IN THE SUPREME COURT OF OHIO

0^^ 0 44 7 6STATE OF OHIO,

Plaintiff-Appellee,

vs.

SANTA Y. OPRAWDI

Defendant-Appellant.

Case No. 07 CA 5

On Appeal from the P E R R YCounty Court of Appeals

FIFTI-I Appellate District

Court Appeals Case Nos. 06 CR43

NOTICE OF APPEALOFAPPELLANT SANTA Y. OPRANDI

J 4t)i1C9! ^'FJ lq^^ ^.{5 t-

^J:71 0

JOSEPH A. FLAUTT

PERRY County Prosecutor

111 NORT;I STREETAddress

P.O. BOX 569new lexington, ohi.o,43764

COUNSEL FOR STATE OF OHIO

^f LtA } f/,n^ i•/ ( L.6^Y^

Cf_CR{< OF UCUHTSUPREME CC?UR:I OF OHIO

o.r.w.Institution

1479 collins ave

marvsvillP ohin. 43040

DEFENDANT-APPELLANT, IN PRO-SE

MAR 0 S ?0C!ca

cI.ERKOFGUURTSUPREME GUURT OF OHIO

NOTICE OF APPEAL OF APPELLANT SANTA Y. OPRANDIoPRANDI

Appellant, SANTA Y. , hereby gives notice of appeal to the Supreme Court of

Ohio from the judgment of the PERRY County Court of Appeals, FIFTHr, 4'! ^rlk 4 "t

rl" b^

Appellate District, entered in Court of Appeals Case No 06 CR 43 on •^ ^•^^e^

This case raises a substantial constitutional question, involves a felony, and is of

public or great general interest.

Respectfully submitted,

GOLSignature

2

TABLE OF CASES, STATUTES ANDOTHER AUTHORITIES

TABLE OF CASES:PAGE

United States v. Ables (C.A. 6 1999) 167 F3d 104 13

State v. Benner, 40 Ohio State 3d. 301 12

State v. Bernius, 177 Ohio St. 155 12

State v. Casey, 2004 Ohio 5789 (7" District) 13

State v. Dalpiaz, 151 Ohio App 3d. 257 12

State v. George, ( 1989) 45 Ohio St., 3d 325

State v. Halcyszak, 25 Ohio St., 3d 301 12

State v. Gritten, 05 LW 1789 13

Groh v. Ramirez, 540 US 551 13

Mapp v. Ohio, 367 US 643 (1961) 11

State v. Mapp, 120 Ohio St. 427 12

State v. Mcgettrich, 40 Ohio App 3d 25

Weeks v. United States, 232 US 383 (1914) 11STATE VS. HOOKS SLIP COPY WL.3286898 ohio app8DIST.

CALIFORNIA VS. GREEN (1970) 399 U.S. 149,158.PEOPLE VS. GREEN 71 CAL . RATR. 100 CAL

OHIO REVISED CODEPAGE

Ohio Revised Code Section 2933.23 10

Ohio Revised Code Section 2933.24(A) 10

Criminal Rule 12 (F)

EVID R 801 (C)EVID R 802

TABLE OF CONTENTS

PAGES

1. TABLE OF CASES, STATUTES iiAND OTHER AUTHORITIES

2. STATEMENT OF FACTS 3-4

3. STATEMENT OF CASE 5-7

4. STATEMENT OF ISSUE 8

5. ARGUMENT 9-15

A. THE COURT ERRED IN DENYING THE MOTION OF DEFENDANTAPPELLANT TO SUPPRESS IN THAT THE SEARCH WARRANT DID NOT WITHPARTICULARITY DESCRIBE THE ITEMS TO BE SEIZED

B. THE TRIAL COURT COMMITTED ERROR IN FAILING TO MAKE FINDINGSOF FACT AND CONCLUSIONS OF LAW

6. CONCLUSION

7. CERTIFICATE OF SERVICE

16

17

C. THE TRIAL COURT ERRED BY NOT EXCLUDING HEARSAYEVIDENCE GIVENBY A JUVENILLE, TO A PROBATION OFFICER, EXCLUDING

THF HEARSAY RULE.

2

Criminal Rule 41(c) 10

Fourth Amendment United States Constitution 11

Ohio Constitution Articles 1§ 1.14 11

EXHIBITS:

A. Copy of Sentencing Entry in Case No. 06-CR-0043,State of Ohio v. Oprandi, dated March 27, 2007.

B. Search Warrant dated August 18, 2006.

C. Affidavit of Deputy Lee Hawkes for Search Warrantdated August 18, 2006

D. AFFIDAVIT OF INDICENCY

ii

MEMORANDUM IN SUPPORT OF JURISDICTION

IN THE SURPREME COURT OF OHIO

STATE OF OIIIO,

PLANTIFF-APPELLEE, CASE NO.07 CA 5

vs.

SANTA Y. OPRANDI

ON APPEAL FROM PERRY. COUNTY COURT OF APPEALS. FIFTH APPELLATE DISTRICT

DEFENDANT-APPELLANT. ' COURT APPEALS CASE 06 CR 43

MEMORANDUM IN SUPPORT OF JURISDICTIONOF APPELLANT SANTA Y. OPRANDI

SANTA Y. OPRANDI PRO-SEE67743O.R.W. WOMEN"S PRISON1479 COLLINS AVEMARYSVILLE,OHIO, 43040

JOSEPH A. FLAUTT

PROSECUTOR

11l NORTH STREETADDRESS

P.O. BOX 569

NEW LEXINGTON, OHIO, 43764

ARGUMENT

1. The Court erred in denying the Motion to Suppress of Defendant in that the Search

Warrant did not with particularity describe items to be seized.

The affidavit for the Search Warrant was sworn to by Deputy Lee Hawks. The affidavit

for the Search Warrant and Search Warrant were admitted into evidence.

Sue Primmer, Probation Officer of Perry County Juvenile Court was identified in

paragraph 4 of the affidavit as a source of information Deputy Hawks included in the affidavit.

Ms. Primmer's testimony varied from the statement of Deputy Hawks. She testified that no

direction was given as to the purported Methamphetamine was located. Deputy Hawks

attempted to remedy this in his testimony.

Deputy Brent Tysinger of the Perry County Sheriff s Office stated he had a phone

conversation with the property owner when the Defendant was residing on 7052 State Route 669,

Somerset, Ohio. He did not participate in the search. He had no evidence of crack cocaine,

cocaine or methamphetamine.

Lee Hawks of the Perry County Sheriff's Office was the affiant for the Search Warrant.

He testified that there was no confidential informant utilized to purchase drugs from Defendant.

He further testified that he had no evidence included in his affidavit concerning use of drugs by

Defendant nor sale of drugs by the Defendant. He further testified that the search warrant had no

description of any drug specifically cocaine, crack cocaine, methamphetamine or marijuana.

Officer Hawks further admitted the Inventory included reference to a "Plastic Baggy with

9

unknown white substance, [#1] Plastic seasoning salt bottle with white powder substance".

Officer Hawks also admitted that cocaine, crack cocaine and methamphetamine were seized from

the residence of Defendant.

The Search Warrant sets forth the following language concerning drugs:

". .. any items related to the possession or trafficking in illegal drugs, including but not

limited to fireanns or other weapons, U.S. currency, papers, documents and records and other

controlled substances".

ORC § 2933.23 provides in part as follows:

A search warrant shall not be issued until there is filed with the judge or magistrate an

affidavit that particularly describes the place to be searched, names or describes the person to

be searched, and names ore describes the property to be searched for and seized;

(emphasis added)

ORC § 2933.24(A) provides in part as follows:

A search warrant shall be directed to the proper law enforcement officer or other

authorized individual and, by a copy of the affidavit inserted in it or annexed and referred to in it,

shall show or recite all the material facts alleged in the affidavit and particularly name or

describe the property to be searched for, the place to be searched and the person to be

searched....

(emphasis added)

The issuance of search warrants is also governed by Criminal Rule 41. Section C provides

in part as follows:

... The affidavit shall name or described the person to be searched or described the

10

person to be searched, or particularly describe the place to be searched, name or describe the

property to be searched for and seized, state substantially the offense in relation thereto, and state

the factual basis for the affiant's belief that such property is there located....

