State v. Hunt , 22 Ohio App. 3d 43 ( 1984 )

On January 20, 1983, the police executed a search warrant at 11610 Castlewood Road and found approximately five pounds of marijuana, cocaine, $11,000 in cash, and other drug paraphernalia. Russell Hunt, appellee, lived at and owned the premises. He was arrested at the time of the search, along with a tenant of his and a third person, neither of whom are subjects of this appeal.

Appellee filed a motion to suppress on April 14, 1983. After a hearing, the trial judge overruled appellee's motion, but upon reconsideration, granted appellee's motion. The state, appellant herein, timely appealed raising the following assignment of error:

"The trial court erred in suppressing state's evidence."

Appellant contends that the content of the police officer's affidavit, which was submitted to obtain the search warrant for marijuana and items related to the sale thereof, was sufficient to establish probable cause.

In order to establish probable cause for the issuance of a search warrant, an affiant must set forth sufficient information in an affidavit which will give a magistrate reason to believe that the items in question are located on the suspect premises.State v. Haynes (1971), 25 Ohio St.2d 264, 266 [54 O.O.2d 379];State v. Dodson (1974), 43 Ohio App.2d 31, 35 [72 O.O.2d 190]. In this case, the relevant portions of the affidavit can be summarized as follows:

1. Affiant has been a police officer for ten years, has received training with respect to the manner in which sellers of controlled substances operate, and has made over two hundred drug-related arrests in the last year and one-half;

2. Affiant met with an informant who has provided reliable information in the past leading to the arrest of ten individuals;

3. Affiant observed a controlled purchase of marijuana by the informant at the suspect premises;

4. The informant advised affiant that he had made several uncontrolled purchases in the past at the suspect premises from the same person;

5. Affiant and other police officers have observed medium pedestrian traffic going to and from the subject premises for short intervals during the past two weeks; and

6. The Cleveland Police Department has received numerous citizens' complaints of drug activity at the suspect residence within the past two weeks.

Based upon the record, appellee was able to show that certain misstatements were made in the affidavit.¹ When that is established, the court must determine whether, after excision of the false matter, the affidavit is left with insufficient content to establish probable cause. Franks v. Delaware (1978),438 U.S. 154, 156²; United States v. Jenkins (C.A. 6, 1984),728 F.2d 396; United States v. Riccio (C.A. 10, 1984), 726 F.2d 638;United States v. Johnson (C.A. 3, 1982), 690 F.2d 60, certiorari denied (1983), 459 U.S. 1214; United States v. Young Buffalo (C.A. 9, 1979), 591 F.2d 506, certiorari denied (1979),441 U.S. 950; see State v. Dodson (1974), 43 Ohio App.2d 31, 36 [72 O.O.2d 190]. If the remaining content is insufficient, the warrant must be voided and the fruits of the search must be suppressed. Franks, supra, at 156; see, e.g., Young Buffalo,supra, at 509. In other words, the deliberate falsehoods and/or reckless misstatements must be material to the finding of probable cause in order to invalidate a search warrant.

In this case, the challenged statements (numbered paragraphs 2, 4, and 6 above) were mere surplusage and immaterial since probable cause still existed for the issuance of a search warrant for marijuana and instruments used in the sale of marijuana even absent the statements in question. Certainly, the observation of a controlled purchase of marijuana on a resident's porch by an experienced police officer where the seller enters the home and returns with a bag of marijuana is sufficient to establish probable cause to search the residence. This information is further supported by the observations of the affiant and other police officers surveilling the premises for the two preceding weeks.

We do want to emphasize that intentional or reckless police misconduct is not being condoned herein and that suppression remains a viable remedy under appropriate circumstances. In this particular case, however, despite the falsehoods and misstatements contained in the affidavit, the affiant had direct knowledge of a sale of marijuana by the defendant at the premises in question. For this reason, the misstatements in the affidavit were unnecessary to the finding of probable cause. Accordingly, appellant's assignment of error is sustained.

The judgment of the trial court is reversed, and this case is remanded for proceedings consistent with this opinion.

Judgment reversed and cause remanded.

PRYATEL, J., concurs.

JACKSON, P.J., dissents.

¹ The trial court's reasons for suppressing the evidence are not apparent from the record, although both parties have attached a letter from the trial judge to the prosecutor and the defense attorneys dated December 16, 1983, which states, in sum, that the police informant was not reliable. Items attached to briefs, duplicates of which are not in the lower court's file transferred to this court, are not a part of the record and will not be considered by this court. State v. Hawley (1984), 20 Ohio App.3d 59, at fn. 1; see Lamar v. Marbury (1982), 69 Ohio St.2d 274 [23 O.O.3d 269]. In this case, however, the transcript supports the fact that certain misstatements were made, and the transcript is a part of the record. Moreover, even considering the items attached to the briefs, uncontested by either side, our conclusion would be the same.

² While we recognize that the United States Supreme Court recently stated in United States v. Leon (1984),82 L. Ed. 2d 677, 701, that "suppression is appropriate * * * if the officers were * * * reckless in preparing their affidavit," we find nothing in Leon which indicates that the Supreme Court intended to modify or abandon the standards enounced in Franks v.Delaware (1978), 438 U.S. 154. In fact, the Supreme Court citedFranks with approval in Leon.