
    Lamia v. City of Cleveland.
    (Decided June 20, 1932.)
    
      Mr. Bernard J. Smolin, for plaintiff in error.
    
      Mr. W. George Kerr and Mr. Frank M. Burts, for defendant in error.
   Vickery, J.

It is claimed that this judgment should be reversed on the authority of the case of Nicholas v. City of Cleveland, 125 Ohio St., 474, 182 N. E., 26, recently decided by the Supreme Court. Perhaps that contention may be right, but the majority of the court think that this case is easily distinguishable from the Nicholas case, for the Supreme Court in their opinion say that it is conceded that there was no trafficking in liquor in that case, or anything that indicated a trafficking, which would imply that, had there been a trafficking in liquor, they perhaps might have followed the rule laid down in many cases decided by them, to which we will allude hereafter.

It is clear from the record of the instant case that there was a trafficking in liquor, as the evidence shows that the place had been watched, and people going in sober and coming out intoxicated gave an indication that liquor was being sold inside the building. A search warrant was procured and an entrance made. Several men were seen sitting around the table drinking, both whisky and beer, and the owner of the property dumped a lot of liquor in the sink nearby, whereupon an officer saved enough of the liquor thus dumped to indicate that it was intoxicating liquor, which upon analysis showed that it was contraband.

The record also shows that twenty-two bottles of beer were found in the ice box, and one hundred and twenty-four bottles in another place, all contraband. Upon interrogating the visitors sitting around the table drinking liquor, it was ascertained that they came in to buy, but they refused to reveal the price they paid for the liquor.

Now we think that this evidence clearly shows that there was a trafficking in liquor in the instant case, and the majority of the court wonder whether the Supreme Court intended, by its decision in the Nicholas case, supra, to overrule its former decisions such as the case of City of Cleveland v. Nagle, 124 Ohio St., 59, 176 N. E., 886, decided by the Supreme Court in June, 1931, in which it reversed the judgment of the majority of this court, even though no search warrant had been obtained at all, holding in effect that, where there was a trafficking in liquor, in what would otherwise be a private home, such trafficking had the effect of destroying the character of such home and made it a place of business, and that the place could be searched and liquor obtained without a search warrant; and the majority of the court wonder whether the Supreme Court meant to nullify the Miller Law, Sections 6212-13 to 6212-43, General Code, which in effect provides that, where there is a trafficking in liquor in a private home, such place loses its character as a private home.

The majority of this court believe that all the Supreme Court intended to decide in the Nicholas case, supra, was that, since the amendment to the Code, the issuing of a search warrant is a judicial and not a ministerial act, that, inasmuch as in that case it was admitted that there was no trafficking, and the search warrant had been obtained from the clerk of the court rather than from the judge, the search warrant was illegal, and that the liquor thus obtained could not be used in evidence. But, as already stated, the Supreme Court was careful to state in the Nicholas case that it was admitted there was no trafficking in liquor. So the majority of the court understands that decision to mean, and only to mean, that, where a search warrant is necessary and is issued, it must be issued by a judge or magistrate of the court, and not by the clerk of the court; that, while the court adhered to its ruling in Rosanski v. State, 106 Ohio St., 442, 140 N. E., 370, and still stood by the law announced in that case as to contraband seized in a place no longer a bona fide private dwelling, because of traffic in liquor therein, it held that, since the law had been amended so as to make the issuance of a search warrant a judicial act rather than a ministerial act, while not overruling the Rosanski case, supra, the rule in the Nicholas case must be different; that, because there was no trafficking in liquor which would warrant the entrance of the home without a search warrant, and the search warrant having been issued illegally, the motion to suppress the evidence should have been granted.

Now the majority of this court accede to this doctrine, but we do not think that the Supreme Court meant to go to the extent that, where no such warrant was necessary, and liquor was found, and there was a showing that trafficking was being carried on, even though the search warrant was issued illegally, the court meant to nullify the Miller Act and destroy the effect of the opinion of the Supreme Court in the case of Porello v. State, 121 Ohio St., 280, 168 N. E., 135, or the case of City of Cleveland v. Nagle, 124 Ohio St., 59, 176 N. E., 886, or the case of Rosanski v. State, 106 Ohio St., 442, 140 N. E., 370, and many others of like import sustained by the Supreme Court.

In the Rosanski case, supra — and it is important to bear it in mind, for the court in the Nicholas case infer that, with the exception of the part which deals with that feature of search warrant issuance as above outlined, they stand by the decision made in the Rosanski case — the fourth and fifth paragraphs of the syllabus read as follows:

“In prosecutions for violations of the prohibition laws of Ohio, where the charge involves unlawful possession of intoxicating liquors, a seizure of any contraband property by an officer, whether the seizure has been made under process unlawfully procured or without any process, will not void the seizure, nor authorize an order by a magistrate for a return of such contraband to the person from whose possession the same was taken, unless the seizure was made in a bona fide private dwelling.

