According to the Trial Court Judge the Answer is No!

We reverse the trial court’s decision granting Mr. Lang’s motion to suppress and remand the cause to the trial court for further proceedings consistent with this opinion.

 

 

State v. Lang

2023 – Ohio – 2026

First District Appellate Court

Hamilton County, Ohio

June 21, 2023

 

Detectives and Dread the Cocaine Distributor

The record shows that in March 2021, Detective Keith Ingram of the St. Bernard Police Department and Detective Kenneth Devers of the Norwood Drug Task Force received information from a confidential informant that an individual known as “Dread” was distributing cocaine in the St. Bernard and Avondale neighborhoods. The informant described Dread as a black male in his late 50s who had a beard and long dreadlocks. The informant also provided a phone number for Dread and the address where he was selling drugs, 3672 Vine Street.

 Detectives from two agencies received information that Dread, later identified as Mr. Kris Lang was selling narcotics from 3672 Vine Street in Cincinnati, Ohio.  

Dread is Identified

Using the information from the informant, the detectives identified Mr. Lang as Dread. They showed a picture of Mr. Kris Lang to the informant, who confirmed that Mr. Lang was the person he knew to be Dread. Further investigation revealed that Mr. Lang was not living at the address listed in the Bureau of Motor Vehicles (“BMV”) records. The detectives determined that his residence was 4016 St. Martins Place. Through numerous hours of surveillance, they discovered that Mr. Lang usually drove a brown 2017 Nissan Altima, which was owned by Charlene Maddox, who they believed was Mr. Lang’s girlfriend. The BMV listed her address as 4016 St. Martins Place.

 Detectives later learned that Mr. Lang’s girlfriend lived here at 4016 St. Martins Place.  The detectives would obtain two search warrants; one for the Vine Street address and one for this house.  

Surveillance of Drug Transactions 

In July 2021, the detectives started conducting surveillance on both 3672 Vine Street and 4016 St. Martins Place. At the Vine Street address, Detective Ingram observed what he believed based on his training, knowledge, and experience to be a drug transaction, which involved Mr. Lang and another individual known to Detective Ingram. The detectives captured multiple still photographs of what they believed to be drug transactions. They obtained a warrant to install a GPS device on the Nissan that Mr. Lang had been observed driving. That device was installed on July 21, 2021.

 

Controlled Purchases

Based on the information they had gathered, the detectives decided to conduct controlled purchases of cocaine. The first occurred on July 29, 2021. The detectives met the informant at a neutral location. The informant then placed a recorded call to Mr. Lang and ordered one-half ounce of cocaine, and Mr. Lang instructed him to go to 3672 Vine Street. The detectives provided the informant with $560 and a covert recording device, which allowed the detectives to monitor the transaction. At approximately 5:38 p.m., Mr. Lang gave the informant cocaine, and the informant paid him $560.

A second controlled buy occurred on August 25, 2021. At about 4:46 p.m., the informant met Mr. Lang at 3672 Vine Street, and both went inside the residence. Mr. Lang led the informant to the kitchen where he pulled out a bag containing what appeared to be cocaine. Mr. Lang weighed the substance and packaged it to complete the transaction.

 

Pattern of Drug Sales

Based on their surveillance and data obtained from the GPS unit, the detectives established a distinct pattern of movement between the St. Martins Place residence and the Vine Street address. Mr. Lang would leave St. Martins Place daily between 1:30 and 3:00 p.m. and travel to 3672 Vine Street, where he would sell drugs. Afterward, he would return to the St. Martins Place address, where he would spend the night. Based on this pattern and his experience in drug investigations, Detective Ingram believe that Mr. Lang was storing drugs and cash at the St. Martins Place address.

Search Warrants

On August 27, 2021, Detective Ingram sought search warrants for both the Vine Street and St. Martins Place addresses. A municipal court judge approved the warrants, and the searches occurred at both addresses a few days later. A search of the St. Martins Place address yielded a firearm and substantial quantities of cocaine and marijuana.

 

Motion to Suppress is Granted Based on a Lack of Probable Cause

Mr. Lang filed a motion to suppress the evidence recovered from the St. Martins Place address in which he argued that the affidavit supporting the search warrant failed to establish probable cause that any illegal activity had occurred at that address. He did not challenge the search of the Vine Street address. The trial court granted the motion. It found that “no probable cause existed to justify the search of 4016 St. Martins Place.” It also found that probable cause “was so lacking” in the affidavit “that the officer was not entitled to rely on the good faith exception to the exclusionary rule.” This appeal followed.

