State v. Swearingen , 131 Ohio App. 3d 124 ( 1999 )

I respectfully dissent. In reaching their respective determinations, the trial court and the majority completely disregard significant aspects of the leading decisions of the United States Supreme Court and Supreme Court of Ohio governing the judicial review of search warrants, both as to the proper review of probable cause and as to the proper rationale for deterrence of police misconduct in determining whether to apply the good faith exception to the exclusionary rule.⁵

Following in large part the erroneous de novo analysis of the trial court, the majority refuses to recognize the good faith conduct of a police officer who personally testified before a magistrate to obtain judicial approval of a search warrant. The basis of the majority decision is their own finding that probable cause in this case was so lacking that official belief in its existence was entirely unreasonable. We can only wonder how the majority can claim a police officer could not reasonably believe the warrant to be valid when two of the five judges involved in the case thus far believe otherwise.⁶

In fact, it is difficult to see what more a police officer acting in good faith could reasonably do to obtain a search warrant. The day after an ongoing drug investigation culminated in the arrest of the defendant, Detective Ross presented himself to the Municipal Court of Marion County as the applicant/affiant for a search warrant to obtain a urine sample from the defendant. He personally appeared before the municipal judge where he presented a cursory affidavit and gave sworn testimony to the judge. During his testimony, the judge asked questions which Detective Ross answered. The entire proceeding before the judge was preserved on tape. There are no allegations of false or misleading information.

In these circumstances, there is no police misconduct and hence, no viable deterrence rationale to support imposition of the exclusionary rule. On the contrary, where a police officer may be uncertain as to the existence of probable cause, the procedure followed by Detective Ross, i.e. taking it to a judge to get a determination, is precisely the protocol for initiating a search warrant meant to be encouraged and protected by application of the good faith exception to the exclusionary rule. See State v. George, supra, at 330-331.

Moreover, based on the testimony of Detective Ross and supporting documents, the municipal judge had the following information prior to authorizing the search warrant on March 28, 1997:

1. The defendant was currently in custody, having been arrested the previous day on a felony warrant involving two counts of "Aggravated Trafficking."

2. On February 20, 1997 law officers had made two "controlled buys" from the defendant within two hours using an informant to buy the drugs. The defendant was clearly heard on the tape recording of these transactions.

3. The same informant/buyer subsequently told law officers that she has repeatedly smoked crack cocaine with the defendant and that defendant freely gave the drug away to his female friends.

4. On March 27, 1997, the day of his arrest (one day before the warrant request) the police requested a urine sample from the defendant. The defendant responded to the request by stating to the detective, "Why would I want to give you a urine sample just to have another charge put against me." The detective's conclusion, expressed to the magistrate, was that from a defendant who had "been through the system three, four, or five times before," this statement was an indication that the defendant knew any such test would be positive.

5. The charge for which the warrant was sought was felony drug abuse.

The trial court and the majority have concluded that probable cause is totally lacking in this information because 1) the credibility of the informant is entirely uncorroborated, 2) the information was conclusively stale and 3) the alleged violation of law was not sufficiently specified. None of these characterizations are accurate.

Within the applicable "totality of the circumstances" test ofGates, supra and George, supra, the credibility of the informant was corroborated to some extent in the information relayed to the municipal judge.⁷ First, on February 20, 1997 the informant made two "controlled buys" from the defendant. The defendant was "clearly heard" on the tape recording of the controlled buys as the individual selling drugs to the informant and was thus identified independently by law officersas the individual from who the informant was actually purchasing thedrugs from.⁸ And, the informant's statement as to the defendant's repeated use of crack cocaine was corroborated to some degree by the defendant's apprehensive statement to officers the day before the warrant request, from which the officers and the magistrate had every right to infer that the defendant believed a urine test would be positive.

Whether they are willing to acknowledge them or not, later inferences to the contrary made by the reviewing judges in this case are irrelevant and, in fact, are prohibited by the second syllabus of State v. George, supra. Of course, when taken together, the informant's statement about repeated drug use and the defendant's response to the request for a urine sample clearly imply an ongoing practice of drug abuse which undermines the claim of staleness in this warrant application as well.⁹

Finally, critical statements about warrant specificity, primarily made by the trial court, are also unfounded. In addition to the reference to crack cocaine in Detective Ross' testimony, the municipal judge was clearly aware of the defendant's current status as under arrest and in custody for two counts of Aggravated Drug Trafficking. In direct response to the judge's inquiry, Detective Ross stated that the charge for which the warrant was sought was "felony drug abuse." Consistent with this assertion, the charge for which the warrant was sought is specifically stated on the face of the affidavit for the search warrant as "violations of R.C.2925.11, Drug Abuse."¹⁰

In sum, applying the proper "totality of circumstances" test of Illinois v. Gates, supra, it is my conclusion that the magistrate had a substantial basis for concluding that probable cause existed in this case and that even if marginal, this court should defer to the determination of the magistrate as directed in the second syllabus of State v. George, supra. However, even if we were to conclude that the warrant was not supported by sufficient probable cause, the indicia of probable cause does not fail to the degree necessary to preclude application of the good faith exception to the exclusionary rule in a case where the affiant/police officer personally appeared before the judge to obtain the warrant.

