State v. Graddy

Herbert, J.,

dissenting. Courts should not be hyper-technical in the consideration of search warrant affidavits. United States v. Ventresca (1965), 380 U. S. 102. Such affidavits must be tested and interpreted by magistrates and courts in a eommonsense and realistic fashion. United States v. Harris (1971), 403 U. S. 573.

It must be kept in mind, particularly by reviewing courts, that search warrant affidavits are usually drafted by non-lawyers, often under necessarily hasty circumstances and always in the testing atmosphere of the real world. Moreover, the probable cause necessary to justify the issuance of a search warrant requires less facts than are necessary for conviction, and the amount and method of proof is less strict. State v. Haynes (1971), 25 Ohio St. 2d 264, 267 N. E. 2d 787, citing Jones v. United States (1960), 362 U. S. 257. This view of probable cause extends to the determination of the reliability of the informer. In such cases, it must always be recalled that certainty is not the requisite touchstone. Haynes, supra, at page 269. The resolution of doubtful or marginal eases should largely be determined by the preference to be accorded to warrants. Jones, supra, at page 270. See, also, State v. Karr (1975), 44 Ohio St. 2d 163, 339 N. E. 2d 641; State v. Parker (1975), 44 Ohio St. 2d 172, 339 N. E. 2d 648; and the dissenting *142opinion in State v. Gill (1977), 49 Ohio St. 2d 177, 360 N. E. 2d 693.

With due respect to my colleagues in the majority, I dissent.

Locher, J., concurs in the foregoing dissenting opinion.