 

Norwood Police Appeals

In its sole assignment of error, the state contends that the trial court erred in granting Mr. Lang’s motion to suppress. It argues that the affidavit supporting the search warrant for 4016 St. Martins Place established probable cause to search that residence, and the trial court failed to give due deference to the issuing magistrate’s determination that probable cause existed. It also argues that even if affidavit did not show probable cause, the good-faith exception to the exclusionary rule applies. This assignment of error is well taken.

Review of Affidavit 

The affidavit supporting the warrant first described the house located at 4016 St. Martins Place. Then, it stated that the affiant had good cause to believe that cocaine, cash and other accouterments of drug use and trafficking were concealed in the house. Next, Detective Ingram discussed his qualifications and career history. That section was followed by a section entitled, “Known Facts About Drug Traffickers,” which was based upon Detective Ingram’s “training, experience, and participation in other narcotics investigations.” Those facts included that “[D]rug dealers often use their home, or the home of individuals close to them to store narcotics and protect their assets.”

The affidavit detailed the detectives’ investigation. It discussed how they discovered, after numerous hours of surveillance, that Mr. Lang’s residence was at the St. Martins Place address, and that Mr. Lang drove a 2017 brown Nissan Altima, which was owned by Maddox. The affidavit further stated that because the information provided by the informant “was verified by investigators,” the detectives decided to use the informant to “conduct controlled purchases,” and described how those buys were conducted.

Next, the affidavit stated,
Detectives have maintained electronic and physical surveillance on MR. LANG since July 21, 2021. MR. LANG has established a pattern which indicates his primary residence as 4016 St. Martins Place Cheviot, OH 45211. MR. LANG spends the overnight hours at the aforementioned address and generally leaves the address between 1:30 p.m. and 3:00 p.m. and proceeds to 3672 Vine St. Detectives believe MR. LANG disassociates himself from the St. Martins address to conceal his narcotics trafficking from law enforcement and rival drug dealers. Based on your Affiants [sic] training, knowledge, and experience[,] it is common for individuals who distribute illegal narcotics to utilize vehicles and residences of others to further their illegal activities.

Based on the foregoing facts investigators believe MR. LANG is using
4016 St. Martins Place in Cincinnati, OH 45211 to store narcotics and
the proceeds of narcotics trafficking
.

Review of Trial Courts Flawed Analysis

In granting the motion to suppress, the trial court found that the affidavit “lacked probable cause that any criminal activity occurred at 4016 St. Martins Place.” The court noted that the only evidence in the affidavit as to Mr. Lang’s actions involving 4016 St. Martins Place was that the surveillance of Mr. Lang at that address “revealed that on dates – not identified as the dates of the narcotics buys at 3672 Vine Street – Mr. Mr. Lang stayed overnight at 4016 St. Martins Place and left between 1:30 and 3:30 p.m. to go to 3672 Vine Street.” The court further stated that no facts were provided in the affidavit to indicate that evidence was likely to be found at the St. Martins Place address, and that the detective’s beliefs and experiences were insufficient to demonstrate that evidence was likely to be found there. In that analysis, the trial court failed to give deference to the issuing magistrate’s probable-cause determination.

The affidavit supporting the search warrant must set forth adequate facts to establish a nexus between the place to be searched and the evidence sought, which depends on the facts and circumstances of each individual case.

 

Established Case Law

In State v. Young, 2019-Ohio-4639, a case with similar facts, the appellate court upheld the search warrant for a drug trafficker’s residence, even though there was no direct evidence of drug activity at that location. In that case, the warrant stated that police officers had repeatedly observed the defendant drive from his residence on Caldwell Place to locations where the police had observed the defendant engaging in drug activity. The officers then observed the defendant return to his Caldwell Place residence. The defendant filed a motion to suppress evidence found at the Caldwell Place address, in which he argued that the affidavit in support of the warrant did not demonstrate a nexus between the observed drug activity and the location ultimately searched. The trial court denied the motion.

In affirming the trial court’s decision, the appellate court found that the pattern of movement between the Caldwell Place address and the locations of the drug transactions was sufficient to support a finding of probable cause to search the Caldwell Place residence. It stated that “a nexus exists between a known drug dealer’s residence when some reliable evidence exists connecting to the criminal activity with the residence.” Young at ¶ 18, quoting State v. Phillips, 2016-Ohio-5944.

