State v. Castagnola

Lanzinger, J.,

dissenting.

{¶ 109} I cannot agree that we should break with precedent and adopt the reasoning of a California appellate court opinion to conclude that the officer in this case “negligently usurped the inference-drawing authority of the magistrate,” majority opinion at ¶ 65, and caused an invalid search warrant to be issued. Nor would I address the question of particularity that appellant, Nicholas Castagnola, failed to present to the trial or appellate court. I therefore respectfully dissent and would uphold the judgment of the court of appeals.

The proposition of law on particularity was forfeited

{¶ 110} Castagnola did not argue either in his motion or at the suppression hearing that the warrant failed to particularly describe the scope of the search of the computer. The majority states that the particularity issue is implicit in the probable-cause argument and notes a single reference to “particularity” in Castagnola’s merit brief to the Ninth District as a reason to excuse his failure to raise this issue. Majority opinion at ¶ 69-70. I do not agree.

{¶ 111} Castagnola raised the trial court’s denial of his motion to suppress in the first of his four assignments of error, arguing only that the computer should not have been seized. He did not mention the scope of the computer search or say that the warrant failed to properly guide and control the forensic analyst or argue that the search was general or exploratory. He contended only that the *26computer should not have been seized, because it had no nexus to the crime with which he was charged. In any event, because Crim.R. 47 requires a motion to suppress to state the specific grounds upon which it is made, it is insufficient to say that the issue was implicitly raised in another argument. Because the particularity issue was raised for the first time before us, we should not address it. See State v. Price, 60 Ohio St.2d 136, 398 N.E.2d 772 (1979), paragraph two of the syllabus.

Probable cause exists under the totality of the circumstances

{¶ 112} The Fourth Amendment to the United States Constitution and Article I, Section 14 of the Ohio Constitution provide that a warrant can be issued only if probable cause for the warrant is supported by an oath or affirmation. When determining whether to issue a warrant, a magistrate must simply “make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). As long as the “magistrate had a substantial basis for concluding that probable cause existed,” a reviewing court should uphold the warrant. State v. George, 45 Ohio St.3d 325, 544 N.E.2d 640 (1989), paragraph two of the syllabus. We have called this standard for reviewing warrants the “totality-of-the-circumstances standard.”

{¶ 113} We recently reiterated that totality of the circumstances is the proper standard of review to determine whether probable cause existed to issue a search warrant. State v. Jones, 143 Ohio St.3d 266, 2015-Ohio-483, 37 N.E.3d 123.

The Supreme Court of the United States has provided that in determining whether a search warrant was issued upon a proper showing of probable cause, reviewing courts must examine the totality of the circumstances. Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). “[T]he duty of a reviewing court is simply to ensure that the magistrate had a ‘substantial basis for * * * concluding]’ that probable cause existed.” Id. at 238-239, quoting Jones v. United States, 362 U.S. 257, 271, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), overruled on other grounds, United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980). The Gates court stated that the issuing magistrate’s duty is to determine whether “there is a fair probability that contraband or evidence of a crime will be found in a particular place * * *.” Id. at 238.

*27Id. at ¶ 13.

{¶ 114} Castagnola challenges the use of the word “online” in the detective’s affidavit in support of the search warrant. In describing the discussion between the confidential informant and Castagnola, the detective stated in his affidavit:

Castagnola then says that he found Maistros online in the clerk of courts because he got a parking ticket several years ago. Castagnola said that he also found that Maistros law offices were in Chagrin Falls and went through Maistros’s mailbox to confirm that Maistros did live at the address he found for him online.

{¶ 115} For a search warrant that appears to be valid on its face to run afoul of the Fourth Amendment, a defendant must show by a preponderance of the evidence that the affiant made a false statement, either “intentionally, or with reckless disregard for the truth.” Franks v. Delaware, 438 U.S. 154, 155-156, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). We have said that “ ‘[rjeckless disregard’ means that the affiant had serious doubts of an allegation’s truth.” State v. Waddy, 63 Ohio St.3d 424, 441, 588 N.E.2d 819 (1992). Negligent or innocent mistakes in an affidavit will not invalidate a search warrant. See Franks at 171. Contrary to what the majority states in the opinion, Castagnola does argue that use of the word “online” is a false statement — he denies saying that word in the recorded conversation. Majority opinion at ¶ 42. But although the word “online” was not used in the recorded conversation, the detective’s affidavit does not claim to be quoting Castagnola. The detective testified that he honestly believed that Castagnola had made such a reference. And at the suppression hearing, defense counsel conceded that there was not misfeasance or malfeasance on the part of the detective. This in and of itself makes a Franks violation impossible.

