[Cite as State v. Gipson, 2009-Ohio-6234.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

HANCOCK COUNTY 

 

STATE OF OHIO, 

 PLAINTIFF-APPELLEE, CASE NO. 5-09-19 

 v. 

JIMMY LEE GIPSON, O P I N I O N 

 DEFENDANT-APPELLANT. 

 

Appeal from Hancock County Common Pleas Court 

Trial Court No. 2008-CR-204 

Judgment Affirmed 

Date of Decision: November 30, 2009 

 

APPEARANCES: 

Michael B. Kelley for Appellant 

Mark C. Miller for Appellee 
Case No. 5-09-19 

-2-

SHAW, J.

{¶1} The defendant-appellant, Jimmy Lee Gipson, appeals the May 12, 

2009 judgment of the Common Pleas Court of Hancock County, Ohio, finding him 

guilty of one count of illegal assembly or possession of chemicals for the 

manufacture of drugs and sentencing him to seven years in prison. 

{¶2} The facts relevant to this appeal are as follows. On September 3, 

2008, Detective Jason Seem and Detective Michael Swope of the Hancock County 

Drug Task Force/METRICH Enforcement Unit (“the task force”) met with John 

Fenstermaker to discuss his knowledge of a methamphetamine (“meth”) lab that 

was being operated in McComb, Ohio. Fenstermaker was referred to these 

officers by Chief Greg Smith of the McComb Police Department. In exchange for 

this information, the officers agreed not to pursue misdemeanor charges against 

Fenstermaker, who had been found in possession of a marijuana plant by the 

McComb police. 

{¶3} Fenstermaker revealed that Gipson was manufacturing and selling 

meth from the home he shared with his girlfriend, Melissa Chapman, at 116 North 

Street in McComb. He further stated that Gipson made the meth in his garage and 

would sell it from his house, as well as his mother’s house at 111 North Todd 

Street in McComb. He also informed them that he had personally observed 

Gipson make meth in the garage and described what he could recall of the 
Case No. 5-09-19 

-3-

manufacturing process for the officers. In addition, Fenstermaker told the officers 

the names of various individuals who purchased pseudoephedrine for Gipson at 

locations in the surrounding area.1

 

{¶4} Based on this information, the officers drove to 116 North Street in 

McComb. They saw a car parked in front of the house, and a check of the license 

plate showed that it was registered to Melissa Chapman. They also checked the 

criminal history of Gipson and found that the task force made two controlled buys 

of meth from Gipson in 2003. Gipson was later convicted of two counts of 

aggravated trafficking in drugs, one a felony of the second degree and the other a 

felony of the fourth degree. 

{¶5} Members of the task force also went to a number of pharmacies in 

Findlay, Ohio, to check the pseudoephedrine purchase logs.2

 In several of these 

logs, they discovered the names of some of the people Fenstermaker had given 

them as providing pseudoephedrine for Gipson. Some of these individuals bought 

pseudoephedrine multiple times on the same day at different pharmacies. They 

also noticed that there was another pseudoephedrine purchaser with the same last 

name as those provided by Fenstermaker and found that some license numbers 

 

1

 Pseudoephedrine is a key ingredient in the manufacture of meth. 

2

 The federal government has placed limits on the amount of pseudoephedrine that may be purchased by an 

individual at any one time and how often a person may purchase pseudoephedrine in a month. In addition, 

while a person does not need a prescription to purchase pseudoephedrine, he/she must produce a driver’s 

license or state identification card in order to purchase pseudoephedrine. Also, pharmacies are required to 

keep pseudoephedrine behind the counter and to maintain a log of all pseudoephedrine purchases and by 

whom they were made, including the license number of the purchaser. 
Case No. 5-09-19 

-4-

given by certain purchasers from McComb were not actual license numbers or 

were numbers assigned to other people. The officers also found Gipson’s name in 

many of these logs. Gipson’s listed address in these logs was 116 North Street, 

McComb, Ohio. The last of the purchases made by one of the people named by 

Fenstermaker occurred on August 28, 2008. 

{¶6} On September 4, 2008, the officers performed surveillance on 

Gipson’s home from 7:00 p.m. to 8:30 p.m. During this time, they witnessed a 

large number of people at the home and saw many individuals coming and going 

from the home. At some point, they saw a person known by them to be involved in 

illegal drugs. 

