[Cite as State v. Clayton, 2015-Ohio-4370.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION 

No. 102277

STATE OF OHIO

PLAINTIFF-APPELLEE 

vs. 

ANTHONY CLAYTON

DEFENDANT-APPELLANT 

JUDGMENT: 

AFFIRMED

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-13-581010-C 

BEFORE: Stewart, J., Kilbane, P.J., and Laster Mays, J. 

RELEASED AND JOURNALIZED: October 22, 2015 
ATTORNEY FOR APPELLANT

Russell S. Bensing 

1360 East 9th Street, Suite 600 

Cleveland, OH 44114 

ATTORNEYS FOR APPELLEE

Timothy J. McGinty 

Cuyahoga County Prosecutor 

Steven McIntosh 

Assistant County Prosecutor 

Justice Center, 8th Floor 

1200 Ontario Street 

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

{¶1} Defendant-appellant Anthony Clayton appeals from an order of the trial 

court denying his motion to suppress evidence against him. For the reasons that follow, 

we affirm. 

{¶2} On January 2, 2014, the Cuyahoga County Grand Jury indicted Clayton on 

numerous charges related to drug possession and drug trafficking. The charges stemmed 

from a police search of his residence that uncovered illegal drugs and firearms. At the 

time of the search, Clayton resided on the premises with two codefendants, Montae and 

Donte Watson. Clayton and his codefendants filed a motion to suppress the evidence on 

the basis that the affidavit in support of the warrant lacked sufficient probable cause to 

support its issuance. The trial court denied the motion. 

{¶3} Clayton pleaded no contest to certain charges contained in the indictment.1 

The trial court found him guilty and sentenced him to a two-year prison term on the 

underlying offenses in addition to a one-year prison term on merged firearm 

specifications. On appeal, Clayton reasserts his argument that the warrant affidavit did 

not contain sufficient facts for the magistrate to find probable cause to issue the search 

warrant. 

 1

 Clayton was charged in the same indictment as his codefendants, Montae and Donte 

Watson. Several counts charged only the codefendants. Clayton pled to all counts that pertained to 

him. 
{¶4} The contents of the warrant affidavit can be summarized as follows. The 

affiant, a fifth district Cleveland police detective, averred that within the last four weeks, 

the district’s Vice Unit received information from the Bureau of Alcohol, Tobacco, and 

Firearms (“ATF”) that a fully automatic, .45 caliber, MAC-10 machine gun was stolen 

during the course of a burglary in a nearby suburb and traded to two drug dealers for 

heroin. The ATF identified the drug dealers as Montae and Donte Watson. The ATF 

informed police that the Watsons lived at an address on Alhambra Avenue in Cleveland 

— the location searched as a result of the warrant. The affidavit indicated that the ATF 

received this information from cooperating defendants in the burglary prosecution. 

{¶5} The affiant went on to explain that within the last 24 hours, he observed a 

male exit the residence on Alhambra Avenue and approach a vehicle that the affiant had 

under surveillance. The affiant stated that he observed the driver of the vehicle exit the 

car and witnessed the two men conduct a hand-to-hand transaction on the sidewalk before 

the driver of the vehicle returned to his car and the male returned to the residence. 

{¶6} The affiant stated that the vehicle was stopped by the Cleveland police soon 

after the transaction and the police recovered heroin from the driver’s coat pocket. The 

affidavit further states that the driver identified Montae Watson as the man who exited the 

Alhambra Avenue residence. The affiant then averred that Montae Watson had been 

convicted of drug trafficking in Cuyahoga C.P. No. 07-499200-A. 
{¶7} Based upon these facts, the affiant stated that he believed that the Alhambra 

residence was being used for drug trafficking purposes and that evidence of heroin, other 

narcotics, and weapons would be found on the premises. He also stated that in his 

experience, persons who traffic illegal drugs often keep weapons for the purpose of 

guarding their money and drug supplies. 

{¶8} The Fourth Amendment to the United States Constitution and Article I, 

Section 14, of the Ohio State Constitution protect against unreasonable governmental 

searches and seizures. State v. Callan, 8th Dist. Cuyahoga No. 95310, 2011-Ohio-2279, 

¶ 15. Both constitutional provisions provide that “no warrants shall issue, but upon 

probable cause, supported by oath or affirmation, particularly describing the place to be 

searched, and the persons or things to be seized.” 

