Opinion
No. 76926.
December 18, 2000.
Criminal appeal from Common Pleas Court, Case No. CR-370722.
WILLIAM D. MASON, Cuyahoga County Prosecutor, JOSE TORRES-RAMIREZ, Assistant County Prosecutor, Cleveland, Ohio, for Plaintiff-Appellee.
ALBERT A. GIULIANI, Cleveland, Ohio, for Defendant-Appellant.
JOURNAL ENTRY AND OPINION
Jack Hinkel appeals from a judgment of the common pleas court denying his motion to suppress drugs and criminal tools seized pursuant to a search warrant. On appeal, he urges that the affidavit used to obtain the warrant failed to establish probable cause that the police failed to knock and announce their presence before entering his home, and that they did not act in good faith upon the information contained in the warrant. After careful review, we disagree, and therefore affirm the judgment of the court.
The record here reveals that on March 4, 1998, Detective James Gilchrist, along with Special Agents Leppla, Westfall, Clayton, Task Force Officer Martin Lenz and Investigator Janice Margreta, all of whom are assigned to the Drug Enforcement Agency, obtained a warrant to search the premises located at 3945 Villa Casa Court, Brunswick, Ohio, which resulted in the confiscation of hundreds of viles of steroids, money and documents reflecting previous shipping and purchasing orders and pricing of steroids. The agents further discovered documents containing a return address located at 10620 Fortune Avenue in Cleveland, Ohio. Based on this information, the agents conducted surveillance of that residence, confirmed its existence, identified an automobile in the driveway as belonging to Jack Hinkel, and based on this activity, obtained a warrant to search the premises located at 10620 Fortune Avenue, in Cleveland, Ohio, on information and belief that it had been used for shipments of steroids.
Detective Gilchrist testified at the suppression hearing that they went to the Fortune Avenue residence, confirmed its existence, located a vehicle belonging to Hinkel parked in the driveway and sought a warrant to search that premises. Further, Gilchrist testified that after obtaining the search warrant, the agents arrived at Hinkel's home, knocked at a side door several times and announced their presence, and after receiving no response from inside the home, the agents entered through the unlocked side door. They encountered Hinkel and another occupant, Danny Jay, and ordered both to the floor. Following a search of the home, the agents seized Methylenedioxymethamphetamine, anabolic steroids, money and a scale.
Thereafter, a grand jury indicted Hinkle for two counts of possession of drugs and one count of possession of criminal tools. Hinkel filed a motion to suppress the evidence seized from his house, alleging the warrant affidavit failed to establish probable cause for its issuance, but the court denied the motion. On July 30, 1999, Hinkel plead no contest, the court found him guilty, and sentenced him to concurrent terms of two years on count one, three years on count two and nine months on count three.
Hinkel now appeals the denial of his motion to suppress and sets forth three assignments of error for our review. The first two relate to the issuance of the warrant and will be considered together. They state:
I.
THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT'S MOTION TO SUPPRESS EVIDENCE BASED IN PART ON A FINDING THAT THE SEARCH WARRANT AFFIDAVIT CONTAINED FACTS SUFFICIENT TO SUPPORT A PROBABLE CAUSE FINDING.
II.
THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT'S MOTION OT(SIC) SUPPRESS BASED IN PART ON A FINDING THAT THE OFFICERS EXECUTING THE SEARCH WARRANT SATISFIED THE KNOCK AND ANNOUNCE REQUIREMENT MANDATED BY LAW.
Hinkel asserts that the affidavit supporting the warrant failed to justify a finding of probable cause to order a search of his home, and that the agents failed to knock and announce their presence prior to entering his home. The state maintains the affidavit sets forth sufficient facts to establish probable cause for the search and also that the agents properly executed the warrant.
Thus, we are concerned with the sufficiency of the affidavit to obtain the warrant and whether the court erred in denying the motion to suppress.
The scope of our review on a motion to suppress is set forth in State v. Curry (1994), 95 Ohio App.3d 93, where the court stated:
In a motion to suppress, the trial court assumes the role of trier of fact and is in the best position to resolve questions of fact and evaluate witness credibility. A reviewing court is bound to accept those findings of fact if supported by competent, credible evidence. However, without deference to the trial court's conclusion, it must be determined independently whether, as a matter of law, the facts meet the appropriate legal standard. (Citations omitted).
