State v. George, 88-559

• Citation: 544 N.E.2d 640,45 Ohio St.3d 325
• Decision Date: 27 September 1989
• Docket Number: No. 88-559,88-559
• Parties: The STATE of Ohio, Appellant, v. GEORGE, Appellee.
• Court: United States State Supreme Court of Ohio

Page 325

45 Ohio St.3d 325

544 N.E.2d 640

The STATE of Ohio, Appellant, v. GEORGE, Appellee.

No. 88-559.

Supreme Court of Ohio.

Submitted April 5, 1989.

Decided Sept. 27, 1989.

Syllabus by the Court

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." (Illinois v. Gates [1983], 462 U.S. 213, 238-239, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 followed.)

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, 103 S.Ct. 2317, 76 L.Ed.2d 527 followed.)

3. 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. (United States v. Leon [1984], 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677, followed.)

At an unspecified time on or about July 29, 1986, agent Clayton Buffington of the Hamilton County Regional Enforcement Narcotics Unit observed a marijuana plant, seven to eight feet in height, growing in the rear yard of a residence where the defendant-appellee, Robert George, lived. The yard was enclosed by a fence some seventy-six to eighty inches in height. However, Buffington was able to observe the growing marijuana plant by looking through slats in the fence from an adjoining property. Buffington had expressly requested and received permission from the owner of the adjoining property to enter that property for the purpose of looking through the fence at the defendant's yard. When Buffington observed the marijuana plant, the plant was being watered with a hose or sprinkler. A metal shed was also seen in the rear yard.

On the basis of these observations, Buffington sought a search warrant for the defendant's premises from the Hamilton County Municipal Court. In support of the requested search warrant, agent Buffington submitted the following affidavit:

"Agent Clayton Buffington Regional Enforcement Narcotics Unit being first duly cautioned and sworn, deposes and says that within the jurisdiction of the Hamilton County Municipal Court, at:

"The single family residence at 4456 Matson Ave[.,] Sycamore Township[,] Hamilton County[,] State of Ohio[,], in the rear yard and the buildings in the rear yard[;]

"Affiant believes and has good reason to believe that at said place there is concealed marijuana in a growing state[,] sticks and pots and other paraphernalia used to cultivate marijuana and the finished product of said cultivation to-wit: marijuana prepared for smoking[;]

"And that said items are concealed in violation of law, to wit: 2925.11 O.R.C. Drug Abuse[.]

"Such belief is supported by the following facts:

"The affiant, who has been trained in the recognition of marijuana in a growing state and who has taken enforcement action in the past when he has observed marijuana growing, has within the past 72 hours observed marijuana in a growing state in the rear yard of 4456 Matson Ave., Sycamore Township, Hamilton County, State of Ohio, and said observation was made in broad daylight from the adjoining property while the affiant was on that property as a guest.

"Affiant further says that there is no urgent necessity that the search be conducted in the night time[.]"

Based entirely upon the foregoing affidavit, at approximately 3:50 p.m. on July 29, 1986, a judge of the Hamilton County Municipal Court issued a search warrant authorizing the Hamilton County Sheriff to search the residence, rear yard and buildings located in the rear yard at 4456 Matson Avenue for the marijuana and related items specified in the affidavit. At approximately 4:30 p.m. on the same day, a team of law enforcement officers executed the warrant, searching the yard, buildings and residence. In addition to the marijuana plant recovered from the yard, prepared marijuana and related paraphernalia as well as a small amount of another controlled substance were recovered from the residence. ¹ Agent Buffington did not participate in the execution of the search warrant.

On September 17, 1986, based upon the evidence seized pursuant to the search warrant, the defendant was indicted by the Hamilton County Grand Jury on two counts of trafficking in marijuana (preparing for distribution and cultivating marijuana) in violation of R.C. 2925.03(A)(2) and 2925.03(A)(3), and one count of drug abuse (possession of methaqualone) in violation of R.C. 2925.11, all felonies of the fourth degree.

On December 2, 1986, the defendant filed a motion to suppress, challenging the sufficiency of the probable cause to search any part of the defendant's premises but, in particular, challenging the search of the residence based solely upon agent Buffington's limited observations of the rear yard. A hearing on the motion to suppress was held in the Hamilton County Common Pleas Court on December 11, 1986. At the conclusion of the hearing, the court overruled the motion.

However, on January 14, 1987, the defendant filed a motion before the same judge to reconsider the suppression ruling of December 11, 1986. A hearing was held on the motion to reconsider the same day the motion was filed. This time the trial judge ruled that the affidavit in support of the search warrant contained sufficient probable cause to justify a search of the defendant's yard but did not contain sufficient probable cause to permit a search of the outbuildings and residence. To this extent, the trial court granted the motion to reconsider and suppressed all material recovered from the outbuildings and residence. ² The state filed its appeal and certification under Crim.R. 12(J) with the Court of Appeals for Hamilton County.

The court of appeals, Judge Black dissenting, affirmed the decision of the trial court.

The cause is now before this court upon the allowance of the state's motion for leave to appeal.

Arthur M. Ney, Jr., Pros. Atty., and William E. Breyer, Cincinnati, for appellant.

Merlyn D. Schiverdecker, for appellee.

STEPHEN R. SHAW, Judge, Court of Appeals.

This case arises from the issuance and execution of a search warrant and presents two issues for our review: (1) does the affidavit submitted in support of the search warrant contain sufficient probable cause to support the decision of the magistrate to issue the warrant under the "totality-of-the-circumstances" test of Illinois v. Gates (1983), 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527, and (2) if not, should the evidence obtained by law enforcement officers as the result of their execution of this search warrant be admissible in the prosecution's case-in-chief in any event, under the "good faith exception" to the exclusionary rule set forth in United States v. Leon (1984), 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677?

The majority in the court of appeals determined that because the affidavit submitted in support of the search warrant related only to an item outside the residence, the affidavit contained " * * * no factual basis to support the affiant police officer's conclusion that he had good reason to believe that in the appellee's residence there was [sic ] concealed marijuana in a growing state, sticks, pots and other paraphernalia used to cultivate marijuana, and marijuana prepared for smoking. * * * " (Emphasis sic.) Based upon this determination and their interpretation of Illinois v. Gates and United States v. Leon, supra, the majority in the court of appeals concluded that " * * * the affidavit utterly failed to supply the magistrate with the appropriate indicia of probable cause for the issuance of a warrant to search the interior of the appellee's residence, and that, under the circumstances, no officer could have reasonably relied upon the warrant to conduct a residence search." (Emphasis sic.)

However, in a dissenting opinion, Judge Black expressed his view that under the standard announced in Illinois v. Gates, supra, the affidavit for the search warrant contained sufficient probable cause to search the residence as well as the yard in this case and that even if the affidavit was determined to be insufficient, this case

" * * * falls within the ambit of the 'good-faith' exception to the exclusionary rule under United States v. Leon * * *," supra. For the following reasons, we agree with the analysis of Judge Black and reverse the judgment of the court of appeals.

In Illinois v. Gates, supra, the United States Supreme Court abandoned the "two-pronged test" of Aguilar v. Texas (1964), 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 and Spinelli v. United States (1969), 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 which had long governed the determination and review of the sufficiency of probable cause in an affidavit submitted...