(emphasis added)

The Fourth Amendment to the United States Constitution provides as follows:

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 Oath or affirmation, and particularly describing the place to be

searched, and the persons or things to be seized.

(Emphasis added)

The Ohio State Constitution Article I § 1.14 states as follows: Search Warrants and

General Warrants, states, "The right of the people to be secure in their persons, houses, papers,

and possessions, against unreasonable searches and seizures shall not be violated; and no warrant

shall issue, but upon probable cause, supported by oath or affirntation, particularly describing

the place to be searched and the person and things to be seized."

(Emphasis added)

In MAPP V. OHIO, 367 U.S. 643 (1961), The Supreme Court extended to States the

criminal proceedings the Fourth Amendment exclusionary rule, which had been made applicable

to federal criminal proceedings in the prior case of WEEK V. UNITED STATES, 232 U.S. 383

(1914). Under this rule, evidence obtained by a search and seizure in violation of the Fourth

Amendment is inadmissible in a criminal trial.

Any evidence, no matter how reliable, acquired as a result of an unreasonable search must

11

be suppressed. STATE V. MAPP, 170 Ohio St. 427, 166 N.E. (2d), 387, in STATE V. BERNIUS

(1964), 177 Ohio St. 155. Based upon Mapp and its progeny, all of the evidence in this case

illegally obtained through the constitutionally-defective search warrant must also be deemed

inadmissible.

Exploratory searches are prohibited as evidence gathering tools and items seized pursuant

to sucli a warrant violates the fourth Amendment and are to be suppressed. STATE V.

HALCYSZ4K(1986) 25 Ohio St. 3d 301. The items to be located and seized must be identified

with sufficient particularity. STATE V. MCGETTRICH, 40 Ohio App 3d 25.

The leading case in Ohio pertaining to the specificity of search warrants is STATE v.

BENNER, 40. O.St. 3d 301. ( 1988) In that case, the Court held ...

In search and seizure cases where a warrant is involved, the requisite specificity necessarytherein usually varies with the nature of items to be seized. Where ... the items areevidence or instrumentalities of a crime, it appears that the key inquiry is whether thewarrants could reasonably have described the items more precisely than they did.

This doctrine was further expanded and defined in STATE v. DALPIAZ, 151 Ohio App.

3d. 257, Portage County. That case is similar to the case at bar. In DALPIAZ, the search warrant

pertained to the cultivation of marijuana by the Defendant. Statements in the affidavit included

allegations of making a trail to his marijuana plants, booby traps and other allegations concerning

cultivation. In spite of the fact that the law enforcement officers believed that DALPIAZ was

cultivating marijuana, the word "marijuana" did not appear in the search warrant.

In DALPIAZ, the court stated that the officer could have provided information that the

Defendant was cultivating marijuana. At page 267, the opinion continued as follows:

12

Instead of narrowly tailoring the search warrants to provide for the seizure of itemsrelating to the cultivation and sale of marijuana, the scope of the warrant was sobroad that it permitted police officers to seize any evidence relating to theviolation of the drug laws of Ohio. This court views the laundry list approachto search wan•ants as an unacceptable impingement upon an individual's FourthAmendment rights . . . .

The Fourth Amendment to the United States Constitution states "unambiguously" that no

warrant shall issue, but upon probable cause, supported by oath or affirmation, and "particularly

describing" the place to be searched and the places or things to be seized. GROH V. RAMIREZ,

540 US 551.

GROH, at page 557 further states that " .., the Fourth Amendment by its terms requires

particularity in the warrant, not in supporting documents."

General search warrants which fail to particularly describe the things to be searched for

and seized "create a danger of unlimited discretion in the executing officer's determination of

what is subject to seizure and a danger that items will be seized when the wan•ant refers to other

items. UNITED STATES v. ABLES, (C.A.6, 1999) 167 F.3d 1021

In the case of STATE v. GRITTEN, 2005-Ohio-2082(2005) the Portage County Court of

Appeals upheld the decision of the trial court to grant the Motion of a Defendant to suppress

evidence. That Court adopted the position established in BENNER, concerning specificity of

warrants.

It is the obligation of the Court to determine if the warrant could have described the items

to be seized more precisely than it did. It is the argument of Defendant/Appellant that the warrant

could have. The drugs, cocaine, crack cocaine and methamphetamine could and should have

been stated with particularity in the search warrant. (See State v. Casey, 2004-Ohio 5789 7`h

District Court of Appeals).

13

The search warrant in this case fails to describe with any particularity the items to be

seized nor identify any illegal drugs in its body. ft is the contention of Defendant/Appellant that

once the deputies discovered cocaine, crack cocaine and methamphetamine, they should have

secured the scene and obtained a second search warrant which specifically and particularity

identified the drugs. Since this was not done, the search should have been suppressed.

14

2. The Trial Court committed error in failing to make Findings of Fact and Conclusions

of Law.

Criminal Rule 12 (F) requires a court ruling on Pre-Trial Motions to state its essential

findings on the record if factual issues are involved.

On December 18, 2006, the Court entered a general finding denying the Motion to

Dismiss filed by Defendant. On December 20, 2006, Defendant filed her Motion for Findings of

Fact and Conclusions of Law. On December 21, 2006, the Court entered its Order requiring the

State of Ohio and Counsel for Defendant to file Findings of Fact and Conclusions of Law. Both

parties filed their Findings of Fact and Conclusions of Law on January 4, 2007. No decision was

rendered by the trial court. By not making said Findings, Defendant/Appellant was prejudiced in

that she could not properly prepare for trial.

15

111

IN APPELLANT"S 3 rd ASSIGMENT OF ERROR, APPELLANT"S CLAIM THATTHE COURT ERRED BY NOT EXCLUDING TESTIMONY FROM PROBATION OFFICERPRIMMER AS STATED IN THE FOLLOWING CASE: STATE VS. HOOKS: SLIPCOPY WL. 3286898 OHIO APP 8 DIST.(2007). SPECIFICALLY, HOOKASSERTS THAT THE TRIAL COURT SHOULD HAVE SUBMITTED A POLICEREPORT TO THE JURY. THE STATE ARGUED THAT^THE::POLTCE-SUMMRRYORAL STATEMENT IS HEARSAY BECAUSE A JUVENILE GAVE THE STATEMENTTO A DETECTIVE AND DEFENSE COUNSEL, ATTEMPTING TO ELICIT THESTATEMENT FROM A DIFFERENT OFFICER, FURTHER, THE STATE CONTENDSTHAT THE STATEMENT DOES FALL UNDER ANY HEARSAY EXCEPTIONS ANDDOES NOT POSSES THE GUARENTINES OF TRUSTWORTHINESS. EVID R 801(C) DEFINE HEARSAY AS A STATEMENT, OTHER THAN ONE MADE BY THEDECLARENT WHILE TESTIFYING AT THE TRIAL OR HEARING, OFFEREDIN EVIDENCE TO PROVE THE TRiJTH OF THE MATTER ASSERTED, FURTHEREVID R 802, PROVIDES THAT HEARSAY IS NOT ADMISSIBLE EXCEPTPROVIDED BY THE UNITED STATES COURT OF THE U.S. BY STATUTEENACTED BY THE GEN. ASSEMBLY NOT IN CONFLICT WITH A RULE, OFTHE SURPREME COURT OF OHIO BY THESE RULES, OR BY OTHER RULESPRESCRIBED BY THE SURPREME COURT OF OHIO. THE HEARSAY RULE ISBASED UPON TIIE NOTION THAT UNTRUSTWORTHY EVIDENCE SHOULD NOTBE PRESENTED TO THE TIER OF ACTS CHAMBERS SUPRA AT 298. OUT OFCOURT STATEMENTS ARE TRADITIONALLY EXCLUDED BECAUSE THEY LACKRELIABILTY. ID.THE LACK OF RELIABILITY BECAUSE THEY ARE NOTMADE UNDER OATH OR OTHER CIRCUMSTANCES THAT STRESS THESERIOUSNESS OF THE MATTER BY GUARDING AGAINST A LIE WITHPOSSIBILTY OF A PENATY OF PERJURY, THE DECLARANT"S WORDS ARE NOTSUBJECT TO CROSS-EXAMINATION, AND THE TIER OF THE FACTS CANNOTACCESS THE DECLARANT"S DEMEANOR AND CREDIBILITY, CALIFORNIA VS.GREEN (1970), 399 U.S. 149,158. IN THIS CASE SUB JUDICE ORALSTATEMENT WAS HEARSAY, THEREFORE, NOT ADMISSIBLE. THEREFORE,3 RD ERROR SHOULD BE OVERRULED BASED ON PEOPLE VS. GREEN 71CAL. RATR. 100. CAL. APP. 2 DIST.(1968), (1), (2), (3), (4).

conclusion

DEFENDANT APPELLANT, SANTA Y. OPRANDI, PRAYS THAT THIS COURTOVERRULES THE COMMON PLEAS COURT AND GRANT MOTION TO SURPRESSAND TO RELEASE HER FROM PRISON AND RETURN ALL FOREITED PROPERTYTO HER.

