COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72299 STATE OF OHIO : : JOURNAL ENTRY PLAINTIFF-APPELLEE : : AND v. : : OPINION HENRY FORD : : DEFENDANT-APPELLANT : : DATE OF ANNOUNCEMENT OF DECISION: APRIL 2, 1998 CHARACTER OF PROCEEDING: Criminal appeal from Court of Common Pleas, Case No. CR-345810. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellee: Stephanie Tubbs Jones Cuyahoga County Prosecutor Lisa Reitz Williamson Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-appellant: James R. Willis, Esq. Courthouse Square Building, #595 310 Lakeside Avenue, N.W. Cleveland, Ohio 44113 -2- SWEENEY, JAMES D., J.: Defendant-appellant HenryFord appeals from his conviction for possession of cocaine greater than 25 grams, but less than 100 grams, in violation of R.C. 2925.11. Subsequent to the appellant's guilty plea, he was sentenced to a term of incarceration of seven years, fined $2,500.00, and placed on five years of post-release control. The appellant sets forth one assignment of error: WHILE AN AFFIDAVIT FOR A SEARCH WARRANT MAY BE BASED ON INFORMATION SUPPLIED BY AN INFORMANT, OR INFORMANTS, THE AFFIDAVIT ITSELF MUST BE SELF-SUFFICIENT AND MUST SET FORTH A SUBSTANTIAL BASIS FOR CREDITING THE HEARSAY. The appellant was arrested subsequent to the execution of a search warrant. Prior to trial, the appellant filed a motion to suppress evidence which was denied by the trial court. After reserving his right to appeal, the appellant entered his plea of guilty. The sole issue raised by the appellant is the validity of the search warrant. In the affidavit supporting the search warrant, Cleveland Police Sergeant Raymond Gercar affirmed the following relevant facts: 1. Within the past seventy-two hours, affiant received information from an anonymous citizen that a male at the above described premises by the name of Henry Ford was dealing in drugs. The caller said that a scale and small amount of powder cocaine were in plain view in the premises. The caller also told affiant that Ford was expecting a shipment of cocaine. 2. Within the past twenty-four hours, affiant received a telephone call from Crime Stoppers that a caller identified Henry Ford, at the -3- above described premises as just receiving approximately one kilogram of powdered cocaine. The caller then spoke with affiant and informed affiant that the seller was a black male, approximately 5'8" tall, 260 pounds, with a mustache and beard. The caller also told affiant that Ford had a previous arrest for drug activity. This caller was a different party from the first caller who identified Ford. Furthermore, affiant does not have any information that the two callers have any connection or knowledge of the other. 3. In furtherance of the investigation, affiant obtained utility information on the above described premises and learned that utility service to the premises is in the name of Emma Ford, Phone service (761-1944) is listed to Emma Ford. 4. Affiant also learned that Ford was previously arrested by members of the Narcotics unit and convicted of drug abuse. In CR312432, Ford was sentenced to a term of 6 months imprisonment. The appellant asserts that the affidavit recites hearsay which was supplied by anonymous sources. The appellant argues that the affidavit fails to meet the requirements of Crim.R. 41(C) because the reliability of the sources was not established and because the affidavit fails to set forth the basis of the sources' information. When reviewing the sufficiency of probable cause in an affidavit submitted in support of a search warrant issued by a magistrate, the duty of a reviewing court is simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed. State v. George (1989), 45 Ohio St.3d 325, at syllabus 2, citing to Illinois v. Gates (1983), 462 U.S. 213. Great deference should be accorded to the magistrate's determination, and -4- doubtful or marginal cases should be resolved in favor of upholding the warrant. Id. Also in George, supra, the Ohio Supreme Court adopted the tests set forth by the United States Supreme Court for the requirements of an affidavit supporting a search warrant, Gates, supra, and for an exception to the exclusionary rule where the affidavit is not sufficient, United States v. Leon (1984), 468 U.S. 897. The George Court held at syllabus 1: In determining the sufficiency of probable cause in an affidavit submitted in support of a search warrant, [t]he task of the issuing magistrate is simply to 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 [1983], 462 U.S. 213, 238-239, followed.) Thus, this court must review the affidavit with deference to the trial court, and must apply a common-sense approach to determining whether all of the surrounding circumstances supported the probability that the appellant's home would contain contraband or evidence of a crime. While wholly conclusory statements will fail to meet this requirement, Gates, supra, this court is cognizant that the totality of the circumstances test is used in these instances in order that the trial court have flexibility. Id. In Gates, supra, the Supreme Court acknowledged that informant's tips, like all other clues and evidence coming to a policeman on the scene, may vary greatly in their value and -5- reliability. The court abandoned the rigid application of veracity or reliability and basis of knowledge found in Aguilar v. Texas (1964), 378 U.S. 108 and Spinelli v. United States (1969), 393 U.S. 410, and instead found that probable cause is a fluid concept. Rather than view these concepts as independent tests, the Supreme Court found that a deficiency in one may be compensated for by a strong showing in the other, or by some other indicia of reliability. In the case sub judice, Sergeant Gercar affirmed that he received two anonymous tips. The first tipster gave the following information: 1) appellant's correct name; 2) appellant's address, 895 East 130thStreet; 3) an allegation that the appellant dealt in drugs; 4) an allegation that scales for measuring and cocaine powder were in plain view inside 895 East 130th Street; and, 5) an allegation that the appellant was expecting a shipment of cocaine. The second tip imparted: 1) appellant's correct name; 2) appellant's address, 895 East 130th Street; 3) an allegation that the appellant dealt in drugs; 4) an accurate physical description of the appellant; 5) an allegation that the appellant had a prior drug related arrest; and, 6) an allegation that the appellant had received a shipment of cocaine that weighed one kilo. Additionally,Officer