
    The State of Ohio v. Sizer.
    [Cite as State v. Sizer (1970), 25 Ohio Mise. 245.]
    (No. 29437
    Decided October 16, 1970.)
    Common Pleas Court of Montgomery County.
    
      Mr. Lee C. Falke, prosecuting attorney, for plaintiff.
    
      Mr. Leo A. Krebs, for defendant.
   Love, J.

This matter came on to be heard on the defendant’s joint motion to quash the arrest warrant and to suppress evidence seized from the person of the defendant on or about June 6, 1969, the stipulation of facts, the evidence upon a hearing and rehearing, the memoranda of counsel, and a motion for a division of the court’s decision and order of September 21, 1970.

The court granted the state’s motion for a division of the court’s decision and order of September 21, 1970, in a previous order of the court. The decision and order herein will be entered as an amended decision and order and will take the place of its decision and order entered jointly on September 21, 1970.

As to the motion to quash the arrest warrant, as in ease No. 29436, the file discloses that the defendant, on arraignment, entered his appearance by waiving the reading of the indictment and entering a plea of “not guilty.” Likewise, all defects were waived and a motion to quash, therefore, does not lie. R. C. 2941.59; Dowell v. Maxwell, 174 Ohio St. 289. The motion to quash is overruled.

Now, with respect to the motion to suppress the evidence seized from the person of the defendant at the time of his arrest, on or about June 6, 1969, the defendant asserts five grounds in support of his motion directed only to case No. 29437:

. (1) That, in contradiction of the recitation of the arrest warrant, no complaint was filed by the prosecuting attorney;

(2) That the warrant to arrest was not directed to a specific officer or department;

(3) That the warrant was not issued upon a finding of probable cause;

(4) That the warrant was not issued by a judicial officer; and

(5) That the affiant executing the affidavit in support of the warrant did not have reasonable grounds to believe that the defendant had committed a crime.

The state contends that the warrant was validly issued under the statutes of Ohio and that, even if it were invalid, the arresting officer, nevertheless, had probable cause to make the arrest without a warrant; therefore, the arrest and incident search resulting therefrom, were lawful.

(1) Defendant’s first ground has no merit. Regardless of any recitation in the warrant itself, the filing of an affidavit by either a police officer or a private citizen will support its issuance. R. C. 2935.09.

(2) As for defendant’s second ground, it is true that R. 0. 2935.18 requires that a warrant be directed to a specific officer or department and that the warrant in this case was not so directed but, rather, was directed to “The Chief of Police, Bailiff, or any other Law Enforcement Officer” of Montgomery County. However, the failure of the warrant to comply with the technical requirements of the statute did not prejudice the defendant in any way. Therefore, defendant’s second ground is also without merit.

(3) As for the defendant’s third ground, the Fourth Amendment to the United States Constitution clearly states that:

“* * 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.”

It is the contention of the state that this Amendment applies only to warrants for search and not for arrest. That this contention is incorrect is made clear by the decision of the United States Supreme Court in Giordenello v. U. S. (1958), 357 U. S. 480. There can be no determina^ tion of probable cause unless the person issuing the warrant has been informed of some of the underlying circumstances relied upon by the affiant. Aguilar v. Texas (1964), 378 U. S. 108. The affidavit supporting the warrant in the case at bar alleges only the statutory description of the offense charged. Furthermore, the issuing clerk’s own testimony indicated that no further information was communicated to her by the swearing officer. In fact, the clerk testified that she made no determination of probable cause before issuing a warrant but that this was up to the judge. Thus, the warrant in this case was not issued upon a finding of probable cause in the manner prescribed by the United States Supreme Court in the Aguilar case, and the defendant’s third ground is, therefore, well taken.

