State v. Kinney

• Decision Date: 02 September 1998
• Docket Number: 97-1176,Nos. 97-1175,s. 97-1175
• Citation: 698 N.E.2d 49,83 Ohio St.3d 85
• Parties: The STATE of Ohio, Appellee, v. KINNEY, Appellant.
• Court: Ohio Supreme Court

Page 85

83 Ohio St.3d 85

698 N.E.2d 49

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

Nos. 97-1175, 97-1176.

Supreme Court of Ohio.

Submitted June 9, 1998.

Decided Sept. 2, 1998.

SYLLABUS BY THE COURT

A search warrant authorizing the search of "all persons" on a particular premises does not violate the Fourth Amendment requirement of particularity if the supporting affidavit shows probable cause that every individual on the subject premises will be in possession of, at the time of the search, evidence of the kind sought in the warrant.

On February 22, 1996, Detective Ronald Ehrbar of the Cleveland Police Narcotics Unit obtained a search warrant for an apartment located at 673 East 92nd Street, Upstairs-North, number 3, in Cleveland. In the affidavit supporting his request, Detective Ehrbar informed the issuing court of the following matters giving probable cause for the search. Ehrbar had been a Cleveland police officer for seventeen years and a detective for over three years. Ehrbar had experience and training giving him knowledge of the methods used by those trafficking in narcotics. Ehrbar had received information that the premises in question was being used to sell cocaine. He, therefore, conducted surveillance of the apartment for seventy-two hours and noticed frequent visitors who would park their cars, go upstairs, and stay less than five minutes. This pattern occurred both day and night, and in Ehrbar's experience, indicated narcotics trafficking.

Within the seventy-two hours prior to the issuance of the search warrant, police used a Confidential Reliable Informant ("CRI") to make a controlled purchase of cocaine at the premises under surveillance. The CRI purchased cocaine at the apartment and identified the seller as a man known as "Big Nate," a short, heavy-set black male, approximately forty years old.

In his affidavit, Detective Ehrbar maintained that drugs were frequently carried on the persons of those present at locations where drugs were used, kept, or sold, and that persons who traffic in drugs frequently kept weapons on their person or within their possession. Further, Ehrbar asserted the necessity of conducting a search at night to prevent evidence from being concealed and for the safety of the officers. Based upon this affidavit, the reviewing court issued a warrant authorizing a search of the "premises, its curtilage, common and storage areas and any person present therein."

On February 23, 1996, police executed the February 22, 1996 search warrant, seized contraband, and arrested "Big Nate." Five days later on February 28, 1996, Detective Ehrbar's partner, Detective Thomas B. Parkinson of the Cleveland Police Narcotics Unit, obtained a second search warrant for the same apartment. In his supporting affidavit, Detective Parkinson informed the issuing court of the following matters giving probable cause for the search. Parkinson had twenty-eight years' experience with the Cleveland Police Department, including fifteen years as a detective assigned to the narcotics unit. Parkinson stated that on or about February 23, 1996, a search warrant was executed at the above-described premises. Further, Parkinson averred that cocaine and contraband were seized and one individual ("Big Nate," a.k.a. Nathaniel Braxton) was arrested. In addition, Parkinson stated that within the past twenty-four hours, he was contacted by a CRI who had always proven to be reliable in the past; the CRI told him that within the past forty-eight hours, "Big Nate" had contacted the CRI and indicated that he wanted to sell cocaine. Based upon this affidavit, the reviewing court issued a second search warrant for the same apartment, authorizing a search of the "premises, common areas, curtilage, persons, and containers therein."

Police executed the second warrant later that night. Appellant, Earnest J. Kinney (defendant), was among those present at the time of the execution of the search warrant. Police searched defendant and, after finding fourteen "rocks" of crack cocaine on his person, arrested him. Defendant was indicted on April 25, 1996 for possession of cocaine, with a specification of a prior drug conviction, and for possession of criminal tools.

Defendant moved the trial court to suppress the evidence against him, maintaining that police had conducted a general exploratory search, violating his constitutional rights. On September 10, 1996, the trial court held a hearing on the motion. At the hearing, Detective Ehrbar testified that defendant was searched on the authority of the warrant. The trial court granted the motion to suppress, accepting the analysis of the Sixth Appellate District in State v. Tucker (1994), 98 Ohio App.3d 308, 648 N.E.2d 557. In Tucker, the court held that "a person who just happens to be present in a house that is the subject of a search warrant cannot be made subject to a search solely by the inclusion of [a] 'blanket' phrase in the search warrant, without that person being in any way named or described in the warrant." Id. at 310-311, 648 N.E.2d at 558.