{¶7} The following day, Detective Seem obtained a search warrant for 

Gipson’s home. This warrant contained a provision that the warrant could be 

executed in the daytime or nighttime. On September 7, 2008, at 4:43 a.m., the 

task force, along with the clandestine laboratory suppression unit of the Ohio 

Bureau of Criminal Identification and Investigation (“BCI”), executed the warrant. 

Upon entering the home, Gipson, Chapman, Aretta Young, and three young 

children were found, the adults were secured, and all six people were taken to a 

designated area for decontamination. The home’s air quality was then checked by 

two officers with special training in hazards associated with the operation of a 
Case No. 5-09-19 

-5-

meth lab. These officers wore protective gear and breathing equipment while they 

examined the home for safety purposes. 

{¶8} Once the quality of the air was checked and the decision made that 

protective gear and breathing equipment were no longer needed to safely be in the 

home, a number of officers began searching the home. Several items used in the 

manufacture of meth were found in the home, including lithium batteries, 

pseudoephedrine tablets, lye, punched starter fluid cans, grinders with white 

residue inside them, and a funnel with white residue inside it. They also found a 

pipe in one of the bedrooms and two pipes in the attached garage that contained 

meth residue in them. In the backyard, they located a fire ring with lithium 

batteries and the remains of a number of blister packs of pseudoephedrine pills in 

the ashes. 

{¶9} The officers also found a sealed black trash bag inside a garbage can 

next to the garage. Upon opening the bag, a strong odor of ammonia was detected, 

prompting the officers to re-dress in their protective gear. Found inside the bag 

were latex gloves, filters, lithium metal strips from batteries, plastic bottles with 

anhydrous cook in them, and an acid gas generator that was still off-gassing 

(emitting smoke from the top of a plastic bottle due to the chemical reaction of the 

acid and salt inside the bottle). Although he denied knowledge or ownership of 
Case No. 5-09-19 

-6-

the black trash bag and its contents and denied manufacturing meth, Gipson 

admitted to the officers that many of the questioned items found were his. 

{¶10} Gipson was arrested and later indicted for one count of illegal 

assembly or possession of chemicals for the manufacture of drugs, specifically 

methamphetamine. The trial in this matter was held from March 30-April 1, 2009. 

The State presented the testimony of several officers, Fenstermaker, and Melissa 

Chapman and presented various exhibits, including a video recording of the 

contents of the black trash bag that depicted the gas generator off-gassing. The 

defense then presented the testimony of a number of witnesses, including Gipson. 

Thereafter, the jury returned a verdict of guilty, and the trial court ordered a presentence investigation. On May 7, 2009, the trial court sentenced Gipson to seven 

years in prison. This appeal followed, and Gipson now asserts three assignments 

of error. 

ASSIGNMENT OF ERROR I

THE TRIAL COURT ERRED BY FAILING TO FIND THAT 

THE SEARCH WARRANT PERTAINING TO GIPSON’S 

RESIDENCE LACKED PROBABLE CAUSE, AND BY 

FAILING TO FIND THAT THE SUBSEQUENT SEARCH, 

SEIZURE UNCONSTITUTIONAL, AND RESULTING 

TESTIMONY AND EVIDENCE PRESENTED AT TRIAL 

INADMISSIBLE PURSUANT TO THE FOURTH AND 

FOURTEENTH AMENDMENTS TO THE UNITED STATES 

CONSTITUTION, AND ARTICLE 1, SECTION 14 OF THE 

OHIO CONSTITUTION. 
Case No. 5-09-19 

-7-

ASSIGNMENT OF ERROR II

THE TRIAL COURT VIOLATED GIPSON’S RIGHT TO DUE 

PROCESS UNDER THE FIFTH, SIXTH, AND FOURTEENTH 

AMENDMENTS TO THE UNITED STATES 

CONSTITUTION, AND ARTICLE 1, SECTION 10 OF THE 

OHIO CONSTITUTION WHEN IT UPHELD THE JURY 

VERDICT AS IT WAS NOT SUPPORTED BY THE 

SUFFICIENCY OF THE EVIDENCE AND WAS AGAINST 

THE MANIFEST WEIGHT OF THE EVIDENCE. 

ASSIGNMENT OF ERROR III

GIPSON WAS DENIED HIS CONSTITUTIONAL RIGHT TO 

EFFECTIVE ASSISTANCE OF COUNSEL UNDER THE 

SIXTH AND FOURTEENTH AMENDMENTS TO THE 

UNITED STATES CONSTITUTION AND ARTICLE 1, 

SECTIONS 10 AND 16 OF THE OHIO CONSTITUTION. 

