State v. Furry

Decision Date05 August 1971
Parties, 60 O.O.2d 196 The STATE of Ohio Appellee, v. FURRY, Appellant. The STATE of Ohio, Appellee, v. COHN, Appellant.
CourtOhio Court of Appeals

1. Where police officers, in executing a warrant for the search of an occupied house for the purpose of seizing narcotics, announce their identity but not their intention to search, make an immediate entry without knocking, by opening an unlocked, front screen door, and confiscate materials inside, such conduct constitutes an unreasonable search and seizure in violation of the 4th and 14th Amendments to the United States Constitution, and evidence resulting from such acts should be suppressed at the trial of the occupants for narcotics violations prohibited by R.C. Chapter 3719. (Sabbath v. United States, 391 U.S. 585, 88 S.Ct. 1755, 20 L.Ed.2d 828, followed.)

2. Where an affidavit for the issuance of a search warrant contains a sketch, drawn by an informant, of a floor of a house to be searched, showing the location of illicit narcotics and states that the informant on previous occasions gave truthful, accurate, and reliable information and that narcotics could be found in the second drawer of an accused's dresser in a specific bedroom of the house as described in the sketch and the affidavit is accompanied by a statement that the continued surveillance of the house by police confirmed this information, such affidavit contains sufficient facts to warrant a determination that probable cause exists for the issuance. (Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723; Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637; United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723, followed.)

3. A part-time municipal judge who also serves as a prosecuting attorney for a municipal court with a distinct and separate territorial jurisdiction from that encompassing his judicial duties may be a neutral and detached magistrate and is not precluded by law from issuing a search warrant.

Daniel T. Spitler, Pros. Atty., for appellee.

Jack Gallon, Toledo, and M. Shad Hanna, Bowling Green, for appellants.

BROWN, Judge.

This is an appeal on questions of law by defendant Eric Furry, appellant herein, from a conviction by a jury on four counts in an indictment charging narcotics violations contrary to R.C. §§ 3719.42, 3719.43, 3719.47 and 3719.101, which allegedly occurred curred June 1, 1970. A similar appeal was lodged by defendant Charles Cohn, the other appellant herein, from a conviction by a jury on three counts in an indictment charging violation of R.C. §§ 3719.09, 3719.47 and 3719.101 and growing out of the same narcotics raid on June 1, 1970, at 519 Thurstin Avenue, Bowling Green, Ohio.

Both defendants challenge in four assigned errors the validity of their convictions by assigning as the reason that the search warrant was unlawfully executed and the search unlawfully made because the officers did not knock and announce their identity and purpose before opening the unlocked screen door and entering the house; that the warrant issued for the search of the house occupied by defendants was not based upon probable cause; that such warrant was issued by a magistrate who had no power to issue it because he was not a detached (impartial) magistrate; and that the narcotics statutes under which defendants were prosecuted are arbitrary and unconstitutional.

The first claimed error by defendants is that the search warrant was unlawfully executed by the police officers in that they failed to knock and announce their identity and purpose before entering and searching the house occupied by defendants. The salient facts developed at the hearing on the motion to suppress the evidence seized were as follows. 1 Three officers approached the front door and two officers went to the rear of the house to prevent escape. The three officers approaching the front door, as they neared the front porch, saw occupants seated in the front living room. The occupants, upon seeing the officers, stood up and the officers saw them move. Thereupon, the three officers hurried their approach to the front door shouting 'Police, stay where you are!' Without any further announcement, they immediately opened the unlocked front screen door and entered the house. The search warrant and Miranda rights were read to defendants at once and the house was searched. Narcotics and related items were found and seized. The trial court denied the motion to suppress.

The facts are uncontradicted that the police announced their identity (authority) as police officers, but failed to announce their purpose-namely, to search the house occupied by defendants for narcotics and narcotics law violations-and thereupon opened an unlocked screen door and entered the house of defendants. In Sabbath v. United States (1968), 391 U.S. 585, 88 S.Ct. 1755, 20 L.Ed.2d 828, where officers arrested a defendant without a warrant and searched his house after they knocked on his door, received no response and made an immediate entry thereupon through the unlocked door, it was held that the validity of a warrantless arrest must be tested by criteria identical to those embodied in 18 U.S.Code, Section 3109, which deals with an entry to execute a search warrant. 2 Title 18, Section 3109, U.S.Code, is basically the same as R.C. § 2935.12, Forcible Entry to Make Arrest, which governs the conduct of the police officers in the present cases.

