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State v. Dulaney

Court of Appeals of Ohio, Third District

September 16, 2013

STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
VARAINA C. DULANEY, DEFENDANT-APPELLANT.

Appeal from Paulding County Common Pleas Court Trial Court No. CR 12 521

Peter R. Seibel for Appellant

Joseph R. Burkard and Matthew A. Miller for Appellee

OPINION

ROGERS, J.

(¶1} Defendant-Appellant, Varaina Dulaney, appeals the judgment of the Court of Common Pleas of Paulding County convicting her of aggravated vehicular homicide and sentencing her to an 18-month prison term. On appeal, Dulaney argues that the trial court erred in denying her motion to suppress evidence obtained pursuant to a purportedly invalid search warrant. For the reasons that follow, we reverse the trial court's judgment.

(¶2} On February 10, 2012, the Paulding County Grand Jury indicted Dulaney with aggravated vehicular assault in violation of R.C. 2903.08(A)(2), a felony of the fourth degree, and aggravated vehicular homicide in violation of R.C. 2903.06(A)(2), a felony of the third degree. The indictment arose from a fatal automobile accident that occurred on November 27, 2011 in Paulding County. At approximately 2:30 a.m. that morning, Dulaney was driving an automobile containing her, Michael Breckler, and Dustin Coil. When Dulaney lost control of the vehicle, it rolled and Coil was ejected from the vehicle. Coil died from his injuries while Breckler suffered a fractured pelvis. Dulaney did not suffer any serious injuries.

(¶3} On April 23, 2012, Dulaney filed a motion to suppress any blood alcohol test results obtained from the seizure of samples of her blood. The basis for the motion was that the search and seizure was executed pursuant to an invalid warrant. The trial court subsequently conducted a suppression hearing on June 4, 2012. Due to a recording malfunction, we have no transcript from a portion of the suppression hearing that is relevant to this appeal. Under App.R. 9(E), the parties have filed a stipulation of facts to correct this deficiency and to supplement the record before this court.

(¶4} The search warrant for the seizure of Dulaney's blood samples was signed on November 30, 2011 by a judge of the Paulding County county court.[1] The warrant authorized the seizure of the samples from Defiance Regional Medical Center in Defiance County, Ohio. Before obtaining the warrant, Ohio State Highway Patrol Trooper Alec Coil originally asked a judge of the Defiance Municipal Court to sign it on either November 28 or 29. However, the municipal court judge refused to sign the warrant because the accident occurred in Paulding County, Ohio, which is not within the territorial jurisdiction of Defiance Municipal Court. Trooper Coil executed the search warrant on November 30, 2011 in Defiance County and Dulaney's blood samples were tested for the presence of alcohol and other drugs.

(¶5} On June 8, 2012, the trial court issued a judgment entry denying Dulaney's motion to suppress. Although the trial court found that the State failed to comply with Crim.R. 41 when obtaining the search warrant, it nevertheless found that the State's failure did not violate Dulaney's Fourth Amendment rights.

(¶6} After the trial court's denial of her motion to suppress, the State dismissed the charge of aggravated vehicular assault and Dulaney entered a plea of no contest to the remaining charge of aggravated vehicular homicide. On October 25, 2012, the trial court sentenced Dulaney to 18 months in prison.

(¶7} Dulaney filed this timely appeal, presenting the following assignment of error for our review.

Assignment of Error
THE COURT ERRED WHEN IT FAILED TO SUPPRESS EVIDENCE WHICH WAS SEIZED IN DEFIANCE COUNTY, OHIO ON A WARRANT WHICH HAD BEEN SIGNED BY A JUDGE IN PAULDING COUNTY, OHIO (OHIO RULES OF CRIMINAL PROCEDURE RULE 41).