The Ohio Supreme Court has adopted a "totality of the circumstances" standard to evaluate whether probable cause is set forth in an affidavit. In State v. George (1989), 45 Ohio St.3d 325 the court stated in its syllabus:
1. In determining the sufficiency of probable cause in an affidavit submitted 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.
2. In reviewing the sufficiency of probable cause in an affidavit submitted in support of a search warrant issued by a magistrate, neither a trial court nor an appellate court should substitute its judgment for that of the magistrate by conducting a de 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 magistrate 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 magistrate's determination of probable cause, and doubtful or marginal cases in this area should be resolved in favor of upholding the warrant. Illinois v. Gates (1983), 462 U.S. 213.
Further, the court in Franks v. Delaware (1978), 438 U.S. 154 stated that to successfully attack the veracity of a facially sufficient search warrant affidavit, a defendant must show by a preponderance of the evidence that the affiant made a false statement, either intentionally, or with reckless disregard for the truth.
In this case, the record reveals a warrant obtained by Investigator Margreta, authorized agents to search the home of Philip Hernon, located at 3945 Villa Casa Court, Brunswick, Ohio. On March 4, 1998, the agents executed that search warrant of Hernon's home and in the course of their investigation, discovered that Hernon had been utilizing Hinkel's address as a return address for several steroid shipments to the western states area.
The record here also contains relevant portions of an affidavit signed by Detective Gilchrist which averred that Phillip Hernon was utilizing 10620 Fortune Avenue in Cleveland, Ohio, as a return address for several steroid shipments to the western states area. Further, that, [i]nformation of the utilization of the above-listed address was confirmed during the execution of the subject search warrant when documents were discovered and seized confirming Hernon's utilization of the 10620 Fortune Avenue address.
In addition, that affidavit also states:
4. As a result of the investigation and items discovered and seized during the search warrant affiant conducted surveillance on the above-referenced premises on March 4, 1998.
5. Affiant confirmed the residence's existence and that it was a single family dwelling.
6. A vehicle, 1988 Mercury Cougar, 2-door, brown in color, bearing Ohio registration ALR 5871, was parked in the driveway of the residence on Fortune. Investigation revealed the vehicle is registered on Jack Hinkle.
7. * * * Philip Hernon is knowingly and intentionally distributing or possessing with the intent to distribute or possess with the intent to distribute controlled substances, i.e., anabolic steroids * * *.
As an appellate court, we give deference to the trial court's determination of probable cause; based on the information gained through the search of the Brunswick home, we have concluded a fair probability existed that contraband would have been found in Hinkel's home, based in part on the success achieved in the Brunswick search; and Hinkel has failed to show by a preponderance of the evidence that a false statement had been made in obtaining the warrant. Based on all these factors, we conclude that the trial court had a substantial basis for its determination that probable cause existed for issuance of the warrant. Therefore, in this instance, the court properly denied Hinkel's motion to suppress.
Regarding Hinkel's claim that the agents did not knock and announce their presence before entering his home, we note that the court in State v. Baker (1993), 87 Ohio App.3d 186, stated that the knock and announce rule only applies if the police break down a door to enter.
In this case, Detective Gilchrist testified at the suppression hearing that before entering the Fortune Avenue premises, either Agent Leppla or Agent Westfall knocked and stated Police officer, search warrant, that the agents waited approximately one and one-half minutes before entering the residence and that they did not have to break the door down, but rather, they entered through an unlocked side door.
Hinkel, on the other hand, testified that he heard two loud bangs and saw the door fly open, observed an agent kick Danny Jay in the head and ordered the two to lay on the floor. He further testified that the agents did not announce their presence prior to entering his home.
The trial court is in the best position to resolve questions of fact and to evaluate witness credibility. See Curry, supra. Here, the court believed Detective Gilchrist's testimony and determined that the agents did knock and announce their presence before entering Hinkel's home. Based on the evidence presented we have concluded the trial court determination is supported by credible evidence. Accordingly, these assignments of error are not well taken.
