State v. Sizer

• Decision Date: 16 October 1970
• Docket Number: No. 29437,29437
• Citation: 265 N.E.2d 468,25 Ohio Misc. 245
• Parties: , 54 O.O.2d 406 STATE of Ohio, Plaintiff, v. William Lawrence SIZER, Defendant.
• Court: Ohio Court of Common Pleas

Page 245

25 Ohio Misc. 245

265 N.E.2d 468, 54 O.O.2d 406

STATE of Ohio, Plaintiff, v. William Lawrence SIZER, Defendant.

No. 29437.

Court of Common Pleas of Ohio, Montgomery County.

Oct. 16, 1970.

[265 N.E.2d 469] Lee C. Falke, Montgomery County Prosecutor, for plaintiff.

Leo A. Krebs, Dayton, for defendant.

AMENDED DECISION AND ORDER

RODNEY M. LOVE, Judge.

This matter came on to be heard upon the defendant's joint motion to quash the arrest warrant and to suppress evidence seized from the person of the defendant on or about June 6, 1969, the stipulation of facts, the evidence upon a hearing and rehearing, the memoranda of counsel, and a motion for a division of the Court's Decision and Order of September 21, 1970.

The Court granted the State's motion for a division of the Court's Decision and Order of September 21, 1970, in a previous order of the Court. ¹ The Decision and Order herein will be entered as an Amended Decision and Order and will take the place of its Decision and Order entered jointly on September 21, 1970. ²

As to the motion to quash the arrest warrant, as in Case No. 29436, the file discloses that the defendant, on arraignment, entered his appearance by waiving the reading of the indictment and entering a plea of 'not guilty'. Likewise, all defects were waived and a motion to quash, therefore, does not lie. Section 2941.59, Revised Code of Ohio; Dowell v. Maxwell, 174 Ohio St. 289, 189 N.E.2d 95, 22 Ohio Opin.2d 343. Said motion to quash is overruled.

Now, with respect to the motion to suppress the evidence seized from the person of the defendant at the time of his arrest, on or about June 6, 1969, the defendant asserts five grounds in support of his motion directed only to Case No. 29437:

(1) That, in contradiction of the recitation of the arrest warrant, no complaint was filed by the Prosecuting Attorney;

(2) That, the warrant to arrest was not directed to a specific officer or department;

(3) That, the warrant was not issued upon a finding of probable cause;

(4) That, the warrant was not issued by a judicial officer; and

(5) That, the affiant executing the affidavit in support of the warrant did not have reasonable grounds to believe that the defendant had committed a crime.

The State contends that the warrant was validly issued under the statutes of Ohio and that, even if it were invalid, the arresting officer, nevertheless, had probable cause to make the arrest without a warrant; therefore, the arrest and incident search resulting therefrom, were lawful.

(1) Defendant's first ground has no merit. Regardless of any recitation in the warrant itself, the filing of an affidavit by either a police officer or a private citizen will support its issuance. Section 2935.09, Revised Code of Ohio.

2. As for defendant's second ground, it is true that Section 2935.18, Revised code of Ohio, requires that a warrant be directed to a specific officer or department and that the warrant in this case was not so directed but, rather, was directed to 'The Chief of Police, Bailiff, or any other Law Enforcement Officers' of Montgomery County. However, the failure of the warrant to comply with the technical requirements of the statute did not prejudice the defendant in any way. Therefore, defendant's second ground is also without merit.

(3) As for the defendant's third ground, the Fourth Amendment of the United States Constitution clearly states that:

'* * * no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.'

It is the contention of the State that this Amendment applies only to warrants for search and not for arrest. That this contention is incorrect is made clear by the decision of the United States Supreme Court in Giordenello v. United States (1958), 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503. There can be no determination of probable cause unless the person issuing the warrant has been informed of some of the underlying circumstances relied upon by the affiant. Aguilar v. Texas (1964) 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723. The affidavit supporting the warrant in the case at bar alleges only the statutory description of the offense charged. Furthermore, the issuing clerk's own testimony indicated that no further information was communicated to her by the swearing officer. In fact, the clerk testified that she made no determination of probable cause before issuing a warrant but that this was up to the Judge. Thus, the warrant in this case was not issued upon a finding of probable cause in the manner prescribed by the United States Supreme Court in the Aguilar case, and the defendant's third ground is, therefore, well taken.

