State v. OK Sun Bean

• Decision Date: 25 November 1983
• Citation: 468 N.E.2d 146,13 Ohio App.3d 69,13 OBR 83
• Parties: , 13 O.B.R. 83 The STATE of Ohio, Appellee, v. OK SUN BEAN, Appellant.
• Court: Ohio Court of Appeals

Page 69

13 Ohio App.3d 69

468 N.E.2d 146, 13 O.B.R. 83

The STATE of Ohio, Appellee, v. OK SUN BEAN, Appellant.

Court of Appeals of Ohio, Sixth District, Lucas County.

Nov. 25, 1983.

Syllabus by the Court

1. In reviewing the legal sufficiency of a challenged affidavit for a search warrant, an appellate court's task is to ensure, through a conscientious review of the affidavit, that the issuing magistrate had a substantial basis for concluding that probable cause existed.

2. In assessing the affidavit's legal sufficiency, an appellate court may draw reasonable, common-sense inferences from the allegations contained therein, but such inferences are valid only when they are drawn from facts actually set forth in the affidavit.

3. An appellate court may not "infer" the existence of other facts, beyond the face of the affidavit, which operate as inferential "gap-fillers" to bolster a probable cause determination for which genuine facts are lacking. Facts not included in the affidavit may not be considered in determining whether it establishes probable cause to search. (State v. Daniels, 2 Ohio App.3d 328, 441 N.E.2d 1133, overruled in part.)

Anthony Pizza, Pros. Atty., and James D. Turner, Toledo, for appellee.

Sheldon S. Wittenberg, Toledo, for appellant.

HANDWORK, Judge.

This case is before the court on appeal from a judgment of the Lucas County Court of Common Pleas.

On February 17, 1983, defendant-appellant, OK Sun Bean, filed a motion to suppress certain evidence seized during a search of her establishment pursuant to a search warrant. On March 7, 1983, after a suppression hearing, the trial court denied appellant's motion. On April 21, 1983, appellant entered a plea of "no contest" to the charge of "procuring," a violation of R.C. 2907.23, to which the trial court then entered a finding of guilty. ¹ Appellant was thereafter sentenced to a term of imprisonment on May 25, 1983. In bringing this appeal from the trial court's denial of her motion to suppress, appellant presents two assignments of error for our review:

"I. The facts in the affidavit fail to provide sufficient information that would allow a detached magistrate to find probable cause to issue a search warrant.

"A. The underlying circumstances given by the affidavit are conclusionary and insufficient to support a finding of probable cause by a detached magistrate.

"B. The information upon which the affiant relied in drafting his affidavit was legally insufficient to support a finding of probable cause.

"C. The affidavit fails to provide sufficient information that would allow a detached magistrate to find probable cause that a crime had been committed.

"II. The affiant, knowingly or with reckless disregard for the truth, made false statements in the warrant affidavit."

On December 14, 1982, Detective Patrick Gladieux obtained a search warrant for the premises of the Fugi Health Club, located at 5142 Ryan Road in Toledo Ohio. The search occurred two days later on December 16. The affidavit for the search warrant alleged that:

"There is now being concealed [at the Fugi Health Club] certain property, namely:

"Prostitution paraphernalia, to-wit:

"Journals, ledgers, records and documents and monies which are evidence relating to prostitution activity, and devices, aids and/or items used in sexual activity * * * in violation of * * * Section 2907.22(A)-(I) of the Ohio Revised Code[.]"

The affidavit further alleged:

"The facts tending to establish * * * grounds for issuance of a search warrant are as follows:

"This affiant officer has worked in the area of prostitution and assorted offenses as defined in the ORC pursuant to Section 2907.00 [sic ] and in the course of this affiant's experiences, records to include ledgers [sic ], customers identities [sic ], appointment books and other standard forms used to support prostitution activity as well as instrumentalities used in acts of prostitution are consistant [sic ] in this type of illegal enterprise.

"This affiant has been involed [sic ] in the arrest and conviction of over 200 prostitutes in the past five years and has worked in the undercover capacity on brothel investigations on over ten occasions.

"On 11/25/82, prostitution warrants were issued by Officer Lonnie Wade for activities that occurred at the Fugi Health Club, 5142 Ryan Rd., Toledo, Lucas County, Ohio.

"On 11/29/82, a prostitution warrant was issued by Det. Carl Schliesser for activities which occurred at the Fugi Health Club, 5142 Ryan Rd., Toledo, Lucas County, Ohio.

"These prostitution warrants are for employees of the Fugi Health Club, 5142 Ryan Rd., Toledo, Lucas County, Ohio, in which money was exchanged for the illegal sexual activity."

