[B]ased upon that [inference], and based upon the totality of circumstances, I find that there was sufficient probable cause for [the judge] to issue the search warrant, looking only at the northeast quadrant of the exterior of the property of 18157 Station Road.
State v. Pierson
2022 – Ohio – 4140
Ninth District Appellate Court
November 21, 2022
This appeal arises from an anonymous tip made to the Lorain County Drug Task Force regarding a large outdoor marijuana grow at Mr. John Pierson’s property located at 18157 Station Road, Columbia Station, Ohio 44028. After performing surveillance of Mr. Pierson’s property, including two flyovers, Detective Lonnie Dillon and Detective Craig Camp went to a neighboring home to get a better view of the northeast quadrant of Mr. Pierson’s property. The neighbor, who was familiar with the property lines between his and Mr. Pierson’s property, escorted the detectives to a spot where they could smell raw marijuana and see marijuana plants growing on Mr. Pierson’s property.
Detective Dillon then obtained a warrant to search the northeast quadrant of 18157 Station Road, Columbia Station, Ohio 44028. On the day the detectives executed the search warrant, no one was home at the Pierson property. However, while detectives were removing marijuana plants found on the property, Mr. Pierson’s wife arrived home. Mrs. Pierson spoke with the detectives and denied any knowledge of marijuana plants on the property. Mrs. Pierson also consented to a search of the Pierson home and barn, and provided detectives with Mr. Pierson’s contact information, and the contact information for Mr. Pierson’s son. Detectives removed 244 marijuana plants from the Pierson property, along with a sump pump and a garbage bag containing 16 felt plant growth bags.
Mr. John Pierson grew marijuana at 18157 Station Road, Columbia Station, Ohio 44028. Detective Lonnie Dillon crafted an affidavit for a search warrant for the property that was later challenged. The admissibility of the marijuana plants was the subject of this appeal.
In December 2017, a grand jury indicated Mr. Pierson on one count of Trafficking in Drugs, in violation of O.R.C. § 2925.03(A)(2), a felony of the second degree; one count of Illegal Manufacture/Cultivation of Drugs, in violation of O.R.C. § 2925.04(A), a felony of the second degree; one count of Possession of Drugs, in violation of O.R.C. § 2925.11(A), a felony of the second degree; and one count of Possessing Criminal Tools, in violation of O.R.C. § 2923.24(A), a felony of the fifth degree. Mr. Pierson entered a plea of not guilty to these charges.
On July 25, 2019, Mr. Pierson moved to suppress the evidence seized at his property located at 18157 Station Road, Columbia Station, Ohio 44028. The State opposed Mr. Pierson’s motion and the trial court held an evidentiary hearing on the matter. The trial court, in a decision journalized on April 9, 2020, denied Mr. Pierson’s motion to suppress.
A six-day jury trial commenced on June 10, 2021. Prior to trial, the State dismissed count one of the indictment, Trafficking in Drugs, in violation of O.R.C. § 2925.03(A)(2). In its case- in-chief, the State called as witnesses (1) Detective Camp; (2) Elizabeth Doyle, a forensic scientist; (3) Detective James Larkin; and (4) Detective Dillion. Mr. Pierson also testified on his own behalf.
Following the State’s case-in-chief, and at the close of his own case-in-chief, Mr. Pierson moved for acquittal pursuant to Crim.R. 29. The trial court denied both motions, and the matter was turned over to the jury for deliberation. The jury returned a verdict of not guilty to the charge of Illegal Manufacture/Cultivation of Drugs, and guilty to the charges of Possession of Drugs and Possessing Criminal Tools.
The trial court sentenced Mr. Pierson to a mandatory six-year prison term for Possession of Drugs, and a nine-month prison term for Possessing Criminal Tools, to run concurrently. Additionally, the trial court imposed a $7,500.00 mandatory fine for Possession of Drugs.
Mr. Pierson now appeals raising three assignments of error for our review.
In his first assignment of error, Mr. Pierson argues the trial court erred in denying his motion to suppress. Specifically, Mr. Pierson challenges whether probable cause for a search warrant existed where the affidavit “does not specify where the [marijuana] plants were observed to be.”
The Supreme Court of the United States has explained the standards that apply, respectively, to the magistrate/judge tasked with issuing a search warrant and to reviewing courts:
The task of the issuing magistrate [or judge] is simply to make a practical, common- sense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. (Emphasis added.) Illinois v. Gates, 462 U.S. 213, 238-239 (1983), quoting Jones v. United States, 362 U.S. 257, 271 (1960), overruled on other grounds United States v. Salvucci, 448 U.S. 83, 85 (1980); see also State v. George, 45 Ohio St.3d 325 (1989), paragraph one of the syllabus. “Like a trial court that rules on a motion to suppress, this Court must consider the totality of the circumstances.” Corn at ¶ 17, citing State v. Jones, 143 Ohio St.3d 266, 2015-Ohio-483, ¶ 15. “We do so with reference to the four corners of the affidavit.” Id., citing State v. Norris, 9th Dist. Wayne No. 05CA0081, 2006-Ohio-4022, ¶ 25, citing State v. Fisher, 9th Dist. Summit No. 22481, 2005-Ohio-5104, ¶ 7.
