State v. Yanowitz

• Decision Date: 22 February 1980
• Citation: 67 Ohio App.2d 141,426 N.E.2d 190
• Parties: , 21 O.O.3d 445 The STATE of Ohio, Appellee, v. YANOWITZ, Appellant. *
• Court: Ohio Court of Appeals

Page 141

67 Ohio App.2d 141

426 N.E.2d 190, 21 O.O.3d 445

The STATE of Ohio, Appellee, v. YANOWITZ, Appellant. ^*

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Feb. 22, 1980.

Syllabus by the Court

1. A warrant issued pursuant to an affidavit which is based upon hearsay information is valid so long as it can be inferred from the affidavit that the information contained therein is reliable.

2. Where the affidavit discloses that an informant has made "numerous visits" to the home of the accused, and "always" observed marijuana on the premises, and where the affidavit contains underlying facts indicating a present and continuing pattern of behavior by the accused involving the sale and possession of contraband material, a conclusion is justified that contraband is probably on the premises of the accused at the time of issuance of the warrant.

3. The state has the burden of proving each and every element of a criminal offense beyond a reasonable doubt.

4. To sustain a conviction for possession of marijuana in violation of R.C. § 2925.03(A)(6), the burden is on the state to prove that the marijuana seized is in an amount "equal to or exceeding three times the bulk amount," and constitutes contraband material within the meaning of the provisions of R.C. § 3719.01(Q).

5. Marijuana seeds which have not been proven by the state to be capable of germination are not contraband material within the meaning of the provisions of R.C. § 3719.01(Q), and, as such, are prohibited from inclusion in determining an amount "equal to or exceeding three times the bulk amount" as required in R.C. § 2925.03(A)(6).

John T. Corrigan, Pros. Atty., for appellee.

Kahn, Kleinman, Yanowitz & Arnson Co., L. P. A., and Bernard J. Stuplinski, Cleveland, for appellant.

JACKSON, Judge.

Defendant-appellant, Earle Yanowitz, was indicted by the Cuyahoga County Grand Jury for two counts of trafficking in drugs in violation of R.C. § 2925.03, and one count of drug abuse in violation of R.C. § 2925.11. Defendant entered pleas of not guilty to each count contained in the indictment and subsequently filed a motion to suppress evidence. Following a hearing, the court overruled the motion to suppress. Trial was then had before a jury, which found the defendant guilty of all three counts as charged in the indictment.

Defendant appeals from his conviction and assigns two errors for review:

"1. The trial court erred in overruling defendant-appellant's motion to suppress evidence when the supporting affidavit for the search warrant was based on hearsay declarations of an unidentified arrested male and did not contain sufficient facts to establish probable cause."

"2. The trial court erred in failing to take from the consideration of the jury evidence of marijuana seed, where the state offered no evidence to prove that the seed was capable of germination and not sterile."

On October 6, 1977, Detective John Hoyt, a narcotics investigator for the Lakewood Police Department, obtained a warrant authorizing the search of appellant's residence located in Lakewood, Ohio. The warrant was secured on the basis of the following affidavit:

"Before me, Harold J. Craig, Judge of the Municipal Court of Lakewood, Ohio, personally appeared the undersigned Detective John Hoyt, who being first duly sworn, deposes and says that he is a member of the Lakewood Police Department and that he has good cause to believe that on the premises of 12590 Lake Avenue, said premises further described as being a red colored brick, single family dwelling, located on the north side of Lake Avenue, in the City of Lakewood, State of Ohio, and presently being occupied by a white male identified as Earl Yanowitz, approximately 32 years of age, and by three unidentified females, there is now being unlawfully kept, concealed and possessed certain property to wit: cocaine, marijuana, a document of drug transactions.

"The facts upon which the affiant bases such belief are as follows:

"During the course of a narcotics investigation, Det. Hoyt learned the following information from Det. Richard Rutt, a member of the Cleveland Police Narcotic Unit.

"That Det. Rutt on October 6, 1977 has arrested a male for possession of cocaine (. D)uring the course of the arrest and investigation of the male arrested Det. Rutt learned that the cocaine that the male had that was arrested was to be delivered to 12590 Lake Rd. to a Earl Yanowitz. A telephone conversation between the arrested male and a male identifying himself as Earl Yanowitz was overheard by Det. Rutt and Yanowitz stated he wanted the arrested male to bring the cocaine over to his house, and that he had customers coming at 9:00 PM tonight. He stated his address was 12590 Lake Ave., and this was also overheard by Det. Rutt.

