[Cite as State v. Lask , 2021-Ohio-1888.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ADAMS COUNTY

STATE OF OHIO, : Plaintiff-Appellee, : Case No. 20CA1117

vs. : RICHARD LASK, : DECISION AND JUDGMENT EN TRY Defendant-Appellant. :

_______________________________________________________________ _ APPEARANCES: Steven R. Adams, Cincinna ti, Ohio, for appellant. David Kelley, Adams County Prosecuting Attorney, and Anthony Hu rst, Assistant Adams County Prosecuting Attorney, West Union, Ohio, for appellee.

_______________________________________________________________ _ CRIMINAL APPEAL FROM COMMON PLEAS COURT DATE JOURNALIZED: 5-26-21 ABELE, J. {¶ 1} This is an appeal from an Adams County Common Pleas Court judgm ent of

conviction and sentence. Appellant assigns the following error for review:

“THE SEARCH WARRANT IS INVALID WHERE THE DECISION TO SEEK A SEARCH WARRANT WAS PROMPTED BY INFORMATION GAINED FROM AN UNLAWFUL SEARCH.” {¶ 2} On October 9, 2017, a Kansas Highway Patrol trooper stopped app ellant’s vehicle on Interstate 70 for allegedly following another vehicle too cl osely. During the ensuing encounter, the trooper searched appellant’s vehicle and discove red empty duffle bags that contained “marijuana shake” and “dryer sheets.” The trooper al so observed two large “fairly empty coolers” in the vehicle’s back seat. The trooper let app ellant leave the scene, but laterADAMS, 20CA1117

2 wrote an email to summarize his encounter and his suspicion abo ut appellant’s involvement in drug trafficking. The trooper th en sent the email to the Adams County, Ohio Sheriff’s Office. {¶ 3} Adams County Sheriff’s Detective Sam Purdin received the Kansas email and decided to investigate. On October 16, 2017, one week after th e Kansas traffic stop, Detective Purdin drove to appellant’s res idence and observed a pickup tru ck leave the premises. After

Purdin observed the vehicle run a stop sign and drive left of t he centerline, he stopped the

vehicle. {¶ 4} As Detective Purdin approached appellant, the vehicle’s driver, the detective “instantly smelled” a “very stron g” odor of burnt marijuana ema nating from the vehicle. Appellant later admitted that he had smoked marijuana. Shortly thereafter, another officer arrived at the scene and performed field sobriety tests. After officers arrested appellant for operating a vehicle while under the influence, a vehicle search resulted in the discovery of approximately two pounds of marijuana. {¶ 5} After this encounter, Detective Purdin applied for a warrant to search appellant’s

residence. The search-wa rrant affidavit states: On October 9, 2017, the Affiant received information from the Kansas Highway Patrol indicating a Troop er stopped a vehicle driven by Richard Lask. The Trooper discovered two (2) large duffel bags containing mar ijuana “shake” and dryer sheets. The Trooper stated Richard Lask indicated th e marijuana discovered was his own personal use. The Affiant further states on October 16, 2017, he went to the residence of Richard Lask to follow up on this information. While in the ar ea, the Affiant observed Richard Lask leaving his residence in a red Dodge Dako ta truck. The Affiant observed the vehicle failed to stop at a stop sign loca ted at the intersection of State Route 41 and Stanfield Ro ad. The Affiant further obse rved the vehicle’s brake lights were broken. Based on these observations, the Aff iant conducted a traffic stop on the vehicle. The Affiant requested additional law enforcement units proceed to the scene to assist. As the Affiant approached the v ehicle, he could detect a stron g odor of marijuana emanating from the vehicle. The Affiant states he ha s been a LawADAMS, 20CA1117

