State v. Elschlager

[Cite as State v. Elschlager, 2017-Ohio-5545.]

COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES:
Hon. Patricia A. Delaney, P.J.
Plaintiff-Appellant Hon. William B. Hoffman, J.
Hon. Earle E. Wise, Jr., J.
-vs-
Case No. 16CAA090041
WILLIAM P. ELSCHLAGER

Defendant-Appellee OPINION

CHARACTER OF PROCEEDING: Appeal from the Delaware County Court of
Common Pleas, Case No. 16CR-I-05-
00223

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: June 26, 2017

APPEARANCES:

For Plaintiff-Appellant For Defendant-Appellee

OFFICE OF THE DELAWARE SAMUEL H. SHAMANSKY
PROSECUTING ATTORNEY 523 South Third Street
CAROL HAMILTON O'BRIEN Columbus, Ohio 43215

KYLE ROHRER
First Assistant Prosecuting Attorney
Delaware County Prosecutor’s Office
140 North Sandusky Street
Delaware, Ohio 43015
Delaware County, Case No. 16CAA090041 2

Hoffman, J.

{¶1} Plaintiff-appellant the state of Ohio appeals the September 22, 2016

Judgment Entry entered by the Delaware County Court of Common Pleas granting

Defendant-appellee William P. Elschlager’s motion to suppress, in part.1

STATEMENT OF THE FACTS AND CASE

{¶2} On January 17, 2016, the Washington County Sheriff’s Office executed a

search warrant at Appellee’s residence located at 305 Masonic Park Road, Marietta,

Washington County, Ohio in Case No. 16-CR-15.2 At all times relevant, the Ohio State

Highway Patrol employed Appellee as a sergeant. Appellee was previously assigned to

the Delaware County post.

{¶3} On January 15, 2016, A.B. met with Captain Troy Hawkins of the

Washington County Sheriff’s Department. A.B. accused Appellee of menacing by

stalking, telecommunications harassment, abduction, unlawful restraint, theft, receiving

stolen property and breaking and entering. Specifically, A.B. alleged Appellee stole

personal effects from her vehicle, including a small silver ring and a bottle of perfume.

Captain Hawkins discussed various protection orders with A.B., but indicated a court

would not be able to hear the motion for protective order until after the weekend.

1
The state of Ohio does not appeal that portion of the September 22, 2016 Judgment
Entry denying Appellee’s motion to suppress the Steyr Mannlicher .40 caliber handgun.
Rather, the State’s appeal is limited to that portion of the Judgment Entry granting the
motion to suppress the seizure of the Jennings pistol.
2
In Washington County Case No. 16-CR-15, a search warrant was issued based upon a
complaint to an officer of the Washington County Sheriff’s Department alleging Appellee
engaged in telecommunications harassment, unlawful restraint, abduction and receiving
stolen property of a female acquaintance.
Delaware County, Case No. 16CAA090041 3

{¶4} Captain Hawkins obtained a search warrant for Appellee’s residence on

January 17, 2016. The warrant authorized the search of Appellee’s residence to recover

the ring, perfume and other documents or records, electronic or otherwise, pertaining to

Appellee’s alleged crimes of menacing by stalking, telecommunications harassment,

abduction, unlawful restraint, theft, receiving stolen property and breaking and entering.

The State concedes the search warrant did not mention firearms, but did include “any

other type of material” in reference to the charges of menacing by stalking and abduction.

{¶5} During the execution of the search warrant, law enforcement officers

observed a pile of clothing on a chair inside the residence. In sorting through the clothing,

the officers discovered an Ohio State Highway Patrol evidence bag, with attached papers

indicating the chain of custody ended in 2009. Inside the evidence bag, the officers

located a Steyr Mannlicher pistol.

{¶6} Lieutenant Scott Parks of the Washington County Sheriff’s Department

testified at the suppression hearing the illegal nature of the Steyr Mannlicher pistol was

immediately apparent to law enforcement officers present during the search due to the

evidence bag and papers demonstrating chain of custody. Tr. at 20.