{¶11} Initially, this Court notes that the crux of each of Gipson’s three 

assignments of error involves the search of Gipson’s home. Therefore, we elect to 

address them together. 

{¶12} More specifically, Gipson asserts that the warrant to search his home 

was issued without probable cause. In addition, he maintains that the execution of 

the warrant was performed in the nighttime without a sufficient basis and in 

violation of the “knock-and-announce” rule. Thus, he contends that the evidence 

found in his home, upon which the State’s case was based, should have been 

suppressed. Absent this evidence, Gipson asserts, there was insufficient evidence 

to find him guilty and, consequently, the verdict of guilty was against the manifest 

weight of the evidence. However, Gipson’s trial counsel failed to move to 
Case No. 5-09-19 

-8-

suppress this evidence. As such, he has waived all but plain error as to this issue. 

See State v. Jones, 91 Ohio St.3d 335, 346, 744 N.E.2d 1163, 2001-Ohio-57; State 

v. Gordon (1971), 28 Ohio St.2d 45, 276 N.E.2d 243; Holman v. Grandview Hosp. 

& Med. Ctr. (1987), 37 Ohio App.3d 151, 157, 524 N.E.2d 903. 

{¶13} In order to find plain error, there must be a deviation from a legal 

rule, the error must be an “obvious” defect in the trial proceedings, and the error 

must affect a defendant’s “substantial rights.” State v. Barnes, 94 Ohio St.3d 21, 

27, 759 N.E.2d 1240, 2002-Ohio-68. Reversal on plain error is to be used “with 

the utmost caution, under exceptional circumstances and only to prevent a 

manifest miscarriage” of justice. Id. Because of the failure by his trial counsel to 

move to suppress the evidence obtained from the search of Gipson’s home and this 

Court’s inability to reverse this judgment absent plain error, Gipson also asserts 

that his trial counsel was ineffective for failing to raise this issue. 

{¶14} Our review of these issues begins by noting that attorneys licensed 

by the State of Ohio are presumed to provide competent representation. State v. 

Hoffman (1998), 129 Ohio App.3d 403, 407, 717 N.E.2d 1149. An ineffective 

assistance of counsel claim requires proof that trial counsel’s performance fell 

below objective standards of reasonable representation and that the defendant was 

prejudiced as a result. State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 

373, paragraph two of the syllabus. As to the first prong of the test, courts are to 
Case No. 5-09-19 

-9-

afford a high level of deference to the performance of trial counsel. Bradley, 42 

Ohio St.3d at 142, 538 N.E.2d 373. To show that a defendant has been prejudiced 

by counsel’s deficient performance, the defendant must prove that there exists a 

reasonable probability that, but for counsel’s errors, the outcome at trial would 

have been different. Id. at paragraph three of the syllabus. “Reasonable 

probability” is a probability sufficient to undermine confidence in the outcome of 

the trial. Id. at 142. 

{¶15} The United States Supreme Court has held that the “failure to file a 

suppression motion does not constitute per se ineffective assistance of counsel.” 

Kimmelman v. Morrison (1986), 477 U.S. 365, 384, 106 S.Ct. 2574, cited in State 

v. Madrigal, 87 Ohio St.3d 378, 389, 721 N.E.2d 52, 2000-Ohio-448. There must 

also be a reasonable probability that the motion will be successful. See State v. 

Robinson (1996), 108 Ohio App.3d 428, 433, 670 N.E.2d 1077; State v. Ligon , 3rd

Dist. No. 4-2000-25, 2001-Ohio-2231. Thus, this Court’s determination of 

whether counsel for Gipson was ineffective relies upon whether there was a 

reasonable probability that a motion to suppress in this case would have been 

successful. 

{¶16} The Ohio Supreme Court has previously held that 

[i]n determining the sufficiency of probable cause in an affidavit 

submitted in support of a search warrant, “[t]he task of the 

issuing magistrate is simply to make a practical, common-sense 

decision whether, given all the circumstances set forth in the 
Case No. 5-09-19 

-10-

affidavit before him * * * there is a fair probability that 

contraband or evidence of a crime will be found in a particular 

place.” 

