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Media > Newsletters > Law Enforcement Bulletin > December 2014 > Proper Protocol (Warrant Affidavit: Trash Pulls and Stale Information): State of Ohio v. Goble

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Proper Protocol (Warrant Affidavit: Trash Pulls and Stale Information): State of Ohio v. Goble

Proper Protocol (Warrant Affidavit: Trash Pulls and Stale Information):  State of Ohio v. Goble
Question:  Have you established probable cause for a search warrant by only the mention of one trash pull and information from several years ago?
Quick Answer: No.  Facts that are stale and/or are not corroborated do not establish probable cause for a search warrant.
State of Ohio v. Goble, Sixth Appellate District, Huron County, Sept. 12, 2014
Facts:  In July of 2013, law enforcement executed a warrant to search the residence of Eddie Goble finding containers of marijuana leaves and seeds, pipes, and a hidden room with marijuana growing material.  The warrant was based on alleged marijuana cultivation and trafficking.  No plants were discovered.
The search warrant was based on two sets of facts.  First, in 2010 a knock and talk was performed at Goble’s residence.  Goble gave officers consent to search his home.  Marijuana and grow equipment were seized.  Goble told law enforcement that he would continue to grow for his own personal use.  No charges were filed as a result of this seizure.  Second, in July of 2013, law enforcement received an anonymous complaint about a possible grow operation at Goble’s residence.  The next day a trash pull was done from the curb of Goble’s home.  Inside, law enforcement found marijuana stems, marijuana roaches, and a prescription bottle with Goble’s name and address. 
Following the search warrant, Goble filed a motion to suppress.  He argued that the warrant lacked probable cause based on the single trash pull and information from 2010.
Stale Information: An affidavit for a search warrant must be based on probable cause and present timely information.  The key question is whether your facts get to the conclusion that the thing you are searching for is probably at the location—right now. Although there is no time when information becomes stale, the older the information is, the more it must relate to or corroborate a recent event.  Whether information is stale depends on the nature of the crime, the criminal, the thing to be seized, and the place to be searched.  In this case the affidavit provided 3-year-old information that was neither related to nor corroborated a recent investigation. The statements made three years prior, although about the same topic, did not provide probable cause that there was a current grow operation happening in the residence.  As a result, the information was stale and did not provide probable cause for the warrant.
Single Trash Pulls: A single trash pull is not sufficient when it is the only evidence offered for probable cause.  Trash pulls are, however, a legitimate means to corroborate statements made by informants and prove illegal activity. In this case, the single trash pulled was not offered as corroboration, but as the probable cause.  Without also providing sufficient documentation, evidence of investigation, or evidence of a controlled drug-buy, the single trash pull was insufficient to establish probable cause.
Consider the following cases on single trash-pulls:
  • Single Trash Pull Suppressed: A single-trash pull was performed at the home of Lauren Jones, a suspected methamphetamine manufacture, and empty chemical bottle, plastic tubing, used coffee filters, and a plastic bottle containing methamphetamine oil were found.  Based on this, a warrant was issued to search the home, uncovering more evidence of a meth lab.  The court ultimately suppressed the evidence finding the single trash pull did not establish probable cause because there was no supporting evidence; such as surveillance of the house, additional trash pulls, or details about the usage, trafficking or other circumstances of drug activity at the home.  The contraband recovered from the trash, while evidence of recent criminal activity, did not necessarily show the probability of presence of methamphetamine in the home. State of Ohio v. Jones, Eight Appellate District, Cuyahoga County, Nov. 7, 2013
  • Single Trash Pull as Corroboration: A single trash-pull finding two large marijuana stems was probable cause for a warrant, but only when offered as corroboration to the facts that a concerned neighbor made a complaint about a possible drug growing operation and that an officer’s investigation of high home energy usage indicated a drug grow operation at the residence.  The trash-pull was considered as part of the totality of the circumstances to establish probable cause for the warrant. State of Ohio v. Swift, Twelfth Appellate District, Butler County, May 12, 2014
  • Keep in mind: You probably know that the good-faith exception allows evidence to come in when it has been obtained by an officer who had an objectively reasonable belief that the warrant was good even though the warrant was later found to lack probable cause.  The key part of this exception is the phrase “objectively reasonable belief”.   In this case, the court determined the information from three years prior and a single trash pull would not be reasonable for any officer to rely on as probable cause, especially when the affidavit lacked detail, evidence of investigation, and did not support the search outlined.  Here, the exception did not apply.   In essence, the court said that for this warrant, no well-trained, reasonable officer could rely on it.  You certainly don’t want to be on this side of a court opinion.  Remember to investigate through several methods (informants, tips, trash-pulls, independent research, drug-buys, etc.) not just one. And, fully detail your investigation in your affidavit, carefully linking evidence to show why the thing you want is in the location to be searched—right now.