In its judgment entry granting the motion to suppress the trial court does not appear to have even considered the syllabus law of the Ohio Supreme Court in State v. George,supra, or the holdings of the United States Supreme Court inIllinois v. Gates, supra and United States v. Leon, supra, in reaching its decision. Instead, the entry sets forth a de novo analysis of the search warrant in which the trial court mischaracterizes the factual record and appears to apply the wrong standards for probable cause. Additionally, the court relies heavily upon alleged scientific knowledge for which there is no evidence in the record beyond the personal statement of the trial judge. Unfortunately, despite some reference to the proper standards of review, the analysis of the majority does not depart significantly from that of the trial court. As a result, the majority now creates an appellate court decision endorsing exactly those things that the United States Supreme Court and the Supreme Court of Ohio clearly state should not be done in reviewing search warrants. I would reverse the decision of the trial court and remand the case for trial.

⁵ See, for example, State v. George, supra, at 328-331, citing,inter alia, Illinois v. Gates, supra, Massachusetts v. Upton (1984) 466 U.S. 727, Brinegar v. United States (1949)338 U.S. 160, and United States v. Ventresca (1965) 380 U.S. 10285 S.Ct. 741, 13 L.Ed.2d 684; as to the appropriate standards for review of probable cause, and United States v. Leon, supra, 468 U.S. 897,104 S.Ct. 3405, 82 L.Ed 677; Michigan v. Tucker (1974) 417 U.S. 433,Massachusetts v. Sheppard (1984) 468 U.S. 981, andUnited States v. Ross (1982) 456 U.S. 798, as to the appropriate standards for applying the exclusionary rule to police misconduct in search warrant cases.

⁶ At least one federal circuit has held that disagreement of reviewing judges in a case is a proper consideration in evaluating the reasonable reliance of a police officer upon a magistrate's determination of probable cause. See U.S. v.Corral-Corral (C.A. 10, 1990), 899 F.2d 927 (holding that police officers should be entitled to rely upon a magistrate's determination of probable cause, especially when reviewing judges cannot agree on sufficiency of affidavit.)

⁷ The extensive, de novo emphasis by both the trial court and the majority upon the two-pronged analysis of the informant's veracity and reliability leads to the inescapable conclusion that in both instances, notwithstanding the directive ofIllinois v. Gates, supra to the contrary, it is actually the older test of Aguilar v. Texas (1964), 378 U.S. 108 andSpinelli v. United States (1969), 393 U.S. 410 which is erroneously being applied. See State v. George, supra, at 328-329, fn.3.

⁸ The quibbling of the majority over this point is mystifying. The tape recorded monitoring by police of a drug transaction in which the suspect sells drugs to an informant is inherent in the term "controlled buy" and was what happened in this case according to the facts relayed to the magistrate. I fail to see how the majority can claim that independent police identification of the defendant as the individual selling drugs to the informant on February 20, 1997, in this manner does not qualify as police corroboration of the informant.

⁹ The determination of staleness in this case ultimately turns upon the trial judge's spontaneous statement in the judgment entry granting the motion to suppress that it is "common knowledge, particularly with law enforcement and members of the judiciary that are regularly confronted with drug cases" that Cocaine dissipates from the urine in five days or less. There is absolutely no evidentiary basis or even a non-evidentiary scientific reference for this statement in the record. As such, even assuming the subject could be an appropriate one for judicial notice, it does not qualify in this instance.

Unconcerned, the majority relies on this naked announcement of scientific principle in its own opinion, thus highlighting perfectly the dangers of de novo review. For example, one can only conclude that the next trial (or appellate) judge is free to personally opine that the time frame for Cocaine dissipation is at least thirty days (or perhaps whatever is necessary) in order to determine a similar warrant is not stale. Similarly, the majority ridicules the notion that the addictive properties of cocaine might be a basis for assuming its continued use for a period of thirty days. Yet, on this record, that notion has every bit as much scientific or evidentiary basis as the assumption about dissipation adopted by the majority.

¹⁰ The trial court appears to be under the apprehension that each specific controlled substance sought must be named in a search warrant affidavit. While perhaps a good practice where the information is reliably available, there is no legal authority for such a rule cited by that court. Moreover, imposing such a requirement as the trial court appears to do is unnecessary and problematic for law enforcement, implying at best, that any additional controlled substances which have not been specifically named in the warrant could not be properly seized without obtaining another warrant — and worse, that the seizure of a named, suspected controlled substance which subsequently tests to be a different controlled substance might be challenged and suppressed because it was not precisely identified in the warrant in the first instance.