3 Enforcement Officer for approximately 17 years and through his training and experience can positively identify the odor of marijuana. Whil e speaking with Richard Lask, the Affiant observed his speech was slurred and h is eyes were “bloodshot”. Richard Lask admitted to the Affiant he had previ ously smoked marijuana. Deputy Walters arri ved at the scene and conducted f ield sobriety tests on Richard Lask. Mr. Lask was determined to be driving a vehic le under the influence of drugs and/or alcohol and was placed under arrest. The Affiant further states an inventory sear ch of Richard Lask’s vehicle re vealed approximately two (2) pounds of marijuana. Mr. Lask stated thi s marijuana was for his own personal use. The Affiant further states he believes there is being conceale d at the resident of Richard Lask * * * an undetermined amount of mariju ana and items used in the cultivation of marijuana. These beliefs are based on the Affiant observing Richard Lask leaving his residence just prior to bein g discovered with marijuana in his possession. Based on the amount of marijuana discovered inside Richard Lask’s vehicle, the Affiant believes this is not for pe rsonal use and further criminal activity is bein g conducted inside Richard Las k’s residence.

{¶ 6} A judge granted Detective Purdin’s request for a warrant to sea rch appellant’s residence and, during the searc h, officers discovered a substan tial amount of marijuana and drug paraphernalia. {¶ 7} On October 27, 2017, an Adams County Grand Jury returned an ind ictment that charged appellant with possession of marijuana, in an amount of approximately 40,000 grams, a second-degree felony in viola tion of R.C. 2925.11(A). Appellan t entered a not guilty plea and filed a motion to suppress evidence. {¶ 8} In his motion to suppress evidence, appellant asserted that (1) officers improperly detained appellant for a suspici on of operating a motor vehicle while under the influence, and (2) because officers based the search of his home upon information obtained during the Kansas unconstitutional search and seizure, the evidence discovered du ring the search is the fruit of the unlawful Kansas traffic stop. Cons equently, appellant requeste d the trial court suppress theADAMS, 20CA1117

4 evidence discovered during the search of his residence. The tr ial court, however, overruled appellant’s motion to suppress evidence. {¶ 9} Subsequently, appellant entered a no-contest plea to the posses sion of marijuana charge, in violation of R.C. 2925.11(A) a second-degree felony. The trial court sentenced appellant to serve a mandatory minimum five-year prison term. Appellant appealed his judgment of conviction and senten ce. Appellant argued that the trial court incorrectly

determined that the Kansas state trooper had either probable ca use or a reasonable suspicion to stop appellant’s vehicle for a traffic violation. {¶ 10} After review, this Court noted t hat (1) the Kansas trooper fail ed to articulate any specific facts that gave rise to a reasonable suspicion that ap pellant committed a traffic violation, (2) the video evidence did not show an alleged traffic violatio n, and (3) the trooper could not recall any details regarding the alleged traffic violation. Th us, this Court determined that any

evidence obtained from the Kansas traffic stop should be inadmi ssible. We further concluded, however, that evidence obtained from the Ohio traffic stop is a dmissible. Thus, we rejected appellant’s argument that the Ohi o traffic stop was derived sol ely from information learned from

the unconstitutional Kansas tra ffic stop. Appellant, however, asserted that information learned during the unconstitutional Kansas traffic stop motivated Detec tive Purdin to drive to appellant’s house to investigate. We observed that, even if Purdin decided to investigate appellant due to the Kansas email, Purdin did not st op appellant’s vehicle on the ba sis of any information contained in the Kansas trooper’s email. Instead, Purdin stopped appella nt’s vehicle after the detective observed appellant run a stop sign and drive left-of-center. W e therefore agreed with the trial

court’s conclusion that Purdin ha d probable cause, independent of the unlawful Kansas traffic stop, to stop appellant’s vehicle . We further noted that appel lant did not challenge the trialADAMS, 20CA1117

