
    The State of Ohio v. Sperry et al.
    
      (Nos. 74-CR-912 and 74-CR-913
    Decided September 6, 1974.)
    Common Pleas Court of Montgomery County.
    
      Mr. James M. Connell, prosecuting attorney, and Mr~ James A. Wilson, for plaintiff.
    
      Mr. Konrad Kucsah, for defendants.
   Rice, J.

The captioned causes came on to be heard upon, identical motions, to, suppress filed by the defendants,, through counsel, each of said motions seeking orders of the-court suppressing:

1. Any testimony of the officers as to observations made-by them while inside the home.of the defendants;

2. Any exculpatory or inculpatory statements of the-defendants which were obtained as a result of the entry and search of the defendants’ home;

3. Any substances or containers believed to be or to-contain drugs, narcotics, vegetable substances, and/or apparatus for injecting, consuming or using same.

No evidentiary hearing,was held upon the aforesaid motions as both counsel agreed to submit same to the court based upon a transcript of the defendants’ preliminary-hearing in the Vandalia Municipal Court.

Upon due consideration of the evidence adduced at said, preliminary hearing, as well as upon a .thorough consideration of the law applicable to those facts and of the law construing the Fourth Amendment to the United States Constitution, this court is of the opinion that the aforementioned motions are WELL TAKEN and the court does, therefore, SUSTAIN same in their entirety.

In so ruling, the court makes the following, non-exclusive, observations: ,

1. Deputy Edward Stoner and others from the Montgomery County Sheriff’s- Office, upon receipt of information from an informant to the effect that he had personally observed, moments before,-violations of the narcotics law -and that: ‘‘ [T]here was some kind óf a party going on there, and that there would be a quantity of drugs, more specifically, the quantity of drugs would be in a red bucket, and the •red bucket would be located in the living room * * * with ■some growing marijuana in the kitchen area on the refrigerator, and * * * there would be a number of people there who .had been or would .be smoking marijuana * * * or some substance such as that, and [the informant] * * * gave us .an approximate number of people, from eight to ten that •would be in the home,” went to the residence in question, parked one-half block away and walked to the house on foot: The deputies and the informant agreed upon a prearranged plan whereby the latter was to enter the residence, give the deputies some thirty to sixty seconds to surround the house, whereupon Stoner was to knock on the door and be ádmitted by the informant as a member of the party-goers. As the deputies approached to within six feet of the house (after first having had to jump behind some panel trucks to hide from some people leaving the party), a person opened the door, looked out, slammed the door and yelled that “the cops are all around.” Deputy Stoner heard noises of running around the house and rushing from the front room into the bedroom area and some conversation concerning “getting rid of some things.” At that time, the deputies opened the door “real quickly” and Stoner knocked on the door and someone yelled, from inside, “get rid of it.” Receiving no answer' to his knock, Stoner opened the door (presumably, from his testimony, a second time) and observed people running all over the house. Once inside the house, the officers observed and seized the articles which are- the subject of the indictment (narcotics, marijuana plants, etc.) and which aré sought to be suppressed. After the discovery of these items, the defendants were arrested by the. Sheriff’s deputies.

. There is some evidence that a neighbor reported to Deputy Stoner that he had heard a shot being fired. However, Deputy Stoner testified that the firing of the shot was not the pretext upon which the deputies went into the house.

2. The Fourth Amendment to the United States Constitution states:

■ “The right of the people to be secure in their persons,, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue but upon probable cause, supported by oath or affirmation and particularly, describing the place to be searched,, and the persons or things to be seized.”

Only unreasonable searches and seizures are prohibited. Harris v. United States (1947), 331 U. S. 145.

3. “The Fourth Amendment to the United States.Constitution insures the right of people to be secure in their persons, houses, papers and effects, free from unreasonable searches and seizures. All evidence obtained by searches in violation of the Fourth Amendment is inadmissible in state courts. Mapp v. Ohio (1961), 367 U. S. 643. Searches conducted outside the judicial process, without a warrant, are per se unreasonable, subject to a few specifically established exceptions. Katz v. United States (1967), 389 U. S. 347, 357, and cases cited therein.” Athens v. Wolf (1974), 38 Ohio St. 2d 237.

“* * * Searches conducted without warrants have been held unlawful ‘notwithstanding facts unquestionably showing probable cause’ Agnello v. United States, 269 U. S. 20, 33, for the Constitution requires ‘that the deliberate, impartial judgment of a judicial officer ... be interposed between the citizen and the police. . . .’ Wong Son v. United States, 371 U. S. 471, 481-482. ‘Over and again this Court has emphasized that the mandate of the [Fourth] Amendment requires adherence to judicial processes,’ United States v. Jeffers, 342 U. S. 48, 51 [Stoner v. California, 376 U. S. 483] * * Katz v. United States, supra.

