finding that police officer could offer lay testimony as to heroin found in hydraulic press
How later courts described this case
- finding that police officer could offer lay testimony as to heroin found in hydraulic press
Written by the judges who cited it.
The opinion
*395
Grady, Judge,
dissenting.
{¶ 101} Ironically, officers had sufficient probable cause to obtain a warrant to search defendant’s residence for drugs, based on what the seriously injured Longstreet had told them about the drug deal that went bad and the two shooting deaths that occurred outside the house. Instead, officers sought and procured a warrant to search inside the house for evidence related to the homicide and assault offenses the shootings involved. Then, acting on the authority of the overly broad concluding clause of the warrant (“and any and all illegal [sic] possessed items related to the crime of murder or felonious assault on items that may have value to motive or cause”), officers conducted a pretextual search for illegal drugs and articles related to drug trafficking, and they seized that evidence when they found it.
{¶ 102} In my view, there is simply no way to reconcile the loose and general concluding language of the warrant with the express particularity requirement of the Fourth Amendment. It simply will not do to allow officers to decide for themselves whether evidence may be seized because, in their judgment, it may be probative of a motive for a crime they are investigating. Also, though officers may always seize other evidence which they know to be illegal when it is in plain view, the fact that “illegal” evidence may be present cannot authorize a warrant to go in and find it in plain view. There must be probable cause to believe it is there and a warrant particularly describing it. Otherwise, the judicial authority is transferred to and exercised by officers who perform a search on a pretext the warrant sets up.
{¶ 108}
State v. Napier
(Apr. 16, 1999), Montgomery App. No. 17326, 1999 WL 249174 , involved a warrant containing similarly broad language. However, in
Napier ,
the officers performing the search discovered cocaine inside a gym bag where other articles specifically described in the warrant reasonably might be found. In the present case, officers searched inside a cereal box, a freezer, and other locations, purportedly to find weapons, bullets, etc., as well as “blood, hair, and fibers.” The connection between such articles and the locations that were searched is simply too attenuated to support the search that was performed. After all, the shootings took place outside the house, not in or around those places.
{¶ 104} On this record, I would reverse the trial court’s order denying defendant’s motion to suppress evidence and remand the case for a good-faith inquiry pursuant to the rule of
United States v. Leon
(1984), 468 U.S. 897 , 104 S.Ct. 3405 , 82 L.Ed.2d 677 . Even though the officers clearly knew that the object of their search was drugs, if they reasonably believed that the concluding clause of the warrant authorized their search for drugs, the court may yet deny the motion to suppress evidence. That is an issue for the trial court to resolve.