State v. Reniff

*753 Anne L. Kilbane, Judge. ¶ 1 This is an appeal from an order of Judge William Coyne that granted appellee Ryan Reniffs motion to suppress evidence discovered in his apartment under a warrant. The appellant state argues that the warrant was based upon evidence that satisfied probable cause or, in the alternative, that the exclusionary rule is inapplicable because the officers had objective, good-faith reliance on the warrant’s validity. We disagree and affirm. ¶ 2 Judge Kenneth Callahan issued a search warrant for 14741 Lorain Avenue, apartment 11, in Cleveland, based upon the affidavit of Cleveland Police Detective Richard Milligan. The search resulted in the arrest of then twenty-one-year-old Reniff and a subsequent indictment for preparation of drugs for sale, drug possession, and possession of criminal tools. He moved to suppress the evidence seized and, at a hearing on that motion, it was stipulated that the content of Detective Milligan’s affidavit was the only information supporting issuance of the warrant: ¶ 3 “Affiant states that information was received, and an investigation conducted, during the past two months that illegal drug sales were occurring out of the. above-described apartment and another apartment in the same apartment building, Apt. 1. Apt. 1 is on the southeast corner and on the first floor of the subject apartment building. ¶ 4 “Specifically, information was received that a John Anderson, ‘Jack,’ was selling drugs out of Apt. 1. Jack is described as a white male, 5'9", 210 pounds, SS# [* *-* *-* * * *]. ¶ 5 “Investigation has revealed that Jack was arrested in August of 1999 and used the above-described premises, specifically Apt. 1, as his residence. ¶ 6 “During the course of the investigation, it was learned that ‘James’ sells drugs out of the subject apartment, Apt. 11 and further provides Jack in Apt. 1 with drugs to sell. ¶ 7 “Periodic surveillance revealed that James, a white male, 5'9", approximately 180 pounds, was seen entering and exiting Apt. 11. Specifically, James has been seen entering a 1964 Mercury Comet, which is parked in the back of the subject apartment building. A check of that vehicle’s registration reveals it is listed to a ‘James Reniff.’ ¶ 8 “Affiant states that during the past week, he conducted periodic surveillance of the premises during which persons were observed to either enter the apartment building, enter Apt. 1, stay for a period of less than five (5) minutes, then leave or pull up in a vehicle and be met by a white male fitting the *754 description of Jack and conduct a hand-to-hand exchange. In affiant’s experience this type of pedestrian and vehicular traffic is indicative of drug sales activity. ¶ 9 “Further surveillance revealed that Jack would exit Apt. 1 and walk up the steps to Apt. 11, and has been seen either entering Apt. 11 or going up to the third floor, and engage in a conversation with another white male fitting the description of James Reniff. The conversations would occur from balcony to balcony, between Jack in Apt. 1 and James in Apt. 11. Continuing surveillance revealed that Jack would then disappear briefly on the third floor, and then return. At times, Jack would either go to a vehicle parked outside of the apartment building, and conduct hand-to-hand exchanges or go directly to his apartment, Apt. 1, whereby drug sales would resume.” ¶ 10 The affidavit further stated that police, through a confidential informant, had executed a “controlled buy” of heroin from apartment 1. The judge granted the motion to suppress, stating: ¶ 11 “I do not see anything that even remotely rises to the level of probable cause for a search warrant for Apartment 11. Merely having a conversation with this James by Jack certainly would not extend the search warrant into apartment No. 11.” ¶ 12 The state asserts the following assignment of error: ¶ 13 “The trial court erred when it found that the search of appellee’s apartment violated his Fourth Amendment rights.” [1] {¶ 14} The state argues that the warrant was properly issued or, in the alternative, that the police executed the warrant in good-faith reliance on its validity, pursuant to United States v. Leon 1 and State v. Wilmoth. 2 Although Reniff argues that the state has waived reliance on the good-faith exception, the issue was raised by the state, in its brief in opposition to the motion to suppress, and thus sufficiently preserved for review. ¶ 15 We first address whether the warrant was valid under the standards announced in Illinois v. Gates. 