State v. Hollis , 98 Ohio App. 3d 549 ( 1994 )

I respectfully dissent from the majority opinion only in respect to the final issue of whether the obtaining of evidence by the officers was done in good faith reliance on a search warrant issued by a detached and neutral magistrate per George and Leon.

The United States Supreme Court has considered the issue of whether the exclusionary rule should be applied so as to bar the use, in the prosecution's case-in-chief, of evidence obtained by officers acting in reasonable reliance on a search warrant issued by a detached and neutral magistrate, but ultimatelyfound to be invalid. Leon, 468 U.S. 897, 104 S.Ct. 3405,82 L.Ed.2d 677.

Leon points out very specifically that the exclusionary ruleis designed to deter police misconduct rather than to punish theerrors of judges and magistrates. Further, suppression of evidence obtained pursuant to warrant should be ordered only on a case-by-case basis and only in those unusual cases in which exclusion will further the purposes of the exclusionary rule. Id. at 916,104 S.Ct. at 3417, 82 L.Ed.2d at 694.

The Leon court notes several types of behavior which would go beyond the "reasonable reliance" test of Leon: an awareness on the part of the affiant/police officer that the affidavit upon which the magistrate relies is false or misleading, where the issuing magistrate wholly abandoned his judicial role, where an officer relies on a warrant based on an affidavit so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable, and where the warrant is so facially deficient, i.e., in failing to particularize the place to be searched or the things to be seized, that the executing officers cannot reasonably presume it to be valid. Id. at 923,104 S.Ct. at 3420-3421, 82 L.Ed.2d at 698-699. The Supreme Court of Ohio in George interpreted Leon's directives as to what searches would be exempted on the basis of the "good faith" exception. In George, a search warrant was issued for the house, grounds, and outbuildings as a result of an affidavit that only described the observation of a single marijuana plant growing in the garden of the residence.

The court concluded that even if the warrant was found to be lacking in probable cause as to the search of the house and outbuildings, as opposed to the grounds alone, there was still a basis to uphold the search based on the "good faith" exception set out in Leon.

In the instant case, the affidavit recited a longstanding history of allegations of illicit sexual activities at the appellee's residence, a five-year ongoing investigation, and referred to a very recent sale of material which the police officer clearly felt was "obscene" at the same residence. There was no allegation or indication that the issuing judge's actions represented anything other than a mistake in judgment. If that judge did not recognize the "staleness" or the necessity for a judicial determination of "obscenity," then I do not find it surprising that the officers acting on the warrant did not have a greater degree of legal perspicuity than the judge.

There was no police illegality, and no clear abandonment by the judge of his judicial role. The affidavit was not so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable, and it was not so facially deficient that the executing officers cannot reasonably presume it to be valid. Leon; George.

It is irrelevant that the affidavit did not contain a statement of probable cause for the charges which ultimately resulted: promoting prostitution and possession of cocaine. As to this point, I would note that there was no challenge to the scope of the warrant.

This is a classic example of an instance where the whole is less than the sum of its parts. Despite the initial impression of gross wrongdoing, I agree with the majority that this was an instance of immorality rather than illegality. Therefore, there was less than probable cause for issuing a warrant, even in reference to the sale of obscene materials. George.

However, I part company with the majority for its reluctance to recognize the "good faith" exception. The warrant was not so grossly or facially deficient such that it should have been obvious to the officers that they could not reasonably rely on it. As the issue of a "good faith exception" was raised in the trial court, I feel that the standards set out in Leon andGeorge require that the results of the search be upheld and the motion to suppress be overruled.

I would, therefore, find the state's sole assignment to be with merit.