{¶9} To protect against unconstitutional searches and seizures, a search warrant 

must be supported by sworn facts that establish probable cause to conduct the search in 

the mind of a neutral and detached magistrate. The Fourth Amendment to the United 

States Constitution and Article I, Section 14, of the Ohio State Constitution; See State v. 

Castagnola, Slip Opinion No. 2015-Ohio-1565, ¶ 34. 

{¶10} When examining an affidavit, the United States Supreme Court instructed 

magistrates to employ a totality of the circumstances approach in assessing whether 

probable cause exists to issue a search warrant. Illinois v. Gates, 462 U.S. 213, 103 

S.Ct. 2317, 76 L.Ed.2d 527 (1983). This involves: 
[Making] a practical, common sense decision whether, given all the 

circumstances set forth in the affidavit before him [or her], including the 

“veracity” and “basis of knowledge” of persons supplying hearsay 

information, there is a fair probability that contraband or evidence of a 

crime will be found in a particular place. 

Gates at 238-239. 

{¶11} It is also understood that “[m]agistrates may make reasonable inferences 

when deciding whether probable cause exists.” Castagnola at ¶ 41. However, 

magistrates should specially consider “how stale the information relied upon is, when the 

facts relied upon occurred, and whether there is a nexus between the alleged crime, the 

objects to be seized, and the place to be searched.” Id. at ¶ 34. 

{¶12} The probable cause determination is within the sound discretion of the 

issuing magistrate and reviewing courts must give great deference to the magistrate’s 

decision. State v. George, 45 Ohio St.3d 325, 330, 544 N.E.2d 640 (1989). Thus, 

“doubtful or marginal cases in this area should be resolved in favor of upholding the 

warrant.” Id.

{¶13} On review, our inquiry is limited to determining whether the issuing judge 

had a substantial basis for concluding that probable cause existed. Id. at 329, citing Gates, 

462 U.S. at 238-239, 103 S.C. 2317, 76 L.Ed.2d 527. Given the totality of the facts 

outlined in the affidavit, and the deference that must be afforded to the judge’s decision, 

we cannot say that the affidavit lacked sufficient probable cause for the warrant to issue. 
{¶14} Clayton’s arguments during the suppression hearing and on appeal attack the 

three main facts alleged in the warrant affidavit: 1) that the defendants Montae and Donte 

Watson had traded heroin for a stolen gun; 2) that the driver of the vehicle was arrested 

and found to be in possession of heroin soon after conducting a hand-to-hand transaction 

with Montae Watson; and 3) that Montae Watson had been convicted of drug trafficking 

on a prior occasion. Clayton argues that none of these facts individually, or as a whole, 

establish probable cause to search the residence. 

{¶15} Clayton contends that the ATF notification about the stolen MAC-10 does 

not support a finding of probable cause because the facts do not indicate when the 

original gun burglary occurred or when the gun might have been traded for heroin. 

Clayton argues that this information is crucial to the probable cause determination 

because an affidavit for a search warrant must contain timely information that supports a 

reasonable belief that items will be found at the particular place indicated. See State v. 

Gales, 143 Ohio App.3d 55, 61, 757 N.E.2d 390 (8th Dist.2001). Clayton further argues 

that the gun transaction does not support a finding of probable cause because the affidavit 

fails to establish a connection between the gun sale and the Alhambra Avenue residence, 

other than the fact that Watson resided there. 

{¶16} While we agree that the affidavit does not state when the burglary occurred 

or when the gun was allegedly traded, we find this information unnecessary for a 

determination of probable cause, given reasonable inferences that may be drawn from the 

remainder of the affidavit. 
{¶17} In addition to explaining how the Cleveland police were informed of the gun 

transaction, the affiant stated that in his experience as a police officer he has observed 

that it is not unusual for persons who traffic in illegal drugs to keep weapons to protect 

their drug and money caches. Therefore, the exact date of a gun transaction is 

inconsequential given the reasonable inference that may be drawn, which is that guns — 

unlike drugs which are repeatedly sold and consumed in short periods of time, see United 

States v. Brooks, 594 F.3d 488, 493 (6th Cir.2010) — are less transient and will likely 

remain in the possession of the drug trafficker for protection purposes. 

{¶18} We further find there was a sufficient connection between the gun sale and 

the residence searched. As two federal courts aptly explain, 

[t]he justification for allowing a search of a person’s residence when that 

person is suspected of criminal activity is the commonsense realization that 

one tends to conceal fruits and instrumentalities of a crime in a place to 

which easy access may be had and in which privacy is nevertheless 

maintained. In normal situations, few places are more convenient than one’s 

residence for use in planning criminal activities and hiding fruits of a crime. 

