I dissent from the opinion of the majority concerning the legality of the search of appellant's home and the motion to suppress the fruits of the search, as discussed in the second assignment of error. I concur with the majority opinion concerning all other errors assigned.
The facts of this case require that we address once again the question whether evidence obtained in a search conducted on the basis of a constitutionally defective search warrant should be suppressed upon the argument that the warrant was obtained and executed by officers acting in objective good faith.
I Probable Cause There can be little question but that the warrant was defective. It was issued upon a hearsay affidavit without a showing of probable cause, a fundamental requirement of the Constitutions of the United States1 and the State of Ohio2 and Ohio's Crim.R. 41.3
Probable cause exists where the facts and circumstances presented are sufficient in themselves to warrant a man of reasonable caution in the belief *Page 108 that a violation of law has been or is being committed.Carroll v. United States (1925), 267 U.S. 132, 45 S. Ct. 280,69 L. Ed. 543. The source and mode of presentation must be such that the information provided is "reasonably trustworthy." Id. at 162, 45 S.Ct. at 288, 69 L.Ed. at 555. However, "probable cause is a fluid concept — turning on the assessment of probabilities in particular factual contexts — not readily, or even usefully, reduced to a neat set of legal rules." Illinois v. Gates (1983),462 U.S. 213, 232, 103 S. Ct. 2317, 2329, 76 L. Ed. 2d 527, 544. It is safe to say that no factual context has provided greater difficulty for determinations of probable cause than those based on "tips" and allegations of "informants."4
The common requirements of the federal and Ohio Constitutions that warrants issue only "upon probable cause, supported by oath or affirmation," strongly suggest that the information provided be within the personal knowledge of the affiant. However, hearsay information may be considered in probable cause determinations so long as the magistrate is presented a "substantial basis" for crediting the hearsay. Draper v.United States (1959), 358 U.S. 307, 79 S. Ct. 329, 3 L. Ed. 2d 327;Jones v. United States (1960), 362 U.S. 257, 269, 80 S. Ct. 725,735, 4 L. Ed. 2d 697, 707. To meet that test the magistrate must be informed of some of the underlying circumstances from which the hearsay source, i.e., the "informant," concluded that a violation has occurred and some of the underlying circumstances from which the affiant concluded that the informant was credible or his information reliable. Jones, supra; Crim.R. 41(C). Absent that showing, the conclusion for probable cause is that of the affiant, or even the informant, and not that of the "neutral and detached magistrate" required by the Constitutions. Giordenellov. United States (1958), 357 U.S. 480, 78 S. Ct. 1245,2 L. Ed. 2d 1503; Johnson v. United States (1948), 333 U.S. 10, 68 S. Ct. 367,92 L. Ed. 436.
The foregoing, relatively simple rules have been sharpened and then revised in a line of cases beginning with Aguilar v.Texas (1964), 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723, andSpinelli v. United States (1969), 393 U.S. 410, 89 S. Ct. 584,21 L. Ed. 2d 637, and culminating in Illinois v. Gates, supra. At the risk of over-simplification, we may say that Aguilar andSpinelli imposed a specific, two-prong test for any hearsay used by a magistrate to find probable cause. First, the affidavit presenting the hearsay must set forth any of the underlying factual circumstances necessary to enable the magistrate *Page 109 independently to judge the validity of the informant's conclusion or allegation of a violation of law. Second, the affiant must show, if only by assertion, that the informant was "credible" or his information "reliable." Absent a showing of those two elements, an affidavit using hearsay to show probable cause is deficient and any warrant issued on that basis is constitutionally defective.
Gates did not reject the Aguilar- Spinelli tests, but sought to put them in context of the greater issue. Following numerous cases in which the tests proved overrestrictive or unduly mechanical in their application by courts, the Supreme Court stated in Gates:
"[T]he `two-pronged test' directs analysis into two largely independent channels — the informant's `veracity' or `reliability' and his `basis of knowledge.' * * * There are persuasive arguments against according these two elements such independent status. Instead, they are better understood as relevant considerations in the totality-of-the-circumstances analysis that traditionally has guided probable-cause determinations: a deficiency in one may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability." Id. at 233, 103 S.Ct. at 2329, 76 L. Ed. 2d 545.
