
    State v. Harrison.
    (No. 28612
    Decided March 14, 1969.)
    
      
      Mr. Herbert M. Jacobson, for plaintiff.
    
      Mr. Clarence J. Stewart, Mr. Patrick Flanagan, and Mr. Walter Bice, for defendant.
   MabtiN, J.

This canse comes before the conrt on the motion of defendant tbrongb bis counsel, first, to suppress all oral and written statements made by bim while be was in police custody on or about September 5, 1968, for the reason that be was not fully advised as to bis constitutional rights, and that while in police custody be did not at any time waive bis constitutional rights. Defendant further moves that all physical evidence taken from bis home located at 4567 Soldiers Home — Miamisburg Road in Jefferson Township, Montgomery County, Ohio, on or about September 5, 1968, be suppressed for the reason first, that the officer to whom the search warrant was directed and the officers executing the same did not have jurisdiction outside the city of Dayton to make a valid and legal search in Jefferson Township, Montgomery County, Ohio, and second, for the further reason that the defendant did not consent to the search of his home on September 5, 1968.

With relation to defendant’s motion to suppress all oral and written statements allegedly made by defendant to Dayton police while in their custody on September 5, 1968, the evidence shows that after Sergeant Reay told defendant in defendant’s office the purpose of his visit, to which defendant volunteered a statement, Reay attempted to inform defendant of his constitutional rights as required by the United States Supreme Court in the case of Miranda v. Arizona, 384 U. S. 436. That Reay failed to state to defendant, after he told him that he had a right to remain silent and that he didn’t have to say anything, that anything said by defendant “can and will be used against the (individual) defendant in court,” as required by syllabus 12 of the Miranda decision.

In spite of defendant’s statement, repeated several times, that he understood his rights, it cannot be fairly-said that he understood the consequences of foregoing his right to remain silent, namely, that anything he says can and will be used against him in court.

The court in Miranda, supra, stated, at 384 U. S. 472-473, the following:

“* * # No amount of circumstantial evidence that the person may have been aware of this right will suffice to stand in its stead. Only through such a warning is there ascertainable assurance that the accused was aware of this right.”

Although the other three “Miranda” rights, to wit, to remain silent, to consult' with an attorney at any time, to have an attorney present at any time, and to have an attorney appointed if indigent, at the expense of the state, were stated to defendant more or less clearly, the fourth and indispensable right that anything said by the defendant can and will be used against him in a court of law was not stated to the defendant. Furthermore, since Harrison telephoned an attorney in Reay’s presence, such action is equivalent to Harrison stating that he wanted to be advised by an attorney, whereupon Reay’s interrogation should have ceased and Harrison should have had the opportunity to have his lawyer present to advise him before Reay resumed the questioning again, as required by syllabus 19 in the case of Miranda v. Arizona, supra.

Reay’s opening statement as to his purpose in visiting Harrison in his office, and Harrison’s statement made immediately thereafter, whether Harrison’s or Reay’s account as to what was said is to be believed, were in the form of statements, and in Harrison’s case was a volunteered statement rather than an answer to a question, and such statements were not questions and answers made in the course of a custodial interrogation. Reay did not have the opportunity or time to give Harrison the Miranda warnings before Harrison responded to Reay’s opening statement.

However, everything said after Officer Reay attempted to give Harrison the Miranda warnings in the nature of questions by Eeay and answers by Harrison, or in tbe way of information given by Harrison in response to or related to questions or statements made by Eeay concerning tbe alleged offense must be and hereby are ordered suppressed because of Eeay’s omission to warn and inform Harrison that anything said by him can and will be used against him in court.

With relation to the contention of defendant, through counsel, that the search warrant was invalid on its face in that it was directed to the Chief of Police of the city of Dayton for execution in Jefferson Township outside the limits of the city of Dayton, and for the further reason that the execution of the warrant was invalid in that the Dayton police officers who had in their possession a search warrant at defendant’s home in Jefferson Township attempted to serve such warrant on defendant at his home, and actually carried on a search in defendant’s home in territory outside the corporate and territorial limits of the city of Dayton, the general rule is set forth in 5 American Jurisprudence 2d, Arrest, Section 18, pages 709-710, is as follows:

“As a general rule, a warrant of arrest is not effectual beyond the territorial jurisdiction of the authority by which it was issued and may not be executed by an officer beyond the territory to which his authority pertains. Thus, 'in the absence of statutory authority, an arrest may not be made under a warrant outside the territorial jurisdiction of the court or magistrate issuing it.”
“The power of a municipal or county peace officer is limited to the boundaries of his municipality or county, except as statutes may provide otherwise. He is an officer only within his own territory; outside it his authority is no greater than that of a private citizen, and he cannot, with or without a warrant, make an arrest outside his territory where the charge is a misdemeanor.”

