I agree with the majority's ruling and analysis as to appellant's first assignment of error, but I respectfully disagree with the majority as to appellant's second and third assignments of error. Therefore, I must respectfully dissent as to these assignments.
I share the majority's hope that attorneys, assisting police officers within our jurisdiction, use their expertise to tailor affidavits in support of warrants; however, the wide world of crime does not always lend itself to surgical precision by law enforcement. In the majority's admirable effort to protect some residual remnant of the Fourth Amendment, the majority seeks a level of warrant drafting precision that replaces what it calls "double aught six scatter gun" with an unrealistically stringent laser guided sharpshooter's rifle.
While the wording of the first paragraph of Detective Pouska's affidavit was styled in accordance to the city solicitor's preference, Detective Pouska signed the affidavit, attesting to its truthfulness. Additionally, Detective Pouska testified that he reviewed the affidavit with the issuing judge. The first paragraph of Detective Pouska's affidavit was simply an exhaustive list of the types of illicit controlled substances and contraband items, set forth in R.C. 2925, that he had reason to believe were being concealed at the residence based upon his observations and past experience. The first paragraph of Detective Pouska's affidavit stated:
"* * * [H]e has reason to believe that there is now being concealed * * *[at] 521 Audrey Place * * * illicit controlled substances, including * * * marijuana, cocaine, crack cocaine, heroin,* * * and/or any other controlled substance.* * * [H]e has reason to believe there is also being concealed in said premise paraphernalia or pieces of equipment used for purpose(s) of drug consumption, drug packaging * * * of illicit drugs/substances * * * [H]e has reason to believe there is now being concealed * * *quantities of cash, * * * firearms * * * and/or other contraband."
During the suppression hearing, Detective Pouska testified that he believed that it was possible to find one or all of the illicit items listed in R.C. 2925 based upon his observation of the baggy of marijuana, the hemostat, and his past experiences when marijuana was discovered.
Even setting aside the first paragraph of the affidavit, as the trial court did, Detective Pouska's affidavit indicated that a bag of marijuana was already discovered in plain view. Appellee did not contest the issuance of the administrative search warrant or the baggy of marijuana observed in plain view during the *Page 260 execution of the administrative search warrant. The actual quantity of marijuana observed in plain view was not relevant to the determination of probable cause, nor was that information contained in Detective Pouska's affidavit. As stated by the majority, probable cause is the existence of circumstances that warrant suspicion, meaning a showing that a probability of criminal activity exists.
R.C. 2925.11(A) provides that "[n]o person shall knowingly obtain, possess, or use a controlled substance." If an individual is found possessing marijuana, then a violation of R.C. 2925.11(A) results in which that individual is guilty of possession of marijuana, a criminal offense. R.C. 2925.11(C)(3). Once this determination is made, only then does the amount of marijuana come into play to determine the penalty for the commission of the crime. See R.C. 2925.11(C)(3)(a)-(f).
As to the case before us, the amount of marijuana observed in plain view was less than one hundred (100) grams; therefore, the penalty for such possession was a minor misdemeanor. See R.C. 2925.11(C)(3)(a). However, the Supreme Court of Ohio held "the unambiguous language of R.C. 2925.11 punishes conduct for the possession of any amount of a controlled substance. * * * [T]he quantity of a controlled substance isnot a factor in determining whether a defendant may lawfully be convicted of drug abuse, in violation of R.C. 2925.11(A)." (Emphasis added.)State v. Teamer (1998), 82 Ohio St. 3d 490, 491-492.
Although R.C. 2935.26(A) limits a police officer's authority in minor misdemeanor violations to only issuing a citation, the amount is not a factor in determining whether a criminal offense had been committed." Even possession of a small amount of marijuana is a criminal offense, as a minor misdemeanor is a crime * * *." State v. Conard (June 22, 1978), Franklin App. Nos. 78AP-4 and 78AP-139, unreported, 1978 Ohio App. LEXIS10709, at 10.
For the reasons stated, even setting aside the first paragraph of Detective Pouska's affidavit, the facts described in Detective Pouska's affidavit, indicating that contraband was already discovered in plain view, provided a substantial basis to support the issuing judge's conclusion that there was a "fair probability" that more contraband would be found at appellee's residence. The affidavit clearly demonstrated the existence of illicit narcotics activity. As indicated in the majority's opinion, great deference must be accorded to the issuing judge's probable cause determination, with doubtful or marginal cases resolved to uphold the issuing judge's decision to grant a search warrant. Accordingly, the trial court erred in finding that there was no substantial basis to conclude that a fair probability existed that additional contraband would be found at appellee's residence. In view of that, the trial court erred in suppressing the evidence *Page 261 obtained pursuant to the second search warrant. Appellant's second assignment of error should be sustained.
In the third assignment of error, appellant argues that, even assuming the search warrant was somehow insufficient, it was reasonable for Detective Pouska to believe the search warrant was valid and that other contraband would be found based upon his observations and thirty years of experience.
The majority concludes that Detective Pouska "should have known that he could not expect to find all of those items in a house on the basis of his observation of a single baggy of marijuana." How the majority reaches this clairvoyant conclusion is unclear. As noted above, Detective Pouska testified at the suppression hearing, based upon his considerable law enforcement experience, that he believed that it was possible to find one or all of those items predicated on his observations of the baggy and the hemostat. Thus, there was sufficient indicia of probable cause to support the execution of the search warrant.
Additionally, there is no indication that the issuing judge was not a neutral and detached party, or that any reasonable, well-trained police officer would know or should know that there was no probable cause to search. Further, upon examining the search warrant, there does not exist any facial deficiency. Thus, even if Detective Pouska's affidavit contained insufficient probable cause, the "good faith exception" would preclude application of the exclusionary rule because there is no police illegality to deter. Appellant's third assignment of error should be sustained.
Accordingly, for the foregoing reasons, I would reverse the finding of the trial court, which granted appellee's motion to suppress the evidence seized under the second search warrant. *Page 262