“* * * Any assumption that evidence sufficient to support a magistrate’s disinterested determination to issue a search warrant will justify the officers in making a search without a warrant would reduce the Amendment to a nullity and leave the people’s homes secure only in the discretion of police officers * * *.” Johnson v. United States (1948), 333 U. S. 10. 14.

.. 4. The judicially recognized exceptions to . the rule that searches conducted outside the judicial process, without a warrant, are. per se.unreasonable are: . ,

a. A search incident to a lawful arrest may be made without a warrant. United States v. Rabinowoitz (1950), 339 U. S. 56.

b. Consent signifying waiyer of Constitutional rights.

c. The stop and frisk doctrine. Terry v. Ohio (1968), 392 U. S. 1.

d. Hot pursuit. Warden v. Hayden (1967), 387 U. S. 294.

. e. Probable cause to search plus exigent circumstances (emergency circumstances) may justify a search without a warrant. This doctrine has generally been used in the ease of automobiles which are or may be quickly removed from the jurisdiction. Carroll v. United States (1925), 267 U. S. 132; Chambers v. Maroney (1970), 399 U. S. 42; Coolidge v. New Hampshire (1971), 403 U. S. 443. However, the doctrine has been approved by the court in situar-tions in which the evidence in question is threatened to be removed or destroyed or the suspect, himself, is or gives signs of fleeing the jurisdiction prior to a warrant being able to be obtained. For cases stating the general rule, although not necessarily upholding the search in the specific instance, see:

Johnson v. United States, supra, which held that mere inconvenience and delay incident to securing a search warrant were not sufficient to validate warrantless search, in that there was no fleeing subject, moving vehicle, or contraband threatened to be removed; U. S. v. Jeffers, supra; Chapman v. United States (1961), 365 U. S. 610; McDonald v. United States (1948), 335 U. S. 451; Jones v. United States (1958), 357 U. S. 493; Vale v. Louisiana (1970), 399 U. S. 30, all holding that probable cause existed, but that the search was invalid due to the presence of no exigent or emergency circumstances.’

f. Non-protected areas (searches that .are not searches or ; seizures, without .searches such as situations in which the police are able to seize that which is .in plain view provided that they view the evidence seized from a position or place where they have a lawful and legal right to be.) Harris v. United States (1968), 390 U. S. 234, 236; United States v. McDaniel (D. C. Cir. 1957), 154 F. Supp. 1; Alderman v. United States (1969), 394 U. S. 165; Abel v. United States (1960), 362 U. S. 217.

5. The burden is upon those seeking the exemption (from the rule requiring all searches to be with search warrants issued upon probable cause) to show the need for it — to show that the facts and circumstances of the particular ease under consideration fall within one of the exceptions discussed above. United States v. Jeffers, supra; McDonald v. United States, supra; Chimel v. California (1969), 395 U. S. 752; Lego v. Twomey (1972), 404 U. S. 477, 488.

6. In the instant cases, the prosecution has failed to sustain its burden of proving that facts before the court justified the officers in proceeding without a search warrant issued upon probable cause. The prosecution has failed to show that the captioned causes fall within any of the judicially recognized exceptions to the basic rule requiring search warrants issued upon probable cause as a predicate for entering one’s home.

7. Clearly, no consent search, no stop and frisk or hot pursuit situation is involved here. Neither can it be logically argued that the search in question was incident to a lawful arrest since it is clear from Deputy Stoner’s testimony that the illegal entrance and the search and seizure of the property in question was accomplished before the arrest of the defendants. It is axiomatic that in order for a search to be deemed incident to a lawful arrest, such a search must be either contemporaneous with, or immediately following, an arrest. In addition, the deputies having arrested the defendant's in their home, without warrant or justification for dispensing with same, the arrest was unlawful and could not, under any theory, justify the search of the premises. Finally, even if the, arrest be deemed valid, it is clear that the deputies had exceeded the limits or proper scope of the search in seizing the evidence in question, under the rationale of Chimel v. California, supra.

8. The plain view doctrine cannot be held to apply in¡ the instant case as its application depends upon the officers’ observing the items in question from a vantage; point where they have a lawful right to be. In the instant, cases, .this court has. concluded.-that without a warrant, or .justification for proceeding without same, the officers., were illegally in the defendants’ residence from which vantage point they observed the items in plain view. In short, the officers had no right to be in the position to have; that view. ' ,

The only, conceivable . theory upon, which the state might base its rationale for this .search without benefit of a warrant would be that probable cause to search exisfed. under, the facts and circumstances of this case and that,.in addition thereto, certain emergency circumstances were, present that justified this warrantless intrusion into and search of the defendants ’ home. Assuming, arguendo, the. existence of probable cause and putting aside for a moment, the line of cases holding that a warrantless search, is per se unreasonable, regardless of the existence of probable-cause, Agnello v. United States, supra; Katz v. United. States, supra, it is clear that, such a theory is not a valid one under the facts and circumstances considered in the ease at bar.

