[Cite as State v. Johnson, 2014-Ohio-671.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

State of Ohio, : 

 Plaintiff-Appellee, : 

 No. 13AP-637 

v. : (C.P.C. No. 12CR-02-906) 

John D. Johnson, : (REGULAR CALENDAR) 

 Defendant-Appellant. : 

 

D E C I S I O N 

Rendered on February 25, 2014 

 

Ron O'Brien, Prosecuting Attorney, and Laura R. Swisher, for 

appellee. 

Stuart A. Benis and William Lazarow, for appellant. 

 

APPEAL from the Franklin County Court of Common Pleas 

DORRIAN, J. 

{¶ 1} Defendant-appellant, John D. Johnson ("appellant"), appeals from a 

judgment of the Franklin County Court of Common Pleas imposing a sentence of five 

years of imprisonment following his plea of no contest to the criminal charges on which 

he was indicted. Because we conclude that the trial court properly denied appellant's 

motion to suppress evidence obtained pursuant to a search warrant, we affirm. 

{¶ 2} On the evening of July 23, 2011, Detective Jon Dillon of the Franklin County 

Sheriff's Department received a telephone call from an unknown individual, who 

indicated that appellant was storing narcotics in Unit B2 of the Car-Go Self Storage facility 

on Westerville Road. Based on the tip, Detective Dillon requested that Detective Thomas 

Lung, a canine handler with the Franklin County Sheriff's Department, perform a canine 

sniff test on the storage facility. On July 25, 2011, Detective Dillon, Detective Lung, and 
No. 13AP-637 2 

Franklin County Sheriff's Department Corporal Coleman took the canine to the storage 

facility. After being admitted to the storage facility by the managers and obtaining 

permission to perform the canine sniff test, Detective Lung ran the canine around 

building B of the storage facility. The canine signaled that it detected the odor of narcotics 

outside Unit B2. Detective Dillon then left to prepare a request for a warrant to search 

Unit B2, while Detective Lung and Corporal Coleman remained at the storage facility. 

After Detective Dillon left, appellant arrived at the storage facility. In response to 

questioning from Detective Lung, appellant admitted that he had cocaine inside Unit B2. 

{¶ 3} Detective Dillon prepared an affidavit in support of a search warrant 

attesting that a "reliable source" provided information about possible narcotics being 

stored by appellant at Unit B2 of the Car-Go Self Storage facility. The affidavit further 

attested that Detective Dillon, Detective Lung, and Corporal Coleman were admitted to 

the storage facility by its managers and obtained permission for the canine sniff test. The 

affidavit attested that the canine indicated the odor of narcotics at the bottom seam of the 

door for Unit B2. The affidavit attested that appellant arrived at the storage facility after 

the canine sniff test and admitted to Detective Lung that he had cocaine stored in Unit B2. 

Finally, the affidavit attested that appellant had several prior arrests, convictions and/or 

incarcerations for possession of drugs. Detective Dillon presented the affidavit and search 

warrant request to a Franklin County municipal judge, who granted the search warrant. 

Upon executing the warrant, deputies located cocaine inside a dresser drawer inside Unit 

B2. 

{¶ 4} Appellant was indicted on one count of possession of crack cocaine with a 

firearm specification and one count of possession of cocaine with a firearm specification. 

Appellant moved to suppress the evidence obtained pursuant to the search warrant. 

Following a hearing, the trial court denied the motion to suppress. Appellant 

subsequently entered a no-contest plea on all charges, and the trial court sentenced him 

to a total of five years of imprisonment. 

{¶ 5} Appellant appeals from the trial court's judgment, assigning a single error 

for this court's review: 

THE TRIAL COURT ERRED IN FAILING TO SUPPRESS 

EVIDENCE OBTAINED BY THE STATE DURING ITS 
No. 13AP-637 3 

IMPROPER SEARCH AND SEIZURE OF ITEMS FROM 

DEFENDANT'S STORAGE LOCKER, IN VIOLATION OF 

DEFENDANT'S RIGHTS UNDER THE FOURTH AMENDMENT TO THE U.S. CONSTITUTION, AND SECTION 14, 

ARTICLE I OF THE OHIO CONSTITUTION. 

