{¶ 51} I concur with the majority's denial of appellant's first assignment of error. However, I respectfully dissent from the remainder of the majority's opinion for the reasons stated below.
{¶ 52} With respect to appellant's second assignment of error, the majority characterizes the search warrants in this case as a "laundry list approach" and finds them "an unacceptable infringement upon an individual's Fourth Amendment rights." I disagree. As noted in my dissenting opinion in State v. Young, 146 Ohio App.3d 245,2001-Ohio-4284, a sharpshooter test for the content of a search warrant in drug cases establishes an unrealistically stringent and constitutionally unwarranted drafting standard.
{¶ 53} In this case, the warrants set forth a lengthy and detailed description of the contraband items to be seized. These items are specific things used or involved in the marijuana/drug trafficking trade. Read in conjunction with the supporting affidavits, the warrants authorize the search for, and seizure of, specific marijuana/drug trafficking related materials (e.g. growing devices, chemicals, *Page 273 pots, illegal drugs, packaging equipment, monies, sale records and other drug paraphernalia). Such specificity does not constitute a "general search" feared by our Founding Fathers and precluded by the Fourth Amendment.
{¶ 54} Moreover, a search warrant must be considered in its totality. While a cellular phone or pager, standing alone, has no criminal or contraband implications, listing them alongside a large quantity of marijuana, a scale, plastic bags, growing lights and money cloaks such items with a criminal purpose and demonstrates the existence of illicit narcotic activity. As a result of the above-mentioned items, a substantial basis was formed to support the judge's issuance of the warrants in this case. Id. So long as the law enforcement officers in this case could distinguish between legal and illegal property on the basis of objective, articulable standards, search warrants may authorize the search of the premises for an otherwise generic class of items relating to illicit narcotic activity, without violating the constitutional prohibition against general warrants. United States v.Upton (S.D.Ohio 1991), 763 F. Supp. 232, 238.
{¶ 55} In this matter, the search warrants contained sufficient specificity and objective information for trained law enforcement personnel to search the premises for illegal contraband used in drug trafficking and to know the permissible objects of such search.
{¶ 56} For these reasons, appellant's second assignment of error should be overruled.
{¶ 57} The majority also concludes that there is a "complete absence of any indication of reliability" as to the sources that provided the detective with information as outlined in the supporting affidavit. Based on this conclusion, the majority finds appellant's third assignment of error well taken. I disagree.
{¶ 58} First, an appellate court must always be cognizant of its limitations in reviewing the sufficiency of probable cause determination involving an affidavit submitted in support of a search warrant. Neither a trial court, nor an appellate court, should substitute its judgment for that of a magistrate and conduct a de novo review as to whether the affidavit contains probable cause sufficient for the issuance of a search warrant. State v. George (1989), 45 Ohio St.3d 325, paragraph two of the syllabus. The issue on review is limited to the determination as to whether the magistrate had a substantial basis for concluding that probable cause existed.
{¶ 59} In this case, appellant asserts that the affidavit attached to the July 7th warrant was inadequate for the purpose of establishing probable cause. The majority agrees with this assertion primarily because of its view that "much of the information provided in the affidavit is not even attributed to a particular source or to particular sources." *Page 274
{¶ 60} The proscriptions of the Fourth Amendment impose a standard of reasonableness upon the exercise of discretion by government officials. Delaware v. Prouse (1979), 440 U.S. 648, 653-654. "Thus, the permissibility of a particular law enforcement practice is judged by balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests." Id. at 654. "To justify a particular intrusion, the officer must demonstrate `specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.'" Terryv. Ohio (1968), 392 U.S. 1, at 21.
{¶ 61} When, as in this case, a law enforcement official acts on an informant's tip, the appropriate analysis is whether that tip has sufficient indicia of reliability. Maumee v. Weisner (1999),87 Ohio St.3d 295. The factors to be considered are the informant's veracity, reliability and basis of knowledge. Alabama v. White (1990),496 U.S. 325, 328.
{¶ 62} In assessing these factors, the Supreme Court of Ohio has categorized informants based upon typical characteristics. Maumee v.Weisner, supra, at 300-302. In this case, the category of the "anonymous informant" is relevant to appellant's third assignment of error. The anonymous informant category arguably is applicable in this case because the affidavit, attached to the July 7th warrant, references "received information" and "confidential sources", but does not specifically identify the name of such sources or the particular source of such information.
