[Cite as State v. Thompson, 2014-Ohio-3380.]

IN THE COURT OF APPEALS 

TWELFTH APPELLATE DISTRICT OF OHIO 

BUTLER COUNTY 

STATE OF OHIO, : 

 Plaintiff-Appellee, : CASE NO. CA2013-08-158 

 

 : O P I N I O N

 - vs - 8/4/2014 

 : 

CHARLES Z. THOMPSON, : 

 Defendant-Appellant. : 

CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS 

Case No. CR2013-01-0099 

Michael T. Gmoser, Butler County Prosecuting attorney, Kimberly L. McManus, Government 

Services Center, 315 High Street, 11th Fl., Hamilton, Ohio 45011, for plaintiff-appellee 

Scott N. Blauvelt, 246 High Street, Hamilton, Ohio 45011, for defendant-appellant 

 HENDRICKSON, J. 

{¶ 1} Defendant-appellant, Charles Z. Thompson, appeals from his convictions for 

trafficking in heroin, possession of heroin, having weapons while under disability, the illegal 

use or possession of drug paraphernalia, and possession of marihuana following his plea of 

no contest in the Butler County Court of Common Pleas. Appellant argues the trial court 

erred in overruling his motion to suppress evidence obtained from an illegal search and 

seizure. For the reasons set forth below, we overrule appellant's arguments and affirm his 
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conviction. 

{¶ 2} Following a controlled buy of narcotics by a confidential informant at 10 

Stephens Street, Apartment 2 in Hamilton, Butler County, Ohio, Detective Robert Horton with 

the Hamilton Police Department executed an affidavit of probable cause and sought a 

warrant to search the premises for, inter alia, drugs, drug related paraphernalia, and 

weapons. A warrant was issued on January 15, 2013, and two days later the warrant was 

executed. Appellant, the tenant of the apartment, was found on the premises along with 

heroin, marihuana, and a Taurus 9mm handgun. Appellant was arrested and indicted on one 

count of trafficking in heroin in violation of R.C. 2925.03(A)(2), one count of possession of 

heroin in violation of R.C. 2925.11, one count of having weapons while under disability in 

violation of R.C. 2923.13(A)(3), one count of the illegal use or possession of drug 

paraphernalia in violation of R.C. 2925.14(C)(1), and one count of possession of marihuana 

in violation of R.C. 2925.11. 

{¶ 3} On March 27, 2013, appellant filed a motion to suppress and dismiss, arguing 

the search was unconstitutional as the warrant was issued without probable cause. 

Appellant argued the affidavit submitted by Horton did not establish probable cause for the 

search as the affidavit did not demonstrate the confidential informant involved in the 

controlled buy was reliable. Appellant also argued the information contained within Horton's 

affidavit was stale as the affidavit did not definitively state when the controlled buy occurred, 

but rather indicated the buy occurred "within the past few days." 

{¶ 4} A hearing on the motion to suppress was held on April 25, 2013, at which time 

the search warrant, including Horton's affidavit of probable cause, was entered into evidence. 

The affidavit was signed by Horton on January 15, 2013, and the search warrant was 

approved and issued that same day. The affidavit provided, in relevant part, the following: 

Detectives of the Hamilton Police Department Vice Investigations 
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Section have received information from a reliable confidential 

informant that Charles Zell Thompson has been selling heroin 

from 10 Stephens Street #2 in the City of Hamilton, Butler 

County Ohio. Within the past few days, Detective Horton met 

with a reliable confidential informant in an effort to purchase 

heroin from this residence. The reliable confidential informant 

was search [sic] and found to have no contraband or currency on 

their person. Detective Horton gave them photocopied funds to 

use to purchase heroin from 10 Stephens Street #2. The reliable 

confidential informant was observed by Detective Crouch and 

Detective Horton entering the common door of 10 Stephens 

Street and then walking down the steps towards apartment #2. 

A few minutes later the confidential informant exited the common 

door and they met with Detective Horton. This reliable 

confidential informant handed over a plastic bag containing a tan 

powder to Detective Horton and they were searched again. They 

were found to have no other contraband or currency on their 

person. The reliable confidential informant advised Detective 

Horton that they had gone into apartment 2 to make the 

purchase. The tan powder field tested positive as heroin. A 

check of Charles Thompson's driver license verified that he uses 

the address 10 Stephens Street #2 in the City of Hamilton, Butler 

County Ohio. 

{¶ 5} At the motion to suppress hearing, Horton testified about the controlled buy and 

his procurement and execution of the warrant. In regards to the controlled buy, Horton 

explained that immediately prior to the buy, he searched the confidential informant to make 

sure the informant did not have contraband or currency on the informant's person. The 

confidential informant was then given photocopied funds to purchase the narcotics, and was 

"visually observed, monitored the whole time, until [the informant] enter[ed] the residence." 