{¶ 6} The Supreme Court of Ohio articulated the standard of review for a motion 

to suppress in State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372: 

Appellate review of a motion to suppress presents a mixed 

question of law and fact. When considering a motion to 

suppress, the trial court assumes the role of trier of fact and is 

therefore in the best position to resolve factual questions and 

evaluate the credibility of witnesses. Consequently, an 

appellate court must accept the trial court's findings of fact if 

they are supported by competent, credible evidence. 

Accepting these facts as true, the appellate court must then 

independently determine, without deference to the conclusion 

of the trial court, whether the facts satisfy the applicable legal 

standard. 

(Internal citations omitted.) Id. at ¶ 8. In this case, the trial court did not make any 

findings of fact. We apply a de novo standard in determining whether the trial court 

properly denied appellant's motion to suppress. Id. See also State v. McDowell, 10th 

Dist. No. 13AP-229, 2013-Ohio-5300, ¶ 14. 

{¶ 7} The Fourth Amendment to the U.S. Constitution, applied to the states 

through the Fourteenth Amendment, provides that "[t]he 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 other things to be seized." The Ohio Constitution contains a nearly identical provision. 

Ohio Constitution, Article I, Section 14. See also R.C. 2933.22(A); Crim.R. 41(C). 

{¶ 8} When determining whether an affidavit in support of a search warrant 

demonstrates probable cause, a magistrate must " '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.' " State v. George, 45 Ohio St.3d 325 (1989), paragraph one of 
No. 13AP-637 4 

the syllabus, quoting Illinois v. Gates, 462 U.S. 213, 238-39 (1983). In reviewing the 

sufficiency of probable cause in an affidavit, an appellate court must not substitute its 

judgment for that of the magistrate but, rather, ensure that the magistrate "had a 

substantial basis for concluding that probable cause existed." George at paragraph two of 

the syllabus. Such analysis is undertaken with great deference to the magistrate's 

determination of probable cause, and marginal cases should be resolved in favor of 

upholding the warrant. Id.

{¶ 9} Appellant argues that the affidavit upon which the search warrant was 

based failed to support a finding of probable cause because the affidavit indicated that the 

tip came from a "reliable source," despite the fact that, at the time he received the tip, 

Detective Dillon did not know who the informant was and did not have any other evidence 

that the informant was reliable. Courts have identified three broad classes of informants: 

(1) the anonymous informant, (2) the known informant from the criminal world who has 

previously provided reliable tips, and (3) the identified citizen informant. Maumee v. 

Weisner, 87 Ohio St.3d 295, 300 (1999). The anonymous or unknown informant is 

generally seen as the least reliable of these sources, and information from an unknown 

informant usually requires independent police corroboration. Id., citing Alabama v. 

White, 496 U.S. 325, 329 (1990). Appellant argues that Detective Dillon's characterization 

of the informant as a "reliable source" was inaccurate because he had no prior contact 

with the informant, nor any evidence that the informant was truthful or reliable. At the 

suppression hearing, Detective Dillon testified that he did not know the person who gave 

the tip and that he had no way of knowing, at the time he took the call, whether the person 

was a reliable informant. The state argues that, because the informant provided specific 

information that included the name of the storage facility, the unit number, and 

appellant's name, and because Detective Dillon was able to confirm this information 

through subsequent investigation, the information could properly be characterized in the 

affidavit as reliable. 

{¶ 10} "To successfully attack the veracity of a facially sufficient search warrant 

affidavit, a defendant must show by a preponderance of the evidence that the affiant made 

a false statement, either 'intentionally, or with reckless disregard for the truth.' " State v. 

Waddy, 63 Ohio St.3d 424, 441 (1992), quoting Franks v. Delaware, 438 U.S. 154, 155-56 
No. 13AP-637 5 

(1978), superseded by constitutional amendment on other grounds, as stated in State v. 

Smith, 80 Ohio St.3d 89, 102, fn.4 (1997). "Reckless disregard" occurs when an affiant 

has serious doubts about the truth of an assertion. Id. However, "[e]ven if the affidavit 

contains false statements made intentionally or recklessly, a warrant based on the 

affidavit is still valid unless, 'with the affidavit's false material set to one side, the 

affidavit's remaining content is insufficient to establish probable cause.' " Waddy at 441, 

quoting Franks at 156. 

