This appeal is before this court a second time. In an opinion issued July 30, 1963, four of the seven assignments of error advanced by the appellant were overruled. Disposition of the remaining three was reserved for possible completion of the record by attaching copies of the affidavit and warrant to the bill of exceptions. The overruling of an objection to the introduction of evidence obtained by the use of a warrant based upon an illegal affidavit is the basis of appellant's fifth assignment of error.
It is to appellant's fifth assignment of error that attention is directed in this opinion. The fifth assignment urges that the trial court erred in overruling a motion, timely made, to suppress the evidence secured on a search warrant issued upon an affidavit which did not set out the facts upon which the affiant *Page 484 based his belief that illegal things were concealed in the place named in the affidavit.
Section 2933.23, Revised Code, prescribes the requirements for the issuance of a search warrant. Several specifications are set out and then concluding the statute requires that the affidavit recite that the "complainant believes and has good cause to believe" and also "that he shall state the facts upon which such belief is based." The Supreme Court recently considered the matter of the facts to be stated in an affidavit for a search warrant in the case of City of Akron v.Williams (1963), 175 Ohio St. 186, and the rule announced is now controlling. It must be followed by this court in the instant case and respected by police officers and other law enforcement officials when obtaining search warrants for use in the course of their business. The law presently applicable, as announced in the syllabus, is as follows:
"1. An affidavit, on which a search warrant is issued, which does not state the facts upon which the affiant bases his belief that the property for which the search is to be made is located at the premises designated in the affidavit, is defective, and the search warrant issued pursuant to such a defective affidavit is invalid and void.
"2. Evidence seized under an invalid search warrant is not admissible, and a conviction in a criminal case which is based solely on such evidence is void."
The language held to be insufficient in the Akron case,supra, is as follows:
"* * * says that he has personal knowledge, or knowledge from a reliable source that * * *."
In the case before us the general form of the affidavit complies with the statute. The concluding statement, controversial here, to which the affiant subscribes, is as follows:
"The facts upon which such belief is based are as follows: information and investigation."
It is impossible to distinguish one of these statements from the other. One says the affiant "has personal knowledge" and the other implies he made an "investigation," although it may well have been made by another. Again one affiant has "information" generally and the other suggests "knowledge from a reliable source." To attempt to distinguish the phraseology *Page 485 contained in the affidavits would be to create a distinction without a real difference.
The court in the Akron case, supra, followed an earlier decision in the case of Nicholas v. City of Cleveland (1932),125 Ohio St. 474, in which case the affidavit did not contain any statement of facts of any kind upon which the affiant claimed to rely. This is, of course, a more flagrant violation of the statute than in the Akron case, supra, or the instant case, in which we find attempts to, at least perfunctorily, state some facts, but whenever there is even the possibility of the invasion of constitutional guarantees, law enforcement must never become perfunctory.
Judge Griffith relies upon, and quotes from, Jones v.United States (1960), 362 U.S. 257, in his decision in theAkron case, supra. An examination of the Jones case, supra, provides a sample of the kind of factual support, for the beliefs recited by an affiant, that meets the approval of the United States Supreme Court. A narcotics agent filed an affidavit for a search warrant. Briefly summarized, the facts upon which he predicated his belief that narcotics would be found at a certain place, are these:
1. He had received information from an unnamed informer that the suspect had a supply of heroin and that the informant had purchased some from that source the last time on August 20, 1957.
2. Information previously received from the unnamed informer had been good.
3. The same information had been received from other sources.
4. The suspect and his associate were known to be addicts.
5. Affiant believed that narcotics were secreted by the suspect and his associate in the apartment sought to be searched.
Justice Frankfurter, in his majority opinion, admits that some of the facts stated in the affidavit are pure hearsay but asserts that hearsay may properly be a basis for a warrant. His rationalization is that an officer may act upon probable cause without a warrant. Probable cause in such cases is many times predicated upon hearsay and it would be unreasonable to require a higher standard of evidence to support a warrant than to support an arrest. *Page 486
Justice Douglas dissented taking issue with the willingness of the majority to accept hearsay evidence as the basis for a warrant. His comments are rather sharp. Two of them, suggesting a much more rigid rule than that announced by the majority, are as follows:
"This is an age where faceless informers have been reintroduced into our society in alarming ways."
"It is not sufficient that the police think there is cause for an invasion of the privacy of the home."
Both the Ohio Constitution and the federal Constitution say clearly that "no warrant shall issue, but upon probable cause." However convincing the record may be as to the guilt of an accused, the rule in the Akron case, supra, the law in Ohio, demands a recital of facts in the affidavit filed to secure a search warrant, sufficient to persuade the judge or magistrate, to whom the request for a search warrant is addressed, that the affiant has sufficient facts at his disposal to establish probable cause. Facts must be asserted, not conclusions or vague generalizations. It should be noted that such facts may be in the nature of hearsay, but they need to be characterized by a degree of substance sufficient to be persuasive. The magistrate must be persuaded since he stands between the citizen clothed with a constitutional right and a law enforcement officer who proposes to invade that right.
To the law enforcement officer charged with preserving the peace and dignity of the state of Ohio, the rule may appear too severe. It is to be remembered that hearsay facts are acceptable. Under the federal decisions the name of an informant need not be revealed. The Supreme Court of Ohio indicates approval of that position. In the case of State v. Berk (1963), 175 Ohio St. 73, the trial court was upheld in refusing to require the name of an informant to be revealed "where such disclosure would not be helpful and beneficial to the accused in making a defense to a criminal charge lodged against him."
Little or no attention has been directed to the other possibility afforded by the Ohio statute. Section 2933.23, Revised Code, requires facts to be stated in the affidavit but it also provides as follows:
"The judge or magistrate may demand other and further evidence before issuing such warrant." *Page 487
If the informant of the police officer needs the protection of anonymity or limited facts are incorporated in the affidavit, the informant may be identified and the facts may be expanded by oral testimony to a point of sufficient weight to be persuasive. The use of oral testimony, shown by an appropriate record, may also produce the incidental result of shifting the burden of moving forward in the case from defense to prosecution and from prosecution to defense. As in the instant case, the defense made a prima facie showing that the search warrant was illegal because based upon a faulty affidavit. Had oral testimony been used before the magistrate, by showing it the prosecution moves the burden back to the defense.
Appellant's fifth assignment of error is well taken. Sustaining it disposes of the remaining two assignments.
The Akron case, supra, must be followed. The case is remanded to the trial court with the direction to exclude the evidence obtained by the illegally issued warrant, as required by the decision in Mapp v. Ohio (1961), 367 U.S. 643, and for further proceeding according to law.
Judgment reversed.
DUFFEY, J., concurs.