[Cite as State v. Wallace, 2020-Ohio-4168.]

IN THE COURT OF APPEALS OF OHIO 

SIXTH APPELLATE DISTRICT 

WOOD COUNTY 

State of Ohio Court of Appeals No. WD-19-080 

 

 Appellee Trial Court No. 2018CR0369 

v. 

Kayla Wallace DECISION AND JUDGMENT

Appellant Decided: August 21, 2020 

* * * * * 

 Paul A. Dobson, Wood County Prosecuting Attorney, and 

 David T. Harold, Assistant Prosecuting Attorney, for appellee.

 Autumn D. Adams, for appellant. 

* * * * * 

ZMUDA, P.J. 

I. Introduction 

{¶ 1} This matter is before the court on appeal from the judgment of the Wood 

County Court of Common Pleas, denying the motion to suppress of appellant Kayla 

Wallace. For the following reasons, we reverse. 
2.

II. Facts and Procedural Background 

{¶ 2} On January 21, 2018, city of Rossford patrol officers Brandon Lewis and 

Austin McDermott planned to meet for dinner around 7:00 p.m.at a diner on Superior 

Street, in Rossford, Ohio. Officer McDermott parked in front of an apartment building at 

153 Superior, and as he exited his vehicle, he smelled raw marijuana. After Officer 

Lewis arrived, he joined McDermott and indicated that he, too, smelled raw marijuana. 

The officers initially suspected the odor was emanating from an open window in the 

apartment building. After the two walked up and down the street, investigating the 

source of the odor, and after speaking with an apparent tenant from the apartment 

building, they ultimately determined the smell was emanating from a nearby storefront at 

155 Superior. The apartment resident informed Lewis and McDermott that he had noted 

a marijuana odor at 155 Superior over the past two to three weeks and suggested 

someone should investigate the matter. 

{¶ 3} The officers checked out the building at 155 Superior. The storefront had a 

bolt on the front door, boards over the windows, and no signs, lights, or activity to 

suggest an active business. Fencing between 155 Superior and adjoining buildings 

prevented officers from viewing the rear of the building, so the officers walked around 

the apartment building at 153 Superior to access the alley that ran behind the two 

properties. 

{¶ 4} As Lewis and McDermott walked along the alley and neared the rear of 155 

Superior, the odor of raw marijuana intensified. The two repeatedly stepped away from 
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155 Superior and walked back to confirm the source of the odor as 155 Superior. They 

then entered the property through a closed gate, and noted a garage, fencing, and 

overgrown vegetation. The property also had a shed, but vegetation covered the 

structure, with vines blocking the doors. The officers also saw a truck on the property, 

and a grill and lawn chair in the backyard area. There were two rear doors on the 

building, as well as a sign indicating the address as 155 1⁄2. A security light, mounted on 

the building, illuminated the back of the structure. 

{¶ 5} Officer Lewis discovered one of the doors on the back of the building was 

unlocked. Due to the condition of the structure, with rotting, swollen wood framing the 

door, Lewis could not easily open this door. There was also a bookshelf pushed up 

against the inside of the door, preventing the door from swinging open. Lewis was able 

to nudge the door open a few inches, and through that gap, he and McDermott viewed a 

washer and dryer, clothes, and other items suggesting someone lived in the structure. 

They also spotted tomato cages, often used in grow operations, and the odor of raw 

marijuana became much stronger. Lewis closed the door, and he and Officer McDermott 

exited the property to notify their shift supervisor and consult with a detective. 

{¶ 6} As they stood in the alley, phoning the shift supervisor, appellant pulled her 

vehicle into the alley and spoke with the officers. They informed her of the odor of raw 

marijuana and requested consent to search the home. Appellant declined, indicating she 

had to go to work. The officers subsequently observed her driving past the property 

several times, parking down the block, and running back and entering the property. The 
4.

Officers later determined that appellant and Ricky Dockum, Jr. resided at 155 1⁄2 

Superior. 