{¶ 11} This court has previously concluded that an affidavit may demonstrate 

probable cause even where it contains misinformation or misstatements. State v. Allen, 

10th Dist. No. 08AP-264, 2008-Ohio-6916; State v. DeBlanco, 10th Dist. No. 89AP-1493 

(July 30, 1991). In Allen, the police obtained a search warrant based on information 

provided by a confidential informant and a controlled drug purchase involving the 

informant, a middleman, and the defendant. Allen at ¶ 2-4. The trial court granted the 

defendant's motion to suppress, concluding, in part, that the affidavit did not vouch for 

the middleman's reliability and that the informant did not accompany the middleman 

into the apartment where the controlled buy allegedly occurred. Id. at ¶ 10. On appeal, 

this court reversed the trial court's judgment. The court conceded that the affidavit 

contained misinformation regarding whether the informant actually saw the defendant 

sell drugs to the middleman. Id. at ¶ 29. However, the court concluded that the affidavit 

contained sufficient information to establish probable cause that criminal activity was 

occurring at the location of the controlled buy, even without the assertion that the 

defendant sold drugs to the middleman. Id. at ¶ 30. The affidavit also included a 

misstatement about when the informant told the police that the middleman had seen drug 

activity at the location. Id. at ¶ 31. Once again, the court found that, even without the 

misstatement, the affidavit was sufficient to demonstrate probable cause that illegal drug 

activity was occurring at the location. Id. Based on these conclusions, the court held that 

the affidavit established probable cause and reversed the trial court's judgment 

suppressing the evidence obtained pursuant to the search warrant. Id. at ¶ 41. 

{¶ 12} Similarly, in DeBlanco, an informant alerted a state agency that the 

defendant was fraudulently billing the state for allergy services to Medicaid patients. A 

state investigator prepared an affidavit in support of a search warrant asserting that the 
No. 13AP-637 6 

defendant improperly performed allergy "tests." The defendant moved to suppress the 

evidence obtained pursuant to the warrant, arguing that the proper procedural 

terminology code referred to allergy "injections" rather than allergy "tests." This court 

affirmed the trial court's denial of the motion to suppress, concluding that, even if the 

word "test" was removed from the affidavit, the remaining content demonstrated 

sufficient probable cause to justify issuance of the warrant. See also State v. Norman, 5th 

Dist. No. 2010-CA-21, 2011-Ohio-568, ¶ 42 (holding that, even without characterization of 

defendant as having "a lengthy history of illegal drug activity," the remaining content of 

the affidavits was sufficient to establish probable cause that drug activity would be found 

at the defendant's residence); State v. Harrington, 1st Dist. No. C-0800547, 2009-Ohio5576, ¶ 9-10 (holding that, even without false statements related to the defendant's 

criminal history, the other facts in the affidavit supported a finding of probable cause). 

{¶ 13} In this case, we need not reach the question of whether Detective Dillon's 

characterization of the unknown informant as a "reliable source" constituted a false 

statement because we conclude that, even without that characterization, the affidavit's 

remaining content was sufficient to establish probable cause. The affidavit attested that 

the drug-sniffing canine indicated that it detected the odor of narcotics at the bottom 

seam of the door for storage Unit B2. This was the same unit where the informant 

indicated the narcotics were being stored. Moreover, the affidavit indicated that, while 

Detective Lung remained on the premises, appellant arrived at the storage unit and, in 

response to questions, admitted that he had cocaine stored in storage Unit B2. Finally, the 

affidavit indicated that appellant's criminal history included several prior arrests and 

convictions for possession of drugs. Under these circumstances, we conclude that, even 

without the characterization of the informant as a "reliable source," the remaining content 

of the affidavit was sufficient to establish probable cause. 