STATEMENT OF FACTS:

On August 18, 2006, the house at the real property of Defendant/Appellant located at

7052 State Route 669, Somerset, Clayton Township, Perry County, Ohio, was searched by

members of the Perry County Sheriff's Office and New Lexington, Ohio Police Department. The

search warrant was issued by Judge Dean L. Wilson of Perry County Court. The warrant directed

Deputy Lee Hawkes and any other law enforcement agency to search for ". .. certain concealed

items and/or property, namely: stolen property, to wit: four wheelers, motorcycles or other all

terrain type vehicles, U.S. currency or other instruments in value resulting from the sales of

stolen property, papers documents or records indicating connections to co-conspirators to include

but not limited to: Phone bills, address books, electronic storage devices, electronic caller ID

devices, cellular telephones and their directories, and other items deemed pertinent by

investigators which are related to the possession, acquisition or sale of stolen property, criminal

tools and any items related to the possession or trafficking in illegal drugs including but not

limited to firearms, or other weapons, U.S. currency, papers, documents and records and other

controlled substances". (Emphasis added)

The affidavit of Deputy Hawkes included allegations of a seizure of cash at the Columbus

Airport in August 2005, an investigation in October 27, 2005 wherein marijuana and

methamphetamine and assorted drug paraphernalia was seized, but no charges brought, payment

of monthly land contract payments, a purported statement by Susie Primmer in July 28, 2006

about methamphetamine, an investigation on August 14, 2006 concerning electronic surveillance

and vehicles located at the subject property and a statement of August 17, 2006 concerning the

3

location of a stolen 4-Wheeler which was specifically identified. No allegations were made

concerning cocaine or crack cocaine.

As a result of the search, 34.21 grams of crack cocaine, 70.36 and 4.98 grams of cocaine

and 87.70 and 5.77 grams of inethamphetamine were seized.

At the Suppression Hearing, Sue Ann Primmer, a Juvenile Court Probation Officer, one

of the witnesses used by Deputy Hawkes in his affidavit contradicted Deputy Hawkes in that she

did not have a location other than State Route 669 as the location where a confidential informant

was obtaining methamphetamine. There were no directions or descriptions of the location where

drugs were allegedly purchased. [Transcript of suppression hearing Page 9, Lines 2-6 and 25

through Page 10, Lines 1-5].

Deputy Brent Tysinger related a conversation concerning cash payments to the vendor on

the land contract by Defendant for his land installed contract in July 2006. There was no mention

concerning any type of drugs including cocaine, crack cocaine or methamphetamine. At the

suppression hearing Deputy Kevin Gentzel related that he was at the residence of Defendant on

August 14, 2006 but did not see any weapons, nor evidence of crack cocaine, cocaine or

methamphetamine [Suppression hearing Page 23, Line 7-14].

Deputy Lee Hawkes identified the affidavit for Search Warrant as Defendant's Exhibit 2

and Search Warrant as Exhibit 1. [Suppression Transcript 30, Lines 24 and 25 through 31, Lines

1-12]. With respect to current drug use or existence of drugs at Defendant's residence, Officer

Hawkes had no current information about sale or possession of drugs. [Suppression Transcript

Page 36 Line 19-25 and P. 37, Lines 1-21]. Further Deputy Hawkes admitted there were no

specific drugs mentioned in the Search Warrant [Suppression Transcript Page 39, Line 4-11].

STATEMENT OF CASE

Defendant/Appellant was indicted on August 31, 2006 by the Perry County Grand Jury in

a four count indictment for the following charges:

a. Receiving Stolen Property to wit a Motor Vehicle in violation of ORC § 2913.51, a

felony of the fourth degree;

b. Possession of Cocaine in violation of ORC § 2925.11 (A) and (C)(4)(c), a felony of the

third degree;

c. Possession of Crack Cocaine in violation of ORC § 2925.11(A) and (c)(4)(e), a felony

of the first degree;

d. Aggravated Possession of Drugs in violation of ORC § 2925.11(A) and (c)(1)(c), a

felony of the second degree.

Each drug count contained a gun specification pursuant to ORC § 2941.141. The

Indictment also sought to have the following personal property forfeited pursuant to ORC §

2925.42(A)(1)(a) and (b):

a. $1,350.00 cash

b. Ruger-semi automatic pistol - Serial Number 308-48002;

c. SKS Assault Rifle - Serial Number 1814179 with Magazine;

d. 20 Gauge Mossberg 500 (A) shot gun with pistol grip;

e. Lincoln Continental automobile;

f. Dodge Intrepid automobile;

5

g. Lexus automobile;

h. Chevrolet Monte Carlo automobile;

1. Ford Grand Marquis automobile;

j. Security system comprised of Sanyo flat screen television, JVC DVD player/recorder,

HP computer system, cameras, sensors (serial numbers not included).

Defendant/Appellant was arraigned on September 1, 2006 and entered a plea of Not

Guilty to each charge. On September 13, 2006, Defendant/Appellant filed her written Time

Waiver in Open Court.

On September 29, 2006, Defendant/Appellant filed her Motion to Suppress Evidence and

to Dismiss the case due to invalid Search Warrant. An oral hearing was held on December 5,

2006. Appellee/State of Ohio filed its Brief Contra to the Motion to Suppress on December 14,

2006. Defendant/Appellant filed her Trial Brief on December 14, 2006. On December 18, 2006,

the Court filed its Entry denying the Motion to Suppress and Dismiss. The case was set for Jury

Trial on February 20, 2007.

On December 20, 2006, Defendant/Appellant filed her Request for Findings of Fact and

Conclusions of Law. Pursuant to Court Order dated December 21, 2006, the State and Defendant

were Ordered to file proposed Findings of Fact and Conclusions of Law within 14 days from date

of Entry. Each side filed Findings of Facts and Conclusions of Law on January 4, 2007. No

Findings of Fact or Conclusions of Law were made by the Court.

Appellate counsel informed the Court orally on January 4, 2007 and by written Motion

filed on January 24, 2007 that he had surgery scheduled for January 31, 2007 and sought either a

continuance or permission to withdraw. On January 4, 2007, the Court appointed Mitchell

6

Marczewski to be counsel for Defendant/Appellant. On January 24, 2007, the Motion of

Appellate counsel to withdraw was granted.

A second Motion to Suppress was filed by trial counsel on February 2, 2007. Said Motion

was denied by the Court without hearing on February 5, 2007.

The case proceeded to Jury Trial on February 20, 2007. Defendant was acquitted of the

Charge of Receiving Stolen Property in violation of ORC § 2913.51 pursuant to Motion of

Acquittal Defendant/Appellant pursuant to Criminal Rule 29. (Transcript Page 200, Line 5-10).

Defendant was found guilty by the Jury on the three remaining charges with one gun

specification and further awarding forfeiture of the personal property listed above.