Further: In reviewing the sufficiency of probable cause in an affidavit submitted in support of a search warrant issued by a magistrate [or judge], neither a trial court nor an appellate court should substitute its judgment for that of the magistrate [or judge] by conducting a de novo determination as to whether the affidavit contains sufficient probable cause upon which that court would issue the search warrant. Rather, the duty of a reviewing court is simply to ensure that the magistrate [or judge] had a substantial basis for concluding that probable cause existed. (Emphasis added.) George at paragraph two of the syllabus. In doubtful or marginal scenarios, the [judge’s] determination of probable cause should be afforded “great deference” by reviewing courts. Id. at paragraph two of the syllabus.
Based upon the foregoing, the question then before this Court, in reviewing a motion to suppress that challenges probable cause for a search warrant, is whether the affidavit “provided a substantial basis for the [judge’s] conclusion that there was a fair probability” that evidence would be found. (Emphasis omitted.) George at 330. “Probable cause means less evidence than would justify condemnation, so that only the ‘probability, and not a prima facie showing, of criminal activity is the standard of probable cause.’” State v. Eal, 10th Dist. Franklin No. 11AP-460, 2012-Ohio-1373, ¶ 10, quoting George at 329.
Here, in the affidavit in support of the search warrant, Detective Dillon, of the Lorain County Drug Task Force, averred as follows:
- He has been employed as a law enforcement officer for 45 years.
- In June 2017, the Lorain County Drug Task Force received an anonymous call regarding a “large outdoor grow of marijuana at 18157 Station Road, Columbia Station, Ohio 44028.” Further, the anonymous caller “estimated there were approximately 100 plants.”
- Based upon this information, he began conducting surveillance of 18157 Station Road, Columbia Station, Ohio 44028. However, he “was unable to see the back of the property from the road because there is a large dirt [mound] that is approximately ten feet from the roadway and is about six to seven feet high.”
- Two flyovers were also conducted of 18157 Station Road, Columbia Station, Ohio 44028. However, “the pilot was unable to state with certainty that the plants on the property were marijuana.”
- Further, although he participated in the second flyover, and saw plants located in the northeast quadrant of the property located at 18157 Station Road, Columbia Station, Ohio 44028, he was also “unable to state with 100% certainty that the plants were marijuana.”
- On September 11, 2017, he and Detective Camp “went to the neighbor’s house immediately north of 18157 Station Road, Columbia Station, Ohio 44028.” He then informed the neighbor “that [they] observed something of interest on the property located at 18157 Station Road, Columbia Station, Ohio 44028 and asked for permission to access the target’s neighbor’s property.” The neighbors allowed access to their property, and he and Detective Camp “went to the area of the neighbor’s property that was near the area of interest, specifically the northeast quadrant of 18157 Station Road, Columbia Station, Ohio 44028.” In plain sight, he observed, based upon his training and experience, “numerous marijuana plants and smelled the odor of raw marijuana.”
Based upon this information, Detective Dillon sought authorization to search the northeast quadrant of 18157 Station Road, Columbia Station, Ohio 44028, for “any marijuana plants, seeds or sprouts.” Additionally, a photograph of the marijuana grow was attached to the affidavit.
In denying Mr. Pierson’s motion to suppress, the trial court reasoned, in relevant part:
In this case, although there is nothing that specifically says that [Detective] Dillon saw marijuana plants growing in the northeast quadrant of [Mr. Pierson’s] property, other paragraphs in the affidavit make it clear that, No. 1, [Detective Dillion] is investigating regarding an issue about marijuana plants on [Mr. Pierson’s] property. That [Detective Dillon] had done at least personally, two go-bys; one by car, one by plane. A third go-by by other officers in the same task force to determine whether, in fact, they could observe bushes of those sort. That, ultimately, when [Detective Dillion] was allowed onto the property next door, he observed that same area that he was raising concerns of [on Mr. Pierson’s property], and that he believes there are marijuana plants contained on the property as a result of those observations.
And, so, from the [c]ourt’s perspective, I believe that [the issuing judge] made proper inferences, that in [Detective Dillon’s] paragraph 6, when he’s referring to observing plants that were consistent with the prior anonymous tip, it was plants on [Mr. Pierson’s] property at 18157 Station Road.