The court then went on to reaffirm the rule of Jones v.United States, supra, that "* * * the traditional standard for review of an issuing magistrate's probable-cause determination has been that so long as the magistrate had a `substantial basis for * * * conclud[ing]' that a search would uncover evidence of wrongdoing, the Fourth Amendment requires no more." Id.,462 U.S. at 236, 103 S.Ct. at 2331, 76 L.Ed.2d at 547. The court concluded in Gates, at 238-239, 103 S.Ct. at 2332,76 L.Ed.2d at 548:
"For all these reasons, we conclude that it is wiser to abandon the `two-pronged test' established by our decisions inAguilar and Spinelli. In its place we reaffirm the totality-of-the-circumstances analysis that traditionally has informed probable-cause determinations. See Jones v.United States, supra; United States v. Ventresca, 380 U.S. 102,13 L. Ed. 2d 684, 85 S. Ct. 741 (1965); Brinegar v. United States,338 U.S. 160, 93 L. Ed. 1879, 69 S. Ct. 1302 (1949). The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the `veracity' and `basis of knowledge' of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a `substantial basis for * * * conclud[ing]' that probable cause existed. Jones v.United States, 362 U.S., at 271 [4 LEd2d 697, 708, 80 SCt 725,736, 78 ALR2d 233, 244]. We are convinced that this flexible, easily applied standard will better *Page 110 achieve the accommodation of public and private interests that the Fourth Amendment requires than does the approach that has developed from Aguilar and Spinelli."
In Gates, police in Bloomington, Illinois received an anonymous letter alleging that Mr. and Mrs. Gates were selling drugs; that Mrs. Gates would drive their car to Florida on that date to be loaded with drugs; that Mr. Gates would fly to Florida in a few days to drive the car back; that the car's trunk would be loaded with drugs; and that the Gateses had over $100,000 worth of drugs in the basement of their home. Acting on the tip, police learned that Mr. Gates had reservations to fly to Florida two days later. He was put under surveillance in Florida, where he stayed overnight and then left the following day with a woman in a car bearing Illinois license plates registered to Gates. As the car travelled toward Illinois police obtained a search warrant for the car and the Gates home from an Illinois magistrate. When the Gateses arrived home, the police, armed with the warrant, searched the car and the home and found marijuana, which served as the basis for drug charges against the pair. The fruits of the search were suppressed by Illinois courts on the basis of Aguilar and Spinelli.
The United States Supreme Court reversed the Illinois courts in Gates, allowing the evidence seized in the search. The court noted that the anonymous letter, standing alone, would not support a determination of probable cause to believe that drugs would be in the car. "The letter provides virtually nothing from which one might conclude that the author is either honest or his information reliable. * * * Something more was required, then, before a magistrate could conclude that there was probable cause to believe that contraband would be found in the Gateses' home and car." Id., 462 U.S. at 227, 103 S.Ct. at 2326,76 L.Ed.2d at 541.
The "something more" was found in the strong corroboration produced by the investigation. The information in the anonymous tip was explicit and detailed. The corroboration raised it from unsupported hearsay to the level of probable fact and provided a "substantial basis" for crediting its truth under the rule ofJones, supra. Absent that "substantial basis," a tip or other statement of information and belief is "a mere conclusory statement that gives the magistrate virtually no basis at all for making a judgment regarding probable cause. Sufficient information must be presented to the magistrate to allow that official to determine probable cause; his action cannot be a mere ratification of the bare conclusions of others. In order to ensure that such an abdication of the magistrate's duty does not occur, courts must continue to conscientiously review the sufficiency of affidavits on which warrants are issued."Id., 462 U.S. at 239, 103 S.Ct. at 2333, 76 L.Ed.2d at 549. *Page 111
The Supreme Court of Ohio adopted and followed the rule ofGates in State v. George (1989), 45 Ohio St. 3d 325,544 N.E.2d 640. In George5 the court endorsed the totality-of-the-circumstances approach and held that a "fair probability" that the contraband would be where alleged satisfies the "substantial basis" requirement of Jones. The court also held that "[r]eviewing courts should accord great deference to the magistrate's determination of probable cause, and doubtful or marginal cases in this area should be resolved in favor of upholding the warrant." Id. 45 Ohio St.3d at 330,544 N.E.2d at 645.
While the "totality of the circumstances" now governs probable cause determinations in Ohio per George, I believe that neither Gates nor George constitutes a wholesale or radical departure from past practice, for two reasons. First, Gates reminds us that "veracity" and "basis of knowledge" remain relevant elements of the totality of the circumstances, and they are retained as specific factors requiring express consideration under Ohio's Crim.R. 41(C).6 Second, Gates reminds us that affidavits insufficient in either of those two factors will be found to show probable cause only where evidence supporting the other factor as presented to the magistrate is convincing, or where other indicia of reliability are so strong, that the totality of the circumstances meets the "substantial basis" test.