On March 20, 2007, Defendant/Appellant was sentenced by the Court as follows:

a. Possession of Cocaine - Felony 3 - 3 years, $2,000.00 fine, 5 years Operator's License

suspension;

b. Possession of Crack Cocaine - Felony 1- 6 years, to be served consecutive, $2,000.00

fine, 5 year license suspension to be served consecutive;

c. Aggravated Possession of Drugs - Felony 2 - 4 years to be served consecutive -

$2,000.00 fine, 5 year license suspension to be imposed consecutive;

d. 1 year for firearms specification to be served consecutive;

e. The property listed above was forfeited to the State of Ohio;

The totality of the sentence was 13 years incarceration, $6,000.00 fines and 15 year

license suspension. The Termination Judgment Entry was filed on March 27, 2007.

On Apri13, 2007, Defendant/Appellant filed her Notice of Appeal.

7

STATEMENT OF ISSUES:

1. The Court erred in denying the Motion to Suppress of Defendant in that the Search

Warrant did not with particularity describe items to be seized.

2. The Trial Court committed error in failing to make Findings of Fact and Conclusions

of Law.

3. THE COURT ERRED BY NOT EXCLUDING EVIDENCE GIVENBY A JUVENILLE TO A PROBATION OFFICER, THEREFORE EXCLUDING

THE HEARSAY LAWS.

8

EXHIBIT A

IN THE COUNTY COURT, PERRY COUNTY, OHIO

STATE OF OHIO,

COUNTY OF PERRY, SS: AFFIDAVIT FOR SEARCH

WARRANT

Before me, Dean Wilson, Judge of the County Court, Perry County,

Ohio, personally came the undersigned law enforcement officer who, being

duly sworn according to law, states that he has good cause and reason tq

believe, that certain items and/or property are now being concealed, nariielY:..; .̂

Stolen property to wit: four-wheelers, inotorcycles or other all terrain type

vehicles, US currency or other instruments of value resulting frotrt Jhe sfales 1,

of stolen property, papers documents or records indicating comieetiqns tb`

co-conspirators to include but not limited to: phone bills, address books,'

electronic storage devices, electronic caller ID devices, cellular telephones

and their directories, and other items deemed pertinent by investigators

which are related to the possession, acquisition or sale of stolen property,

criminal tools and any items related to the possession or trafficking in illegal

drugs, including but not limited to, firearms or other weapons, US Currency,

papers, documents and records and other controlled substances.

Further, that said items are illegal to possess or represent evidence

necessary to the investigation of a crime and are concealed in a brown, two

story wood sided single family home, and any and all outbuildings and

curtilage, otherwise known as 7052 SR 669, Somerset, Clayton Township,

Perry County Ohio and attached property thereto, or concealed in vehicles,

outbuildings or on or about the persons which may be present at the location

to be searched.

The facts upon which such belief is based and intending to establish

the grounds for the issuance of this search warrant are:

During August 2005, the US Drug Enforcement

Administration encountered Santa Ysabel Oprandi,

hereinafter known as "Oprandi", at the Columbus Airport.

Oprandi had purchased a one way ticket out west and paid

with cash, During the encounter, agents requested a consent

to search Oprandi's luggage. The search revealed a large

sum of US currency totaling $8360.00. The agents

interviewed Oprandi who stated that the money was

company payroll funds belonging to a Newark, Ohio man.

The agents contacted the Newark, Ohio man, who denied any

of Oprandi's allegations. The agents seized the US currency

and released Oprandi. Oprandi never boarded her flight and

was picked up at the airport by a man from Hebron, Ohio.

Oprandi never contested the seizure of the currency nor did

she inquire of its disposition. The Federal Government

forfeited the US currency.

On October 17, 2005, the Perry County Sheriff's Office

conducted an investigation at the Oprandi residence located

at 7052, SR 669, Somerset, Clayton Township, Perry County

Ohio. During the investigation of an unrelated incident,

Deputies at the scene discovered what they believed to be a

large quantity of marijuana (approximately sixteen (16)

pounds). The deputies ceased their investigation and

requested consent to search from Oprandi which was later

granted. The continued search resulted in the discovery and

seizure of the (16) pounds of marijuana, methamphetamine,

drug paraphernalia, drug "cutting" agents, weighing scales

and a handgun. In addition to discovering the

aforementioned contraband, investigators discovered that the

entire house and property to include the driveway were

equipped with surveillance devices such as sensors and

cameras. The cameras were position to view all sides of the

residence and some were even located within the wooded

area. The cameras were wired into the home and connected

to a computer system. While the deputies were at the scene

several male Hispanics arrived in two separate vehicles, none

of which spoke English and later admitted to an interpreter

that they were all illegal aliens. None of the Hispanic

individuals could be positively identified and provided

residential addresses in the greater Kansas City, Missouri

area. One individual that was at the residence lied to

deputies about his identity and later advised them that "he

was scared of the "Mafia"; the Mexicans, that they would be

back to get him". Oprandi was unable to be located for

several months after this incident

3. On July 6, 2006 Deputy Brent Tysinger received a telephone

call from the property owner at 7052 SR 669, Somerset,

Clayton Township, Perry County, Ohio. The property owner

advised Deputy Tysinger that a few days prior, he went to

see Oprandi to collect his monthly land contract payments

from her, which she was in arrears. He stated that when he

arrived, there were numerous vehicles in the driveway and

described it in comparison to "a used car lot". He further

stated that Oprandi paid her back payments in full, in cash.

He advised that the payment amounted to a few thousand

dollars, and that this was how she usually paid.

4. On July 28, 2006, your affiant was contacted by Suzy

Primmer, Perry County Juvenile Court Probation, about drug

intelligence information. Primmer stated that a confidential

source, whose identity will not be disclosed for fear of

reprisal, indicated that Daren Moore from Crooksville, Perry

County, Ohio, was using methamphetamine and that he

obtained his methamphetamine from a residence on SR 669,

which was later determined to be the Oprandi residence

based upon directions and descriptions from the confidential

source.

5. On August 14, 2006 the Perry County Sheriff's Office was

contacted by the Columbus Ohio Division of Police, and

requested to assist in their investigation by making contact

with Oprandi. Deputy Kevin Gentzel, with assistance from

an OSP trooper and a New Lexington police officer went to

the residence located at 7052 SR 669, Somerset, Clayton

Township, Peny County, Ohio. During their time at the

Oprandi residence, the officers observed what they believed

to be electronic surveillance devices mounted on the house.

In addition they documented several of the vehicle

registration plates that were in the driveway. A check of the

registration numbers through the LEADS/NCIC computer

system indicated ownership of two of the vehicles to two

Hispanics, one male one female, both of Columbus, Ohio.

Further queries of local and state databases could not

produce positive identities of the individuals listed as owners

on the registrations.

6. On August 17, 2006, a man came to the Perry County

Sheriff's Office alleging information about the location of a

four wheeler that was stolen from him in Newark, Ohio in

April 2006. The man stated that a person (hereinafter known

as source) came and told him where the stolen four-wheeler

was located. The man advised your affiant that the source

who supplied this information wished to remain anonymous

for fear of reprisal. He stated that the source told him that

his four-wheeler was stolen then taken to a residence on SR

669 in Perry County to a Dominican lady and traded for

drugs. The source provided the complainant with directions

to the house which the complainant later followed directly to

7052 SR 669, Somerset, Clayton Township, Perry County,

Ohio. A copy of these directions was taken with the report

and confirmed to be consistent with directions to the Oprandi

residence. Detective Hawks asked the complainant to

contact the other individual who wished to remain

anonymous so that he could be spoken to directly. The

source later called Detective Hawks to provided information.

The source stated that he and another individual whose

identity he would not reveal, within the past four days, went

to the residence of a woman whom he only knows as "the

Dominican" for the purpose of purchasing a four-wheeler.

The source described "the Dominican" as being a female, of

possibly Hispanic descent, medium build, 5 feet 6 inches and

150 pounds, with shoulder length hair. The source stated

that the woman had three four-wheelers for sale and was

asking a price of $2000.00 each for them. The source stated

that they observed a Suzuki, Yamaha and Honda four-

wheelers on the property. The source stated that they

immediately recognized the Honda four-wheeler as being

one that belonged to the aforementioned victim. They stated

that it was the same make, model and condition as the

victims, and that one item; the rear grab bar behind the seat,

stood out as a unique characteristic consistent with that of the

victims four-wheeler. He described it

7. as a type of bar he had never seen on other four-wheelers.

