Opinion
No. 27988
Decided November 13, 1968.
Search and seizure — Warrant — Affidavit therefor to be filed with judge — Section 2933.23, Revised Code — Judge not required to retain — Probable cause for issuance of warrant — Exists, when — Sources of facts to establish.
1. The language of Section 2933.23, Revised Code, which prohibits issuance of a search warrant until there "is filed" with the judge an affidavit does not require that the judge retain the affidavit which an officer has presented to the judge when he made application for the warrant.
2. Probable cause for the issuance of a search warrant exists when the facts and circumstances within the officer's knowledge and of which he had reasonable, trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief in the area of search that certain described things concerning which an offense has been or is being committed is located on certain described property.
3. Sources of facts to establish probable cause for issuance of a search warrant may include knowledge of the officer obtained from confidential informants, where the judge is advised of the underlying facts by the affidavit which disclose that such informants had personal knowledge of the facts represented therein.
Mr. Lee C. Falke, prosecutor, and Mr. Robert Skinner, for plaintiff.
Messrs. Hamrick, LeCrone Parks and Mr. Harold B. LeCrone, for defendant.
This cause came on to be heard upon the written motion of the defendant to suppress any and all evidence obtained through the search and seizure of same on the ground that no affidavit was ever filed with the court in accordance with Section 2933.23, Revised Code, before the issuance of the search warrant, together with the oral motion of the defendant to suppress said evidence on the ground that the alleged affidavit was not based on probable cause.
The constitutional guarantee protects against unreasonable searches and seizures and if the search is upon a warrant, such warrant shall not issue but upon probable cause supported by oath or affirmation. Implementing the constitutional guarantees, the Ohio Legislature has provided that warrants for search shall not be issued until there is filed with the judge or magistrate an affidavit.
The issue presented by the defendant on his written motion has to do with whether or not a separate affidavit is required to be filed before a warrant for search may be issued by the judge or magistrate. Defendant, in his argument, has insisted that a separate affidavit must be filed with the court. Neither the Constitution of the United States nor the Constitution of the state of Ohio makes such requirement and in the judgment of this court, neither does Section 2933.23, Revised Code.
Defendant contends that strict letter and not the spirit of the law is supreme in determining the validity of a search warrant. This undoubtedly means that every constitutional and statutory requirement must be fully met and may include all formalities required by statute before the search warrant may be held valid. This then involves an inquiry into the proscription mandated by the Legislature in enacting Section 2933.23, Revised Code. The requirement is, "a warrant for search shall not be issued until there is filed with the judge or magistrate an affidavit * * *." So what is the specificity of the words "is filed" in conjunction with "the judge or magistrate." There is no requirement in the legislation under consideration that the affidavit be filed with the clerk of any court and that it be spread upon the dockets and journalized before the jurisdiction of the judge or magistrate is invoked. It is not uncommon that warrants for search are sought by officers from judges and magistrates who are in their homes at the particular time or some other place other than their respective courtroom or chamber. No duty is imposed upon the judge or magistrate to keep a file of the affidavits prepared for search warrants. In those cases where the officer presents a separate affidavit, I know of no cases where the judge or magistrate retains the separate affidavit so presented. They are retained by the officer and if a return is made upon any search warrant issued, such affidavit is usually returned and all thereof may eventually become part of the file as respects an accused in question. So, this court holds that the words "is filed with the judge or magistrate an affidavit" means to make application: to file an affidavit for a search warrant. In the case under consideration then it is apparent that Officer Wally presented himself to Judge Fisher and thereupon Judge Fisher, being satisfied as to the requirements thereof, executed the warrant for search. In other words, by affidavit, Officer Wally presented himself to the judge and filed for a search warrant by executing the affidavit required.
It has been said in a recent case technical requirements of elaborate specificity once exacted under the common-law pleadings have no proper place in the area of affidavits for search warrants and must be tested and interpreted by magistrates and courts in a common sense and realistic fashion. U.S. v. Ventresca, 380 U.S. 102.
Now as to probable cause, it is apparent that there is no definition that will suffice for every case so that one can say with assurance that probable cause exists. That the question of existence of probable cause is a difficult one, even for experienced judges, is demonstrated by the case of Beck v. Ohio, 379 U.S. 89, an arrest without warrant case. The Supreme Court of Ohio, after a detailed consideration of the case, found probable cause to exist, 175 Ohio St. 73. The United States Supreme Court reversed the finding, no probable cause.
The classic definition as laid down by the Supreme Court is the following:
Probable cause exists where the facts and circumstances within their knowledge (these officers) and of which they had reasonably trustworthy information, were sufficient in themselves to warrant a man of reasonable caution in the belief that intoxicating liquor was being transported in the automobile which they stopped and searched. Carrol v. U.S., 267 U.S. 132.
Again, in Dumbra v. U.S., 268 U.S. 435, the court stated, "probable cause has been defined by this court as reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the party is guilty of the offense with which he is charged.
Thus probable cause may be fairly summarized to exist when the facts and circumstances within the officers' knowledge and of which he had reasonable, trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief in the area of search that certain described things concerning which an offense has been or is being committed is located on certain described property.
Common sense probabilities and not absolutes are sufficient. These are not technical, they are the factual, practical considerations of every day life on which reasonable, prudent men, not legal technicians act.
Further, the quantum of fact necessary to support the belief is dependent in part upon the nature of the offense charged. Jaben v. U.S., 381 U.S. 214.
Sources of facts to establish probable cause are not limited to personal knowledge of the affiant. Here in the instant case, the affiant credits confidential informants who identified the defendant, where he lived, saw him selling heroin, in fact, one informant made a purchase and on the day before the search warrant was applied for and issued, the same three informants reported defendant had received another shipment of heroin and was continuing to sell the drug at his home, at a bowling alley and on the street. See, Brinegar v. U.S., 338 U.S. 160. The affidavit is sufficient in detailing that the information was within the personal knowledge of each informant. In other words, the judge issuing the affidavit was informed of some of the underlying circumstances from which the informants concluded that the narcotics were where they claimed they were and thus the instant case is outside the scope of Aguilar v. Texas, 378 U.S. 108.
Motions of defendant, oral and written to suppress any and all evidence obtained through search and seizure are, in accordance with the foregoing, overruled.
Motions overruled.