More on Proper Protocol
Toledo Municipal Court Warrants are Unconstitutional: On November 4, the Ohio Supreme Court issued its opinion in State v. Hoffman, examining the practice of the Toledo Municipal Court and how it issues arrest warrants.  State v. Hoffman, Slip Opinion No. 2014-Ohio-4795, Nov. 4, 2014. 
The Ohio Supreme Court determined that for 17 years the procedure used by the Toledo Municipal Court was unconstitutional because magistrates failed to make probable cause determinations before issuing warrants.   Although the court found the procedure of the court was unconstitutional, it determined that the exclusionary rule applied to cases where the warrants were already executed. 
Local authorities have shared that the policy and procedures for the issuance of arrest warrants changed on September 7, 2012, and they believe warrants issued on or after that date are constitutionally valid. Therefore, any warrant issued by the Toledo Municipal Court between at least 1995 to September 6, 2012, must be verified by the Toledo Municipal Clerk of Courts to determine if a probable cause determination occurred.
Please contact the Toledo Municipal Court or your local legal counsel prior to making an arrest or stop based on warrants issued before September 7, 2012. For more information see: Court Must Find Probable Cause Before Issuing Arrest Warrants, Ohio Supreme Court News, Nov. 4, 2014; Toledo Municipal Court Website
16-year-old with priors can waive Miranda:  You apprehend a teenage suspect who was thought to be involved in a felonious assault, kidnapping, and several robberies.  He is taken in for questioning, given Miranda, and waives his rights.  The suspect, who has past involvement with the system, never asks for a parent during the two-hour interview.  He admits to being involved in the robberies and takes you to an abandoned house where stolen items are discovered.  Was the confession given voluntarily and intelligently even though the suspect was a child?  The court in Anderson says yes.  Rickym Anderson was 16-years-old with prior experience with the criminal justice system.  When giving Miranda the officers explained each right to him, and he confirmed he understood. The interview itself was short, and the officers would have given breaks if Anderson asked.  The court determined the waiver was valid given these factors.  As a note, Ohio law also does not require a parent or guardian be present during the custodial interrogation of a minor, but the court can look at this fact to determine if the waiver of Miranda was valid. State of Ohio v. Anderson, Second Appellate District, Montgomery County, Sept. 26, 2014.
K-9 Alert—drugs or dog food?  While on patrol you notice a motorhome traveling an unsafe distance behind a semi-truck and make a traffic stop.  The driver and passenger explain they are traveling across the country to play roller derby.  Both are very nervous.  They give you the motorhome rental agreement showing a rental cost of $5000.00 from a Nevada company.  Suspicious of the story and high price of the rental, you call for the canine unit. The canine arrives 14 minutes later and quickly alerts on an external side compartment of the motorhome.  You search the compartment to find a partial bag of dog food and other items.  You then search the interior and find 195 pounds of marijuana. Did you have probable cause to search the interior of the motorhome?   The court in Cruz said yes.  Although the external compartment where the dog alerted did not contain contraband, the alert did provide probable cause to search the interior because the dog would only alert to narcotics, not to dog food.  If a trained narcotics dog alerts to the odor of drugs from a lawfully detained vehicle, an officer has probable cause to search the vehicle for contraband. The false location of the alert could have been produced by the direction of the wind or the location where the drugs were hidden inside.  State of Ohio v. Cruz, Twelfth Appellate District, Preble County, Sept. 29, 2014