State v. Marko
| Decision Date | 21 August 1973 |
| Citation | 303 N.E.2d 94,36 Ohio App.2d 114 |
| Parties | , 65 O.O.2d 134 The STATE of Ohio, Appellee, v. MARKO, Appellant. |
| Court | Ohio Court of Appeals |
Syllabus by the Court
1. The issuance of a search warrant based on the suspected receipt and concealment of property stolen in a burglary 2 months before is valid and the evidence upon which it is based is in no sense stale where the location of such property became known to the authorities on the date of such issuance.
2. A search of premises ordered to be conducted in the night cannot be found to be improperly ordered unless the complaining party demonstrates that the issuing judge abused his discretion in ordering the search in the nighttime rather than in the daytime.
George C. Smith, Prosecuting Atty., and Miles C. Durfey, Columbus, for appellee.
Tyack, Scott & Colley and Paul Scott, Columbus, for appellant.
Edward Marko was indicted for receiving and concealing stolen property in violation of R.C. 2907.30. He was tried to a jury which returned a verdict of guilty, February 1, 1973. A judgment, rendered pursuant to the verdict, was entered February 22, 1973, and this appeal is taken from that judgment.
A single assignment of error is offered in support of the appeal, to wit: the trial court erred in overruling defendant's Motion to suppress evidence obtained by an illegal search and seizure. Defendant, the appellant herein raises two questions to the considered and resolved in the disposition of the appeal, and then answers the questions with positive assertions, the first one of which is that:
'* * * a lapse of two months between the time of the offense and the issuance of a search warrant is too remote in time to establish probable cause that the residence searched contained the objects described in the affidavit.'
Defendant's proposition is bottomed on two dates; the first, March 9, 1972, was the occasion of a burglary, about 1:30 a. m., of the premises of Auld Crafters, Inc., at 801 South Front Street, and the second, May 12, 1972, was the day of the arrest of one Albert Gordon, a participating burglar, who on the day of his arrest informed police officers of the location of the stolen goods. The interval of time between the two dates is approximately two months. Such delay, argues counsel for the defendant, creates a danger that essential probable cause for the issuance of a search warrant is predicated upon 'stale information.'
The affidavit for the search warrant, and the warrant issued in response thereto, are important to this dicussion. The affidavit filed in the Franklin County Municipal Court indicates that Detective R. Wolverton and Sergeant Edward Holzbacher, being duly sworn, did depose and say 'that he has good cause to believe and does believe' that:
'The facts upon which such belief is based are as follows: Information received from one Albert Gordon, Who was the person who committed the above burglary, and stated that he and one Roger Jones and one Harold Orr, Jr., took the property that they stoled (sic) from 801 S. Front st. to 1910 Gantz rd. and gave it to one Ed Marko, who resides at that location.'
Such affidavit indicates that it was sworn to and signed in the presence of G. W. Fais, Judge, Franklin County Municipal Court, Columbus, Ohio, the magistrate.
The essential portion of the warrant to search directed to the Franklin County Sheriff, and signed by the magistrate, reads as follows:
Defendant introduces argument in support of his proposition as to 'stale information' by suggesting that any information offered to procure a search warrant must be from a credible person and not vague and uncertain. Reference is to a dicision in Aguilar v. Texas (1964), 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 which sets out some fundamentals as to the quality of an affidavit for a search warrant. The decision points out that the information need not come from the direct observation of the affiant, in fact, it may be based on hearsay, but the magistrate must be informed of some underlying circumstances relied on by the person providing the information and assured the informant is credible.
Police Officer Wolverton testified that he told sheriff's deputy Holzbacher, who signed the affidavit, that one Albert Gordon told him of the location of the stolen property, Gordon and two others having committed the burglary. The magistrate knew the two police officers and, obviously, regarded them as credible. The questioning of credibility can only apply to Gordon. It could well be that a known burglar would be regarded as totally lacking in credibility. It must be understood in this case, however, that Gordon did not resort to surmise, supposition, or hearsay, but rather, told the police officer who arrested him that he and his two cohorts delivered the stolen goods to one Ed Marko at a certain given address. The statement from one of those who did the stealing, and one who participated in the delivery of the stolen goods, must be regarded at least reasonably credible. Officer Wolverton told the magistrate where he got the information on the stolen goods and the affidavit was signed subsequent to that communication to the magistrate.
Counsel cites a number of federal decisions on the matter of 'stale information,' there being a paucity of Ohio decisions in the area. The federal decision most useful to defendant is that in Rosencranz v. United States (C.C.A. 1, 1966), 356 F.2d 310. Headnote sixteen presents the general rule, as follows:
'The possibility of using ancient information as basis for issuance of search warrant should not be created by permitting affidavit for warrant in present tense without giving time of receiving information on which affiant relies.'
The court held that the affidavit involved was in the present tense and was therefore defective since it did not show the time when the information was received from an anonymous informer. In the course of its dicision, the court mentioned the tendency of the trial courts to determine the validity of the affidavit on a motion to suppress rather than allowing it to remain with the issuing magistrate, saying, at page 317:
It must be noted at this point that the 'informer' in this case was not anonymous.
A review of the decisions upon which defendant relies brings out some fundamentals which must be respected in given situations-many of the fact patterns involved having unique and distinguishing facets. For example, in Sgro v. United States (1932), 287 U.S. 206, 53 S.Ct. 138, 77 L.Ed. 260, there are two federal statutes controlling the issuance of search warrants in cases concerned with the seizure of illegal intoxicating liquor, making such warrants void at the end of ten days from the date of issuance. It was stated, in paragraph three of the syllabus:
'The issue of new warrant is a new proceeding and must be supported by proof that probable cause then exists.' Schoeneman v. United States (1963), 115 U.S.App.D.C. 110, 317 F.2d 173, seems to favor defendant's cause since the application for the warrant was made 107 days after the finding of the documents which constituted the basis for the search. This, in basic fact, counts the days from the offense, which is comparable to the situation in the case here for review, if the burglary was the offense and the search warrant related to it. As to the present fact pattern, the offense is receiving and concealing not known to exist as an offense until the police officers were told by Gordon what disposition was made of the stolen property.
The court in Schoeneman provides two basic rules in headnotes three and four. They read as follows:
'In determining probable cause for issuance of search warrant, time alone is not controlling.
'Probable cause to justify issuance of search warrant must be determined as of the time the warrant is issued.'
In United States v. Guinn (C.C.A. 5, 1972), 454 F.2d 29, there was an unnamed informant who furnished information on gambling equipment in a given trailer, which was to be transported from Oklahoma to Fort Worth and Sealy, Texas. Headnote six provides a rule as follows:
'Affidavit in support of a search warrant must speak as of time of issue of warrant; however, there is no arbitrary time limit on how old information contained in an affidavit may be.'
A 'moonshine' operation from June to September was the subject of a decision in United States v. Johnson (C.C.A. 10, 1972), 461 F.2d 285, which produced this interesting rule in headnote three, as follows:
'Vitality of probable cause in respect to issuance of a search warrant cannot be quantified by simply counting number of...
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