COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70829 STATE OF OHIO : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION WILLIAM BLACKSHAW : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION MAY 29, 1997 CHARACTER OF PROCEEDING Criminal appeal from Court of Common Pleas Case No. CR-330844 JUDGMENT Affirmed DATE OF JOURNALIZATION APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES JAMES R. WILLIS, ESQ. Cuyahoga County Prosecutor Courthouse Square Building LISA REITZ WILLIAMSON, Asst. 310 West Lakeside Avenue Prosecuting Attorney Suite 595 1200 Ontario Street Cleveland, Ohio 44113 Cleveland, Ohio 44113 - 2 - JAMES M. PORTER, J., Defendant-appellant William Blackshaw appeals from his convictions following a bench trial for drug trafficking (R.C. 2925.03) in a Schedule II drug exceeding one hundred times the bulk amount and possession of criminal tools (R.C. 2923.24) and an order declaring a forfeiture of money found in defendant's possession. Defendant claims the trial court erred in ordering the forfeiture, in finding a search warrant valid, in upholding a police search beyond the scope of the warrant and in failing to order the return of the property. We find no error and affirm. At a suppression hearing prior to trial, Cleveland Detective Thomas Shoulders testified that on September 23, 1995, he received information from a reliable informant that a certain William Blackshaw was in possession of four kilos of cocaine. Det. Shoulders testified that the department had worked with this particular informant for a number of years and that the informant had never provided inaccurate information. The informant gave Shoulders a physical description of defendant, a description of his vehicle and his address at 3328 Euclid Avenue in Cleveland. Before going to the address to begin surveillance, the detective retrieved the file the department had on Blackshaw. The file indicated that defendant had previous convictions for drug offenses. Det. Shoulders observed the defendant leaving the premises at 3328 Euclid Avenue during surveillance. The individual fit the physical description provided. Shoulders observed him enter a - 3 - vehicle matching the description provided by the informant; the individual opened a parking lot gate with a key card. Det. Shoulders identified the individual in the car as the defendant, William Blackshaw. The detective followed the vehicle, a Mercedes with fancy mag wheels, but lost him in traffic. The detective then returned to the apartment to continue his surveillance. About a half hour later he observed defendant drive down Euclid Avenue. The detectives again followed the defendant until he stopped in front of the Harbor Lights Center. At that point the detectives approached the vehicle with their guns drawn; verified that it was indeed the defendant driving; and then ordered the defendant and his passenger out of the car where they were patted down for weapons. The defendant and his passenger were then handcuffed and each placed in one of the surveillance vehicles. Det. Shoulders testified that he and the other detectives proceeded back to the defendant's apartment builidng and took his keys to gain entrance to the apartment. A quick search was conducted to establish no one was on the premises who could destroy evidence and to obtain information for the search warrant. Several officers were then left at the apartment to stand watch until a search warrant was obtained. Det. Shoulders then obtained a search warrant for Blackshaw's apartment, #200 at 3328 Euclid Avenue. As a result of the search, detectives found a large sum of money on a bedroom closet shelf, a safe containing cocaine and currency, a box containing cocaine in a - 4 - bedroom closet, and a cooler with a false bottom containing cocaine covered with insulation material from a bedroom closet. A total of about $21,900 in cash was found and approximately four kilos of cocaine, worth about $400,000. The police also seized two automobiles, two television sets, a VCR and a camcorder. Cleveland Detective Timothy Gaertner testified that he aided in the surveillance of defendant's apartment. He mostly testified to the initial arrest of the defendant. Defendant testified that he did indeed live in the apartment, but that he also lived at his parents. He said he paid the rent by doing odd jobs for his father who is a carpenter. He claimed on the day of his arrest he went to the Harbor Lights Center to drop off a carton of cigarettes for a friend. He then testified to his arrest and detention by police. Following the conclusion of the