State v. Swearingen

Evans, Judge. This appeal is brought by the state of Ohio from a judgment of the Court of Common Pleas of Marion County granting a motion to suppress evidence in a case involving William F. Swearingen, Jr. Although this appeal was originally placed on the accelerated calendar, we elect to issue the following opinion pursuant to Loe. R. 12(5). *127 On April 23, 1997, William Swearingen, Jr., was indicted on two counts of trafficking in cocaine, in violation of R.C. 2925.03(A)/(C)(4)(b), and one count of possession of cocaine, in violation of R.C. 2925.11(A)/(C)(4). The possession charge stemmed from a drug test performed on Swearingen’s urine. The urine sample, which tested positive for cocaine, was obtained by police pursuant to a search warrant executed on March 28, 1997. On July 3, 1997, Swearingen filed a motion to suppress the evidence obtained by the state as a result of the search. A hearing on the motion was held on July 31, 1997. The following week, the trial court sustained the motion to suppress, finding no probable cause to justify the issuance of a warrant to search Swearingen’s body. Pursuant to Crim.R. 12(J), the state now appeals this decision and certifies that the instant appeal is not taken for delay purposes and that trial court decision has rendered the state’s evidence on the charge of possession of cocaine so weak in its entirety that it had destroyed any reasonable possibility of effective prosecution. 1 The state has assigned two errors on appeal. Assignment of Error No. 1 “The trial court erred in determining that a search warrant was invalid where the issuing magistrate had a substantial basis for concluding that probable cause existed.” In its first assignment of error, the state argues that the magistrate had a substantial basis for finding probable cause to justify a search of Swearingen’s body. In support of this argument, the state cites the information provided to the magistrate by Detective Steven Ross. The record reveals that Detective Ross filed an affidavit in the Municipal Court of Marion, Ohio on March 28, 1997, requesting a warrant to search Swearingen’s body based on his belief that the search would produce “evidence of the commission of a criminal offense.” 2 Detective Ross testified before the magistrate that he had information from an informant who participated with law enforcement in two controlled drug buys involving Swearingen on February 20, 1997. These buys led to Swearingen’s arrest on March 27, 1997 on felony drug trafficking charges. According to Detective Ross, as of February 20, 1997, this informant told him that she had repeatedly smoked crack cocaine with Swearingen and that Swearingen freely gave the drug away to his female friends. Furthermore, the detective testified that following the arrest on March 27, he had *128 asked Swearingen for a urine sample, to which Swearingen replied, “Why would I want to give you a urine sample just to have another charge put against me?” Detective Ross understood this to mean that Swearingen would test positive for drugs. Given this testimony in support of probable cause, the magistrate issued a warrant on March 28,1997 to search Swearingen’s body. The trial court reviewed the testimony above and concluded that the magistrate acted without a substantial basis that probable cause existed when issuing the warrant. Specifically, the trial court found Detective Ross’s affidavit vague, since it failed to describe what the detective expected to find in the search. The court also noted the absence of any testimony regarding the reliability and credibility of the informant whose hearsay statements were used in support of probable cause. Furthermore, while the informant purportedly had personal knowledge of Swearingen’s drug use, no date or time was mentioned to establish when the informant and Swearingen last used drugs together. At the latest, the trial court found Detective Ross obtained the information on February 20, 1997, over a month prior to the time the request for the warrant was made and weeks after any evidence of cocaine could have been detected in a urine specimen. Finally, the trial court refused to infer any degree of culpability from Swearingen’s refusal to consent to give a urine sample. The determination of whether probable cause existed in this case is not subject to de novo review by this court. State v. George (1989), 45 Ohio St.3d 325, 544 N.E.2d 640, paragraph two of the syllabus. Rather, like the trial court, our duty as an appellate court “is simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed.” Id. Moreover, we are to give great deference to the magistrate’s determination that probable cause existed, resolving marginal cases in favor of upholding the warrant. Id. In determining the sufficiency of probable cause present in an affidavit and testimony offered in support of a search warrant, “[t]he task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Id., at paragraph one of the syllabus, quoting Illinois v. Gates (1983), 462 U.S. 213, 238-239, 103 S.Ct. 2317, 2332-2333, 76 L.Ed.2d 527, 548-549. While the magistrate is to consider the totality of the circumstances presented in each case, factors such as the “veracity” of the hearsay source and their “basis of knowledge” remain relevant elements to consider within the totality-of-the-circumstances test. See Gates, 462 U.S. at 240, 103 S.Ct. at 2333, 76 L.Ed.2d at *129 549-550. Moreover, Crim.R. 41(C) expressly directs a magistrate to consider these factors: “The finding of probable cause may be based upon hearsay in whole or in part, provided there is a substantial basis for believing the source of the hearsay to be