[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 L ewis 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 o f an apartment building at 153 Superior, and as he exited his vehicle, he smelled raw mari juana. 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 stree t, investigating the source of the odor, and after speaking with an apparent tenant from the apartment building, they ultimately determined the smell was emanating fr om a nearby storefront at 155 Superior. The apartment resident informed Lewis and McDerm ott that he had noted a marijuana odor at 155 Superior over the past two to three wee ks and suggested someone should investigate the matter. {¶ 3} The officers checked out the building at 155 Superior. The sto refront 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 a djoining buildings prevented officers from viewing the rear of the building, so th e 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 re ar of 155 Superior, the odor of raw marijuana intensified. The two repea tedly stepped away from3. 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 ga rage, fencing, and overgrown vegetation. The property also had a shed, but vegeta tion covered the structure, with vines blocking the doors. The officers also sa w a truck on the property, and a grill and lawn chair in the backyard area. There were tw o 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 bu ilding 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 swingi ng open. Lewis was able to nudge the door open a few inches, and through that gap, he a nd McDermott viewed a washer and dryer, clothes, and other items suggesting someone l ived 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 consul t with a detective. {¶ 6} As they stood in the alley, phoning the shift supervisor, appel lant pulled her vehicle into the alley and spoke with the officers. They infor med 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 driv ing past the property several times, parking down the block, and running back and ent ering the property. The4. 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 t o 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 offic ers that the odor of marijuana had been present for the past two or three weeks. Th e affidavit also contained facts gleaned from entering the rear of the property and pushin g 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 ope ration from inside 155 1⁄2 Superior, including blowers, grow lights, hydroponic containers , chemicals, thermostats, containers holding unknown substances, marijuana plants and loo se marijuana, and tomato cages. Based on the evidence seized, police filed charg es 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), Cou nt 2: illegal assembly or possession of chemicals for the manufacture of drugs in violati on 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. 2925.1 1(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 res ulted from an unconstitutional search of the premises. They further argued t he affidavit provided insufficient facts to establish probable cause. After an evide ntiary 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 e ntered 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 t o 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 Supp ress 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 e xecution of the search warrant must be suppressed. 3. Appellant’s trial attorney’s failure to request a hearing p ursuant to Franks v. Delaware [438 U.S.154, 98 S.Ct.2674, 57 L.Ed.2d 66 7 (1978)]

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

warrant affidavit was ineffective assistance of counsel. IV. Analysis {¶ 13} We consider appellant’s assignments of error out of order, addr essing the third assignment of error first, challenging the veracity of al l statements in the search warrant affidavit, followed by consideration of the first and s econd assignments of error, challenging the sufficiency of probable cause for issuance of t he search warrant, based on remaining statements in the affidavit.

A. Franks Hearing {¶ 14} In her third assignment of error, appellant argues that her tri al 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 c ounsel should have sought a hearing to challenge both officers’ “veracity as a whole,” base d on the suppression hearing testimony of Officer McDermott that Officer Lewis pushe d the door open with his shoulder, compared to McDermott’s statement in the affidavi t that he “found the door was unsecured and opened by pushing on the door.” Appellant’s motion to suppress7. 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 sufficienc y of probable cause in a search warrant affidavit, the trial court i s 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 omit ted.); 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 d etermine 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 h ome, but otherwise included sufficient, properly obtained information in support o f 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 stat ement knowingly and8. intentionally, or with reckless disregard for the truth, was in cluded by the affiant in the warrant affidavit,” and probable cause relied on the alleged fa lse 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 actu al 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 f acts, such as the vehicle parked in the driveway and a sign on the front o f the building that directed deliveries to the back door. As with the alleged false stateme nts, however, the omitted facts pertained to an issue already decided in appellant’s favo r, that the entry onto the curtilage and into the home was improper. {¶ 19} To merit reversal based on ineffective assistance of counsel, a ppellant must demonstrate his counsel’s performance “fell below an objective standard of reasonableness[,]” and this performance resulted in prejudice t o 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 arguing9. ineffective assistance, appellant fails to identify any error b y 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 se arch, 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 sup press “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 det ermine, without deference to the conclusion of the trial court, whether the fac ts satisfy the applicable legal standard.” (Citations omitted.) Burnside at ¶ 8. {¶ 21} The Fourth Amendment of the United States Constitution and Arti cle 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 d escribe the place to be searched, the property to be searched for and seized, and ident ify 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 pr operty’s curtilage without a

warrant violated the Fourth Amendment to the United States Cons titution and Article I, Section 10, or the Ohio Constitution. The trial court, next, c onsidered 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 t he property, there are few averments in support of the warrant. The officer s each noted a strong odor of raw marijuana in front of and behind the property, and artic ulated 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 m arijuana 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 super visor, and appellant declined