.The only evidence which, in any way, might be construed to support such a theory is as follows:

“The cops are all around.”
..‘1 There was noises' of running around the house and rustling sound like from .the front room into the bedroom area of the house, from the way. we were facing it'. There ■was some yelling in the house, pertaining to getting rid .of some things, and at .that time, ¡we opened the door real, quickly and I knocked on, the door, and somebody .yelled, ‘Get rid of it.’ There was,no answer at .the door, and I opened the door and observed people, running all over the house.”

No questions were directed to Deputy Stoner which’ would enable this court to infer that the officers entered the premises to prevent the destruction of evidence. To the contrary, it appears-from the above-quoted language that Deputy Stoner had already opened the door prior to1 knocking and that at the same time he heard the yell “Get rid of it,” and, in addition, that the entering of the premises was, instead of an emergency matter to prevent the destruction of evidence, part of the plan agreed upon between the deputies and the informant which went awry when they (the deputies) were spotted by someone in the house.

Even if it be assumed that the deputies, by inferring from the language “Get rid of it,” that either evidence or implements of the crime were in danger of being destroyed or removed and that they, therefore, entered the premises to prevent the destruction of same, this warrantless search still runs afoul of the Constitutional protections of the Fourth Amendment. As stated in Johnson v. United States, supra (333 U. S. 10), at pages 13-15:

“The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime. Any assumption that evidence sufficient to support a magistrate’s disinterested determination to issue a search warrant will justify the officers in making a search without a warrant would reduce the Amendment to a nullity and leave the people’s homes secure only in the discretion of police officers * * *. The right of officers to thrust themselves into a home is also a grave concern, not only to the individual but to a society which chooses to dwell in reasonable security and freedom from surveillance. When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or government enforcement agent.”

The fact that narcotics and narcotics paraphernalia are involved, which might, be easily destroyed, does not, in and of itself, justify a warrantless search. Vale v. Louisiana, supra.

This court thus concludes that no exceptional circumstances were present in the instant case which would -have justified the officers in entering the premises without-first securing a. search warrant issued upon probable cause. ■

This warrantless search was conducted in the evening-hours, long after court had closed for the day and all good judges had retired to the peace and serenity of their homes. Officer Stoner indicated that he had no warrant because he hadn’t ample time to secure one before proceeding:to the residence in question. Whether this was because of the hour of the day or because of the desire to proceed uninterruptedly to follow-up on a hot tip given him by the informant is‘ not clear. Whatever his reasoning, such is not sufficient justification to proceed with a warrantless' search. It has long been a theory held by some members of law enforcement in this country that search warrants can be obtained only during court hours and that, if the need for one arises after hours and no judge can bo found to sign same, a warrantless search is eminently proper. Such has never been the law in this county or elsewhere. The requirement of a search warrant has no respect for. the court’s office hours. If one is required, as in this instance, one must be obtained, regardless of the inconvenience, the delay and the possible deleterious effect upon the eventual criminal prosecution of the person to be searched. The inconvenience or delay or even impossibility in obtaining a warrant is not sufficient reason to by-pass the Constitutional requirement of the Fourth Amendment which demands that a search be had, with certain exceptions' not; here relevant, with a search warrant issued by a magistrate upon probable cause. Johnson v. United Slates, supra.

Following the line of eases which hold that the existence of probable cause is of no relevancy in determining whether or not a warrant to search is required, supra, the court has not discussed whether or not the deputies bad probable cause to search the defendants’ residence on the night in .question. Suffice it to say that the court-feels that, probable, cause did not exist in this case. The decisions of, Aguilar v. Texas (1964), 378 U. S. 108, and Spinelli v. United States (1969), 393 U. S. 410, held in essence that an affidavit upon which a search warrant is issued must not only: state the conclusion of the affiant and the informant but must include facts from which the magistrate can find that the conclusions are warranted. In addition, said cases hold that facts must be included in the affidavit upon which the: search warrant is issued to allow the magistrate to conclude .that,the informant’s information is reliable and the; informant is credible-. The requirements for, determining probable cause in a search without a warrant are no less stringent. In the instant case, there is not sufficient evidence introduced in the record from which the court could conclude that the informant was credible or- that the informa-, tion was reliable. Obviously, if probable cause to search did not exist, the search of the premises in question would be invalid under any exception to the search, warrant requirement..

. ¡WHEREFORE, for the reasons as aforesaid, this court SUSTAINS the motions to suppress-.evidence .filed by the captioned defendants and orders the, following evidence, to be suppressed: ¡

1: Any .testimony of the officers as to observations made by them while inside the home of the defendants; .

'2. Any exculpatory or inculpatory statements of the. defendants which were obtained as a result of the- entry and search of the defendants’.home; ,. ,

' 3. Any substances or containers, believed to be or to contain drugs, narcotics, vegetable substances and/or apparatus for injecting, consuming; or using .same. . ■

Motions to suppress■ sustained.  