credible and for believing that there is a factual basis for the information furnished.” In this case, the affidavit and oral testimony of Detective Ross offer no statement or representation that the hearsay informant was a credible person or that her allegations were worthy of belief. The fact that the informant worked in conjunction with law enforcement on controlled drug buys does not speak to the issue of the informant’s reputation for trustworthiness or truthfulness. Detective Ross admitted at the suppression hearing that the first time he had any dealings with this particular informant was during the controlled drug buys involving Swearingen. He clearly had no history or prior experience with the informant from which he could have attested to her reputation for trustworthiness or truthfulness. Thus, the element of “veracity” is entirely absent. Nor did Detective Ross use independent police work to substantiate or corroborate the informant’s assertions. 3 Rather, he simply recited the informant’s conclusory statement that she had repeatedly smoked crack with Swearingen. The dissent finds some corroboration in the fact that the defendant was clearly heard on the tape recording of the controlled drug buys and was thus “identified independently by law officers as the individual from whom the informant was actually purchasing the drugs.” Police identification of the appellee provides nothing from which one might conclude that the informant is either honest or reliable. The record does not establish that the informant ever *130 supplied information to police as to the identity of the seller of the drugs. Thus, police identification of the appellee on the tape cannot be corroboration of her information. Moreover, we are not convinced that the informant’s statement of Swearingen’s drug use is in any way corroborated by Swearingen’s stated reluctance to voluntarily give a urine sample for fear of another criminal charge being placed against him. Such a statement is subject to numerous interpretations, only one of them being that appellant would test positive for drugs. Consequently, like the trial court, we are not inclined to draw any inferences from the remark. Even assuming, arguendo, that the informant’s allegations were credible, the absence of any chronology regarding the events alleged renders the statements so vague that no reasonable inferences could be drawn from them. While a magistrate may draw reasonable, commonsense inferences from allegations within the affidavit and oral testimony, the inferences must be drawn from facts set forth in them. State v. Bean (1983), 13 Ohio App.3d 69, 72-73, 13 OBR 83, 86-88, 468 N.E.2d 146, 150-152. The facts in this case merely establish that on February 20, 1997, Detective Ross learned that his informant was claiming she had repeatedly used drugs with Swearingen. When this happened, no one knows. Moreover, Detective Ross offered no evidence that any drug taken before February 20, 1997 could be found in Swearingen’s urine on March' 28, 1997. Since it is a matter of common knowledge that drugs dissipate over time in a person’s body, staleness was an issue which should have concerned the magistrate. “ ‘[I]t is manifest that the proof [necessary for a search warrant] be of facts so closely related to the time of the issue of the warrant as to justify a finding of probable cause at that time. * * * ’ Sgro v. United States (1932), 287 U.S. 206, 210, 53 S.Ct. 138, 140, 77 L.Ed. 260, 263. “While there is no arbitrary time limit on how old information can be, the alleged facts must justify the conclusion that the subject contraband is probably on the person or premise to be searched. State v. Yanowitz (1980), 67 Ohio App.2d 141, 147, 21 O.O.3d 445, 449, 426 N.E.2d 190, 195.” State v. Jones (1991), 72 Ohio App.3d 522, 526, 595 N.E.2d 485, 488. Furthermore, the double inference cannot be drawn that (1) someone who has repeatedly used drugs (an unknown number of times) sometime in the past is addicted to drugs, and (2) someone addicted to drugs will currently be using drugs. If this inference upon an inference were permitted, the mere allegation of past drug use would be enough to forevermore satisfy the requirements of probable cause and allow for the issuance of a search warrant for a person’s blood or urine at any time after such an allegation is made. Clearly, this would be ludicrous. Consequently, we find that without further information being present *131 ed by the detective, the magistrate could not have had a substantial basis to conclude that there existed a “fair probability” that evidence of a crime would be found in appellee’s body. Appellant’s first assignment of error is overruled. Assignment of Error No. 2 “The trial court erred in suppressing evidence obtained by the officers who were acting in objectively reasonable reliance of a search warrant [issued] by a detached and neutral magistrate.” While the exclusion of evidence is generally the remedy awarded in response to Fourth Amendment violations, this rule is not without exceptions. In George, supra, 45 Ohio St.3d 325, 544 N.E.2d 640, the Ohio Supreme Court adopted the good-faith exception to the Fourth Amendment exclusionary rule enunciated in United States v. Leon (1984), 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677, and held: “The Fourth Amendment exclusionary rule should not be applied so as to bar the use in the prosecution’s case in chief of evidence obtained by officers acting in objectively reasonable reliance on a search warrant issued by a detached and neutral magistrate but ultimately found to be unsupported by probable cause.” George, at paragraph three of the syllabus; see