COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 61087 : : IN THE MATTER OF: : DONALD BELCHER : : Appellant : : JOURNAL ENTRY : AND : OPINION : : : DATE OF ANNOUNCEMENT OF DECISION: SEPTEMBER 24, 1992 CHARACTER OF PROCEEDING: Civil appeal from Cuyahoga County Common Pleas Court, Juvenile Division Case No. 9011798 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Appellant: For Appellee: KENNETH A. BOSSIN STEPHANIE TUBBS JONES, Cuyahoga 55 Public Square, #1400 County Prosecuting Attorney Cleveland, Ohio 44113 GARY DeROCCO, Assistant Prosecuting Attorney Justice Center, Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 -2- KRUPANSKY, J.: Appellant Donald Belcher, age seventeen, was charged with delinquency for two violations of R.C. 2925.03(A)(3), aggravated trafficking, cocaine. Appellant filed a motion to suppress evidence in the trial court. Following a hearing by a referee on appellant's motion, the referee recommended denial of the motion. Subsequently, the trial court overruled appellant's objections to the referee's recommendation and denied appellant's motion to suppress evidence. Appellant thereafter pleaded no contest to one amended charge, viz., violation of R.C. 2925.11, possession of cocaine; the remaining charge was nolled by the state. Appellant was then adjudged delinquent by the trial court. Appellant now appeals the trial court's denial of his motion to suppress evidence. The following relevant facts were elicited at the hearing on appellant's motion. Det. Kime of the narcotics unit of the Cleveland Police Department testified that the narcotics unit had received numer- ous complaints of drug activity at 839 East 141st Street. 1 Consequently, on August 22, 1990 , he and his partner, Det. Roper, conducted a periodic surveillance of the residence. During this surveillance, the officers observed "heavy traffic" of short duration "in and out of the house," which led them to 2 believe the residence might be a "crack house." Det. Kime 1 Although not mentioned specifically, this date can be inferred from Det. Kime's testimony. 2 The state, appellee herein, defines a "crack house" as a place "where there is crack cocaine." -3- testified that on August 24, 1990, he and Det. Roper met with a reliable confidential informant in order to conduct a "controlled buy" at the residence. Det. Kime then testified to the following facts: (1) the informant was first checked for drugs or money, given $50 and then driven in an undercover police car to 839 East 141st Street; (2) the informant exited the car and was observed going into the residence; (3) the informant emerged from the residence a few minutes later and re-entered the police car; (4) the informant gave Det. Kime $10 and a rock of suspected crack cocaine which the informant said had been purchased for $40 from "Don"; (5) the informant was rechecked for drugs or money and then "dropped off" at a "neutral" location; and (6) the suspected cocaine was taken to the department's S.I.U. laboratory and "tested positive for cocaine, point 16 grams." Det. Kime testified that at that point he caused a county search warrant to be drawn up for a search of the residence at 839 East 141st Street. After having the warrant reviewed by the county prosecutor's office, Det. Kime on August 27, 1990 took it to a judge of the Cuyahoga County Court of Common Pleas. In pertinent part, the sworn affidavit submitted in support of the warrant application, signed by Det. Kime, stated that Det. Kime was a nine-year veteran of the police department with expertise in the area of drug-related crimes and that he had probable cause to believe there was kept at the premises at 839 East 141st Street the following: "[c]ocaine..., and other narcotic drugs and/or ... contraband including ...money, guns, scales, plastic -4- bags ... and all other evidence of the violation of ... 2925.03 and 2925.11 of the Ohio Revised Code et seq." The affidavit further stated in pertinent part as follows: The facts upon which affiant basis [sic] such belief are as follows: 1. During the past (4) four weeks affiant has received telephone complaints from un-named citizens regarding illegal drug sales activi- ty from the above described premises. 2. During the past seventy-two (72) hours affi- ant conducted periodic surveillance of the premises during which times persons were observed to enter the premises, staying for less than one (1) minute to five (5) minutes, then leaving. 3. Whithin [sic] the past seventy-two hours, affiant met with a confidential informant at a pre-determined location where the CI was searched and found to be free of drugs or money. The CI was issued an amount of US currency, the serial numbers of which had been recorded. CI was driven to the vicinty [sic] of the above described premises and was observed by the affiant to enter the de- scribed premises through the front door. 4. CI exited a short time later and returned to the undercover vehicle. CI handed affiant 3- milky white in color rocks about the size of a pencil eraser suspected to be crack cocaine later returned and analyzed by the Cleveland Police Scientific Unit and found to contain cocaine 0.16 grams, a controlled substance. CI was again searched and found to be free of any other drugs or money. 