COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71353 STATE OF OHIO : : ACCELERATED DOCKET Plaintiff-appellant : : JOURNAL ENTRY -vs- : AND : OPINION EARNEST KINNEY : : PER CURIAM Defendant-appellee : : DATE OF ANNOUNCEMENT OF DECISION: MAY 1, 1997 CHARACTER OF PROCEEDING: Criminal appeal from Court of Common Pleas Case No. CR-337875 JUDGMENT: REVERSED AND REMANDED. DATE OF JOURNALIZATION: APPEARANCES: For plaintiff-appellant: For defendant-appellee: JOHN F. CORRIGAN, ESQ. WESLEY A. DUMAS, SR., ESQ. ASSISTANT COUNTY PROSECUTOR WESLEY A. DUMAS, SR. & ASSOC. 8th Floor, Justice Center 815 Superior Avenue, N.E. 1200 Ontario Street Suite 1711 Cleveland, Ohio 44113 Cleveland, Ohio 44114 - 2 - PER CURIAM: The State of Ohio appeals from the order of the trial court which suppressed evidence obtained in connection with the execution of a search warrant. For the reasons set forth below, we reverse and remand for further proceedings. On April 25, 1996, defendant was indicted for possession of cocaine with a furthermore clause alleging that he had previously been convicted of drug abuse in 1994, and possession of criminal tools. Defendant moved to suppress the state's evidence, in which he maintained that he was subjected to a general exploratory search in violation of his constitutional rights. The trial court held a hearing on the motion on September 10, 1996. The evidence of record demonstrates that on February 28, 1996, Cleveland Police Narcotics Det. Ronald Ehrbar obtained a search warrant for the apartment number 3 of 673 East 92nd Street. In his Affidavit for the warrant, Ehrbar averred that he had good cause to believe that drugs and related paraphernalia were at the apartment and the facts upon which this belief was based included the following: Affiant states that he has been a member of the Cleveland Police Department for (17) years. Affiant has been a Detective for more than three (3) years. Affiant states that he has received training in the recognition of controlled substances, the methods of packaging controlled substances on the street and the manner in which sellers of controlled substances operate and the detection of narcotics trafficking as his basic course in the police academy. Affiant states that he has made hundreds of arrests for violations of the State drug laws. - 3 - Affiant states that he has received information that the premises is being used for the sale of cocaine. Affiant states that during the past seventy-two (72) hours he has conducted surveillance of the above des- cribed premises during daytime and nighttime hours dur- ing which medium vehicular traffic approach, park, and persons enter the building, go to the second floor, stay less than five minutes and exit thereafter. In affiant's experience, this traffic pattern is indicative of traf- ficking in controlled substances. Within the past seventy-two hours, affiant contacted a Confidential Reliable Informant (CRI), who is known by the affiant and members of the Cleveland Police Depart- ment. CRI [made a controlled drug buy at the location.] *** Affiant states that in his experience narcotics are frequently carried or concealed on the person of the people who are present at a location where drugs are being used, kept or sold and that the size of usable quantities of drugs are small making it easy to conceal on the person. Affiant states that in his experience persons who traffic in illegal drugs keep records of drug trans- actions, at times using computers and that drug sales are facilitated and conducted through the use of telephonic means, including cellular phones, telephone paging systems, answering machines and answering machine tapes. Affiant states that in his experience persons who traffic in illegal drugs frequently keep weapons, such as firearms, on or about their person or within their possession for the purpose of guarding the illegal drugs and the large amounts of cash generated by the sale of said drugs and for use against law enforcement officials to prevent apprehension. (See Appendix). A warrant was subsequently issued which authorized him to search the "premises, its curtilage, common and storage areas and any person present therein" for cocaine and certain other related substances. The warrant was then executed later that night, while defendant, Earnest Kinney was on the premises. Defendant was subsequently searched and arrested after fourteen rocks of crack cocaine were discovered on his person. According to Det. Ehrbar, - 4 - defendant was searched because of the authority set forth within the search warrant. The trial court granted the motion indicating that it was constrained to accept the analysis set forth in State v. Tucker (1994), 98 Ohio App.3d 308. The state now appeals and assigns two errors for our review. The state's first assignment of error provides: THE SEARCH OF A PERSON NOT NAMED IN A WARRANT AUTHORIZING THE SEARCH OF A PLACE WHERE ILLEGAL ACTIVITIES ARE BEING CARRIED IN AND UNKNOWN PERSONS FOUND THEREIN MUST BE VIEWED IN LIGHT OF THE TOTALITY OF THE ALLEGATIONS IN THE AFFIDAVIT AND THE TOTALITY OF THE CIRCUMSTANCES. Within this assignment of error, the state maintains that State v. Tucker, supra, should not have been applied herein since this matter presents specific facts indicating that the premises was a crack house and that its frequenters carried or concealed weapons or drugs. In opposition, defendant asserts that the warrant failed to contain particularized facts justifying the search of any one individual. The Fourth Amendment to the