(¶8} In her sole assignment of error, Dulaney argues that the trial court should have suppressed the blood alcohol test results obtained from the purportedly illegal seizure of her blood samples. We find that the trial court erroneously denied Dulaney's motion to suppress on the basis that there was no Fourth Amendment violation. As a result, we reverse the trial court's ruling on the motion to suppress insofar as it found that the State did not violate Dulaney's Fourth Amendment rights when it seized her blood samples pursuant to an invalid warrant. Nevertheless, we cannot conclude that suppression was the necessary remedy for the unconstitutional seizure. Rather, we remand this matter to the trial court for further proceedings so that it can determine whether suppression of the blood samples is appropriate.

Standard of Review for Motions to Suppress

(¶9} "Appellate review of a decision on a motion to suppress presents a mixed question of law and fact." State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8. The trial court serves as the trier of fact and is the primary judge of the credibility of the witnesses and the weight to be given to the evidence presented. State v. Johnson, 137 Ohio App.3d 847, 850 (12th Dist. 2000). Therefore, when an appellate court reviews a trial court's ruling on a motion to suppress, it must accept the trial court's findings of facts so long as they are supported by competent, credible evidence. State v. Roberts, 110 Ohio St.3d 71, 2006-Ohio-3665, ¶ 100. The appellate court must then review the application of the law to the facts de novo. Burnside at ¶ 8.

Crim.R. 41(A) and R.C. 2933.21

(¶10} Crim.R. 41(A) provides that "[a] search warrant authorized by this rule may be issued by a judge of a court of record to search and seize property located within the court's territorial jurisdiction, upon the request of a prosecuting attorney or a law enforcement officer." R.C. 2933.21 similarly provides that "[a] judge of a court of record may, within his jurisdiction, issue warrants to search a house or place." R.C. 2933.21. "Fundamental" violations of Crim.R. 41 and R.C. 2933.21 are those that implicate constitutional concerns, State v. Jacob, 185 Ohio App.3d 408, 2009-Ohio-7048, ¶ 20 (2d Dist.), and they occur where the warrant was either not based on probable cause or not issued by a neutral and detached judge, State v. Ridenour, 4th Dist. Meigs No. 09CA13, 2010-Ohio-3373, ¶ 21. With these principles in mind, we turn to the issue around which this matter revolves: whether the Paulding County county court judge who issued the search warrant was a judge for Fourth Amendment purposes.

The Issuing Judge's Authority to Issue Search Warrants

(¶11} One of the "defining features" of a constitutionally executed search warrant is that it was "issued by a judicial officer." United States v. Kone, 591 F.Supp.2d 593, 605 (S.D.N.Y. 2008). The United States Supreme Court "frequently * * * employ[s] the term 'magistrate' to denote those public officials who may issue warrants."[2]Shadwick v. City of Tampa, 407 U.S. 345, 348, 92 S.Ct. 2119 (1972). The Court has defined "magistrate" as "a public civil officer, possessing such power - legislative, executive, or judicial - as the government appointing him may ordain." Compton v. Alabama, 214 U.S. 1, 7, 29 S.Ct. 605 (1909). As such, a judge/magistrate for Fourth Amendment purposes is an individual who is a "public officer authorized by law to issue search warrants." State v. Hardy, 2d Dist Montgomery No 16964 (Aug 2, 1998) (Fain, J, concur

ring); accord United States v. Griffin, E.D.Wis. No. 11-CA-30, 2011 WL 3348027, *6 (Aug. 2, 2011) (stating that a requirement for qualification as a judge under the Fourth Amendment is "that the issuing official has some cognizable authority under state law to issue warrants"); see also United States v. Bansal, 663 F.3d 634, 662 (3d Cir. 2011) (finding no constitutional violation where magistrate in Eastern District of Pennsylvania issued warrant for search and seizure of property located in California because federal statute authorized the magistrate to issue warrants for disclosure of electronic communications located outside of the court's jurisdiction so long as the offense under investigation was within the court's jurisdiction); Ciano v. State, 105 Ohio St. 229, 233 (1922) ("Although [a previous form of R.C. 2933.21] confers authority upon common pleas judges, along with other officials therein named, to issue search warrants upon the filing of an affidavit * * * common pleas judges were not so authorized at the time such action was taken in this case, and in the absence of such statutory authority the search warrant issued by the common pleas judge was unwarranted and invalid"). Based on these principles, federal courts have previously found that both municipal court clerks, Shadwick at 347-48, and circuit court commissioners, Griffin, supra, that are vested with authority under state law to issue search warrants are judges for Fourth Amendment purposes.