III.
THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT'S MOTION TO SUPPRESS BASED IN PART ON A FINDING THAT THE EXECUTING OFFICERS ACTED IN A GOOD FAITH RELIANCE ON THE INFORMATION ON THE SEARCH WARRANT.
Based on our resolution of the first assignment of error, this assignment is moot and we need not consider it. See App.R. 12(A)(1)(c). Accordingly, the judgment of the court is affirmed.
It is ordered that appellee recover of appellant its costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
________________________________________ TERRENCE O'DONNELL, PRESIDING JUDGE
KENNETH A. ROCCO, J., CONCURS; and ANNE L. KILBANE, J., DISSENTS (WITH DISSENTING OPINION).
On this appeal from an order of Judge Nancy Margaret Russo, I respectfully dissent. The majority opinion upholding the search warrant issued by Judge Nancy McDonnell and denying the motion to suppress does not meaningfully address Hinkel's argument that the statements in the affidavit were insufficient to show probable cause. The majority, in the name of deference, simply states the conclusion that probable cause to search Hinkel's Cleveland home was properly based on the information gained through the search of Hernon's Brunswick home, thereby avoiding its duty to analyze the information that was actually gained through that search to determine whether it satisfies the threshold of probable cause. This case cannot be decided without first addressing this question.
On March 4, 1998, officers of the federal Drug Enforcement Administration's Drug Task Force initially searched the premises at 3495 Villa Casa Court in Brunswick, Ohio, in Medina County. According to the affidavit in support of the warrant to search that premises, there had been a fourteen-month investigation of Philip M. Hernon, which included six controlled drug purchases, each of which was facilitated by the initial delivery of money to the Villa Casa address, after which drugs were delivered to drug enforcement agents in Phoenix, Arizona. The affidavit made no reference to Hinkel or to a 10620 Fortune Avenue address. The affidavit's only reference to other individuals was the following:
j. Two separate mail covers on Philip Hernon's address of 3495 Villa Casa Court, Brunswick, Ohio, have revealed numerous pieces of mail bearing return address information of known anabolic steroid users and traffickers.
k. Pen register information and telephone toll record information pertaining to Philip Hernon's home phone number * * * at 3495 Villa Casa Court, Brunswick, Ohio, has identified known steroid users and traffickers telephoning Philip Hernon as well as being telephoned by Philip Hernon.
After the search of the Villa Casa address, the officers sought a warrant to search 10620 Fortune Avenue on the same day. The Fortune Avenue affidavit stated the following in relevant part:
1. On March 4, 1998 affiant and other law enforcement personnel executed a search warrant duly issued upon probable cause, on the premises of 3945 [sic] Villa Casa Court, Brunswick, Medina County. A copy of the warrant is attached hereto as Exhibit B and incorporated herein as if fully rewritten.
2. In the course of their investigation and prior to the execution of the search warrant, affiant and other law enforcement personnel, learned that the suspect, Philip M. Hernon (Hernon), was utilizing the above-referenced address as a return address for several steroid shipments to the western states area. Information of the utilization of the above-listed address was confirmed during the execution of the subject search warrant when documents were discovered and seized confirming Hernon's utilization of the 10620 Fortune Avenue address. As a result of the search of the premises of 3945 [sic] Villa Casa Court, Brunswick, some of the items confiscated included hundreds of viles [sic] of steroids, approximately $10,000 in cash and documents reflecting previous shipping, purchasing and pricing of steriods [sic] and documents reflecting international steriod [sic] vendors and lists of names of [sic] believed to be customers of the suspect.
3. Notably, it did not appear that the suspect, Hernon, kept any living necessities at the 3495 Villa Casa address.
4. As a result of the investigation and items discovered and seized during the search warrant, affiant and Special Agent William Leppla, also of the Drug Enforcement Administration, conducted surveillance on the above-referenced premises on March 4, 1998.
5. Affiant confirmed the residence's existence and that it was a single family dwelling.
6. A vehicle, 1988 Mercury Cougar, 2-door, brown in color, bearing Ohio registration ALR 5871, was parked in the driveway of the residence on Fortune. Investigation revealed the vehicle is registered to one Jack Hinkle. [sic].
