This is an appeal from a judgment of the Highland County Common Pleas Court sustaining Gregory Johnson's motion to suppress items found during an inventory search following Johnson's arrest upon a warrant later found to have been issued without probable cause. We affirm.
The record reveals the following facts. On August 30, 1986 Officer Lyle Delph of the Greenfield Police Department received information from some juveniles that defendant, Gregory "Chip" Johnson, had given them beer. Delph reported to Ralph Phillips, the Assistant Highland County Prosecutor, who prepared a warrant to arrest Johnson alleging that Johnson contributed to the unruliness or delinquency of a child in violation of R.C.2919.24(A)(2). Delph took the warrant to the Deputy Clerk of the Highland County Court and swore that the allegations contained therein were true to the best of his knowledge. The parties stipulated that Delph did not present any evidence, statements or anything to indicate that his information was based on informants' statements. The clerk issued the warrant for Johnson's arrest.
The parties further stipulated that Delph returned the warrant to the Greenfield Police Department where it was later executed by Officer Roche. During an inventory search of Johnson's vehicle incident to his arrest, Roche seized a tube containing traces *Page 257 of cocaine and a small amount of marijuana. Johnson was charged with possession of cocaine, a Schedule II controlled substance under R.C. 3719.41, in violation of R.C. 2925.11(A).
On September 24, 1986 Johnson filed a motion to suppress the warrant and all resulting evidence as the warrant was issued without probable cause. The county court sustained Johnson's motion. In December 1986 the Highland County Grand Jury indicted Johnson for violating R.C. 2925.11(A). The indictment was based on the evidence obtained from the search of Johnson's vehicle.
On March 6, 1987 Johnson again filed a motion to suppress evidence on the basis that no probable cause existed. On March 12, 1987, after a hearing on Johnson's motion, the trial court sustained the motion finding that there was no probable cause upon which to issue the warrant. On March 13, 1987, the trial court reversed itself and overruled Johnson's motion to suppress. Johnson filed a motion for reconsideration. Based on that motion the trial court again reversed itself and granted Johnson's motion to suppress. It is from that order that the state appeals and assigns one error:
"The trial court erred in suppressing evidence seized by an officer during an otherwise valid inventory search after an arrest made in good faith by that arresting officer pursuant to an arrest warrant subsequently determined to have been issued without probable cause."
The state concedes that the arrest warrant was issued without probable cause. However, the state contends that the "good faith" exception to the exclusionary rule created by United States v.Leon (1984), 468 U.S. 897, and State v. Wilmoth (1986), 22 Ohio St. 3d 251, 22 OBR 427, 490 N.E.2d 1236, applies here making the inventory search resulting from that warrant valid. We disagree. The fact that the arrest warrant was executed in good faith by a colleague of Officer Delph who swore out the complaint against Johnson does not fall within the good faith exception to the exclusionary rule.
In Leon, supra, the court noted that the "bad faith" of an officer of a police department may be imputed to other officers of that department. The court wrote at 923, fn. 24:
"References to `officer' throughout this opinion should not be read too narrowly. It is necessary to consider the objective reasonableness, not only of the officers who eventually executed a warrant, but also of the officers who originally obtained it or who provided information material to the probable-cause determination. Nothing in our opinion suggests, for example, thatan officer could obtain a warrant on the basis of a `bare bones'affidavit and then rely on colleagues who are ignorant of thecircumstances under which the warrant was obtained to conduct thesearch. See Whiteley v. Warden, 401 U.S. 560, 568 (1971)." (Emphasis added.)
The exclusionary rule is designed to protect the public from invasion of privacy by overzealous law enforcement personnel. The whole idea in putting a sanction on conduct is to deter further conduct of that sort. This is the essence of the "good faith" rule. Where a police officer has attempted to comply with the constitutional guarantees, but nonetheless the search warrant is later found to be invalid because of the issuing magistrate's error, imposing a sanction on the police officer serves no purpose at all. As a rule, imposing a penalty on one person for someone else's mistake is usually futile. This point is made very clear in Wilmoth, supra, at 260, 22 OBR at 434,490 N.E.2d at 1243: *Page 258
" `This is particularly true, we believe, when an officer acting with objective good faith has obtained a search warrant from a judge or magistrate and acted within its scope. In mostsuch cases, there is no police illegality and thus nothing todeter. It is the magistrate's responsibility to determine whetherthe officer's allegations establish probable cause and, if so, toissue a warrant comporting in form with the requirements of theFourth Amendment. In the ordinary case, an officer cannot beexpected to question the magistrate's probable-causedetermination or his judgment that the form of the warrant istechnically sufficient. "[O]nce the warrant issues, there is literally nothing more the policeman can do in seeking to comply with the law." Id. [428 U.S.], at 498, 49 L. Ed. 2d 1067,96 S. Ct. 3037 (Burger, C.J., concurring). Penalizing the officer forthe magistrate's error, rather than his own, cannot logicallycontribute to the deterrence of Fourth Amendment violations.' (Emphasis added; footnotes omitted.)"
This is not a search warrant case. This is not a good faith case. It is the case of a warrantless search incident to an invalid arrest as described in Leon, supra. Neither the United States Supreme Court nor the Ohio Supreme Court has said that a warrantless search incident to an invalid arrest is proper if the arresting officer acts in good faith. Thus, we find the state's assignment of error to be without merit and thereby overrule it.
Judgment affirmed.
STEPHENSON, J., concurs.
ABELE, J., dissents.