Mindful as I am of the admonitions in George, I must conclude that the trial court, and the magistrate, erred in finding probable cause in the affidavit presented by Officer Matheny. The affidavit contained no statement or representation that Haston was a credible person or that his allegations were worthy of belief. The officer only recited Haston's allegations and offered the magistrate no substantiation or corroboration, other than two photographs of Haston in the nude, which could have been taken anywhere, at any time, by anyone and had no apparent connection with appellant or his home. Thus, the elements of "veracity" and "basis of knowledge" to support the affidavit were either wholly absent or so lacking in particularity as to be less than marginal.
Like the anonymous letter in Gates, the affidavit "* * * provides virtually nothing from which one might conclude that * * * [the informant] is either honest or his information reliable." Gates, supra, 462 U.S. at 227, 103 S.Ct. at 2326,76 L.Ed.2d at 541. *Page 112
In contrast with Gates, the officer here neither gathered nor presented additional facts from an investigation which might support her assertions, such as prior convictions of Zinkiewicz for similar crimes, like stories of other victims, or evidence tying the pictures to Zinkiewicz or his home. It may be that this kind of allegation is not easily corroborated. That fact does not, however, eliminate the "substantial basis" requirement to be met by the affidavit's showing. In adopting the unsupported representations of the affidavit, the magistrate's finding was nothing more than a "mere ratification of the bare conclusions of others" condemned in Gates, 462 U.S. at 239,103 S.Ct. at 2333, 76 L.Ed.2d at 549. There was no "substantial basis" for the magistrate's determination that the allegations were true according to the "fair probability" standards ofGeorge.
I note that in her affidavit Officer Matheny states thatshe is experienced in investigations of rapes and moral offenses and that she believes that a crime has been committed. Her statement gives the magistrate no basis for an independent conclusion of his own concerning the credibility or basis of knowledge of the hearsay informant, which is the inescapable, central and crucial issue. The magistrate must have that information in order to make an informed decision about probable cause. Absent that information, the decision is that of the officer or, as here, the informant. Any warrant issued on that basis is, in practical fact, procured and issued upon the unalloyed hearsay allegations of an unverified informant.
For the reasons stated I find that the warrant to search appellant's home was issued without probable cause and is defective under the rules of Illinois v. Gates, supra, andState v. George, supra, and Crim.R. 41(C).
II Good Faith Exception Evidence of crime obtained in a search conducted under the authority of a constitutionally defective warrant should not be suppressed from use in a prosecution of the person searched when the evidence was obtained by an officer who executed the warrant in objectively reasonable reliance on the magistrate's determination of probable cause and the technical sufficiency of the warrant he issued. United States v. Leon (1984),468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677; State v. Wilmoth (1986),22 Ohio St. 3d 251, 22 OBR 427, 490 N.E.2d 640.
The Leon court determined that there was no sound reason to apply the exclusionary rule as a means of correcting error on the part of magistrates, who are responsible for issuing warrants. Rather, because the exclusionary rule was historically intended to deter illegal conduct in the course of searches *Page 113 and seizures, its application should be limited to deterrence of police misconduct. Thus, in cases in which the warrant is subsequently found defective for lack of probable cause, suppression is appropriate only if (1) the defect is the result of dishonesty or recklessness on the part of the officer in preparing or presenting his affidavit or (2) the defect is so obvious and fundamental that the officer could not have harbored an objectively reasonable belief in the existence or probable cause, or (3) both.
A determination that the officer has acted with objective reasonableness cannot turn on the fact that a warrant was issued by a magistrate on the basis of the officer's application and affidavit. Malley v. Briggs (1986), 475 U.S. 335,106 S. Ct. 1092, 89 L. Ed. 2d 475. The inquiry must look behind the warrant to determine "whether a reasonably well-trained officer would have known that the search was illegal despite the magistrate's authorization." Leon, supra, 468 U.S. at 922, 104 S.Ct. at 3420,82 L.Ed.2d at 698, fn. 23.
The validity of a warrant, and the reasonableness of an officer's conduct, must be assessed on the basis of the information the officer disclosed, or had a duty to disclose, to the issuing magistrate. Maryland v. Garrison (1987),480 U.S. 79, 107 S. Ct. 1013, 94 L. Ed. 2d 72. A fair inquiry into objective reasonableness thus requires a review of all relevant facts known to an officer when he prepares his affidavit. United States v.Edwards (C.A. 4, 1986), 798 F.2d 686. What an officer knew but did not disclose in his affidavit concerning informant credibility is a circumstance relevant to an objective reasonableness inquiry. United States v. Martin (C.A. 8, 1987),833 F.2d 752; United States v. Edwards, supra.