3 Although the United States Constitution requires search warrants to issue only upon probable causes Gates requires a reviewing court to defer to an issuing judge’s discretion when deciding whether a warrant was validly issued. 4 Thus, even though the existence of probable cause *755 is a legal question to be determined on the historical facts presented, 5 we will uphold the warrant if the issuing judge had a “substantial basis” for believing that probable cause existed. 6 ¶ 16 In order to show the existence of probable cause, the warrant must be based on evidence showing a “fair probability” that the items sought will be found on the premises. 7 The affidavit here gives no indication that drugs will be found in apartment 11, because it states only that “Jack,” the occupant of apartment 1, has been seen conversing with “James,” the occupant of apartment 11. The affidavit is equivocal on whether Jack has even been seen entering apartment 11, although even this evidence would be insufficient to raise the suspicion necessary to support a search warrant. The judge correctly concluded that mere conversations or visits between neighbors in an apartment building could not support the search of both apartments when only one of the units was reasonably connected to drug-related activity. 8 The affidavit asserts nothing more than guilt by association. After making the conclusory allegation that “it was learned that ‘James’ sells drugs out of the subject apartment, Apt. 11 and further provides Jack in Apt. 1 with drugs to sell[,]” the affidavit totally fails to substantiate the accusation, establishing only that James does appear to reside in apartment 11, owns a car, and is acquainted with Jack, a neighbor in apartment 1. ¶ 18 Not only does the affidavit fail to establish probable cause for the search of Reniffs apartment, the issuing judge had no substantial basis on which to base a probable cause finding. The term “substantial basis” is as ill-defined as “probable cause” itself but, as discussed infra, must require some showing beyond even an “arguable” basis, because even the good-faith exception to the exclusionary rule does not apply absent the arguable existence of probable cause. There was no substantial basis upon which to make a finding because the guilt-by-association allegations were too transparent to satisfy any reasonable formulation of probable cause. 9 The notion of a common-sense understanding of probable cause should encompass not only the reasonable understanding of what *756 inspires suspicion of guilt but the common-sense understanding of the privacy interests protected by the Fourth Amendment to the United States Constitution and Section 14, Article I of the Ohio Constitution. Issuing a search warrant for an apartment based on nothing more than its occupant’s observed acquaintance with a neighbor violates “the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.” 10 We agree with the trial judge that nothing in the affidavit “even remotely rises to the level of probable cause for a search warrant for Apartment 11.” ¶ 19 The state next argues that even if the warrant is invalid, the exclusionary rule need not apply to the evidence obtained because the police officers executed the search in good-faith reliance on the warrant’s validity. 11 Despite widespread criticism of the good-faith exception to the exclusionary rule, 12 this state has adopted the federal rule, declining to find greater protection under the Ohio Constitution. 13 We review this issue de novo, recognizing that the state bears the burden of showing that the good-faith exception is applicable. 14 ¶ 20 The good-faith exception is based on the premise that the exclusionary remedy is intended to deter misconduct or carelessness on the part of those who seek warrants, not those who issue them. 15 Not only does the rule apply to ameliorate a warrant’s “technical” deficiencies, 16 it has also been held to apply even where the warrant is insufficient to support probable cause. 17 In such cases, the exclusionary rule will not apply in a narrow range where the evidence fails to set forth even a substantial basis upon which to find probable cause, yet is not “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.” 18 In other words, in order to apply the exception, we must be able to state that a police officer had an objectively *757 reasonable basis for relying on a warrant that has already failed despite the “great deference” accorded under the Illinois v. Gates standard. 