State v. Brown

[Cite as State v. Brown, 2013-Ohio-2224.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. W. Scott Gwin, P.J.
Plaintiff-Appellant : Hon. William B. Hoffman, J.
: Hon. Sheila G. Farmer, J.
-vs- :
:
TODD E. BROWN : Case No. 2012CA00099
:
Defendant-Appellee : OPINION
CHARACTER OF PROCEEDING: Appeal from the Alliance Municipal
Court, Case No. 2012 CRB 00190
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT: May 28, 2013
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
ANDREW ZUMBAR STEPHEN J. KANDEL
470 East Market Street 101 Central Plaza South
Alliance, OH 44601 Suite 1003
Canton, OH 44702
Stark County, Case No. 2012CA00099 2
Hoffman, J.
{¶1} Plaintiff-appellant the State of Ohio appeals the May 17, 2012 Judgment
Entry entered by the Alliance Municipal Court granting Defendant-appellee Todd
Brown’s motion to suppress evidence.
{¶2} On February 9, 2012, Alliance Police Detective Bob Rajean obtained a
search warrant from Judge Dixilene Park, judge of the Court of Common Pleas of Stark
County, Probate Division. The warrant was executed on a commercial business
operated by appellee, Todd Brown. As a result, appellee was charged with one count of
gambling in violation of R.C. 2915.02 and one count of operating a gambling house in
violation of R.C. 2915.03.
{¶3} On March 28, 2012, appellee filed a motion to suppress, claiming R.C.
2913.01 precluded the probate judge from issuing the search warrant. A hearing was
held before a magistrate on April 4, 2012. By report and recommendation filed April 30,
2012, the magistrate agreed with appellee and recommended granting the motion.
Appellant, the state of Ohio, filed objections. By judgment entry filed May 17, 2012, the
trial court overruled the objections and approved the magistrate's report.
{¶4} It is from that entry, Appellant prosecutes this appeal, assigning as error:
I
{¶5} "THE TRIAL COURT ERRED WHEN IT ADOPTED THE MAGISTRATE'S
RULING CONCLUDING THAT THERE WAS NO AUTHORITY ON THE PART OF
JUDGE OF THE COMMON PLEAS COURT, PROBATE DIVISION TO ACT UPON A
REQUEST FOR A SEARCH WARRANT."
Stark County, Case No. 2012CA00099 3
II
{¶6} "THE TRIAL COURT ERRED WHEN IT ADOPTED THE MAGISTRATE'S
RULING WHICH SUPPRESSED ALL ITEMS SECURED BY ALLIANCE POLICE
DEPARTMENT IN A COMMERCIAL STRUCTURE INCLUDING THOSE ITEMS
WHICH WERE LOCATED IN PLAIN VIEW IN AN AREA OPEN TO THE GENERAL
PUBLIC."
III
{¶7} "THE TRIAL COURT ERRED WHEN IT GRANTED THE REMEDY OF
SUPPRESSION OF EVIDENCE FOR A CLAIMED VIOLATION OF A STATUTORY
PROVISION WHEN OFFICERS WERE ACTING IN GOOD FAITH ON A WARRANT
BELIEVED TO BE VALID."
I
{¶8} The primary issue before this Court is whether a judge of the Court of
Common Pleas, Probate Division, has the authority to issue a search warrant. For the
reasons that follow, we think not.
{¶9} R.C. 2933.21 (Search warrant) states, in part:
“A judge of a court of record may, within his jurisdiction, issue
warrants to search a house or place…”
In conjunction thereto, Crim.R.41(A) (Authority to issue warrant)
provides:
“A search warrant authorized by this rule may be issued by a judge
of a court of record to search and seize property located within the court’s
territorial jurisdiction…”
Stark County, Case No. 2012CA00099 4
{¶10} However, R.C. 2931.01 states, “As used in Chapters 2931. to 2953. of the
Revised Code… (B) ‘Judge’ does not include the probate judge. (C) ‘Court’ does not
include the probate court.”
{¶11} Appellant argues the probate judge and probate court were abolished by
amendments to the Ohio Constitution in 1968 and 1973, and R.C. 2931.01 is “…a hold-
over from the antiquated General Code, and refers to a prior time period when there
actually existed a separate Probate Judge and separate Probate Court in Ohio.”
Appellant expounds the most plausible explanation for their exclusion from authority to
issue search warrants is they were originally not courts of record. Appellant argues they
became such by amendments to the Ohio Constitution in 1968 and 1973.