The general rule in Ohio is stated in 10 Ohio Jurisprudence 2d, Constitutional Law, Section 355, page 429, as follows: . -■

“Even in the exercise of the police power, not every legislative act is valid. While the police power is the least limitable power of government it is not unlimited, whether it is exercised by statute or by ordinance; and, generally speaking, it is subject to the same limitations whether it is exercised by the legislative, the executive, or the judicial branch of the government.
“The judicial branch of the government is the arbiter of the limitations applicable to the police power.”

Section 357 titled “Territorial Limitations,” page 431, reads as follows:

“The police laws of a state have no extra-territorial effect.
“As a general rule the governmental powers of a municipal corporation cannot be exercised beyond its territorial limits in the absence of statutory authority therefor, but the Legislature may authorize such exercise of powers for certain purposes when reasonably necessary. This general rule applies to police powers of a municipality, and in recognition of the mutual interests of cities and surrounding territory Legislatures have given to municipalities certain regulatory authority over their environs.”

Section 1901.02, Revised Code, under the heading “Territorial Jurisdiction” states in the first sentence thereof:

“The municipal courts, established by Section 1901.02 of the Revised Code, have jurisdiction within the corporate limits of their respective municipal corporations and are courts of record.”

Section 1901.20, Revised Code, titled “Criminal Jurisdiction,” reads as follows:

“The municipal court has jurisdiction of the violation of any ordinance of any municipal corporation within its territory and of any misdemeanor committed within the limits of its territory. In all such prosecutions and cases, the court shall proceed to a final determination thereof. The court has jurisdiction to hear felony cases committed within its territory and to discharge, recognize, or commit the accused.”

Although it is clear that a judge of the Common Pleas Court upon sufficient affidavit and a showing of probable cause can issue a search warrant directed to the sheriff or deputy sheriff of the county in which the court has jurisdiction, or to any police officers of any political subdivision of the county in which the officer functions and the search is to take place, it is likewise clear that no municipal court or county court has the power or jurisdiction to issue a search warrant directed to a police officer of such political subdivision for a search of premises located in some other political subdivision of the same county. There is practically no case law in Ohio specifically deciding this question, although the opinion of the Attorney General of Ohio, No. 1245, rendered on March 6, 1924, indicates the limitations upon the power of a mayor to issue search warrants. The case of Irwin v. State 177 S. W. 2d 970, holds in the third and fourth syllabi thereof as follows:

“A city policeman receiving compensation for services rendered as such could not, under the Constitution, at the same time be deputy sheriff de jure or de facto.”
“The territorial jurisdiction of policemen is restricted to the confines of the city and they are without authority to execute search warrants outside the city limits.”

We can find no authority in Ohio, statutory or otherwise, to indicate that a police officer of a municipality has any authority to execute a search warrant outside the limits of the municipality.

From the foregoing it may be implied that except in specific cases authorized by statute police officers, by whatever, name, are limited in the execution of search warrants to the territorial jurisdiction in which they have been elected or appointed to perform their duties.

The use of the term “A warrant for search shall be directed to the proper officer” in Section 2933.24, Revised Code, indicates that the Legislature intended that the search warrant should be executed and the search made by a sheriff, constable or police officer in the area of their respective territorial jurisdictions.

In this case the search warrant, defendant’s exhibit 1, including the affidavit and the order or wararnt authorizing the search was sworn to by Detective R. L. Hill of the Dayton Police Department. The warrant was ordered issued by J. Paul Brenton, Judge of the Common Pleas Court of Montgomery County, Ohio, and was directed to Col. R. M. Igleburger, Chief of Police of the city of Dayton. Exhibit A sets forth two specific items being searched for, together with other items of office equipment and stolen merchandise all located at 4567 Soldiers Home-Miamisburg Road, the same being defendant’s house and outbuildings, which the parties agree were located in Jefferson Township, Montgomery County, Ohio, outside the territorial and corporate limits of the city of Dayton.