{¶ 7} Officer McDermott prepared an affidavit for a search warrant of the 

property, identifying the occupant as appellant. He attested to the strong odor of raw 

marijuana emanating from the front and back of the structure at 155 Superior, and contact 

with a resident from the building next door, who informed officers that the odor of 

marijuana had been present for the past two or three weeks. The affidavit also contained 

facts gleaned from entering the rear of the property and pushing open a back door. 

{¶ 8} The officers obtained the requested search warrant. Around 11:00 p.m., 

police searched the premises, and seized evidence of a grow operation from inside 155 1⁄2 

Superior, including blowers, grow lights, hydroponic containers, chemicals, thermostats, 

containers holding unknown substances, marijuana plants and loose marijuana, and 

tomato cages. Based on the evidence seized, police filed charges against appellant and 

Ricky Dockum. 

{¶ 9} On August 2, 2018, appellant was charged with Count 1: illegal cultivation 

of marijuana in violation of R.C. 2925.04(A) and (C)(5)(c), Count 2: illegal assembly or 

possession of chemicals for the manufacture of drugs in violation of R.C. 2925.041(A) 

and (C), Count 3: possession of marijuana in violation of R.C. 2925.11(A) and (C)(3)(c), 

and Count 4: possession of hashish in violation of R.C. 2925.11(A) and (C)(7)(d). 

 
5.

{¶ 10} Appellant entered a not guilty plea to the charges. Appellant and Ricky 

Dockum filed a joint motion to suppress evidence of the search, arguing the information 

gathered for the affidavit in support of the search warrant resulted from an 

unconstitutional search of the premises. They further argued the affidavit provided 

insufficient facts to establish probable cause. After an evidentiary hearing, the trial court 

determined the search of the curtilage and entry into the home was unconstitutional, but 

the affidavit contained sufficient facts—not the product of an unconstitutional search—to 

establish probable cause to search the premises. 

{¶ 11} On June 10, 2019, appellant withdrew her not guilty plea, and entered a 

plea of no contest to the indictment. The trial court accepted the plea, found appellant 

guilty, and referred the matter for a presentence investigation report. After hearing, the 

trial court sentenced appellant to 2 years of community control as to each count, with a 

reserved prison term of 12 months as to Count 1, 36 months as to Count 2, 12 months as 

to Count 3, and 36 months as to Count 4. 

III. Assignments of Error 

{¶ 12} Appellant now appeals the trial court’s denial of the motion to suppress, 

asserting the following assignments of error: 

1. The Trial Court erred in denying Appellant’s Motion to Suppress 

because mere smell of raw marijuana does not provide sufficient probable 

cause to support the issuance of a search warrant. 
6.

2. There was not sufficient probable cause for the issuance of a 

search warrant, thus all evidence obtained as a result of the execution of the 

search warrant must be suppressed. 

3. Appellant’s trial attorney’s failure to request a hearing pursuant 

to Franks v. Delaware [438 U.S.154, 98 S.Ct.2674, 57 L.Ed.2d 667 (1978)] 

as a result of the false statements and material omissions in the search 

warrant affidavit was ineffective assistance of counsel. 

IV. Analysis 

{¶ 13} We consider appellant’s assignments of error out of order, addressing the 

third assignment of error first, challenging the veracity of all statements in the search 

warrant affidavit, followed by consideration of the first and second assignments of error, 

challenging the sufficiency of probable cause for issuance of the search warrant, based on 

remaining statements in the affidavit. 

A. Franks Hearing 

{¶ 14} In her third assignment of error, appellant argues that her trial counsel was 

ineffective in failing to demand a Franks hearing following the trial court’s denial of her 

motion to suppress. Specifically, appellant argues her trial counsel should have sought a 

hearing to challenge both officers’ “veracity as a whole,” based on the suppression 

hearing testimony of Officer McDermott that Officer Lewis pushed the door open with 

his shoulder, compared to McDermott’s statement in the affidavit that he “found the door 

was unsecured and opened by pushing on the door.” Appellant’s motion to suppress 
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challenged both the incursion on the curtilage and brief entry into the home, as well as 

the sufficiency of probable cause in the affidavit. 