United States Constitution provides: "The right of the people to be secure in their persons, houses, papers, and effects, against unreason- able searches and seizures, shall not be violated, and no Warrants shall issue, but on probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. - 5 - In Ybarra v. Illinois (1979), 444 U.S. 90, the Supreme Court held that in the course of executing a search warrant, police could not frisk all persons present in a public tavern merely due to their presence at that location. The court explained: There is no reason to suppose that, when the search warrant was issued on March 1, 1976, the authorities had probable cause to believe that any person found on the premises of the Aurora Tap Tavern, aside from 'Greg,' would be violating the law. The search warrant complaint did not allege that the bar was frequented by persons illegally purchasing drugs. It did not state that the informant had ever seen a patron of the tavern purchase drugs from 'Greg' or from any other person. Nowhere, in fact, did the complaint even mention the patrons of the Aurora Tap Tavern. But, a person's mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person. Sibron v. New York, 392 U.S. 40, 62-63, 88 S.Ct. 1889, 1902, 20 L.Ed.2d 917. Where the standard is probable cause, a search or seizure of a person must be supported by probable cause particularized with respect to that person. This requirement cannot be undercut or avoided by simply pointing to the fact that coinciden- tally there exists probable cause to search or seize another or to search the premises where the person may happen to be. The Fourth and Fourteenth Amendments protect the 'legitimate expectations of privacy' of persons, not places. See Rakas v. Illinois, 439 U.S. 128, 138-143, 148-149, 99 S.Ct. 421, 427-430, 433, 58 L.Ed.2d 387; Katz v. United States, 389 U.S. 347, 351- 352, 88 S.Ct. 507, 511, 19 L.Ed.2d 576. The Ybarra Court stated, however, that "we need not consider situations where the warrant itself authorizes the search of unnamed persons in a place and is supported by probable cause to believe that persons who will be in the place at the time of the search will be in possession of illegal drugs." Id., at 93, fn. 4. - 6 - Presently, the extent to which the rule announced in Ybarra pertains to searches of persons encountered during the execution of a narcotics search warrant in a private home remains unclear. See Guy v. Wisconsin (1993), 113 S. Ct. 3020, petition for writ of certiorari denied, Justice White dissenting: Specifically, the courts disagree over whether this Court's holding in Ybarra v. Illinois, 444 U.S. 85, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979), that police could not frisk all persons present in a public tavern while executing a search warrant based merely on their presence there applies where a search warrant for drugs is executed in a private home. The court below distin- guished Ybarra on the grounds that occupants found in a private residence, unlike those found in a public tavern, are "very likely" to be associated with any illegal narcotics activity on the premises and thus likely to be armed and dangerous. 172 Wis.2d at 98, 492 N.W.2d at 316; accord [State v.] Alamont [(R.I. 1990), 577 A.2d 665] at 668; [State v.] Zearley [(N.D. 1989), 444 N.W.2d 353] at 357. [People v.] Thurman [(1989)], 209 Cal.App.3d, at 824-825, 257 Cal.Rptr., at 520-521. The Washington Supreme Court in [State v.] Broadnax [(1982), 98 Wash.2d 289], however, rejected this reasoning and held Ybarra to be controlling. Broadnax, supra, 98 Wash.2d, at 295, 754 P.2d at 101. In my view, the issue is of significant practical importance to law enforcement officers executing search warrants and to the citizens they encounter while doing so. I would grant certiorari to resolve the constitu- tional question. Accord Michigan v. Little (1995), 106 S. Ct. 580, petition for writ of certiorari denied, Justice Burger dissenting: Ybarra in no sense controls this case. *** respondent Little was not a member of the public present in a public place. He and Johnson were the only two people present in a dwelling that a Magistrate had determined was probably a center of illicit drug activity. Upon entering Johnson's home, the police discovered packets of heroin which Johnson had attempted to dispose of, indicating that illicit drug activity had occurred as recently as moments before their entry. Evidence of such activity could have been placed on the - 7 - person of someone in the premises as easily as it could have been hidden in a dresser drawer. Under the circumstances, the police reasonably concluded that the nexus between respondent Little and the illicit drug activity was sufficiently close to give them probable cause to conduct a cursory search of respondent's person as part of their search of Johnson's home pursuant to a valid search warrant. Indeed, the Court has determined that in evaluating whether a search of third parties undertaken in connection with the execution of a warrant is constitutionally permissible, an essential issue is whether there is at least an implied judicial determination that police had probable cause to believe that someone in the home was committing a crime. See Maryland v. Buie (1990), 494 U.S. 325, 334, fn. 2. Within this state, we note that the Court of Appeals for Sandusky County determined in State v. Tucker, supra, that language within a search warrant for a suspected crack house which authorized the search of "all persons that are at the residence during