Furthermore, during conversation with her, she advised the

two men that they should be careful where they take the four-

wheelers that they had been stolen from Newark. In addition

she told the men that they were stolen by two men named

Jessie Bricker and Brian McKnight had stolen the

motorcycles. The source was familiar with both men and

recently heard other information that McKnight and Bricker

had possibly been involved in the theft of the victim's four-

wheeler. The source stated that all three of the four-wheelers

were newer in age and condition and they were easily worth

between $5000.00 - $7000.00 each. The source was asked to

describe the residence. He stated that it was on SR 669, that

when you turn onto the driveway there are telephone poles

on both sides and a rusty colored gate at the end of the

driveway. He stated that the driveway was gravel and very

long back to the house. He could not accurately describe the

house as it was dark..

8. On August 17, 2006, your affiant contacted Detective Paul

Courtright with the Central Ohio Drug Enforcement Agency

in Newark, Ohio. Your affiant and Detective Courtright

have shared information about Oprandi in the past.

Detective Courtright indicated that his agency has repeatedly

received drug trafficking information about Oprandi over the

past two years. Detective Courtright advised that their

information indicates that Oprandi sells large quantities of

methamphetamine and actively conspires with Mexican

Nationals involved in the drug trade. Detective Courtright

advised that within the last week his agency had acquired a

confidential informant who supplied information that

Oprandi was trafficking large quantities of

methamphetamine which she acquires through Mexican

individuals, that she possesses weapons at her home on SR

669 and that she is also involved with a group currently

counterfeiting US currency.

Your affiant believes that the foregoing is consistent with activity

occurring at the residence of Santa Ysabel Oprandi, and that if a search of

the residence is conducted, investigators will discover stolen property,

proceeds from the sale of stolen property, evidence identifying and

connecting co-conspirators and controlled substances.

Your affiant has conducted criminal investigations involving

controlled substances for the past ten years and has had the occasion to

become involved in investigations involving criminal organizations at the

local, national and international levels. Your affiant from training and

experience is readily familiar with methods, behaviors and indicators

exhibited by persons who are involved in criminal activity. Your affiant is

familiar with and has participated in cases involving Mexican National drug

traffickers. Your affiant knows from experience that persons who traffic in

illegal narcotics and/or stolen property often carry large sums of currency on

or about their person or conceal it in homes or vehicles. Your affiant knows

from experience that persons who traffic in illegal narcotics often keep

weapons ready at hand to defend their illegal drug trade from rival drug

traffickers and law enforcement officers. Your affiant knows from training

and experience that persons involved in illegal activity often utilize

electronic surveillance devices to constantly monitor their surroundings and

detect law enforcement or rival drug traffickers, which enables them an

opportunity of escape, defense or evidence destruction.

Your affiant believes that the history of events and intelligence

information stated within this affidavit represent a pattern of continuing

criminal activity perpetrated by Santa Ysabel Oprandi and that the place to

be searched is being currently used to conduct the criminal activity of

housing and selling stolen property and drug trafficking.

Your affiant knows from training and experience that drug traffickers

often make expenditures utilizing cash to avoid detection of tax violations

and that they often courier large sums of monies to "source" cities to

purchase narcotics.

Your affiant knows from training and experience that Mexican

National criminal groups are known as sources of supply for controlled

substances and import controlled substances into and throughout the United

States.

Your affiant has verified that Santa Ysabel Oprandi resides at 7052

SR 669, Somerset, Clayton Township, Perry County Ohio by receiving

information from the property owner about her land contract ownership, and

Deputy Gentzel personally observed her at this residence on the night of

August 14, 2006.

Your affiant believes that there is urgent necessity to search for the

foregoing concealed items and/or property in the night time to prevent such

items and/or property from being concealed or removed, so as not to be

found, furthermore, due to circumstances where the events occurred after the

hours of 5:00 pm, and for your affiant to produce a search warrant and other

necessary issues to complete the investigation, the search would inevitably

be performed in the night time. Additionally a search conducted in the night

time would allow an element of surprise by the officers executing the search

warrant which will result in a safer execution of the warrant and detainment

of any individuals located at the residence.

Your affiant requests that the statutory precondition for non-

consensual entry be waived based upon the following:

1. Your affiant has provided information regarding

electronic surveillance devices.

DN T14E- C-Ot7KTY COURT, PERRY COUNTY, OHIO.. . '-, ,p ,.1

.

. ^DI U 1,1 l^1

SEARCH WARRANT

To: Deputy Lee Hawks and any law enforcement officer within the County

of Perry, State of Ohio:

WHEREAS, there has been filed before me an Affidavit, a copy of

which is attached hereto and marked as "Exhibit A", demonstrating probable

cause for a search to be made of a brown, tWo story wood sided single

family home, and any and all outbuildings and curtilage otherwise known as

7052 SR 669, Somerset, Clayton Township, Perry County Ohio, and any

persons and vehicles present at the place to be searched, all of which are

located at 7052 SR 669, Somerset, Clayton Township, Perry County Ohio.

The above property is located to the north side of SR 669, and has a mailbox

at the end of the driveway clearly marked with the numbers "7052". You

are hereby commanded to search for certain concealed items and/or

property, namely: Stolen property to wit;,four-wheeters, motorcycles or

other all terrain type vehicles, US currency or other..instruments of value

resulting from the sales of stolen property, papers documents or records

indicating connections to co-conspirators. to include but no"t limited to: phone

bills, address books, electronic storage deviews, electronic caller ID devices,

cellular telephones and their directo;ies, .and other items deemed pertinent by

investigators which are related to the possession, acquisition or sale of stolen

property, criminal.tools and any items related to the possession or trafficking

in illegal drugs, including but not limited to, firearms or other weapons, US

Currency, papers, documents and records and other controlled substances.

You are, therefore, conunanded to search the above premises for the

purpose described, serving a copy of this warrant and making the search

during the night time, and with waiver of the statutory precondition for non-

consensual entry being granted, within three (3) days from the issuance of

this Order, and if the property be found there, to seize it, leaving a copy of

this warrant and a receipt for the property seized and return this Warrant,

together with the inventory, to the undersigned.

Given under rimy hand this 18`{' day of August, 2006.

Judge Dean L. Wilson

IN THE COURT OF APPEALSFIFTH APPELLATE DISTRICT

PERRY COUNTY, OHIO

STATE OF OHIO

Plaintiff/Appellee

vs.

SANTA Y. OPRANDI

Defendant/Appellant

Wts % k0077itt:'1 Ct ittR9' L!c APMALSI'£RFiY COtYP'f 1, 0I310

+^^^ ^ ^ 6I

BR,qCx°PIi^'IO7FIY I. ^VIOLLEN

CASE NO. 07-CA-5

DECISION APPEALED FROM : COURT OF COMMON PLEAS, PERRY COUNTY, OHIOCASE NO.06-CR-0043DATE: March 27, 2007

BRIEF OF DEFENDANT/APPELLANTSANTA Y. OPRANDI

ATTORNEY FOR APPELLANTSCHNITTKE & SMITHSteven P. Schnittke (0025537)Attorney for Appellant/DefendantSanta Y. Oprandi114 S. High St., P.O. Box 536New Lexington, Ohio 43764(740) 342-2033Fax: (740) 342-5204

ATTORNEY FOR APPELLEEJoseph A. Flautt (0006472)Prosecuting AttorneyAttorney for Appellee/PlaintiffState of Ohio111 North High St., P.O. Box 569New Lexington, Ohio 43764(740) 342-4582

Rp cVEfVE ;^IN THE COURT OF COMMON PLEAS, PERRY COUNTY, ^OE^Y V`UrNlIY

The State of Ohio,2T7 PiAR 27 AFi P: 24

Plaintiff, Case No. 06-CR11D^ T4J^^'^OLLEP!B^?G^LEF1C OF '; 5JR TS

vs. . '.eAc:is

Santa Ysabel Oprandi, TERMINATION JUDGMENTENTRY

Defendant.