{¶ 14} Appellant also argues that Detective Dillon failed to disclose in his affidavit 

"the fallibilities of canine sniff testing." (Appellant's Brief, 10.) We acknowledge that some 

courts have held that an omission may be considered a false statement in an affidavit in 

support of a search warrant. See, e.g., State v. Berry, 8th Dist. No. 87493, 2007-Ohio278, ¶ 37 (holding that omissions count as false statements if designed to mislead or made 

in reckless disregard of whether they would mislead the magistrate). There was testimony 
No. 13AP-637 7 

at the suppression hearing regarding the success rate of the drug-sniffing canine that 

performed the sniff test. However, appellant did not assert in his written motion to 

suppress or at the suppression hearing that failure to disclose such information 

constituted a false statement that would preclude the existence of probable cause. "It is 

well-settled law that issues not raised in the trial court may not be raised for the first time 

on appeal because such issues are deemed waived." State v. Barrett, 10th Dist. No. 11AP375, 2011-Ohio-4986, ¶ 13. Therefore, by failing to assert it below, appellant has waived 

the argument that Detective Dillon's affidavit did not support a finding of probable cause 

because it failed to disclose the failure rate of the canine that performed the sniff test. 

{¶ 15} Finally, appellant argues that the state violated his right to privacy by 

performing the drug canine sniff test in the area outside his storage locker. In effect, 

appellant appears to argue that the state was required to obtain a search warrant before 

having the drug-sniffing canine sniff the area outside the storage locker. Appellant cites 

Florida v. Jardines, __ U.S. __, 133 S.Ct. 1409 (2013), recently decided by the United 

States Supreme Court. In Jardines, the Supreme Court held that the use of trained police 

dogs to investigate the home and its immediate surroundings constituted a search within 

the meaning of the Fourth Amendment. Id. at 1417-18. Acting on an unverified tip that 

Jardines was growing marijuana in his home, the police took a drug-sniffing canine onto 

his front porch. The dog ultimately signaled that it identified the odor of drugs along the 

base of Jardines' front door. The police then obtained a search warrant and, after 

executing the warrant, located marijuana plants in the home. Id. at 1413. The court's 

opinion held that taking the drug-sniffing canine onto the porch constituted a search 

because "the officers learned what they learned only by physically intruding on Jardines' 

property to gather evidence." Id. at 1417. Thus, the decision in Jardines was based on the 

fact that the police entered onto a constitutionally protected area, i.e., the curtilage of 

Jardines' home, without license to do so, in an attempt to discover incriminating 

evidence. Id. at 1416-17. 

{¶ 16} Appellant admits that the reasoning in Jardines was based on property 

rights but urges this court to apply the concurring opinion of Justice Kagan, who asserted 

that the activity constituted a search because, in addition to invading Jardines' property, 

the police also violated Jardines' reasonable expectation of privacy in the area around his 
No. 13AP-637 8 

home. Id. at 1418-19 (Kagan, J., concurring). However, only two other justices joined in 

that concurring opinion, and we decline to apply its reasoning to the present appeal. 

Moreover, appellant has failed to establish that he had a reasonable expectation of privacy 

in the area outside the storage locker, as opposed to the storage locker itself. Detective 

Dillon testified at the suppression hearing that there was a fence around the entire storage 

complex with an electronic gate. Presumably, any individual who rented a storage locker 

in the facility would have had the code for the electronic gate and would have been able to 

access the area in front of appellant's storage locker. Detective Dillon also testified that he 

and Detective Lung were admitted to the storage complex by the facility managers. Under 

these circumstances, appellant has failed to demonstrate that he had a reasonable 

expectation of privacy in the area outside the storage unit. See State v. Harris, 12th Dist. 

No. CA2007-04-089, 2008-Ohio-3380, ¶ 19 ("The area in front of the storage unit was 

open to anyone who had access to the facility via their pass code, which included Officers 

Lovejoy and Ki. * * * Because Harris had no reasonable expectation of privacy in the 

possession of his cocaine and other contraband, and because a sniff and alert indicating 

the location of contraband by a dog legally on the premises is not a search within the 

meaning of the Fourth Amendment, Ki's sniff and alert on unit 819 without a search 

warrant did not violate Harris' rights."). 

{¶ 17} For the foregoing reasons, we overrule appellant's sole assignment of error 

and affirm the judgment of the Franklin County Court of Common Pleas. 

Judgment affirmed.

BROWN and O'GRADY, JJ., concur. 

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