CERTIFIED COPY COURT COMMON PLEAS BROWN COUNTY, OHIO CLERK: L. Ri \Y ore Oe GSBIT IN THE COURT OF COMMON PLEAS CRIMINAL DIVISION BROWN COUNTY, OHIO STATE OF OHIO 1 CASE NOS. 2012-2174, 2012-2175 Plaintiff, : (JUDGE SCOTT T, GUSWEILER) vs. DELBERT MALOTT : JUDGMENT ENTRY and SHAINE A MALOTT Defendants. ee This matter came before the Court for hear'ng on defendants’ Motion to Suppress and Motion to Dismiss on the 111" day of April 2013 with defendants Delbert Malott and Shaine A, Malott present, fepresented by Attorney Michael E, Cassity and the State of Ohio Present, represented by Clermont County Assistant Prosecutor, Jesse Kramig. The Court in issuing its decision has considered the testimony and exhibits in evidence from the heari ing, defendants’ Motion to Suppress Evidence and Motion to Dismiss filed October 30, 2012, State's Memorandum in Opposition to Defendants’ Motion to Suppress/Dismiss filed November 21, 2012 by the Brown County Prosecutor's Office, the State's Amended Memorandum In Opposition to Defendants’ Motion to Suppress/Dismiss filed by Assistant Prosecutor Kramig and Defendants’ Memorandum filed April 18, 2013. 438080¢State declined to file any post-hea ting memorandum. For the reasons set forth below, THE COURT GRANTS DEFENDANTS’ MOTIONS, On April 19, 2012, investigator Simmons of the Ohio State Highway Patrol was, assigned by her supervisors to contact a confidential informant who was a passenger in a vehicle stopped by Trooper Grooms on State Route 32 for speeding. Trooper Grooms reported seeing methadone in the vehicle. The informant indicated she was willing to work with the officers to tell them who supplied the drugs ostensibly to avoid the repercussions o Possessing methadone. Trooper Simmons interviewed the informant on April 19, 2012 at the Georgetown Post. The informant was shown photo arrays and identified the defendants as the drug suppliers, Control calls set up by the Highway Patrol to Delbert Malott were unsuccessful. The next day the informant, supplied with money and a wire provided by the Highway Patrol proceeded to the defendants’ residence, surveilled by several Highway Patro units. No sale took place. Later on April 20, 2022, the informant supplied with money and a wire by the Highway Patrol, proceeded once again to the property of defendants’ surveillec by several Highway Patrol units and this time purchased heroin. During this time, the Highway Patrol obtained defendants’ Exhibit A, admittedly wrong from its inception, from the Brown County Prosecutor and had multiple conversations with the Brown County Prosecutor's Office. Subsequent to the purchase of Heroin, the Highway Patrol prepared Search Warrants, had the Brown County Prosecutor's Office contact Judge Clark, Brown County Probate/Juvenile Court, who signed the warrants. The Search Warrants were executed on April 21, 2012 at 2:00 a.m. and illegal contraband was located. Trooper Simmons, 9 ¥% years in the Highway Patrol (three years in investigations), and Sgt. Herron, supervisor of the Highway Patrol’s Investigative Service as of July 2011 and trooper since oe 4380893November 1991, inexplicably testified that jurisdiction issues never crossed their minds. Both conceded that they had not been involved in this type of investigation before. In contradiction to both Highway Patrol Officers, Chief Deputy Schadle of the Brown County Sheriff's Office testified that he talked with Sgt. Herron on the phone. Sgt. Herron briefed Chief Schadle on the Stop that occurred on April 19, 2012 and inquired if the Sheriff's Office wanted to get involved. Chief Schadle testified he disclosed to Sgt. Herror, the highway Patrol’s lack of jurisdiction to them. Chief Schadle testified that, consistent wit! Prior interactions with the Highway Patrol involving events on private property, he anticipated taking over the handling of the informant and the case entirely. Deputy Smith testified that Chief Schadle requested he talk with Sgt. Herron at the Georgetown Post regarding a Search Warrant. Again, in contradiction to both Highway Patrol Officers, Deputy Smith asked Sgt. Herron about the “jurisdiction problem.” The Highway Patrolman’'s Tesponse was that it was one step removed from a traffic stop and we do this all the time. Chief Schadle, Deputy Smith and the Sheriff met and determined not to assist the Highway Patrol because the Highway Patro! had no jurisdiction and they didn't want to be invoived in committing an illegal act. Once again the Sheriff's Department offered to take over the case, but Herron refused. At the outset, Assistant Prosecutor Kramig stipulated and conceded that the Ohio State Highway Patrol was outside their jurisdiction when it prepared, obtained and executed ‘search warrants on the private homes of the Defendants’ Delbert and Shane Malott. The State contends this does