1 While not part of the affidavit, the officers initially believ ed the odor emanated from the apartment building. After officers indicated an intention to e nter the apartment to investigate the source of the odor, an individual claiming to b e a resident of the apartment redirected their search to 155 Superior, and the officers cease d 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 repor t, and neither officer knew his name.11. to consent to a search after they asked her about the odor or r aw marijuana. She indicated she had to go to work, but the officers observed her parking do wn the street and running through the backyard and into the building. Essentially, the g eneralized odor of marijuana from 155 Superior was the only evidence of illicit ac tivity, and the trial court deemed this evidence sufficient to support the search warrant f or a search within the

home. {¶ 24} Appellant now argues, in her first assignment of error, that th e smell of raw marijuana, standing alone, is never sufficient as probable caus e to search a home. We reject this absolute argument, as circumstances may exist in wh ich 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 “t he odor of raw marijuana provides different probable cause than the odor o f burnt marijuana.” State

v. Gonzales , 6th Dist. Wood No. WD-07-060, 2009-Ohio-168, ¶ 21-22. “The odo r 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 ma rijuana could support a search warrant, and we find appellant’s first assignment of err or not well-taken. {¶ 25} The place to be searched in this case, however, is not a vehicl e, but a property containing structures. While the officers possessed t raining and experience to detect the odor of raw marijuana, the properly obtained evidenc e, recited in the affidavit for a search warrant, failed to establish any nexus between the odor of marijuana and12. where on the property it could be located, and indeed, if it wa s on that property. Before issuing a search warrant, the issuing judge must have facts tha t demonstrate “a fair probability that contraband or evidence of a crime will be foun d 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 fa ir probability that raw marijuana was inside the home, was obtained by the illegal entr y to the curtilage and

inside the home. {¶ 26} To permit a search of someone’s home, there must first be relia ble 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 t hrough 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 off icers and a neighbor believed the odor emanated from the property at 155 Superior, w ithout 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 gara ge in close proximity to 155 1⁄2 Superior, and a fence shielding the yard fro m public view. Had the home been the only structure in the vicinity, with no other pla ce to conceal growing13. 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 warr ant, 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 s hould be applied in this case. Evidence is excluded, not as a remedy for Fourth Amendme nt 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 exclusio nary rule,” noting the entry onto the curtilage and property were not necessary to a f inding 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 ev idence 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 issued14. 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 of ficers were objectively reasonable in their mistaken belief that the proper ty was abandoned, and the warrantless search did not therefore mandate suppression of the evidence. In support, the state relies on distinguishable authority involving a reasonabl e 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 find ing that the officers’ belief was unreasonable, considering the evidence of a habitation, including a sign directing package deliveries to the rear, the separate add ress placard of 155 1⁄2 near the rear door, the lit security light on the back of the proper ty, and the grill and lawn furniture in the backyard. As previously stated, we must accep t 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 aban doned building to be unreasonable and contrary to the facts, renderin g the entry onto the curtilage and within the home an unlawful entry. The evidence supports this finding, as15. does the search warrant affidavit, which contained few factual observations to indicate a vacant building. The affidavit merely stated the officers’ ass umption 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 include d 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 e xcused the incursion through the back gate and onto the property. There is no argum ent of an ongoing emergency that required attention, and no claim that officers a pproached the door at 155 1⁄2 to knock and speak with a resident. Based on hearing tes timony, the officers conducted little investigation before proceeding to a warrantle ss search of 155 1⁄2 Superior. {¶ 35} Each officer testified that they initially believed the raw mar ijuana odor originated within the apartment building, but once they encount ered an apparent resident of that building, and were redirected to 155 Superior by that i ndividual, they never followed up to rule out the apartments as a source of the raw m arijuana smell. Instead, the officers credited an apartment resident’s claim of no marij uana in that building,16. proceeded to enter the property next door, and conducted a warr antless 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 wa rrant, with knowledge of the events leading to that second search, and no separation bet ween 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 o f evidence are so attenuated “that the taint of the unlawful government conduct w as 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 insuff iciently supported warrant, sought as a purge for the prior unlawful entry onto the premise s. Instead, the deterrent purpose of the exclusionary rule appears tailored to the conduc t demonstrated in this case. Accordingly, we find appellant’s second assignment of error wel l-taken, as the warrant was issued without probable clause, and reverse the judgment de nying appellant’s motion to suppress.17. V. Conclusion {¶ 38} For the forgoing reasons, we reverse the judgment of the Wood C ounty Court of Common Pleas, denying the motion to suppress. This ma tter 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 pur suant 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 Cour t of Ohio’s Reporter of Decisions. Parties interested in viewing th e final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.