{¶ 15} Generally, where a criminal defendant challenges the sufficiency of 

probable cause in a search warrant affidavit, the trial court is limited to reviewing the 

“facts alleged within the ‘four corners’ of the affidavit.” State v. Riley, 6th Dist. Lucas 

No. L-07-1379, 2009-Ohio-3493, ¶ 21, quoting State v. OK Sun Bean, 13 Ohio App.3d 

69, 71, 468 N.E.2d 146 6th Dist.1983) (additional citation omitted.); see also State v. 

McClain, 2015-Ohio-3690, 41 N.E.3d 871, ¶ 7 (2d Dist.). A trial court, however, may 

consider evidence beyond the four corners of the affidavit to determine whether the good 

faith exception applies to otherwise improperly seized evidence. State v. Dibble, Slip 

Opinion 2020-Ohio-546, ¶ 1. In this case, the trial court held an evidentiary hearing, 

determined the officers improperly searched the curtilage and home, but otherwise 

included sufficient, properly obtained information in support of probable cause in the 

search warrant affidavit. 

{¶ 16} Appellant now argues that her trial counsel was ineffective in failing to 

request a Franks hearing, in addition to the evidentiary hearing already held. A Franks 

hearing goes beyond cross-examination of an affiant, to address allegations of deliberate 

or reckless falsehoods in the search warrant affidavit. State v. Pitts, 6th Dist. Lucas No. 

L-18-1242, 2020-Ohio-2655, ¶ 28, quoting Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 

2674, 57 L.Ed.2d 667 (1978), syllabus. To merit a Franks hearing, appellant needed to 

first make a “substantial preliminary showing that a false statement knowingly and 
8.

intentionally, or with reckless disregard for the truth, was included by the affiant in the 

warrant affidavit,” and probable cause relied on the alleged false statement. Franks at 

155-156. See also State v. Roberts, 62 Ohio St.2d 170, 177, 405 N.E.2d 247 (1980). 

{¶ 17} Appellant cites to no evidence, triggering the need for a Franks hearing. 

Instead, she argues inconsistencies between Officer McDermott’s affidavit and his 

testimony at the evidentiary hearing, concerning circumstances deemed part of an 

unconstitutional search of the curtilage and home and rejected as a basis for probable 

cause. Appellant’s assertion that Officer McDermott averred in the affidavit that he 

opened the door, moreover, is a mischaracterization of the actual statement, indicating the 

door was opened by pushing, a statement without any attribution regarding the act of 

pushing. 

{¶ 18} Appellant also argues that Officer McDermott omitted material facts, such 

as the vehicle parked in the driveway and a sign on the front of the building that directed 

deliveries to the back door. As with the alleged false statements, however, the omitted 

facts pertained to an issue already decided in appellant’s favor, that the entry onto the 

curtilage and into the home was improper. 

{¶ 19} To merit reversal based on ineffective assistance of counsel, appellant must 

demonstrate his counsel’s performance “fell below an objective standard of 

reasonableness[,]” and this performance resulted in prejudice to the defense. State v. 

Bradley, 42 Ohio St.3d 136, 141-142, 538 N.E.2d 373 (1989), quoting Strickland v. 

Washington, 466 U.S. 668, 687-688, 104 S.Ct. 2052, 80 L.Ed.2d. 674 (1984). In arguing 
9.

ineffective assistance, appellant fails to identify any error by failing to point to any 

evidence that would have required a Franks hearing, had trial counsel requested one. 

Accordingly, we find appellant’s third assignment of error not well-taken. 

B. Probable Cause 

{¶ 20} In her first two assignments of error, appellant challenges the trial court’s 

decision regarding suppression of evidence obtained from the search, arguing odor alone 

is insufficient evidence for a search, and the affidavit lacked sufficient probable cause to 

support issuance of the warrant. Our review of a motion to suppress “presents a mixed 

question of law and fact.” State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 

N.E.2d 71, ¶ 8. We accept the trial court’s factual findings, so long as they have the 

support of competent, credible evidence, and “independently determine, without 

deference to the conclusion of the trial court, whether the facts satisfy the applicable legal 

standard.” (Citations omitted.) Burnside at ¶ 8. 