It is true that the Giordenello decision was based on the Federal Rules of Criminal Procedure and that the Aguilar decision related to search warrants; however, that the rules of both of these cases apply to arrest warrants issued under state criminal procedure statutes is made clear by the United States Supreme Court’s decision in Barnes v. Texas (1965), 380 U. S. 253. In the Barnes case, the court reversed a decision of the Texas Court of Criminal Appeals, which had upheld a warrant issued upon an affidavit which, like the one in the case at bar, merely recited the offense with which the defendant was being charged. The United States Supreme Court, in its per curiam decision, gave no reasoning but cited as authority both the Giordenello and Aguilar decisions. The facts of the Barnes case need not be included here but may be found in Barnes v. State (1964), 390 S. W. 2d 266.

(4) In view of the joint nature of defendant’s motions, the court felt impelled to rule on this item in view of the wording of R. C. 2935.10, as amended January 10, 1961, because the warrant to arest the defendant was issued by a deputy clerk of the Vandalia Municipal Court. Since the matter of probable cause was brought in issue attacking the constitutional validity of the arrest warrant, the court believed that said section which authorizes a clerk in a felony ease to exercise judicial authority was, to that extent, unconstitutional. The court still believes that such arrests in felony cases are in violation of the Fourth Amendment of the Constitution of the United States; however, since the decision and order of September 21, 1970, the court was made aware of the case of City of Euclid v. Heaton, 15 Ohio St. 2d 65, which declared R. C. 2945.67 to 2947.70, inclusive, unconstitutional. The fourth paragraph of the syllabus reads as follows:

“4. Sections 2945.67 to 2945.70, inclusive, Revised Code, are unconstitutional insofar as they permit the prosecutor in a criminal case to institute proceedings to review a judgment of the trial court, except where the judgment of such court decides ‘a motion to quash, a plea in abatement, a demurrer, or a motion in arrest of judgment,’ or the equivalent thereof.”

Thus, the court’s decision as to the unconstitutionality of R. C. 2985.10 would only have local application and would not be uniformly administered throughout the state of Ohio. This is not in the best interests of law enforcement and criminal justice throughout Ohio, although the court intends, by this amended decision which relegates item 4 to dicta, to warn law enforcement agencies of the constitutional problem which may be involved in the arrest stage of a criminal proceeding. It should be pointed out, however, that a judge, clerk or magistrate should not issue an arrest warrant under Ohio law in a felony case unless he has reason to believe that the affidavit was filed in good faith or that the claim is meritorious. Also, in spite of the Ohio law, the overall constitutional mandate is that such arrest warrants may be valid only if issued after a finding of probable cause. To this extent, the court is adamant in its holding as pointed out under item (3) above.

It is a good principle of constitutional law that where a court can dispose of a case without declaring a statute unconstitutional, it should do so and refrain from treating the constitutional issue. Greenhills Home Owners Corp. v. Village of Greenhills (1966), 5 Ohio St. 2d 207, paragraph one of the syllabus; Interstate Motor Freight System v. Bowers (1955), 164 Ohio St. 122, paragraph two of the syllabus, and State, ex rel. Clark, v. Cook (1921), 103 Ohio St. 465, paragraph one of the syllabus.

(5) Thus, since as already indicated, the warrant in this case was issued without a finding of probable cause, it was invalid and no arrest based upon it is lawful by virtue of the warrant. However, the state is correct in its contention that, where a warrant fails, the arrest may, nevertheless, be justified on other grounds. Giordenello v. U. S. (1958), 357 U. S. 480; U. S. v. White (1965), 342 F. 2d 379; U. S. v. Hall (1965), 348 F. 2d 837; Bell v. U. S. (1967), 371 F. 2d 35.