An officer presenting facts in an affidavit in support of a warrant application may not misrepresent any fact. Neither may he contrive to guide the magistrate's deliberation by providing only part of the relevant information known to the officer or which with reasonable diligence he could obtain. United Statesv. Rule (D.C.Me.1984), 594 F. Supp. 1223, 1227, fn. 1. That is especially true where the affidavit submitted to the magistrate is wholly lacking in indicia of the informant's credibility.United States v. Reivich (1985), 610 F. Supp. 538. In that event, facts known to the officer and relevant to the informant's credibility are material facts. Omission of a material fact may constitute that "reckless disregard" for the truth condemned inFranks v. Delaware (1978), 438 U.S. 154, 98 S. Ct. 2674,57 L. Ed. 2d 667, and cited in Leon, supra, 468 U.S. at 923,104 S.Ct. at 3421, 82 L.Ed.2d at 699, as a basis to find a lack of objective reasonableness on the part of the officer. See UnitedStates v. Melvin (C.A. 1, 1979), 596 F.2d 492; United States v.Dennis (C.A. 8, 1980), 625 F.2d 782. *Page 114
Few investigations are the work product of a single officer. An officer who presents an application for a warrant supported by an affidavit may not omit relevant matters obtained from other officers. Compartmentalization of knowledge may not be intentionally employed for the purpose of avoiding constitutional defects or creating artificial "reasonableness" to satisfy a good faith standard. Whiteley v. Warden (1971),401 U.S. 560, 91 S. Ct. 1031, 28 L. Ed. 2d 306, 58 Ohio O.O.2d 434, cited in Leon, 468 U.S. at 923, 104 S.Ct. at 3420,82 L.Ed.2d at 698, fn. 24.
When an officer presents a "bare bones" affidavit wholly lacking in terms of informant credibility, he is obligated to reveal to the magistrate from whom he seeks a warrant any other material fact or information known or reasonably available to him bearing on that factor of informant credibility. Such facts become material to the magistrate's determination when indicia of credibility are otherwise lacking. While a partisan inclination to succeed in producing a warrant may be typical of one engaged in the "competitive enterprise of ferreting out crime" (Johnson v. United States, supra, at 14, 68 S.Ct. at 369,92 L.Ed. at 440), it cannot be allowed to produce results inconsistent with the officer's sworn obligation to uphold the law and the burden of objective reasonableness now placed on him by Leon.7 Omission of a material fact constitutes a reckless disregard for the truth which creates or compounds the resulting probable cause defect, and an officer who so acts has not met his obligation of objectively reasonable conduct or good faith.
Officer Matheny testified at the suppression hearing of December 12, 1988 that she is a fourteen-year veteran of the Montgomery County Sheriff's Office and had been a detective with that office for four years, assigned to investigate sexual offenses involving juveniles and adults.
Officer Matheny stated that on July 21, 1988, she was contacted by Detective Caudill of the Huber Heights, Ohio Police Department, who advised her of Haston's allegations against appellant Zinkiewicz. Caudill provided two photographs of Haston, nude, but no other information. Officer Matheny testified that she asked Caudill how he came by his information, and that Caudill "said he was working on the case with Haston. But he didn't tell me what the case was and I didn't ask him." (Emphasis added.)
Acting on Caudill's lead, Officer Matheny and another officer, Turner, contacted Haston and interviewed him outside his residence four days later on July 25. Haston identified the two photographs as taken by appellant in late *Page 115 May of that year. Haston told Matheny that the photos were taken at appellant's house.
Officer Matheny reduced the information provided by Haston to affidavit form and presented it to a judge of the Vandalia Municipal Court on July 26. The judge was given no other information. Officer Matheny conducted no independent investigation of the charges and made no effort to investigate Haston's background, though he had told her he is bisexual. She did not reveal her knowledge or belief that Haston was the subject of a criminal investigation.
Haston testified at appellant's subsequent trial, and stated that the first person to whom he made the allegations against appellant was Detective Caudill. At that time Haston and another youth were under investigation for several crimes, including a brutal rape of another young male and a series of thefts. Appellant Zinkiewicz was aware of these events, and when Haston was contacted by Officer Caudill he believed appellant had provided the information to police. Haston then told Caudill of the photos taken by appellant and several days later gave Caudill the two he had.
