[Cite as State v. Elschlager, 2017-Ohio-5545.]
COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES: Hon. Patricia A. Delaney, P.J. Plaintiff-Appellant Hon. William B. Hoffman, J. Hon. Earle E. Wise, Jr., J. -vs- Case No. 16CAA090041 WILLIAM P. ELSCHLAGER
Defendant-Appellee OPINION
CHARACTER OF PROCEEDING: Appeal from the Delaware County Court of Common Pleas, Case No. 16CR-I-05- 00223
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: June 26, 2017
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
OFFICE OF THE DELAWARE SAMUEL H. SHAMANSKY PROSECUTING ATTORNEY 523 South Third Street CAROL HAMILTON O'BRIEN Columbus, Ohio 43215
KYLE ROHRER First Assistant Prosecuting Attorney Delaware County Prosecutor’s Office 140 North Sandusky Street Delaware, Ohio 43015 Delaware County, Case No. 16CAA090041 2
Hoffman, J.
{¶1} Plaintiff-appellant the state of Ohio appeals the September 22, 2016
Judgment Entry entered by the Delaware County Court of Common Pleas granting
Defendant-appellee William P. Elschlager’s motion to suppress, in part.1
STATEMENT OF THE FACTS AND CASE
{¶2} On January 17, 2016, the Washington County Sheriff’s Office executed a
search warrant at Appellee’s residence located at 305 Masonic Park Road, Marietta,
Washington County, Ohio in Case No. 16-CR-15.2 At all times relevant, the Ohio State
Highway Patrol employed Appellee as a sergeant. Appellee was previously assigned to
the Delaware County post.
{¶3} On January 15, 2016, A.B. met with Captain Troy Hawkins of the
Washington County Sheriff’s Department. A.B. accused Appellee of menacing by
stalking, telecommunications harassment, abduction, unlawful restraint, theft, receiving
stolen property and breaking and entering. Specifically, A.B. alleged Appellee stole
personal effects from her vehicle, including a small silver ring and a bottle of perfume.
Captain Hawkins discussed various protection orders with A.B., but indicated a court
would not be able to hear the motion for protective order until after the weekend.
1 The state of Ohio does not appeal that portion of the September 22, 2016 Judgment Entry denying Appellee’s motion to suppress the Steyr Mannlicher .40 caliber handgun. Rather, the State’s appeal is limited to that portion of the Judgment Entry granting the motion to suppress the seizure of the Jennings pistol. 2 In Washington County Case No. 16-CR-15, a search warrant was issued based upon a complaint to an officer of the Washington County Sheriff’s Department alleging Appellee engaged in telecommunications harassment, unlawful restraint, abduction and receiving stolen property of a female acquaintance. Delaware County, Case No. 16CAA090041 3
{¶4} Captain Hawkins obtained a search warrant for Appellee’s residence on
January 17, 2016. The warrant authorized the search of Appellee’s residence to recover
the ring, perfume and other documents or records, electronic or otherwise, pertaining to
Appellee’s alleged crimes of menacing by stalking, telecommunications harassment,
abduction, unlawful restraint, theft, receiving stolen property and breaking and entering.
The State concedes the search warrant did not mention firearms, but did include “any
other type of material” in reference to the charges of menacing by stalking and abduction.
{¶5} During the execution of the search warrant, law enforcement officers
observed a pile of clothing on a chair inside the residence. In sorting through the clothing,
the officers discovered an Ohio State Highway Patrol evidence bag, with attached papers
indicating the chain of custody ended in 2009. Inside the evidence bag, the officers
located a Steyr Mannlicher pistol.
{¶6} Lieutenant Scott Parks of the Washington County Sheriff’s Department
testified at the suppression hearing the illegal nature of the Steyr Mannlicher pistol was
immediately apparent to law enforcement officers present during the search due to the
evidence bag and papers demonstrating chain of custody. Tr. at 20.
