Summary
In State v. Johnson, 16 Ohio Misc. 278, 281, the court concluded that the fact that police officers initiated a search without a warrant in their physical possession did not invalidate the search.
Summary of this case from State v. MontagnaOpinion
Nos. 28129, 28131 and 28132
Decided October 3, 1968.
Search and seizure — Warrant — Entry made while warrant in police car — Only objects in plain sight seized — Warrant then brought to premises and given to tenant — Service of warrant not requisite to valid search — Search conducted was reasonable — Evidence procured thereby admissible.
1. Service of a search warrant upon demand of the occupant of the premises searched is not a requisite to a lawful search.
2. A search of premises pursuant to a lawfully issued warrant, when the officers learned after obtaining entry that the warrant had been left in their police car, and where otherwise reasonable, results in the lawful seizure of any contraband found in plain sight on the premises and a motion for its exclusion from evidence is properly overruled.
3. In determining the reasonableness of a search conducted pursuant to a warrant issued upon probable cause to believe that narcotics would be found on the subject premises, the court should consider the probabilities that the contraband would be disposed of if the officers did not proceed with diligence, as well as the need for the officers to act in the manner which would best assure their personal safety.
Mr. Lee C. Falke, prosecuting attorney, and Mr. Robert A. Skinner, for plaintiff.
Mr. James H. McGee, for defendants.
On motion to suppress all evidence and information obtained from a narcotics raid by police within the apartment dwelling of defendant Willadean Johnson, the court finds that none of the seven grounds presented may be sustained.
State's exhibit "A," the search warrant, sufficiently meets the legal requirements in form and content; it was issued upon probable cause by a magistrate duly authorized and the return thereof and the receipts for the seized articles substantially adhere to the statutory requirements.
The chief objection of the defendants centers upon the raid itself. The officer in charge inadvertently left the warrant in his automobile. The landlord at the apartment, by knocking and announcing himself, gained the opening of the door by the aforesaid defendant to her apartment whereupon the police officers entered, announced that they were there upon a search warrant for narcotics, that upon discovery that the warrant had been left in the automobile about two blocks away, the officer announced that the warrant would be produced. They then secured the premises and seized only that which was in plain sight. Within ten to fifteen minutes the warrant was obtained from the automobile and handed to Willadean Johnson whereupon the defendants were arrested and taken to the police station where a matron found heroin upon Willadean Johnson.
The search was reasonable. Section 2935.12 R. C. provides that in the execution of a warrant any necessary force may be used to gain admittance. The police, because of their investigation, surveillance and reliable informants, were virtually certain that the defendant was a user and seller of narcotics. All the law requires is that the officer announce himself and reveal the purpose before gaining entry and before conducting a search, except when virtually certain of extraordinary circumstances such as an imminent danger that the evidence might be destroyed. Miller v. U.S., 357 U.S. 301; Wong Sun v. U.S., 371 U.S. 471.
It is clear upon the record made at the hearing upon the motion together with the self-evident fact that narcotics and the instruments used therewith would have gone down the drain had the officers backed off to retrieve the warrant before securing that which was in plain sight.
In this case the inability to produce the warrant at the initial stage of the narcotics raid does not deprive the defendant of any substantive right. In the administration of criminal justice the Ohio statutes do not require that a search warrant be served upon demand or otherwise before the search may be made to be a valid search. The warrant issued in accordance with law is the vehicle that gives validity to the search. Research indicates that neither the Supreme Court of Ohio nor the Supreme Court of the United States has met the precise question presented here. State and federal courts have had similar situations.
A search warrant does not have to be served before search, for search to be constitutionally valid. State v. Williams, 250 La. 64, 193 So.2d 787.
A warrant is executed by the making of the search where statutory provision requiring a reading thereof prior to search is absent. State v. Johnson, 230 A.2d 831.
Officer executing search warrant is not required to deliver copy to defendant before making search or seizure. Nordelli v. U.S., 24 F.2d 665.
Unless the statute so provides an officer charged with the execution of a lawful warrant therefor is not obliged to exhibit the warrant as a prerequisite to his right to execute the writ. State v. Brown, 114 S.E. 372.
Warrant in the coat of the officer several feet from the house to be searched was sufficiently in his possession to constitute ample authority for what was done by the officer under the circumstances. Hiller v. State, 208 N.W. 260, citing Elrod v. Moss (C.C.A.), 278 F. 123.
Arrest warrant 200 yards from house in officer's buggy was in such actual possession by the officer to make the arrest lawful where he can produce it with reasonable promptness on demand. State v. Shaw, 104 S.C. 359.
It must be remembered that the constitutional question has to do with whether or not the search and the seizure was unreasonable. The proper test of a reasonable search must be based upon the entire factual situation. There was an entry made pursuant to a lawful warrant for the purpose of searching for and seizing heroin and instruments for injection of narcotics in the apartment of a known trafficker in such illicit business. The search was reasonable as to time, space and intensity. Must the officers go through the motions of producing the warrant before they can legally observe environmental objects at the site of the search. This was not an exploratory search. They were not obliged to shut their eyes after they learned that the warrant had been left in the car. When the officers inspected the rooms they had no reason to know that others were not lurking in and about any of them poised with a weapon. In the course of their dangerous duty, police officers are entitled to look to their own security and to make reasonable efforts to notice the kind of people with whom they are dealing. The area examined was not unreasonable. Harris v. U.S., 331 U.S. 145. Two of the defendants were in the bathroom which was under the control of Willadean Johnson. Looking therein cannot be characterized as unreasonable under the facts of this case. U.S. v. Rabinowitz, 339 U.S. 56. Furthermore the intensity of the search was commensurate both with the crime and what was known of the criminal. In fact it was not a thorough and painstaking search. Only items set forth in the warrant were seized.
Willadean Johnson was lawfully arrested pursuant to the lawful search of her apartment and thus the search of her person at the station house was lawful and the contraband found thereon was subject to seizure.
Accordingly all the articles so seized affecting any of the moving defendants herein were subject to the law's demands; were properly found and properly seized. There will be no error in receiving the evidence.
Motion of the defendants in these several causes to suppress such evidence is hereby overruled.
Exceptions to the adverse rulings herein are hereby noted.