“In such case all such contraband so seized is admissible in evidence upon the part of the state, and collateral inquiry for the purpose of determining its competency may not be made into the manner of its seizure.”

We understand from the words of the Supreme Court in the Nicholas case that this still remains the law, in accordance with their former decisions.

With this in mind, it must be remembered that the Miller Law provides that, where there is a trafficking in intoxicating liquors in a dwelling house, such house thereby loses its character as a bona fide residence, and the same can be searched without a search warrant; and, not believing that the Supreme Court intended to destroy the effect of the Miller Law, and not believing that they intended to overrule their former decisions upon this question, the majority of the court can only conclude that the Supreme Court limited its decision in the Nicholas case to what was actually before it; and, it being conceded in that case that there was no trafficking in liquor of any kind, nor anything which would give rise to an implication that there was a trafficking in liquor, the only question before the court was, Did the clerk of the municipal court, upon the evidence that was produced before him, have the power to issue a search warrant, which power did exist prior to the amendment as outlined clearly in the BosansJci easel Since the law has been amended making the issuance of a search warrant a judicial rather than a ministerial act, the court could do no different than it did do in holding that the liquor was improperly seized, because it was conceded that the home was a bona fide home that had not been transformed by reason of a trafficking in liquor in said home.

The majority of this court think, from a fair reading of the decision of the Supreme Court in the Nicholas case, and their reservations, still standing by the law-laid down in the Rosanski case, that in the instant case, where there was obviously a clear violation of the law, for there was unquestionably a trafficking in liquor in the home, such home had ceased to have the sacredness of a private dwelling, and therefore was not immune from search without a search warrant. Surely the mere fact that a search warrant was issued illegally, when none was required to make the search, that is, the mere issuance of a search warrant, though by a ministerial officer, would not make the search of the house illegal, for the issuance of the search warrant was unnecessary, and therefore was unimportant, and therefore does not and should not control the decision of the court in rendering its judgment. See the Rosanski case, supra.

The majority of the court, being firmly of the opinion that this was the clear import and intention of the Supreme Court in the Nicholas case, and being able to distinguish this case clearly from that case, think that the record shows there was clearly a trafficking in liquor in the instant case, and that the affidavit charging the defendant with the possession of liquor, being other than the search warrant affidavit, the municipal court had ample authority to render the judgment that it did render upon the evidence in this case. With these views we can see no error in the record, and therefore we can do no other than affirm the judgment of the municipal court.

Judgment affirmed.

Weygandt, J., concurs.

Levine, P. J.,

dissenting. I am constrained to dissent from the judgment of the majority of this court for the following reasons:

It is conceded that the searching of the premises of the plaintiff in error, and from which the arrest ensued, was upon a search warrant sworn to by the officer before the clerk of the municipal court. Under the recent decision of the Supreme Court of Ohio, in the case of Nicholas v. City of Cleveland, 125 Ohio St., 474, 182 N. E., 26, opinion by Jones, J., it is now the settled law of Ohio that the power of issuing a search warrant rests solely with the judge or magistrate before whom the affidavit for search is filed, and that the determination whether to issue the warrant or not is a judicial determination; and that the clerk’s act in issuing a search warrant pursuant to an order of the judge is a ministerial act.

It is likewise the settled law of Ohio, under paragraph 4 of the syllabus of said opinion, that: “Where an affidavit for search alleges only that complainant believes and has good cause to believe that the things to be searched for are concealed in a house or place, but does not state the facts upon which such belief is based, such affidavit and warrant issued thereunder are illegal and void under the provisions of Section 13430-3, General Code.”

The affidavit for search in the case at bar, upon which the search warrant was issued by the clerk of the municipal court, while alleging, in substance, that the complainant believes and that he has good cause to believe that the things to be searched for are concealed in the house or place, does not state the facts upon which such belief is based. The conclusion, in my opinion, must be reached that since a motion was made by the accused to suppress the evidence obtained under an illegal affidavit and warrant, the motion should have been sustained by the trial court, and the evidence so illegally obtained should have been suppressed and not used for the incrimination of the accused.

The record, in my opinion, shows the undisputed fact that prior to the search the house which was so searched was reputed to be a bona fide two-family residence. The only item of evidence to cast any suspicion upon the character of the house was the testimony of an officer who stated that he made observations on two occasions; that he saw two men going to the rear entrance and coming out later; and that they appeared sober when they entered and appeared intoxicated when they left.

A comparison of the statement of the record in this case with the evidence quoted from the record in the opinion of Jones, J., in Nicholas v. City of Cleveland, shows almost an identical situation. The officer who filed the affidavit in the Nicholas case, and obtained an alleged warrant, admitted that the house to be searched was a private dwelling; that he did not go before a judge or magistrate for the issuance of an affidavit, but went to the clerk’s office where the affidavit was signed by a deputy. Two officers, including the one who obtained the search warrant, broke open the screen door at the rear of the dwelling and testified that in the dwelling they found a half a barrel of beer and a gallon and a half of liquor. There was no evidence of sale or trafficking in intoxicating liquor. The complainant testified that on two occasions he saw five or six men enter the house of the accused, and that on leaving one of the men appeared to be under the influence of liquor.