{¶7} The officers then entered the attic of the residence. Captain Hawkins
testified at the suppression hearing he observed two boxes of ammunition, one opened
and one sealed, addressed to the Ohio Highway Patrol Academy. Tr. at 55. In the area
near the ammunition, Captain Hawkins observed another open box containing a .380
caliber Jennings pistol. Captain Hawkins testified he found the Jennings pistol in a
nondescript cardboard box. Captain Hawkins then laid the pistol “out so the detective
conducting the search could see it laying on top.” Tr. at 57. The firearm was later Delaware County, Case No. 16CAA090041 4
determined to be evidence in a 2004 Delaware County case in which the defendant plead
guilty, and the firearm was ordered to be destroyed. The officers seized both the Steyr
Mannlicher pistol and the .380 Jennings pistol.
{¶8} On May 6, 2016, the Delaware County Grand Jury indicted Appellee on one
count of tampering with records, in violation of R.C. 2913.42(A)(1), a third degree felony;
two counts of theft, in violation of R.C. 2913.02(A)(3), felonies of the third degree; two
counts of theft, in violation of R.C. 2913.02(A)(1), felonies of the third degree; and two
counts of theft, in violation of R.C. 2913.02(A)(2), felonies of the third degree.
{¶9} On August 19, 2016, Appellee filed a motion to suppress evidence obtained
pursuant to the search warrant issued in Washington County No. 16-CR-15. On
September 1, 2016, the State filed a memorandum contra to the motion to suppress. On
September 19, 2016, the trial court conducted a hearing on the motion.
{¶10} Via Judgment Entry of September 22, 2016, the trial court denied the motion
to suppress, in part, and granted the motion to suppress, in part. Specifically, the trial
court denied the motion as it pertained to the Steyr Mannlicher .40 caliber handgun, but
granted the motion with regard to the Jennings .380 caliber handgun.
{¶11} Appellant State appeals, assigning as error,
I. THE TRIAL COURT IMPROPERLY RULED THAT DEFENDANT-
APPELLEE WILLIAM ELSHLAGER HAD STANDING UNDER THE
FOURTH AMENDMENT TO CHALLENGE THE SEIZURE OF THE
STOLEN .380 CALIBUR JENNINGS PISTOL. Delaware County, Case No. 16CAA090041 5
II. THE SEIZURE OF THE .380 CALIBUR JENNINGS PISTOL
SATISFIED THE REQUIREMENT OF THE PLAIN VIEW EXCEPTION TO
THE WARRANT REQUIREMENT, AND THUS THE TRIAL COURT
ABUSED ITS DISCRETION WHEN IT SUPPRESSED THE .380
JENNINGS PISTOL AS EVIDENCE.
III. IN THE ALTERNATIVE, THE PISTOL WAS REASONABLY
SEIZED PURSUANT TO THE COMMUNITY CARETAKING EXCEPTION
TO THE WARRANT REQUIREMENT, AND THUS SHOULD NOT HAVE
BEEN SUPPRESSED.
IV. EVEN IF A FOURTH AMENDMENT VIOLATION OCCURRED,
THE OFFICER ACTED IN GOOD FAITH IN SEIZING THE .380 CALIBER
JENNINGS PISTOL, AND APPLYING THE EXCLUSIONARY RULE IN
THIS CASE WOULD NOT CREATE THE DETERRENT EFFECT
NECESSARY TO JUSTIFY SUPPRESSION OF THE EVIDENCE.
I.
{¶12} In the first assignment of error, the State maintains the trial court erred in
granting Appellee’s motion to suppress the .380 caliber Jennings pistol as Appellee lacks
standing to contest the seizure of stolen property.
{¶13} “Appellate review of a motion to suppress presents a mixed question of law
and fact.” State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. In
ruling on a motion to suppress, “the trial court assumes the role of trier of fact and is
therefore in the best position to resolve factual questions and evaluate the credibility of Delaware County, Case No. 16CAA090041 6
witnesses.” Id., citing State v. Mills, 62 Ohio St.3d 357, 366, 582 N.E.2d 972 (1992). On
appeal, we “must accept the trial court's findings of fact if they are supported by
competent, credible evidence.” Id., citing State v. Fanning, 1 Ohio St.3d 19, 20, 437
N.E.2d 583 (1982). Accepting those facts as true, we must then “independently determine
as a matter of law, without deference to the conclusion of the trial court, whether the facts
satisfy the applicable legal standard.” Id.
