Opinion
No. CR92-6287.
Decided October 14, 1992.
Anthony G. Pizza, Lucas County Prosecuting Attorney, and Kevin Carder, Assistant Prosecuting Attorney, for plaintiff.
Wittenburg Phillips and Sheldon Wittenburg, for defendant.
This case is before the court upon defendant OK Sun Bean's motion to suppress evidence. Defendant contends that her rights under the Fourth and Fourteenth Amendments to the United States Constitution and Section 14, Article I of the Ohio Constitution were violated by a warrantless seizure of property on April 16, 1992 and by an April 30, 1992 search conducted beyond terms of a warrant.
The court makes the following findings of fact and conclusions of law based upon testimony taken at a hearing held July 17, 1992 during which the state presented testimony of Detective Bart Beavers, Detective Jeff Gorney and Detective Don Murray.
I FINDINGS OF FACT
1. On April 16, or 17, 1992, Detective Jeff Gorney of the Toledo Police Vice Metro Unit visited the Fuji Health Spa in Lucas County as part of an ongoing investigation of allegations and observations of prostitution at that location. He was accompanied by several detectives and uniformed officers. After Detective Gorney identified himself as a police officer, defendant OK Sun Bean attempted to leave the building through a side entrance and was arrested for obstructing official business.
2. Before leaving the Fuji Health Spa, Detective Gorney seized a number of papers located on top of an office desk. The documents included deposit slips, credit card receipts, bank statements, check book ledgers, a notebook, and other miscellaneous papers. At the motion to suppress hearing held July 17, 1992, Detective Gorney admitted that no effort had been made to obtain a search warrant before confiscating these papers.
3. Sometime after April 16, in preparing an affidavit for a search warrant, Detective Bart Beavers reviewed the police reports of the April 16, 1992 events and talked with Detective Gorney himself. At the suppression hearing Detective Beavers testified he examined real estate department records, applications for massage parlor licenses, Toledo Edison records, the Toledo City Directory and also relied on anonymous phone calls, and surveillance of the Fuji Health Spa on April 27-28, 1992. Detective Beavers denied using any documents seized April 16, 1992 to prepare his affidavit in support of search warrant. The affidavit itself does not mention those documents.
4. On April 29, 1992, based upon Detective Bart Beaver's affidavit, a warrant was issued by Judge Denise Dartt of the Toledo Municipal Court, which authorized search and seizure of the following property:
"Any tools, instruments, equipment, paraphernalia used in the commission of prostitution related offenses in addition to violations of the City of Toledo Bath and Massage Establishment Ordinances. Currency of any type or nationality, jewelry, or other items of value. Personal papers, documents, books, financial records, massage records, prostitution related records, credit card charge receipts, video tapes, audio cassette tapes, computers, and related computer hardware and software all of which are believed to be derived from or instrumental to the promotion of prostitution, or the proceeds derived from promoting prostitution. Papers, documents or utility records indicating ownership or occupancy of said structure. Further photograph and fingerprint, at the scene, any adult subjects found inside the premises for the purpose of comparison to any latent fingerprints found at the scene on prostitution related evidence."
5. As part of the execution of the search warrant on April 29-30, 1992 a number of items were seized from the Fuji Health Spa. Defendant claims the following items were seized, but were not named within the warrant:
Tandy Fax Machine
Panasonic Easophone
Sony Video Camera
Canon 35 mm Camera
Kodak 35 mm Camera
6. The charge of obstructing official business was dismissed against defendant OK Sun Bean on or about April 29, 1992. On June 9, 1992, she was indicted on one count of promoting prostitution, a felony of the fourth degree in violation of R.C. 2907.22.
II CONCLUSIONS OF LAW
Defendant seeks suppression of all evidence and the return of her property. She attacks as unconstitutional the seizure of all documents and items taken from the top of an office desk at the Fuji Health Spa on April 16, 1992 without a warrant, as well as the seizure of items which were not listed in the April 29, 1992 warrant. She argues that all evidence should be suppressed due to the unreasonableness of the police investigation as a whole. These issues will be discussed separately.
A. Validity of Warrantless Seizure
Under the Fourth Amendment to the United States Constitution and Section 14, Article I of the Ohio Constitution, warrantless searches are unreasonable per se. State v. Kessler (1978), 53 Ohio St.2d 204, 207, 7 O.O.3d 375, 376, 373 N.E.2d 1252, 1255. The state bears the burden of proving that one of the few established exceptions applies in order for evidence seized as a result of a warrantless search to survive a motion to suppress. Id.
