State v. Denune , 82 Ohio App. 3d 497 ( 1992 )

In its opinion, the majority determined that probable cause and exigent circumstances did not exist to permit a warrantless search with respect to the first trailer. I vehemently disagree. I am convinced that the warrantless search was proper pursuant to the "automobile exception" first formulated in Carroll v. United States (1925),267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543, wherein the United States Supreme Court expounded that a warrantless search is valid where there is probable cause to believe a vehicle contains contraband and the search is conducted under exigent circumstances.

With respect to the issue of probable cause, the facts, as set forth in the majority opinion and the record, plainly show that there was a fair probability that contraband or evidence of a crime would be found in the trailer in question. See State v.George (1989), 45 Ohio St.3d 325, 329, 544 N.E.2d 640, 644. The pertinent facts indicate that the Ohio Environmental Protection Agency ("OEPA") scheduled a polychlorinated biphenyls ("PCBs") inspection of Dixie Distributing's warehouse located in Springfield, Ohio on November 10, 1988. However, on November 9, 1988, the OEPA received an anonymous telephone call informing it that Dixie Distributing was planning to load PCB material onto a trailer at their Teledyne warehouse in Springfield in an attempt to move the PCB material before the scheduled inspection.

The observations of the OEPA at the Teledyne building confirmed the information that they received from the anonymous caller. Two hours before the inspection was scheduled to begin, an individual arrived at the Teledyne building and drove the trailer in question from the warehouse and onto I-75. The OEPA personnel observed that the trailer appeared to be heavily laden because it had trouble traveling uphill. The trailer finally stopped at the Canal Auto and Truck Salvage Yard in Hamilton, Ohio where it was parked next to six other trailers belonging to Dixie Distributing. The seven trailers were parked on a flood plain that was located between a river and a residential area, immediately next to and upstream from a wildlife refuge.

A visual inspection of the six trailers that had been present at the salvage yard showed that they had holes through which the investigators could see fifty-five-gallon drums. The newly arrived trailer did not have holes through which its contents could be discerned. William Palmer, an OEPA investigator, testified that through his experience and knowledge, the most common container for hazardous waste is the fifty-five-gallon drum.

The details of the anonymous caller having been corroborated by the OEPA personnel's observations of the trailer, coupled with William Palmer's experience and knowledge with respect to the transporting, storage and disposing of hazardous waste, clearly gave rise to probable cause to believe that the trailer contained contraband. See United States v. Rodriguez (C.A. 5, 1988), 835 F.2d 1090.

Moreover, we find that exigent circumstances in the instant action required the immediate inspection of the trailer in question. In the instant action, the probable existence of an inherently dangerous chemical compound (PCBs) in a vulnerable environmental area such as Hamilton's wildlife refuge and the possible release of the cancer-causing chemical compound to the environment created an exigency that required the immediate inspection of Dixie Distributing's trailer. As I have already indicated, there was probable cause that the trailer in question contained PCB contaminated oils. Thus, our next concern is whether these PCBs were a potential danger to the surrounding environment. Once again, the record clearly shows that such a danger did exist. OEPA personnel observed that the trailer appeared to be in poor shape as it was old and rusted with no labeling describing its contents. Moreover, since there was no information as to whether or not the contents of the trailer had been secured on its trip from Springfield to Hamilton, there was a possibility that the contents inside the trailer had tipped over or were leaking from its journey.

Finally, OEPA's concern with respect to the trailer was twofold. First, it was interested in discovering whether a hazardous waste violation existed. Second, and more important, it wanted to prevent the possible release of PCBs from the trailer to the vulnerable environmental area. Courts have previously found that the possibility of explosives in an automobile constituted an exigent circumstance sufficient to justify an immediate warrantless search. See United States v.Al-Azzawy (C.A.9, 1985), 784 F.2d 890; United States v. Williams (C.A.9, 1980), 626 F.2d 697.

Having found that there was probable cause to believe that the trailer contained contraband or other evidence, and that exigent circumstances necessitated a search of the trailer, I would have affirmed the trial court's decision holding that the facts justified the search of the trailer even without a warrant.

In finding that there was an inadequate basis upon which to issue a warrant with respect to the other six trailers, the majority quite simply did what is not within its power to do. The majority, in essence, conducted a de novo determination as to whether or not the affidavits in question contained sufficient probable cause upon which a judge could issue a search warrant.

In State v. George (1989), 45 Ohio St.3d 325, 544 N.E.2d 640, the Ohio Supreme Court set forth the guidelines that a reviewing court must follow when conducting an after-the-fact scrutiny of an affidavit submitted in support of a search warrant. InGeorge, the court explained at paragraph two of the syllabus that:

"In reviewing the sufficiency of probable cause in an affidavit submitted in support of a search warrant issued by a [judge], neither a trial court nor an appellate court should substitute its judgment for that of the [judge] by conducting ade novo determination as to whether the affidavit contains sufficient probable cause upon which that court would issue the search warrant. Rather, the duty of a reviewing court is simply to ensure that the [judge] had a substantial basis for concluding that probable cause existed. In conducting any after-the-fact scrutiny of an affidavit submitted in support of a search warrant, trial and appellate courts should accord great deference to the [judge's] determination of probable cause, and doubtful or marginal cases in this area should be resolved in favor of upholding the warrant."

I find it rather extraordinary and unfortunate that the majority would ignore the holding in George in order to reach a conclusion that I feel is wrong. By conducting a de novo determination as to whether or not the affidavits contained sufficient probable cause upon which a court could issue a search warrant, the majority substituted its judgment for that of Judge Elliott. In my view, there was without question a sufficient basis upon which to issue a warrant, even after disregarding the evidence obtained from the initial, what the majority claims to be illegal, search. The affidavits supplied to Judge Elliott clearly showed that there was probable cause to believe that the six trailers in question contained hazardous wastes.

Contained in the affidavits was the testimony of an investigator with the Environmental Enforcement Section of the Office of the Ohio Attorney General, Brance Johnson, and the testimony of an Environmental Engineer with the Ohio Environmental Protection Agency, Paul Pardi. In their affidavits, both stated that they were informed by OEPA personnel on November 14, 1988 that six box trailers with drummed materials were located at Canal Auto and Truck Salvage Yard in Hamilton, Ohio. Pardi stated in his affidavit that based upon his experience as a hazardous waste inspector, a partial inspection of the six trailers disclosed the presence of fifty-five-gallon drums, tanks, cans and other types of containers which contained what appeared to be waste-type materials such as waste oils, paints, and solvent-type substances. He further stated that several containers of what appeared to be corrosive-type waste were in a deteriorated condition and leaking. Finally, Pardi stated that these types of wastes are incompatible and that the commingling of these wastes could result in the generation of toxic fumes, fire and/or explosion.

Based upon the foregoing evidence, I once again reiterate that there was sufficient evidence in the affidavits, disregarding the so-called tainted evidence, to find that Judge Elliott had a substantial basis for concluding that probable cause to search the six trailers existed. See Illinois v. Gates (1983), 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527. Thus, unlike my colleagues, I would have determined the original search to be proper and deferred to the judge's determination of probable cause and affirmed the trial court's judgment.