[Cite as State v. Brown, 2017-Ohio-8315.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION 

No. 105202 

 

STATE OF OHIO

PLAINTIFF-APPELLEE 

vs. 

JAMES N. BROWN

DEFENDANT-APPELLANT 

JUDGMENT: 

AFFIRMED

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-16-603155-A 

BEFORE: Stewart, J., Kilbane, P.J., and Blackmon, J. 

RELEASED AND JOURNALIZED: October 26, 2017 
ATTORNEY FOR APPELLANT

Mary Catherine Corrigan 

4403 St. Clair Avenue 

Cleveland, OH 44103 

ATTORNEYS FOR APPELLEE

Michael C. O’Malley 

Cuyahoga County Prosecutor 

Kevin E. Bringman 

Assistant County Prosecutor 

Justice Center, 9th Floor 

1200 Ontario Street 

Cleveland, OH 44113 
MELODY J. STEWART, J.: 

{¶1} Citing information supplied by an informant and drug-related items found in 

a trash pull, the police obtained a warrant to search the house of defendant-appellant 

James N. Brown. That search yielded evidence leading to Brown’s being charged with 

counts of trafficking, drug possession, having a weapon while under disability, and 

possession of criminal tools. Brown filed a motion to suppress the evidence seized in the 

search on grounds that there was no probable cause to issue the search warrant. The 

court denied the motion to suppress and Brown pleaded no contest to all counts. Brown 

appealed, requesting that this appeal be placed on this court’s accelerated calendar 

pursuant to App.R. 11.1 and Loc.App.R.11.1. By doing so, he has agreed that we may 

render a decision in “brief and conclusionary form” consistent with App.R. 11.1(E). 

{¶2} The totality of the circumstances convince us that the court did not err by 

finding that the issuing magistrate had probable cause to conclude that there was a fair 

probability contraband or evidence of a crime would be found at Brown’s residence. 

State v. Jones, 143 Ohio St.3d 266, 2015-Ohio-483, 37 N.E.3d 123, ¶ 13; Illinois v. 

Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). 

{¶3} The affidavit filed in support of the application for the search warrant stated 

that the affiant received information from a confidential informant with a previous record 

of providing corroborated information. The informant stated that a person named “JB” 

was selling marijuana out of a studio in the residence’s basement. The affiant 
determined that Brown, whose initials, age, and race matched those provided by the 

informant, possibly lived at the address. Brown’s criminal background showed a history 

of drug trafficking and drug possession. The affiant conducted two “trash pulls” at the 

stated address and, on both occasions, found a number of plastic bag “tear offs” and burnt 

marijuana cigarettes and marijuana “debris.” With respect to the plastic bag “tear offs,” 

the affiant stated: 

[I]n his training and experience, marijuana and other narcotics are placed 

into the smaller sandwich style bags, and the drug trafficker tears and keeps 

the corner from the baggy containing the marijuana or narcotics, discarding 

the empty portion of the baggy into the trash. The smaller bags of marijuana 

or narcotics are now packaged for re-sale. 

{¶4} The court found the affidavit “remarkably vague” in some respects; for 

example, that it did not assert that the person identified by the informant was selling drugs 

from the residence — the affidavit stated that “JB” was selling drugs in the city in which 

the residence was located. However, affidavits filed in support of warrant applications 

should not be considered hypertechnically, but in a practical, “common sense” manner to 

determine whether there is a fair probability that a search will uncover contraband or 

evidence of a crime. See State v. George, 45 Ohio St.3d 325, 544 N.E.2d 640 (1989), 

paragraph one of the syllabus. The affiant learned from the informant that JB “had a 

studio in his basement where people would sell and use marijuana as well.” With the 

affidavit clearly stating that JB “lived at the residence” and sold drugs from there, a fair 

reading of the affidavit linked Brown to the drug activity allegedly being conducted at the 

residence. 
{¶5} We likewise find that evidence discovered in the two trash pulls supplied 

probable cause to believe that a search of the premises would yield contraband or 

evidence of a crime. The affiant stated that he found plastic bags with torn corners. 

These indicated to the affiant that the bags were “indicative of individuals packaging 

drugs for re-sale.” 

{¶6} Brown argues that the informant’s information went “stale” because the 

police waited up to one month after receiving the tip to search the contents of his trash for 

contraband or evidence of a crime. Probable cause must exist at the time the application 

for a warrant is made. State v. Shropshire, 8th Dist. Cuyahoga No. 103808, 

2016-Ohio-7224, ¶ 25. There is no arbitrary time limit for when information offered to 

support a search warrant application becomes stale; instead, the information becomes 

stale “when enough time has elapsed such that there is no longer ‘sufficient basis to 

believe * * * that the items to be seized are still on the premises.’” United States v. Lacy, 

119 F.3d 742, 746 (9th Cir.1997), quoting United States v. Gann, 732 F.2d 714, 722 (9th 

Cir.1984). Although the trash pulls may have come as much as one month after the 

informant’s tip, the trash pulls themselves yielded evidence indicative of drug trafficking. 

 The warrant application was made just one day after the second trash pull, so the 

information used in support of the application was fresh. 

{¶7} Brown next argues that the court erred by refusing to rule on his motion to 

require the state to reveal the identity of the confidential informant. When the trial court 

fails to rule on a pretrial motion, we assume that the court overruled the motion. State ex 
rel. Scott v. Streetsboro, 150 Ohio St.3d 1, 2016-Ohio-3308, 78 N.E.3d 809, ¶ 14. 

Balancing Brown’s interests in his right to confront and cross-examine his accuser against 

the public’s interest in protecting the flow of information regarding criminal activity to 

the police, State v. Williams, 4 Ohio St.3d 74, 446 N.E.2d 779 (1983), syllabus, we find 

no error. Brown had the burden of establishing the need for disclosure, but failed to state 

a compelling reason why disclosure would be helpful. He argued that the search warrant 

“was based on nothing other than the word of [a] Confidential Reliable Informant[,]” but 

the warrant application contained evidence showing that the informant’s tip had been 

verified to the satisfaction of the issuing magistrate with potential evidence of drug 

trafficking culled from the trash pulls. 

{¶8} Judgment affirmed. 

It is ordered that appellee recover of appellant costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate issue out of this court directing the common 

pleas court to carry this judgment into execution. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of 

the Rules of Appellate Procedure. 

______________________________________________ 

MELODY J. STEWART, JUDGE 

MARY EILEEN KILBANE, P.J., and 

PATRICIA ANN BLACKMON, J., CONCUR