The suppression hearing itself brought forth no further evidence to support the probable cause determination, as the State agreed that the affidavits set forth all the available information. The first allegation is that the officers learned, in investigation prior to the Villa Casa search, that the above-referenced address was being used as a return address for steroid shipments but no facts are stated to support this conclusory statement. The next allegation is that the search of the Villa Casa address uncovered unspecified information confirming Hernon's equally unspecified utilization of the above-listed address but, again, no facts are cited to support this statement, rendering the confirmation as conclusory as the first allegation. Such unsupported conclusory statements do not support probable cause under any standard. Illinois v. Gates (1983), 462 U.S. 213, 239, 103 S.Ct. 2317, 2333, 76 L.Ed.2d 527, 549 (citing Aguilar v. Texas (1964), 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723. The affidavit contains no facts concerning the knowledge gained prior to the Villa Casa search, and no facts explaining what evidence was discovered at the Villa Casa address. The judge asked to issue the warrant was simply asked to accept the conclusions drawn by the officers without seeking any evidence in support. One cannot issue a valid warrant under such circumstances.
Even if one accepts these conclusory statements at face value, the most that can be inferred is that the Fortune Avenue address was utilized as a return address on some of Hernon's steroid shipments, although even this much is unclear. The Fortune Avenue affidavit mentions only the above-referenced address in this regard, a reference that can mean either the Fortune Avenue address, above-referenced as the address sought to be searched, or the Villa Casa address, above-referenced in the immediately previous paragraph of the affidavit.
Regardless of this confusion, the important fact is that the utilization of the Fortune Avenue address is neither clarified nor verified in the affidavit, and the bare utilization alleged is insufficient to find probable cause. Even assuming that Hernon had utilized the Fortune Avenue address as a return address, no reasonable police officer, magistrate, or judge could believe that this information alone led to a fair probability that drugs would be found at that address. Hernon just as easily could have utilized 2374 Tudor Drive, Cleveland Heights, Ohio, as the return address for his drug shipments; no one would seriously argue that such utilization would then give authorities probable cause to search that residence.
The residence of Steven H. Steinglass, Dean of the Cleveland Marshall College of Law.
The only information even arguably alleged is that Hernon utilized the address as a return address on correspondence; there was no allegation that he utilized the property itself, that he lived there, had ever been to the address, or had any other connection whatsoever with the Fortune Avenue property. Indeed, Hernon could be using a phony return address to avoid detection of his operation. Without stating additional information, the mere fact of a return address does not provide a reasonable basis for believing that drugs would be found there.
The obvious deficiency of the affidavit defeats the majority's call for deference to the findings of the issuing judge. Although we review a search warrant only to determine whether a judge had a substantial basis for determining that probable cause existed, this less demanding standard does not countenance our complete abandonment of review. Gates, supra; see, also, State v. George (1989), 45 Ohio St.3d 325, 333-34, 544 N.E.2d 640, 648-49 (Wright, J., concurring). There must be some threshold below which we will not allow a warrant to issue, or we should leave all warrant determinations to the exclusive discretion of the issuing judge.
This is not a close case. Hernon could have written any return address on his drug shipments and the agents could have written the same affidavit. If this is now the standard for finding probable cause, Hernon's use of a telephone book would have implicated an entire city in his criminal scheme.
Because I believe the issuing judge did not have a substantial basis to believe probable cause existed, I must also address whether the law enforcement agents involved had an objective, good faith basis to rely on the validity of the warrant so that the exclusionary rule is inapplicable despite the Fourth Amendment violation. United States v. Leon (1984), 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677; George, 45 Ohio St.3d at 330, 544 N.E.2d at 645-46. Although I find it relatively easy to deny the good faith rationale in this case, I think it important to assess the scope of the good faith exception.