19 ¶ 21 Our discussion of the affidavit in addressing the validity of the warrant, supra, also applies here, as the utter lack of any evidence justifying a search of Reniffs apartment prevents any claim of good-faith reliance. When analyzing the “indicia of probable cause” to determine whether police could reasonably rely on a warrant, courts have not allowed police officers to relegate all knowledge of search and seizure standards to the issuing judge or magistrate. The standard of objective good faith posits a reasonably well-trained police officer 20 — it should be no great stretch to surmise that this reasonable officer, while not a legal technician “abreast of each judicial refinement,” 21 is nonetheless an official familiar with basic legal rules concerning search and seizure, and is also capable of making practical, common-sense application of known principles to varied fact patterns. 22 The good-faith exception does not allow police to rely blindly upon a judge’s issuance of a warrant, but instead requires all law enforcement officials to have some “minimum level of knowledge of the law’s requirements.” 23 ¶ 22 In Leon, the majority pointed out that the warrant was sought after considerable police investigation, “was supported by much more than a ‘bare-bones’ affidavit,” 24 and the existence of probable cause was a matter of much debate among the judges who reviewed the case below, as the affidavit “provided evidence sufficient to create disagreement among thoughtful and competent judges” 25 on the issue. In fact, critics of the decision have suggested that the facts might have passed muster had the court remanded the case for analysis under the Gates test, announced subsequent to the lower court’s decision in Leon. 26 The Leon court, therefore, indicated that reasonable reliance requires *758 more than merely a colorable or arguable claim, but that the argument in favor of probable cause must have substantial persuasive force. ¶ 23 Ohio courts have generally held police officers responsible for knowing not only when the warrant is based on a conclusory “bare-bones” affidavit, 27 but also for knowing whether allegations have sufficient factual basis or require further corroboration, 28 and whether observed facts reasonably lead to an inference of wrongdoing. 29 The purported basis for searching Reniffs apartment was the observed relationship between “Jack” in apartment 1, who was validly suspected of selling drugs, and “James” in apartment 11, who had been seen conversing with Jack at the apartment building, and possibly allowing Jack inside his apartment. As already noted, Sibron 30 prohibits this sort of guilt by association, and a Gates “reasonably well-trained police officer” should be aware of this common-sense application of search and seizure rules. ¶ 24 Sibron does not state a complex or logically surprising rule — it states only what we hope is the uncontroversial maxim that common-sense definitions of probable cause establish a standard higher than that necessary to spark gossip. All reasonable government officials should know that more is needed before idle speculation becomes active intrusion. In these circumstances, the exclusionary remedy is thought to have a deterrent effect on police officers, who are encouraged to learn and consider the basic rules and principles underlying search and seizure protections, and discouraged from presenting inadequate affidavits to judges. ¶ 25 While we charitably ignore the dissent’s quibbling over who is more sympathetic to members of the judiciary and law enforcement, we do take issue with his conclusion that we misunderstand the good-faith exception and the exclusionary rule. The dissent, tellingly, stops short of claiming that the affidavit supports probable cause, or even that it provides a substantial basis for such a finding but, instead, submits that one might reasonably rely upon a suspicious fact even though the totality of circumstances inarguably reveals a lack of probable cause. It relies upon the affidavit’s misleading statement that Jack’s apparent drug sales “resumed” after he went to the third floor, which affidavit also leads to the conclusion that drug sales “resumed” after visitors entered Jack’s apartment and after he encountered people in cars. The inference that *759 Reniff supplied drugs to Jack is no more persuasive than the inference that Jack met his supplier(s) during one of the other outlined encounters. The use of the word “resume” in the affidavit is as conclusory as the unsupported statement that the officers “learned” that Reniff was selling drugs — there is no evidence supporting a search of anyone or anything other than apartment 1. ¶ 26 Even though the Leon court stated that a reviewing court need not determine whether probable cause exists before applying the good-faith exception, it also noted that “it frequently will be difficult to determine whether the officers acted reasonably without resolving the Fourth Amendment issue.” 