State v. George (1989), 45 Ohio St.3d 325, 544 N.E.2d 640, paragraph one of the 

syllabus, quoting Illinois v. Gates (1983), 462 U.S. 213, 238-239, 103 S.Ct. 2317. 

In Gates, the Court stated that the definition of probable cause “‘means less than 

evidence which would justify condemnation * * *. It imports a seizure made 

under circumstances which warrant suspicion.’” Gates, 462 U.S. at 235, quoting 

Locke v. United States (1813), 11 U.S. (7 Cranch) 339, 348, 3 L.Ed. 364. Thus, 

“[f]inely-tuned standards such as proof beyond a reasonable doubt or by a 

preponderance of the evidence, useful in formal trial, have no place in the 

magistrate’s decision. * * * it is clear that ‘only the probability, and not a prima 

facie showing, of criminal activity is the standard of probable cause.’” Gates, 462 

U.S. at 235, quoting Spinelli v. United States (1969), 393 U.S. 410, 419, 89 S.Ct. 

584, abrogated by Gates, supra. 

{¶17} When reviewing a magistrate’s or judge’s determination of probable 

cause justifying the issuance of a search warrant under the totality-of-thecircumstances analysis of Gates, an appellate court must simply “ensure that the 

magistrate had a substantial basis for concluding that probable cause existed.” 

George, 45 Ohio St.3d at paragraph two of the syllabus. In fact, often a particular 

case may not be easy to determine when an affidavit demonstrates the existence of 
Case No. 5-09-19 

-11-

probable cause. Accordingly, the issuing judge or magistrate is to be accorded 

great deference, “and doubtful or marginal cases in this area should be resolved in 

favor of upholding the warrant.” Id., citing Gates, supra. 

{¶18} Here, Gipson contends that the affidavit in support of the warrant did 

not establish probable cause because there was no indication that Fenstermaker, 

the confidential informant providing the information that meth was being 

produced in the home, was reliable. In addition, he asserts that the police failed to 

corroborate the information provided to them by Fenstermaker. 

{¶19} “[W]ith regard to confidential or anonymous informants, their 

veracity, reliability and basis of knowledge are all highly relevant in determining 

probable cause, so ‘[t]here must be some basis in the affidavit to indicate the 

informant’s credibility, honesty or reliability.’” State v. Pustelnik, 8th Dist. No. 

91779, 2009-Ohio-3458, at ¶ 22, quoting State v. Harry, 12th Dist. No. CA2008-

01-013, 2008-Ohio-6380 (internal citations omitted). However, a failure of the 

affiant to attest to the informant’s veracity or reliability based on past experience 

“does not negate probable cause if there is * * * some other indicia of reliability.” 

Pustelnik, supra, citing Gates, supra. Thus, an identified informant who provides 

corroborated information may establish probable cause. See State v. Martin, 8th

Dist. No. 89030, 2007-Ohio-6062. 
Case No. 5-09-19 

-12-

{¶20} In this case, Fenstermaker personally witnessed Gipson 

manufacturing meth in his North Street home, specifically in the garage at the rear 

of the home. However, Fenstermaker was unknown to the task force officers to 

whom he divulged this information concerning the meth production in Gipson’s 

home. Therefore, Det. Seem, the affiant, could not attest to Fenstermaker’s 

veracity. Instead, he and other officers elected to conduct further investigation 

into Fenstermaker’s assertions. 

{¶21} In this investigation, they went to nine different pharmacies in the 

Findlay area to examine each store’s pseudoephedrine logs. In these logs, they 

discovered the names of some of the people that Fenstermaker provided to them, 

such as Casey Brumbaugh and Paul Parker. Fenstermaker had also given them the 

names Joe and Nick Zamora. Although neither one of their names were found, an 

individual by the name of Jose (the last name was illegible) made a 

pseudoephedrine purchase in April of 2008. Jose listed 116 North Street, 

McComb, Ohio, as his address but the license number was false. Further, the 

name Janie Zamora was found four times, two of which occurred on September 2, 

2008.3

 Another individual, Aretta Young, made a purchase on March 24, 2008, 

and listed her address as 116 North Street, McComb, Ohio.4

 The officers also 

found seven different purchases of multiple packs of pseudoephedrine by Gipson, 

 

3

 At trial, Gipson testified that Janie Zamora is his sister and is married to Nick Zamora. 