{¶7} The officers then entered the attic of the residence. Captain Hawkins

testified at the suppression hearing he observed two boxes of ammunition, one opened

and one sealed, addressed to the Ohio Highway Patrol Academy. Tr. at 55. In the area

near the ammunition, Captain Hawkins observed another open box containing a .380

caliber Jennings pistol. Captain Hawkins testified he found the Jennings pistol in a

nondescript cardboard box. Captain Hawkins then laid the pistol “out so the detective

conducting the search could see it laying on top.” Tr. at 57. The firearm was later
Delaware County, Case No. 16CAA090041 4

determined to be evidence in a 2004 Delaware County case in which the defendant plead

guilty, and the firearm was ordered to be destroyed. The officers seized both the Steyr

Mannlicher pistol and the .380 Jennings pistol.

{¶8} On May 6, 2016, the Delaware County Grand Jury indicted Appellee on one

count of tampering with records, in violation of R.C. 2913.42(A)(1), a third degree felony;

two counts of theft, in violation of R.C. 2913.02(A)(3), felonies of the third degree; two

counts of theft, in violation of R.C. 2913.02(A)(1), felonies of the third degree; and two

counts of theft, in violation of R.C. 2913.02(A)(2), felonies of the third degree.

{¶9} On August 19, 2016, Appellee filed a motion to suppress evidence obtained

pursuant to the search warrant issued in Washington County No. 16-CR-15. On

September 1, 2016, the State filed a memorandum contra to the motion to suppress. On

September 19, 2016, the trial court conducted a hearing on the motion.

{¶10} Via Judgment Entry of September 22, 2016, the trial court denied the motion

to suppress, in part, and granted the motion to suppress, in part. Specifically, the trial

court denied the motion as it pertained to the Steyr Mannlicher .40 caliber handgun, but

granted the motion with regard to the Jennings .380 caliber handgun.

{¶11} Appellant State appeals, assigning as error,

I. THE TRIAL COURT IMPROPERLY RULED THAT DEFENDANT-

APPELLEE WILLIAM ELSHLAGER HAD STANDING UNDER THE

FOURTH AMENDMENT TO CHALLENGE THE SEIZURE OF THE

STOLEN .380 CALIBUR JENNINGS PISTOL.
Delaware County, Case No. 16CAA090041 5

II. THE SEIZURE OF THE .380 CALIBUR JENNINGS PISTOL

SATISFIED THE REQUIREMENT OF THE PLAIN VIEW EXCEPTION TO

THE WARRANT REQUIREMENT, AND THUS THE TRIAL COURT

ABUSED ITS DISCRETION WHEN IT SUPPRESSED THE .380

JENNINGS PISTOL AS EVIDENCE.

III. IN THE ALTERNATIVE, THE PISTOL WAS REASONABLY

SEIZED PURSUANT TO THE COMMUNITY CARETAKING EXCEPTION

TO THE WARRANT REQUIREMENT, AND THUS SHOULD NOT HAVE

BEEN SUPPRESSED.

IV. EVEN IF A FOURTH AMENDMENT VIOLATION OCCURRED,

THE OFFICER ACTED IN GOOD FAITH IN SEIZING THE .380 CALIBER

JENNINGS PISTOL, AND APPLYING THE EXCLUSIONARY RULE IN

THIS CASE WOULD NOT CREATE THE DETERRENT EFFECT

NECESSARY TO JUSTIFY SUPPRESSION OF THE EVIDENCE.

I.

{¶12} In the first assignment of error, the State maintains the trial court erred in

granting Appellee’s motion to suppress the .380 caliber Jennings pistol as Appellee lacks

standing to contest the seizure of stolen property.

{¶13} “Appellate review of a motion to suppress presents a mixed question of law

and fact.” State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. In

ruling on a motion to suppress, “the trial court assumes the role of trier of fact and is

therefore in the best position to resolve factual questions and evaluate the credibility of
Delaware County, Case No. 16CAA090041 6

witnesses.” Id., citing State v. Mills, 62 Ohio St.3d 357, 366, 582 N.E.2d 972 (1992). On

appeal, we “must accept the trial court's findings of fact if they are supported by

competent, credible evidence.” Id., citing State v. Fanning, 1 Ohio St.3d 19, 20, 437

N.E.2d 583 (1982). Accepting those facts as true, we must then “independently determine

as a matter of law, without deference to the conclusion of the trial court, whether the facts

satisfy the applicable legal standard.” Id.

{¶14} Recently, this Court held in State v. Nicholson, Stark App. No.