It added,

Young argues the information provided by the confidential informant did not provide probable cause that Young was storing drugs at 1008 Caldwell Place. This court recently considered the question of whether a sufficient nexus exists between a suspected drug dealer’s criminal activity and the suspected drug dealer’s residence. In [that recent case], we held that “[t]he temporal proximity between appellant’s arrivals to the residence and the controlled drug transactions, combined with [a detective’s] experience in narcotics investigations, provided the magistrate with a substantial basis to conclude that a nexus existed between the place to be searched and the alleged criminal activity, and, at the least, probable cause to believe the proceeds of a drug transaction would be located in the residence.”  Young at ¶ 19, citing Phillips at ¶ 26.

Surveillance Mattered to Everyone but the Trial Court Judge

In this case, reliable evidence connected Mr. Lang’s drug activity to the St. Martins Place address. The detectives conducted numerous hours of surveillance of the two addresses and established a daily pattern of movement between the St. Martins Place address and the Vine Street address. Every day, Mr. Lang traveled from the St. Martin’s Place to the Vine Street address at roughly the same time, engaged in confirmed drug transactions, and returned nightly to St. Martins Place. That pattern caused Detective Ingram, who had numerous years of experience, to believe that evidence of drug trafficking would likely be found at the St. Martins Place residence. 

The magistrate issuing the warrant had a substantial basis to find that probable cause existed to search the residence at 4016 St. Martins Place. In granting the motion to suppress, the trial court engaged in a de novo review, substituted its judgment for that of the issuing magistrate and failed to give deference to the magistrate’s finding of probable cause. Therefore, the trial court erred in granting the motion to suppress.

 

There was SO MUCH Probable Cause the Good Faith Doctrine was Not Needed

The state also argues that the trial court erred in finding that the good- faith exception to the exclusionary rule did not apply. See United States v. Leon, 468 U.S. 897 (1984).  Because we have already determined that the search of 4016 St. Martins Place was supported by probable cause, we need not address this issue.

 

Trial Court is Overturned – Cocaine and Marijuana is Admissible!

In sum, we sustain the state’s assignment of error. We reverse the trial court’s decision granting Mr. Lang’s motion to suppress and remand the cause to the trial court for further proceedings consistent with this opinion.

Holding

Judgment reversed and cause remanded.

Information for this article was obtained from State v. Lang, 2023 – Ohio – 2026.

State v. Lang, 2023 – Ohio – 2026 was issued by the First District Appellate Court on June 21, 2023 and is binding in Hamilton County, Ohio.

Lessons Learned:

  1. Criminal Justice System Works – The First District Appellate Court provides an example of how the criminal justice system is supposed to work. In this case both Detective Keith Ingram of the St. Bernard Police Department and Detective Kenneth Devers of the Norwood Drug Task Force determined that there was probable cause to apply for search warrants for both 3672 Vine Street and 4016 St. Martins Place.  Ingram obtained the search warrants signed by a Municipal Court Judge who also determined that there was probable cause to issue both search warrants.  After the search warrants yielded what was described in the warrants; cocaine and marijuana, the trial court judged suppressed the narcotics.  The suppression was granted because the trial court judge determined that there was no probable cause.  Thereafter, the Norwood Police appealed, and the First District Court overturned the trial court judge.  This is how the criminal justice system works.
  2. Probable Cause – There is no single definition of probable cause. One of the most often quoted definitions of probable cause was issued by the U.S. Supreme Court on December 15, 2003 in Maryland v. Pringle, 540 U.S. 366 (2003) when the court held “The probable cause standard is incapable of precise definition or quantification into percentages because it deals with probabilities and depends on the totality of the circumstances.” Id at 371.  I often instruct officers that my ‘working man’s’ definition of probable cause is “Did something more likely than not occur?”.  If the answer is yes, then it is reasonable to believe that probable cause is established.  In this case the detectives had an overwhelming amount of information to establish probable cause based on the information provided by the confidential reliable informant, surveillance, GPS information, controlled purchases and the establishment of a pattern of drug sales.  How the trial court judge dismissed all of the vivid evidence is surprising.  The upside to the trial court judge’s flawed decision is that he provided future courts with established case law from which to reference.
  3. Pre-Sent Arms! Both Detective Keith Ingram of the St. Bernard Police Department and Detective Kenneth Devers of the Norwood Drug Task Force, should be highly commended for their diligence and tenacity to investigate, charge and now convict drug salesman Mr. Kris Lang aka Dread.  Well done detectives!

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Robert H. Meader Esq.