{¶ 116} Castagnola also alleges, however, that the detective usurped the role of the magistrate by inferring that the address had been found online and stating this to be an empirical fact. He contends that it was the magistrate’s job to determine whether the evidence justified the inference that Castagnola had conducted the search for the address online.

{¶ 117} Without fully discussing our standard of reviewing the totality of the circumstances, the majority adopts the reasoning of a 35-year-old, out-of-state intermediate court to change the law of Ohio. Majority opinion at ¶ 42-64, relying *28on People v. Caffott, 105 Cal.App.3d 775, 164 Cal.Rptr. 499 (1980).2 Under the majority’s approach, a negligent misstatement within an affidavit causes the entire affidavit to be subject to reassessment without any deference to the issuing magistrate. Caffott’s test to determine the relevance and complexity of a “hidden inference” is inconsistent with established case law and appears to circumvent the holding in Franks that a facially valid search warrant will not be set aside unless the affiant makes a false statement intentionally or with reckless disregard for the truth. Requiring an affiant to present a hypertechnical recitation of the facts to obtain a search warrant is unnecessary. A magistrate can question an affiant to determine whether probable cause exists if the facts stated are unclear. The Franks rule that invalidates warrants that are based on intentional or reckless misstatements already guards truth and promotes honesty. There is no reason to abandon precedent. In George, 45 Ohio St.3d 325, 544 N.E.2d 640, we stated:

It is also important to note that the totality-of-the-circumstances analysis of Gates not only addresses the original probable cause determination of the magistrate but carefully limits the role of a reviewing court as well to that of simply “ * * * ensuring] that the magistrate had a ‘substantial basis for * * * concluding’ that probable cause existed. * * * ” Id. [462 U.S.] at 238-239 [103 S.Ct. 2317, 76 L.Ed.2d 527].

Id. at 329. We should not second-guess the issuing magistrate by looking for “hidden inferences.”

{¶ 118} I would hold that under the totality of the circumstances, the magistrate had a substantial basis for issuing the search warrant. In the affidavit, the detective outlined the offenses alleged to have been committed by the 24-year-old Castagnola. The detective quoted the text messages Castagnola had sent and summarized the recorded conversation Castagnola had had with a confidential informant, both of which implicated Castagnola in the offenses. Although the word “online” was not used in the recorded conversation, Castagnola did state that he had “look[ed] up on court records” and found a parking ticket with Maistros’s address. Based on Castagnola’s age, the text messages that he sent, and the statements he actually made, I agree with the trial court that the detective’s paraphrase was “a fair characterization of the substance of the conversation.” For a search warrant to issue there needs to be only a fair probability that evidence will be found in a particular place. Given today’s *29ubiquitous use of technology to obtain information, it is more than likely that Castagnola found the information online.

Sherri Bevan Walsh, Summit County Prosecuting Attorney, and Heaven DiMartino, Assistant Prosecuting Attorney, for appellee. Russell S. Bensing, for appellant.

{¶ 119} For these same reasons, I also strenuously dissent from the majority’s determination that the warrant was not executed in good faith. The affidavit in support of the warrant stated that a 24-year-old man had sent several text messages admitting his involvement in the egging of vehicles belonging to David Maistros and that during a conversation with a confidential informant he had stated that he had found Maistros’s address online. A reasonable officer would have no reason to question the validity of the search warrant.

{¶ 120} I respectfully dissent.

O’Connor, C.J., and French, J., concur in the foregoing opinion.

. People v. Caffott, 105 Cal.App.3d 775, 164 Cal.Rptr. 499 (1980), has been cited in later opinions only three times, and not once after 1986.