{¶ 21} The Fourth Amendment of the United States Constitution and Article I, 

Section 14 of the Ohio Constitution provide protections against unreasonable search and 

seizure, and require probable cause for issuance of a warrant. Additionally, Crim.R. 

31(C) provides protections against Fourth Amendment violations, requiring a supporting 

affidavit prior to issuance of a warrant. The affidavit must describe the place to be 

searched, the property to be searched for and seized, and identify the offense in relation 

to the property, along with facts supporting a belief that the property is concealed at the 

place to be searched. See R.C. 2933.23. Evidence obtained through a warrantless search, 
10. 

with a few exceptions, is per se unreasonable and inadmissible. State v. Williams, 173 

Ohio App.3d 119, 2007-Ohio-4472, 877 N.E.2d 717, ¶ 12 (6th Dist.), citing Mapp v. 

Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). 

{¶ 22} The trial court rejected the officers’ claim that they believed the building to 

be abandoned, and found the officers’ initial entry onto the property’s curtilage without a 

warrant violated the Fourth Amendment to the United States Constitution and Article I, 

Section 10, or the Ohio Constitution. The trial court, next, considered the sufficiency of 

the remaining facts within the affidavit, and determined there was sufficient probable 

cause to support the search warrant. 

{¶ 23} Omitting facts gleaned from entry on the curtilage and inside the property, 

there are few averments in support of the warrant. The officers each noted a strong odor 

of raw marijuana in front of and behind the property, and articulated they possessed the 

training and experience to recognize the odor. They also had a conversation with the 

next-door apartment resident, who stated there was an odor of marijuana emanating from 

155 Superior “for the past two or three weeks.”1

 Finally, the officers encountered 

appellant as they stood in the alley, phoning their shift supervisor, and appellant declined 

 

1

 While not part of the affidavit, the officers initially believed the odor emanated from the 

apartment building. After officers indicated an intention to enter the apartment to 

investigate the source of the odor, an individual claiming to be a resident of the apartment 

redirected their search to 155 Superior, and the officers ceased any attempt to verify 

whether the odor emanated from within the apartments. Neither officer had ever spoken 

with this individual before, he was not identified in any report, and neither officer knew 

his name. 
11. 

to consent to a search after they asked her about the odor or raw marijuana. She indicated 

she had to go to work, but the officers observed her parking down the street and running 

through the backyard and into the building. Essentially, the generalized odor of 

marijuana from 155 Superior was the only evidence of illicit activity, and the trial court 

deemed this evidence sufficient to support the search warrant for a search within the 

home. 

{¶ 24} Appellant now argues, in her first assignment of error, that the smell of raw 

marijuana, standing alone, is never sufficient as probable cause to search a home. We 

reject this absolute argument, as circumstances may exist in which the odor of raw 

marijuana is sufficient as probable cause to search a home. We previously noted that the 

smell of burnt marijuana does not permit a search of a vehicle’s trunk, but “the odor of 

raw marijuana provides different probable cause than the odor of burnt marijuana.” State 

v. Gonzales, 6th Dist. Wood No. WD-07-060, 2009-Ohio-168, ¶ 21-22. “The odor of raw 

marijuana – especially an overwhelming odor of raw marijuana – creates probable cause 

to believe that a large quantity of raw marijuana will be found.” Id. at ¶ 22. Therefore, 

we find there may be some instances in which the odor of raw marijuana could support a 

search warrant, and we find appellant’s first assignment of error not well-taken. 

{¶ 25} The place to be searched in this case, however, is not a vehicle, but a 

property containing structures. While the officers possessed training and experience to 

detect the odor of raw marijuana, the properly obtained evidence, recited in the affidavit 

for a search warrant, failed to establish any nexus between the odor of marijuana and 
12. 

where on the property it could be located, and indeed, if it was on that property. Before 

issuing a search warrant, the issuing judge must have facts that demonstrate “a fair 

probability that contraband or evidence of a crime will be found in a particular place.” 

State v. Riley, 6th Dist. Lucas No. L-07-1379, 2009-Ohio-3493, ¶ 22, quoting State v. 

