State v. Williams

565 N.E.2d 563, 57 Ohio St. 3d 24, 1991 Ohio LEXIS 23

• Court: Ohio Supreme Court
• Decided: January 9, 1991
• Docket: No. 89-2204
• Status: Published

Opinions

Douglas, J.

The issue presented to this court is whether a search warrant is void ab initio when the face of the document lacks a judge’s signature. We find that it is. Therefore, any evidence obtained pursuant to such a search warrant must be suppressed.

The issue of whether a search warrant is void if not signed by a judge prior to a search was addressed by the court in State v. Spaw (1984), 18 Ohio App. 3d 77, 18 OBR 242, 480 N.E. 2d 1138. In Spaw, evidence was obtained in a search of the defendant’s car. The search warrant authorizing the search had not been signed by a judge prior to that search. The court determined that the evidence obtained should be suppressed because the search warrant was defective. Id. at 79, 18 OBR at 244, 480 N.E. 2d at 1140. The court reasoned that “* * * what otherwise purports to be a search warrant is not a search warrant when it lacks any signature at all, and the officers here could not reasonably presume its validity. It never acquired the status of being merely voidable but did not exist as a warrant and was void ab initio." Id. at 79, 18 OBR at 244, 480 N.E. 2d at 1140.

This issue is one of first impression for this court. We recognize that some other jurisdictions have held an unsigned search warrant valid where the judge’s intent to sign was clear. Such courts have held, absent any statutory provision such as R.C. 2933.25, that where the judge’s failure to sign is only a “mere oversight,” the search warrant will not be found to be invalid. See, e.g., Yuma Cty. Attorney v. McGuire (1973), 109 Ariz. 471, 512 P. 2d 14; State v. Spaulding (1986), 239 Kan. 439, 720 P. 2d 1047. However, we believe the better view is that expressed in Spaw, that a search warrant is void ab initio if not signed by a judge prior to the search.

We reach our decision for several reasons. Search warrants are issued pursuant to the authority found in R.C. 2933.21 and Crim. R. 41. R.C. 2933.25 dictates the form of a search warrant.¹ Included in the example form is the issuing judge’s signature. Further, R.C. 2933.24(A) provides'that “* * * [s]uch warrant shall command the officer to search such house or place or person named or described for the property or other things * * (Emphasis added.) A command without a known commander cannot be a command.

Indeed, the Supreme Court of Connecticut has recognized that a lawful signature on a search warrant, by the person authorized to issue it, is essential to its issuance. State v. Surowiecki (1981), 184 Conn. 95, 440 A. 2d 798. The court in Surowiecki concluded that a search warrant, which had been used to obtain evidence necessary for the defendant’s arrest and which had not been signed by a judge prior to the search, did not issue under Connecticut law. Id. at 97, 440 A. 2d at 799. The court reasoned that only when the judge had affixed his signature to the search warrant would the search warrant be said to have been issued. Id. The signing of a search warrant is the only identifiable objective manifestation of a judge’s subjective intent to issue a search warrant.

In part, the Fourth Amendment to the United States Constitution provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated * * *.” Section 14, Article I of the Ohio Constitution mirrors the Fourth Amendment. To best effectuate these rights, knowledge that a warrant has been properly issued is essential. Without having the signature of the authorizing magistrate affixed to the warrant, a citizen is left to guess whether such a warrant has validity.

In People v. Hentkowski (1986), 154 Mich. App. 171, 397 N.W. 2d 255, the court recognized several important reasons for requiring the signature of the issuing judge on a search warrant. The fact scenario in Hentkowski parallels that in the case at bar. The defendant in Hentkowski was convicted of two counts of possession of an illegal substance based on evidence obtained in a search of his home. The search was conducted pursuant to a search warrant which had never been signed by a magistrate prior to the search. In reversing the defendant’s convictions for possession, the Michigan court of appeals held that “* * * an unsigned search warrant is necessarily invalid.” Id. at 179, 397 N.W. 2d at 259. The court determined that the signature requirement allows one to distinguish between an actual warrant and one that is legally unenforceable. Id. at 177, 397 N.W. 2d at 258. Further, the signature requirement provides both protection and assurance to property owners faced with the threat of a search of their property, in that they may review the document and determine whether or not they are required to allow officers to conduct the search. Id. at 179, 397 N.W. 2d at 259.

A signature requirement is indeed the best device for safeguarding an individual’s rights as provided in the Fourth Amendment and Section 14, Article I of the Ohio Constitution. Signature requirements have long been recognized as fulfilling cautionary functions in protecting an individual’s rights. As examples, in Ohio, we have signature requirements for wills and the transfer of real property. For an interest in land to be conveyed, Ohio law requires a writing signed by the party (or his agent) granting the interest conveyed. R.C. 1335.04. Also, a will (except an oral will) is invalid unless it is in writing and signed by the maker or another individual at the maker’s direction. R.C. 2107.03. Certainly, the protection of one’s right as guaranteed by the United States Constitution and the Constitution of this state to be free from unreasonable searches and seizures should not be granted any less protection than that afforded to property rights. To protect this constitutional right, it is necessary to require the signature of the issuing judge on a search warrant prior to the search.

Accordingly, we hold that a search warrant is void ab initio if not signed by a judge prior to the search. Evidence seized pursuant to such an invalid warrant must be suppressed.

The judgment of the court of appeals is affirmed.

Judgment affirmed.

Moyer, C.J., Sweeney and H. Brown, JJ., concur. Wright, J., concurs in judgment only. Holmes and Resnick, JJ., dissent.

1 R.C. 2933.25 provides, with emphasis added:

“Warrants issued under section 2933.21 of the Revised Code shall be substantially in the following form:

“State of Ohio,........County, ss:

“To the sheriff (or other officer) of said County, greeting:

“Whereas there has been filed with me an affidavit, of which the following is a copy (here copy the affidavit).

“These are, therefore, to command you in the name of the State of Ohio, with the necessary and proper assistance, to enter, in the daytime (or in the nighttime) into (here describe the house or place as in the affidavit) of the said........township of .......in the County aforesaid, and there diligently search for the said goods and chattels, or articles, to wit: (here describe the articles as in the affidavit) and that you bring the same or any part thereof, found on such search, and also the body of E.F., forthwith before me, or some other judge or magistrate of the county having cognizance thereof to be disposed of and dealt with according to law.

“Given under my hand, this......day of.................

“A.B., Judge, County Court”