State v. Wilmoth

• Decision Date: 19 March 1986
• Docket Number: 85-73,Nos. 85-72,s. 85-72
• Citation: 22 Ohio St.3d 251,490 N.E.2d 1236,22 OBR 427
• Parties: , 22 O.B.R. 427 The STATE of Ohio, Appellee, v. WILMOTH et al., Appellants.
• Court: Ohio Supreme Court

Page 251

22 Ohio St.3d 251

490 N.E.2d 1236, 22 O.B.R. 427

The STATE of Ohio, Appellee, v. WILMOTH et al., Appellants.

Nos. 85-72, 85-73.

Supreme Court of Ohio.

March 19, 1986.

Syllabus by the Court

1. The exclusionary rule should not be applied to suppress evidence obtained by police officers acting in objectively reasonable, good faith reliance on a search warrant issued by a detached and neutral magistrate but ultimately found to be invalid. (United States v. Leon [1984], 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677, followed.)

2. Where the officer's conduct in the course of a search and seizure is objectively reasonable and executed in good faith, excluding the evidence because the search warrant is found to be constitutionally invalid will not further the ends of the exclusionary rule in any appreciable way.

On February 8, 1983, appellant, Howard D. Wilmoth, was indicted on one count of receiving stolen property in violation of R.C. 2913.51, and one count of possession of criminal tools in violation of R.C. 2923.24. On the same date, appellant, Bernard H. Wilmoth, was indicted on eight counts of receiving stolen property in violation of R.C. 2913.51, one count of possession of criminal tools in violation of R.C. 2923.24, and one count of concealing the identity of a motor vehicle in violation of R.C. 4549.07.

On May 16, 1983, the appellants timely filed motions to suppress the evidence. On June 28, 1984, the trial court granted the motions.

The facts contained in the record provide that when the police became aware of possible criminal activity at the shop at 732 Idaho Avenue in Lorain, they established a round-the-clock surveillance. On the morning of December 21, 1982, two vehicles, which were believed to have been stolen, were observed being driven into the shop. At that point, the police sought a search warrant. A warrant was obtained and Lorain police officers conducted a search of the shop. Numerous items were seized from the shop, the surrounding area, and vehicles located in or about the shop, resulting in the charges filed against the appellants.

The search was conducted pursuant to a search warrant issued by a Lorain County common pleas judge. It is the procedure in obtaining the warrant which is the focus in this appeal. The warrant was issued on the basis of oral statements given to the magistrate by Sergeant Jack D. Daniel and Patrolman Thomas M. DeNicola of the Lorain Police Department. The oral statements were being recorded as the officers testified before the magistrate. Their recorded statements, later transcribed, provided information concerning stolen motor vehicles being delivered to a "chop shop."

Probable cause is not an issue on appeal. However, a brief summary of the officers' testimony is necessary. Sergeant Daniel testified concerning the background information which led to the surveillance. He stated that the Cleveland Police Department alerted the Lorain County Sheriff's office that stolen vehicles were being transported to a shop at 732 Idaho Avenue. The Cleveland police obtained this information from David Hill, who admitted stealing the cars for Bernard Wilmoth. The Lorain police then began a surveillance of this address. At the same time, they learned that this shop was being rented by John Wilmoth.

Daniel then testified in detail concerning information the police obtained from four informants. The various informants had described the activities of the appellants and the activities of the shop. Daniel informed the magistrate that based on the information received from these four informants, the police set up a twenty-four-hour surveillance. Their surveillance revealed that cars were being driven into the shop but were never seen exiting the shop. They also observed trucks entering and exiting. Daniel submitted police reports which detailed the activity observed during the surveillance.

DeNicola then testified concerning the activity he observed the morning of December 21, 1982. He claimed two new cars were brought into the shop. A computer registration check revealed that both cars were stolen vehicles.

After receiving the testimony of Daniel and DeNicola, the magistrate swore them in and then proceeded to issue the search warrant. The testimony of the December 21, 1982 hearing was subsequently transcribed. On January 3, 1983, the issuing magistrate and both of the officers certified that the transcript was an accurate record of the December 21, 1982 hearing.