5. During the last eighteen (18) months said informant has provided information leading to fortyfive [sic] (45) narcotic related arrests and other information involving premises used to sell narcotics. 6. Due to the above determined facts, affiant believes that there is probable cause to believe persons at the above location are and -5- have been engaged in narcotics trafficking on a continuing basis in the day and night season. 7. In the affiants [sic] experience, narcotic drugs are frequently carried or concealed on the persons of the people who are present at a location where drugs are being used, kept or sold and that the size of usable quanti- ties of drugs are small making it easy to conceal on the person. (Emphasis added.) The search warrant was signed by the judge on August 27, 1990. Det. Kime testified that the warrant was executed by himself and other members of the department on the morning of August 29, 1990. He testified he went to the rear of the house while other officers went in the front. He stated he "secured all the males that were in the rear area and the car..., found large amounts of money, and I, then, went inside the house and began my search." Det. Kime further testified that he observed appellant inside the house and was told appellant resided there. Det. Kime testified he told appellant the police were there to execute a search warrant, informed appellant of his rights, and asked appellant "if there was [sic] any large amount of money, any contraband or any weapons inside the house." Appellant stated to Det. Kime he had money in his coat pocket in his bedroom and indicated the room. Det. Kime testified he searched the bedroom and found the following items: (1) $970 in appellant's coat pocket; (2) two plastic bags with white residue powder inside, and (3) four rocks of suspected crack cocaine. He further testified other officers found weapons and more suspected drugs during the search. -6- On cross-examination, Det. Kime made the following admis- sions: (1) on August 24, 1990, he saw the informant approach appellant's residence and saw him later exit; however, because Det. Kime had to occasionally "duck down" from view in the undercover car, he did not actually see the informant enter the front door but he did see the informant come out of the house; (2) after the buy, the informant handed him only one rock of crack cocaine which weighed .16 grams; (3) the return on the inventory taken of the property seized at appellant's residence was not made "promptly"; and (4) appellant's copy of the invento- ry lacked two things which appeared on the copy filed with the court, viz., one inventory officer's signature and the time the inventory was completed. Det. Kime's partner, Det. Roper, also testified at the hearing on appellant's motion to suppress evidence. Det. Roper's testimony corroborated that of Det. Kime regarding the citizen complaints about appellant's residence received by the narcotics unit, the surveillance of the residence, and the details of arranging the "controlled buy" at appellant's residence. Det. Roper's direct testimony concerning the buy was in pertinent part as follows: Q. What did you watch him [the informant] do from the moment he left your car? A. Walked across the street, went to the front door, nobody came to the front door; went to the back door, nobody came to the back door; came back to the front door. The front door was open -- -7- Q. Let me stop you. How do you know nobody came to the back door? A. I don't know if anybody came to the back door, but I was assuming nobody -- Q. What did his actions indicate to you? A. That nobody answered. Q. Then, what happened? A. Then, the confidential informant went to the front door. Then, again, then somebody came to the front door. Q. Were you observing the confidential informant all the time? A. Yes, except when he walked around the side of the house, I couldn't see. Q. Okay. The person that came to the front door, was that a man or woman? A. It was a male. Q. Is that male in the courtroom today? A. Yes, he is. Furthermore, Det. Roper stated the informant was known by him to be "very reliable" and purchased the rock of crack cocaine from "Don." Appellant presented the testimony of his mother at the hearing on his motion to suppress evidence. Mrs. Belcher stated her son was not at home on August 24, 1990. Following the hearing, the referee's report stated in his "findings and recommendations" in pertinent part as follows: Prosecution testimony established that the search warrant was based on (a) citizen complaints of drug activity at the residence, (b) periodic -8- surveillance over a 2 week period, (c) a con- trolled buy made using a confidential informant. Defense counsel's challenge centered on the controlled buy. * * * Defense counsel did demonstrate on cross- examination that contrary to the second sentence of paragraph 3 of the affidavit for the search warrant, the affiant detective did not actually personally see the informant enter the premises through the front door.... However, affiant's partner did witness the informant enter the front door. It is true that ... he was briefly out of the