George, 45 Ohio St.3d at 329, 544 N.E.2d 640, quoting Illinois v. Gates, 462 U.S. 213, 

238, 103 S.Ct. 2317, 76 L.Ed. 2d 527 (1983) (emphasis sic.) In this case, the evidence 

confirming the source of the marijuana odor, demonstrating a fair probability that raw 

marijuana was inside the home, was obtained by the illegal entry to the curtilage and 

inside the home. 

{¶ 26} To permit a search of someone’s home, there must first be reliable evidence 

“connecting the criminal activity with the place to be searched.” State v. Phillips, 10th 

Dist. Franklin No. 15AP-1038, 2016-Ohio-5944, ¶ 15, citing United States v. Schultz, 14 

F.3d 1093 (6th Cir.1994). After excluding the facts obtained through entry on the 

curtilage and into the home, the affidavit lacked any evidence that connected the strong 

odor of marijuana and the inside of the home. Instead, the officers and a neighbor 

believed the odor emanated from the property at 155 Superior, without any averment of 

legally obtained information to identify a particular place on the property, let alone the 

inside of the home, as the place where marijuana might be found. 

{¶ 27} The evidence demonstrates adjacent buildings, sheds, and a garage in close 

proximity to 155 1⁄2 Superior, and a fence shielding the yard from public view. Had the 

home been the only structure in the vicinity, with no other place to conceal growing 
13. 

marijuana, the facts might support a finding of probable cause. Here, however, the 

averments containing legally obtained information fell short of connecting the odor of 

raw marijuana to the particular place to be searched. The warrant, therefore, issued 

without sufficient probable cause, and the trial court erred in finding otherwise. 

{¶ 28} While finding sufficient probable cause to support issuance of the warrant, 

the trial court also considered whether the exclusionary rule should be applied in this 

case. Evidence is excluded, not as a remedy for Fourth Amendment violations, but as a 

“deterrent against future violations.” Dibble, 2020-Ohio-546 at ¶ 15, citing Davis v. 

United States, 564 U.S. 229, 237-237, 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011). 

{¶ 29} The trial court found suppression of all evidence obtained from execution 

of the search warrant “would not meet the goals of the exclusionary rule,” noting the 

entry onto the curtilage and property were not necessary to a finding of probable cause. 

Thus, the trial court determined the exclusionary rule did not apply because the search 

warrant was properly issued, necessitating no inquiry into good faith. However, we 

determined the trial court erred in finding sufficient probable cause, so must next address 

whether the good faith exception applies. 

{¶ 30} The good faith exception to the exclusionary rule applies to evidence 

obtained by an officer who objectively and reasonably relied on a technically sufficient 

warrant. Dibble at ¶ 17, quoting United States v. Leon, 468 U.S. 897, 922, 104 S.Ct. 

3405, 82 L.Ed.2d 677 (1984). The exception applies and permits the use of evidence 

obtained by officers acting in “objectively reasonable reliance on a search warrant issued 
14. 

by a detached and neutral magistrate but ultimately found to be unsupported by probable 

cause.” State v. Wildman, 185 Ohio App.3d 346, 2009-Ohio-6986, 923 N.E.2d 1240 (6th 

Dist.), ¶ 17, quoting George, 45 Ohio St.3d at 330, 544 N.E. 2d 640. 

{¶ 31} Here, the state argues an exception to exclusion because the officers were 

objectively reasonable in their mistaken belief that the property was abandoned, and the 

warrantless search did not therefore mandate suppression of the evidence. In support, the 

state relies on distinguishable authority involving a reasonable mistake of fact regarding 

abandoned property based on officers’ long-term observations of apparent abandonment, 

as in United States v. Harrison, 689 F.3d 301 (3d Cir.2012), or based on an unkempt and 

empty property, with an open door and no electricity, as in McKenney v. Harrison, 635 

F.3d 354 (8th Cir.2011). 