The narrow issue before us in this case is whether the affidavit, on the strength of the foregoing allegations, contains facts sufficient to allow a reasonable inference of probable cause to search. For the following reasons, we hold that it does not.

I

A

Initially, we observe that appellant challenges the affidavit as seeking items which, in themselves, are not illegal, i.e., possession of them "is not per se a criminal act." This particular objection to the affidavit lacks serious merit. First, when read in context, the affidavit clearly does not allege illegal possession as the underlying crime of which these items constitute the evidence. Rather, the affidavit alleges that the specified items "are evidence relating to prostitution activities," and further refers to R.C. 2907.22, which defines and proscribes the offense of "promoting prostitution," i.e., the enterprise or business of prostitution. Quite obviously, journals, ledgers, records (in particular, business-type records), customer lists, money (in the form of checks or cash) and other documents are highly relevant as evidence of an on-going prostitution business. In this regard, Crim.R. 41(B) provides:

" * * * A warrant may be issued under this rule to search for and seize any: (1) evidence of the commission of a criminal offense; or (2) contraband, the fruits of crime, or things otherwise criminally possessed; or (3) weapons or other things by means of which a crime has been committed or reasonably appears about to be committed."

The items sought as evidence here were evidence of criminality--things sufficiently connected with the crime of promoting prostitution to be legitimate objects of a police search, assuming probable cause, of course. And this brings us to the specific question involved here.

B

In response to appellant's first assignment of error, the prosecution rotely cites Illinois v. Gates (1983), 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527, for the proposition that the controlling test in evaluating the legal sufficiency of an affidavit is whether probable cause appears from a review of the "totality of the circumstances." This assertion, however, belies a misreading of Illinois v. Gates on two levels, which can be dealt with as follows.

First, what is the specific factual context? Illinois v. Gates involved the issuance of a search warrant based on police corroboration of an anonymous informant's detailed "tip." Here, we have no informant (anonymous or otherwise) and certainly no "tip." The information in the present affidavit, such as it is, was supplied entirely by an affiant-police officer, not an informant. Since neither an informant's credibility and veracity nor the "basis of his knowledge"--the traditional two-pronged inquiry--are at issue here, Illinois v. Gates has little relevance factually.

Second, given the present facts, what is the proper standard of appellate review? As it is usually stated, a reviewing court's task is to ensure, through a conscientious review of the affidavit, that the issuing magistrate had a "substantial basis" for concluding that probable cause existed to search. See United States v. Harris (1971), 403 U.S. 573, 581, 91 S.Ct. 2075, 2080, 29 L.Ed.2d 723; United States v. Ventresca (1965), 380 U.S. 102, 108, 85 S.Ct. 741, 745, 13 L.Ed.2d 684; Jones v. United States (1960), 362 U.S. 257, 271, 80 S.Ct. 725, 736, 4 L.Ed.2d 697; cf. State v. Roberts (1980), 62 Ohio St.2d 170, 178-179, 405 N.E.2d 247 ("As long as the magistrate is presented with a substantial basis to credit the hearsay, so that he will be able to make a neutral and detached determination of probable cause, the affidavit will be sufficient in that regard." [Emphasis added.] ). Cf., also, Illinois v. Gates, supra, 462 U.S. at ---- - ----, 103 S.Ct. at 2331-2332, 76 L.Ed.2d at 547-548. In addition, Crim.R. 41(C) mandates that:

"A warrant shall issue under this rule only on an affidavit or affidavits sworn to before a judge of a court of record and establishing the grounds for issuing the warrant. The affidavit shall name or describe the person to be searched or particularly describe the place to be searched, name or describe the property to be searched for and seized, state substantially the offense in relation thereto, and state the factual basis for the affiant's belief that such property is there located. * * * " (Emphasis added.)

The "substantial basis" standard of review further requires the reviewing court to ascertain whether the issuing judge acted as "a neutral and detached magistrate," which is typically understood to mean not only that he was functionally distinct from the law-enforcement process, but that he drew rational inferences from the facts presented in the affidavit. See Coolidge v. New Hampshire (1971), 403 U.S. 443, 449-453, 91 S.Ct. 2022, 2029-2031, 29 L.Ed.2d 564; see, also, Johnson v. United States (1948), 333 U.S. 10, 13-14, 68 S.Ct. 367, 368-369, 92 L.Ed. 436; State v. Kiraly (1977), 56 Ohio App.2d 37, 44, 381 N.E.2d 649 . Such is the standard of review that we adopt in this case with an important concomitant requirement: the affidavit's legal sufficiency may be determined only from the information actually furnished to the issuing judge. In most cases--and this...