This day, March 20, 2007, came Joseph A. Flautt,

Prosecuting Attorriey of Perry County, O'tiio, on behalf o.'L

the State of Ohio, and also came the Defendant, Santa

Ysabel Oprandi, accompanied by her appointed counsel,

Mitchell C. Marczewski, for further proceedings upon the

pre-sentence investigation previously Ordered by this Court

on March 13, 2007, said pre-sentence reports having been

completed, filed and examined by the Court.

The Court advises the defendant pursuant to Section

2929.37 that she may be required to reimburse the

Southeastern Ohio Regional jail for the cost of

incarceration and that the cost of incarceration includes

the reception fee, the actual per da_v cost of

incarceration, the cost of medical and dental treatment,

the fee for random drug testing and the cost of any

property damage caused by the defendant during her

incarceration. The Court further advises the defendant

that a certificate of judgment will be entered for the

unpaid amount and that the certificate of judgmerrt will

become a part of the sentence imposed.

The Defendant was then asked if she had anything to

say why judgment should not be pronounced against her, and

having failed to show sufficient cause why judgment should

not be pronounced, the Court, having considered the

sentencing criteria contained in Section 2929.12 R.C.,

FINDS that sentence should be forthwith imposed.

It is, therefore, ORDERED, ADJUDGED and DECREED that

the Defendant, Santa Ysabel Oprandi, for the offense of

Possession of Cocaine, (Section 2925.11 (A) and (C)(4)(c)

R.C.), a felony of the third degree, as contained in the

second count of the indictment, be, and she hereby is,

sentenced to a definite term of three (3) years in a State

Penal Institution. Further, the defendant shall be fined

the sum of $2,000.00 and her driver's license are hereby

suspended for a period of five (5) years.

It is further ORDERED, ADJUDGED and DECREED that the

defendant, Santa Ysabel Oprandi, for the offense of

Possession of Cocaine, (Section 2925.11 (A) and (C)(4)(e)

R.C.), a felony of the first degree, as contained in the

third count of the indictment, be, and she hereby is,

sentenced to a definite term of six (6) years in a State

Penal Institution, said period of incarceration to be

served consecutive to the period of incarceration imposed

for Possession of Cocaine as contained in the second count

of the indictment. Further, the defendant shall be fined

the sum of $2,000.00 and her driver's license are hereby

suspended for a period of five (5) years.

It is further, ORDERED, ADJUDGED and DECREED that the

Defendant, Santa Ysabel Oprandi, for the offense of

Aggravated Possession of Drugs, (Section 2925.11 (A) and

(C)(1)(c) R.C.), a felony of the second degree, as

contained in the fourth count of the indictment, be, and

she hereby is, sentenced to a definite term of four (4)

years in a State Penal Institution, said period of

incarceration to be served consecutive with all other

periods of imprisonment. Further, the defendant shall be

fined the sum of $2,000.00 and her driver's license are

liereby suspended for a period of five (5) years.

It is further ORDERED, ADJUDGED and DECREED that the

defendant, Santa Ysabel Oprandi, for the Firearm

Specification, (Section 2941.141 R.C.), be, and she hereby

is, sentenced to a definite term of one (1) year in a State

Penal Institution, said period of incarceration shall be

served consecutive with all other periods of imprisonment.

The driver's license suspensions imposed herein shall

be served and run consecutive.

It is further ORDERED that the $1,350.00 in cash;

Ruger semi automatic pistol - Serial No. 308-48002; SKS

assault riffle - Serial No. 1814179 with magazine; 20 gauge

Mossberg 500A shotgun with pistol grip; Lincoln Continental

automobile - Vehicle Identification No. 1LNLM82F6LY661017;

Dodge Intrepid automobile - Vehicle Identification No.

2B3ED56F8RH121002; Lexus automobile - Vehicle Identification

Number JT8UK13TXN0039583; Chevrolet Monte Carlo - Vehicle

Identification Number 261WX12K539172716; Ford Grand Marquis

- Vehicle Identification Number 2MECM75F9LX612533; Fleetwood

recreational vehicle - Vehicle Identification Number

1EF1G2726Y2955675; Security System comprised of a Sanyo flat

screen television - serial no. BG200510916917, flat screen

monitor - serial no. 7550T1006740, JVC DVD player/recorder -

serial no. 1590473, HP computer system - serial no.

MXF61703C2, cameras, sensors and all other related equipment

be forfeited to the Perry County Sheriff's Office.

The Court has further notified the defendant that post

release control is required in this case up to a maximum of

five years, as well as the consequences of violating

conditions of post release control imposed by the Parole

Board under Section 2967.28 Revised Code, which includes

re-imprisonment for up to a maximum of one-half of my

originally stated term. As part of this sentence, the

defendant is ORDERED to serve any term of post release

control imposed by the Parole Board, and any prison term

imposed for violation of that post release control.

Further, it is ORDERED that the Defendant shall

receive credit for two hundred fifteen (-,215y days

previously served in the Southeastern Ohio Regional Jail

pursuant to this case through the date of sentencing.

. It is further ORDERED that the Defendant is remanded

to the Perry County Sheriff for conveyance to the

appropriate State Penal Institution.

It is further ORDERED that the Defendant pay the

costs of this prosecution, for which execution is hereby

awarded.

It is further ORDERED that the Clerk of this Court

prepare certified copies of the entries herein, and that he

furnish the same, together with a warrant therefore, to the

Sheriff of Perry County, Ohio, who shall cause said

Defendant to be delivered into the custody of the

Superintendent of the appropriate penal institution of the

State of Ohio witY:in the time provided by law.

Further, the defendant is not eligible for the IPP

(Intensive Program Prison).

APPROVED:

^ 3 -u-o7Mit ell C. MarczewskiAtforney for Defendant

CERTIFICATE OF SERVICE

I HEARBY CERTIFY THAT A COPY OF THE FOREGOING NOTICE OF APPEAL

OF APPELLANT HAS BEEN SERVED UPON CLERK OF COURTS SURPREME

COURT OF OHIO AT 2 .^6^p THIS fcf DAY OF r 2008,

G,̂

SIGANTURE

DEFENDANT-APPELLANT, IN PRO-SEE

I

IN THE COURT OF APPEALS FOR PERRY COUNTY,bHTOFIFTH APPELLATE DISTRICT

STATE OF OHIO

Plaintiff-Appellee

-vs-

SANTA Y. OPRANDI

Defendant-Appellant

JUDGMENT ENTRY

Case No. 07 CA 5

For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Perry County, Ohio, is affirmed.

Costs assessed to Appellant.

JUDGES

COURT OF APPEALSPERRY COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO

Plaintiff-Appellee

-vs-

SANTA Y. OPRANDI

CHARACTER OF PROCEEDING:

JUDGMENT:

DATE OF JUDGMENT ENTRY:

APPEARANCES:

For P(aintiff-Appe!!ee

JOSEPH A. FLAUTTPROSECUTING ATTORNEY111 North High StreetPost Office Box 569New Lexington, Ohio 43764

JUDGES:Hon. William B. Hoffman, P. J.Hon. John W. Wise, J.Hon. Julie A. Edwards, J.

Case No. 07 CA 5

Criminal Appeal from the Court of CommonPleas, Case No. 06 CR 43

Affirmed

1= o FDefenda nt-App'e115i?T

STEVEN P. SCHNITTKESCHNITTKE & SMITH114 South High StreetPost Office Box 536New Lexington, Ohio 43764

, ^arry County, Case No. 07 CA 5

Wise, J.

{¶1} Defendant-appellant Santa Y. Oprandi appeals his conviction and

sentence entered in the Perry County Court of Common Pleas on March 27, 2007.

{12} Appellee is the State of Ohio.

STATEMENT OF THE FACTS AND CASE

{13} On August 18, 2006, Deputy Lee Hawks of the Perry County Sheriff's

Office obtained a search warrant for the premises owned by Appellartt Santa Y.

14°

{114} The search warrant was issued by Judge Dean Wilson based upon an

affidavit executed by Deputy Hawks. The affidavit was attached to the search warrant

as "exhibit A." The search warrant permitted Deputy Hawks and other law enforcement

officers to search for two general categories of property.

{15} The first category dealt with stolen property and items related to the stolen

property. This portion of the search warrant is not now being challenged.