{¶ 32} The facts in this case, however, support the trial court’s finding that the 

officers’ belief was unreasonable, considering the evidence of a habitation, including a 

sign directing package deliveries to the rear, the separate address placard of 155 1⁄2 near 

the rear door, the lit security light on the back of the property, and the grill and lawn 

furniture in the backyard. As previously stated, we must accept the trial court’s factual 

findings where they are supported by the evidence. Burnside, 100 Ohio St.3d 152, 2003-

Ohio-5372, 797 N.E.2d 71, at ¶ 8. 

{¶ 33} The trial court found the officers’ professed belief of an abandoned 

building to be unreasonable and contrary to the facts, rendering the entry onto the 

curtilage and within the home an unlawful entry. The evidence supports this finding, as 
15. 

does the search warrant affidavit, which contained few factual observations to indicate a 

vacant building. The affidavit merely stated the officers’ assumption that the property 

was vacant, based on trash and broken furniture in the backyard, followed by a 

warrantless entry onto the property and subsequent conversation with Wallace, identified 

as a resident of the occupied premises. And while the affidavit recites Wallace’s 

suspicious conduct after refusing to consent to a search of her home, the officers had 

already opened the door to her home, looked inside, and included evidence of that search 

in seeking the warrant. 

{¶ 34} By asserting a mistaken belief that the building was vacant, as a good faith 

exception, the state precludes other argument that might have excused the incursion 

through the back gate and onto the property. There is no argument of an ongoing 

emergency that required attention, and no claim that officers approached the door at 

155 1⁄2 to knock and speak with a resident. Based on hearing testimony, the officers 

conducted little investigation before proceeding to a warrantless search of 155 1⁄2 

Superior. 

{¶ 35} Each officer testified that they initially believed the raw marijuana odor 

originated within the apartment building, but once they encountered an apparent resident 

of that building, and were redirected to 155 Superior by that individual, they never 

followed up to rule out the apartments as a source of the raw marijuana smell. Instead, 

the officers credited an apartment resident’s claim of no marijuana in that building, 
16. 

proceeded to enter the property next door, and conducted a warrantless search of the 

premises at 155 1⁄2 Superior. 

{¶ 36} The officers then used the evidence obtained in their unlawful search to 

secure a search warrant, mischaracterizing the property at 155 1⁄2 as appearing vacant, 

adding details of Wallace’s after-the-fact suspicious behavior, part of their post-search 

investigation. Those same officers then executed the search warrant, with knowledge of 

the events leading to that second search, and no separation between the evidence seized 

and the wrongful conduct of the officers. See State v. Torres, 6th Dist. Lucas No. 2008-

Ohio-2090, ¶ 18, citing United States v. Holmes, 505 F.3d 1289, 1293 (D.C.Cir.2007) 

(suppression not required where illegal seizure and discovery of evidence are so 

attenuated “that the taint of the unlawful government conduct was dissipated.”). 

{¶ 37} Considering the circumstances in this case, we find no basis to apply the 

good faith exception to the exclusionary rule to save an insufficiently supported warrant, 

sought as a purge for the prior unlawful entry onto the premises. Instead, the deterrent 

purpose of the exclusionary rule appears tailored to the conduct demonstrated in this case. 

Accordingly, we find appellant’s second assignment of error well-taken, as the warrant 

was issued without probable clause, and reverse the judgment denying appellant’s motion 

to suppress. 

 
17. 

V. Conclusion 

{¶ 38} For the forgoing reasons, we reverse the judgment of the Wood County 

Court of Common Pleas, denying the motion to suppress. This matter is remanded for 

proceedings consistent with this decision. Appellee is ordered to pay the costs of this 

appeal pursuant to App.R. 24. 

Judgment reversed 

and remanded. 

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. 

See also 6th Dist.Loc.App.R. 4. 

Arlene Singer, J. _______________________________ 

JUDGE 

Christine E. Mayle, J. 

 _______________________________ 

Gene A. Zmuda, P.J. JUDGE 

CONCUR. 

_______________________________ 

JUDGE 

This decision is subject to further editing by the Supreme Court of 

Ohio’s Reporter of Decisions. Parties interested in viewing the final reported 

version are advised to visit the Ohio Supreme Court’s web site at: 

http://www.supremecourt.ohio.gov/ROD/docs/.