5 court’s finding that Purdin had p robable cause to search the ve hicle. We then considered the issue of whether the evidence discovered during the search of a ppellant’s home should be suppressed because the search-wa rrant affidavit contained some information obtained from the Kansas traffic stop. We recognized that the trial court did no t consider whether the searchwarrant affidavit contained sufficient probable cause that evid ence of a crime would be discovered at appellant’s residen ce absent the information obta ined during the Kansas traffic stop. We thus remanded the matte r so the trial court could con sider whether Detective Purdin’s

search-warrant affidavit set forth sufficient information to co nstitute probable cause to search without considering informati on obtained during the Kansas traf fic stop. {¶ 11} On June 10, 2020, the trial court held a hearing to consider th e issue. The state

asserted that the tr ial court should be limited to considering whether the remainder of the warrant, absent the Kansas inf ormation, established probable ca use. Appellant, however, argued

that the court must consider whet her the Kansas information als o tainted Detective Purdin’s

decision to obtain the warrant. Appellant claimed the exclusio nary rule requires courts to suppress evidence discovered duri ng a search unless the state c an establish that illegally obtained information (here from the Kansa s traffic stop) did not prompt Purdin to seek a search warrant. Appellant thus claimed that the s tate must show that officers h ad an independent source for

information to obtain a search warrant. {¶ 12} After consideration, the trial court did not agree that it must suppress the evidence discovered during the search of appellant’s residence. Instead , the court determined that, after it

redacted information obtained fro m the Kansas stop, the search- warrant affidavit nevertheless

contained sufficient informati on to establish probable cause to believe that a search of appellant’s residence would unc over evidence of a crime. The c ourt points to the following factsADAMS, 20CA1117

6 to support a finding of probable cause: (1) Detective Purdin ob served appellant leave appellant’s residence in a pickup truck; ( 2) the detective stopped appella nt after he observed two traffic violations; (3) the detective detected an odor of marijuana ema nating from appellant’s vehicle; (4) appellant admitted that he had smoked marijuana; (5) the of ficers arrested appellant for driving while under the influence; (6) a search of appellant’s vehicle resulted in the discovery of two pounds of marijuana; and (7) Detective Purdin did not belie ve appellant’s claim that two pounds of marijuana were for his personal use. The trial court thus denied appellant’s motion to suppress evidence and reaffirme d his sentence. This appeal fol lowed. {¶ 13} In his sole assignment of error, appellant asserts that the tri al court erred by denying his motion to suppress th e evidence discovered during t he search of his residence. Appellant argues that Detective Purdin sought a search warrant based upon information learned during the unlawful Kansas traffic stop, and that a search warr ant should be invalid when law enforcement decides to seek a search warrant based upon illegal ly obtained information. Appellant thus claims that the exclusionary rule requires the t rial court to suppress the evidence discovered during the search of his residence. {¶ 14} The state, however, disagrees with appellant’s analysis and arg ues that the exclusionary rule does not requi re suppression of the evidence discovered at appellant’s residence. Instead, the state c ontends that the untainted evid ence that Detective Purdin collected sufficiently establishes probabl e cause to believe that officer s would discover evidence of criminal activity at appellant’s residence. The state further contends that the connection between the Kansas traffic stop and the search of appellant’s residence is too attenuated to require

exclusion of the evidence.ADAMS, 20CA1117

7 I {¶ 15} Appellate review of a trial c ourt’s ruling on a motion to suppr ess evidence involves a mixed question of law and fact. E.g., State v. Castagnola , 145 Ohio St.3d 1, 2015- Ohio-1565, 46 N.E.3d 638, ¶ 32; State v. Burnside , 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8; State v. Moore , 2013-Ohio-5506, 5 N.E.3d 41 (4th Dist.), ¶ 7. Appellate cour ts thus “‘must accept the trial court’s findings of fact if they a re supported by competent, credible

evidence.’” State v. Leak , 145 Ohio St.3d 165, 2016-Ohio-154, 47 N.E.3d 821, ¶ 12, quoti ng Burnside at ¶ 8. Accepting those facts as true, reviewing courts “‘ind ependently determine as a matter of law, without deference to the conclusion of the trial court, whether the facts satisfy the applicable legal standard.’” Id. , Burnside at ¶ 8.

