[Cite as State v. Lackey, 2023-Ohio-3720.]

IN THE COURT OF APPEALS

FIRST APPELLATE DISTRICT OF OHIO

HAMILTON COUNTY, OHIO

STATE OF OHIO,

 Plaintiff-Appellee,

 vs.

NORMAN LACKEY,

 Defendant-Appellant.

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APPEAL NO. C-230025

TRIAL NO. B-2106423

 O P I N I O N.

Criminal Appeal From: Hamilton County Court of Common Pleas 

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: October 13, 2023

Melissa A. Powers, Hamilton County Prosecuting Attorney, and Keith Sauter, 

Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Jackson Law Office, LLC, and Kory A. Jackson, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS

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KINSLEY, Judge.

{¶1} Defendant-appellant Norman Lackey appeals his convictions for 

various drug and weapons offenses. Because the search warrant for his residence was 

supported by probable cause and the information in the affidavit submitted to obtain 

the search warrant was not stale, we affirm Lackey’s convictions.

Factual and Procedural Background

{¶2} Based on an anonymous complaint of heavy traffic and weapons at 

Lackey’s residence, officers began surveillance of Lackey’s residence. During the 

course of their surveillance, officers observed the odor of marijuana emanating from

Lackey’s residence. They also observed Lackey conducting a “dead drop,” which 

entailed Lackey placing a clear plastic baggie containing an unknown substance in the 

bed of a truck. 

{¶3} Then, over the course of a month, the officers conducted three trash 

pulls from Lackey’s residence. (A trash pull involves searching items placed in a 

garbage bin at the curb for pickup.) The first two trash pulls took place on December 

1 and 8, 2021. Among other things the officers recovered during the first two trash 

pulls were torn off baggies, vacuum sealed bags with the odor of marijuana, shipping 

labels, and small glass containers with hash residue. Officers also conducted a third 

trash pull a few days later from which they recovered a vacuum sealed bag roll, three 

empty THC containers with marijuana residue inside, two empty packs of rolling 

papers, and two empty packs of THC gummies. 

{¶4} Based on these three trash pulls and the preceding investigation of 

Lackey’s residence, the officers then submitted an affidavit for a search warrant to 

search Lackey’s house. The affidavit was submitted on December 16, 2021, less than 
OHIO FIRST DISTRICT COURT OF APPEALS

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48 hours after the third trash pull. Based on the information contained in the affidavit, 

the trial court granted the application and issued the warrant.

{¶5} After the officers executed the search warrant, Lackey was indicted for 

trafficking in and possessing marijuana, trafficking in and possessing hashish, and 

having a weapon under a disability. Lackey moved to suppress the evidence seized

from the search of his residence, arguing that the search was based on an affidavit that 

lacked probable cause and that the affidavit was based on stale information. 

{¶6} After hearing arguments on Lackey’s motion to suppress, the trial court 

denied the motion, finding that the facts set forth in the affidavit accompanying the 

search warrant supported a finding of probable cause. Subsequently, Lackey withdrew 

his not guilty pleas and entered no-contest pleas as charged. The trial court placed 

Lackey on community control after holding a sentencing hearing. 

{¶7} Lackey now appeals.

Standard of Review 

{¶8} This court reviews a trial court’s decision as to a motion to suppress de 

novo. State v. Thyot, 2018-Ohio-644, 105 N.E.3d 1260, ¶ 17 (1st Dist.). “We must 

accept the trial court’s findings of fact as true if competent, credible evidence supports 

them. But we must independently determine whether the facts satisfy the applicable 

legal standard.” Id.

Probable Cause

{¶9} In his sole assignment of error, Lackey argues that the trial court erred 

in denying his motion to suppress. And in the first issue for review under this 

assignment of error, Lackey asserts that the affidavit in support of the search warrant 

lacked probable cause. 
OHIO FIRST DISTRICT COURT OF APPEALS

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{¶10} In State v. German, we explained an appellate court’s consideration in 

reviewing a trial court’s decision as to a motion to suppress: 

In determining whether a search warrant was adequately supported by 

probable cause, the reviewing court’s duty is merely to ensure that the 

issuing magistrate or judge had a substantial basis for concluding that 

probable cause existed. Neither a trial court nor an appellate court 

should substitute its judgment for the magistrate’s by conducting a de 

novo review of whether the affidavit contained probable cause. This 

standard of review grants a great deal of deference to the issuing 

magistrate. 