This federal statute and its Ohio statutory counterpart have codified a common law rule of announcement, and this rule proscribes an unannounced intrusion into a dwelling, whether the officers break down a door, force open a chain lock on a partially opened door, open a locked door by use of a pass key, or, as here, open a closed but unlocked door. Sabbath v. United States (1968), 391 U.S. 585, at p. 590, 88 S.Ct. 1755, 20 L.Ed.2d 828; United States ex rel. Ametrane v. Gable, (C.C.A. 3, 1968), 401 F.2d 765; Blakey, The Rule of Announcement and Unlawful Entry: Miller v. United States and Ker v. Calif., 112 Pa.L.Rev. 499 (1964); cf. Miller v. United States (1958), 357 U.S. 301 at 308, 309, footnote 8, which lists R.C. § 2935.15, now R.C. § 2935.12.

States other than Ohio have similarly applied the rule prohibiting unannounced intrusion into a dwelling as enunciated in Sabbath, supra, and have rested this rule upon the Fourth Amendment prohibition against unreasonable searches and seizures. Commonwealth v. McCloskey (1970), 217 Pa.Super. 432, 272 A.2d 271; Commonwealth v. Newman (1968), 429 Pa. 441, 240 A.2d 795; State v. Monteith (Or.App. 1970), 477 P.2d 224; cf., Ker v. California

(1963), 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726; Mapp v. Ohio (1961), 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081; and State v. Vuin (Ohio Com.Pl.1962), 185 N.E.2d 506. 3

One United States District Court has held that the principle of law that one has the right to know the identity and purpose of a person advancing upon one's doorstep derives not from statute, but from the Fourth and Fourteenth Amendments. United States v. Blank (E.D.Ohio, 1966), 251 F.Supp. 166. Cf., People v. Gastelo (1967), 67 Cal.2d 586, 63 Cal.Rptr. 10, 432 P.2d 706.

The state contends that compliance with R.C. § 2935.12 which requires an announcement of purpose and identity, is excused where the officers are in peril of bodily harm (Read v. Case (1822),4 Conn. 166, 10 Am.Dec. 110), or where the persons to be arrested or their house searched are fleeing or attempting to destroy evidence (People v. Maddox (1956), 46 Cal.2d 301, 294 P.2d 6). This is a correct statement of the law. The state argues that one or more of the foregoing exigent circumstances excusing compliance with the statute requiring announcement of purpose and identity exists in this case. We disagree. The conduct of the defendants in this case does not warrant the conclusion that the officers held a reasonable belief they were in danger of bodily harm or that the defendants were trying to escape or destroy evidence. Ker v. California (1963), 374 U.S. 23, at 57, 83 S.Ct. 1623, 10 L.Ed.2d 726; Wong Sun v. United States,371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441; Miller v. United States (1958),357 U.S. 301, 78 S.Ct. 1190, 2 L.Ed.2d 1332; Sabbath v. United States (1968), 391 U.S. 585 at 591, headnote 8, 88 S.Ct. 1755, 20 L.Ed.2d 828.

We conclude, therefore, that the conviction of both defendants should be reversed because of an invalid execution of the search warrant by the police officers who failed to announce their purpose before entering the house of defendants through an unlocked but closed screen door.

The next claimed error is that the affidavit for the search warrant 4 in this case was triply defective because it failed to meet the tests established by the United States Supreme Court in Spinelli v. United States (1969), 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637, and Aguilar v. Texas (1964), 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723, in these three particulars.

1. The reliability of the informant was not demonstrated or stated;

2. The underlying circumstances necessary to explain the source of the information of the informant and that the informant's information was credible were not stated;

3. A mere averment of continued police surveillance is no factor in determining probable cause.

The reliability of the informant was stated in the affidavit in Aguilar, supra at 109, 84 S.Ct. at 1511, inter alia, merely as follows:

'Affiants have received reliable information from a credible person and do believe * * *.'

In the cases here the affidavit goes further and states, inter alia:

'Information received from a police informant who has previously given truthful, accurate and reliable information who states that T.H.C. * * *.' (Emphasis ours.)

The affidavit contains a sketch of one floor of the dwelling and some of...

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