State v. George

Wright, J.,

concurring separately. The “good-faith exception” to the Fourth Amendment exclusionary rule for searches conducted pursuant to warrants established in United States v. Leon (1984), 468 U.S. 897, has, in large measure, received critical review by scholars.4 That decision is an example of the balancing process that the United States Supreme Court has used recently in many cases, including those dealing with the Fourth Amendment.5 *333As the court has stated, “ ‘the balancing of competing interests [is] the key-principle of the Fourth Amendment.’ ” Tennessee v. Garner (1985), 471 U.S. 1, 8 (quoting Michigan v. Summers [1981], 452 U.S. 692, 700, at fn. 12). This court followed Leon, supra, and adopted the good-faith exception in State v. Wilmoth (1986), 22 Ohio St. 3d 251, 22 OBR 427, 490 N.E. 2d 1236, a decision in which I joined. The balance in Leon and Wilmoth, supra, was between the purpose of the exclusionary rule, which is to deter unlawful searches by police, and the criminal justice system’s truth-finding function. Wilmoth, supra, at 265, 22 OBR at 438, 490 N.E. 2d at 1247.1 remain convinced that this balance is appropriate. If a search warrant is issued by a neutral, detached magistrate, but it is not supported by probable cause, then the error is that of the magistrate, not the requesting police officer, as long as the police officer’s reliance upon the warrant is objectively reasonable. Id. at 265, 22 OBR at 439, 490 N.E. 2d at 1247.

While it is a close call, I agree with the majority’s holding that the facts in the officer’s affidavit in this case are sufficient to determine that the magistrate had a “ ‘substantial basis for * * * concluding]’ that probable cause existed” to search the premises and that a search would uncover evidence of wrongdoing. Illinois v. Gates (1983), 462 U.S. 213, 238-239 (quoting Jones v. United States [1960], 362 U.S. 257, 271). Other courts have held that a trained officer’s view of marijuana growing on the premises is sufficient to establish probable cause to issue a timely warrant to search the premises under control of the defendant for drugs and related paraphernalia. United States v. Smith (C.A. 6, 1986), 783 F. 2d 648, 652; United States v. Doty (C.A. 8,1983), 714 F. 2d 761, 763. Smith and Doty involved the sighting of more than one marijuana plant, but that is not a determinative factor in my view.

Once this court determines that the search warrant is supported by probable cause, it need not address the good-faith exception to the exclusionary rule. Thus, the role of the reviewing court of the probable-cause determination made by a magistrate is crucial, as it always has been, but it is especially so if an error by the magistrate will not necessarily result in the exclusion of the fruits of the search. In my view, the second paragraph of the syllabus of the majority opinion, and the supporting discussion, slight the role of the reviewing court when scrutinizing a challenged search warrant. It is only a matter of em*334phasis, but the correct statement that reviewing courts are not to conduct a “de novo” review of the record to judge whether probable cause exists to issue a search warrant may, unless more fully explained, suggest that reviewing courts are to follow a “some evidence” rule. This suggestion is misleading. “De novo review” is defined in Black’s Law Dictionary (5 Ed. 1979) 649, as hearing “[a] matter as court of original and not appellate jurisdiction,” while violation of the “some evidence” standard means “[a] decision * * * rendered without some evidence to support it.” State, ex rel. Burley, v. Coil Packing, Inc. (1987), 31 Ohio St. 3d 18, 20, 31 OBR 70, 72, 508 N.E. 2d 936, 938.

Reviewing courts can consider only the facts which are in the affidavit and which are presented to the neutral, detached magistrate, and the “substantial basis” standard of review does give great deference to the magistrate’s probable-cause determination because of the strong policy interest in favor of the use of search warrants. The magistrate and a reviewing court are to make a practical and common-sense determination based upon all the circumstances. Gates, supra; United States v. White (C.A. 1, 1985), 766 F. 2d 22. The magistrate may draw reasonable inferences from the facts received. United States v. May (C.A. 5, 1987), 819 F. 2d 531. However, the magistrate’s issuance of a warrant “cannot be a mere ratification of the bare conclusions of others. In order to ensure that such an abdication of the magistrate’s duty does not occur, courts must continue to conscientiously review the sufficiency of affidavits on which warrants are issued.” (Emphasis added.) Gates, supra, at 239. If the information contained in a search warrant affidavit does not add up to probable cause, even after proper deference to a magistrate’s determination, the warrant is invalid. Gates, supra, at 239-241; United States v. Lambert (C.A. 6, 1985), 771 F. 2d 83; United States v. Savoca (C.A. 6,1985), 761 F. 2d 292. With that caveat, I concur with the majority’s analysis and judgment.

For an interesting dialogue regarding United States v. Leon (1984), 468 U.S. 897, see Dripps, Living with Leon (1986), 95 Yale L.J. 906; Duke, Making Leon Worse (1986), 95 Yale L.J. 1405; and Professor Dripps’ reply in Dripps, More on Search Warrants, Good Faith and Probable Cause (1986), 95 Yale L.J. 1424. Both authors are critical of the Leon decision and its future ramifications.

See, generally, Aleinikoff, Constitutional Law in the Age of Balancing (1987), 96 Yale L.J. 943. Professor Aleinikoff states that “ [balancing has been a vehicle primarily for weakening earlier categorical doctrines restricting governmental power to search and seize.” Id. at 965. Fourth Amendment cases cited by Professor Aleinikoff as examples are Hudson v. Palmer (1984), 468 U.S. 517 (the scope of *333the Fourth Amendment); United States v. Place (1983), 462 U.S. 696 (the definition of a “search”); New York v. Class (1986), 475 U.S. 106; Winston v. Lee (1985), 470 U.S. 753; and New Jersey v. T.L.O. (1985), 469 U.S. 325 (the reasonableness of a search); Tennessee v. Gamer (1985), 471 U.S. 1; and United States v. Montoya de Hernandez (1985), 473 U.S. 531 (the reasonableness of a seizure); Camara v. Mun. Court of San Francisco (1967), 387 U.S. 523 (the meaning of “probable cause”); United States v. Martinez-Fuerte (1976), 428 U.S. 543, 560-561; United States v. Brignoni-Ponce (1975), 422 U.S. 873, 881; and Terry v. Ohio (1968), 392 U.S. 1, 27 (the level of suspicion required to support stops and detentions); Immigration & Naturalization Serv. v. Lopez-Mendoza (1984), 468 U.S. 1032; Massachusetts v. Sheppard (1984), 468 U.S. 981; United States v. Leon, supra; Stone v. Powell (1976), 428 U.S. 465; and United States v. Calandra (1974), 414 U.S. 338 (the scope of the exclusionary rule); New Jersey v. T.L.O., supra, at 340-341 (dictum) (the necessity of obtaining a warrant); and Schall v. Martin (1984), 467 U.S. 253 (the legality of pretrial detention of juveniles).