II {¶ 16} The Fourth Amendment to the United States Constitution provides that search warrants may be issued only upon probable cause: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oat h or affirmation, and particularly describing the place to be searched, and the p ersons or things to be seized. {¶ 17} Courts that must determine whether a search warrant was issued upon a proper showing of probable cause must examine the totality of the circ umstances. Illinois v. Gates , 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). “[T]he d uty of a reviewing court is simply to ensure that the magistrate had a ‘substantial basis f or * * * conclud[ing]’ that probable

cause existed.” Id. at 238–239, 103 S.Ct. 2317, quoting Jones v. United States , 362 U.S. 257, 271, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), overruled on other gro unds, United States v. Salvucci , 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980). And, the i ssuing magistrate’s duty is toADAMS, 20CA1117

8 determine whether “there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Id. at 238, 103 S.Ct. 2317. {¶ 18} “The essential protection of the w arrant requirement of the Fou rth Amendment * * * is in ‘requiring that [the usual inferences which reasona ble men draw from evidence] be drawn by a neutral and detached magistrate instead of being jud ged by the officer engaged in the often competitive enterprise of ferreting out crime.’” Gates , 462 U.S. at 240, 103 S.Ct. 2317, quoting Johnson v. United States , 333 U.S. 10, 13-14, 68 S.Ct. 367, 92 L.Ed. 436 (1948). Accordingly, a search-warrant “affidavit must set forth particu lar facts and circumstances underlying the existence of probable cause, so as to allow the magistrate to make an independent

evaluation of the matter.” Franks v. Delaware , 438 U.S. 154, 165, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). Moreover, the facts a nd circumstances set forth in the “affidavit must provide the magistrate with a substantial basis for determining the existen ce of probable cause.” Gates , 462 U.S. at 239, 103 S.Ct. 2317. A search-warrant affidavit need n ot, however, comply with any “‘[t]echnical requirements of elaborate specificity.’” Id. at 235, 103 S.Ct. 2317, 2332, quoting

Ventresca , 380 U.S. at 108, 85 S.Ct. 741. Instead, [i]n determining the sufficiency of probable cause in an affida vit submitted in support of a search warrant, “[t]h e task of the issuing magistr ate is simply to make a practical, common-sense decision whether, given all the circu mstances set forth in the affidavit before him, including the ‘veracity’ and ‘basi s of knowledge’ of persons supplying hearsay information, there is a fair probabil ity that contraband or evidence of a c rime will be found in a particular place.” George at paragraph one of the syllabus, quoting Gates , 462 U.S. at 238-239, 103 S.Ct. 2317; accord Castagnola at ¶ 35 (“[T]he evidence must be sufficient for the magistrate to conclude that there is a fair probability that evidence of a crime will be fo und in a particular place.”).ADAMS, 20CA1117

9 {¶ 19} A search warrant issued after a magistrate or judge has indepen dently determined that probable cause to search exists will enjoy a presumption o f validity. State v. Parks , 4th Dist. Ross No. 1306, 1987 WL 16567 (Sept. 3, 1987), *4; see Franks v. Delaware , 438 U.S. 154, 171, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978) (noting that search-warran t affidavit presumed valid). Thus, “‘the burden is on a defe ndant who seeks to suppress evid ence obtained under a regularly issued warrant to show the want of probable cause.’” United States v. de la Fuente , 548 F.2d 528, 534 (5th Cir.1977), quoting Batten v. United States , 188 F.2d 75, 77 (5 Cir. 1951); accord