While the confidential informant was making the buy, Horton positioned himself 

approximately 30-40 yards away from the common door of the apartment complex in which 

the buy occurred. Horton explained the apartment complex was a multi-family apartment 

building and the common entry door to the building led to a hallway and staircase. Apartment 

1 and Apartment 2 were located on the bottom floor of the building. From Horton's vantage 

point, he observed the confidential informant go downstairs, but could not tell which 

apartment the informant entered. The confidential informant later exited the apartment 
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building carrying a plastic bag containing tan powder. The informant told Horton that he 

purchased drugs from appellant in Apartment 2. A field test of the bag indicated the bag 

contained heroin. No DNA samples or fingerprints were lifted from the bag. However, in an 

effort to confirm the identity of the individual selling narcotics out of Apartment 2, Horton 

checked the tenant list for the apartment and the "OLIG" database, both of which identified 

appellant as the resident of Apartment 2. 

{¶ 6} During cross-examination, Horton agreed his affidavit did not provide a specific 

date on which the controlled buy occurred and did not indicate "exactly how many days had 

passed since the drug deal had taken place." However, he clarified that the search warrant, 

which was acquired on January 15, 2013, was obtained "within a week" after the buy. Horton 

also acknowledged on cross-examination that as a result of the confidential informant's 

cooperation in making the controlled buy, trafficking charges would not be brought against 

the informant. 

{¶ 7} On April 29, 2013, after determining there was a "substantial basis for the 

issuance of the warrant," the trial court issued a decision denying appellant's motion to 

suppress. Following the denial of his motion, appellant entered a no contest plea as to all 

charges set forth in the indictment. Appellant was subsequently sentenced to four years in 

prison. 

{¶ 8} Appellant timely appealed, raising as his sole assignment of error the following:

{¶ 9} THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT IN 

DENYING HIS MOTION TO SUPPRESS EVIDENCE. 

{¶ 10} Appellant argues the trial court erred by denying his motion to suppress as 

there was insufficient probable cause to issue the search warrant. Appellant contends 

Horton's affidavit did not set forth sufficient facts for the judge issuing the warrant to assess 

the confidential informant's credibility, veracity, and reliability. He further argues the search 
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warrant lacked probable cause because Horton's affidavit "was not adequate regarding the 

time or date of the alleged drug transaction such that the issuing [judge] could determine the 

information was not stale." 

{¶ 11} Our review of a trial court's denial of a motion to suppress presents a mixed 

question of law and fact. State v. Cochran, 12th Dist. Preble No. CA2006-10-023, 2007-

Ohio-3353, ¶ 12. Acting as the trier of fact, the trial court is in the best position to resolve 

factual questions and evaluate witness credibility. Id. Therefore, when reviewing the denial 

of a motion to suppress, a reviewing court is bound to accept the trial court's findings of fact if 

they are supported by competent, credible evidence. State v. Oatis, 12th Dist. Butler No. 

CA2005-03-074, 2005-Ohio-6038, ¶ 10. "An appellate court, however, independently 

reviews the trial court's legal conclusions based on those facts and determines, without 

deference to the trial court's decision, whether as a matter of law, the facts satisfy the 

appropriate legal standard." Cochran at ¶ 12. 

{¶ 12} Pursuant to Crim.R. 41(C), a judge may issue a search warrant upon a finding 

that "probable cause for the search exists." In determining whether probable cause exists to 

support the issuance of a warrant, courts employ a "totality-of-the-circumstances" test, which 

requires an issuing judge "to make a practical, commonsense decision whether, given all the 

circumstances set forth in the affidavit * * * 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." State v. Moore, 12th Dist. Butler No. CA2005-

08-366, 2006-Ohio-4556, ¶ 11, quoting State v. George, 45 Ohio St.3d 325, 329 (1989). 

{¶ 13} "When reviewing a finding of probable cause in a search warrant affidavit, 

reviewing courts 'may not substitute their own judgment for that of the issuing [judge] by 

conducting a de novo determination as to whether the affidavit contains sufficient probable 

cause upon which the reviewing court would issue the search warrant.'" State v. Luna, 12th 
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Dist. Butler No. CA2008-04-115, 2009-Ohio-3421, ¶ 12, quoting George at 330. "The duty of 

the reviewing court is simply to ensure that the [issuing judge] had a substantial basis for 

concluding that probable cause existed." Moore at ¶ 12. Any after-the-fact scrutiny should 

accord great deference to the issuing judge's determination and "doubtful or marginal cases 

should be resolved in favor of upholding the warrant." George at 330. 