When Detective Matheny composed her affidavit she stated, at paragraph 2:
"2. On 7-25-88, one Kenneth M. Haston, W/M/16, of 4057 Iddings Dr., Dayton, Ohio, contacted the Affiant, a sworn Deputy Sheriff of the Montgomery County Sheriff's Office. During the contact Kenneth M. Haston stated that he had posed nude on several occasions for Tyrone Zinkiewicz, while he took photo's [sic] of him for the purpose of publication. Kenneth M. Haston stated that these photo's [sic] were taken at 637 Syracuse Avenue, Dayton, Harrison Twp., Ohio."
Officer Matheny's sworn statement is false and misleading. Haston did not contact the officer; she contacted Haston. Further, she wholly omitted any reference to her true source, Officer Caudill. That omission is material. It failed to report information known to Matheny that would bear on Haston's credibility (i.e., the investigation of Haston for criminal activity), and it neatly avoided any inquiry the magistrate would likely make about Haston's background upon learning of that fact. The result was to paint a picture of an innocent victim who is more deserving of belief than the subject of a criminal investigation who is trading information to help himself.Andreson v. Maryland (1976), 427 U.S. 463, 96 S. Ct. 2737,49 L. Ed. 2d 627; United States v. Dennis, supra.
Because we are dealing with a standard of reasonableness and the acts expected of a "reasonably well trained officer" (Malley v. Briggs, supra), it is not an undue imposition to expect the officer to make appropriate inquiries concerning her informant's credibility. Officer Matheny made none. In view *Page 116 of her knowledge that Haston was the subject of a criminal investigation by another officer, she did not act reasonably in failing to inquire about Haston of the other officer. Her failure to make these inquiries is particularly relevant to aLeon determination in a context in which she presented no information of any kind in support of veracity and the informant's proven "basis of knowledge" was inconclusive at best.
The majority is of the view that the record does not support an inference that Officer Matheny knew that Haston was the subject of a criminal investigation. I believe that such an inference can be made in view of Officer Matheny's thirteen years of law enforcement experience and the nature of her source. More importantly, however, I believe that her failure to make a reasonable inquiry of her source, Officer Caudill, and her later misrepresentation to a judge in her sworn statement, exclude her actions from the realm of "objective good faith."
An officer who presents an application for a warrant and a sworn statement to a magistrate has a duty to assist the magistrate in his neutral and detached determination of probable cause. If a magistrate is to look to the "totality of the circumstances" per Gates and George, they may not be misrepresented or withheld from him.
I find that Officer Matheny, in executing a warrant to search appellant's home obtained on the basis of her representations, did not act in objective good faith. She both misrepresented and omitted facts material to the magistrate's probable cause determination, and the constitutional defect flowed from that act. Her conduct is of the kind and character that has resulted, and which in the future may result in, constitutionally illegal searches of that most highly valued sanctuary, a private home.8
I do not hold that an officer seeking a warrant must always report to the magistrate the fact that he or she has obtained leads from other officers. That fact becomes material only when it has a bearing on informant credibility and the magistrate is given little or no other information on which to act. When, as here, credibility of an informant is wholly unsupported, any known and relevant information should be reported by the officer and she does not act reasonably in withholding it.
All evidence produced in the illegal search of appellant's home should be excluded and the judgment of the trial court reversed.
1 The Fourth Amendment to the United States Constitution.
2 Section 14, Article I, Ohio Constitution.
3 Crim.R. 41(C) provides in pertinent part:
"The finding of probable cause may be based upon hearsay in whole or in part, provided there is a substantial basis for believing the source of the hearsay to be credible and for believing that there is a factual basis for the information furnished."
4 Historians tell us that the term "informant" was devised by the late J. Edgar Hoover, Director of the F.B.I., to describe persons who provided information. Frequently, such persons were part of a criminal enterprise and would ordinarily have been called "informers." Because of the pejorative tone of that word, Mr. Hoover devised his own. Some writers have resisted the change.
5 George did not involve a hearsay issue. A police officer stated by affidavit that he saw what he knew by experience to be marijuana growing in the yard of a place to be searched. The issue in George involved the scope of the warrant then issued to search the yard and inside buildings located thereon.
6 It may be significant that Fed.Crim.R. 41 makes no similar requirement.
7 In addition to Leon's suppression-of-evidence penalty, an officer acting without objective reasonableness in producing a warrant lacking in probable cause is now subject to civil penalties for deprivation of civil rights, per Malley v. Briggs,supra.
8 "At the very core [of the Fourth Amendment] stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion." Silverman v.United States (1961), 365 U.S. 505, 511, 81 S. Ct. 679, 683,5 L. Ed. 2d 734, 739. *Page 117