Xenia v. Wallace , 37 Ohio St.3d 216, 218, 524 N.E.2d 889 (1988), citing de la Fuente (stating that “[t]he burden of initially establishing whether a search o r seizure was authorized by a warrant is on the party challenging the legality of the search or seizure”); State v. Wallace , 2012- Ohio-6270, 986 N.E.2d 498, ¶ 27 (7th Dist.) (explaining that a defendant who “attacks the validity of a search conducted under a warrant” carries “the bu rden of proof * * * to establish that evidence obtained pursuant to the warrant should be suppre ssed”); State v. Clouser , 4th Dist. Highland No. 16CA4, 2016-Ohio-5370, ¶ 13. {¶ 20} In the case sub judice, appellant asserts that the search warra nt is tainted due to the information learned during the unlawful Kansas traffic stop that prompted Detective Purdin’s decision to investigate and to seek a search warrant. Appellan t thus contends that the exclusionary rule requires the suppression of the evidence obta ined pursuant to the warrant. {¶ 21} “The exclusionary rule prohibits introduction into evidence of tangible materials seized during an unlawful search.” Murray v. United States , 487 U.S. 533, 536, 108 S.Ct. 2529, 2533, 101 L.Ed.2d 472 (1988), citing Weeks v. United States , 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914). The rule applies both to “the ‘primary evide nce obtained as a direct result of an illegal search and seizure’ and * * * ‘evidence later discov ered and found to be derivative ofADAMS, 20CA1117

10 an illegality,’ the so-called ‘fruit of the poisonous tree.’” Utah v. Strieff , 136 S.Ct. 2056, 2061, 195 L.Ed.2d 400 (2016), quoting Segura v. United States , 468 U.S. 796, 804, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984); accord Nardone v. United States , 308 U.S. 338, 341, 60 S.Ct. 266, 268, 84 L.Ed. 307 (1939) (stating that the exclusionary rule prohibits evidence that is derivative “of the primary evidence, or that is othe rwise acquired as an indirect result of the unlawful search, up to the point at which the connection with the unlawful search beco mes so attenuated as to dissipate

the taint” )

. {¶ 22} The purpose of requiring suppression of unlawfully obtained evi dence is to deter

Fourth Amendment violations. Utah v. Strieff , 136 S.Ct. 2056, 2061, 195 L.Ed.2d 400 (2016). Given “the significant costs of th[e exclusionary] rule,” howev er, the United States Supreme Court has “deem[ed] it ‘applicable only * * * where its deterre nce benefits outweigh its

substantial social costs.’” Id. , quoting Hudson v. Michigan , 547 U.S. 586, 591, 126 S.Ct. 2159, 165 L.Ed.2d 56 (2006) (internal quotation marks omitted). Ther efore, “‘[s]uppression of evidence * * * has always been [a court’s] last resort, not [it s] first impulse.’” Id. , quoting Hudson v. Michigan , 547 U.S. 586, 591, 126 S.Ct. 2159, 165 L.Ed.2d 56 (2006). {¶ 23} The United States Supreme Court’ s reluctance to suppress eviden ce under the exclusionary rule has led to “ several exceptions,” three of whi ch “involve the causal relationship

between the unconstitutional act a nd the discovery of evidence. ” Id. First, the independent source doctrine allows trial courts to a dmit evidence obtained in an unlawful search i f officers independently acquir ed it from a separate, independent source. See Murray v. United States , 487 U.S. 533, 537, 108 S.Ct. 2529, 101 L.Ed.2d 472 (1988). Second, the inevitable discovery doctrine allows for the admissi on of evidence that would have b een discovered even without the unconstitutional source. See Nix v. Williams , 467 U.S. 431, 443–444, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984). Third, and at issue here, is the attenuation doctrine: Evidence is admissible when the connecti on between unconstitutional police conduct and the evidence is remote or h as been interruptedADAMS, 20CA1117

