State v. George

544 N.E.2d 640, 45 Ohio St. 3d 325, 1989 Ohio LEXIS 242

• Court: Ohio Supreme Court
• Decided: September 27, 1989
• Docket: No. 88-559
• Status: Published

Opinions

Shaw, J.

This case arises from the issuance and execution of a search warrant and presents two issues for our review: (1) does the affidavit submitted in support of the search warrant contain sufficient probable cause to support the decision of the magistrate to issue the warrant under the “totality-of-the-circumstances’ ’ test of Illinois v. Gates (1983), 462 U.S. 213, and (2) if not, should the evidence obtained by law enforcement officers as the result of their execution of this search warrant be admissible in the prosecution’s case-in-chief in any event, under the “good faith exception” to the exclusionary rule set forth in United States v. Leon (1984), 468 U.S. 897?

The majority in the court of appeals determined that because the affidavit submitted in support of the search warrant related only to an item outside the residence, the affidavit contained “* * * no factual basis to support the affiant police officer’s conclusion that he had good reason to believe that in the appellee’s residence there was [sic] concealed marijuana in a growing state, sticks, pots and other paraphernalia used to cultivate marijuana, and marijuana prepared for smoking. * * *” (Emphasis sic.) Based upon this determination and their interpretation of Illinois v. Gates and United States v. Leon, supra, the majority in the court of appeals concluded that “* * * the affidavit utterly failed to supply the magistrate with the appropriate indicia of probable cause for the issuance of a warrant to search the interior of the appellee’s residence, and that, under the circumstances, no officer could have reasonably relied upon the warrant to conduct a residence search.” (Emphasis sic.)

However, in a dissenting opinion, Judge Black expressed his view that under the standard announced in Illinois v. Gates, supra, the affidavit for the search warrant contained sufficient probable cause to search the residence as well as the yard in this case and that even if the affidavit was determined to be insufficient, this case “* * * falls within the ambit of the ‘good-faith’ exception to the exclusionary rule under United States v. Leon * * *,” supra. For the following reasons, we agree with the analysis of Judge Black and reverse the judgment of the court of appeals.

In Illinois v. Gates, supra, the United States Supreme Court abandoned the “two-pronged test” of Aguilar v. Texas (1964), 378 U.S. 108, and Spinelli v. United States (1969), 393 U.S. 410, which had long governed the determination and review of the sufficiency of probable cause in an affidavit submitted in support of a search warrant, and adopted a “totality-of-the-circumstances” test in its place. Illinois v. Gates, supra, at 238.³ In Massachusetts v. Upton (1984), 466 U.S. 727, the Supreme Court emphatically reaffirmed the scope of the Gates decision:

“We think that the Supreme Judicial Court of Massachusetts misunderstood our decision in Gates. We did not merely refine or qualify the ‘two-pronged test.’ We rejected it as hypertechnical and divorced from ‘the factual and practical considerations of everday [sic] life on which reasonable and prudent men, not legal technicians, act.’ Brinegar v. United States, 338 U.S. 160, 175 (1949). Our statement on that score was explicit. * * *” Massachusetts v. Upton, supra, at 732.

The totality-of-the-circumstances test of Illinois v. Gates, supra, is concisely set forth in that decision at 238-239:

“* * * The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a ‘substantial basis for * * * concluding]’ that probable cause existed. Jones v. United States, 362 U.S. at 271. * * *”

The Gates decision provides considerable elaboration as to the “fair probability” standard applicable to the magistrate’s probable cause determination. We find the following passage particularly instructive:

“* * * ‘[T]he term “probable cause,” according to its usual acceptation, means less than evidence which would justify condemnation * * *. It imports a seizure made under circumstances which warrant suspicion’ [quoting from Locke v. United States (1813), 7 Cranch 339, 348]. More recently, we said that ‘the quanta * * * of proof’ appropriate in ordinary judicial proceedings are inapplicable to the decision to issue a warrant. Brinegar, 338 U.S., at 173. Finely tuned standards such as proof beyond a reasonable doubt or by a preponderance of the evidence, useful in formal trials, have no place in the magistrate’s decision. * * * [I]t is clear that ‘only the probability, and, not a prima facie showing, of criminal activity is the standard of probable cause.’ Spinelli, 393 U.S., at 419. See Model Code of Pre-Arraignment Procedure § 210.1(7) (Prop. Off. Draft 1972); 1 W. LaFave, Search and Seizure § 3.2(e) (1978).” (Emphasis added.) Illinois v. Gates, supra, at 235.