{16} The second category dealt with illegal drugs and permitted the officers to

search for ". . . items related to the possession or trafficking in illegal drugs, including

but not limited to, firearms or others weapons. US curre#t

{17} The affidavit contained a recitation of an incident involving Appellant at the

Columbus Airport in August, 2005. During the airport incident, the US Drug Enforcement

Administration seized $8,360.00 in cash from Appeliant as she was preparing to use a

one way ticket. The cash was seized.

erry County, Case No. 07 CA 5 3

{¶8} Neither Appellant nor anyone else ever attempted to recover the seized

cash. It was ultimately forfeited.

{19} The affidavit also detailed an incident which occurred at Appellant's

residence, the same residence searched pursuant to the search warrant in this case. In

October, 2005, while investigating an incident unrelated to illegal drugs, deputies found

approximately 16 pounds of marijuana, methamphetamine, drug "cutting" agents,

weighing scales, and a handgun within Appetlant's residene,e,,

of the house as well as security sensors.

{110} Additionally, the affidavit contained the following information: 1) that in

July, 2006, the owner of Appellant's property advised a local deputy that Appellant had

paid her back rent in cash. The payment amounted to a few thousand dollars in cash

and she usually made her payments to him in cash, 2) an informant of a local juvehile

probation officer advised the probation officer that an individual had recently purchased

methamphetamine from a residence later determined to be that of Appellant, 3) on

August 14, 2006, Deputy Gentzel was on the premises and observed what he believed

to be electronic surveillance devices mounted on thw;

sever I o :t < °uehi

and two of the vehicles belonged to two Hispanics from the Columbus area, and 5) that

the Central Ohio Drug Enforcement Task Force had current information that Appellant

was trafficking large quantities of methamphetamine and was involved in counterfeiting

US currency.

"erry County, Case No. 07 CA 5 4

{111} At the suppression hearing the juvenile probation officer, Sue Ann

Primmer, testified that she did not get a specific address or directions for the location

where the methamphetamine was being sold. (Tr. at p. 9). However, Deputy Hawks

testified that she advised him that the location was on the west end of St. Rt. 669. (Tr. p.

42). Based on other intelligence information he possessed, he determined the location

to be Appellant's residence. (Tr. p. 42).

{112

(C)(1)(c).

{114} Each drug count contained a gun specification pursuant to R.C.

§2941.141. The Indictment also sought to have the fo4lowin^ personal,pr^e.rt^F;Jc^tfeited

Upon,^.Necutin^ the ^ea^qh, Warran{ tf^e; c}^p^

methamphetamine.

{113} On August 31, 2006, the Perry County Grand Jury indicted Appellant on

one count of Receiving Stolen Property, in violation of R.C. §2913.51, one count of

Possession of Cocaine, in violation of R.C. §2925.11(A) and (C)(4)(c), one count of

Possession of Crack Cocaine, in violation of R.C. §2925.11(A) and (C)(4)(e), and one

count of Aggravated Possession of Drugs, in violation of R.C. §2925.11(A) and

{115} $1,350.00 cash; Ruger-semi automatic pistol - Serial Number 308-48002;

SKS Assault Rifle - Serial Number 1814179 with Magazine; 20 Gauge Mossberg 500

(A) shot gun with pistol grip; Lincoln Continental automobile; Dodge Intrepid automobile;

Lexus automobile; Chevrolet Monte Carlo automobile; Ford Grand Marquis automobile;

pufsiu n o;Ft^G^^292

ry County, Case No. 07 CA 5 5

Security system comprised of Sanyo flat screen television, JVC DVD player/recorder,

HP Computer system, cameras, sensors (serial numbers not included).

{116} Appellant was arraigned on September 1, 2006, and entered a plea of Not

Guilty to each charge.

{117} On September 13, 2006, Appellant filed her written Time Waiver in Open

Court.

{119} An oral hearing was held on Appellant's Motion to Suppress on December

5, 2006.

{¶20} The State of Ohio filed its Brief Contra to the Motion to Suppress on

December 14, 2006.

{1121} On December 18, 2006, the trial court filed its Entry denying Appellant's

Motion to Suppress and Dismiss. The case was set for Jury Trial on February 20, 2007.

{122} On December 20, 2006, Appellant filed a Request for Findings of Fact and

Conclusions of Law.

{1123} Pursuant to an Order dated December 21 , 2006,, the State and Appellant^ ^. .^_.

w+

of said Entry.

{124} On January 4, 2007, each side filed Findings of Facts and Conclusions of

Law. No Findings of Fact or Conclusions of Law were made by the Court.

6

{¶25} Appellate counsel informed the Court orally on January 4, 2007 and by

written Motion filed on January 24, 2007 that he had surgery scheduled for January 31,

2007, and sought either a continuance or permission to withdraw.

{126} On January 4, 2007, the Court appointed new counsel for Appellant.

{127} On February 2, 2007, a second Motion to Suppress was filed by trial

s

consecutive - $2,000.00 fine, 5 years license suspension to be imposed consecutive; 1

year for firearms specification to be served consecutive. The property listed above was

forfeited to the State of Ohio;

{¶32} The totality of the sentence was 13 years incarceration, $6,000.00 fines and

15 year license suspension. The Judgment Entry was filed on March 27, 2007.

counsel.

{1128} On February 5, 2007, ;he trial caurt

served consecutive, $2,000.00 fine, 5 years license suspensiort to , 0,. $etved

of said trial, Appellant was acquitted of the Charge of Receiving Stolen Property in

violation of R.C. §2913.51 pursuant to a Crim.R. 29 Motion of Acquittal of the

Defendant. (T. at 200). Appellant was found guilty by the Jury on the three remaining

charges with one gun specification. Forfeiture of the personal property listed above was

also awarded.

{130} On March 20, 2007, Appellant was sentenced by the Court as follows:

{131} Possession of Cocaine - Felony 3 - 3 years, $2,000.00 fine, 5 years

Operator's License suspension; Possession of Crack Cocaine - Felony 1 - 6 years, to be

7

{¶33} On April 3, 2007, Appellant filed her Notice of Appeal, and now raises the

following assignments of error on appeal:

ASSIGNMENTS OF ERROR

{134} "I. THE TRIAL COURT ERRED IN DENYING THE MOTION OF

DEFENDANT APPELLANT TO SUPPRESS IN THAT THE SEARCH WARRANT DID

NOT WITH PARTICULARITY DESCRIBE THE ITEMS TO BE SEIZED.

{135} "II. THE TRIAL COURT COMMITTED FRRC7R N

1.

{136} Appellant, in his first assignment of error, argues that the trial court erred

in denying his motion to suppress. We disagree.

{137} There are three methods of chailenging on appeal a trial court's ruling on a

motion to suppress. First, an appellant may challenge the trial court's finding of fact.

Second, an appellant may argue the trial court failed to apply the appropriate test or

correct law to the findings of fact. Finally, an appellant may argue the trial court has

incorrectly decided the ultimate or final issue raised in the motion to suppress. When

reviewing this type of claim, an appellate court must independently determine,.without

EGe1a

standard in the given case. State v. Curry (1994), 95 Ohio App.3d 93, 96; State v.

Claytor (1993), 85 Ohio App.3d 623, 627; State v. Guysinger (1993), 86 Ohio App.3d

592.

{138} In the instant appeal, appellant's challenge of the trial court's ruling on his

motion to suppress is based on the third method. Accordingly, this Court must

8

independently determine, without deference to the trial court's conclusion, whether the

facts meet the appropriate legal standard in this case.

{¶39) Appellant specifically challenges the trial court's finding that the search

warrant was valid.

(140) The right to be free from unreasonable searches and seizures is

guaranteed by the Fourth Amendment to the United States Constitution, which provides

that no warrant shall issue but upon probable cause. When

up

to determine whether the issuing judge had a substantial basis to conclude that

probable cause existed. State v. George (1989), 45 Ohio St.3d 325, 544 N.E.2d 640 ¶

2, of the syllabus, following Illinois v. Gates (1983), 462 U.S. 213, 238-239, 76 L.Ed.2d

527, 103 S.Ct. 2317.

