State v. Daniels

441 N.E.2d 1133, 2 Ohio App. 3d 328

• Court: Ohio Court of Appeals
• Decided: July 24, 1981
• Docket: H-80-20
• Status: Published

Opinions

Douglas, J.

This is an appeal brought by the state of Ohio from judgment of the Huron County Court of Common Pleas, granting a motion to suppress evidence seized pursuant to a search warrant. The trial court, upon consideration of the affidavit only, found the search warrant to be defective:

“* * * based upon a lack of identification of the source of information provided in the affidavit and the subsequent failure of the search warrant to meet the two pronged test set forth by the United States Supreme Court in Aguilar versus Texas, 378 U.S. 108 (1964) and the Court further finds a lack of substantiating facts in the affidavit and therefore, there was no basis to find probable cause to search the aforementioned automobile.” (Journal Entry, June 16, 1980.)

From this judgment, appellant, the state of Ohio, appeals.

Appellant presents the following, labeled as argument, which we consider to be assignments of error. See, however, App. R. 16.

“1. The trial court erred in suppressing the evidence.

“2. The trial court erred in denying the State the opportunity to proffer into the record evidence to support independent probable cause for the search of the vehicle.”

In its first assignment of error, appellant contends that the affidavit •establishing probable cause was not invalid on its face and that any omission was a reasonable error by the officer act ing in good faith. The affidavit, in pertinent part, is as follows:

“1. That on August 29, 1978 a house located at 20470 West Helwig Road Martin, Ottawa County, Ohio, owned by Robert Reinbolt was entered by force and several items of property were stolen therefrom.

“2. Immediately prior to the discovery of the burglary, a green American Motors Gremlin automobile was discovered parked along the road near the scene of the burglary. The vehicle identification number on the vehicle is A2F465E705995.

“3. The Ottawa County Sheriffs office had been notified that on August 26, 1978 a similar green AMC Gremlin was seen at the scene of a Breaking and Entering in Sandusky County, Ohio.

“4. The Ottawa County Sheriff’s office had also been notified that on August 29, 1978 a similar green AMC Gremlin was seen at the scene of an Aggravated Burglary and Aggravated Robbery in Huron County, Ohio.

“5. The Affiant believes that the green AMC Gremlin found on a country road adjacent to the scene of an aggravated burglary is the same vehicle used in the crimes listed in paragraphs 2 and 3 above and that the vehicle was to be used by the persons burglarizing the residence described in paragraph 1 above and that the green AMC Gremlin, vin (sic) number A2F465E705995 with Michigan Liscense (sic) Plate number XGH 405 contains a pistol, tools, stolen property and contraband, used in the crimes listed above. Stolen property includes a gold watch, a .22 cal. pistol, a blank pistol, a sawed off .22 cal. rifle, 2 boxes of .22 cal. long rifle shells, a diamond dinner ring, a set of wedding rings, a brown and white pillow case, and cancelled checks belonging to Millard Burns.”

In paragraph two of the headnotes of Aguilar v. Texas (1964), 378 U.S. 108, the United States Supreme Court set out the following two-pronged test for determining probable cause to search:

“Although an affidavit supporting a search warrant may be based on hearsay information and need not reflect the direct personal observations of the af-fiant, the magistrate must be informed of some of the underlying circumstances relied on by the person providing the information and some of the underlying circumstances from which the affiant concluded that the informant, whose identity was not disclosed, was creditable or his information reliable. Giordenello v. United States, 357 U.S. 480, followed.”

In the case before this court, the trial court found that the affidavit did not meet the second prong of the above cited test in that the reliability of the undisclosed source was not established. We note, at the outset of our discussion, that the word “notified” rather than the word “informed” was used in the paragraphs numbered 3 and 4 of the affidavit. The use of the word “notified” implies that the source of the information was an official report rather than an informant’s tip. Further, considering the entire affidavit, such an inference is strengthened by the type of information and manner of presentation. In fact, the information relied upon had either been received from radio transmitted police reports from neighboring counties or from local sheriff’s department investigative work. Had these sources been disclosed in the affidavit, the reliability of the information would have been established. See State v. Kuno (1976), 46 Ohio St. 2d 203 [75 O.O.2d 239]; State v. Fultz (1968), 13 Ohio St. 2d 79 [42 O.O.2d 259].

Only that information actually conveyed to the issuing judge may be considered in determining sufficiency of probable cause to issue a search warrant upon review. State v. Borsick (1978), 62 Ohio App. 2d 39 [16 O.O.3d 79], We, however, find the above related facts relevant in establishing that the omission of the identity of the source was uninten tional and not in bad faith. The exclusionary rule was adopted as a deterrent to prevent abusive practices in search and seizure cases and, further, to promote respect for constitutional protections from unreasonable search and seizure. Davis v. Mississippi (1969), 394 U.S. 721; Elkins v. United States (1960), 364 U.S. 206. Neither of these purposes was served in this case. The defect in the affidavit herein was essentially a technical error, an omission, inadvertently made by an officer making a good faith effort to comply with the law. We note, with respect to this, that the officers may have had grounds for a warrantless search, as well. We will discuss this aspect of the case more fully under appellant’s second assignment of error.

It would be unreasonable to require officers of the law, whose job is to protect and serve, to also be masters of the intricacies of the English language. In United States v. Ventresca (1965), 380 U.S. 102, at 108, the Supreme Court of the United States, held the following:

“* * * If the teachings of the Court’s cases are to be followed and the constitutional policy served, affidavits for search warrants, such as the one involved here, must be tested and interpreted by magistrates and courts in a common sense and realistic fashion. They are normally drafted by nonlawyers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area. A grudging or negative attitude by reviewing courts toward warrants will tend to discourage police officers from submitting their evidence to a judicial officer before acting. ” (Emphasis added.)

For the foregoing reasons, we find that the affidavit in issue presented sufficient information upon which to base a finding of probable cause and further find the omission with respect to the source of that information not fatal to the search warrant when said affidavit is considered in its entirety. We find appellant’s first assignment or error well taken.

We now consider appellant’s second assignment of error in which appellant contends that the trial court erred in denying the state the opportunity to establish to the court that there was probable cause to search the vehicle on alternative grounds. The state sought to present evidence concerning the events surrounding the search of the vehicle upon which a valid warrantless search might have been based. Those events, as the state described them, follow. The vehicle, which met -the description of a vehicle reported to have been used in a burglary and armed robbery in neighboring counties, was discovered parked partially in the roadway, unattended. An investigation of the surrounding area, where the vehicle was parked, brought about the discovery of a recent burglary and also discovery of appellee, Gary Daniels. Ap-pellee was then arrested. The vehicle, which was registered to appellee, was then impounded and towed. Had the state been permitted to present such evidence, a lawful warrantless search may have been established. See, e.g., Texas v. White (1975), 423 U.S. 67; Chambers v. Maroney (1970), 399 U.S. 42. We find that, where alternative grounds for the admission of evidence seized pursuant to a warrant are available, it is error for a trial court to deny the state the opportunity to establish those grounds at a hearing on á motion to suppress such evidence. We, therefore, find appellant’s second assignment of error well taken.

On consideration whereof, this court finds substantial justice was not done the party complaining, and judgment of the Huron County Court of Common Pleas is reversed. The motion to suppress is hereby denied.

This cause is remanded to said court for further proceedings according to law. Costs to abide final outcome.

Judgment reversed.

Connors, P.J., concurs. Potter, J., dissents.