{¶14} Recently, this Court held in State v. Nicholson, Stark App. No.
2016CA00210, 2017-Ohio-2825,
The Fourth Amendment to the United States Constitution and Article
I, Section 14 of the Ohio Constitution provide for “[t]he right of the people to
be secure * * * against unreasonable searches and seizures * * *.” Searches
and seizures conducted without a prior finding of probable cause by a judge
or magistrate “are per se unreasonable under the Fourth Amendment,
subject to only a few specifically established and well-delineated
exceptions.” California v. Acevedo, 500 U.S. 565, 111 S.Ct., 1982 (1991);
State v. Tincher, 47 Ohio App.3d 188, 548 N.E.2d 251 (1988).
If the government obtains evidence through actions that violate an
accused's Fourth Amendment rights, that evidence must be excluded at
trial. State v. LeMaster, 4th Dist. No. 11 CA3236, 2012–Ohio–971, 2012 WL
762542, ¶ 8. “‘Standing is defined as a party's right to make a legal claim or
seek a judicial enforcement of a duty or right.’” Coleman v. Davis, 4th Dist.
No. 10CA5, 2011–Ohio–506, 2011 WL 345772, ¶ 16, citing State ex rel. Delaware County, Case No. 16CAA090041 7
Butler Twp. Bd. of Trustees v. Montgomery Cty. Bd. of Commrs., 124 Ohio
St.3d 390, 922 N.E.2d 945, 2010–Ohio–169, at ¶ 19, quoting Ohio Pyro,
Inc. v. Ohio Dept. of Commerce, 115 Ohio St.3d 375, 875 N.E.2d 550,
2007–Ohio–5024, at ¶ 27 (other internal quotation omitted). “‘Whether
established facts confer standing to assert a claim is a matter of law.’”
Cuyahoga Cty. Bd. of Commrs. v. State, 112 Ohio St.3d 59, 858 N.E.2d
330, 2006–Ohio–6499, at ¶ 23, quoting Portage Cty. Bd. of Commrs. v.
Akron, 109 Ohio St.3d 106, 846 N.E.2d 478, 2006–Ohio–954, at ¶ 90. “‘We
review questions of law de novo.’” State v. Elkins, 4th Dist. No. 07CA1,
2008–Ohio–674, at ¶ 12, quoting Cuyahoga Cty. Bd. of Commrs. at ¶ 23;
see, also, Bridge v. Midas Auto Experts # 322, 8th Dist. No. 94115, 2010–
Ohio–4681, at ¶ 6 (“The question of standing is an issue of law, which we
review de novo.”) (citation omitted).
Modern understandings of the Fourth Amendment recognize that it
serves to protect an individual's subjective expectation of privacy if that
expectation is reasonable and justifiable. Rakas v. Illinois, 439 U.S. 128,
143, 99 S.Ct. 421 (1978); Katz v. United States, 389 U.S. 347, 381, 88 S.Ct.
507 (1967) (Harlan, J., concurring); State v. Buzzard, 112 Ohio St.3d 451,
860 N.E.2d 1006 (2007).
Moreover, an individual must have standing to challenge the legality
of a search or seizure. Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421 (1978);
State v. Coleman, 45 Ohio St.3d 298, 544 N.E.2d 622 (1989). The person
challenging the search bears the burden of proving standing. State v. Delaware County, Case No. 16CAA090041 8
Williams, 73 Ohio St.3d 153, 652 N.E.2d 721 (1995). That burden is met by
establishing that the person has an expectation of privacy in the place
searched that society is prepared to recognize as reasonable. Id; Rakas v.
Illinois, supra.
