[Cite as State v. Baro , 2013-Ohio-5139.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State of Ohio, :

Plaintiff-Appellee, : No. 12AP-968 (C.P.C. No. 12CR-02-872)

v. : (REGULAR CALENDAR) Siradjou Baro, :

Defendant-Appellant. :

D E C I S I O N

Rendered on November 21, 2013

Ron O'Brien , Prosecuting Attorney, and Michael P. Walton

, for appellee.

Yeura R. Venters , Public Defender, and David L. Strait , for appellant.

APPEAL from the Franklin County Court of Common Pleas

McCORMAC, J.

{¶ 1} Defendant-appellant, Siradjou Baro, appeals from the October 19, 2012 judgment of the Franklin County Court of Common Pleas convicting him, pursuant to a no contest plea, of two counts of trademark counterfeiting and imposing a term of community control. Defendant assigns a single error:

The trial court committed revers ible error by overruling a defense motion to suppress the results of a search conducted in violation of the rights afforded by the Fourth and Fourteenth Amendments to the United States Constitution and Section 14, Article I of the Ohio Constitution.

Because the trial court properly denied defendant's motion to suppress, we affirm.No. 12AP-968 2

I. Facts and Procedural History {¶ 2} On September 9, 2011, Charles Disbennett, a counterfeit merchandise investigator for Hi-Hope Consulting, informed the Franklin County Sheriff's Office that counterfeit merchandise was being sold at Eastland Flea Market. (Joint Exhibit 1, Attachment 1.) On September 18, 2011, Detective Joe Schuler and Disbennett conducted a plain-clothes canvass of Eastland Flea Ma rket for counterfeit merchandise. (Joint Exhibit 1, Attachment 1.) Disbennett noted counterfeit merchandise was being sold at all but two of the booths in operation on the day of the canvass. (Joint Exhibit 1, Attachment 1.) {¶ 3} Following the canvass, Detective Schuler asked a Franklin County Municipal Court judge whether a separate warrant would be necessary for each booth within the flea market. Upon the opinion of the judge that a single warrant would validly authorize a search of the entire building, Detective Schuler filed an application for a single

search warrant. {¶ 4} On October 6, 2011, another judge of the Franklin County Municipal Court issued a warrant authorizing a search of Eastland Flea Market for evidence of counterfeit merchandise. (Attached as an Appendix.) On October 7, 2011, detectives from the Franklin County Sheriff's Office executed the search warrant at the flea market. {¶ 5} At the time of the search, defendant was in control of four booths at the flea market, which was open for regular business at the time. Officers interviewed defendant, identified him, and allowed him to leave while they completed an inventory of the items found in his booths. Investigators seized items including merchandise offered for sale and merchandise tags containing company trademarks. {¶ 6} By indictment filed February 15, 2012, defendant was charged with seven counts of trademark counterfeiting in violation of R.C. 2913.34. On June 21, 2012, defendant filed a motion to suppress evidence seized by officers from Eastland Flea Market, contending that the evidence was unconstitutionally obtained in violation of the Fourth and Fourteenth Amendments to the U.S. Constitution and Ohio Constitution, Article I, Section 14. On September 27, 2012, the trial court held a hearing on the motion to suppress and, after receiving testimony, denied the motion. On October 17, 2012,No. 12AP-968 3

defendant entered a no contest plea to the indicted offenses and the trial court sentenced him accordingly.

II. Assignment of Error {¶ 7} Appellate review of a motion to suppress involves a mixed question of law and fact. "In a motion to suppress, the trial court assumes the role of trier of fact and is in the best position to resolve questions of fact and evaluate witness credibility." State v. Curry , 95 Ohio App.3d 93, 96 (8th Dist.1994). The reviewing court must accept the trial court's findings of fact in ruling on a motion to suppress if the findings are supported by competent, credible evidence. State v. Claytor , 85 Ohio App.3d 623, 627 (4th Dist.1993). Accepting the facts as true, the reviewing court must then independently determine as a matter of law, without deference to the trial court's conclusion, whether the facts meet the appropriate legal standard. State v. Burnside , 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8. {¶ 8} Defendant asserts the trial court erred in overruling the motion to suppress evidence because the warrant to search and seize his property did not particularly describe the place to be searched. The state responds that (1) the issued warrant was valid, (2) the good-faith exception to the exclusionary rule applies, and (3) the plain view exception to the warrant requirement applies. A. Plain-View Exception {¶ 9} Defendant contends the plain-view exception to the warrant requirement does not apply because the seized evidence was not in plain view, the discovery of the evidence was not inadvertent, and the incriminating nature of the evidence was not readily apparent. Because the record is unclear as to whether some of the evidence seized from defendant's booths was in plain view, we examine whether the search warrant was valid or if another exception to the warrant requirement applies. B. The Warrant Was Validly Issued Under the Circumstances {¶ 10} The Fourth Amendment to the U.S. Constitution, as applied to the states through the Fourteenth Amendment, and Ohio Constitution, Article I, Section 14, protect "[t]he right of the people to be secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures." See State v. Ford , 10th Dist. No. 07AP-803, 2008- Ohio-4373, ¶ 19 (noting the protections of Ohio Constitution, Article I, Section 14, and the Fourth Amendment to the U.S. Constitution are coextensive), citing State v. Robinette , 80No. 12AP-968 4

Ohio St.3d 234, 238-39 (1997). " '[T]he Fourth Amendment "safeguard is designed to require a description which particularly points to a definitely ascertainable place so as to

exclude all others." ' " United States v. Votteller , 544 F.2d 1355, 1357 (6th Cir.1976), quoting United States v. Lemmens , 527 F.2d 662, 666 (6th Cir.1976), quoting People v.