Reliability of the Confidential Informant 

{¶ 14} Appellant contends Horton's affidavit provides no information to establish the 

reliability of the confidential informant and that the information set forth in the affidavit could 

not be deemed reliable as it originated from a source who "possesses a history of felony 

convictions" and who had "received a significant benefit in exchange for his assistance in the 

form of dropped drug trafficking charges." Appellant also contends the confidential 

informant's information was not independently corroborated by law enforcement and that law 

enforcement merely relied on hearsay information in seeking and procuring the search 

warrant. 

{¶ 15} With regard to hearsay information in an application for a search warrant, Ohio 

courts have consistently found that hearsay information is relevant to the determination of 

probable cause. Moore, 2006-Ohio-4556 at ¶ 13. Where a confidential or anonymous 

informant is the source of the hearsay, there must be some basis in the affidavit to indicate 

the informant's credibility. State v. Rivera, 12th Dist. Butler No. CA2008-12-308, 2010-Ohio323, ¶ 31. "An affidavit containing detailed information from informants (permitting an 

inference that illegal activity was personally observed by the informants), police corroboration 

of an informant's information through its own independent investigation, or additional 

testimony by the affiant helps to bolster and substantiate the facts contained in the affidavit." 

Id., citing State v. Ingram, 12th Dist. Butler No. CA94-03-076, 1994 WL 519828, *2 (Sept. 26, 

1994). 
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{¶ 16} The totality of the circumstances in the present case indicates the confidential 

informant possessed credible and reliable information that there was a fair probability that 

contraband or evidence of a crime would be found at 10 Stephens Street, Apartment 2. 

Further the record demonstrates the confidential informant's information, combined with law 

enforcement's own investigation corroborating such information, was sufficient to establish 

probable cause to issue the warrant. 

{¶ 17} Horton's affidavit states that a tip was received from a reliable confidential 

informant that appellant was selling heroin out of 10 Stephens Street, Apartment 2. Law 

enforcement took steps to corroborate this information by setting up a controlled buy using 

the same confidential informant. Horton personally observed and monitored the buy, 

checking to make sure the confidential informant did not have contraband or currency on the 

informant's person before the buy. After the buy was complete, the confidential informant 

handed over a plastic bag containing tan powder and told Horton that the bag was purchased 

from appellant in Apartment 2. Law enforcement corroborated the informant's information by 

field testing the contents of the plastic bag and by checking the tenant list of the apartment 

building and the "OLIG" database to verify appellant's residency at 10 Stephens Street, 

Apartment 2. These facts were all set forth in Horton's affidavit of probable cause. From 

such facts, it is clear the confidential informant had specific information, which the informant 

personally observed and which was corroborated by the law enforcement's own investigation, 

that illegal activities involving trafficking in heroin was occurring at 10 Stephens Street, 

Apartment 2. Accordingly, we find that the facts in the affidavit, when viewed together, were 

sufficient to show there was a fair probability that contraband and evidence would be found at 

10 Stephens Street, Apartment 2. 

{¶ 18} In finding that the confidential informant possessed credible and reliable 

information, we reject appellant's argument that this case is similar to State v. Davis, 166 
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Ohio App.3d 468, 2006-Ohio-1592 (2d Dist.). In Davis, the Second District found an affidavit 

clearly insufficient to establish probable cause for a search. Id. at ¶ 4. The affidavit in Davis 

indicated that a confidential informant was given money on four occasions to purchase drugs. 

The informant then gave the money to another individual ("X"), who left the informant's 

residence, went to the defendant's residence, and on two of the four occasions, returned with 

cocaine to complete the transaction. Id. at ¶ 40. The affidavit in Davis did not provide any 

information from which the informant's reliability could be determined as it did not indicate 

that the affiant-law officer saw any of the relevant matters, including the informant giving X 

the recorded buy money, X going from the informant's house to the defendant's residence, X 

leaving the defendant's house, or X giving the informant cocaine. Id. at ¶ 44. Further, the 

informant in Davis did not see X go with the defendant into a room and return with drugs. 

There was also no indication the informant was checked for contraband and equipped with a 

wireless transmitter prior to the buys, and there was no subsequent, independent 

communications between X and the police to verify the information contained within the 

affidavit. Id. at 46. Based on these deficiencies, the Second District concluded the affidavit 

did not support a finding of probable cause. Id. at ¶ 45-46. 