{¶15} A defendant lacks standing to challenge a search where he has no
legitimate expectation of privacy in the place searched or the contents seized. United
States v. Hargrove, 647 F.2d 411 (4th Cir. 1981); see Rakas v. Illinois, 439 U.S. 128, 143-
44 & n. 12, 99 S.Ct. 421, 430-31 & n.12, 58 L.Ed.2d 387 (1978); United States v. Hensel,
672 F.2d 578 (6th Circuit 1982). A defendant must have a possessory interest in the items
seized and also an expectation of privacy in the area searched. Rakas v. Illinois (1978),
439 U.S. 128, and United States v. Salvucci (1980), 448 U.S. 83,
{¶16} In State v. Dubose, 164 Ohio App. 3d 698, 706, 843 N.E.2d 1222, 1229,
2005-Ohio-6602, ¶¶ 35-36, the Court held,
[A] person must also have some legitimate personal interest in the
place searched or thing seized in order to assert that his or her Fourth
Amendment privacy rights were violated. Although this is often referred to
as the requirement that the person have “standing” to raise the
constitutional violation, there is no additional legal analysis that is applied
to determine the person's standing. The only question to be answered is
whether the person had a legitimate expectation of privacy in the place Delaware County, Case No. 16CAA090041 9
searched or item seized. If a person has no possessory or property interest
in the place searched or item seized, it is often difficult to establish that a
legitimate expectation of privacy has been violated. In these situations it is
sometimes said that the person has no standing to raise the constitutional
violation.
The principle that rights assured by the Fourth Amendment are
personal rights which may be enforced by exclusion of evidence only at
issuance of one whose own protection has been infringed by the search
and seizure is best analyzed by focusing on extent of particular defendant’s
rights under Fourth Amendment; rather than on any theoretically separate,
but invariably intertwined concept of standing. Rakas, at Note 5.
A person aggrieved by an illegal search and seizure only through the
introduction of damaging evidence secured by search of a third person’s
premises or seizure of property does not have any of his Fourth Amendment
rights infringed. Rakas, supra at syllabus.
(Emphasis added.)
{¶17} A defendant need not prove legal ownership of the item to have standing to
challenge its seizure. Rather, the law requires only possession. The State may, without
legal contradiction, simultaneously maintain a defendant criminally possessed the seized
good, but was not subject to a Fourth Amendment deprivation. Rakas, supra; U.S. v.
Salvucci, 448 U.S. 83 (1980). It must be asked whether the defendant had an expectation Delaware County, Case No. 16CAA090041 10
of privacy in the area searched, and also whether the defendant has a possessory interest
in the item seized. Salvucci, supra.
{¶18} A “search” occurs when an expectation of privacy that society is prepared
to consider reasonable is infringed. U.S. v. Jacobsen, 104 S.Ct. 1652, 466 U.S. 109
(1984). A “seizure” of property occurs when there is some meaningful interference with
an individual’s possessory interest in that property. Id.
{¶19} In this case, Appellee clearly demonstrated a Fourth Amendment interest in
the premises searched because he owned and occupied the residence. We find Appellee
also demonstrated a legitimate Fourth Amendment interest in the property seized, as he
demonstrated a possessory interest in the item at the time of the search. Appellee had
the firearm in his possession, under his dominion and control, in his attic, stored in a
cardboard box. He clearly had domination over the firearm at the time it was seized.
{¶20} Possession may be either actual or constructive. A person has constructive
possession of an item when he is conscious of the presence of the object and able to
exercise dominion and control over that item, even if it is not within his immediate physical
possession. State v. Dillard, 173 Ohio App. 3d 373, 387–88, 878 N.E.2d 694, 705, 2007-
Ohio-5651, citing, State v. Mabry, Montgomery App. No. 21569, 2007-Ohio-1895.
Dominion and control may be established solely through circumstantial evidence. State
v. Barnett, Montgomery App. No. 19185, 2002-Ohio-4961, 2002 WL 31105398, ¶ 11.
{¶21} At the suppression hearing, the State argued the Jennings firearm was not
subject to exclusion due to the plain view criminality of the firearm, and the good faith
exception. At the conclusion of the hearing on Appellee’s motion to suppress, the trial
court held, Delaware County, Case No. 16CAA090041 11
THE COURT: All right. First of all, regarding the possessory interest issue,
the Court will find that the defendant had a possessory interest because it’s
his house. There isn’t any --- ***
And the Court’s satisfied that the weapon that appeared with the
sign-out sheet, the evidence sign-out sheet, was contraband and certainly
could have been seized at that point, even though it was outside the
parameters of the search warrant.
