I am constrained to dissent from the judgment of the majority of this court for the following reasons:
It is conceded that the searching of the premises of *Page 15 the plaintiff in error, and from which the arrest ensued, was upon a search warrant sworn to by the officer before the clerk of the municipal court. Under the recent decision of the Supreme Court of Ohio, in the case of Nicholas v. City of Cleveland,125 Ohio St. 474, 182 N.E. 26, opinion by Jones, J., it is now the settled law of Ohio that the power of issuing a search warrant rests solely with the judge or magistrate before whom the affidavit for search is filed, and that the determination whether to issue the warrant or not is a judicial determination; and that the clerk's act in issuing a search warrant pursuant to an order of the judge is a ministerial act.
It is likewise the settled law of Ohio, under paragraph 4 of the syllabus of said opinion, that: "Where an affidavit for search alleges only that complainant believes and has good cause to believe that the things to be searched for are concealed in a house or place, but does not state the facts upon which such belief is based, such affidavit and warrant issued thereunder are illegal and void under the provisions of Section 13430-3, General Code."
The affidavit for search in the case at bar, upon which the search warrant was issued by the clerk of the municipal court, while alleging, in substance, that the complainant believes and that he has good cause to believe that the things to be searched for are concealed in the house or place, does not state the facts upon which such belief is based. The conclusion, in my opinion, must be reached that since a motion was made by the accused to suppress the evidence obtained under an illegal affidavit and warrant, the motion should have been sustained by the trial court, and the evidence so illegally obtained should have been suppressed and not used for the incrimination of the accused.
The record, in my opinion, shows the undisputed fact that prior to the search the house which was so *Page 16 searched was reputed to be a bona fide two-family residence. The only item of evidence to cast any suspicion upon the character of the house was the testimony of an officer who stated that he made observations on two occasions; that he saw two men going to the rear entrance and coming out later; and that they appeared sober when they entered and appeared intoxicated when they left.
A comparison of the statement of the record in this case with the evidence quoted from the record in the opinion of Jones, J., in Nicholas v. City of Cleveland, shows almost an identical situation. The officer who filed the affidavit in the Nicholascase, and obtained an alleged warrant, admitted that the house to be searched was a private dwelling; that he did not go before a judge or magistrate for the issuance of an affidavit, but went to the clerk's office where the affidavit was signed by a deputy. Two officers, including the one who obtained the search warrant, broke open the screen door at the rear of the dwelling and testified that in the dwelling they found a half a barrel of beer and a gallon and a half of liquor. There was no evidence of sale or trafficking in intoxicating liquor. The complainant testified that on two occasions he saw five or six men enter the house of the accused, and that on leaving one of the men appeared to be under the influence of liquor.
In the case at bar there was no evidence casting suspicion upon the character of the house as a bona fide residence other than the mere fact that observations were made on two occasions, when the officer saw on the fourth day of September, 1931, four men enter, and two leave apparently intoxicated, and, on the fifth day of September, 1931, he saw two men enter and saw two men leave staggering and talking loudly.
Without any further evidence, the circumstances testified to by the officer who made the observation prior to the obtaining of the search warrant do not *Page 17 necessarily give rise to the inference that there was trafficking in intoxicating liquor in the house which was afterwards searched. The affidavit was sworn to not before a magistrate, but, instead, was sworn to before and signed by a clerk of the municipal court. The body of the affidavit, while alleging that the complainant had reasonable grounds to believe that the things to be searched for are concealed in the house or place, does not state the facts upon which such belief is based. The case, therefore, seems to me to be a case identical with the case ofNicholas v. City of Cleveland, supra, wherein the Supreme Court has definitely declared such a search warrant to be an illegal warrant, and that the evidence obtained by means thereof should be suppressed upon a motion to suppress made by the accused.
In the opinion of Jones, J., in Nicholas v. City of Cleveland,supra, at page 484, we find this pertinent language: "While we are not bound by federal decisions upon this feature of the case, since the Bill of Rights in the Constitution of the United States is in almost the exact language of that found in our own, the reasoning of the United States court upon this aspect of the case should be very persuasive. The state courts, however, with practical unanimity, have adopted the same principle as the federal courts. Article I, Section 14 of the Ohio Constitution, reads: `The right of the people to be secure in their persons, houses, papers, and possessions, against unreasonable searches and seizures shall not be violated; and no warrant shall issue, but upon probable cause, supported by oath or affirmation, particularly describing the place to be searched, and the person and things to be seized.'"
The opinion then proceeds to quote from several decisions of the United States Supreme Court, to wit, Weeks v. United States,232 U.S. 383, 34 S. Ct., 341, 58 L. Ed., 652, L.R.A., 1915B, 834, Ann Cas., 1915C, *Page 18 1177, and Go-Bart Importing Co. v. United States, 282 U.S. 344,51 S. Ct., 153, 75 L. Ed., 374, decided January 5, 1931, opinion by Mr. Justice Butler, from which the following is quoted:
"It is general and forbids every search that is unreasonable; it protects all, those suspected or known to be offenders as well as the innocent, and unquestionably extends to the premises where the search was made and the papers taken. Gouled v. UnitedStates, 255 U.S. 298, 307 [41 S. Ct., 261, 65 L. Ed., 647]. The second clause declares: `and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.' This prevents the issue of warrants on loose, vague or doubtful bases of fact. It emphasizes the purpose to protect against all general searches. Since before the creation of our government, such searches have been deemed obnoxious to fundamental principles of liberty. They are denounced in the constitutions or statutes of every State in the Union."
Many cases may be found in the reports touching the constitutional feature safeguarding the rights of the people to be secure against unreasonable searches and seizures; and they uniformly uphold such rights when a search is made of a bona fide dwelling or residence of the accused; and if the search be without warrant or upon a void warrant, incriminating articles found within such dwellings cannot be used against the occupant to bring about his conviction.
Upon a careful study of the recent case of Nicholas v. City ofCleveland, and also of a great number of decisions rendered by the United States Supreme Court, I am forced to reach but one conclusion, namely, that where the evidence upon which the conviction rests was obtained by means of an illegal search warrant a motion to suppress the same must be granted by the trial court, and that it is error for the trial *Page 19 court to overrule such motion and to permit the introduction of such illegally obtained evidence in order to make out a case for the state. This safeguard is necessary not only because of the experiences of past ages, but also because of our own nowadays recent experiences. The abuse of this legal process called the search warrant has become so frequent as to almost render a home the prey of avarice and of private gain. We must, of course, enforce the law, but such enforcement must be accomplished by legal means. Every home, no matter how humble, is still a castle protected against trespass and invasion. To search what has heretofore been reputed as a bona fide home by means of an illegal search warrant is tantamount to trespass and forcible invasion.
I am firmly of the opinion that the decision of the Supreme Court of Ohio in Nicholas v. City of Cleveland struck an effective blow against the frequent abuses of alleged legal process which endanger the home as an institution and tend to destroy the defenses with which the home was heretofore surrounded. The Eighteenth Amendment did not expressly or impliedly repeal the constitutional safeguard against illegal searching of homes, as it is far more important that homes be protected against trespass and invasion than that a search for intoxicating liquor be conducted.
For these reasons it is my opinion that the conviction in this case was illegal; that the evidence should have been suppressed; and that the plaintiff in error should have been discharged. *Page 20