It is also important to note that the totality-of-the-circumstances analysis of Gates not only addresses the original probable cause determination of the magistrate but carefully limits the role of a reviewing court as well to that of simply “* * * ensuring] that the magistrate had a ‘substantial basis for * * * concluding’ that probable cause existed. * * *” Id. at 238-239. In this regard, we find the following language especially pertinent to the case before us:

“* * * [W]e have repeatedly said that after-the-fact scrutiny by courts of the sufficiency of an affidavit should not take the form of de novo review. A magistrate’s ‘determination of probable cause should be paid great deference by reviewing courts.’ Spinelli, supra, at 419. * * *” Gates, supra, at 236.

“We also have said that ‘[although in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants,’ United States v. Ventresca, 380 U.S. 102, 109 (1965). * * *” Gates, supra, at 237, fn. 10. See, also, Massachusetts v. Upton, supra, at 733.

From the foregoing language, it is clear that reviewing courts may not substitute their own judgment for that of the issuing magistrate by conducting a de novo determination as to whether the affidavit contains sufficient probable cause upon which the reviewing court would issue the search warrant. On the contrary, reviewing courts should accord great deference to the magistrate’s determination of probable cause, and doubtful or marginal cases in this area should be resolved in favor of upholding the warrant. Gates, supra, at 237, fn. 10. It is equally important to note that, in this context, “reviewing court” clearly includes a trial court conducting a suppression hearing as well as the appellate courts, insofar as we are all conducting the same “after-the-fact scrutiny” of the sufficiency of the affidavit.

Thus, under the totality-of-the-circumstances analysis of Gates, supra, the precise question before us in this case is simply whether we can say that agent Buffington’s affidavit provided a substantial basis for the magistrate’s conclusion that there was a fair probability that marijuana or related paraphernalia would be found in the defendant’s residence. Considering the guidelines for review set forth above, we must answer this question in the affirmative.

Despite its brevity, the affidavit in this case describes a growing marijuana plant in an enclosed rear yard of a residential property, observed by a law enforcement officer “* * * who has been trained in the recognition of marijuana in a growing state and who has taken enforcement action in the past when he has observed marijuana growing * * *” and who, accordingly, requests a search warrant for the yard, outbuildings and residence. While these facts may be minimal, we do not believe that a reviewing court can say that a magistrate confronted with this affidavit had no substantial basis for concluding that there was a fair probability that marijuana or paraphernalia related to marijuana would be found in the residence. On the contrary, as noted by Judge Black in his dissenting opinion in the court of appeals, the presence of growing marijuana in a suburban rear yard does not normally occur spontaneously in Ohio and, in this era, the presence of such a plant must be said to raise objective and reasonable inferences amounting to a fair probability, in the words of Judge Black, “* * * that the marijuana is intentionally grown, and that within the house will be found instruments for its cultivation and some marijuana prepared or being prepared for use.” However, even were we to determine that this affidavit did not furnish the magistrate with a substantial basis for concluding that there was probable cause to search the house, we would be compelled nevertheless to uphold this search based upon the “good faith exception” to the exclusionary rule set forth in United States v. Leon, supra, and adopted by this court in State v. Wilmoth (1986), 22 Ohio St. 3d 251, 22 OBR 427, 490 N.E. 2d 1236. Unlike the case before us, State v. Wilmoth involved not the issue of probable cause but defects in the warrant procedure under Crim. R. 41. However, Leon, supra, held that the Fourth Amendment 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 unsupported by probable cause. Id. at 918-923, 926.

The rationale for the “good faith exception” is perhaps best expressed in the following language from the Lem decision:

‘ ‘ ‘The deterrent purpose of the exclusionary rule necessarily assumes that the police have engaged in willful, or at the very least negligent, conduct which has deprived the defendant of some right. * * * Where the official action was pursued in complete good faith, however, the deterrence rationale loses much of its force.’ ” Leon, supra, at 919, quoting Michigan v. Tucker (1974), 417 U.S. 433, 447.

“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. In most such cases, there is no police illegality and thus nothing to deter. * * * 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. * * * Penalizing the officer for the magistrate’s error, rather than his own, cannot logically contribute to the deterrence of Fourth Amendment violations.” (Footnotes omitted.) Leon, supra, at 920-921. See, also, Massachusetts v. Sheppard (1984), 468 U.S. 981, 990.

Accordingly, the Leon court concluded:

“* * * ‘[S]earches pursuant to a warrant will rarely require any deep inquiry into reasonableness,’ Illinois v. Gates, 462 U.S., at 267 (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 (1982). * * *” Leon, supra, at 922.

