The Akron Legal News

8th District court rejects appeal from heroin dealer

ANNIE YAMSON
Special to the Legal News
Published: April 8, 2014

The 8th District Court of Appeals recently affirmed the judgment of the Cuyahoga County Court of Common Pleas when it ruled that the lower court did not err by denying a motion to suppress evidence.

The defendant, Brian Bertloff, was indicted with eight counts of drug trafficking, four counts of drug possession and one count of possessing criminal tools along with specifications on some of the counts.

During the course of the proceedings, Bertloff filed a motion to suppress the evidence obtained in a search of his home.

Following a hearing, the trial court denied the motion and Bertloff entered a plea of no contest to the indictment.

The Cuyahoga County court merged the offenses for sentencing and imposed a prison term of one year and nine months.

Upon appeal, Bertloff presented only one assignment of error, arguing that the trial court should not have denied his motion to suppress.

According to him, the affidavit supporting the search warrant lacked sufficient probable cause to justify the search of his residence.

“In determining whether there is probable cause to issue a search warrant, a judge or issuing magistrate must ‘make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him ... there is a fair probability that contraband or evidence of a crime will be found in a particular place,’” wrote Judge Sean Gallagher on behalf of the court of appeals.

A reviewing court, Judge Gallagher noted, only needs to ensure that the affidavit provided a substantial basis for the magistrate’s conclusion.

“Great deference should be accorded to the magistrate’s determination of probable cause,” he wrote, “and doubtful or marginal cases should be resolved in favor of upholding the warrant.”

In Bertloff’s case, the three-judge appellate panel reviewed the facts and learned that Det. John Guzik received information from a confidential informant in November 2012 that a male named Brian was trafficking heroin.

According to the CI, Brian packaged heroin at his residence in Cleveland and then transported the drugs in a silver Chevrolet Malibu to surrounding communities.

Guzik went to the residence where he saw a Malibu in the driveway and discovered that it was registered to Brian Bertloff at an address that was right behind Bertloff’s residence.

It was later discovered that that address was the home of Bertloff’s grandparents.

The confidential informant positively identified Bertloff from a BMV photo and, later that month conducted two controlled heroin purchases from Bertloff.

The narcotics were tested and found to be heroin.

Additionally, the police followed Bertloff from his residence to the arranged “meet” locations for the controlled drug deals, and then followed him back to his home address.

Another detective provided Guzik with information concerning a complaint of drug activity associated with Bertloff’s residence.

The complaint stated that Bertloff would exit his residence and sell drugs in the backyard of his grandparents’ house.

Based on that information, the police obtained the search warrant.

“Upon our review, we find that the facts in the affidavit gave the judge issuing the warrant a substantial basis for concluding that a fair probability existed that narcotics and other contraband would be found on the premises,” wrote Judge Gallagher.

The appellate panel ultimately upheld the validity of the search warrant and overruled Bertloff’s sole assignment of error.

Presiding Judge Larry Jones and Judge Patricia Blackmon joined Judge Gallagher to form the majority.

The case is cited State v. Bertloff, 2014-Ohio-1077.

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