11 by some intervening circumstance, so that “the interest protect ed by the constitutional guarantee that has been violated would not be se rved by suppression of the evi dence obtained.” Hudson, supra , at 593, 126 S.Ct. 2159. Utah v. Strieff , 136 S.Ct. 2056, 2061, 195 L.Ed.2d 400 (2016). {¶ 24} We further observe that the Unite d States Supreme Court has ref used to hold that “‘evidence is “fruit of the poisonous tree” simply because “it would not have come to light but for the illegal actions of the police.”’” Hudson v. Michigan , 547 U.S. 586, 592, 126 S.Ct. 2159, 2164, 165 L.Ed.2d 56 (2006), quoting Segura v. United States , 468 U.S. 796, 815, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984), quoting Wong Sun v. United States , 371 U.S. 471, 487–488, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). “Rather, but-for cause, or ‘c ausation in the logical sense alone,’ United States v. Ceccolini , 435 U.S. 268, 274, 98 S.Ct. 1054, 55 L.Ed.2d 268 (1978), can be too attenuated to justify exclusion, id. , at 274–275, 98 S.Ct. 1054.” Hudson v. Michigan , 547 U.S. 586, 592, 126 S.Ct. 2159, 2164, 165 L.Ed.2d 56 (2006). Th us, “the more apt question in such a case is ‘whether, granting establishment of the primary illegality, the evidence to which instant objection is made has b een come at by exploitation of t hat illegality or instead by means sufficiently distinguishable to be purged of the primary taint. ’” Wong Sun v. United States , 371 U.S. 471, 487–488, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), quoting J. Maguire, Evidence of Guilt 221 (1959). Accordingly, “evidence is not to be excluded if th e connection between the illegal police conduct and the discovery a nd seizure of the evidence is ‘so attenuated as to dissipate the

taint.’” Segura v. United States , 468 U.S. 796, 804–05, 104 S.Ct. 3380, 3385, 82 L.Ed.2d 599 (1984), quoting Nardone v. United States, supra , 308 U.S., at 341, 60 S.Ct., at 268. {¶ 25} In general, evidence that law enforcement officers obtain from an independent source dissipates any taint. Segura v. United States , 468 U.S. 796, 804–05, 104 S.Ct. 3380, 3385, 82 L.Ed.2d 599 (1984), citing Silverthorne Lumber Co. v. United States , 251 U.S., at 392,ADAMS, 20CA1117

12 40 S.Ct., at 183 (em phasis added); see also State v. Carter , 69 Ohio St.3d 57, 67, 630 N.E.2d 355 (1994) (“The exclusionary rule does not apply * * * if the conn ection between the illegal police conduct and the discovery and seiz ure of the evidence is so att enuated as to dissipate the taint, as where the police have an indepe ndent source for discovery of th e evidence.”). Thus, “‘the exclusionary rule has no applica tion [where] the Government lea rned of the evidence “from an independent source.”’” Segura v. United States , 468 U.S. 796, 804–05, 104 S.Ct. 3380, 3385, 82 L.Ed.2d 599 (1984), quoting Wong Sun, supra , 371 U.S., at 487, 83 S.Ct., at 417, quoting Silverthorne Lumber Co., supra , 251 U.S., at 392, 40 S.Ct., at 183). {¶ 26} In the case sub judice, law enf orcement officers learned that a ppellant possessed 40,000 grams of marijuana in his re sidence independent of the K ansas trooper’s observations that occurred one week before Detective Purdin’s encounter with appe llant. Adams County officers discovered 40,000 grams of marijuana pursuant to a search warra nt that relied upon facts learned independently from the Kansas traffic stop. The facts set fort h in the search-warrant affidavit show that after Purdin stopped appellant’s vehicle for traffic violations, he detected the odor of burnt marijuana and subsequently discovered two pounds of marij uana in the vehicle. The discovery of the marijuana in appellant’s vehicle, combined wit h appellant’s recent departure from his residence, prompted the search of appellant’s residenc e. It is important to note that neither fact relied upon evidence acquired during the Kansas tr affic stop. {¶ 27} Moreover, simply because Detective Purdin decided to investigat e appellant after he received information from the Kansas trooper does not sugges t or require the conclusion that officers lacked an independent source for the discovery of the marijuana inside appellant’s

residence. As we observed earlie r, the United States Supreme C ourt has rejected the argument

that evidence must be excluded if “it would not have come to li ght but for the illegal actions ofADAMS, 20CA1117

13 the police.” Hudson v. Michigan , 547 U.S. 586, 592, 126 S.Ct. 2159, 2164, 165 L.Ed.2d 56 (2006), quoting Segura v. United States , 468 U.S. 796, 815, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984), quoting Wong Sun v. United States , 371 U.S. 471, 487–488, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Instead, the question is “‘whether, granting establish ment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of t he primary taint.’” Wong Sun v.