officers' sight.... It is equally true that this informant has proved to be highly reliable. * * * In light of what actually occurred, neither the manner in which the buy occurred nor the officer's inadvertent mis-statement in paragraph three of the affidavit are material nor sufficient to prejudice or invalidate the issuing of the warrant. The referee also addressed the questions surrounding the inventory and came to the following conclusions: Det. Kime's explanation of the discrepency [sic] in exhibits is satisfactory and sufficient. It is also clear that the signature of Det. Sgt. Mayer in place of Det. Kime as inventory officer is a technical error insufficient to prejudice or invalidate the inventory. For all of the above reasons Defense motion to suppress the evidence is denied. Thereafter, the trial court overruled appellant's objections to the report of the referee. At that time, the state moved to nolle the second count and to amend the first count in the com- -9- plaint against appellant to that of violation of R.C. 2925.11, possession of drug of abuse. The trial court then heard the summary of the state's evidence. Appellant thereupon entered a plea of no contest to the amended complaint. The trial court granted the state's motion, accepted appellant's plea, and adjudged appellant delinquent. The trial court committed appellant to the Ohio Department of Youth Services for six months; however, appellant's sentence was suspended and he was placed upon conditional probation. Appellant thereafter filed a timely notice of appeal to this court and cites the following as his sole assignment of error: THE TRIAL COURT ERRED IN FAILING TO SUPPRESS EVIDENCE OBTAINED FROM A SEARCH WHERE IT WAS UNEQUIVOCALLY DEMONSTRATED THAT THE AFFIANT IN SUPPORT OF THE WARRANT CONTAINED MATERIAL MISREP- RESENTATIONS, WHICH IF DELETED FROM THE AFFIDAVIT, THE REMAINING AVERMENTS WOULD FAIL TO DEMONSTRATE PROBABLE CAUSE For THE WARRANT. This assignment of error lacks merit. Appellant argues his motion to suppress evidence was improp- erly denied because Det. Kime gave false testimony in his affida- vit. Appellant contends that without such testimony there was insufficient probable cause to issue the search warrant. Appel- lant relies upon the case of Franks v. Delaware (1978), 438 U.S. 154, in support of his argument; however, his argument remains unpersuasive. In Franks, supra, the United States Supreme Court held that evidence obtained as a result of the execution of a search warrant must be excluded if the warrant was based upon an affida- -10- vit containing deliberate misstatements of fact if those mis- statements are essential to the determination of probable cause to search. The court thus also added the caveat that if the material that is the subject of the alleged falsity is set aside and "what is left is sufficient to sustain probable cause, the inaccuracies are irrelevant." Franks, supra, at footnote 8 (emphasis added). In Illinois v. Gates (1983), 462 U.S. 213, the Supreme Court expanded further on its interpretation of the probable cause standard for an affidavit submitted in support of an application for a search warrant. Therein, the court decided the proper analysis to be used to determine whether probable cause exists for the issuance of a search warrant is one of "the totality of the circumstances." Furthermore, in United States v. Leon (1984), 468 U.S. 897, the Supreme Court set forth a "good faith" exception to the exclusionary rule in cases where the police have seized evidence in reliance upon a "defective" search warrant, i.e., a search warrant later determined to be unsupported by probable cause. In the case sub judice, appellant urges this court to reverse the trial court's decision to deny his motion to suppress because Det. Kime "deliberately lied" in his affidavit in two instances, viz., (1) that he personally saw the confidential informant enter appellant's house prior to the "controlled buy," and (2) that following the "controlled buy" the informant handed him three rocks suspected to be crack cocaine. It is appellant's -11- position that these misstatements constituted the "probable cause" upon which the search warrant was based. In support of his position, appellant also asserts that the totality of Det. Kime's testimony at the hearing indicates his credibility is 3 suspect. This court, however, does not agree with appellant's analysis. Regarding the same issue as the one presented in the case sub judice, the Ohio Supreme Court has reviewed the relevant law as set forth by the United States Supreme Court and has stated as follows: 1. In determining the sufficiency of probable cause in an affidavit submitted in support of a search warrant, "[t]he task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the 'veracity' and 'basis of knowledge' of persons supplying hearsay information, there is a fair proba- bility that contraband or evidence of a crime will be found in a particular place." (Illi- nois v. Gates [1983], 462 U.S. 213, 238-239, followed.) 