2016CA00210, 2017-Ohio-2825,

The Fourth Amendment to the United States Constitution and Article

I, Section 14 of the Ohio Constitution provide for “[t]he right of the people to

be secure * * * against unreasonable searches and seizures * * *.” Searches

and seizures conducted without a prior finding of probable cause by a judge

or magistrate “are per se unreasonable under the Fourth Amendment,

subject to only a few specifically established and well-delineated

exceptions.” California v. Acevedo, 500 U.S. 565, 111 S.Ct., 1982 (1991);

State v. Tincher, 47 Ohio App.3d 188, 548 N.E.2d 251 (1988).

If the government obtains evidence through actions that violate an

accused's Fourth Amendment rights, that evidence must be excluded at

trial. State v. LeMaster, 4th Dist. No. 11 CA3236, 2012–Ohio–971, 2012 WL

762542, ¶ 8. “‘Standing is defined as a party's right to make a legal claim or

seek a judicial enforcement of a duty or right.’” Coleman v. Davis, 4th Dist.

No. 10CA5, 2011–Ohio–506, 2011 WL 345772, ¶ 16, citing State ex rel.
Delaware County, Case No. 16CAA090041 7

Butler Twp. Bd. of Trustees v. Montgomery Cty. Bd. of Commrs., 124 Ohio

St.3d 390, 922 N.E.2d 945, 2010–Ohio–169, at ¶ 19, quoting Ohio Pyro,

Inc. v. Ohio Dept. of Commerce, 115 Ohio St.3d 375, 875 N.E.2d 550,

2007–Ohio–5024, at ¶ 27 (other internal quotation omitted). “‘Whether

established facts confer standing to assert a claim is a matter of law.’”

Cuyahoga Cty. Bd. of Commrs. v. State, 112 Ohio St.3d 59, 858 N.E.2d

330, 2006–Ohio–6499, at ¶ 23, quoting Portage Cty. Bd. of Commrs. v.

Akron, 109 Ohio St.3d 106, 846 N.E.2d 478, 2006–Ohio–954, at ¶ 90. “‘We

review questions of law de novo.’” State v. Elkins, 4th Dist. No. 07CA1,

2008–Ohio–674, at ¶ 12, quoting Cuyahoga Cty. Bd. of Commrs. at ¶ 23;

see, also, Bridge v. Midas Auto Experts # 322, 8th Dist. No. 94115, 2010–

Ohio–4681, at ¶ 6 (“The question of standing is an issue of law, which we

review de novo.”) (citation omitted).

Modern understandings of the Fourth Amendment recognize that it

serves to protect an individual's subjective expectation of privacy if that

expectation is reasonable and justifiable. Rakas v. Illinois, 439 U.S. 128,

143, 99 S.Ct. 421 (1978); Katz v. United States, 389 U.S. 347, 381, 88 S.Ct.

507 (1967) (Harlan, J., concurring); State v. Buzzard, 112 Ohio St.3d 451,

860 N.E.2d 1006 (2007).

Moreover, an individual must have standing to challenge the legality

of a search or seizure. Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421 (1978);

State v. Coleman, 45 Ohio St.3d 298, 544 N.E.2d 622 (1989). The person

challenging the search bears the burden of proving standing. State v.
Delaware County, Case No. 16CAA090041 8

Williams, 73 Ohio St.3d 153, 652 N.E.2d 721 (1995). That burden is met by

establishing that the person has an expectation of privacy in the place

searched that society is prepared to recognize as reasonable. Id; Rakas v.

Illinois, supra.

{¶15} A defendant lacks standing to challenge a search where he has no

legitimate expectation of privacy in the place searched or the contents seized. United

States v. Hargrove, 647 F.2d 411 (4th Cir. 1981); see Rakas v. Illinois, 439 U.S. 128, 143-

44 & n. 12, 99 S.Ct. 421, 430-31 & n.12, 58 L.Ed.2d 387 (1978); United States v. Hensel,

672 F.2d 578 (6th Circuit 1982). A defendant must have a possessory interest in the items

seized and also an expectation of privacy in the area searched. Rakas v. Illinois (1978),

439 U.S. 128, and United States v. Salvucci (1980), 448 U.S. 83,

{¶16} In State v. Dubose, 164 Ohio App. 3d 698, 706, 843 N.E.2d 1222, 1229,

2005-Ohio-6602, ¶¶ 35-36, the Court held,

[A] person must also have some legitimate personal interest in the

place searched or thing seized in order to assert that his or her Fourth

Amendment privacy rights were violated. Although this is often referred to

as the requirement that the person have “standing” to raise the

constitutional violation, there is no additional legal analysis that is applied

to determine the person's standing. The only question to be answered is

whether the person had a legitimate expectation of privacy in the place
Delaware County, Case No. 16CAA090041 9

searched or item seized. If a person has no possessory or property interest

in the place searched or item seized, it is often difficult to establish that a

legitimate expectation of privacy has been violated. In these situations it is

sometimes said that the person has no standing to raise the constitutional

violation.