Although there are several defects in the affidavit, search warrant and the return thereof, the most substantial defect is the fact that it was not issued to the proper officer having territorial jurisdiction of defendant’s residence location, but was issued to the Chief of Police of the city of Dayton, whose territorial jurisdiction was confined 10 the corporate limits of Dayton, rather than to the sheriff or a deputy sheriff of Montgomery County, or a police officer of Jefferson Township, as required by necessary implication by the provisions of Section 2933.24, Revised Code.

It would seem that under ordinary conditions the person swearing to the affidavit for a search warrant is the proper person to whom the order and warrant to search should be issued by the court, and further, that the return thereon should likewise be executed by said officer, together with any third parties participating therein.

This is not a case where Dayton police officers had the right to cross the corporate limits of the city of Dayton into Jefferson Township on the theory of hot or close pursuit of Harrison, nor is it a case where officers of the city of Dayton were authorized by state statute to perform specific duties on property owned by the city of Dayton outside the corporate limits of the city of Dayton. Although the state Legislature might be justified in giving the police officers of a political subdivision the right to trace the fruits of a crime committed within that political subdivision beyond tbe corporate limits thereof, no such legislation has been enacted in this state.

It follows from the foregoing that the search of defendant’s residential property and outbuilding made by approximately nine police officers of the Dayton Police Department, with one deputy sheriff standing by having no part in the procuring, serving or execution of the search warrant, was not a valid search, the same being made beyond the corporate limits of the city of Dayton.

With relation to the question of whether or not the defendant gave his consent to the search of his home to Sergeant Reay and the other police officers present who assisted in making the search, it must be kept in mind that from the first contact that Reay made with defendant in defendant’s office, that Reay gave Harrison the impression that he had a search warrant for defendant’s home and that officers were waiting at his home to conduct the search upon the arrival of Reay with defendant.

The evidence further shows that at the entrance to defendant’s garage attached to the house Sergeant Reay, after receiving the search warrant in issue from Officer Hanner, attempted to serve it on Harrison, and that Harrison refused to accept it. That later on as the group of officers and defendant were climbing steps toward the front door of defendant’s home to enter and make a search, Officer Hanner, who had received the warrant back from Reay, attempted to again serve the warrant on defendant, finally placing the same in the bend of one of defendant’s arms, after which it dropped to the floor.

In spite of the fact that the testimony of Sergeant Reay and Officer Hanner tends to indicate that defendant stated that he knew his rights, that a search warrant was not necessary, that he would not accept service of the search warrant, that they should show it to his lawyer, that he consented to show them the two items for which they were principally searching in the basement of his home, and that he showed them other items which he stated might be stolen, he was no doubt induced to acquiesce in their request to search his home by the original state-meat of Reay that he had a warrant and that a paper, allegedly a search warrant, was produced and attempted to he served on him.

Numerous cases hold that there can be no consent to a search when an officer asserts that he possesses a search warrant, or produces and attempts to serve a search warrant upon the individual whose home is sought to be searched, particularly if the search warrant turns out to be invalid. The case of Bumper v. North Carolina (1968), 391 U. S. 543, held as follows:

“The issue thus presented is whether a search can be justified as lawful on the basis of consent when that ‘consent’ has been given only after the official conducting the search has asserted that he possesses a warrant. We hold that there can be no consent under such circumstances. * * *
“A search conducted in reliance upon a warrant cannot later be justified on the basis of consent if it turns out that the warrant was invalid. The result can be no different when it turns out that the state does not even attempt to rely upon the validity of the warrant, or fails to show that there was, in fact, any warrant at all.
“When a law enforcement officer claims authority to search a home under a warrant, he announces in pffect that the occupant has no right to resist the search. The situation is instinct with coercion — albeit colorably lawful coercion. Where there is coercion there cannot be consent.”

The majority seven to two decision holds that under the facts in the Bumper case coercion is presumed as a matter of law, regardless of what was said by defendant’s grandmother indicating to the officers her permission to search the home where defendant lived.

See cases under Note 14 of the Bumper decision, supra.

Consequently, the court will sustain the motion of defendant, William Harrison, to suppress all statements made by him while in police custody, excepting as to the matter hereinabove indicated. The court likewise suppresses all physical evidence taken from defendant’s home under the search warrant issued herein.

Judgment accordingly.  