6, 2020, when the warrant was served, was a Tuesday. No testimony was presented on the motion to suppress. Rather the parties briefed the matter.
Motion to Suppress is Overruled
On March 7, 2022, the state filed its response and on March 11, 2022, the trial court issued its decision overruling Ms. Gleason’s motion to suppress.
Ms. Gleason Plea and Sentence
On March 17, 2022, Ms. Gleason entered pleas of no contest to count two, aggravated possession of drugs, a felony of the third degree, count seven, aggravated possession of drugs, a felony of the fifth degree, and count eight, possession of cocaine, a felony of the fifth degree. The state dismissed the remaining counts of the indictment. The trial court found Ms. Gleason guilty, convicted her, and sentenced her to an aggregate total of 42 months incarceration.
Was the Probable Cause Stale?
How has the Staleness Doctrine been previously analyzed?
“There is no arbitrary time limit that dictates when information offered to support a search warrant application] becomes stale.” State v. Ingold, 2008-Ohio-2303. Rather, “[T]he test for staleness is whether the alleged facts justify the conclusion that contraband is probably on the person or premises to be searched at the time the warrant issues.” Id. “The question of staleness is not measured solely by counting the days between the events listed in the affidavit and the application for warrant.” Id. at 23. “Ohio courts have identified a number of factors to consider in determining whether the information contained in an affidavit is stale, including the character of the crime, the criminal, the thing to be seized, as in whether it is perishable, the place to be searched, and whether the affidavit relates to a single isolated incident or ongoing criminal activity.” Id.
Relevant here, when an affidavit supporting a warrant involves ongoing criminal activity like drug trafficking, the affidavit may support the issuance of a search warrant even when the information provided in the affidavit is not recent. State v. Stewart, 2021-Ohio-4444 citing United States v. Ortiz, 143 F.3d 728, 733 (2d Cir. 1998), and United States v. Martino, 664 F.2d 860, 867 (2d Cir. 1981) “[W]hen the supporting facts ‘present a picture of continuing conduct or an ongoing activity, … the passage of time between the last described act and the presentation of the application becomes less significant.”
Based on the information contained in the affidavit, trafficking in methamphetamine appears to be a Ferguson/Gleason family enterprise as it establishes a pattern of criminal activity by Ms. Gleason and her family members over many years. The more recent information in the affidavit regarding Ms. Gleason indicates she continued to be involved in trafficking methamphetamine. Mr. Siegenthal purchased methamphetamine from Ms. Gleason just two months before the warrant was issued. Given the ongoing nature of drug trafficking, we find the information contained in the affidavit was sufficiently contemporaneous in time to support a finding of probable cause.
Information for this article was obtained from State v. Gleason, 2022 – Ohio – 3893.
This case was issued by the Fifth District Appellate Court and is binding in the following Ohio Counties: Ashland, Coshocton, Delaware, Fairfield, Guernsey, Holmes, Knox, Licking, Morgan, Morrow, Muskingum, Perry, Richland, Stark and Tuscarawas.
- The Fifth District Appellate Court highlighted the following factors to be considered whether probable cause has become stale; “The question of staleness is not measured solely by counting the days between the events listed in the affidavit and the application for warrant.” Id. at 23. “Ohio courts have identified a number of factors to consider in determining whether the information contained in an affidavit is stale, including the character of the crime, the criminal, the thing to be seized, as in whether it is perishable, the place to be searched, and whether the affidavit relates to a single isolated incident or ongoing criminal activity.” State v. Ingold, 2008 – Ohio – 2303. In this case Perry County Sherriff’s Office Detective Lieutenant Kevin Starrett and the CODE Taskforce were able to demonstrate that Ms. Gleason and her family had a long, long history of a pattern of criminal activity of selling methamphetamine in Perry County. Because her felonious criminal activity was on-going the affidavit’s probable cause was not stale.
- The Doctrine of Stale Probable Cause can be evaluated on the relevancy of a search warrant and when making a custodial arrest. In other words, can staleness be established between the suspects criminal behavior and the warrantless arrest of the suspect? To learn the answer to this question see Eight Days After Probable Cause is Established does a Law Enforcement Officer Need an Arrest Warrant Before A Warrantless Arrest is Effected?.
Lieutenant Kevin Starrett and the CODE Taskforce should be highly commended for their diligence and legal prowess! Working in concert these teammates were
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