The state appealed from the trial court's judgment, and the Cuyahoga County Court of Appeals reversed. Thereafter, the court, finding its judgment to be in conflict with the judgment of the Sixth Appellate District in State v. Tucker supra, entered an order certifying a conflict. Case No. 97-1176 is now before this court upon our determination that a conflict exists. Case No. 97-1175 is before this court upon the allowance of a motion for a discretionary appeal.

Stephanie Tubbs Jones, Cuyahoga County Prosecuting Attorney, George J. Sadd and L. Christopher Frey, Assistant Prosecuting Attorneys, for appellee.

Wesley A. Dumas, Sr., for appellant.

Darin Thompson, Cleveland, urging reversal for amicus curiae, Ohio Association of Criminal Defense Lawyers.

LUNDBERG STRATTON, Justice.

THE APPELLATE COURT CERTIFIED THE FOLLOWING ISSUE TO THIS COURT: "WHETHER [A] SEARCH WARRANT IS INVALID, AS TO [A] PROVISION AUTHORIZING SEARCH OF 'ALL PERSONS' THAT WERE AT [A] RESIDENCE DURING EXECUTION OF [THE] SEARCH WARRANT, AS IT DID NOT NAME OR PARTICULARLY DESCRIBE ANY PERSON OR PLACE." FOR THE REASONS STATED BELOW, WE FIND THAT THE SEARCH WARRANT WAS VALID.

The Fourth Amendment to the United States Constitution provides, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and 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."

Section 14, Article I of the Ohio Constitution is nearly identical in its language, and its protections are coextensive with its federal counterpart. State v. Robinette (1997), 80 Ohio St.3d 234, 238, 685 N.E.2d 762, 766. The issue certified for review in this case touches upon two separate requirements within the Warrant Clause of the Fourth Amendment: (1) places to be searched and people and things to be seized must be described with particularity in the warrant, and (2) probable cause is needed to support the issuance of the warrant.

Constitutional jurisprudence has long recognized that the Fourth Amendment was drafted, in part, to bar the use of general warrants under federal power. See Stanford v. Texas (1965), 379 U.S. 476, 482-486, 85 S.Ct. 506, 510-512, 13 L.Ed.2d 431, 435-437; Lo-Ji Sales, Inc. v. New York (1979), 442 U.S. 319, 325, 99 S.Ct. 2319, 2323-2324, 60 L.Ed.2d 920, 927-928. The Constitution's framers, from experience with the use of general warrants by colonial authorities and from the long history of their use in England, viewed the devices as inimical to the principles of liberty. See Cloud, Searching through History; Searching for History (1996), 63 U.Chi.L.Rev. 1707, 1724-1728.

One of the chief grievances of the American colonists against England was the use of "writs of assistance" by the King's customs officers. Writs of assistance gave customs officials unbounded authority to seek out violations of the despised colonial tax laws. James Otis's celebrated denunciation of these instruments in 1761 was credited by John Adams himself as sowing one of the first seeds of American independence. See Stanford, 379 U.S. at 481-482, 85 S.Ct. at 509-510, 13 L.Ed.2d at 434-435.

The Fourth Amendment not only reflected the colonists' struggle against these oppressive devices, but also was the product of a centuries-long legal struggle in England against the use of general warrants. The English Common Pleas Court's judgment in Wilkes v. Wood (C.P.1763), 19 How.St.Tr. 1153, Lofft 1, 98 Eng.Rep. 489, provides one often-cited precedent for the Fourth Amendment's ban against general warrants. See Stanford, 379 U.S. at 483, 85 S.Ct. at 510, 13 L.Ed.2d at 436. The warrant at issue in that case authorized the King's officers to search for unknown individuals responsible for publishing a "seditious and treasonable paper, entitled, The North Briton, No. 45," to apprehend them and seize them and their papers. Id. at 483, 85 S.Ct. at 510-511, 13 L.Ed.2d at 436, quoting Lasson, The History and Development of the Fourth Amendment to the United States Constitution (1937) 43. Because the warrant named neither the individuals suspected nor a particular location where they could be found, the warrant, in effect, subjected the whole nation to possible search. The Wilkes court held that the warrant was illegal and awarded damages to Wilkes against the Secretary of State, Lord Hallifax, who had issued the warrant.

The warrant against Wilkes subjected any residence that the King's officers chose to a search. Indeed, it is not clear that abhorrence of the general warrant extended historically to warrants that authorized searches of unnamed people if the particular location was specified. A search confined to a single residence was undoubtedly a vast improvement over the unfettered search of...