STATE OF OHIO, Plaintiff-Appellant -vs- TODD E. BROWN, Defendant-Appellee
Case No. 2012CA00099
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
May 28, 2013
2013-Ohio-2224
Hon. W. Scott Gwin, P.J., Hon. William B. Hoffman, J., Hon. Sheila G. Farmer, J.
CHARACTER OF PROCEEDING: Appeal from the Alliance Municipal Court, Case No. 2012 CRB 00190. JUDGMENT: Reversed and Remanded.
For Plaintiff-Appellant: ANDREW ZUMBAR, 470 East Market Street, Alliance, OH 44601
For Defendant-Appellee: STEPHEN J. KANDEL, 101 Central Plaza South, Suite 1003, Canton, OH 44702
{¶1} Plaintiff-appellant the State of Ohio appeals the May 17, 2012 Judgment Entry entered by the Alliance Municipal Court granting Defendant-appellee Todd Brown‘s motion to suppress evidence.
{¶2} On February 9, 2012, Alliance Police Detective Bob Rajean obtained a search warrant from Judge Dixilene Park, judge of the Court of Common Pleas of Stark County, Probate Division. The warrant was executed on a commercial business operated by appellee, Todd Brown. As a result, appellee was charged with one count of gambling in violation of
{¶3} On March 28, 2012, appellee filed a motion to suppress, claiming
{¶4} It is from that entry, Appellant prosecutes this appeal, assigning as error:
I
{¶5} “THE TRIAL COURT ERRED WHEN IT ADOPTED THE MAGISTRATE‘S RULING CONCLUDING THAT THERE WAS NO AUTHORITY ON THE PART OF JUDGE OF THE COMMON PLEAS COURT, PROBATE DIVISION TO ACT UPON A REQUEST FOR A SEARCH WARRANT.”
{¶6} “THE TRIAL COURT ERRED WHEN IT ADOPTED THE MAGISTRATE‘S RULING WHICH SUPPRESSED ALL ITEMS SECURED BY ALLIANCE POLICE DEPARTMENT IN A COMMERCIAL STRUCTURE INCLUDING THOSE ITEMS WHICH WERE LOCATED IN PLAIN VIEW IN AN AREA OPEN TO THE GENERAL PUBLIC.”
III
{¶7} “THE TRIAL COURT ERRED WHEN IT GRANTED THE REMEDY OF SUPPRESSION OF EVIDENCE FOR A CLAIMED VIOLATION OF A STATUTORY PROVISION WHEN OFFICERS WERE ACTING IN GOOD FAITH ON A WARRANT BELIEVED TO BE VALID.”
I
{¶8} The primary issue before this Court is whether a judge of the Court of Common Pleas, Probate Division, has the authority to issue a search warrant. For the reasons that follow, we think not.
{¶9}
“A judge of a court of record may, within his jurisdiction, issue warrants to search a house or place...”
In conjunction thereto,
“A search warrant authorized by this rule may be issued by a judge of a court of record to search and seize property located within the court‘s territorial jurisdiction...”
{¶11} Appellant argues the probate judge and probate court were abolished by amendments to the Ohio Constitution in 1968 and 1973, and
{¶12} We believe there still exists a “probate judge” and a “probate court,” although they are now recognized as a separate division of the Court of Common Pleas. We recognize the probate court is now considered a “court of record.” But does this changed status render the exclusion found in
{¶13} The Ohio Supreme Court in State v. Cotton (1978) 56 Ohio St.2d 8, 12-13, found
{¶14} We find Cotton is not dispositive of the issue herein for the simple reason Judge Park was not assigned by the chief justice or acting chief justice pursuant to Section (5)(A)(3) to preside over a criminal case. In the absence of such a specific constitutional delegation of authority, we find no reason the legislature‘s directive in
{¶15} Appellant relies upon State v. Johnson (Ohio App.4th Dist.) 1986 WL 8799, in support of its argument. The Johnson court concluded
{¶16}
If a general provision conflicts with a special or local provision, they shall be construed, if possible, so that effect is given to both. If the conflict between the provisions is irreconcilable, the special or local provision prevails as an exception to the general provision, unless the general provision is the later adoption and the manifest intent is that the general provision prevail.
{¶18}
{¶19} Applying
{¶20} Appellant‘s first assignment of error is overruled.
{¶21} In United States v. Leon (1984), 468 U.S. 897, 104 S.Ct. 3405, the United States Supreme Court established a good faith exception regarding insufficient or defective search warrants. The Leon court held:
{¶22} “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. (Footnote omitted.) In most such cases, there is no police illegality and thus nothing to deter. It is the magistrate‘s responsibility to determine whether the officer‘s allegations establish probable cause and, if so, to issue a warrant comporting in form with the requirements of the Fourth Amendment. 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. ‘[O]nce the warrant issues, there is literally nothing more the policeman can do in seeking to comply with the law.’ Id., 428 U.S., at 498, 96 S.Ct., at 3054 (BURGER, C.J., concurring). Penalizing the officer for the magistrate‘s error, rather than his own, cannot logically contribute to the deterrence of Fourth Amendment violations. (Footnote omitted.)