Nevertheless, in setting forth its “good faith exception” to the exclusionary rule, the United States Supreme Court has cautioned that “* * * the officer’s reliance on the magistrate’s probable-cause determination * * * must be objectively reasonable * * (Emphasis added.) Id. at 922. See, also, Massachusetts v. Sheppard, supra, at 988. Accordingly, suppression remains an appropriate remedy where: (1) “* * * the magistrate or judge * * * was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth * * *”; (2) “* * * the issuing magistrate wholly abandoned his judicial role * * *”; (3) an officer purports to rely upon “* * * a warrant based on an affidavit ‘so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable’ or (4) “* * * depending on the circumstances of the particular case, a warrant may be so facially deficient — i.e., in failing to particularize the place to be searched or the things to be seized — that the executing officers cannot reasonably presume it to be valid. * * *” (Citations omitted.) Leon, supra, at 923.

In the case before us, there is no suggestion of falsity or reckless disregard for the truth on the part of the affiant. Nor is there any indication that the municipal judge “* * * wholly abandoned his judicial role * * *” in issuing this warrant. Id. Nor can we say, from the standpoint of the law enforcement officers, that a warrant approved by a judge which describes a growing marijuana plant in an enclosed residential yard and authorizes a search of the yard, outbuildings and residence for marijuana-related items, is either “ ‘* * * so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable * * *’ ” or “* * * so facially deficient * * * that the executing officers cannot reasonably presume it to be valid.” Id. Accordingly, we find that this search falls squarely within the good faith exception to the exclusionary rule set forth in Leon and Wilmoth, supra, and should be upheld even were the warrant lacking in probable cause as alleged.

In summary, then, we have chosen to apply a two-step analysis to this case. See Leon, supra, at 924-925. First, applying the totality-of-the-circumstances test of Illinois v. Gates, supra, to the magistrate’s decision to issue the warrant, we have determined, based upon the facts of this case, that the magistrate had a substantial basis for concluding that probable cause existed to search the defendant’s residence. Second, we have determined that in any event, the execution of this warrant and resulting seizure of contraband were well within the standards of the “good faith exception” to the exclusionary rule set forth in United States v. Leon, supra.

Although the court of appeals duly acknowledged the Gates and Leon holdings, we believe that the majority erred in failing to apply the proper standard of review under those decisions, conducting instead a de novo review of the affidavit which led that court, in essence, to improperly substitute its judgment for that of the magistrate (and thereby to improperly find that no law enforcement officer could reasonably rely on the warrant as well). While such an approach may have been common under the former “two-pronged” test of Aguilar and Spinelli, it is now inappropriate under Gates and Leon. Accordingly, we must reverse the judgment of the court of appeals affirming the trial court’s suppression of the material seized from the residence and outbuildings on the defendant’s property, and we remand this case to the trial court for further proceedings consistent with this opinion.

Judgment reversed and cause remanded.

Moyer, C.J., Holmes, Douglas and H. Brown, JJ., concur. Wright, J., concurs in paragraphs one and three of the syllabus and in the judgment. Sweeney, J., dissents. Stephen R. Shaw, J., of the Third-Appellate District, sitting for Res^ nick, J.

3 Unlike the case before us, Illinois v. Gates, supra, involved information derived from an informant. In Gates, the Illinois Supreme Court upheld suppression of items seized from the defendant’s home and automobile, holding that an anonymous letter informing the police of the defendant’s alleged drug trafficking activities with details as to an alleged imminent transaction, together with an affidavit containing corroborating data collected by the police in an independent investigation, was inadequate to sustain a determination of probable cause for the issuance of a search warrant. The Illinois court ruled that the “two-pronged” test established by Aguilar v. Texas, supra, and Spinelli v. United States, supra, required the affiant to reveal his informant’s “basis of knowledge” and provide sufficient facts to establish the informant’s “veracity” or the “reliability” of the informant’s report. Illinois v. Gates, supra, at 227-229.

However, in reversing the Illinois Supreme Court, the United States Supreme Court observed in a footnote:

“Our original phrasing of the so-called ‘two-pronged test’ in Aguilar v. Texas, supra, suggests that the two prongs were intended simply as guides to a magistrate’s determination of probable cause, not as inflexible, independent requirements applicable in every case. In Aguilar, we required only that * * * ‘the magistrate must be informed of some of the underlying circumstances from which the informant concluded that * * * narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant * * * was “credible” or his information “reliable.” ’ ” (Emphasis sic.) Gates, supra, at 230-231, fn. 6.

Accordingly, the United States Supreme Court concluded that the totality-of-the-circumstances test announced in Gates was not at all inconsistent with the “two-pronged” test as originally intended, notwithstanding the later “* * * rigid compartmentalization of the inquiries into an informant’s ‘veracity,’ ‘reliability,’ and ‘basis of knowledge,’ * * *” Gates, supra, at 231, fn. 6, which developed through numerous decisions in the lower courts subsequent to Aguilar and Spinelli, and which ultimately led to the complete abandonment of the “two-pronged” test announced in Aguilar and Spinelli. Gates, supra, at 229, fn. 4, and 234-235.