4

 On the day of the search, Aretta Young was found inside the home. She is Gipson’s maternal 

grandmother. 
Case No. 5-09-19 

-13-

himself, from March 29, 2008, until August 14, 2008. In these logs, Gipson listed 

his address as 116 North Street, McComb, Ohio. 

{¶22} The officers also checked Gipson’s criminal history, which included 

two counts of aggravated trafficking in drugs, specifically meth. They also 

checked the plate number of the vehicle they saw parked in front of the North 

Street home. This vehicle was registered to Melissa Chapman, who Fenstermaker 

said lived there with Gipson. They also conducted surveillance on the home and 

noticed a large number of people at the home and many people coming and going 

from the home. One of these people was Darrin Wright, a man known to the 

detectives as being involved in illegal narcotics. In addition, Fenstermaker 

informed the officers that Gipson would also sell meth from his mother’s home at 

111 North Todd Street in McComb, Ohio. On August 20, 2008, only two weeks 

before Fenstermaker came forward with his information, the task force conducted 

a controlled buy of both marijuana and meth from David McDill and his unknown 

supplier at 111 North Todd Street in McComb. 

{¶23} All of this information corroborated Fenstermaker’s allegations. 

Additionally, Fenstermaker was not an anonymous tipster. He spoke in person 

with the detectives and much of his information was independently corroborated. 

Thus, this corroboration demonstrates the reliability of Fenstermaker’s statements. 

In light of the totality of the circumstances presented to the issuing judge, the 
Case No. 5-09-19 

-14-

judge had a substantial basis for concluding that probable cause existed to issue 

the warrant. 

{¶24} However, our inquiry does not end upon concluding that the warrant 

was based upon probable cause. Gipson further contends that the evidence seized 

during the search should be suppressed because the trial court had no basis for 

permitting the execution of the warrant during the nighttime and because the 

officers who executed the warrant did so in violation of the “knock-and-announce” 

rule. 

{¶25} The Fourth Amendment to the United States Constitution requires 

law enforcement officers to execute search warrants in a reasonable manner. The 

Fourth Amendment protects “the right of the people to be secure in their persons, 

houses, papers, and effects, against unreasonable searches and seizures.” In 

determining whether law enforcement officers executed a search warrant in a 

reasonable manner, one aspect that courts must consider is the procedure in which 

the search warrant was executed. The United States Supreme Court has 

interpreted the Fourth Amendment to incorporate the common-law principle of 

“knock-and-announce” prior to entering a residence. Wilson v. Arkansas (1995), 

514 U.S. 927, 115 S.Ct. 1914. The Court held that whether law enforcement 

officers properly complied with the knock-and-announce procedures forms part of 

the reasonableness inquiry under the Fourth Amendment. Id. 
Case No. 5-09-19 

-15-

{¶26} Ohio’s General Assembly has codified the “knock-and-announce” 

rule. See R.C. 2935.12(A). This statute permits an officer who is executing an 

arrest warrant or a search warrant to “break down an outer or inner door or 

window of a dwelling house or other building, if, after notice of his intention to 

make the arrest or to execute the warrant or summons, he is refused 

admittance[.]”5

 Id. There are also other exigent circumstances that permit 

nonconsensual entry into a person’s home, such as the “hot pursuit” exception. 

See State v. Stuber, 150 Ohio App.3d 200, 779 N.E.2d 1090, 2002-Ohio-6309, at ¶ 

9, citing Payton v. New York (1980), 445 U.S. 573, 100 S.Ct. 1371. Such 

intrusions will not render a search unreasonable to warrant the application of the 

exclusionary rule. 

{¶27} Recently, the United States Supreme Court had the opportunity to 

once again address the “knock-and-announce” rule in determining whether the 

exclusionary rule is an appropriate sanction for a violation of the knock-andannounce requirement. See Hudson v. Michigan (2006), 547 U.S. 586, 126 S.Ct. 

2159. In making its determination, the Court reiterated its previous holdings that 

the exclusionary rule is “a last resort, not a first impulse” and was created to 

“vindicate” the citizen’s right to shield their persons, houses, papers, and effects 

 

5 This section also permits the “knock-and-announce” rule to be waived in accordance with R.C. 2933.231, 

which requires the search warrant affidavit to include certain averments. However, no such averments 

were made in the search warrant currently at issue. Thus, R.C. 2933.231 is inapplicable here. 
Case No. 5-09-19 

-16-

“from the government’s scrutiny” absent a warrant. Id. at 592-593. The Court 

further recognized that the “knock-and-announce” rule was created for the 

“protection of human life and limb,” the protection of property, and the protection 

of “those elements of privacy and dignity that can be destroyed by a sudden 

entrance[.]” However, it also noted that the “rule has never protected * * * one’s 

interest in preventing the government from seeing or taking evidence described in 

a warrant.” Id. at 594. Thus, the Court determined that a violation of the “knockand-announce” rule does not necessarily warrant the suppression of all evidence 

obtained pursuant to a valid warrant. Id. 