31 Therefore, even though it might sometimes be unnecessary to determine the existence of probable cause, it is always necessary to determine whether there is any reasonable argument to support probable cause. ¶ 27 If one concedes that a glass is empty, one cannot then claim that the ring of milk in the bottom allows another person to have a belief that the glass is full. Similarly, one cannot reasonably rely upon a drop of suspicion when there is no doubt the evidence is insufficient to support a search. For those favored few who go through life in a bell jar, protected from any contact with a transgressor of any degree, the dissent’s perfect-world interpretation of the good-faith exception poses no threat. In the real world, however, welcome or unwelcome contact with a “Jack” can be that drop of milk in every empty glass and, for those who lack the dissent’s sanctimony, that exception cannot be read or magnified so broadly that a drop becomes objectively reliable indicia 32 of probable cause. ¶ 28 There is nothing to support even the barely arguable existence of probable cause here, much less to spur serious argument among competent judges. It is unreasonable, both legally and practically, to believe that conversing with one’s disreputable neighbor provides probable cause to issue a search warrant. Holding law enforcement officials to a lesser standard would allow them to completely ignore basic privacy interests in the name of objective good faith. Judgment affirmed. Patricia Ann Blackmon, P.J., concurs. Terrence O’Donnell, J., dissents. Footnotes [1] (1984), 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677. [2] (1986), 22 Ohio St.3d 251, 22 OBR 427, 490 N.E.2d 1236, paragraph one of the syllabus. [3] (1983), 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527. [4] Id. at 236-37, 103 S.Ct. at 2331, 76 L.Ed.2d at 546-548. [5] Ornelas v. United States (1996), 517 U.S. 690, 699, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911, 920-921. [6] Gates, supra. [7] Id. at 238, 103 S.Ct. at 2332, 76 L.Ed.2d at 548-549. [8] Sibron v. New York (1968), 392 U.S. 40, 62, 88 S.Ct. 1889, 1902, 20 L.Ed.2d 917, 934; State v. Fahy (1988), 49 Ohio App.3d 160, 161-162, 551 N.E.2d 1311, 1313-1314. [9] Sibron; Fahy. [10] Massachusetts v. Upton (1984), 466 U.S. 727, 732, 104 S.Ct. 2085, 2087, 80 L.Ed.2d 721, 726 (citation omitted). [11] Leon, 468 U.S. at 926, 104 S.Ct. at 3422, 82 L.Ed.2d at 700-701. [12] See, generally, LaFave, Search and Seizure (3d Ed.1996) 51-102, Section 1.3. [13] Wilmoth, supra. [14] State v. Klosterman (1996), 114 Ohio App.3d 327, 333, 683 N.E.2d 100, 104. [15] Leon, 468 U.S. at 916-919, 104 S.Ct. at 3417-3419, 82 L.Ed.2d at 694-797. [16] See Massachusetts v. Sheppard (1984), 468 U.S. 981, 104 S.Ct. 3424, 82 L.Ed.2d 737 (warrant failed to describe items to be seized, although affidavit in support did). [17] State v. George, 45 Ohio St.3d 325, 331-332, 544 N.E.2d 640, 646-647. [18] Leon, 468 U.S. at 923, 104 S.Ct. at 3421, 82 L.Ed.2d at 699. [19] Gates, 462 U.S. at 236, 103 S.Ct. at 2331, 76 L.Ed.2d at 546-547 (citation omitted). [20] Leon, 468 U.S. at 922, 104 S.Ct. at 3420, 82 L.Ed.2d at 698, fn. 23. [21] Gates, supra. [22] Id. [23] Klosterman, supra. [24] Leon, 468 U.S. at 926, 104 S.Ct. at 3422, 82 L.Ed.2d at 701. [25] Id. [26] Id. at 959, 104 S.Ct. at 3445, 82 L.Ed.2d at 722 (Brennan, J., dissenting); LaFave, supra, at 66-67. [27] State v. Rodriguez (1989), 64 Ohio App.3d 183, 194, 580 N.E.2d 1127, 1135. [28] Klosterman, 114 Ohio App.3d at 334, 683 N.E.2d at 104. [29] State v. Jones (1991), 72 Ohio App.3d 522, 526-527, 595 N.E.2d 485, 488; State v. McNamee (2000), 139 Ohio App.3d 875, 882, 745 N.E.2d 1147, 1153. [30] Sibron v. New York, supra. [31] Leon, 468 U.S. at 924-925, 104 S.Ct. at 3421-3422, 82 L.Ed.2d at 699-700. [32] "Indicia” is the plural of "indicum” — one cannot have "an (one) indicia.”