not itself result in the application of the exclusionary rule. They argue that officer jurisdiction is not a fundamental constitutional violation that mandates ‘Suppression, citing State v. Wilmoth, 22 Ohic St.3d 251 (1986). On a non-fundamental righ! the test for exclusion is 1) was there prejudice, in the sense the search might not have 4880804occurred or not in as abrasive a manner had law enforcement followed the statute; or 2) there is evidence of intentional and deliberate disregard of a provision of the statute. The defense argues exclusion citing United States v. Leon (1984) 468 U.S. 897, State v, Jacob 185 Ohio App.3d 408 (2009), State v. Harrison (1969) 20 Ohio Misc. 282 and R.C. 2933.24. The argument posited is the Ohio State Patrol knew from basic training the limits of their jurisdiction; the testimony of the Brown County Sheriff's Department strir the OSHP from arguing good faitn; and, that a search warrant not issued to a proper officer (in this case an officer out of their jurisdiction) is invalid. The Court believes suppression of the evidence is appropriate. The Court does not believe that the Ohio-State Highway Patrol Officers’ testimony that jurisdiction issues never crossed their mind in a case involving control calls and control drug buys on private propert using a confidential informant and obtaining and executing a search warrant on private property - something tney had not done before. Especially when, prior to any search, the Brown County Sheriff's Office told them, on more than one occasion, they had no jurisdiction. The conduct of the Highway Patrol Officers was an intentional and deliberate disregard of R.C. 5503.02 which establishes the powers and duties of the Highway Patrol, as well as R.C. 2933.24. It was contrary to the long standing history between the Highway Patrol and Brown County Sheriff's Office, specifically if a stop by the patrol was going to involve private property, the case would be turned over to the Sheriff's Office completely, as established by Chief Schadle, Deputy Smith and State’s Exhibit 13. The Court further believes that based on the evidence, the testimony, and the Court’s assessment of the credibility of the witnesses that the Highway Patro! knew they were not a Proper officer pursuant to R.C. 2933.24 to be requesting, receiving and executing the search warrant 4830805occurred or not in as abrasive a manner had law enforcement followed the statute; or 2) there is evidence of intentional and deliberate disregard of a provision of the statute. The defense argues exclusion citing United States v. Leon (1984) 468 U.S. 897, State v. Jacob 185 Ohio App.3d 408 (2009), State v. Harrison (1969) 20 Ohio Misc. 282 and R.C. 2933.24. The argument posited is the Ohio State Patrol knew from basic training the limits of their jurisdiction; the testimony of the Brown County Sheriff's Department strir the OSHP from arguing good faitn; and, that a search warrant not issued to a proper officer (in this case an officer out of their jurisdiction) is invatid. The Court believes suppression of the evidence is appropriate. The Court does not believe that the Ohio State Highway Patrol Officers’ testimony that jurisdiction issues never crossed their mind in a case involving control calls and control drug buys on private propert using a confidential informant and obtaining and executing a search warrant on private property - something tney had not done before. Especially when, prior to any search, the Brown County Sheriff's Office told them, on more than one occasion, they had no jurisdiction. The conduct of the Highway Patrol Officers was an intentional and deliberate disregard of R.C. 5503.02 which establishes the powers and duties of the Highway Patrol, as well as R.C. 2933.24. it was contrary to the long standing history between the Highway Patrol and Brown County Sheriff's Office, specifically if a stop by the patrol was going to involve private property, the case would be turned over to the Sheriff's Office completely, as established by Chief Schadle, Deputy Smith and State’s Exhibit 13. The Court further believes that based on the evidence, the testimony, and the Court’s assessment of the credibility of the witnesses that the Highway Patro! knew they were not a Proper officer pursuant to R.C. 2933.24 to be requesting, receiving and executing the search warrantobtained from Judge Clark. The actions of the State Patrol were intentional and deliberate disregard of the Statutes. There are no objectively reasonable facts the Court can find to believe the State Patrol acted in 800d faith. U.S. v. Leon and its progeny dictate the Court grant the Motion to Suppress of the Defendants all evidence arising out of the search of IT IS SO ORDERED. INSTRUCTIONS TO THE CLERK: Please issue a copy of the Judgment Entry to all parties of record. 4880806