An arrest may be made without a warrant where the arresting party has reasonable ground to believe that a felony has been committed and that the person to be arrested committed such felony. It. C. 2935.04. Reasonable ground or probable cause for a warrantless arrest may be provided by the arresting officer’s own observations, credible information from a reliable informant, or corroborated information from a less than reliable informant. Draper v. U. S. (1959), 358 U. S. 307; Spinelli v. U. S. (1969), 393 U. S. 410. The facts giving rise to the arrest in this case as testified to by the arresting officer are as follows: On April 13, 1969, Linda Raisch called in an assault complaint against the defendant to the sheriff’s department of this county. A deputy was dispatched to her apartment, who, upon arriving, found Miss Raisch bleeding from head wounds which she indicated were the result of the defendant’s having assaulted her with a wine bottle. Thereupon, she took the deputy to a bedroom, opened a dresser drawer and removed and gave to the deputy a make-up bag containing three plastic vials containing articles of a narcotic nature which she indicated were brought to the apartment by the defendant and maintained there by him. The deputy, in turn, gave the articles and information obtained by him to the arresting officer in this case, a detective with the sheriff’s department. The detective forwarded the articles to Bureau of Criminal Investigation and Identification for analysis on April 23, 1969; on June 2, 1969, a report of the analysis was received which positively identified the articles as marijuana, L. S. D. and associated amphetamines. Armed with this information and his knowledge of Miss Eaisch’s reputation for being a prostitute and a user of narcotics, the detective executed the previously discussed conclusionary affidavit in support of the arrest warrant on June 4, 1969, and arrested the defendant on June 6, 1969, for possession of the narcotics delivered to the deputy by Miss Eaisch. It is apparent from the facts, as testified to by the arresting officer, that the only information connecting the defendant to the narcotics in question was provided by Miss Eaisch. Thus, since there was no corroboration, whether the arrest in this case was lawful depends totally upon whether Miss Eaisch, as an informant, appeared sufficiently reliable and the information furnished by her appeared sufficiently credible to furnish probable cause for the defendant’s arrest. Pacts which establish the reliability of an informant and the credibility of his information vary with circumstances of the case and the person of the informant; however, the facts in this case are totally devoid of anything that would indicate reliability on the part of Miss Eaisch or lend credence to the information furnished by her. The detective testified that he had no prior association with her as an informant or otherwise; there was nothing to indicate that she had a good reputation for truth and veracity; in view of the defendant’s assault upon her, she could hardly be considered disinterested in the outcome of the case and the circumstances surrounding the delivery of the narcotics to the deputy furnished as much cause to believe that they belonged to Miss Eaiseh as they did to believe that they belonged to the defendant. In view of this, it must be held that the arresting detective had no probable cause or reasonable ground to arrest the defendant on June 6, 1969. His arrest on that date was, therefore, invalid.

Since, as already stated in this opinion, the defendant’s arrest was without probable cause, it was invalid, either with or wthout a warrant, and any search incident thereto was necessarily unlawful.

Defendant’s motion to suppress the evidence obtained in the search incident to his arrest is, therefore, sustained, and it is so ordered. 
      
       The matter had originally been presented to the court on joint motions to quash indictments and to suppress evidence in two cases involving two separate indictments. In granting the state’s motion to separate, the court’s decision and order of September 21, 1970, the court (1) overruled all motions to quash the indictments in both cases and retained the motion to suppress the evidence in Case No. 29437, and (2) withdrew its original decision declaring R. C. 2935.10 unconstitutional because there was no need to do so in view of the court’s holding as to lack of probable cause in the defendant’s arrest and the inability of the county prosecutor to obtain a review on appeal by reason of the Supreme Court’s holding in City of Euclid v. Heaton, 15 Ohio St. 2d 65, Syllabus 4, in which the court held R. C. 2945.67 to 2945.70, inclusive, unconstitutional.
     
      
       The decision and order of September 21, 1970, is exactly the same as set forth herein except that the court had declared R. C. 2935.10 unconstitutional as it authorized a clerk in felony cases to make a judicial determination. In the above respect, the court relegated its opinion on the constitutionality of said section to dicta.
     
      
       At the time of the arrest the defendant was searched and he was found to have narcotics on his person. It was these narcotics which the defendant sought to suppress. The court in the companion case refused to suppress the articles in the make-up bag turned over to police by Miss Eaisch as such articles were not as a rseult of a search; however, the case was nullied as there was no evidence that such narcotic articles were in the possession of the defendant.
     