{¶ 63} Accepting for the sake of this discussion that the absence of such identifying information in the affidavit effectively renders such sources "anonymous informants" for purposes of appellate legal analysis, the reliability of the information provided by those sources generally requires some independent police corroboration. See White, supra; Weisner, supra. Such corroboration can be found in the record in this case. The first affidavit in this matter, compiled from some first-hand information supplied from the Portage County Sheriff's personnel, establishes that trail markings, often related to hidden marijuana growing sites, and various materials used to cultivate marijuana, were located on appellant's property. As a result, the corroborated facts, as outlined in the affidavits, taken in their totality, as made known to the issuing judge, were sufficient to establish the following: (1) probable cause that appellant was cultivating marijuana for sale on appellant's property, and (2) a fair probability that contraband would be found on appellant's property. George, supra. Therefore, appellant's third assignment of error should be overruled.
{¶ 64} Since appellant's fourth and fifth assignments or error are somewhat interrelated, they will be addressed collectively. *Page 275
{¶ 65} Appellant argues that the affidavit supporting the July 15th search warrant was premised on allegedly unlawfully obtained evidence, was based on unreliable information, and was not subject to the "good faith exception" to the exclusionary rule with respect to information obtained from the July 8th search. The lower court found "sufficient probable cause for the issuance of the July 15th search warrant" and "that even if the affidavit failed to provide sufficient probable cause, the search warrant would fall within the `good faith exception'." I agree.
{¶ 66} The majority concludes that the good faith exception does not apply in this case because the affidavit form used by Detective Doak was not completely filled out. This conclusion hinges too much on form over substance. As previously discussed, based on the totality of the circumstances and the corroborative information provided to the issuing judge, the issues of the reliability and veracity of the informant's affidavit have been sufficiently addressed. Leaving some unfilled blanks on the form of an affidavit does not change this substantive fact. The facts of this case do warrant the application of the good faith exception under United States v. Leon (1984), 468 U.S. 897. Moreover, for the reasons discussed above, the first search was legal. Likewise, the information in the second affidavit passes the reliability test, as discussed below, regardless of the "blanks". Therefore, the affidavit supporting the July 15th search was valid either on its face or under the good faith exception.
{¶ 67} As to the reliability of the information in the July 15th affidavit, there are sufficient indicia of probable cause to render reliance on that affidavit and related search warrant reasonable. Once again, there is corroboration of the unnamed source information by reliable police sources. The majority's standard of review for the search warrant affidavit is so strict that such affidavits apparently would be valid only if the name of every source is identified and those sources said that they personally observed the criminal act in progress. Such a standard is impractical and is contrary to the Ohio Supreme Court's acceptance of the reliability of corroborated, anonymous sources. See Weisner, supra.
{¶ 68} A witness does not have to see someone bite off another's ear to testify against the biter. It is sufficient that the witness merely see the biter spit out the ear to give credibility to the witness' testimony. The same is true in this case. While neither the local farmer, nor law enforcement personnel said they observed appellant physically planting and cultivating marijuana, appellant was observed carting large volumes of water to the area where marijuana plants were subsequently found to be growing. Moreover, the July 15th affidavit included information from the Hiram Police Department regarding appellant's burying of guns on the property, as well as evidence that the area was booby-trapped. Such conduct provides indicia of illicit drug activity. *Page 276
{¶ 69} Faced with this evidence, reversal of the lower court's finding of probable cause for the issuance of the July 15th warrant would be improper and in violation of the appellate court mantra of judicial restraint. For these reasons, appellant's fourth and fifth assignments of error should be overruled.
{¶ 70} Finally, the majority addresses appellee's argument that appellant never challenged the sufficiency of the search warrants in the proceedings and dismisses this argument on the basis of waiver. Without agreeing or disagreeing with the majority on this issue, I would affirm the lower court's ruling on the substantive grounds discussed above, without the need to address appellee's "no challenge" issue.
{¶ 71} With all due respect to the majority, I would affirm the lower court's decision in this matter for the reasons stated above.