Gercar affirmed that the second tipster was a different party than the first; and that he has no knowledge that the two callers have any connection to, or knowledge of, each other. -6- This court is forced to find that these facts are insufficient to find probable cause to issue a search warrant. This affidavit contains no indication that either informant was reliable. There is no indication that either tipster was previously known to the police, had previously provided reliable information, or was an ordinary honest citizen with no connection to the criminal world. Equally, there is no statement in the affidavit regarding the tipsters' basis of knowledge. For example, there is no indication that the tipsters personally viewed the drugs, were ever inside the appellant's house, or even knew the appellant. There is no statement in the affidavit which indicates how the first tipster knew a shipment was expected, and no indication as to how the second tipster knew the appellant received a kilo of cocaine. That the police were able to confirm certain facts of public information, such as the utilities for the house being paid by someone with the same surname as the appellant and ascertaining that the appellant had a prior conviction, is not sufficient to turn an otherwise defective affidavit into one which is sufficient. The affidavit simply had to have more basic facts which would be known only to the informant, more detailed facts regarding the illegal transactions, and some minimal demonstration of the reliability of the sources of information. Having determined that the search warrant affidavit did not furnish the magistrate with a substantial basis for determining that there was probable cause to search appellant's home, this court must next determine whether the search should be upheld based -7- upon the good faith exception to the exclusionary rule set forth in Leon, supra. In the third syllabus of George, surpa, the Ohio Supreme Court held: The Fourth Amendment exclusionary rule should not be applied so as to bar the use in the prosecution's case-in-chief of evidence obtained by officers acting in objectively reasonable reliance on a search warrant issued by a detached and neutral magistrate but ultimately found to be unsupported by probable cause. (United States v. Leon [1984], 468 U.S. 897, followed.) This court in State v. Blackshaw (May 29, 1997), Cuyahoga App. No. 70829, unreported, noted that the reason for such an exception was explained in Leon, supra at 919-921: The deterrent purpose of the exclusionary rule necessarily assumes that the police have engaged in willful, or at the very least, negligent conduct which has deprived the defendant of some right. * * * Where the official action was pursued in complete good faith, however, the deterrence rationale loses much of its force. 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. In most such cases, there is no police illegality and nothing to deter. * * * In the ordinary case, an officer cannot be expected to question the magistrate's probable-cause determinationor his judgment that the form of the warrant is technically sufficient. * * * Penalizing the officer for the magistrate's error, rather than his own, cannot logically contribute to the deterrence of Fourth Amendment violations. It is clear that the officer's reliance on the magistrate's probable cause determination must be objectively reasonable , Leon, supra at 922; Blackshaw, supra. Therefore, the good faith -8- exception does not apply when: 1) the judge was misled by the information in an affidavit that the affiant knew was false; 2) the judge wholly abandoned the judicial role; 3) an officer purports to rely on an affidavit so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable; or 4) depending on the circumstances of the particular case, the warrant may be so facially deficient i.e., in failing to particularize the place to be searched or the things to be seized that the executing officers cannot reasonably presume it to be valid. Id. None of these four situations apply to the case herein. There is absolutely not one shred of evidence to suggest that the affiant provided false information; that the judge abandoned the judicial role; or that the warrant was facially deficient. It could be argued that the indicia of probable cause was so lacking as to render official belief in its existence entirely unreasonable, however, this argument, too, must be rejected given the amount of information the officer did possess and the fact that the police placed the information before an impartial judge in an attempt to follow the requirements of the Fourth Amendment. While this court must unfortunately find that the affidavit itself was insufficient to support a finding of probable cause to issue a search warrant, the warrant is nonetheless valid as a good faith exception to the exclusionary rule. The trial court did not err in denying the appellant's motion to suppress. The appellant's assignment of error is overruled. Judgment affirmed. It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. TERRENCE O'DONNELL, P.J., CONCURS IN JUDGMENT ONLY; DIANE KARPINSKI, J., CONCURS WITH CONCURRING OPINION ATTACHED. ______________________________ JAMES D. SWEENEY JUDGE 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 STATE OF OHIO : : : Plaintiff-Appellee : : CONCURRING v. : : OPINION HENRY FORD : : : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION: APRIL 2, 1998 KARPINSKI, J., CONCURRING: I concur in the majority's holding that the police had an objectively reasonable belief that their search was authorized by a valid warrant to qualify under the good faith exception to the exclusionary rule. (Ante at pp. 7-9.) As a result, it is unnecessary to determine whether there was a sufficient basis to issue the warrant. It is well-established that reviewing courts have discretion whether to evaluate the constitutional validity of a warrant prior to determining the good faith of the officers. United States v. Leon (1984), 468 U.S. 897; State v. Johnson (Jan. 30, 1989), Clinton App. No. 88-02-002, unreported at pp. 3-4. Thus, contrary to the majority's assertions, neither is this court forced to nor must it make a finding on the validity of the particular warrant in this case. (Ante at pp. 6, 9.) The sufficiency of the affidavit to establish probable cause in this case is debatable. The two independent tips, which admittedly could have been more detailed, were corroborated in part by each other and by independent investigation. Even if one were .