suppression hearing, the trial court ruled that the initial police stop of Blackshaw in front of the Harbor Lights Center was illegal and that all information contained in the affidavit to obtain the warrant was the fruit of an unlawful seizure and detention of defendant. The trial court also found the detectives quick sweep of the apartment to determine if others were on the premises was also illegal. The court found, however, that probable cause existed to issue the search warrant in question and the motion to suppress the items found in the apartment was overruled. - 5 - Following defendant's waiver of a jury trial, the case proceeded to trial before the court. After the bench trial, the court found defendant guilty of both counts of the indictment. A forfeiture hearing was subsequently conducted. At the forfeiture hearing, the State argued that the property seized was subject to forfeiture as the defendant did not prove that he was able to afford the property by working at a legitimate job. The State contended that the items were the results of the "fruits of his crimes in the past dealing with drug dealing." (Tr. 472). Defense counsel argued that simply because a person cannot show that he can afford the items seized does not make the items contraband. Both parties then stipulated that the testimony from the suppression hearing be incorporated. Based on the above evidence, the trial court entered a journal entry stating as follows: The court finds the state has established by a preponderance of the evidence that $27,901 [sic] seized in connection to the search of the defendant's premises is sufficient by connection to the crime of which the defendant has been convicted. The remaining property is ordered returned to defendant as the court finds proof insufficient. Defendant now appeals from his convictions and the forfeiture order. We will only address defendant's arguments as they pertain to the forfeiture order as the time to appeal from the defendant's underlying convictions has expired. State v. Westmoreland (Feb. 3, 1993), Summit App. No. 15716, unreported (the court only considered - 6 - the forfeiture portion of the appellant's appeal, finding that the underlying criminal conviction was a final appealable order that needed to be filed within thirty days of judgment). We will address defendant's assignments of error in the order asserted and together where it is appropriate for discussion. I. THE COURT ERRED WHEN IT REFUSED TO DETERMINE PRE-TRIAL WHETHER CERTAIN PROPERTY (MONEY AND CARS) WAS PROPERLY SEIZED, AS THE STATE CONTENDED, ON THE THEORY IT WAS SUBJECT TO FORFEITURE. III. THE COURT ERRED: (1) WHEN IT REFUSED (OR MERELY FAILED) TO CREDIT AS AN ASPECT OF ITS TOTALITY OF THE CIRCUMSTANCES ANALYSIS THE FACT THAT POLICE HAD ACTED IN FLAGRANT DISREGARD OF R.C. OF OHIO S. 2933.26 (SIC) AND RULES 41(d) AND (b); (SIX) AND 2, WHEN IT DECLARED "MOOT" A CRITICAL ASPECT OF THE MOTION TO SUPPRESS AND FOR THE RETURN OF ILLEGALLY SEIZED PROPERTY. Assignments of Error I and III will be addressed together as they consider similar issues. Defendant argues here, as he did below at the suppression hearing (Tr. 4-5), that R.C. 2933.27 requires the court to conduct a pre-trial hearing to determine whether or not items seized pursuant to a search warrant were properly seized, and whether or not they should be returned to the defendant. R.C. 2933.27 states: If, upon examination, the judge or magistrate is satisfied that the offense charged with reference to the things seized under a search warrant has been committed, he shall keep such things or deliver them to the sheriff of the county, to be kept until the accused is tried or the claimants's right is otherwise ascertained. - 7 - Clearly, this statute was enacted in 1953, prior to the forfeiture statutes codified at R.C. 2933.41 through R.C. 2933.44. Nevertheless, the statutes are reconcilable and R.C. 1.52(B) requires that they be harmonized, if at all possible to give effect to each. The return of confiscated contraband is addressed by R.C. 2933.42 which indicates whether or not a defendant's property should be returned and when the hearing should be held. It also states that the forfeiture hearing should be held after the trial, as was done below. Pursuant to R.C. 2933.43(C): If the property seized was determined by the seizing law enforcement officer to be contraband because of its relationship to an underlying criminal offense or administrative violation, no forfeiture hearing shall be held under this section unless the person pleads guilty to or is convicted of the offense or a different offense arising out of the same facts and circumstances ***. This same section also requires the posting of a bond if property is, in fact, returned. But, the State of Ohio has the burden of proving, by a preponderance of the evidence, that the defendant's property is contraband as defined in R.C. 2901.01. This procedure in no way offends or circumvents the provisions of R.C. 2933.27, which requires a showing that a crime was committed, and that the crime related to the items seized. Therefore, in order to comply with the requirements of both statutes, the trial court held a hearing on the motion to suppress - 8 - evidence before trial and held a forfeiture hearing after the conviction. This is in compliance with R.C. 2925.45(C)(2)(a) which states: If a motion is filed in accordance with division (C)(1) of this section, and, at the time of filing or of the hearing on the motion, a criminal prosecution for a felony drug abuse offense *** has been commenced by the filing of an indictment *** then the court of common pleas shall treat the motion as a motion to suppress evidence. The trial court suppressed all evidence obtained as a result of the illegal stop as well as information in the search warrant affidavit obtained from the same source. It upheld the admissibility of evidence seized under the search warrant, the currency and the cocaine which were to be forfeited. The remaining seized evidence was returned, the television sets, camcorder and two automobiles. Defendant also takes issue with the fact that the currency was deposited by the Cleveland Police Department with its general funds in violation of R.C. 2933.26. R.C. 2933.41 permits the Department to develop an internal policy for the retention of such funds. We find no error. Assignments of Error I and III are overruled. II. THE COURT ERRED WHEN IT CONCLUDED THE AFFIDAVIT FOR THE SEARCH WARRANT IN THIS CASE SET FORTH PROBABLE CAUSE TO SEARCH THE APPELLANT'S HOME. When determining the sufficiency of probable cause set forth in an affidavit in support of a search warrant, we are guided by - 9 - the principles summarized in State v. Sheets (1996), 112 Ohio App.3d 1, 5-6: Appellant's first argument centers on the affidavit sworn to before the magistrate and whether it was based upon hearsay evidence. Crim.R. 41(C) provides: "A warrant shall issue under this rule only on an affidavit or affidavits sworn to before a judge of a court of record and establishing the grounds for issuing the warrant. *** The finding of probable cause may be based upon hearsay in whole or in part, provided there is a substantial basis for believing the source of the hearsay to be credible and for believing that there is a factual basis for the information furnished." A magistrate's duty in reviewing a request for a search warrant is "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 the contraband or evidence of a crime will be found in a particular place.'" State v. George (1989), 45 Ohio St.3d 325, 544 N.E.2d 640, paragraph one of the syllabus, quoting Illinois v. Gates (1983), 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527, 548. "In reviewing the sufficiency of the probable cause in an affidavit submitted in support of a search warrant issued by a magistrate *** the duty of a reviewing court is simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed." State v. George, at paragraph two of the syllabus. Doubtful or marginal cases are to be resolved in favor of upholding the warrant. Id. As stated in George, supra, under the totality of the circumstances test set forth in Gates, the question is whether the affidavit provided a substantial basis for the judge's conclusion that there was a fair probability that contraband or evidence of - 10 - crime will be found in a particular place given all the circumstances set forth in the affidavit, including the veracity and basis of knowledge of persons supplying the hearsay information. George, supra, at paragraph one of the syllabus. The George court also held that "reviewing courts may not substitute their own judgment for that of the issuing magistrate by conducting a de novo determination as to whether the affidavit contains sufficient probable cause upon which the reviewing court would issue the search warrant." Id. at 330. Instead, the court reasoned, a reviewing court is limited to simply ensuring the issuing judge had a substantial basis for concluding that probable cause existed. Id. at 330. Further, reviewing 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." Id. at 330, citing Gates, supra, at 237, fn. 10. In the instant case, the affidavit alleges that the informant was reliable. Every piece of information that the informant provided to the Cleveland Police Officers proved to be reliable. The information previously supplied by the informant in other cases resulted in multiple arrests in multiple kilogram cases both in Ohio and out-of-state, along with the apprehension of a person wanted in connection with a homicide. The information provided by the informant was verified as reliable by the officers. Det. Shoulders determined that the defendant had a record for a drug - 11 - related conviction; he determined that the defendant drove the blue Mercedes as described; the defendant appeared and was dressed as described; and the defendant lived at the address given by the informant. The supporting affidavit in the case contained facts sufficient for a finding of probable cause. Therefore, under the totality of the circumstances, there was probable cause for issuing the warrant and a connection between the seized items and the activity described in the warrant, permitting the court to refuse the return of property. Even if we were to determine that the search warrant affidavit did not furnish the magistrate with a substantial basis for determining that there was probable cause to search defendant's apartment, we would be compelled nonetheless to uphold the search based upon the "good faith exception" to the exclusionary rule set forth in United States v. Leon (1984), 468 U.S. 897. Leon stands for the proposition that the "Fourth Amendment 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 unsupported by probable cause." State v. George, supra at 330, citing Leon at 918-923, 926. The reason for such an exception was explained by the Leon court as follows: The deterrent purpose of the exclusionary rule necessarily assumes that the police have - 12 - engaged in willful, or at the very least, negligent conduct which has deprived the defendant of some right. *** Where the official action was pursued in complete good faith, however, the deterrence rationale loses much of its force. This is particularly true, we believe, when an officer acting with objective good faith has obtained a search warrant from a judge or magistrate and acted within its scope. In most such cases, there is no police illegality and nothing to deter. *** In the ordinary case, an officer cannot be expected to question the magistrate's probable-cause determination or his judgment that the form of the warrant is technically sufficient. *** Penalizing the officer for the magistrate's error, rather than his own, cannot logically contribute to the deterrence of Fourth Amendment violations. Leon at 919-921. The Court stressed that the officer's reliance on the magistrate's probable cause determination "must be objectively reasonable." Id. at 922. Therefore, the "good faith" exception does not apply when: (1) *** the magistrate or judge *** was misled by the information in an affidavit that the affiant knew was false *** (2) *** the judicial magistrate wholly abandoned his judicial role *** (3) an officer purports to rely on 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. Id. at 923. In the case herein, none of the four situations apply. We find that the detectives who had worked with this particular - 13 - informant for several years had a good faith belief that the cocaine would be found on the premises. This informant had never provided inaccurate information in the past. Based on the informant's tip, the officers were able to verify all of his information except for the fact that the cocaine was on the premises. A record check on the defendant also indicated that he had been involved with drugs before. Given their success rate with this informant in the past and the information they were able to verify, it was reasonable for them to have a good faith belief that the cocaine was indeed on the premises. Based on the above, we find that the property was properly seized and subject to forfeiture. Assignment of Error II is overruled. IV. THE COURT ERRED WHEN IT REFUSED, OR SIMPLY FAILED TO RULE THAT POLICE OFFICERS, EVEN THOSE IN CLEVELAND, WHEN CHARGED WITH EXECUTING A SEARCH WARRANT DO NOT HAVE ANY INHERENT POWERS OR AUTHORITY TO SEIZE (FOR ANY REASON) ITEMS OF PERSONAL PROPERTY NOT SPECIFICALLY DESCRIBED IN THEIR WARRANT UNLESS SUCH SEIZURE IS BASED ON PROBABLE CAUSE TO BELIEVE THE ITEM IS EVIDENCE THAT CAN BE RELATED TO SOME SPECIFIC CRIME. Defendant objects to the seizure of property in general by the police. R.C. 2933.43(A)(1), however, states, in pertinent part, "*** a law enforcement officer shall seize any contraband." Prosecutors, then, are required to file petitions requesting forfeiture of contraband pursuant to R.C. 2933.43(C). The items seized by the police were believed to be fruits of defendant's drug trade. Ohio law requires the officers to act on - 14 - those beliefs. After the forfeiture hearing, the court determined that certain evidence seized should not be forfeited, and it was returned. If in fact the items were unlawfully seized, a motion to suppress such evidence acts as a remedy for such illegal seizures. Assignment of Error IV is overruled. V. THE COURT ERRED IN ORDERING THE FORFEITURE OF CERTAIN MONIES FOUND IN THE DEFENDANT'S POSSESSION. Defendant argues that trial court improperly ordered the cash forfeited as contraband. This assignment of error has no merit. In a forfeiture proceeding, the State bears the burden of proving that the seized property is contraband by a preponderance of the evidence. R.C. 2933.43(C); State v. Roberts (1995), 102 Ohio App.3d 514; State v. Golston (1990), 66 Ohio App.3d 423, 431. R.C. 2901.(1), (2), (5) defines contraband in pertinent part as: (1) Property that in and of itself is unlawful for a person to acquire or possess. (2) Property that is not in and of itself unlawful for a person to acquire or possess but that has been determined by a court of this State, in accordance with law, to be contraband because of its use in an unlawful activity or matter, or of the circumstances of the person who acquires or possesses it. * * * (5) Any *** money *** that has been, is being or is intended to be used in an attempt or conspiracy to violate, or in violation of, Chapter 2925 or Section 3719 of the Ohio Revised Code *** which prohibits certain drug offenses. - 15 - Mere possession of cash is not unlawful. State v. Golston, supra at 431; Chagrin Falls v. Loveman (1986), 34 Ohio App.3d 212, 216; State v. Clark (1989), 63 Ohio App.3d 52,57. To prove that money is contraband and therefore subject to forfeiture, "the state must demonstrate that is it more probable than not, from all of these circumstances, that the defendant used [the money] in the commission of a criminal offense." State v. Golston, supra at 43. This Court has previously found currency to be a criminal tool. In State v. Tolbert (May 16, 1996), Cuyahoga App. No. 69158, unreported, the police arrested defendant at his girlfriend's apartment, sleeping on the couch. The police found 94 rocks of crack cocaine under the pillows of the couch, and found two pagers and $480 on defendant who was convicted of aggravated trafficking and possession of criminal tools (money and pager). This Court held there was sufficient evidence to support the convictions. In State v. Williams (Sept. 2, 1993), Cuyahoga App. No. 63502, unreported, a defendant was convicted of possession of criminal tools for having on his person $278 and a pager, and was convicted of drug trafficking as well. Although the defendant never used the money (or the pager) during what the police suspected was a drug transaction, this Court nevertheless upheld the criminal tools conviction, stating that "[t]he pager and large amount of money taken from appellant are further evidence of appellant's involvement with the narcotics." Id. at 5. - 16 - This Court has held that "evidence the defendant knowingly transported, delivered or distributed drugs may be used by the jury to reasonably conclude that the $110 possessed by the defendant was "used to facilitate *** drug transactions and thus was a criminal tool," such as for the purpose of providing any necessary change during drug sales, in violation of R.C. 2923.24. State v. Reese (Aug. 18, 1988), Cuyahoga App. No. 54105, unreported; see, also, Reese v. City of East Cleveland (May 12, 1994), Cuyahoga App. No. 65126, unreported; State v. Furst (Nov. 15, 1990), Cuyahoga App. No. 59757, unreported; State v. Gonzales (May 19, 1988), Cuyahoga App. No. 53950, unreported; and State v. Powell (1993), 87 Ohio App.3d 157. The fact that defendant had within his custody and control over $21,000 in cash and $400,000 worth of cocaine along with scales and razor blades which tested positive for cocaine residue, supports the conviction for drug trafficking and the use of those items in his illegal trade. Assignment of Error V is overruled. Judgment affirmed. - 17 - 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 Court of Common Pleas to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. DAVID T. MATIA, P.J., and ROCCO, J., CONCUR. JAMES M. PORTER JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .