John J. Keller

 DEFENDANT’S REPLY TO THE STATE’S RESPONSE The State’s Response reports that Officer Gene Grim has been suspended by the Village of Bellaire; it also reports that the Ohio BCI&I recently began investigating the criminal aspects of the civil rights allegations made against Grim. The accusations by the women are therefore credible and not frivolous regardless of the outcome. Because Grim is the investigating officer and the affiant to the probable cause affidavit against Hartung, the charges of sexual oppression take on an even more ominous importance, due to the allegations made against Grim pointing to a motive for Grim to abuse his office. The girlfriend’s affidavit charges that Grim that he would produce a criminal prosecution against Hartung to get Hartung out of the way so that Grim and the girlfriend could have an uninterrupted relationship. (Affidavit of Janae Snyder). It casts a heavy shadow over the validity of the search warrant. Despite those deep concerns, it is readily apparent that the affidavit itself is woefully below constitutional mandates and that, under the limited restraints that heavy inquiries yet unresolved, an examination of the affidavit itself shows that the reviewing authority did not perform its constitutional role in fettering out defective, incomplete and false affirmations. The allegations of Snyder’s affidavit are specific: “I was in a quasi-relationship with Bellaire Police Officer Gene Grim in which I provided sexual favors to him in exchange for him concealing certain criminal acts that I committed. Officer Grim has indicated to me on several occasions that he would set up Mathew Hartung to prison and that he and I could have an uninterrupted relationship/affair. Officer Grim knew I had active warrants but would not arrest me because he wanted to have sex with me.” (Affidavit, Exhibit A to Defendant’s Motion to Dismiss/Suppress) This case thus presents critical issues about the functioning of a search warrant system, and the validity of a warrant to search a home for drugs, where the investigating police officer is alleged to have acted wrongfully and oppressively to obtain a probable cause determination. The charges against Grim, consequently, take on a broader perspective and permeate every aspect of the issuance of the search warrant against Hartung. A.The State’s Main Justification For This Illegal Search Is To Argue The Nature And Volume Of The Evidence And Contraband That Was Obtained After The Search Was Conducted. The State attempts to divert attention away from these serious inquiries and to carve an argument that is premised on the wide array of contraband found and reported. The state’s attack is showcased in its Response, footnote 2, where the prosecutor itemizes the ‘kitchen sink’ of contraband found in the premises after the fact. The prosecutor’s intent here is apparently to get the court’s attention and direct it away from the constitutional decision that must be made. The prosecutor seemingly takes lightly his use of this method of bootstrapping probable cause – after calling Hartung’s claims that he was not a major drug offender “laughable”, concludes with the apparent regret that the means do not justify the ends under the Constitution. If bootstrapping of the fruits of an illegal search was generally acceptable in finding probable cause, the warrant process would be reduced to a sham. The Courts of Ohio and the federal courts are aware of that distorted procedure and have held that it is impermissible. It is well established that evidence discovered during a search cannot be used after the fact to establish the probable cause that was not established prior to the issuance of a search warrant. Whiteley v. Warden , 401 U.S. 560, 567 at fn. 11 (1971); Johnson v. United States , 333 U.S. 10, 16-17 (1948); Akron v. Williams , 175 Ohio St. 186, 189, 192 N.E.2d 63 (1963). See California v. Acevedo, 500 U.S. 565, 599 (1991) (“Neither evidence uncovered in the course of a search nor the scope of the search conducted can be used to provide post hoc justification for a search unsupported by probable cause at its inception.”) The foregoing infirmity would allow an officer to establish probable cause on the record for the first time at a suppression hearing by inviting the officer to use the evidence that has been discovered after a search was completed. This is done sometimes to bolster the issuing judge's probable-cause determination and to then bolster the officer's and the state's good-faith-exception argument. Taylor, Using Suppression Hearing Testimony to Prove Good Faith Under United States v. Leon , 54 U.Kan.L.Rev. 155, 221 (2005) ("a police officer at a suppression hearing may be especially willing to lie to save the fruits of a search because the officer's suspicions (whatever their original basis) have turned out to be justified"). B. This Is Not A Case That Falls Under The Leon Good Faith Exception And The Only Remedy Here Is Exclusion And Dismissal Of The Prosecution In Its Entirety. When a Fourth Amendment violation is occasioned by "deliberate," "reckless," or "grossly negligent" police conduct, the deterrent benefits of exclusion are said to outweigh its costs. State v. Dibble, 159 Ohio St. 3d 322, 339-40 (Ohio 2020) . The good-faith exception does not apply when a warrant is supported by a "bare bones" affidavit that leaves no room for debate that the affidavit completely failed to provide a single indicia of probable cause.  State v. Dibble, 159 Ohio St. 3d at 343. A wholly conclusory statement without details and supporting facts fails to meet the requirement. Gates, 462 U.S. at 239. An officer's statement that "[a]ffiants have received reliable information from a credible person and do believe" that heroin is stored in a home, is likewise inadequate. Aguilar v. Texas, 378 U.S. 108 (1964). This is a mere conclusory statement that gives the magistrate virtually no basis at all for making a judgment regarding probable cause . Sufficient information must be presented to the magistrate to allow that official to determine probable cause; his action cannot be a mere ratification of the bare conclusions of others. In order to ensure that such an abdication of the magistrate's duty does not occur, courts must continue to conscientiously review the sufficiency of affidavits on which warrants are issued. Illinois v. Gates, 462 U.S. 213, 239 (1983). The magistrate’s action cannot be a mere ratification of the bare conclusions of others. To trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system. As laid out in our cases, the exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence. This case is a good example of having the characteristics that the courts have marked for exclusion. Herring v. United States, 555 U.S. 135, 144 (2009). The general rule is that a warrant must be held invalid in its entirety when obtained in bad faith.  Brigham City v. Stuart, 547 U.S. 398, 403, (2006) (quoting Groh v. Ramirez, 540 U.S. 551, 559 (2004) ).” See State v. Thorpe, 2021 Ohio 1295, 29 (Ohio Ct. App. 2021) (“However, where a search warrant is based on false statements in the affidavit submitted to establish probable cause , the fruits of the search warrant must be suppressed. Franks v. Delaware, 438 U.S. 154, 155, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978)”)The search in this case must be declared void due to the pervasive bad faith within which the government attempted to create a bootstrap appearance of probable cause. With little proof transferred to the government by the C.I., and virtually no connection between the arresting officer and the C.I., the police went forward with a sketchy and insufficient proof of probable cause. In our system, we must be careful to avoid unconstitutionally “bootstrapping” evidence obtained in an unlawful search to make it look like there probable cause. C. This Case Contains A Suspicious Affidavit That Does Not Provide Any Information To The Issuing Authority From Which A Rational Probable Cause Determination Can Be Made. The magistrate judge is tasked with a relatively straightforward procedure of determining whether the factors for probable cause exist. The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the "veracity" and "basis of knowledge" of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a "substantial basis for . . . concluding" that probable cause existed. Illinois v. Gates, 462 U.S. 213, 238-39 (1983) The Gates court did not throw away the reasoning in Aguilar v. Texas, 378 U.S. 108, 113-15 (1964), but cited it affirmatively in its decision. Some of the deficiencies of the search warrant inquiry in Aguilar are similar to the instant facts. As the Court there stated, the "mere conclusion" that petitioner possessed narcotics was not even that of the affiant himself; it was that of an unidentified informant. The affidavit in Aguilar "contains no affirmative allegation that the affiant spoke with personal knowledge of the matters contained therein," it does not even contain an "affirmative allegation" that the affiant's unidentified source "spoke with personal knowledge." “The complaint contains no affirmative allegation that the affiant spoke with personal knowledge of the matters contained therein; it does not indicate any sources for the complainant's belief; and it does not set forth any other sufficient basis upon which a finding of probable cause could be made." Ibid.” Aguilar v. Texas, 378 U.S. 108, 113 (1964). That is exactly what we have here but the facts in the instant prosecution appear to be even more useless in providing any evaluative details needed by the magistrate. The Aguilar Court pointed out that the informant there merely suspected, believed or concluded that there were narcotics in petitioner's possession. The magistrate there, as in the instant case, certainly could not "judge for himself the persuasiveness of the facts relied on . . . to show probable cause," because in essence he was given no information. He necessarily accepted "without question" the informant's "suspicion," "belief" or "mere conclusion." Id. at 114. Although an affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant, Jones v. United States, 362 U.S. 257, the magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant , whose identity need not be disclosed, was a key player. In addition, in Kentucky v. King, 563 U.S. 452, 459 (2011), the Court reasoned that, "the inferences from the facts which lead to the complaint" will be drawn not "by a neutral and detached magistrate," as the Constitution requires, but instead, by a police officer "engaged in the often competitive enterprise of ferreting out crime," or as in this case an unidentified informant. Reading the affidavit further, it is usually a strong point to have conducted a controlled buy. Here Grim says he “planned and executed” such a buy with a confidential informant. But the informant remains unidentified and without any indicia of reliability. It is impossible to tell if Grim solicited an unknowing informant and tasked her with making a controlled buy or whether she was actually privy to any information to help establish probable cause. Critically, the steps for a controlled buy are not documented and apparently not followed due perhaps to Grim’s hurry to get event out of the way. The “confidential informant”, as Grim calls her, is unknown, has provided no input and as far as we know she has had no substantive conversations with Grim to substantiate probable cause. That person must be produced and subjected to cross-examination. As previously noted, the video and audio transcription provide no proof of anything, other than that the defendant resided at the address. There were no sanitary control measures to insure that Grim could not go inside at some point and plant the contraband; there is nothing to show that the mysterious informant, about which nothing is said or known, did not conspire with Grim to engage in illegal activities. A controlled buy has not been established as an evidentiary proof where someone goes into the home and comes out with the purported purchase. In this case, where the facts are sometimes shrouded behind Grim’s alleged wrongdoing, a controlled buy did not take place, especially since the video does not show a drug transaction. With the “controlled buy” completed, Grim seemingly begins his investigation by conducting several weeks of surveillance of Grim’s home. The affiant alleges people going in and out of Grim’s residence “at all hours of the day and night.” Of course, that is a self-serving statement by Grim, one which he does not have to prove. He could have taken video of that action but it is does not exist. He states that “within this timeframe” of all hours of the day and night he made traffic stops of people exiting the residence. He say that he was told by the driver or passenger of the vehicle that they went to Hartung’s to buy Xanax! At this point, it would appear that the stories are being made up and that there may be more criminal violations by Grim. To add insult to injury, he requests a no knock warrant, which would give him free reign in conducting the search. It is still the law that where an affidavit does not provide a sufficient basis for probable cause, the search warrant should not have been issued that the evidence obtained as a result of the search warrant was inadmissible in petitioner's trial. Aguilar v. Texas, 378 U.S. 108, 115-16 (1964) The essential purpose of the proscriptions in the Fourth Amendment is to impose a standard of `reasonableness' upon the exercise of discretion by government officials, including law-enforcement agents, in order `"to safeguard the privacy and security of individuals against arbitrary invasions. . . ."' Marshall v. Barlow's, Inc., 436 U.S. 307, 312 (1978), quoting Camara v. Municipal Court, 387 U.S. 523, 528, (1967). When police act in good faith on a warrant, even when the warrant is invalid for some reason, the U.S. Supreme Court has held that evidence obtained as a result of the good faith reliance should not be suppressed. Herring v. U.S., 555 U.S. 135, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009), citing United States v. Leon, 468 U.S. 897, 921, 104 S.Ct. 3405, 82 L.Ed.2d 677, fn.22 (1984)United States v. Fulgham, 143 F.3d 399, 401 (8th Cir. 1998) (“When an affidavit contains information provided by a confidential informant , a key issue is whether that information is reliable. See United States v. Brown, 49 F.3d 1346, 1349 (8th Cir. 1995). "Information may be sufficiently reliable to support a probable cause finding if the person providing the information has a track record of supplying reliable information, or if it is corroborated by independent evidence." United States v. Williams, 10 F.3d 590, 593 (8th Cir. 1993) (citing Draper v. United States, 358 U.S. 307, 313 (1959)).”) See United States v. Hammond, 351 F.3d 765, 772 (6th Cir. 2003) (finding an informant had not been shown to be reliable where the affiant did not state how long officers knew the informant or whether the affiant knew the informant at all, and the affiant failed to state that the informant was a reliable source or had previously given police reliable information in the past).