State v. Edward J. Boll

• Decision Date: 16 December 1981
• Docket Number: 81-LW-3367,C-810078
• Parties: STATE OF OHIO, Plaintiff-Appellee, v. EDWARD J. BOLL, JR., Defendant-Appellant.
• Court: Ohio Court of Appeals

STATE OF OHIO, Plaintiff-Appellee, v. EDWARD J. BOLL, JR., Defendant-Appellant.

No. C-810078.

81-LW-3367 (1st)

Court of Appeals of Ohio, First District Hamilton

December 16, 1981

APPEAL FROM THE COURT OF COMMON PLEAS HAMILTON COUNTY, OHIO.

Messrs Simon L. Leis, Jr., William E. Breyer and Thomas Sperber, 420 Hamilton County Court House, Court and Main Streets Cincinnati, Ohio 45202, for Plaintiff-Appellee.

Mr Davis N. Parker, 1212 Tri-State Building, 432 Walnut Street, Cincinnati, Ohio 45202, for Defendant-Appellant.

OPINION.

PALMER, P.J.

This matter concerns, in the first instance, the uncommon circumstance of an affidavit in support of a search warrant which contains two separate levels of hearsay from informants and presents the question, among others, of whether the standards set forth in Aguilar v. Texas (1964), 378 U.S. 108, 84 S. Ct. 1509, and Spinelli v. United States (1969), 393 U.S. 410, 89 S. Ct. 585, are to be applied to both levels of hearsay. Additionally, this cause requires us to answer the question of whether, under the circumstances, the doctrine of "plain view" may be held to apply so as to validate the warrantless seizure of certain items from defendant's premises. For the reasons contained herein, we answer both questions in the affirmative and uphold the judgment below.

Defendant-appellant, Edward J. Boll, Jr., was arrested and charged with four counts of receiving stolen property, in violation of R.C. 2913.51, and a single count of possession of criminal tools, in violation of R.C. 2923.24. These charges resulted from the execution of a search warrant directed against defendant's premises which uncovered the presence of several stolen vehicles and other contraband, which evidence served as the fundament for the instant charges. Defendant entered a plea of not guilty to the charges and filed a motion to suppress the evidence seized during the search on the grounds that the search of his property and the seizure of the goods violated his rights under the Fourth and Fourteenth Amendments to the United States Constitution. Following the denial of his motion by the trial court, defendant withdrew his plea of not guilty and entered a plea of no contest to the charges, subsequent to which he was found guilty and sentenced as appears of record. From this conviction and sentence, defendant has taken this timely appeal in which he asserts that the trial court erred in overruling his motion to suppress the evidence on the dual grounds that: (i) the affidavit underlying the search warrant fails to establish probable cause; and (ii) the executing officers overstepped their constitutional authority because the property seized during the search was not described in the warrant.

I.

Defendant's first challenge to the conviction concerns the issuance of the search warrant based upon an affidavit which provided in pertinent part that:

William McGaha, Hamilton County Sheriff's Patrol, being first duly cautioned and sworn, deposes and says that within the jurisdiction of Hamilton County Municipal Court at 8709 Bridgetown Rd., he believes and has good cause to believe that at said place is concealed a case 480 back hoe loader const. king, yellow in color, or parts thereof, and that said items are concealed in violation of law, to wit: 2913.51 R.C. Receiving stolen property, value over $150.00.

Such belief is supported by the following facts: Information given to me by Edward Bedel, owner-operator of the Bridgetown Tool Rental. That located at the above address is located the back hoe, or parts thereof. This information was given to him by a subject that saw these items on Tuesday 10-7-80. The informant described the back hoe assembly to Mr. Bedel as follows: The part was yellow and had stickers removed that are the exact size used by the Tool Rental, also the serial numbers have been ground off. He also described the size (480) of which there are only 7 of this size in Cincinnati and Mr. Bedel owns 4 of these. It is known to me that this subject has been convicted of receiving stolen property (autos and trucks) in the past and is now on probation.

Mr. Bedel has personally appeared before the issuing Judge and has sworn to these facts. (Sworn and questioned by me. Rosen, J. 10/10/80.)

On 5/20/79 Mr. Bedel made a theft report to Green Twp. Police reference the case back hoe loader serial #8956809 Eng. 281-7457.

Affiant further says that there is not urgent necessity that the search be conducted in the nighttime. . . .