***
THE COURT: All right. What’s been marked—what’s Defendant’s Exhibit
A1 relates specifically to Mr. Elschlager’s residence and the search of his
residence, ***
Officer Parks testified that they went into the office area and the
exhibit, State’s Exhibit 1, showed a plastic bag with a weapon in it with
what he knew to be an evidence tracking form for their evidence, what’s
common for law enforcement officers in terms of keeping chain of custody
on evidence, and he knew right away that that shouldn’t be there in terms
of being contrary to protocol and had suspicion that also it—he possessed
that in violation of receiving stolen property statute and by virtue of it being
in his home probably tampering with evidence. So they seized that
weapon and also there was a highway patrol representative there, Anne
Ralston, who acknowledged it shouldn’t be there.
Then they found another weapon in the attic storage area, there
was an unopened case of ammunition that was – had the address of the Delaware County, Case No. 16CAA090041 12
Ohio State Highway Patrol Academy, and then an open box of
ammunition, and next to that was a cardboard box which had the .380,
Jennings .380, in it and they further seized that weapon.
There was some testimony about seizing the weapon in anticipation
of a CPO, but there wasn’t any CPO or TPO issued at the time of the
search.
The Court finds that the officer certainly could have gone back to
the Court and asked for a further warrant for that item and/or the
ammunition, and they didn’t do that. It exceeds the search parameters set
forth in the warrant, and because the warrants have to be, you know,
particular and specific and this was, and this was something that’s not—by
looking at it, you wouldn’t know whether that was a personal weapon or
not a person weapon.
So with that, the Court will grant the motion in part, suppress the
use of that weapon as far as evidence, being the Jennings.
Suppression Hearing, Tr. at 76; 80-83.
{¶22} The trial court’s Judgment Entry states,
The Jennings weapon discovered in a box in the attic was not on the
search warrant. Possession of the weapon did not appear to be a violation
of any law as contraband. That evidence was suppressed as evidence. Delaware County, Case No. 16CAA090041 13
{¶23} We find the trial court correctly held Appellee had standing to challenge the
search of his residence and the seizure of the Jennings firearm. The first assignment of
error is overuled.
II.
{¶24} In the second assigned error, the State maintains the trial court erred in
granting the motion to suppress as to the Jennings firearm, as the firearm was seized in
plain view.
{¶25} Under the plain view exception to the search warrant requirement, police
may seize items in plain view during a lawful search, if (1) the seizing officer is lawfully
present at the place from which the evidence can be plainly viewed; (2) the seizing officer
has a right of access to the object itself; and (3) the object's incriminating character is
immediately apparent. Horton v. California (1990), 496 U.S. 128, 136–37. The Ohio
Supreme Court has held the “immediately apparent” requirement of the “plain view”
doctrine is met when police have probable cause to associate an object with criminal
activity. State v. Halczyszak (1986), 25 Ohio St.3d 301, 496 N.E.2d 925. In ascertaining
the required probable cause, police officers may rely on their specialized knowledge,
training and experience. Id.
{¶26} We find the incriminating nature of the Jennings firearm was not
immediately apparent to the officers conducting the search. The officers did not have
probable cause to associate the firearm with a criminal purpose. Rather, Appellee carried
a firearm as part of his job responsibilities. Multiple firearms were located in the
residence, as well as, ammunition. Delaware County, Case No. 16CAA090041 14
{¶27} Unlike the Steyer Mannlicher firearm, the Jennings firearm did not have an
evidence tag putting the officers on notice the firearm was unlawfully possessed. The
firearm was not immediately apparent as incriminating evidence or contraband, and
testimony at the suppression hearing established the officers could not readily identify the
firearm as a stolen possession.3
{¶28} The second assignment of error is overruled.
III.