the execution of the search warrant" did not sufficiently name or describe the person to be searched contrary to the requirements of Crim. R. 41(C), and contrary to the prohibition against general exploratory searches. Other courts considering this question have identified as paramount the question of whether the police are able to point to particular facts from which it may reasonably be inferred that the individual is armed and dangerous. See State v. Schultz (1985), 23 Ohio App.3d 130, 132; State v. Taylor (1992), 82 Ohio App.3d 434, 443. - 8 - Within this judicial district, this court has held that a search warrant for "narcotics, drug paraphernalia, records tending to establish the identity of persons in control of the premises *** and persons located therein" properly authorized the search of an individual on the premises when the warrant was executed. In State v. Bailey (October 5, 1989), Cuyahoga App. No. 55938, unreported, at 4-5, this court stated: *** [T]he affidavit for the warrant alleged that narcotic drugs were frequently carried or concealed on persons who were present on the premises. The warrant averred 'that articles of personal property and documents tending to establish the identity of persons in control of such premises;' were located therein. This court has conceded that a search warrant issued for the purpose of searching a person should describe that person, or give his name, if known; yet, where, it is not known who would be in charge of the place when searched, the validity of the warrant is not affected by the use of the name 'John Doe' thereon. State v. Young (1962), 91 Ohio Law Abs. 21, 24-25. Further, in Young, supra, this court stated that it could not logically be claimed, upon a search warrant for a place where alleged illegal acts are being carried on, that if the occupant of that place conceals the contra- band on his person, while evidence of other illegal activities is present, he is immune from search simply because that person is not named in the warrant. Id. at 35. Detective Falzone possessed a valid warrant enabling him to search the defendant and persons located on the premises. Although the police knew illegal activities were being conducted at 6422 Beaver Avenue, they did not know who was in charge of the activities. In this situation, the police had no other alternative but to phrase the warrant as phrased. The search of defendant after the VCR was found on the premises was not invalid because defendant was not specifically named in the warrant. Likewise, in this case, the search warrant was directed to a suspected drug house and specifically authorized the search of persons found therein. Such language is used where a search is - 9 - undertaken at premises used for suspected drug or gambling activities and there is a judicial determination that there is probable cause to believe that frequenters of the premises are engaged in such activity. See, e.g., State v. Eyer (1991), 74 Ohio App.3d 361, 364. In this instance, moreover, the record reveals that the premises were searched for drugs days prior to this incident and drugs sales persisted. Police then obtained the instant warrant in order to obtain evidence of drug activity and evidence of the identities of persons in control of the premises. There was a judicial determination that there is probable cause to believe that persons on the premises were engaged in illicit drug trade. Accordingly, and pursuant to this court's pronouncements in State v. Bailey, supra, we hold that the search was not invalid for failing to justify the search of any one individual. The state's first assignment of error is well-taken. Due to the conflict with the Court of Appeals for Sandusky County, however, and the paramount importance of this issue, we certify it to the Supreme Court for consideration pursuant to Article IV, Section 3(B)(4) of the Ohio Constitution. The state's second assignment of error which provides that the good faith exception to the exclusionary rule is applicable herein is moot and will not be addressed. App. R. 12(A)(1)(c). Judgment reversed and cause remanded. - 10 - APPENDIX Affiant states that he has been a member of the Cleveland Police Department for (17) years. Affiant has been a Detective for more than three (3) years. Affiant states that he has received training in the recognition of controlled substances, the methods of packaging controlled substances on the street and the manner in which sellers of controlled substances operate and the detection of narcotics trafficking as his basic course in the police academy. Affiant states that he has made hundreds of arrests for violations of the State drug laws. Affiant states that he has received information that the premises is being used for the sale of cocaine. Affiant states that during the past seventy-two (72) hours he has conducted surveillance of the above described premises during daytime and nighttime hours during which medium vehicular traffic approach, park, and persons enter the building, go to the second floor, stay less than five minutes and exit thereafter. In affiant's experience, this traffic pattern is indicative of traf- ficking in controlled substances. Within the past seventy-two hours, affiant contacted a Confidential Reliable Informant (CRI), who is known by the affiant and members of the Cleveland Police Department. CRI has provided information to affiant's partner, Det. Thomas Parkinson, over a period of many years that has led to the confiscation of large quantities of controlled