{¶12} We believe there still exists a “probate judge” and a “probate court,”
although they are now recognized as a separate division of the Court of Common Pleas.
We recognize the probate court is now considered a “court of record.” But does this
changed status render the exclusion found in R.C. 2931.01(B) and (C) of no
consequence?
{¶13} The Ohio Supreme Court in State v. Cotton (1978) 56 Ohio St.2d 8, 12-13,
found R.C. 2931.01 was ineffective to disqualify judges of the Probate Division of the
Court of Common Pleas from serving on criminal cases, based upon the 1968 and 1973
constitutional amendments establishing the Probate Division of a Court of Common
Pleas.1 Because Section 5(A)(3) of Article IV of the Ohio Constitution authorizes the
chief justice or acting chief justice to assign any judge of a court of common pleas or a
division thereof to temporarily sit or hold court on any other court of common pleas or
1
See State v. Bays (1999), 87 Ohio St.3d 15; and State, ex rel. Key v. Spicer (2001), 91
Ohio St.3d 469, for a similar result.
Stark County, Case No. 2012CA00099 5
division thereof, the Ohio Supreme Court concluded a probate court judge could serve
in criminal cases despite R.C. 2931.01.
{¶14} We find Cotton is not dispositive of the issue herein for the simple reason
Judge Park was not assigned by the chief justice or acting chief justice pursuant to
Section (5)(A)(3) to preside over a criminal case. In the absence of such a specific
constitutional delegation of authority, we find no reason the legislature’s directive in
2931.01(B) and (C) should be declared ineffective as it relates to excluding a probate
court judge from having the authority to issue a search warrant.
{¶15} Appellant relies upon State v. Johnson (Ohio App.4th Dist.) 1986 WL 8799,
in support of its argument. The Johnson court concluded R.C. 2931.01(B) and (C) are
mere relics from [the] past and the phrase “judge of a court of record” in R.C. 2933.21
and Crim.R.41 is sufficiently specific to supersede the general definition of “judge” and
“court” in R.C. 2931.01, under the rules of construction codified at R.C. 1.12 and 1.51.2
{¶16} R.C. 1.51 provides:
If a general provision conflicts with a special or local provision, they
shall be construed, if possible, so that effect is given to both. If the conflict
between the provisions is irreconcilable, the special or local provision
prevails as an exception to the general provision, unless the general
provision is the later adoption and the manifest intent is that the general
provision prevail.
2
We find R.C. 1.12 of little or no consequence in determining the issue before us. R.C.
1.12 makes specific reference to special provisions as to service, pleadings, and
competency of witnesses. We find such to be essentially procedural in nature. On the
other hand, we find R.C. 2931.01 specifically defines a court’s authority/jurisdiction to
issue a search warrant, essentially a substantive provision.
Stark County, Case No. 2012CA00099 6
{¶17} Appellee argues the Johnson court misapplied the above rules. We
agree.
{¶18} R.C. 2931.01 (B) and (C) became effective January 1, 1976, nearly eight
years after the 1968 and 1973 Modern Courts Amendments. Crim. R.41 was adopted
January 1, 1973. R.C. 2933.21 became effective June 13, 1975. It is important to note
the effective date of R.C. 2931.01 is the latest enactment. We cannot ignore, nor do we
presume, the legislature’s specific exclusion of a “probate judge” and the “probate court”
found therein was an act of oversight or inadvertence. To the contrary, we find it an
expression of the legislature’s manifest intent.
{¶19} Applying R.C. 1.51, we opine the definition of “courts of record” in R.C.
2933.21 and Crim.R. 41 are general provisions in comparison to the specific exclusion
of a probate judge and the probate court found in R.C. 2931.01(B) and (C). To the
extent they cannot be reconciled to give effect to both, R.C. 1.51 states the special
provision [R.C. 2931.01(B) and (C)] prevails as an exception to the general provision
[R.C. 2933.21 and Crim.R.41] unless the general provision is the later adoption and the
manifest intent is that the general provision prevail. But as previously stated, R.C.
2933.21 and Crim.R.41 were both enacted before the adoption of R.C. 2931.01(B) and
(C). Assuming, arguendo, R.C. 2931.01(B) and (C) is a general provision and R.C.
2933.21 and Crim.R.41 are specific provisions, R.C. 2931.01(B) and (C) would be the
“later adoption” and by it the legislature manifested its intent it prevail over the former
because R.C. 2931.01(B) and (C) specifically excludes a probate judge or the probate
court as used in Chapters 2931. to 2953. of the Revised Code.