{¶ 19} The present case differs significantly from Davis, as Horton's affidavit does not 

suffer from the same or similar infirmities. Horton, the affiant, was directly involved with the 

informant, who bought the drugs and personally observed the drug transaction. Furthermore, 

Horton searched the informant for contraband and money prior to the buy and observed and 

monitored the informant as the informant entered appellant's apartment building to make the 

buy. Following the controlled buy, the informant communicated his successful purchase of 

heroin from appellant in Apartment 2, and Horton took steps to corroborate the informant's 

information. We therefore conclude that, unlike in Davis, the facts set forth in Horton's 
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affidavit provided the issuing judge with a substantial basis to believe that probable cause 

existed for a search warrant for 10 Stephens Street, Apartment 2. 

Timeliness of the Information

{¶ 20} Appellant also argues the warrant was improperly issued as the affidavit did not 

set forth the date the controlled buy occurred, therefore limiting the issuing judge's ability to 

determine whether the information in the affidavit had gone stale. Appellant argues that 

because the affidavit did not describe an ongoing drug operation, the timing of the controlled 

buy was crucial for determining whether there was a fair probability that contraband or 

evidence of a crime would be found at 10 Stephens Street, Apartment 2. 

{¶ 21} "The law of search and seizure requires that an affidavit demonstrate that the 

information is timely." State v. Harry, 12th Dist. Butler No. CA2008-01-0013, 2008-Ohio6380, ¶ 12, citing State v. Jones, 72 Ohio App.3d 522, 526 (6th Dist.1991). The facts set 

forth in the affidavit must be closely related to the time the warrant is issued in order to justify 

a finding of probable cause. Id.; State v. Prater, 12th Dist. Warren No. CA2001-12-114, 

2002-Ohio-4487, ¶ 11. These facts are examined on a case by case basis. Harry at ¶ 12. 

"While there is no arbitrary time limit on how old information can be, the alleged facts must 

justify the conclusion that the subject contraband is probably on the person or premises to be 

searched." Id. 

{¶ 22} Furthermore, "[a]lthough specific references to dates and times are best, there 

is no hard and fast rule as to the staleness issue." State v. Proffit, 5th Dist. Fairfield No. 

07CA36, 2008-Ohio-2912, ¶ 20. "In determining whether information in an affidavit is stale, 

courts should consider: (1) the character of the crime; (2) the criminal; (3) the thing to be 

seized, as in whether it is perishable and easily transferable or of enduring utility to its holder; 

(4) the place to be searched; and (5) whether the information in the affidavit relates to a 
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single isolated incident or protracted ongoing criminal activity." Harry at ¶ 13, citing Prater at 

¶ 13. 

{¶ 23} Horton's affidavit was executed on January 15, 2013, and the affidavit 

specifically set forth that the confidential informant's controlled buy of heroin from appellant at 

10 Stephens Street, Apartment 2 had occurred "within the past few days." Ohio courts have 

routinely rejected staleness challenges and affirmed probable cause findings where the 

language used in the affidavit to describe the time frame of a controlled buy is given in terms 

of hours, days, or weeks. See, e.g., Moore, 2006-Ohio-4556 at ¶ 17-22 ("within the last 72 

hours"); State v. Bailey, 12th Dist. Butler No. CA2002-03-057, 2003-Ohio-5280, ¶ 12 ("three 

days prior" or "within 72 hours"); State v. Thymes, 9th Dist. Summit No. 22480, 2005-Ohio5505, ¶ 28 ("within the past three days"); State v. James, 8th Dist. Cuyahoga No. 95056, 

2011-Ohio-1239, ¶ 28-34 ("within the past seventy-two hours"). This is especially true where 

there is an indication of ongoing criminal activity. See Bailey at ¶ 12; Proffit, 2008-Ohio-2912 

at ¶ 18-22 (finding that the "has been maintaining" language in the affidavit was sufficient to 

establish ongoing criminal activity). Here, the affidavit specifies that appellant "has been 

selling heroin from 10 Stephens Street #2." (Emphasis added.) From such language, the 

issuing judge was entitled to find that ongoing criminal activity was occurring at 10 Stephens 

Street, Apartment 2. Furthermore, from Horton's averments, the issuing judge was entitled to 

conclude that within a few days of the warrant's January 15, 2013 application date, drugs 

were located within the apartment as a controlled buy on the premises had occurred. The 

information in the affidavit was, therefore, timely. 

{¶ 24} Accordingly, we find that appellant's motion to suppress was properly denied. 

Under a totality of the circumstances analysis, the affidavit filed in support of the warrant 

provided a substantial basis for the issuing judge to conclude there was a fair probability that 
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drugs, drug related paraphernalia, and weapons would be found at 10 Stephens Street, 

Apartment 2. 

{¶ 25} Appellant's sole assignment of error is, therefore, overruled. 

{¶ 26} Judgment affirmed. 

RINGLAND, P.J., and S. POWELL, J., concur.