United States , 371 U.S. 471, 487–488, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). I n the case at bar, officers discovered the large am ount of marijuana inside appell ant’s residence by a means sufficiently distinguishable fro m the Kansas traffic stop, thus , so as to purge the taint of the Kansas stop. {¶ 28} Consequently, when an affidavit for a search warrant contains i nformation that police improperly obtained, cour ts will nevertheless uphold the warrant if “after excising tainted information from a supporting a ffidavit, ‘[]sufficient untainte d evidence was presented in the warrant affidavit to establish probable cause * * *.’ ” See State v. Gross , 97 Ohio St.3d 121, 2002-Ohio-5524, 776 N.E.2d 1061, ¶ 17, quoting United States v. Karo , 468 U.S. 705, 719, 104 S.Ct. 3296, 82 L.Ed.2d 530 (1984). Including illegally obtaine d information in a search-warrant affidavit does not invalidate the warrant, unless the illegally obtained information “proved to be critical to establishing probable cause for the issuance of the warrant.”

United States v. Karo , 468 U.S. 705, 719, 104 S.Ct. 3296, 3305, 82 L.Ed.2d 530 (1984 ). {¶ 29} In the case sub judice, even t hough the search-warrant affidavi t referenced the unlawful Kansas stop, we agree w ith the trial court’s conclusio n that the affidavit contains

sufficient untainted evidence to establish probable cause to se arch appellant’s residence for evidence of criminal activity. The illegally obtained informat ion was not critical to establishingADAMS, 20CA1117

14 probable cause for the issuance of the warrant. After redactin g the information gathered during the Kansas traffic stop, the sear ch-warrant affidavit shows tha t shortly after appellant left his house, Detective Purdin conducted a valid traffic stop and disc overed two pounds of marijuana inside appellant’s vehicle. Purdi n stated that, in his experie nce, two pounds of marijuana is not intended solely for personal use. Once again, we agree with th e trial court’s conclusion that the affidavit sufficiently sets forth untainted evidence to establi sh a probable cause that a search of appellant’s residence would unc over evidence of additional mari juana or contraband. Consequently, the trial court correctly overruled appellant’s m otion to suppress evidence. {¶ 30} Accordingly, based upon the for egoing reasons, we overrule appe llant’s sole assignment of error and affirm t he trial court’s judgment.

JUDGMENT AFFIRMED.ADAMS, 20CA1117

15 JUDGMENT ENTRY

It is ordered that the judgme nt be affirmed and that appellee recover of appe llant the costs herein taxed. The Court finds there were reas onable grounds for this appeal. It is ordered that a special mandate issue out of this Court d irecting the Adams County Common Pleas Court to carry t his judgment into execution. If a stay of execution of sentence and release upon bail has b een previously granted, it is continued for a period of sixty days upon the bail previously p osted. The purpose of said stay is to allow appellant to file with the Ohio Supreme Court an appli cation for a stay during the pendency of the proceedings in that court. The stay as herein continued will terminate at the expiration of the sixty day period. The stay will also terminate if appellant fails to file a noti ce of appeal with the Ohio Supreme Court in the forty-five day period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Ohio Supreme Court. Additionally, if the Ohio Supreme Cour t dismisses the appeal prior to the expiration of said sixty days, the stay will terminate as o f the date of such dismissal. A certified copy of this entry shall constitute that mandate p ursuant to Rule 27 of the Rules of Appellate Procedure. Hess, J. & Wilkin, J.: Concur in Judgment & Opinion

For the Court

BY:__________________________ Peter B. Abele, JudgeADAMS, 20CA1117

16

NOTICE TO COUNSEL Pursuant to Local Rule No. 14, this document constitutes a fin al judgment entry and the time period for further appeal commences from the date of filin g with the clerk.