{¶20} Appellant’s first assignment of error is overruled.
Stark County, Case No. 2012CA00099 7
III
{¶21} In United States v. Leon (1984), 468 U.S. 897, 104 S.Ct. 3405, the United
States Supreme Court established a good faith exception regarding insufficient or
defective search warrants. The Leon court held:
{¶22} "This is particularly true, we believe, when an officer acting with objective
good faith has obtained a search warrant from a judge or magistrate and acted within its
scope. (Footnote omitted.) In most such cases, there is no police illegality and thus
nothing to deter. It is the magistrate's responsibility to determine whether the officer's
allegations establish probable cause and, if so, to issue a warrant comporting in form
with the requirements of the Fourth Amendment. In the ordinary case, an officer cannot
be expected to question the magistrate's probable-cause determination or his judgment
that the form of the warrant is technically sufficient. ‘[O]nce the warrant issues, there is
literally nothing more the policeman can do in seeking to comply with the law.’ Id., 428
U.S., at 498, 96 S.Ct., at 3054 (BURGER, C.J., concurring). Penalizing the officer for
the magistrate's error, rather than his own, cannot logically contribute to the deterrence
of Fourth Amendment violations. (Footnote omitted.)
{¶23} "We conclude that the marginal or nonexistent benefits produced by
suppressing evidence obtained in objectively reasonable reliance on a subsequently
invalidated search warrant cannot justify the substantial costs of exclusion. We do not
suggest, however, that exclusion is always inappropriate in cases where an officer has
obtained a warrant and abided by its terms. ‘[S] earches pursuant to a warrant will rarely
require any deep inquiry into reasonableness,’ Illinois v. Gates, 462 U.S., at 267, 103
S.Ct., at 2347 (WHITE, J., concurring in judgment), for ‘a warrant issued by a magistrate
Stark County, Case No. 2012CA00099 8
normally suffices to establish’ that a law enforcement officer has ‘acted in good faith in
conducting the search.’ United States v. Ross, 456 U.S. 798, 823, n. 32, 102 S.Ct.
2157, 2172, n. 32, 72 L.Ed.2d 572 (1982). Nevertheless, the officer's reliance on the
magistrate's probable-cause determination and on the technical sufficiency of the
warrant he issues must be objectively reasonable, cf. Harlow v. Fitzgerald, 457 U.S.
800, 815–819, 102 S.Ct. 2727, 2737–2739, 73 L.Ed.2d 396 (1982), (Footnote omitted)
and it is clear that in some circumstances the officer (Footnote omitted) will have no
reasonable grounds for believing that the warrant was properly issued."
{¶24} Under the good faith exception espoused in Leon, the exclusionary rule
should not be applied so as to bar the use in the prosecution's case-in-chief of evidence
obtained by officers acting in objectively reasonable reliance on a search warrant issued
by a detached and neutral magistrate but ultimately found to be unlawful. State v.
Oprandi, 5th Dist. No. 07-CA-5, 2008-Ohio-168.
{¶25} We agree with the State's position the officers herein acted in good faith
when executing the search warrant according to Leon. Alliance City Prosecutor Andrew
Zumbar testified at the suppression hearing herein,
{¶26} “The Court: Okay. But you have a town whether it’s the Alliance Municipal
Court judge duly elected, you also have a general division judge who resides nearby, is
there a reason not only in your case, but in any cases you’ve cited why the probate
judge heard the search warrant?
{¶27} “Mr. Zumbar: In this particular case before the Court?
{¶28} “The Court: Or in the ones you cite or both?
Stark County, Case No. 2012CA00099 9
{¶29} “Mr. Zumbar: I don’t believe it’s clear in the cases. That question that
you’ve asked is not answered in the cases that you’ve - - that I’ve presented to the
Court, you know, why did the probate judge hear this. In terms of this case, the Stark
County Common Pleas, Court, Probate Division judges have been haring probable
cause for search warrants dating back at least to R.R. Denny Clunk. I can tell this Court
as an officer before this Court, I have personally secured warrants from Judge Clunk
himself when he was a probate division judge of the common pleas court and then
subsequently when he began as acting judge of the Alliance Municipal Court as well.
But that was the very first time that I secured a warrant from the probate judge was
when Judge Clunk was on the bench. It goes back that far.
{¶30} “The Court: Okay. So, it’s judge shopping.
{¶31} “Mr. Zumbar: No, ma’am.
{¶32} “The Court: Okay.
{¶33} “Mr. Zumbar: No, Ma’am. If- -if the judge is available that’s who they- -
they go to whatever judge they can get their hands on at that time.