(141) The appellate court is not charged with a de novo review of the sufficiency

of information set forth to obtain the warrant. In making the determination of whether

there was a substantial basis to conclude that probable cause existed, the reviewing

court must "make a practical, commonsense decision whether given all the

circumstances set forth in the affidavit before him, including the 'veracity' and 'basis of

contraband or evidence of a crime will be found in a particular place." Id. at paragraph 1

of the syllabus.

(142) Pursuant to the exclusionary rule, all evidence obtained by searches

and.seizures in violation of the Constitution is, by that same authority, inadmissible in a

state court." Mapp v. Ohio (1961), 367 U.S. 643, 655, 81 S.Ct. 1684, 1691, 6 L.Ed.2d

^k`iloWledg. . p.

9

1081. Pursuant to the "good faith exception" to the exclusionary rule, however, evidence

should not be suppressed when it is obtained by a reasonably well-trained police officer

acting in objectively reasonable good faith reliance on a search warrant subsequently

found deficient. United States v. Leon ( 1984), 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d

677.

{¶43} R.C. §2933.23 states in pertinent part:

{144} "A search warrant shall not be issued until there. is filed with the judge or

describes the person to be searched, and names or describes the property to be

searched for and seized; that states substantially the offense in relation to the property

and that the affiant believes and has good cause to believe that the property is

concealed at the place or on the person; and that states the facts upon which the

affiant's belief is based. The judge or magistrate may demand other and further

evidence before issuing the warrant. If the judge or magistrate is satisfied that grounds

for the issuance of the warrant exist or that there is probable cause to believe that they

exist, he shall issue the warrant, identifying in it the property and naming or describing

the person or place to be searched ." (Emphasis added.) See, also, Crim.R. 41(C),

search warrant, a trial court is confined to the four corners of the affidavit and any

recorded testimony made part of the affidavit pursuant to Crim.R. 41(C). See, State v.

Wesse/er (Feb. 17, 1998), Butler App. No. CA96-07-131, and Crim.R. 41(C). However,

in determining whether the good faith exception to the exclusionary rule applies,

numerous courts have held a trial court may look beyond the four corners of the affidavit

ftW

10

and consider unrecorded oral testimony to determine whether the officer executing the

search warrant did so in good faith reliance on the judge or magistrate's issuance of the

search warrant. See, Wesseter, supra; Moya v. State (1998), 335 Ark. 193, 202, 981

S.W.2d 521, 525-526, cited in Katz, Ohio Arrest, Search and Seizure, (2002 Ed.) 151,

Section 8.2, fn. 2, and United States v. Curry (C.A.8, 1990), 911 F.2d 72, 78 (cited in

Moya). The principle in cases like Wesseler, Moya, and Curry is consistent with the

statement in Leon that "all of the circumstances" may be con§iderecf in deterrnUiirQ

reson W f= `a

illegal despite the magistrate's authorization. Leon, 468 U.S. at 922-923, fn. 23.

{146} Even if we were to determine the search warrant was not supported by

probable cause, we find the trial court did not err in denying appellant's motion to

suppress under the "good faith exception" to the exclusionary rule set forth in United

States v. Leon (1984), 468 U.S. 897, as adopted by the Ohio Supreme Court in State v.

Wilmoth (1986), 22 Ohio St.3d 251. Under the "good faith exception," the exclusionary

rule should not be applied so as to bar the use in the prosecution's case-in-chief of

evidence obtained by officers acting in objectively reasonable reliance on a search

warrant issued by a detached and neutral magistrate but ultimately found to be

{147} However, even under the "good faith exception," suppression of evidence

is appropriate where any of the following occurs:

{148} "(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

uf5sitpportecl^tiyAj^o^0e164109."

Leon, supra at 918-23, 926.

11

reckless disregard of the truth * * *; (2) * * * the issuing magistrate wholly abandoned his

judicial role * * *; (3) an officer purports to rely upon * * * a warrant based upon 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."

instant case are the first and third.

{150} Appellant argues that Deputy Hawks misrepresented the information

which he received from Probation Officer Primmer.

{151} However, upon review of the affidavit submitted in support of the search

warrant, and the testimony at the suppression hearing by Deputy Hawks and P.O

Primmer, we find the information in the affidavit was not inconsistent.

{1[52} Additionally, Appellant also seems to be arguing that the warrant was so

facially deficient that the executing officers cannot reasonably presume it to be valid.

{153} In the case sub judice, the search warrant and supporting affidavit

particul2rly deseribe fhe=pla

describe with sufficient particularity the property and things to be seized. Describing the

property and things to be seized, both the warrant stated, ". . . items related to the

possession or trafficking in illegal drugs, including but not limited to, firearms or others

weapons, US currency, papers, documents and records and other controlled

substances."

erry County, Case No. 07 CA 5 12

{754} As set forth above, the affidavit detailed a prior search of Appellant's

residence, unrelated to illegal drugs, wherein deputies found approximately 16 pounds

of marijuana, methamphetamine, drug "cutting" agents, weighing scales, and a handgun

within the Appellant's residence. Additionally, security system was also found at her

residence which included cameras positioned to view all sides of the house as well as

security sensors. Said affidavit also contained the following information: 1) that in July,

2006, the owner of Appellant's property advised a local deputy that Appellant had paid

she usually made her payments to him in cash, 2) an informant of a local juvenile

probation officer advised the probation officer that an individual had recently purchased

methamphetamine from a residence later determined to be that of Appellant, 3) on

August 14, 2006, Deputy Gentzel was on the premises and observed what he believed

to be electronic surveillance devices mounted on the house, 4) on August 14, 2006,

several of the vehicles on the premises could not be identified through State databases

and two of the vehicles belonged to two Hispanics from the Columbus area, and 5) that

the Central Ohio Drug Enforcement Task Force had current information that Appellant

was trafficking large quantities of methamphetamine and was involved in counterfeiting

{155} Based on the foregoing, we do not find the warrant/affidavit to be so

facially deficient that the executing officers could not reasonably presume it to be valid.

{156} We therefore find that the trial court did not err in denying Appellant's

motion to suppress evidence based on an invalid search warrant.

US currenqy< ^-•-,

erry County, Case No. 07 CA 5 13

II.

(¶57) In Appellant's second assignment of error, Appellant argues that the trial

court erred by not including findings of fact on the record when it denied the motion to

suppress. We disagree.

{758} Appellant claims that Crim.R. 12(F) requires the trial court to state its

findings of fact on the record when denying a motion to suppress.

{159} Crim.R. 12(F) provides that the trial court "may adjudicate a motion based

appropriate means." The rule also states that "where factual issues are involved in

determining a motion, the court shall state its essential findings on the record." !d. The

trial court must, upon request, state essential findings of fact so the reviewing court can

properly consider the propriety of the trial court's ruling. Bryan v. Knapp (1986), 21 Ohio

St.3d 64, 65, 488 N.E.2d 142; see also State v. Almalik (1986), 31 Ohio App.3d 33, 507

N.E.2d 1168. However, where the record provides a sufficient basis for appellate

review, the courts have excused the trial court's failure to make findings. State v. King

(1999), 136 Ohio App.3d 377, 381, 736 N.E.2d 921.

{160} Upon review of the record in the instant case, we find that the trial court

did file findings of -fact ancf cQnct^l^iqnsrt nf^;ta^nr^in^its`^^tr^r^ufi

therefore find Appellant's second assignment of error not well-taken.

erry County, Case No. 07 CA 5

{¶61} Appellant's second assignment of error is overruled.

{¶62} For the foregoing reasons, the judgment of the Court of Common Pleas of

Perry County, Ohio, is affirmed.

By: Wise, J.

Edwards, J., concurs.

Hoffman, P. J., concurs separately.

JWW/d 1218

JUDGES

Perry County, Case No. 07 CA 5

Hoffman, P.J., concurring

{163} I fully concur in the majority's analysis and disposition of Appellant's

first assignment of error.

{¶64} I further concur in the majority's disposition of Appellant's second

assignment of error. However I am not persuaded our ability to review the record

excuses the trial court from making the requisite findings when timely requested

and when factual issues are in dispute.

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