State v. Valentine ( 1991 )

I concur in the judgment sustaining appellant's assignment of error and reversing the judgment entered by the court below, and add the following comments concerning the "destruction-of-evidence exception" to the R.C. 2935.12 requirements of prior notice and refusal of admittance.

Initially, I am persuaded that the majority opinion is correct in rejecting the so-called "blanket rule" that the destruction-of-evidence exception is satisfied merely by the fact that the objects named in the search warrant are by their nature amenable to ready disposal or destruction, i.e., gambling records. The rationale for rejecting the blanket rule has been stated as follows:

"Under the Fourth Amendment, a specific showing must always be made to justify any kind of police action tending to disturb the security of the people in their homes. Unannounced forcible entry is in itself a serious disturbance of that security and cannot be justified on a blanket basis. Otherwise the constitutional test of reasonableness would turn only on practical expediency, and the amendment's primary safeguard — the requirement of particularity — would be lost. Just as the police must have sufficiently particular reason to enter at all, so must they have some particular reason to enter in the manner chosen." State v. Gastelo (1967), 67 Cal.2d 586, 588-589,63 Cal.Rptr. 10, 12, 432 P.2d 706, 708, as cited in 2 LaFave, Search and Seizure (2 Ed. 1987) 280-281, Section 4.8(d).

The issue then is what standard is to be applied in determining the sufficiency of the required showing for the destruction-of-evidence exception. The majority opinion appears to intermix the standards as "strong probability," "reasonable cause," "probable cause," and "good chance." Although the last three standards might be considered to be interchangeable, the "strong probability" standard appears harsher than what even Professor LaFave is advocating. To establish a degree of uniformity in these cases, we should announce the standard as follows:

"[A]nnouncement is not required if, before arriving to search, the police have particular reasons to reasonablybelieve in a particular case that evidence will be destroyed." (Emphasis added.) LaFave, supra, at 283-284; see, also,United States v. Tracy (C.A. 8, 1988), 835 F.2d 1267; but, cf.,United States v. Nabors (C.A. 6, 1990), 901 F.2d 1351.

Nevertheless, as the majority opinion appears to recognize, this case, as well as the decision of the First District Court of Appeals in DeFiore, supra, seems to conflict with the decision of the Ninth District Court of Appeals in Roper,supra, and a certification would seem appropriate.