{¶34} “The Court: Whatever judge is available. So, in choosing you contact the
other judges and they either don’t answer- -unavailable, is that…
{¶35} “Mr. Zumbar: I can’t state specifically, I was not the prosecutor who
submitted the probable cause in this case. I do know that other judges of the common
pleas division have been solicited from time to time. I’m directly aware of the fact that- -
Judge Sinclair has issued warrants. I’m directly aware that Judge Brown has issued
warrants. I’m directly aware of the fact that not only has Judge Lavery issued
conservatively speaking, five hundred (500) search warrants.”
Stark County, Case No. 2012CA00099 10
{¶36} Tr. at p. 28-29.
{¶37} In addition, the State's appellate brief offered a litany of appellate cases
demonstrating the common practice of probate division judges issuing search warrants
throughout the State of Ohio. See, State v. Bradley, 2nd Dist. No. CIV A 93-CA-101,
November 23, 1993; State v. Dewald, 3rd Dist. No. 13-82-35, May 27, 1983; State v.
Ridgeway, 4th Dist. No. 00CA19, 2001-Ohio-2655; State v. Cassidy, 11th Dist. No.
90L049, November 15, 1991; State v. Tatonetti, 11th Dist. No. 1021, January 7, 1983;
State v. Abrams, 12th Dist. No. 315, May 4, 1983.
{¶38} As noted supra in Johnson, there was existing appellate authority, albeit
from another appellate district and which we have herein found to be unpersuasive, to
support a probate judge's authority to issue a search warrant.
{¶39} Accordingly, at the time the officers executed the search warrant herein,
the past practice of the court and the police, as well as the law of other jurisdictions,
lead the officers to believe in good faith the search warrant was valid.
{¶40} However, this Court having now found the probate court judge does not
have authority to issue search warrants, the State is now on notice in any future actions
and executions of search warrants, those search warrants issued by a probate division
may no longer be relied upon in good faith per Leon, supra.{¶41} The State's third assigned error is sustained.
II
{¶42} In light of our analysis and disposition of the State's third assignment of
error, we find the second assignment of error moot.
Stark County, Case No. 2012CA00099 11
{¶43} The judgment of the Alliance Municipal Court is reversed, and the matter
remanded to that court for further proceedings in accordance with the law and this
opinion.
By Hoffman, J.
Gwin, P.J. concurs
Farmer, J. dissents
s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ W. Scott Gwin _____________________
HON. W. SCOTT GWIN
___________________________________
HON. SHEILA G. FARMER
Stark County, Case No. 2012CA00099 12
Farmer, J., dissents
{¶44} I respectfully dissent from the majority's opinion in Assignment of Error I.
While the majority recognizes that the probate court is now considered a "court of
record," it concluded a probate judge does not have the authority to issue search
warrants under R.C. 2931.01(B) and (C).
{¶45} Based upon the decisions in Cotton, Bays, and Johnston as cited in the
majority opinion, I would find R.C. 2931.01 does not prohibit a probate judge from
issuing search warrants.
{¶46} In ¶ 14, the majority dismisses the Cotton decision on the fact that "Judge
Park was not assigned by the chief justice or acting chief justice pursuant to Section
(5)(A)(3) to preside over a criminal case." I would find an assignment by the chief
justice not to be necessary because Judge Park is a member of the Court of Common
Pleas. In fact, Judge Park has the statutory authority to appoint other common pleas
judges to act as probate judge. R.C. 2101.37.
{¶47} I specifically disagree with the majority's opinion that an archaic statute
governs sub judice, when in fact the passage of the 1968 Modern Courts Amendment
has placed all of the judges on the Court of Common Pleas on equal footing.
{¶48} I concur with the majority's opinion on Assignment of Error II. I would
reverse the case on both assignments of error.
s/ Sheila G. Farmer _____________________
HON. SHEILA G. FARMER
[Cite as State v. Brown, 2013-Ohio-2224.]
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellant :
:
-vs- : JUDGMENT ENTRY
:
TODD E. BROWN :
:
Defendant-Appellee : CASE NO. 2012CA00099
For the reasons stated in our accompanying Opinion, the judgment of the
Alliance Municipal Court is reversed, and the matter remanded to that court for further
proceedings in accordance with the law and our Opinion. Costs to Appellee.
s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ W. Scott Gwin _____________________
HON. W. SCOTT GWIN
s/ Sheila G. Farmer __________________
HON. SHEILA G. FARMER