The principle that rights assured by the Fourth Amendment are

personal rights which may be enforced by exclusion of evidence only at

issuance of one whose own protection has been infringed by the search

and seizure is best analyzed by focusing on extent of particular defendant’s

rights under Fourth Amendment; rather than on any theoretically separate,

but invariably intertwined concept of standing. Rakas, at Note 5.

A person aggrieved by an illegal search and seizure only through the

introduction of damaging evidence secured by search of a third person’s

premises or seizure of property does not have any of his Fourth Amendment

rights infringed. Rakas, supra at syllabus.

(Emphasis added.)

{¶17} A defendant need not prove legal ownership of the item to have standing to

challenge its seizure. Rather, the law requires only possession. The State may, without

legal contradiction, simultaneously maintain a defendant criminally possessed the seized

good, but was not subject to a Fourth Amendment deprivation. Rakas, supra; U.S. v.

Salvucci, 448 U.S. 83 (1980). It must be asked whether the defendant had an expectation
Delaware County, Case No. 16CAA090041 10

of privacy in the area searched, and also whether the defendant has a possessory interest

in the item seized. Salvucci, supra.

{¶18} A “search” occurs when an expectation of privacy that society is prepared

to consider reasonable is infringed. U.S. v. Jacobsen, 104 S.Ct. 1652, 466 U.S. 109

(1984). A “seizure” of property occurs when there is some meaningful interference with

an individual’s possessory interest in that property. Id.

{¶19} In this case, Appellee clearly demonstrated a Fourth Amendment interest in

the premises searched because he owned and occupied the residence. We find Appellee

also demonstrated a legitimate Fourth Amendment interest in the property seized, as he

demonstrated a possessory interest in the item at the time of the search. Appellee had

the firearm in his possession, under his dominion and control, in his attic, stored in a

cardboard box. He clearly had domination over the firearm at the time it was seized.

{¶20} Possession may be either actual or constructive. A person has constructive

possession of an item when he is conscious of the presence of the object and able to

exercise dominion and control over that item, even if it is not within his immediate physical

possession. State v. Dillard, 173 Ohio App. 3d 373, 387–88, 878 N.E.2d 694, 705, 2007-

Ohio-5651, citing, State v. Mabry, Montgomery App. No. 21569, 2007-Ohio-1895.

Dominion and control may be established solely through circumstantial evidence. State

v. Barnett, Montgomery App. No. 19185, 2002-Ohio-4961, 2002 WL 31105398, ¶ 11.

{¶21} At the suppression hearing, the State argued the Jennings firearm was not

subject to exclusion due to the plain view criminality of the firearm, and the good faith

exception. At the conclusion of the hearing on Appellee’s motion to suppress, the trial

court held,
Delaware County, Case No. 16CAA090041 11

THE COURT: All right. First of all, regarding the possessory interest issue,

the Court will find that the defendant had a possessory interest because it’s

his house. There isn’t any --- ***

And the Court’s satisfied that the weapon that appeared with the

sign-out sheet, the evidence sign-out sheet, was contraband and certainly

could have been seized at that point, even though it was outside the

parameters of the search warrant.

***

THE COURT: All right. What’s been marked—what’s Defendant’s Exhibit

A1 relates specifically to Mr. Elschlager’s residence and the search of his

residence, ***

Officer Parks testified that they went into the office area and the

exhibit, State’s Exhibit 1, showed a plastic bag with a weapon in it with

what he knew to be an evidence tracking form for their evidence, what’s

common for law enforcement officers in terms of keeping chain of custody

on evidence, and he knew right away that that shouldn’t be there in terms

of being contrary to protocol and had suspicion that also it—he possessed

that in violation of receiving stolen property statute and by virtue of it being

in his home probably tampering with evidence. So they seized that

weapon and also there was a highway patrol representative there, Anne

Ralston, who acknowledged it shouldn’t be there.

Then they found another weapon in the attic storage area, there

was an unopened case of ammunition that was – had the address of the
Delaware County, Case No. 16CAA090041 12

Ohio State Highway Patrol Academy, and then an open box of

ammunition, and next to that was a cardboard box which had the .380,

Jennings .380, in it and they further seized that weapon.