"The arrested male stated that he had been over to the house on Lake Ave. on numerous occasions, and that Yanowitz has always had marijuana in plain view in the house. He also stated that Yanowitz used cocaine and that he would have his own personal supply in the house, and that would be in addition to the 2 ounces of cocaine that he was to purchase.

"During the arrest of the male with 2 ounces of cocaine a notebook was found belonging to the male and in the notebook was the name Earl Yanowitz with a phone number * * *. Det. Neelon had (the) arrested male call this number and a male named Earl told the arrested male to get over there right away because he had customers waiting, and he already lost 400 dollars. Det. Neelon overheard the conversation.

"Predicated on the foregoing affiant avers that it is urgently necessary that the above described premises be searched in the night season forthwith to prevent the above named property from being concealed or removed so as not to be found.

"/s/ John Hoyt"

Detective Hoyt executed the search warrant on October 6, 1977, resulting in the confiscation of various bags and vials containing marijuana, cocaine and LSD.

Appellant contends in his first assignment of error that the affidavit of Detective Hoyt is deficient and that the court erred when it overruled appellant's motion to suppress. The record in the case at bar does not show that additional evidence was obtained, recorded or made a part of the affidavit, pursuant to Crim.R. 41(C), to support a finding of probable cause. Therefore, the validity of the search warrant must be determined solely from the contents of the affidavit. State v. Eichhorn (1975), 47 Ohio App.2d 227, 229, 353 N.E.2d 861.

From the inception, we recognize that courts of review generally allow the magistrate broad discretion to decide that probable cause exists in order to encourage law enforcement officers to seek warrants. United States v. Ventresca (1965), 380 U.S. 102, 108-109, 85 S.Ct. 741, 745-746, 13 L.Ed.2d 684. The Ohio Supreme Court has recognized the preference to be accorded warrants. State v. Karr (1975), 44 Ohio St.2d 163, 167, 339 N.E.2d 641, certiorari denied (1976), 426 U.S. 936, 96 S.Ct. 2650, 49 L.Ed.2d 387.

When seeking a warrant, the affidavit should state sufficient facts to allow a magistrate, weighing the evidence in a commonsense manner, to make an independent judgment about probable cause. United States v. Ventresca, supra, 380 U.S. at page 108, 85 S.Ct. at page 745; Aguilar v. Texas (1964), 378 U.S. 108, 111, 84 S.Ct. 1509, 1512, 12 L.Ed.2d 723. An affidavit is not rendered deficient because it is based on hearsay statements of an informant, so long as there is "a substantial basis for crediting the hearsay." Jones v. United States (1960), 362 U.S. 257, 269, 80 S.Ct. 725, 735, 4 L.Ed.2d 697. This may be accomplished through the application of the two-pronged test enunciated in Aguilar:

" * * * (T)he magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed, * * * was 'credible' or his information 'reliable.' * * * " Aguilar v. Texas, supra, 378 U.S. at page 114, 84 S.Ct. at page 1513. See, also, Spinelli v. United States (1969), 393 U.S. 410, 412-413, 89 S.Ct. 584, 586-587, 21 L.Ed.2d 637.

Thus, Aguilar requires an examination of both the underlying circumstances upon which the informant based his conclusions, and the credibility of the informant. If the information from the informant is inadequate under Aguilar to establish probable cause, the court may consider other allegations in the affidavit which corroborate the information given by the informant. Spinelli v. United States, supra, 393 U.S. at page 415, 89 S.Ct. at page 588. United States v. Harris (1971), 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723. For example, it was held in United States v. Harris, supra, at pages 579-581, 91 S.Ct. at pages 2079-2080, that a finding of probable cause may rest on a tip from an untested informant who manifested personal knowledge of the criminal activity if other factors substantiate the suspect's involvement in the crime and thereby provide a basis for crediting the informant's statements. See, also, United States v. Dudek (C.A. 6, 1977), 560 F.2d 1288, 1292-1293, certiorari denied (1978),434 U.S. 1037, 98 S.Ct. 774, 54 L.Ed.2d 786, rehearing denied (1978), 434 U.S. 1089, 98 S.Ct. 1288, 55 L.Ed.2d 796; United States v. Gill (C.A. 6, 1977), 555 F.2d 597, 599.

In the case at bar, the affidavit averred that an unnamed male (hereinafter the "informant") was arrested for possession of cocaine on October 6, 1977, by Detective Richard Rutt of the Cleveland Police Narcotics Unit. The informant told Detective Rutt that the cocaine in his possession was supposed to be delivered to and purchased by the appellant. The informant stated further that he had been to appellant's residence on "numerous occasions," that the informant had always seen marijuana in appellant's house, and that appella...