Watson , 26 Ill.2d 203 (1962). "The Fourth Amendment requirement of particularity prevents 'a general, exploratory rummaging in a person's belongings.' " State v. Young

, 146 Ohio App.3d 245, 256, quoting Coolidge v. New Hampshire

, 403 U.S. 443, 467 (1971). {¶ 11} Defendant contends the particularity requirement was violated in this instance because the warrant described the entire building instead of the individual booths operated by defendant. In Votteller , a single warrant was issued to search a multifloor building containing a business on the first floor and separate apartments on the

other floors. Id. at 1362. The court found the warran t was void because it authorized a search of the entire building without cause to search all of the units. Id. at 1364. {¶ 12} Unlike in Votteller , where the building was a multi-use structure subdivided by walls and floors into distinct, self-contained units, the Eastland Flea Market was a single-use structure consisting of open displays and booths. Under these circumstances, the Eastland Flea Market cannot be considered a multi-unit structure and, therefore, the warrant in this case complied with the Fourth Amendment particularity requirement. C. Good-Faith Exception to the Exclusionary Rule Applies {¶ 13} Although finding the warrant validly authorized the search ends the analysis, we nevertheless examine whether the good-faith exception to the exclusionary rule applies in the event the warrant was invalid. {¶ 14} "The fact that a Fourth Amendment violation occurred—i.e., that a search or arrest was unreasonable—does not necessarily mean that the exclusionary rule applies." Herring v. United States , 555 U.S. 135, 140 (2009). "The exclusionary rule should not be applied to suppress evidence obtained by police officers acting in objectively reasonable, good faith reliance on a search warrant issued by a detached and neutral magistrate but ultimately found to be invalid." State v. Wilmoth , 22 Ohio St.3d 251 (1986), paragraph one of the syllabus, following United States v. Leon , 468 U.S. 897 (1984). "To trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion canNo. 12AP-968 5

meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system." Herring at 144. {¶ 15} The deterrence rationale underlying the exclusionary rule " 'loses much of its force' * * * when an officer acting with objective good faith has obtained a search warrant from a judge or magistrate and acted within its scope." Leon at 919-920, quoting Michigan v. Tucker , 417 U.S. 433, 447 (1974). "In the ordinary case, an officer cannot be expected to question the magistrate's probable-cause determination or his judgment that the form of the warrant is technically sufficient." Id. at 921. See also Massachusetts v. Sheppard , 468 U.S. 981, 990 (1984) (" '[T]he exclusionary rule was adopted to deter unlawful searches by police, not to punish the errors of magistrates and judges.' "), quoting Illinois v. Gates , 462 U.S. 213, 263 (1983) (White , J., concurring in judgment); Herring at 142. Here, the officers properly requested a determination by a judge on the issue of whether multiple warrants were required to execute the search. Even if the single warrant for the entire structure was invalid, the error in issuing the warrant would be attributable to the judge, not the officers. {¶ 16} However, the good-faith exception to the exclusionary rule does not apply where the officer's reliance on the warrant was not objectively reasonable. "[S]uppression remains an appropriate remedy where: (1) '* * * the magistrate or judge * * * was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth * * *'; (2) '* * * the issuing magistrate wholly abandoned his judicial role * * *'; (3) an officer purports to rely upon '* * * a warrant based on an affidavit "so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable" '; or (4) '* * * depending on the circumstances of the particular case, a warrant may be so facially deficient—i.e., in failing to particularize the place to be searched or the things to be seized—that the executing officers cannot reasonably presume it to be valid.' " State v. George , 45 Ohio St.3d 325, 331 (1989), quoting Leon at 923. {¶ 17} Defendant contends that because the warrant authorized a search of the entire structure, it was so facially deficient in particularizing the place to be searched that officers could not reasonably have presumed it to be valid. Defendant's argument is without merit since, as discussed above, the warrant complied with the particularityNo. 12AP-968 6

requirement. Thus, suppressing evidence obtained in this case through objectively

reasonable reliance on the issued warrant would not serve the deterrence rationale of the exclusionary rule. See Leon at 922. {¶ 18} Because the warrant validly authorized the search and seizure of defendant's property or, in the alternative, the good-faith exception to the exclusionary rule would apply if the warrant was invalid, we find there was no violation of the Fourth and Fourteenth Amendments to the U.S. Constitution and Ohio Constitution, Article I Section 14. Accordingly, defendant's assignment of error is overruled. III. Disposition {¶ 19} Having overruled defendant's assignment of error, we affirm the judgment of the Franklin County Court of Common Pleas. Judgment affirmed.

KLATT, P.J., and SADLER, J., concur.

McCORMAC, J., retired, of the Tenth Appellate District, assigned to active duty under authority of the Ohio Constitution, Article IV, Section 6(C).No. 12AP-968 7

APPENDIXNo. 12AP-968 8No. 12AP-968 9