Opinion
No. 2085
Decided March 25, 1977.
Criminal law — Search and seizure — Affidavit for search warrant valid, when.
1. An affidavit based upon the personal observations of an informant who has provided reliable information in the past, and reciting in the present tense the existence and location of contraband, meets the requirements of both credibility and probable cause for the issuance of a search warrant.
2. Criminal Rule 41(C) does not require that a search warrant be directed to a specific law enforcement officer but only that it be directed to none other than a law enforcement officer.
Mr. Richard B. McQuade, Jr., for plaintiff.
Mr. David P. Rupp, Jr. and Mr. William R. Swigart, for defendant.
This court is called upon, by the defendants' motion, to suppress "all physical evidence seized pursuant to the search warrant issued by the Honorable Judge Terrence Hallett on October 27, 1976, for the following reasons:
"I. The affidavit for issuance of the search warrant did not contain sufficient underlying facts to constitute the requisite probable cause.
"II. The affidavit for issuance of the search warrant failed to substantially specify the offense which is allegedly related to the search.
"III. The search warrant was not directed to a specified law enforcement officer."
The affidavit and warrant brought into question are set forth in full for obvious reasons:
The Affidavit.
"In the Fulton County Court, Eastern District, Swanton, Ohio
"State of Ohio, : -vs- No. "David W. Prince : AFFIDAVIT-SEARCH WARRANT 402 Chestnut Street Swanton, Ohio.
"STATE OF OHIO
"FULTON COUNTY, ss.
"The undersigned, being duly sworn, states that he has reason to believe that there is now being concealed certain property, namely (describe the specific property to be seized): Opium, marijuana, Zenith Stereo Console which are (give the alleged grounds for the search and seizure): being illegally concealed, possessed and sold contrary to provisions of the Ohio Code Sections relating to receiving stolen property on the premises located at (name or describe the particular person or place to be searched): the dwelling house at 402 Chestnut Street, Swanton, Ohio, and living quarters and rooms therein.
"The facts tending to establish the foregoing grounds for the issuance of a search warrant are (state substantially the offense in relation to the property to be searched for and seized): That an informer of this affiant, who has in the past given reliable and trustworthy information to this affiant informed affiant that he (informer) had exchanged a Zenith Stereo Console, maple, No. 5074452, which informer had stolen, for approximately 2.5 ounces of opium with one David Prince residing next door to the Swanton Chief of Police which address is 402 Chestnut Street, Swanton, Ohio; that this affiant's informer states that he has observed contraband drugs in the premises at 402 Chestnut, Swanton, and that the informer observed illegal drugs (opium and marijuana) in an antique icebox/refrigerator at 402 Chestnut in Swanton, Ohio; that this affiant's informer has informed affiant that there are throughout the premises at 402 Chestnut, Swanton, Ohio, many articles of stolen property which have been exchanged for drugs at said address.
/s/ Det. Henry L. Wenzel
"Sworn to before me, and subscribed in my presence this 27th day of October, 1976.
/s/ Terrence E. Hallett Judge, Terrence Hallett"
The Warrant
"In the Fulton County Court, Eastern District, Swanton, Ohio.
"State of Ohio : -v- No. "David W. Prince : 402 Chestnut Street SEARCH WARRANT Swanton, Ohio :
"To: Any police officer of authority.
"Whereas, there has been filed before me an affidavit demonstrating probable cause for a search to be made of (name or describe the specific person and/or place to be seized): the dwelling home at 402 Chestnut Street, Swanton, Ohio, and living quarters and rooms therein, for certain concealed property, namely: (describe the specific property to be seized): opium, marijuana, and Zenith Stereo Console which are (give the alleged grounds for the search and seizure): illegally possessed, concealed, sold, and bartered on the premises, contrary to Ohio Revised Code Sections relating to drugs of abuse and relating to receiving stolen property.
"You are hereby commanded to search the above-named dwelling house at 402 Chestnut Street, Swanton, Ohio, and living quarters and rooms therein, for the property described, serving this warrant and making the search during the daytime within three (3) days from the issuance of this order, and if the property be found there to seize it, leaving a copy of this warrant and a receipt for the property taken, and return this warrant to Judge Terrence Hallett upon execution, accompanied by a written inventory of any property taken, as required by law.
"Given under my hand, this 27th day of October, 1976.
/s/ Terrence E. Hallett Judge, Terrence Hallett"
Both defendants and the state have cited numerous decisions of the United States Courts in support of their respective positions. It is this court's opinion that the affidavit and warrant need only be mirrored against the cases of State v. Karr (1975), 44 Ohio St.2d 163 (U.S. certiorari denied) and State v. Parker (1975), 44 Ohio St.2d 172, and that so mirrored, the affidavit and warrant here in question pass muster.
The defendants' objections:
1. The affidavit did not contain sufficient underlying facts to constitue the requisite probable cause.
"A common and acceptable basis for the informant's information is his personal observation of the facts or events described * * * [in the affidavit] * * * a statement that the informant has been reliable in the past is sufficient. * * * The fact that an informant has provided reliable information in the past gives the magistrate a definite indication of credibility." State v. Karr, supra, at pages 165, 166. (Citations omitted.)
The affidavit in question meets this test.
2. The affidavit failed to substantially specify the offense which is allegedly related to the search.
What magistrate, given probable cause to believe that "opium, marijuana, Zenith Stereo Console" were "illegally concealed, possessed and sold contrary to provisions of the Ohio Revised Code Section relative to controlling drugs of abuse and contrary to Ohio Revised Code Sections relating to stolen property" would require the officer to further spell out the law which he claimed was being violated? The language is clear, unequivocal, and all who run may read and understand it.
The defendants' assignment numbered two is without merit.
3. The search warrant was not directed to a specified law enforcement officer.
"The warrant shall be directed to a law enforcement officer." Crim. R. 41(C).
No Ohio law has been directed to this court's attention which interprets this portion of the rules. Defendant contends that the phrase "a law enforcement officer" must be interpreted "a specific law enforcement officer."
This court disagrees.
The defendants could not possibly have any interest in the precise person who serves the warrant, so long as he is a "police officer of authority." Reason demands that the language of Crim. R. 41(C) be construed to mean, "* * * to no one other than a law enforcement officer." (Emphasis added.)
For a discussion of similar language in the Federal Rules see United States v. Gannon (1961), 201 F. Supp. 68 at page 73.
The objection numbered three cannot stand.
The defendants argue that probable cause must exist at or about the time of the application for the search warrant. This is a correct statement of the law. Sgro v. United States (1932), 287 U.S. 206. "However, lapse of time per se is not controlling." United States v. Townsend, 394 F. Supp. 736 (1975), at page 744.
Two aspects of the affidavit rebut the defendants' contention that the probable cause was stale. First, the affiant does, in fact, speak in the present tense: "* * * there are throughout the premises * * *." [Emphasis added.] Secondly, the tenor of the informant's recital justifies a conclusion by the magistrate that this is more than an isolated incident, but, in fact, a series of events. In such case, the importance of the time lapse pales. United States v. Harris (C. A. 3, 1973), 482 F.2d 1115.
Where some of the underlying circumstances are recited, "`where reason for crediting the source of the information is given, and when a magistrate has found probable cause, the courts should not invalidate the warrant by interpreting the affidavit in a hyper-technical, rather than a common sense, manner. 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.'" State v. Karr, supra ( 44 Ohio St.2d 163), at 167, quoting United States v. Ventresca (1965), 380 U.S. 102, 108.
The defendants' motion to suppress will be denied.
Motion denied.