However, the warrant in question was not issued on the basis of written affidavits but on the oral statements of the two officers and their submitted police reports. The state argued that the reason the affidavits were prepared in this manner was because all the intelligence gathered prior to the search showed the operation at 732 Idaho Avenue, Lorain, Ohio, to be a "chop shop" for cars that are immediately (in less than one hour) and completely dismantled with all identifying characteristics destroyed. In other words, the loss and/or destruction of the evidence was imminent. Later testimony revealed that one of the two stolen cars seen entering the shop on December 21, 1982 was completely dismantled with the identifying marks destroyed by the time the police entered with the warrant and the other car was in the state of partial disassembly. The completely disassembled vehicle was on its way down the highway in the back of a panel truck.

In addition, the transcript of the police officers' oral statements revealed they were not sworn in prior to giving their statements. However, they were sworn in twice. The first time the tape recorder was not on. The second time the tape was running and the following exchange occurred:

"[Prosecutor:] Hang on, swear them in again Judge, we * * *.

"[Judge:] Oh, I see * * *.

"[Prosecutor:] Didn't get that on the tape.

"[Judge:] Alright, please stand and raise your right hands, do you solemnly swear that the testimony you are about to give on to enable you to obtain a search warrant is the truth so help you God?

"[Patrolman DeNicola]: I do.

"[Sergeant Daniel]: I do." (Emphasis added.)

The trial court subsequently ruled that the evidence seized during the search should be suppressed for two reasons. First, the police failed to submit a written affidavit to obtain the warrant, as required by Crim.R. 41(C). Second, the officers did not testify under oath, as required by the United States Constitution and the Ohio Constitution.

On appeal, the court of appeals reversed the decision of the trial court. The appellate court found that failure to provide a written affidavit did not require suppression of evidence; that the error of the magistrate in giving the oath did not invalidate the search warrant; and even if the search warrant were invalid, the avowed purpose of the exclusionary rule would not be served by suppression of the evidence because the search warrant was executed in good faith by the police officers.

The cause is now before this court pursuant to the allowance of a motion for leave to appeal.

Gregory A. White, Pros. Atty., and Jonathan E. Rosenbaum, Elyria, for appellee.

Smith & Smith, Gerald M. Smith and Daniel G. Wightman, Avon Lake, for appellants.

PATTON, Judge.

In their single proposition of law, appellants contend that a search warrant issued on the basis of unsworn oral statements of police officers is defective and requires suppression of any evidence obtained therefrom. This contention is without merit.

The United States Supreme Court has recently modified the exclusionary rule in United States v. Leon (1984), 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677. In that case, the court held that the exclusionary rule should not be applied to suppress evidence obtained by police officers acting in objectively reasonable, good faith reliance on a search warrant issued by a detached and neutral magistrate but ultimately found to be invalid. The use of the exclusionary rule to enforce Fourth Amendment violations was not eliminated but it no longer applies to cases where the officers execute a warrant in "good faith." Based upon the following analysis, we formally adopt the good faith exception to the exclusionary rule found in Leon.

I History of the Exclusionary Rule in Federal Court

The exclusionary rule has had a long and colorful history beginning with the case of Boyd v. United States (1886), 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746. Boyd has been recognized as the beginning of the exclusionary rule doctrine. Subsequently, in Weeks v. United States (1914), 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652, the United States Supreme Court relied on Boyd and announced the rule that evidence procured as the result of a constitutional violation, namely the illegal search and seizure of defendant's papers, could not be used to convict him in a federal prosecution.

Until the decision in Wolf v. Colorado (1949), 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782, overruled in Mapp v. Ohio (1961), 367 U.S. 643, 655, 81 S.Ct. 1684, 6 L.Ed.2d 1081 , the United States Supreme Court had not been presented with the issue of whether the Fourteenth Amendment prohibited use of evidence gained through an unreasonable search and seizure in a state prosecution. In Wolf, the court held that it did not.

The United States Supreme Court applied the exclusionary rule in Rochin v. California (1952), 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183. In that case, the police had the defendant's stomach "pumped" at the local hospital to retrieve morphine capsules later used as evidence. Analogizing the procedure to coerced confessions, the court found that the police conduct so offended "a sense of justice" (id. at 173, 72 S.Ct. at 210) as to constitute a violation of the Due Process Clause and disallowed use of the capsules as evidence and reversed defendant's conviction.

In contrast, the court allowed the conviction to stand in Irvine v. California (1954), 347 U.S. 128, 74 S.Ct. 381, 98 L.Ed....