2. In reviewing the sufficiency of probable cause in an affidavit submitted in support of a search warrant issued by a magistrate, 3 Regarding the inventory made during the search of appel- lant's residence, appellant argues at length concerning Det. Kime's failure to comply with all the requirements of Crim. R. 41(D). However, the referee properly determined that this was not relevant to the issue of the validity of the search warrant, nor did it necessarily render the items seized inadmissible. Ware v. Richey (1983), 14 Ohio App. 3d 2. Furthermore, the referee determined Det. Kime's explanation regarding the discrep- ancy was "satisfactory." Since the credibility of the witnesses is primarily for the trier of fact, this court declines to further address appellant's arguments about Det. Kime's credibil- ity in this regard. State v. DeHass (1967),10 Ohio St. 2d 230. -12- neither a trial court nor an appellate court should substitute its judgment for that of a magistrate by conducting a de novo determina- tion as to whether the affidavit contains sufficient probable cause upon which that court would issue the search warrant. Rath- er, the duty of a reviewing court is simply to ensure that the magistrate had a substan- tial basis for concluding that probable cause existed. In conducting any after-the-fact scrutiny of an affidavit submitted in support of a search warrant, trial and appellate courts should accord great deference to the magistrate's determination of probable cause, and doubtful or marginal cases in this area should be resolved in favor of upholding the warrant. (Illinois v. Gates [1983], 462 U.S. 213, followed.) State v. George (1989), 45 Ohio St. 325, paragraphs one and two of the syllabus (emphasis added). The referee in the case sub judice applied the standard as enunciated in State v. George, supra. The referee determined that in view of both detectives' testimony, the citizens com- plaints, the surveillance, the proven reliability of the infor- mant, and the fact that a "controlled buy" had taken place, there was substantial basis for the issuance of the search warrant. Thus, the referee analyzed the evidence and properly applied the law to the facts established at the hearing. State v. George, supra. See,also, State v. Booker (1989), 63 Ohio App. 3d 459; State v. Morgan (1988), 55 Ohio App. 3d 182; State v. Freeman (1986), 32 Ohio App. 3d 42. In State v. Hunt (1984), 22 Ohio App. 3d 43, this court stated the following: [T]he deliberate falsehoods and/or reckless misstatements must be material to the finding of -13- probable cause in order to invalidate a search warrant. In this case, the challenged statements *** were mere surplusage and immaterial since probable cause still existed for the issuance of a search warrant for marijuana and instruments used in the sale of marijuana even absent the statements in question. Certainly, the observation of a con- trolled purchase of marijuana on a resident's porch by an experienced police officer where the seller enters the home and returns with a bag of marijuana is sufficient cause to establish proba- ble cause to search the residence. This informa- tion is further supported by the observations of the affiant and other police officers surveilling the premises for the two preceding weeks. (Empha- sis added.) Similarly, in the case sub judice, it was established that since both Det. Kime and Det. Roper were involved in conducting and observing the "controlled buy," the fact that Det. Kime did not make the personal observation of the informant entering appellant's residence, rather Det. Roper did, was a "mere sur- plusage." The relevant fact was that the controlled buy was observed by an "experienced police officer." State v. Hunt, supra. Moreover, it was also established that the weight of the crack cocaine purchased by the informant was .16 grams. There- fore, the number of rocks presented to Det. Kime, i.e., one instead of three, was also "mere surplusage." State v. Morgan, supra. Furthermore, it has been stated that "in assessing an affi- davit's legal sufficiency, an appellate court may draw reason- able, common sense inferences from the allegations contained therein." State v. Bean (1983), 13 Ohio App. 3d 69. In the case -14- sub judice, it is reasonable to assume, as the referee did, that (1) the officers had received complaints about the residence, (2) the officers observed activity indicative of drug activity at the residence, and (3) the informant entered appellant's house and purchased crack cocaine there. Under the totality of the circum- stances, this constituted a sufficient basis to support the magistrate's conclusion that probable cause existed to search appellant's residence for evidence of contraband. Illinois v. Gates, supra; State v. George, supra. Therefore, the trial court did not err in overruling appel- lant's objections to the report of the referee, thereby denying appellant's motion to suppress evidence. Accordingly, appel- lant's sole assignment of error is overruled. The judgment of the trial court is affirmed. -15- It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Juvenile Court to carry this judgment into execu- tion. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rule of Appellate Procedure. ANN DYKE, P.J., and ANN McMANAMON, J., CONCUR ______________________________ BLANCHE KRUPANSKY, JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .