signature gol state v. bernius, 177 ohio st. 155 12 state v. casey, 2004 ohio 5789 (7" district) 13...
TRANSCRIPT
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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
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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
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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
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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
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C. THE TRIAL COURT ERRED BY NOT EXCLUDING HEARSAYEVIDENCE GIVENBY A JUVENILLE, TO A PROBATION OFFICER, EXCLUDING
THF HEARSAY RULE.
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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
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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
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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
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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
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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
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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:
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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).
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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.
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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.
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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.
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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
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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].
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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;
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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
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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.
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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.
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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,
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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)
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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
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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
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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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