COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68161 STATE OF OHIO : : : : JOURNAL ENTRY Plaintiff-Appellee : : AND vs. : : OPINION CHRISTOPHER TOMKO : : : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: AUGUST 24, 1995 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-311769 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor MARK J. MAHONEY, Assistant The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: ELMER A. GIULIANI DANIEL A. McGOWAN The Leader Building #410 526 Superior Avenue Cleveland, Ohio 44114 - 2 - O'DONNELL, J.: Appellant Christopher J. Tomko appeals his conviction for having a weapon while under disability in violation of R.C. 2923.13, which arose from his previous convictions for burglary in 1979 and felonious assault in 1986. Based on the affidavit of Detective Christopher L. Valley of the Bedford Police Department, the Bedford Municipal Court issued a search warrant for the residence of Christopher J. Tomko located at 22 East Monroe Street in Bedford, Ohio. During the search of appellant's residence, police found, inter alia, a 12 gauge Remington pump shotgun, a Smith and Wesson .22 caliber weapon, a Browning 9 millimeter Luger, and a Colt Combat Commander .45 caliber weapon, which formed the basis for the indictment in this case. On August 24, 1994, appellant filed a motion to suppress evidence in Common Pleas Court, alleging that the affidavit to obtain the search warrant did not provide the issuing judge with a substantial basis to find that probable cause existed to issue the warrant. After hearing, the trial judge overruled the motion to suppress and thereafter, appellant plead no contest to the indictment. The trial judge made a finding of guilt, sentenced appellant to a term of one and one-half to five years, and imposed a $1000.00 fine. Appellant received a stay of execution of sentence and now presents one error for our review. - 3 - I. THE TRIAL COURT ERRED IN OVERRULING THE DEFENDANT- APPELLANT'S MOTION TO SUPPRESS EVIDENCE SEIZED IN VIOLATION OF THE DEFENDANT-APPELLANT'S CONSTITUTIONAL RIGHTS UNDER THE OHIO AND FEDERAL CONSTITUTION PURSUANT TO A SEARCH WARRANT BASED ON AN AFFIDAVIT FAILING TO SET FORTH A SUBSTANTIAL BASIS FOR THE ISSUING MAGISTRATE TO HAVE CONCLUDED FROM THE TOTALITY OF THE CIRCUMSTANCES THAT PROBABLE CAUSE EXISTED. Appellant argues the trial court erred in overruling his motion to suppress evidence because the supporting affidavit did not provide a substantial basis for the issuing judge to find probable cause for issuance of the warrant. The State believes the trial court properly overruled appellant's motion to suppress evidence because the issuing judge had a substantial basis for concluding that probable cause existed to issue the warrant. The issue for this court, then, is whether the trial court erred in overruling appellant's motion to suppress evidence. We begin our analysis with Crim. R. 41(C), which provides, in relevant part: " *** A warrant shall issue *** only on an affidavit *** sworn to before a judge of a court of record and establishing the grounds for issuing the warrant. The affidavit shall name or describe the 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. If the judge is satisfied that probable cause for the search exists, he shall issue a warrant identifying the property and naming or describing the person or place to be searched. The finding of probable cause may be based on hearsay in whole or in part, provided there is a substantial basis for believing the source of the - 4 - hearsay to be credible and for believing that there is a factual basis for the information furnished. *** " (Emphasis added) The Ohio Supreme Court stated, in State v. George (1989), 45 Ohio St.3d 325, at paragraphs one and two of the syllabus: "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 probability that contraband or evidence of a crime will be found in a particular place." (Illinois v. Gates [1983], 462 U.S. 213, 238-239, followed.) "In reviewing the sufficiency of probable cause in an affidavit submitted in support of a search warrant issued by a magistrate, neither a trial court nor an appellate court should substitute its judgment for that of the magistrate by conducting a de novo determination as to whether the affidavit contains sufficient probable cause upon which that court would issue the search warrant. Rather, the duty of a reviewing court is simply to ensure that the magistrate had a substantial 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 afford 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.) (Emphasis added) Further, the Supreme Court stated, in State v. Graddy (1978), 55 Ohio St.2d 132, at 136: "*** even if there is an absence in the affidavit of details as to how the informant secured his information, the affidavit could still be sufficient if the criminal activity is detailed enough so that the magistrate could infer the information is based on first-hand information rather then gossip or rumor." (Emphasis added) - 5 - The Graddy court went on to state at pages 139-140: "*** a common and acceptable basis for the informant's information is his personal observation of the fact or events described to the affiant ***." (Emphasis added) In this case, a reliable, confidential informant provided the information for Detective Christopher L. Valley's affidavit to obtain the search warrant. The affidavit described with particularity the weapons to be found at appellant's home, and also described the places to be searched. According to Crim.R. 41(C), the trial judge's finding of probable cause may be based on hearsay if the source is credible and a factual basis for the information furnished exists. Here, the information was provided to Detective Valley by a confidential, reliable informant who had seen the weapons on previous occasions at appellant's home. This is sufficient information for a trial judge to make a finding of probable cause and to issue a search warrant. At the hearing on the motion to suppress held in Common Pleas Court, the judge conducted a full hearing and independently reviewed the facts and case law as directed by State v. George, supra. The duty of this court is to ensure that at the time of signing the search warrant, the court had a substantial basis for concluding that probable cause existed. Based on our review of the record, we conclude the issuing judge did have a substantial - 6 - basis for concluding probable cause existed to issue the warrant. Therefore, the trial court did not err in overruling appellant's motion to suppress evidence. This assignment of error is not well taken and is overruled. Judgment affirmed. Stay lifted. - 7 - 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 Common Pleas Court to carry this judgment into execution. 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 Rules of Appellate Procedure. PATTON, C.J., and BLACKMON, J., CONCUR JUDGE TERRENCE O'DONNELL 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, .