State v. Wilmoth (1986), 22 Ohio St.3d 251, 22 OBR 427, 490 N.E.2d 1236, paragraph one of the syllabus. In its second assignment of error, the state contends that even if the search warrant was improperly granted, the evidence should not have been excluded because Detective Ross acted in good-faith reliance when executing the warrant. It is not enough to invoke the good faith exception that an officer' was acting pursuant to a warrant issued by a magistrate. The action taken by the officer must be based on the belief that the warrant was properly issued and this reliance must be objectively reasonable. George, supra. The United States Supreme Court in Leon noted several types of behavior which would not constitute “reasonable reliance”: where the affiant/police officer has an awareness 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 could not reasonably presume it to be valid. Leon, 468 U.S. at 923, 104 S.Ct. at 3420-3421, 82 L.Ed.2d at 698-699; George, 45 Ohio St.3d at 331, 544 N.E.2d at at 646-647. *132 In this case, the question becomes whether the facts and circumstances of this case warrant the application of the Leon good-faith exception or whether the officer should have known that the warrant was based on information so lacking in indicia of probable cause that reliance on its validity would be unreasonable. The inquiry must look behind the warrant to determine “whether a reasonably well-trained officer would have known that the search was illegal despite the magistrate’s authorization.” Leon, 468 U.S. at 922, 104 S.Ct. at 3420, 82 L.Ed.2d at 698, fn. 23. We do not believe a reasonably well-trained officer would have relied on the warrant in this case, because the affidavit and oral testimony used to procure the warrant were so lacking in indicia of probable cause that it rendered official belief in its existence entirely unreasonable. As a threshold matter, we find it particularly important to note that the officer applying for the search warrant and the officer executing the warrant were the same in this case — Detective Ross. Thus, he had intimate knowledge of the facts supporting the warrant request as well as the deficiency of probable cause. As we previously discussed, Detective Ross never presented the reviewing magistrate with any indicia of probable cause other than hearsay statements of an untested informant. The veracity of this hearsay informant was not attested to by Detective Ross, nor does the record indicate that he corroborated or verified any of the informant’s allegations by independent police work. More important, the allegations reported by this informant were divulged at least one month prior to the time Detective Ross applied for a search warrant. As a result, even if the allegations that Swearingen used drugs with the informant were true, it was not demonstrated at the probable cause hearing that it was physically possible for evidence of those crimes to be found in Swearingen’s urine at the time the warrant was finally sought and obtained. These collective deficiencies lead us to believe Detective Ross, an officer who should have been familiar with the requirements of probable cause, 4 could not reasonably have presumed that the warrant he obtained was valid. For the foregoing reasons, we find that the good-faith exception to the exclusionary rule does not apply and that suppression of the evidence obtained as a result of the unlawful search was the appropriate remedy in this case. Appellant’s second assignment of error is overruled. Having found no error prejudicial to the appellant herein, in the particulars assigned and argued, we affirm the judgment of the trial court. Judgment affirmed. *133 Hadley, J., concurs. Shaw, J., dissents. Footnotes [1] Therefore, this appeal is relevant only to the R.C. 2925.11(A)/(C)(4) charge of possession. Prosecution on the trafficking charges has proceeded. [2] Detective Ross later stated in his testimony to the magistrate that he sought the warrant in connection with “felony drug abuse" charges. [3] Corroboration by independent police investigation can fill the probable cause gap left by unverified hearsay informants. In Illinois v. Gates, police received an anonymous letter foretelling a drug run from Illinois to Florida and back involving Mr. and Mrs. Gates. Police follow-up on the tip provided the needed substantiation of the unverified statements of the anonymous informant to meet the probable cause test. The court in Gates noted that the letter, standing alone, would not support a finding of probable cause to believe drugs would be in the Gateses’ car: "The letter provides virtually nothing from which one might conclude that the author is either honest or his information reliable. * * * Something more was required, then, before a magistrate could conclude that there was probable cause to believe that contraband would be found in the Gateses’ home and car." Gates, 462 U.S. at 227, 103 S.Ct. at 2326, 76 L.Ed.2d at 541. The "something more” was the corroboration of the letter by independent police work. Police surveillance confirmed the predicted movements of Mr. and Mrs. Gates described in the letter. This corroboration raised the anonymous tip from unsupported hearsay to the level of probable fact and provided a "substantial basis” for crediting its truth. The hearsay statements of the informant in this case were never corroborated through police investigation. [4] Detective Ross testified at the suppression hearing that he had three and a half years of police work experience. During this time, he had sought between fifty to seventy warrants in drug-related cases and was familiar with the requirement of probable cause.