State v. George

Sweeney, J.,

dissenting. In its zeal to uphold the search and seizure undertaken in this case, the majority has conveniently tossed aside the probable cause requirements set forth in the Fourth Amendment to the United States Constitution and Section 14, Article I of the Ohio Constitution. In so doing, the majority has extended the holdings in United States v. Leon (1984), 468 U.S. 897 , and State v. Wilmoth (1986), 22 Ohio St. 3d 251 , 22 OBR 427, 490 N.E. 2d 1236 , far beyond their original intendment. Under such circumstances, I must dissent from the majority decision herein.

In my view, the so-called “good faith” exception to the exclusionary rule announced in Leon, supra, and Wilmoth, supra, undermines the fundamental rights embodied in both the United States and Ohio Constitutions and should not be embraced by this court or any other court for that matter. I believe that such exception to the clear language of the state and federal Constitutions only serves to excuse negligent or grossly inefficient work by the principals involved in the acquisition of any particular search warrant. It is my further belief that such a relaxed standard will only lead to the sanctioning of even more egregious abuses of the warrant requirement in the future. Therefore, I stand firmly behind my dissent in Wilmoth, supra, at 267 , 22 OBR at 440, 490 N.E. 2d at 1248 , since I believe that the “good faith” exception has no legitimate *335 place in either federal or Ohio constitutional jurisprudence. The majority’s dispensation of the probable cause requirement in the instant case merely illustrates the potential for abuse that I predicted would happen in my dissent in Wilmoth .

The majority’s fallacious attempt to justify a finding of sufficient probable cause under the totality-of-the-circumstances standard of Illinois v. Gates (1983), 462 U.S. 213 , is patently absurd. Even assuming, arguendo, that the “good faith” exception is a proper method for excusing defective search warrants, a careful review of the majority opinion indicates that it merely restates the narrow grounds for invoking the “good faith” exception and then proceeds beyond such narrow grounds to uphold a search warrant that is constitutionally impermissible under either Leon, supra, or Wilmoth, supra. One of the problems inherent in the majority’s cursory analysis is that it interprets and extends the Leon exception in a manner that makes it virtually impossible to invalidate any defective search warrant in the future, no matter how lacking in probable cause the affidavit supporting the warrant appears to be.

I submit that the court of appeals below was absolutely correct in finding the instant cause to be markedly different from Leon, supra. As the appellate court observed:

“In contrast to the detailed affidavit in Leon , the affidavit in support of the application for the instant search warrant contains no factual basis to support the affiant police officer’s conclusion that he had good reason to believe that in the appellee’s residence there was [sic] concealed marijuana in a growing state, sticks, pots and other paraphernalia used to cultivate marijuana, and marijuana prepared for smoking. The affidavit related factually only to an item outside appellee’s residence. Had the affidavit included the information that was adduced during the hearing on the motion to suppress — for example, that the sole marijuana plant in the garden was being individually watered by a sprinkler device * * * — there might have been some tenable basis for using the information inferentially to establish probable cause for a search of the residence itself. However, based upon the meager facts enunciated within the affidavit sub judice, we hold that the affidavit utterly failed to supply the magistrate with the appropriate indicia of probable cause for the issuance of a warrant to search the interior of the appellee’s residence, and that, under the circumstances, no officer could have reasonably relied upon the warrant to conduct a residence search.” (Emphasis sic.)

The majority opinion in the instant cause simply concludes, without sufficient justification, that the magistrate had a “substantial basis” for permitting a search of the residence. A review of the affidavit, however, indicates that while sufficient indicia of probable cause existed to search the yard, there was absolutely no justification for the magistrate to permit a search of the residence. The record reveals that the agents observed a single marijuana plant growing in ap-pellee’s back yard. A fair conclusion from such a fact would be that appellee was probably cultivating the marijuana for his own personal use. A cluster of marijuana plants, on the other hand, may suggest trafficking which may have inferentially provided probable cause for a search of the residence. The majority, however, does not attempt to explain why an officer experienced in drug searches would objectively believe that an all-out search of a home would be justified on the *336 basis of a solitary marijuana plant in the back yard. The majority simply glosses over this anomaly by issuing a conclusory statement that the search of the home was justified under Gates .

In any event, I feel that such an obvious lack of probable cause should not be excused under the guise of a “good faith” exception. As held by the court of appeals below, neither the issuing magistrate nor the executing officers could hold an objective, reasonable belief that probable cause existed to search appellee’s residence. The affidavit underlying the warrant simply does not support such a “quantum-leap” finding of probable cause to justify a search of the residence. In another case with facts strikingly similar to those in the instant cause, the court did not hesitate in holding that the “good faith” exception could not “cure” a search of a home where the warrant’s supporting affidavit contained no allegation with regard to any infraction of the law occurring inside the home. See Howard v. State (Fla. App. 1986), 483 So. 2d 844 .

Another equally troubling aspect of the majority opinion is that it effectively forecloses any meaningful appellate review of search warrants or affidavits supporting such warrants from this day forward. By characterizing the decision to invalidate the warrant by the courts below as a “de novo” determination, the majority totally precludes appellate review of an issuing magistrate’s actions under virtually any conceivable set of circumstances. While deference should be accorded a magistrate’s determination of probable cause in this context, appellate review of that determination should not be eliminated. In demolishing appellate review in this area, the majority seizes upon an inconspicuous footnote in Gates, supra, which is at best dictum, and elevates it to unassailable constitutional authority in its second paragraph of the syllabus. Once again, the majority ranges far beyond that which is necessary to resolve this case, in an apparent attempt to settle this area of law once and for all. In so doing, the majority has hamstrung reviewing courts in all future cases simply to uphold a semi-defective search warrant in this case.

If the United States Supreme Court had been of the opinion that the statement contained in paragraph two of the syllabus above was of such great importance, would it have relegated such a pronouncement to a footnote? Of course not! Since the majority can find authority for its untenable ruling only in a footnote, perhaps it would be advised to consult Leon, supra, at 923 , where the court stated in footnote 24:

“* * * Nothing in our opinion suggests, for example, that an officer could obtain a warrant on the basis of a ‘bare bones’ affidavit and then rely on colleagues who are ignorant of the circumstances under which the warrant was obtained to conduct the search. * *

A review of the facts sub judice reveals that agent Buffington, who submitted the affidavit to support the issuance of a warrant, did not participate in the execution of the search warrant. I submit that the instant search was conducted in precisely the same manner that the Leon court warned would not be permitted under the “good faith” exception. Thus, while the majority professes to “follow” Leon, supra, as evidenced by the third paragraph of the syllabus, it actually reaches far beyond the holding in Leon and sanctions a defective warrant that the high court clearly stated it would not endorse under the “good faith” exception. Under such circumstances, one can only wonder if any defective search warrant could ever *337 conceivably be invalidated given the majority’s posture in this case. As such, the rights guaranteed under the Fourth Amendment and Section 14, Article I of the Ohio Constitution have become hollow indeed.

As I alluded to in my dissenting opinion in Wilmoth, swpra, the main problem in embracing a “good faith” exception is that the potential exists for the proverbial exception to swallow the rule. This is exactly what the majority opinion has accomplished herein. The rule of the state and federal Constitutions that “* * * no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized” has been effectively swallowed by a further extension of the Leon and Wilmoth holdings.

Lastly, it is my fervent hope that the high court which decided Leon, supra, will address the holding rendered today and reverse this ruling, thereby restoring probable cause as a necessary antecedent to the acquisition of a valid search warrant. In my view, the Constitutions of the United States and Ohio demand no less.

For these reasons, I would affirm the decision of the court of appeals below.