{¶28} The Ohio Supreme Court adopted the holding of Hudson eight 

months later in State v. Oliver, 112 Ohio St.3d 447, 860 N.E.2d 1002, 2007-Ohio372. In Oliver, the Court held that before employing the exclusionary rule as a 

sanction for a “knock-and-announce” violation, a court must consider the toll of 

suppressing evidence and implement the exclusionary rule “only in cases where its 

power to deter police misconduct outweighs its costs to the public.” Id. 

{¶29} In this case, very little evidence was presented at trial as to the 

manner and mode of entry in the execution of the search warrant. In fact, the only 

evidence presented on this issue was the testimony of Det. Seem, who testified as 

follows: 

What my role in the entry I believe I was the third or fourth 

person into the residence. As we made entry into, it was a knock 
Case No. 5-09-19 

-17-

and announce search warrant which basically means we 

knocked on the door, loudly yelled police, sheriff’s office, 

announced our presence, waited for someone to come to the 

door. Nobody came to the door and we were able to see a white 

male take off running through the residence towards the back. 

At that point, for our safety, we forced entry into the room. 

(Trial Trans. p. 303.) Based on this testimony, Gipson contends that the “knockand-announce” rule was violated by the officers’ failure to announce their purpose, 

i.e. execution of a search warrant, and to wait a sufficient amount of time prior to 

entering. 

{¶30} Clearly, at the jury trial in this matter the State was not focused on 

developing Det. Seem’s testimony, or any other witness’ testimony, as to the 

actual manner and mode of entry as this was not a suppression hearing and the 

prosecutor had no notice that the search was being challenged on this basis. Thus, 

this Court’s ability to adequately analyze whether the search warrant was properly 

executed in this regard is hampered by a lack of knowledge of exactly what was 

said by the officers who were knocking, the length of time between knocking and 

announcing and then forcing entry, and how they actually executed their entry. 

However, it does appear that the officers knocked on the door, announced who 

they were, and did not force entry into the home until they saw an adult male 

running to the back of the home. According to the affidavit, the garage was 

located in the back of the home and was where the meth was being produced. The 

man could have been attempting to destroy evidence or attempting to access a 
Case No. 5-09-19 

-18-

weapon. Further, the evidence possibly being destroyed was highly dangerous and 

the improper handling of this evidence could have placed everyone’s safety in 

jeopardy. Therefore, forced entry seems to be justified in this case. 

{¶31} Nevertheless, even assuming arguendo, that the officers violated the 

“knock-and-announce” rule, we do not find that this failure warrants the 

application of the exclusionary rule. To the contrary, the officers were 

investigating a possible meth lab in which various chemicals and the fumes 

therefrom created hazards to all those inside the home and in close proximity to 

the home. Thus, closing this lab and properly disposing of any harmful chemicals 

was vitally important for the safety of the public, as well as Gipson’s children. As 

such, the deterrent effect for any alleged police misconduct in this case, which 

appears to have been minimal, by no means outweighs the costs to the public if we 

were to apply the exclusionary rule in this case. Therefore, the exclusionary rule 

is an inappropriate sanction for the alleged violation of the “knock-and-announce” 

rule in this case. 

{¶32} As to the issue of the nighttime warrant, the Revised Code states: 

“The command of the warrant shall be that the search be made in the daytime, 

unless there is urgent necessity for a search in the night, in which case a search in 

the night may be ordered.” R.C. 2933.24(A). Additionally, Crim.R. 41(C) 

provides in pertinent part that “[t]he warrant shall be served in the daytime, unless 
Case No. 5-09-19 

-19-

the issuing court, by appropriate provision in the warrant, and for reasonable cause 

shown, authorizes its execution at times other than daytime.” The term “daytime” 

is used in this rule to mean the hours from 7:00 a.m. to 8:00 p.m. Crim.R. 41(F). 