There was some testimony about seizing the weapon in anticipation

of a CPO, but there wasn’t any CPO or TPO issued at the time of the

search.

The Court finds that the officer certainly could have gone back to

the Court and asked for a further warrant for that item and/or the

ammunition, and they didn’t do that. It exceeds the search parameters set

forth in the warrant, and because the warrants have to be, you know,

particular and specific and this was, and this was something that’s not—by

looking at it, you wouldn’t know whether that was a personal weapon or

not a person weapon.

So with that, the Court will grant the motion in part, suppress the

use of that weapon as far as evidence, being the Jennings.

Suppression Hearing, Tr. at 76; 80-83.

{¶22} The trial court’s Judgment Entry states,

The Jennings weapon discovered in a box in the attic was not on the

search warrant. Possession of the weapon did not appear to be a violation

of any law as contraband. That evidence was suppressed as evidence.
Delaware County, Case No. 16CAA090041 13

{¶23} We find the trial court correctly held Appellee had standing to challenge the

search of his residence and the seizure of the Jennings firearm. The first assignment of

error is overuled.

II.

{¶24} In the second assigned error, the State maintains the trial court erred in

granting the motion to suppress as to the Jennings firearm, as the firearm was seized in

plain view.

{¶25} Under the plain view exception to the search warrant requirement, police

may seize items in plain view during a lawful search, if (1) the seizing officer is lawfully

present at the place from which the evidence can be plainly viewed; (2) the seizing officer

has a right of access to the object itself; and (3) the object's incriminating character is

immediately apparent. Horton v. California (1990), 496 U.S. 128, 136–37. The Ohio

Supreme Court has held the “immediately apparent” requirement of the “plain view”

doctrine is met when police have probable cause to associate an object with criminal

activity. State v. Halczyszak (1986), 25 Ohio St.3d 301, 496 N.E.2d 925. In ascertaining

the required probable cause, police officers may rely on their specialized knowledge,

training and experience. Id.

{¶26} We find the incriminating nature of the Jennings firearm was not

immediately apparent to the officers conducting the search. The officers did not have

probable cause to associate the firearm with a criminal purpose. Rather, Appellee carried

a firearm as part of his job responsibilities. Multiple firearms were located in the

residence, as well as, ammunition.
Delaware County, Case No. 16CAA090041 14

{¶27} Unlike the Steyer Mannlicher firearm, the Jennings firearm did not have an

evidence tag putting the officers on notice the firearm was unlawfully possessed. The

firearm was not immediately apparent as incriminating evidence or contraband, and

testimony at the suppression hearing established the officers could not readily identify the

firearm as a stolen possession.3

{¶28} The second assignment of error is overruled.

III.

{¶29} In the third assignment of error, the State asserts the seizure of the

Jennings firearm was justified under the community caretaking exception. Specifically,

the State maintains the firearm was properly seized as a protection order was likely to be

granted in favor of A.B., and the officers seized the firearm to assure A.B.’s safety and

the safety of the community as a whole.

{¶30} In State v. Leak, 145 Ohio St. 3d 165, 169–70, 47 N.E.3d 821, 827–28,

2016-Ohio-154, the Ohio Supreme Court held,

This function is “totally divorced from the detection, investigation, or

acquisition of evidence relating to the violation of a criminal statute.” Id. at

441, 93 S.Ct. 2523. In the interest of public safety, as part of the community-

caretaking function of police, vehicles are frequently taken into police

custody. Opperman, 428 U.S. at 368, 96 S.Ct. 3092, 49 L.Ed.2d 1000, citing

Cady at 441, 93 S.Ct. 2523. Examples of vehicles taken into custody as part

of law enforcement's community-caretaking role include those that have

been in accidents, those that violate parking ordinances, those that are

3
We find the circumstances surrounding the seizure of the Steyr Mannlicher pistol add little, if anything, to
support the suspicion the Jennings firearm was illegally possessed.
Delaware County, Case No. 16CAA090041 15

stolen or abandoned, and those that cannot be lawfully driven. See Id. at

368–369, 96 S.Ct. 3092. The authority of police to seize and remove from

the street vehicles that impede traffic or threaten public safety and

convenience is beyond challenge. Id. at 369, 96 S.Ct. 3092.