It is true that the Giordenello decision was based on the Federal Rules of Criminal Procedure and that the Aguilar decision related to search warrants; however, that the rules of both of these cases apply to arrest warrants issued under state criminal procedure statutes is made clear by the United States Supreme Court's decision in Barnes v. Texas (1965), 380 U.S. 253, 85 S.Ct. 942, 13 L.Ed.2d 818. In the Barnes case, the Court reversed a decision of the Texas Court of Criminal Appeals, which had upheld a warrant issued upon an affidavit which, like the one in the case at bar, merely recited the offense with which the defendant was being charged. The United States Supreme Court, in its per curiam decision, gave no reasoning but cited as authority both the Giordenello and Aguilar decisions. The facts of the Barnes case need not be included here but may be found in Barnes v. State (1964) Tex.Cr.App., 390 S.W.2d 266.

(4) In view of the joint nature of defendant's motions, the Court felt impelled to rule on this item in view of the wording of Section 2935.10, Revised Code of Ohio, as amended January 10, 1961, because the warrant to arrest the defendant was issued by a deputy clerk of the Vandalia Municipal Court. Since the matter of probable cause was brought in issue attacking the constitutional validity of the arrest warrant, the Court believed that said Section which authorizes a clerk in a felony case to exercise judicial authority was, to that extent, unconstitutional. The Court still believes that such arrests in felony cases are in violation of the Fourth Amendment of the Constitution of the United States; however, since the Decision and order of September 21, 1970, the Court was made aware of the case of City of Euclid v. Heaton, 15 Ohio St.2d 65, 238 N.E.2d 790; 44 Ohio Opin.2d 50, which declared Sections 2945.67 to 2945.70, inclusive, of the Revised Code of Ohio, unconstitutional. Syllabus 4 reads as follows:

'4. Sections 2945.67 to 2945.70, inclusive, Revised Code, are unconstitutional insofar as they permit the prosecutor in a criminal case to institute proceedings to review a judgment of the trial court, except where the judgment of such court decides 'a motion to quash, a plea in abatement, a demurrer, or a motion in arrest of judgment,' or the equivalent thereof.'

Thus, the Court's Decision as to the unconstitutionality of Section 2935.10, Revised Code of Ohio, would only have local application and would not be uniformly administered throughout the State of Ohio. This is not in the best interests of law enforcement and criminal justice throughout Ohio, although the Court intends, by this Amended Decision which relegates Item 4 to dicta, to warn law enforcement agencies of the constitutional problem which may be involved in the arrest stage of a criminal proceeding. It should be pointed out, however, that a judge, clerk or magistrate should not issue an arrest warrant under Ohio law in a felony case unless he has reason to believe that the affidavit was filed in good faith or that the claim is meritorious. Also, in spite of the Ohio law, the overall constitutional mandate is that such arrest warrants may only be valid if issued after a finding of probable cause. To this extent, the Court is adamant in its holding as pointed out under Item (3) above.

It is a good principle of constitutional law that where a court can dispose of a case without declaring a statute unconstitutional, it should do so and refrain from treating the constitutional issue. Greenhills Home Owners Corp. v. Village of Greenhills (1966) 5 Ohio St.2d 207, 215 N.E.2d 403; 34 Ohio Opin.2d 420, Syll. 1; Interstate Motor Freight System v. Bowers (1955), 164 Ohio St. 122, 128 N.E.2d 97, 57 Ohio Opin. 123, Syll. 2; and State ex rel. Clarke v. Cook (1921) 103 Ohio St. 465, Syll. 1, 134 N.E.2d 655.

(5) Thus, since as already indicated, the warrant in this case was issued without a finding of probable cause, it was invalid and no arrest based upon it is lawful by virtue...