Warrants are to issue upon probable cause, and a search pursuant to a warrant based on probable cause is reasonable. The existence of probable cause is not subject to specific definition; we know only that it is something less than the preponderance of evidence standard, and that it exists when there is a fair probability that properly sought evidence will be found in a particular place. Id. at 329, 544 N.E.2d at 644. When assessing facts and circumstances to determine whether probable cause existed, courts are to use common-sense standards to determine the issue based on the totality of circumstances. Id. Due weight is to be given to the law enforcement officer's experience and expertise in detecting crime and recognizing its signs. Texas v. Brown (1983), 460 U.S. 730, 103 S.Ct. 1535, 75 L.Ed.2d 502.
Review of probable cause becomes even less stringent when a judge issues a search warrant. In order to encourage officers to seek warrants, a deferential standard of review has been adopted, and a warrant's issuance will be upheld if the affidavit provided a substantial basis for the judge's conclusion that there was a fair probability that evidence of crime would be found. George, 45 Ohio St.3d at 330, 544 N.E.2d at 645. (Emphasis sic.) Evidence will not be excluded if the officers executing the search warrant believed in good faith that a substantial basis supported a fair probability that evidence of crime would be found. This is the It's possible that I thought that maybe it could have been strand of common-sense Fourth Amendment jurisprudence.
The Leon good faith test must be viewed in light of the standards already employed in reviewing warrants. If one imagines a continuum between zero probability and fair probability (already a narrow band), it is apparent that there can be little room between the zones demarking substantial basis and objective good faith. Law enforcement officials would seldom have an objective good faith belief in the validity of a warrant that cannot pass the substantial basis test. Just as we consider officers' experience and expertise in making probable cause determinations, we consider the same knowledge when assessing good faith. Leon, 468 U.S. at 919 n. 20, 104 S.Ct. at 3419 n. 20, 82 L.Ed.2d at 696 n. 20. A reasonably knowledgeable law enforcement officer should have both general and particularized knowledge as to the information necessary to support a warrant. Despite the Leon Court's assertion that an officer's reliance on a warrant would most often be reasonable, Id. at 922, 104 S.Ct. at 3420, 82 L.Ed.2d at 698, I submit that in most situations, one cannot reasonably believe probable cause exists when there is not even a substantial basis to so believe. Without even a substantial basis, the affidavit is by definition so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable. Id. at 923, 104 S.Ct. at 3421, 82 L.Ed.2d at 699. (Citation omitted.)
This case presents no exceptional facts suggesting that it is the rare case in which good faith can be found. An officer presenting such an affidavit to a judge should be able to recognize the need to support the allegations with the facts upon which they are based. A reasonable officer must be aware that an independent judge cannot accept conclusory statements, but must examine the underlying facts. An affidavit such as this, which omits any supporting facts, cannot be the basis of a Leon good-faith claim.
Moreover, officers exercising common sense should have understood that Hernon's use of a return address did not, standing alone, allow the inference that he was in fact using the property and that there was a likelihood that he would use a phony return address on drug shipments, which would mandate that they engage in more investigation about the Fortune Avenue property. Although it is possible that the agents had already done additional investigation of the Fortune Avenue address than is disclosed in the affidavit, we can only assess the allegations contained therein and those allegations are insufficient to infer a fair probability that Hernon was using the Fortune Avenue property to store drugs. Both the officers and the issuing judge should have known it was legally insufficient.
In assessing the officers' good faith and the judge's basis for determining that probable cause existed, it is important to recall the independent requirement that the judge be neutral and detached. An officer cannot reasonably rely on a warrant issued by someone who has abandoned his judicial role and thus is not neutral and detached. Leon, supra. As there would rarely be direct evidence that a judge was not neutral, and even more rarely would an accused have access to such evidence, our review of the issue necessarily would require examination into the basis of the issuing judge's decision.
Neutrality could be called into question whenever a warrant issued without substantial basis, and a lack of neutrality could be inferred when, as here, the allegations of the affidavit are so unclear and insufficient that one can question whether the judge read the affidavit and considered its allegations at any critical level. A good faith justification fails not only because of the obvious lack of any basis for finding probable cause, but because the warrant's issuance in spite of the affidavit's deficiency implicates the lack of independent review.
I would sustain assignments of error one and three and reverse the judgment on that basis. Although I do not disagree with the majority's resolution of the second assignment of error, I would find that assignment moot.