substances, cash, and weapons. CRI was searched, and found to be free of money, drugs, and/or other contraband. CRI was then given a sum of United States currency from which the serial numbers had been recorded. CRI was taken to the vicinity of the above-described premises. Affiant observed CRI approach and enter the building, going to the second floor. CRI remained inside a short period of time after which CRI exited the premises and returned to the undercover vehicle. CRI handed affiant a quantity of off-white waxy material which was represented by the seller to be crack cocaine. CRI was again searched and found to be free of money, drugs, and/or contraband. CRI informed affiant that CRI went to the upstairs, north apartment, said apartment with the number 3 clearly visible on the entrance door, met with a black male, known as 'Big Nate', handed the male a sum of U.S. currency from which the serial numbers had been previously recorded and was given a quantity of the purported crack cocaine in exchange. The seller was described by CRI as a heavy set, black male, short in stature and approximately 40 years old. - 11 - The purported cocaine was submitted to SIU for testing. Test results were positive for cocaine, Lab #340060. Affiant states that in his experience narcotics are frequently carried or concealed on the person of the people who are present at a location where drugs are being used, kept or sold and that the size of usable quantities of drugs are small making it easy to conceal on the person. Affiant states that in his experience persons who traffic in illegal drugs keep records of drug transactions, at times using computers and that drug sales are facilitated and conducted through the use of telephonic means, including cellular phones, telephone paging systems, answering machines and answering machine tapes. Affiant states that in his experience persons who traffic in illegal drugs keep records of drug transactions, at times using computers and that drug sales are facilitated and conducted through the use of telephonic means, including cellular phones, telephone pagi ng systems, answering machines and answering machine tapes. Affiant states that in his experience persons who traffic in illegal drugs frequently keep weapons, such as firearms, on or about their person or within their possession for the purpose of guarding the illegal drugs and the large amounts of cash generated by the sale of said drugs and for use against law enforcement officials to prevent apprehension. Affiant avers that it is urgently necessary that the above mentioned premises be searched in the night season forthwith to prevent the above named property from being concealed or removed so as not to be found and for the safety of the police officers involved. - 12 - It is therefore considered that said appellant recover of said appellee their costs herein. It is ordered that a special mandate be sent to said Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. ______________________________ ANN DYKE, JUDGE ______________________________ LEO M. SPELLACY, JUDGE ______________________________ JAMES D. SWEENEY, CHIEF JUSTICE CONCURS IN JUDGMENT ONLY (SEE ATTACHED CONCURRING OPINION) N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the clerk per App.R. 22(E). See, also S.Ct.Prac.R. II, Section 2(A)(1). COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71353 STATE OF OHIO : : : : PLAINTIFF-APPELLANT : C O N C U R R I N G : vs. : O P I N I O N : EARNEST KINNEY : : : : DEFENDANT-APPELLEE : DATE: MAY 1, 1997 JAMES D. SWEENEY, C.J., CONCURRING: I concur in judgment only. As the majority opinion points out, the Fourth Amendment to the United States Constitution provides that the people of these United States have the right to be secure in their persons against unreasonable searches and seizures, and further, that Warrants shall particularly describe the place to be searched, and the persons or things to be seized. This court, along with others, has previously upheld the validity of warrants which permit a search for "any and all persons found therein". See State v. Bailey (Oct. 5, 1989), Cuyahoga App. No. 55938, unreported. -2- I would, however, indicate that while this type of warrant is arguably sufficient based upon the facts and circumstances found herein, the general blanked language is not sufficient in all circumstances. For example, had the officers been searching for stolen objects not easily concealable or transportable, i.e. televisions or vcr's, it would have to be concluded that the warrant was invalid as to that individual. In the case sub judice, the affidavit supporting the warrant was from an experienced officer trained in the recognition of controlled substances, the methods of packaging controlled substances, the manner in which sellers operate, and the detection of narcotics trafficking. The officer affirmed that: 1) surveillance of the premises in question revealed a traffic pattern indicative of trafficking in controlled substances; 2) there had been a recent controlled buy using a confidential reliable informant; 3) that narcotics are frequently carried or concealed on persons who are present; and, 4) the persons who traffic in illegal drugs frequently keep weapons on or about their persons or within their possession. The State has presented sufficient evidence that it was probable that anyone in the described place when the warrant was executed was involved in criminal activity. If the evidence in the affidavit had failed to support such a conclusion, then the search .