{¶23} “We conclude that the marginal or nonexistent benefits produced by suppressing evidence obtained in objectively reasonable reliance on a subsequently invalidated search warrant cannot justify the substantial costs of exclusion. We do not suggest, however, that exclusion is always inappropriate in cases where an officer has obtained a warrant and abided by its terms. ‘[S]earches pursuant to a warrant will rarely require any deep inquiry into reasonableness,’ Illinois v. Gates, 462 U.S., at 267, 103 S.Ct., at 2347 (WHITE, J., concurring in judgment), for ‘a warrant issued by a magistrate
{¶24} Under the good faith exception espoused in Leon, the 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 unlawful. State v. Oprandi, 5th Dist. No. 07-CA-5, 2008-Ohio-168.
{¶25} We agree with the State‘s position the officers herein acted in good faith when executing the search warrant according to Leon. Alliance City Prosecutor Andrew Zumbar testified at the suppression hearing herein,
{¶26} “The Court: Okay. But you have a town whether it‘s the Alliance Municipal Court judge duly elected, you also have a general division judge who resides nearby, is there a reason not only in your case, but in any cases you‘ve cited why the probate judge heard the search warrant?
{¶27} “Mr. Zumbar: In this particular case before the Court?
{¶28} “The Court: Or in the ones you cite or both?
{¶30} “The Court: Okay. So, it‘s judge shopping.
{¶31} “Mr. Zumbar: No, ma‘am.
{¶32} “The Court: Okay.
{¶33} “Mr. Zumbar: No, Ma‘am. If- -if the judge is available that‘s who they- - they go to whatever judge they can get their hands on at that time.
{¶34} “The Court: Whatever judge is available. So, in choosing you contact the other judges and they either don‘t answer- -unavailable, is that...
{¶35} “Mr. Zumbar: I can‘t state specifically, I was not the prosecutor who submitted the probable cause in this case. I do know that other judges of the common pleas division have been solicited from time to time. I‘m directly aware of the fact that- - Judge Sinclair has issued warrants. I‘m directly aware that Judge Brown has issued warrants. I‘m directly aware of the fact that not only has Judge Lavery issued conservatively speaking, five hundred (500) search warrants.”
{¶37} In addition, the State‘s appellate brief offered a litany of appellate cases demonstrating the common practice of probate division judges issuing search warrants throughout the State of Ohio. See, State v. Bradley, 2nd Dist. No. CIV A 93-CA-101, November 23, 1993; State v. Dewald, 3rd Dist. No. 13-82-35, May 27, 1983; State v. Ridgeway, 4th Dist. No. 00CA19, 2001-Ohio-2655; State v. Cassidy, 11th Dist. No. 90L049, November 15, 1991; State v. Tatonetti, 11th Dist. No. 1021, January 7, 1983; State v. Abrams, 12th Dist. No. 315, May 4, 1983.
{¶38} As noted supra in Johnson, there was existing appellate authority, albeit from another appellate district and which we have herein found to be unpersuasive, to support a probate judge‘s authority to issue a search warrant.
{¶39} Accordingly, at the time the officers executed the search warrant herein, the past practice of the court and the police, as well as the law of other jurisdictions, lead the officers to believe in good faith the search warrant was valid.
{¶40} However, this Court having now found the probate court judge does not have authority to issue search warrants, the State is now on notice in any future actions and executions of search warrants, those search warrants issued by a probate division may no longer be relied upon in good faith per Leon, supra.
{¶41} The State‘s third assigned error is sustained.
II
{¶42} In light of our analysis and disposition of the State‘s third assignment of error, we find the second assignment of error moot.
By Hoffman, J.
Gwin, P.J. concurs
Farmer, J. dissents
s/ William B. Hoffman
HON. WILLIAM B. HOFFMAN
s/ W. Scott Gwin
HON. W. SCOTT GWIN
HON. SHEILA G. FARMER
{¶44} I respectfully dissent from the majority‘s opinion in Assignment of Error I. While the majority recognizes that the probate court is now considered a “court of record,” it concluded a probate judge does not have the authority to issue search warrants under
{¶45} Based upon the decisions in Cotton, Bays, and Johnston as cited in the majority opinion, I would find
{¶46} In ¶ 14, the majority dismisses the Cotton decision on the fact that “Judge Park was not assigned by the chief justice or acting chief justice pursuant to Section (5)(A)(3) to preside over a criminal case.” I would find an assignment by the chief justice not to be necessary because Judge Park is a member of the Court of Common Pleas. In fact, Judge Park has the statutory authority to appoint other common pleas judges to act as probate judge.
{¶47} I specifically disagree with the majority‘s opinion that an archaic statute governs sub judice, when in fact the passage of the 1968 Modern Courts Amendment has placed all of the judges on the Court of Common Pleas on equal footing.
{¶48} I concur with the majority‘s opinion on Assignment of Error II. I would reverse the case on both assignments of error.
s/ Sheila G. Farmer
HON. SHEILA G. FARMER
STATE OF OHIO, Plaintiff-Appellant -vs- TODD E. BROWN, Defendant-Appellee
CASE NO. 2012CA00099
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
2013-Ohio-2224
JUDGMENT ENTRY
For the reasons stated in our accompanying Opinion, the judgment of the Alliance Municipal Court is reversed, and the matter remanded to that court for further proceedings in accordance with the law and our Opinion. Costs to Appellee.
s/ William B. Hoffman
HON. WILLIAM B. HOFFMAN
s/ W. Scott Gwin
HON. W. SCOTT GWIN
s/ Sheila G. Farmer
HON. SHEILA G. FARMER