In the case at bar there was no evidence casting suspicion upon the character of the house as a bona fide residence other than the mere fact that observations were .made on two occasions, when the officer saw on the fourth day of September, 1931, four men enter, and two leave apparently intoxicated, and, on the fifth day of September, 1931, he saw two men enter and saw two men leave staggering and talking loudly.

Without any further evidence, the circumstances testified to by the officer who made the observation prior to the obtaining of the search warrant do not necessarily give rise to the inference that there was trafficking in intoxicating liquor in the house which was afterwards searched. The affidavit was sworn to not before a magistrate, but, instead, was sworn to before and signed by a clerk of the municipal court. The body of the affidavit, while alleging that the complainant had reasonable grounds to believe that the things to be searched for are concealed in the house or place, does not state the facts upon which such belief is based. The case, therefore, seems to me to be a case identical with the case of Nicholas v. City of Cleveland, supra, wherein the Supreme Court has definitely declared such a search warrant to be an illegal warrant, and that the evidence obtained by means thereof should be suppressed upon a motion to suppress made by the accused.

In the opinion of Jones, J., in Nicholas v. City of Cleveland, supra, at page 484, we find this pertinent language: “While we are not bound by federal decisions upon this feature of the case, since the Bill of Rights in the Constitution of the United States is in almost the exact language of that found in our own, the reasoning of the United States court upon this aspect of the case should be very persuasive. The state courts, however, with practical unanimity, have adopted the same principle as the federal courts. Article I, Section 14 of the Ohio Constitution, reads: ‘The right of the people to be secure in their persons, houses, papers, and possessions, against unreasonable searches and seizures shall not be violated; and no warrant shall issue, but upon probable cause, supported by oath or affirmation, particularly describing the place to be searched, and the person and things to be seized.’ ”

The opinion then proceeds to quote from several decisions of the United States Supreme Court, to wit, Weeks v. United States, 232 U. S., 383, 34 S. Ct., 341, 58 L. Ed., 652, L. R. A., 1915B, 834, Ann Cas., 1915C, 1177, and Go-Bart Importing Co. v. United States, 282 U. S., 344, 51 S. Ct., 153, 75 L. Ed., 374, decided January 5, 1931, opinion by Mr. Justice Butler, from which the following is quoted:

“It is general and forbids every search that is unreasonable; it protects all, those suspected or known to be offenders as well as the innocent, and unquestionably extends to the premises where the search was made and the papers taken. Gouled v. United States, 255 U. S., 298, 307 [41 S. Ct., 261, 65 L. Ed., 647], The second clause declares: ‘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.’ This prevents the issue of warrants on loose, vague or doubtful bases of fact. It emphasizes the purpose to protect against all general searches. Since before the creation of our government, such searches have been deemed obnoxious to fundamental principles of liberty. They are denounced in the constitutions or statutes of every State in the Union.”

Many cases may be found in the reports touching the constitutional feature safeguarding the rights of the people to be secure against unreasonable searches and seizures; and they uniformly uphold such rights when a search is made of a bona fide dwelling or residence of the accused; and if the search be without warrant or upon a void warrant, incriminating articles found within such dwellings cannot be used against the occupant to bring about his conviction.

Upon a careful study of the recent case of Nicholas v. City of Cleveland, and also of a great number of decisions rendered by the United States Supreme Court, I am forced to reach but one conclusion, namely, that where the evidence upon which the conviction rests was obtained by means of an illegal search warrant a motion to suppress the same must be granted by the trial court, and that it is error for the trial court to overrule such motion and to permit the introduction of such illegally obtained evidence in order to make out a case for the state. This safeguard is necessary not only because of the experiences of past ages, but also because of our own nowadays recent experiences. The. abuse of this legal process called the search warrant has become so frequent as to almost render a home the prey of avarice and of private gain. We must, of course, enforce the law, but such enforcement must be accomplished by legal means. Every home, no matter how humble, is still a castle protected against trespass and invasion. To search what has heretofore been reputed as a bona fide home by means of an illegal search warrant is> tantamount to trespass and forcible invasion.

I am firmly of the opinion that the decision of the Supreme Court of Ohio in Nicholas v. City of Cleveland struck an effective blow against the frequent abuses of alleged legal process which endanger the home as an institution and tend to destroy the defenses with which the home was heretofore surrounded. The Eighteenth Amendment did not expressly or impliedly repeal the constitutional safeguard against illegal searching of homes, as it is far more important that homes be protected against trespass and invasion than that a search for intoxicating liquor be conducted.

For these reasons it is my opinion that the conviction in this case was illegal; that the evidence should have been suppressed; and that the plaintiff in error should have been discharged.  