To establish probable cause to issue a search warrant, an affidavit must 

contain information to allow a magistrate to draw the conclusion that 

evidence is likely to be found at the place to be searched. And probable 

cause exists when a reasonably prudent person would believe that there 

is a fair probability that the place to be searched contains evidence of a 

crime. 

(Footnotes omitted.) State v. German, 1st Dist. Hamilton No. C-040263, 2005-Ohio527, ¶ 12-13. 

{¶11} Here, the affidavit established that contraband or evidence of a crime 

would likely be found at Lackey’s residence. According to the affidavit, officers 

observed Lackey conducting a “dead drop” and the odor of marijuana emanating from 

his residence. Further, the affidavit detailed what the officers recovered from three 

trash pulls of Lackey’s residence, including materials commonly used by marijuana 

traffickers. Though Lackey contends that most of the items recovered were just 
OHIO FIRST DISTRICT COURT OF APPEALS

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evidence of personal drug use, the affidavit contained information connecting the 

items to marijuana trafficking. 

{¶12} Therefore, considering the facts set forth in the affidavit as a whole, as 

we are bound to do at this stage of the proceedings, we hold that there was a fair 

probability that contraband or evidence of marijuana trafficking would be found at 

Lackey’s residence. See German at ¶ 13. Accordingly, we uphold the trial court’s 

finding of probable cause based on the affidavit.

Staleness

{¶13} In his second issue for review, Lackey argues that the information in the 

search warrant was stale and therefore did not give rise to probable cause. 

{¶14} Though the state argued Lackey waived his staleness argument by not 

asserting it in his motion to suppress, Lackey argued staleness at the suppression 

hearing. We therefore do not consider the argument waived.

{¶15} But we do not find any merit in this argument. We described when 

information in an affidavit has gone stale in German:

Because probable cause to search is concerned with facts relating to a 

presently existing condition, a magistrate or judge must consider 

whether the information supporting the issuance of a warrant has gone 

stale. Therefore, the law of search and seizure requires that an affidavit 

for a search warrant present timely information.

No arbitrary time limit dictates when information becomes stale. The 

test is whether the facts justify the conclusion that certain contraband 

remains on the premises to be searched.
OHIO FIRST DISTRICT COURT OF APPEALS

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(Footnotes omitted.) German, 1st Dist. Hamilton No. C-040263, 2005-Ohio-527, at 

¶ 14-15. For example, “[t]he observation of a half-smoked marijuana cigarette in an 

ashtray at a cocktail party may well be stale the day after the cleaning lady has been 

in,” but “the observation of the burial of a corpse in a cellar may not be stale three 

decades later.” Id. at ¶ 17. 

{¶16} The first, second, and third trash pulls occurred 15 days, eight days, and 

48 hours before the officers applied for a warrant, respectively. Lackey argues the 

information contained in the affidavit occurred nearly a week before the warrant was 

served and was therefore stale. But as the state noted during the suppression hearing, 

trash is typically only picked up once a week, and it would have been impossible to pull 

trash more than once a week. Moreover, the fact that officers found evidence 

connected with drug activity on three separate instances over a 15-day period 

preceding the search heightened, not diminished, the likelihood that contraband 

remained on the premises. The regularity with which the items continued to be found 

in Lackey’s trash undercut any concern that the passage of time might have rendered 

the information in the affidavit stale. 

{¶17} Lackey also contends that a four-day delay in executing the search 

warrant contributed to its potential staleness. But again, the fact that Lackey’s trash 

contained evidence connected to drug activity on three separate occasions spaced 13 

days apart did not make it likely that those four days would change the calculus. We 

therefore hold that the affidavit was not based on stale information. 

{¶18} Accordingly, we overrule Lackey’s assignment of error and affirm his 

convictions.

Judgment affirmed.
OHIO FIRST DISTRICT COURT OF APPEALS

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BERGERON, P.J., and BOCK, J., concur.

Please note:

The court has recorded its own entry on the date of the release of this opinion.