Inventory searches performed pursuant to standard police procedure

on vehicles taken into police custody as part of a community-caretaking

function are reasonable. Id. at 373, 96 S.Ct. 3092.

{¶31} Here, the search was not conducted as part of a vehicle or inventory search,

nor was the search pursuant to an issued civil protection order or temporary protection

order. While the State provided testimony as to the established procedure of the

Washington County Sheriff’s Department relative to the seizure of firearms when a

protection order has been granted, a protection order had not been issued or heard by a

court. Rather, the Washington County Sheriff’s Office obtained the warrant for recovery

of items stolen from A.B., including a silver ring and bottle of perfume. The search warrant

provided for the seizure of other documents and records, electronic or otherwise,

pertaining to menacing by stalking, telecommunications harassment, abduction, unlawful

restraint, theft, receiving stolen property and breaking and entering. The warrant does not

provide for the seizure of firearms.

{¶32} We do not find the Jennings .380 pistol properly seized pursuant to the

community caretaking exception to the warrant requirement.

{¶33} The third assignment of error is overruled.
Delaware County, Case No. 16CAA090041 16

IV.

{¶34} In the fourth assignment of error, the State argues the officers acted in good

faith in seizing the .380 Jennings firearm; therefore, the exclusionary rule should not

apply.

{¶35} In United States v. Leon (1984), 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d

677, the United States Supreme Court established a good faith exception to the

exclusionary rule. The Leon court held:

This is particularly true, we believe, when an officer acting with

objective good faith has obtained a search warrant from a judge or

magistrate and acted within its scope. (Footnote omitted.) In most such

cases, there is no police illegality and thus nothing to deter. It is the

magistrate's responsibility to determine whether the officer's allegations

establish probable cause and, if so, to issue a warrant comporting in form

with the requirements of the Fourth Amendment. In the ordinary case, an

officer cannot be expected to question the magistrate's probable-cause

determination or his judgment that the form of the warrant is technically

sufficient. ‘[O]nce the warrant issues, there is literally nothing more the

policeman can do in seeking to comply with the law.’ Id. [Stone v. Powell],

428 U.S. [465], at 498, 96 S.Ct. [3037], at 3054 [49 L.Ed.2d 1067 (1976) ]

(BURGER, C.J., concurring). Penalizing the officer for the magistrate's
Delaware County, Case No. 16CAA090041 17

error, rather than his own, cannot logically contribute to the deterrence of

Fourth Amendment violations. (Footnote omitted.)

We conclude that the marginal or nonexistent benefits produced by

suppressing evidence obtained in objectively reasonable reliance on a

subsequently invalidated search warrant cannot justify the substantial costs

of exclusion. We do not suggest, however, that exclusion is always

inappropriate in cases where an officer has obtained a warrant and abided

by its terms. ‘[S]earches pursuant to a warrant will rarely require any deep

inquiry into reasonableness,’ Illinois v. Gates, 462 U.S. [213], at 267, 103

S.Ct. [2317], at 2347 [76 L.Ed.2d 527 (1983)] (WHITE, J., concurring in

judgment), for ‘a warrant issued by a magistrate normally suffices to

establish’ that a law enforcement officer has ‘acted in good faith in

conducting the search.’ United States v. Ross, 456 U.S. 798, 823, n. 32,

102 S.Ct. 2157, 2172, n. 32, 72 L.Ed.2d 572 (1982). Nevertheless, the

officer's reliance on the magistrate's probable-cause determination and on

the technical sufficiency of the warrant he issues must be objectively

reasonable, cf. Harlow v. Fitzgerald, 457 U.S. 800, 815–819, 102 S.Ct.

2727, 2737–2739, 73 L.Ed.2d 396 (1982), (Footnote omitted) and it is clear

that in some circumstances the officer (Footnote omitted) will have no

reasonable grounds for believing that the warrant was properly issued.
Delaware County, Case No. 16CAA090041 18

{¶36} It is undisputed the officers herein acted in justifiable reliance on the search

warrant in conducting their search of the premises. The warrant has not been proven to

be defective or insufficient. Rather, the officers seized the Jennings firearm maintaining

the plain view criminality of the item. The warrant did not provide for seizure of firearms.

Accordingly, the seizure does not fall within the parameters of the good faith exception.

{¶37} The fourth assignment of error is overruled.

{¶38} The judgment of the Delaware County Court of Common Pleas is affirmed.

By: Hoffman, J.

Delaney, P.J. and

Wise, Earle, J. concur