{¶33} An issuing judge’s decision to authorize a nighttime search will not 

be disturbed absent a showing by the complaining party that the judge abused his 

discretion. State v. Eichhorn (1975), 47 Ohio App.2d 227, 353 N.E.2d 861; State 

v. Marko (1973), 36 Ohio App.2d 114, 303 N.E.2d 94. In order to find an abuse of 

discretion, “the result must be so palpably and grossly violative of fact or logic 

that it evidences not the exercise of will but the perversity of will, not the exercise 

of judgment but the defiance of judgment, not the exercise of reason but instead 

passion or bias.” Nakoff v. Fairview Gen. Hosp., 75 Ohio St.3d 254, 256, 662 

N.E.2d 1, 1996-Ohio-159. 

{¶34} In this case, the affidavit contained a provision that stated: “Request 

for Nighttime Search. Affiant further states that a search in the nighttime (the 

hours between 8:00 P.M. and 7:00 A.M.) is warranted and requested, due to the 

following facts:” No facts followed that statement, only the concluding signature 

of Detective Seem and the notarization by the issuing judge. Nevertheless, the 

warrant contained a provision commanding law enforcement “to enter, in the 

daytime, or in the nighttime, into the residence . . .” Thus, the issuing judge 

permitted a nighttime search. 
Case No. 5-09-19 

-20-

{¶35} Although the affidavit neglected to specify what facts warranted a 

nighttime search, a review of the affidavit in its entirety reveals a number of 

relevant facts. For instance, the affidavit contained information about the people 

who frequented Gipson’s home. At least two of these individuals had violent 

histories and had “approach with caution” entries in their computerized criminal 

histories. One of these individuals also had prior offenses for resisting arrest and 

obstructing official business. Further, Gipson, himself, was a convicted felon for 

trafficking in drugs. The officers also noted several people coming and going 

from the home and a large number of people were present after 8:00 p.m. when the 

home was under surveillance. Moreover, the offense being currently investigated 

was the operation of a meth lab. As previously noted, manufacturing meth creates 

a highly dangerous situation. In addition, the Ohio Supreme Court, as well as 

many other courts, has noted that an illegal drug transaction in today’s society 

“reasonably warrants the conclusion that a suspected dealer may be armed and 

dangerous.” State v. Evans, 67 Ohio St.3d 405, 413, 618 N.E.2d 162, 1993-Ohio186; see also, State v. Dickerson, 179 Ohio App.3d 754, 758, 903 N.E.2d 697, 

2008-Ohio-6544. 

{¶36} Given these circumstances, we cannot find that the trial court abused 

its discretion in determining that the affidavit contained sufficient information to 

demonstrate that night entry into Gipson’s home was necessary. Allowing a 
Case No. 5-09-19 

-21-

nighttime search in this case afforded protection to the officers executing the 

warrant, as well as the occupants of the home and those in close proximity, 

because of the dangers attendant with the operation of a meth lab and the 

background of those who lived in and frequented the home. Thus, the issuing 

judge did not err in authorizing a nighttime search. 

{¶37} Even assuming arguendo that a nighttime search was not warranted, 

we do not find this failure warrants the application of the exclusionary rule, for the 

same reasons we previously provided in our discussion as to the application of the 

exclusionary rule with “knock-and-announce” violations. 

{¶38} For all of the foregoing reasons, no reasonable probability exists that 

the motion to suppress would have been successful. In light of this determination, 

trial counsel’s decision not to file a motion to suppress did not constitute 

ineffective assistance of counsel, and the first and third assignments of error are 

overruled. 

{¶39} As for the assignment of error challenging the sufficiency and 

manifest weight of the evidence, Gipson’s argument rests upon the exclusion of 

the evidence seized during the search of his home. Without this evidence, he 

asserts, the evidence was insufficient as to the sole count of the indictment and the 

verdict of guilty was against the manifest weight of the evidence. He does not

assert that the evidence was insufficient and that the verdict of guilty was against 
Case No. 5-09-19 

-22-

the manifest weight of the evidence when considering the evidence found in his 

home. Given our decision that the evidence from the search should not have been 

suppressed and was properly admitted into evidence, Gipson’s second assignment 

of error is rendered moot and, accordingly, is overruled. 

{¶40} For these reasons, the judgment of the Common Pleas Court of 

Hancock County, Ohio, is affirmed. 

 Judgment Affirmed

PRESTON, P.J., and ROGERS, J., concur. 

/jlr