And, so, I find, ultimately, based upon that [inference], and based upon the totality of circumstances, I find that there was sufficient probable cause for [the judge] to issue the search warrant, looking only at the northeast quadrant of the exterior of the property of 18157 Station Road.
But, even over and above that, I think, also, the State’s argument that there was a good faith exception is also applicable with regard to this is a fair statement. When I look at the affidavit that supported the search warrant, and certainly the language of the search warrant, I think a reasonable officer, when reviewing that, would not be concerned about whether the [judge] found sufficient probable cause. I think that there is sufficient information contained in there that a reasonable police officer would conclude that the [j]udge had sufficient information to issue the search warrant. It certainly was a properly signed search warrant issued by a [judge] in the [c]ourt of [c]ommon [p]leas, as opposed to maybe a [m]unicipal [c]ourt magistrate, or some other comparable role.
And, so, from the [c]ourt’s perspective, I believe that the good faith exception also applies in this particular situation. And so that even if there was not sufficient probable cause in the affidavit, that the individuals who came upon the scene were authorized to do so under the good faith exception for what they believed to be a properly issued search warrant.
In affording deference the issuing judge’s determination of probable cause, as this Court must, and considering the totality of the circumstances, this Court concludes that the issuing judge had a substantial basis for concluding probable cause existed to search the northeast quadrant of Mr. Pierson’s property located at 18157 Station Road, Columbia Station, Ohio 44028. The trial court, therefore, did not err in denying Mr. Pierson’s motion to suppress on this basis.
Moreover, assuming arguendo the issuing judge did not have a substantial basis for concluding probable cause existed to search the northeast quadrant of Mr. Pierson’s property located at 18157 Station Road, Columbia Station, Ohio 44028, which this Court believes he did, we agree with the trial court’s conclusion that the good faith exception to the exclusionary rule would apply in this instance.
In State v. Richardson, 9th Dist. Summit No. 24636, 2009-Ohio-5678, ¶ 17, this Court stated: Pursuant to [the] [United States v. Leon, 468 U.S. 897 (1984)] “good faith exception,” evidence seized under the authority of a warrant that a court later finds was not supported by probable cause will not be suppressed if it can be demonstrated that the officer reasonably relied on the decision of a detached and neutral [judge]. Id. at 920-922. “At the heart of the ‘good faith exception’ is the fact that the mistake that invalidated the warrant was solely on the part of the judge who issued the warrant. The police officers, on the other hand, merely executed a warrant they thought was valid. The rationale for not excluding evidence seized in such a situation focuses on the inability of the exclusionary rule to fulfill its purpose of deterring police negligence and misconduct.” State v. Simon, 119 Ohio App.3d 484, 487 (9th Dist.1997). However, suppression will still be the appropriate remedy if the affidavit presented to the signing judge in support of the warrant is “‘so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.’” George, 45 Ohio St.3d at 331, quoting Leon, 468 U.S. at 923.
Here, the record does not demonstrate Detective Dillon acted negligently or engaged in any type of misconduct in presenting the affidavit in support of the search warrant to the issuing judge. Further, the affidavit presented to the issuing judge was not lacking in indicia of probable cause as to “render official belief in its existence entirely unreasonable.” See George at 331, quoting Leon at 923. Thus, even if the search warrant lacked probable cause, the exclusionary rule would not apply and the items found on Mr. Pierson’s property would not be suppressed.
Accordingly, Mr. Pierson’s first assignment of error is overruled.
This case was issued by the Ninth District Appellate Court and is binding in the following Ohio Counties: Lorain, Medina, Summit and Wayne.
Information for this article was obtained from State v. Pierson, 2022 – Ohio – 4140.
- The Ninth District Appellate Court initially concluded that Detective Lonnie Dillon stated on the affidavit that the marijuana was located on the Northeast Quadrant of 18157 Station Road, Columbia Station, Ohio 44028; that established probable cause that marijuana plants would be found on the property.
- The second analysis the Ninth District Appellate concluded was that even if the Northeast Quadrant language was insufficient to establish probable cause that the Good Faith Doctrine would be applicable and the marijuana plants would be admissible. To review the Good Faith Doctrine was established in S. v. Leon, 468 U.S. 897 (1984). The United States Supreme Court 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.”. Id at 905.
- Often officers will use the term ‘good faith’ to establish a foundation for actions taken in searches and uses of force. However, the U.S. Supreme Court has only held this doctrine to apply to search warrants.
- Detective Lonnie Dillon, a forty – five-year veteran (!) determined that he established probable cause and both the trial court and appellate court agreed. Well done Det. Dillon!
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