{¶29} In the third assignment of error, the State asserts the seizure of the
Jennings firearm was justified under the community caretaking exception. Specifically,
the State maintains the firearm was properly seized as a protection order was likely to be
granted in favor of A.B., and the officers seized the firearm to assure A.B.’s safety and
the safety of the community as a whole.
{¶30} In State v. Leak, 145 Ohio St. 3d 165, 169–70, 47 N.E.3d 821, 827–28,
2016-Ohio-154, the Ohio Supreme Court held,
This function is “totally divorced from the detection, investigation, or
acquisition of evidence relating to the violation of a criminal statute.” Id. at
441, 93 S.Ct. 2523. In the interest of public safety, as part of the community-
caretaking function of police, vehicles are frequently taken into police
custody. Opperman, 428 U.S. at 368, 96 S.Ct. 3092, 49 L.Ed.2d 1000, citing
Cady at 441, 93 S.Ct. 2523. Examples of vehicles taken into custody as part
of law enforcement's community-caretaking role include those that have
been in accidents, those that violate parking ordinances, those that are
3 We find the circumstances surrounding the seizure of the Steyr Mannlicher pistol add little, if anything, to support the suspicion the Jennings firearm was illegally possessed. Delaware County, Case No. 16CAA090041 15
stolen or abandoned, and those that cannot be lawfully driven. See Id. at
368–369, 96 S.Ct. 3092. The authority of police to seize and remove from
the street vehicles that impede traffic or threaten public safety and
convenience is beyond challenge. Id. at 369, 96 S.Ct. 3092.
Inventory searches performed pursuant to standard police procedure
on vehicles taken into police custody as part of a community-caretaking
function are reasonable. Id. at 373, 96 S.Ct. 3092.
{¶31} Here, the search was not conducted as part of a vehicle or inventory search,
nor was the search pursuant to an issued civil protection order or temporary protection
order. While the State provided testimony as to the established procedure of the
Washington County Sheriff’s Department relative to the seizure of firearms when a
protection order has been granted, a protection order had not been issued or heard by a
court. Rather, the Washington County Sheriff’s Office obtained the warrant for recovery
of items stolen from A.B., including a silver ring and bottle of perfume. The search warrant
provided for the seizure of other documents and records, electronic or otherwise,
pertaining to menacing by stalking, telecommunications harassment, abduction, unlawful
restraint, theft, receiving stolen property and breaking and entering. The warrant does not
provide for the seizure of firearms.
{¶32} We do not find the Jennings .380 pistol properly seized pursuant to the
community caretaking exception to the warrant requirement.
{¶33} The third assignment of error is overruled. Delaware County, Case No. 16CAA090041 16
IV.
{¶34} In the fourth assignment of error, the State argues the officers acted in good
faith in seizing the .380 Jennings firearm; therefore, the exclusionary rule should not
apply.
{¶35} In United States v. Leon (1984), 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d
677, the United States Supreme Court established a good faith exception to the
exclusionary rule. The Leon court held:
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. [Stone v. Powell],
428 U.S. [465], at 498, 96 S.Ct. [3037], at 3054 [49 L.Ed.2d 1067 (1976) ]
(BURGER, C.J., concurring). Penalizing the officer for the magistrate's Delaware County, Case No. 16CAA090041 17
error, rather than his own, cannot logically contribute to the deterrence of
Fourth Amendment violations. (Footnote omitted.)
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. [213], at 267, 103
S.Ct. [2317], at 2347 [76 L.Ed.2d 527 (1983)] (WHITE, J., concurring in
judgment), for ‘a warrant issued by a magistrate 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. Delaware County, Case No. 16CAA090041 18
{¶36} It is undisputed the officers herein acted in justifiable reliance on the search
warrant in conducting their search of the premises. The warrant has not been proven to
be defective or insufficient. Rather, the officers seized the Jennings firearm maintaining
the plain view criminality of the item. The warrant did not provide for seizure of firearms.
Accordingly, the seizure does not fall within the parameters of the good faith exception.
{¶37} The fourth assignment of error is overruled.
{¶38} The judgment of the Delaware County Court of Common Pleas is affirmed.
By: Hoffman, J.
Delaney, P.J. and
Wise, Earle, J. concur