United States v. Kapordelis, 569 F.3d 1291,1310 (11th Cir. 2009), quoting United States 

v. Green, 634 F.2d 222, 226 (5th Cir.1981). 

{¶19} Here, the affiant averred sufficient facts both in the ATF’s report and the 

driver’s identification of Montae Watson, for the court to conclude that Montae Watson 

lived at the residence on Alhambra Avenue. Therefore, given Montae Watson’s prior 

criminal history and the allegation that he traded heroin for the stolen machine gun, it was 

reasonable for the issuing judge to conclude that there was probable cause to believe that 

the gun could be found at Montae Watson’s residence. 
{¶20} Clayton next contends that the affiant’s observations concerning the 

hand-to-hand transaction do not support a finding of probable cause because the affiant 

does not allege anything illegal was exchanged, nor does the affidavit state that the driver 

identified Montae Watson as the seller of the heroin found in his possession. Clayton 

contends that the driver might have obtained the heroin prior to the transaction with 

Watson. 

{¶21} In support of his argument, Clayton cites to two cases from this district, 

State v. Pettegrew, 8th Dist. Cuyahoga No. 91816, 2009-Ohio-4981, and State v. 

Carmichael, 8th Dist. Cuyahoga No. 95618, 2011-Ohio-2921. In both of these cases, 

our court reversed the trial court’s denial of a motion to suppress evidence found as a 

result of an investigative stop when a police officer witnessed a hand-to-hand transaction 

between two parties, but could not say that he saw anything illegal exchanged. 

{¶22} We find reliance on these cases misplaced for two reasons. First, in both 

of the cases the only fact offered as the basis for reasonable suspicion was the officer’s 

observation of the hand-to-hand transaction. In this case, we have several facts offered 

in support of probable cause, including a federal law enforcement agency’s tip to local 

police that a resident of the Alhambra Avenue address was a drug dealer who illegally 

obtained a machine gun. 
{¶23} Second, unlike the present case, both Pettigrew and Carmichael involved a 

search and seizure incident to an investigatory stop. On review, such cases do not 

require us to give the same deference to a police officer’s reasonable suspicion 

determination, as we must to a magistrate’s determination of probable cause to issue a 

search warrant. Compare McDonald v. United States, 335 U.S. 451, 456, 69 S.Ct. 191, 

93 L.Ed. 153 (1948) (explaining that police have the burden of showing that the search 

and seizure fell within an exception to the warrant requirement) with Gates, 462 U.S. at 

236–237, 103 S.Ct. 2317, 76 L.Ed.2d 527 (explaining that a magistrate’s determination of 

probable cause must be paid great deference and that “‘[a] grudging or negative attitude 

by reviewing courts toward warrants’ is inconsistent with the Fourth Amendment’s strong 

preference for searches conducted pursuant to a warrant * * *.’” quoting U.S. v. 

Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741. 13 L.Ed.2d 684 (1965). Thus, after 

reviewing the totality of facts articulated in the warrant affidavit, we believe that the 

magistrate could have reasonably inferred, based on the driver’s identification of Watson, 

that the driver obtained his heroin from Watson. 

{¶24} Lastly, Clayton argues that Watson’s prior conviction for drug trafficking 

does not support the decision to issue the search warrant because the conviction occurred 

six years earlier. Clayton contends that a determination that such a conviction supports a 

finding of probable cause is tantamount to saying that any prior conviction provides 

probable cause for the issuance of a search warrant. 
{¶25} We agree that a dated, prior conviction adds little support to a warrant 

affidavit. However, as a reviewing court, we do not look at each fact in isolation; rather 

we are instructed to look at all of the facts and determine whether under a totality of the 

circumstances, the issuing magistrate had a substantial basis for finding probable cause. 

In this case, we believe that the ATF’s tip regarding the stolen machine gun, the affiant’s 

observation of the hand-to-hand transaction followed by the identification of Montae 

Watson, the recovery of heroin from the driver, and Watson’s prior drug conviction 

collectively provided a substantial basis for a judge to find probable cause to issue the 

search warrant. 

{¶26} Judgment affirmed. 

 It is ordered that appellee recover of said 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 

ANITA LASTER MAYS, J., CONCUR