Here, the state relies on the "inevitable discovery" doctrine to argue against suppression. The inevitable discovery rule means evidence otherwise suppressible should be received if the prosecution can establish by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by a lawful means. See Nix v. Williams (1984), 467 U.S. 431, 444, 104 S.Ct. 2501, 2508-2509, 81 L.Ed.2d 377, 387-388. The state of Ohio has also adopted the ultimate or inevitable discovery exception to the exclusionary rule. See State v. Perkins (1985), 18 Ohio St.3d 193, 18 OBR 259, 480 N.E.2d 763. The prosecution has the burden to show within a reasonable probability that police officials would have discovered the evidence in question apart from the unlawful conduct. The state claims that papers spread out on the top of the desk on April 16, 1992 would "undoubtedly" have been present when any warrant was eventually executed. This conclusion is unsound. Papers and miscellaneous receipts are easily moveable. Furthermore, persons have a reasonable expectation of privacy in their offices. A warrantless search under these circumstances was not reasonable.
Other exceptions cannot apply either. No officer testified that the search of papers on top of the office desk was incident to a valid arrest. On April 16, 1992, when defendant was charged with obstructing official business, she did not have any weapons and Officer Gorney did not fear for his safety. In addition, defendant was arrested outside the building, not in the office itself. As noted in Chimel v. California (1969), 395 U.S. 752, 763, 89 S.Ct. 2034, 2040, 23 L.Ed.2d 685, 694, a search incident to arrest is limited to a search of the person arrested and to the area within the person's immediate control. Defendant OK Sun Bean was not in the immediate vicinity of the evidence seized. Most tellingly, Detective Gorney admitted the police could have obtained a warrant while the premises were secured. There were no exigent circumstances. See Payton v. New York (1980), 445 U.S. 573, 590, 100 S.Ct. 1371, 1382, 63 L.Ed.2d 639, 653.
The evidence seized on April 16, 1992 at the Fuji Health Spa was obtained through a warrantless search. The state has not shown by a preponderance of the evidence that the "miscellaneous papers and receipts" would ultimately and inevitably have been acquired through lawful means. Mere speculation is not sufficient to meet the state's burden to show inevitable discovery. See State v. Smith (1991), 73 Ohio App.3d 471, 478, 597 N.E.2d 1132, 1136. As such, the evidence will be suppressed as a result of constitutional violation.
B. Validity of Search Pursuant to Warrant
Defendant contends that the police acted beyond the scope of the warrant issued April 29, 1992 when they seized cameras, a fax machine and a telephone with built-in answering machine. Those items were not named with specificity in the warrant. In addition, defendant argues all seized documents should be suppressed because the police disregarded the limits of the warrant. She contends that by seizing property without a warrant on April 16, 1992 and then exceeding the April 29 warrant, the police flagrantly disregarded constitutional standards and should be deterred through suppression of all evidence whether obtained under the warrant or not.
In response, the state argues that the warrant itself was based upon evidence which was independent of any documents seized on April 16, 1992. Detective Beavers testified in detail about what he did to prepare the affidavit for the search warrant. He did not rely on documents seized April 16, 1992. The court finds that Detective Gorney's invalid seizure of property on April 16, 1992 did not taint the later actions of police in preparing for and obtaining the search warrant which was executed on April 30, 1992.
The search warrant, however, does not bring with it unlimited access to a building. It cannot justify a generalized search based solely on instinct. See State v. Strzesynski (Apr. 18, 1986), Wood App. No. WD85-68, unreported, 1986 WL 4660. The warrant is intended to identify where officers can search and what they can look for. Crim.R. 41(C) specifically states in pertinent part:
"* * * The affidavit shall name or describe the person to be searched or particularly describe the place to be searched, name or describe the property to be searched for and seized, state substantially the offense in relation thereto, and state the factual basis for the affiant's belief that such property is there located. * * * The warrant shall be directed to a law enforcement officer. It shall command the officer to search, within three days, the person or place named or the property specified." (Emphasis added.)
In this case, the police sought and received authority to seize videotapes, audiotapes, and computer hardware and software. The warrant did not mention telephones, telephone answering devices, cameras or fax machines. Thus, those items that were seized beyond the scope of the warrant must be suppressed and returned to defendant as requested.
The court is not persuaded by defendant's final argument that the totality of the circumstances should require suppression of all evidence gathered whether by warrant or not. In this case, the officers obtained a search warrant beforehand, albeit seizing items beyond the scope of the warrant itself. There is no evidence that they acted recklessly or in bad faith. The court, therefore, overrules the motion insofar as it addresses items properly obtained pursuant to the warrant of April 29, 1992, and grants the motion with respect to items which exceed its scope.
JOURNAL ENTRY
It is ORDERED that defendant's motion to suppress be GRANTED IN PART AND OVERRULED IN PART. The following items are ORDERED suppressed and returned to the defendant:
1. All items obtained through the warrantless seizure of property on April 16-17, 1992; and
2. All items which were seized but were beyond the scope of the warrant issued April 29, 1992:
Tandy Fax Machine
Panasonic Easophone
Sony Video Camera
Canon 35 mm Camera
Kodak 35 mm Camera.
It is further ORDERED that the defendant's motion to suppress be DENIED as to all items seized pursuant to the warrant of April 29, 1992.
Judgment accordingly.