On the basis of this affidavit, a search warrant was issued and a search subsequently executed that afternoon. It is defendant's contention that the affidavit is insufficient to supply the constitutionally required probable cause and, hence, the search warrant is fatally defective.

Specifically, defendant asserts that while search warrants may be predicated upon affidavits containing hearsay statements, i.e., unsworn statements of out-of-court declarants offered for their substantive truth, Jones v. United States (1960), 362 U.S. 257; Draper v. United States (1959), 358 U.S. 307; State v. Gill (1977), 49 Ohio St. 2d 177, 360 N.E.2d 693, this affidavit contains hearsay based upon hearsay, and is thus wholly insufficient for the purposes of underpinning a search warrant. In the instant case, the affiant, Officer McGaha, obtained his information from a named informant, Mr. Bedel, who in turn obtained his information from an unknown source. Defendant argues that where the informant, Mr. Bedel, must rely for his factual conclusions on the unsworn statements of an unknown source, whose reliability is not attested to, the information contained in the affidavit does not pass muster under the guidelines first set forth in Aguilar v. Texas and explicated in Spinelli v. United States. In essence, defendant argues that the affidavit did not permit a neutral and detached magistrate to make an objective determination of the reliability of the information or the credibility of the source contained therein, unlawfully supplanting this requirement with the judgment of the affiant. The issue thus posed is, in the context of the instant affidavit, both complex and searching. It is further, in principal part, a matter of initial impression in this jurisdiction. Those considerations seem to us to justify an examination of first principles at somewhat greater length than usual.

A.

It is well-established that while search warrants may not be issued except upon a showing of "probable cause" under the Fourth Amendment, a magistrate, in discharging his obligation to conduct an independent assessment of probable cause, may rely upon hearsay information received by an affiant from an informant, ". . . so long as a substantial basis for crediting the hearsay is presented." Jones, supra at 269, 80 S. Ct. at 735. See also United States v. Wasserstrom (6th Cir. 1978), 571 F.2d 351; United States v. Dudek (6th Cir. 1977), 560 F.2d 1288, cert. denied, 434 U.S. 1037, 98 S. Ct. 774; State v. Roberts (1980), 62 Ohio St. 2d 170, 405 N.E.2d 247. While an affidavit does not pass constitutional muster which recites merely an affiant's belief that cause to search exists without setting forth the facts substantiating that belief, e.g., Franks v. Delaware (1978), 438 U.S. 154, 98 S. Ct. 2674; Nathanson v. United States, 290 U.S. 41, 54 S. Ct. 11, the rule validating such beliefs where grounded upon appropriately substantiated hearsay information is consistent with the distinction to be drawn between the quantum of evidence necessary for a criminal conviction and that lesser quantum required to establish "probable cause." Since the standards of proof are different, as well as the tribunals which determine them, there is a difference in the modes of proof to establish them. United States v. Ventresca (1965), 380 U.S. 102, 104-05, 85 S. Ct. 741, 745 (citing Brinegar v. United States (1949), 338 U.S. 160, 69 S. Ct. 1302). In this context, the use of hearsay information in affidavits supporting search warrants offends neither the substantive nor procedural rights of subject individuals, since it represents a legitimate mode of proof in establishing whether to a reasonable person, facts exist to justify a conclusion that certain items to be seized are located on the property to be seized Carroll v. United States (1925) 267 U.S. 132, 162, 45 S. Ct. ?? (probable cause exists where ". . . the facts and circumstances in their [officers'] knowledge and of which they had reasonably trustworthy information [are] . . . sufficient in themselves to a man of reasonable caution in the belief that . . . an offense been or is being commited.").

Nevertheless, since hearsay information, by its very nature is inherently untrustworthy, the Supreme Court has developed specific rules governing the analytic processes of magistrates empowered to issue search warrants. In Aguilar v. Texas, supra 114-15, 84 S. Ct. at 1514, the Court held that while the identity of an unnamed police informant need not be disclosed, a magistrate is nevertheless permitted to find a "substantial basis for crediting the hearsay" contained in the affidavit where, from the face of the affidavit, the magistrate has been informed of: (i) some the underlying factual circumstances upon which the informant's conclusion was based; and, further, (ii) some of the underlying circumstances from which the affiant concluded that the unnamed informant was credible or his information reliable on this occasion Crim. R. 41(C). Where either element is utterly wanting, a magistrate is not justified in issuing the search warrant, since to do so would in effect permit the requisite inference to be drawn not by a neutral and detached judicial officer, but either by a police officer "engaged in the often...