546 N.E.2d 428 | Ohio Ct. App. | 1988
On May 30, 1985, the Streetsboro police questioned John Andresh at his home about the theft of a television set. Andresh went to the Streetsboro police station with the police where he was further questioned about the television set and his prior record of three felonies. Andresh agreed to help the police with the local drug problem and became the informant in the present case. That day, using police money, Andresh obtained a small amount of cocaine from the residence of appellant's neighbor, whom Andresh knew would have illegal drugs at his home. Based on the cocaine procured by Andresh, a search warrant was issued, leading to the eventual indictment of the neighbor and his wife.
Later that same day, the Streetsboro police obtained a warrant to search the residence of the appellant, Glenn O. Stebner, which warrant was based on information provided to the police by Andresh. According to the police officer with whom Andresh spoke, Andresh stated that he saw marijuana being removed from appellant's residence and that he had been with people who bought marijuana from appellant's residence. The police officer, in an affidavit, relayed *146 this information to the Portage County Municipal Court, as well as the statement that Andresh had given reliable information in the past concerning the sale of drugs. This past reliable information was the tip given to the officer earlier that day that appellant's neighbor sold drugs. Andresh had no previous dealings as an informant.
A search warrant was issued which stated that the items to be sought and seized were "marijuana and any other fruits and instrumentalities of the crime yet to be determined." During the course of the search, the police discovered hunting guns in plain view. Knowing that the appellant had previously been convicted of a felony, the police confiscated the guns. Appellant was later indicted on three counts, receiving stolen property, drug abuse and having a weapon while under a disability, namely, a prior conviction for unarmed robbery. He pleaded not guilty to all counts.
On October 8, 1985, appellant filed a motion to compel disclosure of the identity of the confidential informant who had provided the information which formed the basis of the search warrant, as well as a motion to suppress the evidence seized during the search. After a hearing, both motions were denied and the case proceeded to trial. When the state rested, the appellant moved for a dismissal on all counts. The court dismissed two of the counts but not the third. He was found guilty of having a weapon while under a disability.
Subsequently, appellant was granted a new trial by the trial court on June 24, 1986, principally because, in April 1986, Andresh stated, in an affidavit, that much of what he had told the Streetsboro police on May 30, 1985 was fabricated. His affidavit indicated that, at the time, he was "afraid of returning to the penitentiary" and that he was "willing to tell the police anything they wanted to hear." He stated that he never saw anyone buy drugs at the appellant's house and that instead of purchasing cocaine from appellant's neighbor with the police money, he repaid a debt that he owed the neighbor, took some cocaine from the neighbor's residence without his knowledge, and returned to the police.
A second motion to suppress the weapons seized during the search was filed on August 6, 1986, alleging a lack of probable cause, that the warrant was defective, and that the informant was unreliable. The denial of this motion prompted a no contest plea by the appellant. The trial court found him guilty of having a weapon while under a disability and he has appealed the denial of his second motion to suppress.
In his sole assignment of error, the appellant contends that:
"The trial court committed prejudicial error by overruling the Defendant's motions to suppress."
Appellant's assignment of error is based on three grounds. First, appellant claims that the search warrant was constitutionally defective because the language employed in the search warrant permitted a general exploratory search of appellant's residence. The warrant stated that "marijuana and any other fruits and instrumentalities of the crime yet to be determined" were to be seized. Additionally, the police officer who made out the affidavit and who helped in the search stated, on cross-examination at the suppression hearing, that he believed the warrant permitted him to search for items pertaining to any crime. The relevant testimony is set forth as follows:
"Q. Showing you what appear[s] to be the search warrant itself on the Stebner residence from May 30, 1985, do you recognize that? *147
"A. Yes.
"Q. And is that the warrant that was given to you by the Judge of the Portage County Municipal Court?
"A. Yes.
"Q. And that authorized the Police Department to search for marijuana and any other fruits and instrumentalities of the crime yet to be determined, correct?
"A. Correct.
"Q. And I believe you already testified in this Court under oath that you felt that that was a license to search for any criminal items, correct?
"A. Correct.
"Q. Criminal items of marijuana or any crime?
"A. Any crime."
While we are mindful of the Fourth Amendment prohibition against general exploratory searches, this court is of the opinion that the search warrant in question was of such specificity as to be constitutionally valid. In Andresen v.Maryland (1976),
In the present case, the affidavit of the police officer stated that appellant had in his possession "marijuana and any other fruits and instrumentalities of the crime yet to be determined, knowing the same to be trafficking in violation of Ohio Revised Code Section
Appellant relies in part on State v. Porter (C.P. 1977),
Appellant next contends that the seizure of the weapons pursuant to the plain view doctrine was impermissible and relies on State v. Williams (1978),
Appellant was found guilty of having weapons while under a disability, in violation of R.C.
Lastly, appellant alleges that there was insufficient probable cause to issue the warrant. The state points out that the issuing magistrate need not be convinced beyond a reasonable doubt that the items to be seized are present. He need only be convinced that there is a good chance that the items are present. Illinois
v. Gates (1983),
Nevertheless, the trial court granted appellant's motion for a new trial based on the fact that the informant later stated that much of what he had told the police about the activities at the appellant's residence was fabricated. It is unclear why the trial court granted the motion for a new trial because as long as the affiant-police officer believed the information was true and his belief was reasonable, the warrant's validity was not affected by the fact that the informant may have lied about the information which formed the basis of the search warrant. See Leon, supra, at 918-921. Appellant never alleged that the police officer *149 was reckless or dishonest in preparing the affidavit or that his belief in its veracity was unreasonable. This court believes that the trial court improperly granted the motion for a new trial for the reason stated above. After granting the motion for a new trial, the trial court again denied the motion to suppress the evidence seized, finding, in effect, that the search was legitimate. While they are not dispositive in the present case, we are perplexed by the trial court's rulings. In any event, this court is of the opinion that there existed sufficient probable cause upon which to issue the search warrant.
We do not find dispositive the Eighth District case of State v.Hunt (1984),
Franks and Leon are harmonious and were properly relied upon by the court in Hunt. However, in the case at bar, there was never any allegation that the affiant intentionally made a false statement or made a statement with reckless disregard for the truth. Here, the informant may have made false statements which were reasonably relied upon by the affiant. Franks and Leon are inapplicable here.
Although probable cause did exist to issue the search warrant, since it was not demonstrated that the police immediately knew of the incriminating nature of the weapons when they were inadvertently discovered, the plain view doctrine will not apply,Williams, supra, and the evidence of the weapons should have been suppressed.
For the foregoing reasons, the decision of the trial court is reversed and the cause is remanded for proceedings consistent with this opinion.
Judgment reversed and cause remanded.
COOK and CHRISTLEY, JJ., concur.