(¶12} This matter is unlike Shadwick and Griffin since the Paulding County county court judge who signed the warrant for Dulaney's blood samples was not authorized under Ohio law to issue warrants for searches and seizure of property in Defiance County.[3] R.C. 2933.21; Crim.R. 41(A). Rather, this matter is analogous to the facts addressed in United States v. Master, 614 F.3d 236 (6th Cir. 2010). There, the defendant's residence was in Coffee County, Tennessee. Police officers searched the defendant's residence after a Franklin County, Tennessee general sessions judge issued a warrant. Tennessee law, however, only granted the issuing judge the authority to sign warrants for the searches of property located in Franklin County. Id. at 238. The Sixth Circuit Court of Appeals found that since Tennessee law did not provide the issuing judge with the requisite authority to issue the warrant at issue, the warrant was void ab initio. Consequently, the resulting search pursuant to the invalid warrant was unconstitutional. The court succinctly explained its reasoning as "[the issuing judge]'s authority to issue warrants stems exclusively from Tennessee law, but that same source of law provides that [the issuing judge] had no authority to issue a warrant for a search of Defendant's home. The search therefore violated Defendant's Fourth Amendment rights." Id . at 241; accord United States v. Youngbear, N.D.Iowa No. 11-CR-151- LRR, 2012 WL 176247, *4 (Jan. 20, 2012) ("[I]f [the issuing judge] lacked the authority to issue a search warrant for evidence of a federal offense and the search warrant sought evidence solely for a federal offense, then Defendant suffered a Fourth Amendment violation.").

(¶13} The facts of this matter are indistinguishable from Master, which compels us to adopt its reasoning. The Paulding County county court is a creation of statute, Pannozzo Family Ltd Partnership v. Italian Oven of Boardman, 7th Dist. Mahoning No. 92 C.A. 75 (Sept. 2, 1993), and its subject matter jurisdiction is limited as set forth in R.C. Chapter 1907, Wright v. Ohio Bur. of Motor Vehicles, 67 Ohio Misc.2d 29, 34 (M.C. 1994).[[4]] R.C. 1907.01 describes the jurisdiction of a county court as follows:

There is hereby created in each county of the state, in which the territorial jurisdiction of a municipal court or municipal courts is not coextensive with the boundaries of the county, a court to be known as the county court. The county court shall have jurisdiction throughout a county court district that shall consist of all territory within the county not subject to the territorial jurisdiction of any municipal court. County courts are courts of record for all purposes of law.

Moreover, R.C. 1907.18(A) explicitly limits county court judges' authority and jurisdiction to "within and coextensive with their respective counties." Based on this statutory language, the Paulding County county court judge did not have authority to sign a search warrant that authorized the seizure of Dulaney's blood samples in Defiance County. As such, under Master, the warrant was not executed by a judge, as that term is used for Fourth Amendment purposes, and it was void ab initio. This rendered the search and seizure pursuant to the invalid warrant a violation of Dulaney's Fourth Amendment rights.

(¶14} In finding that there was no Fourth Amendment violation, the trial court relied on Ridenour. There, a Meigs County Court of Common Pleas judge issued a search warrant for property located in Gallia County. The Fourth District found that these facts did not produce a constitutional violation. Ridenour, 2010-Ohio-3373, at ¶ 2. We find that Ridenour is distinguishable from this matter because it involved the issuance of a search warrant by a Court of Commons Pleas judge, [5] which does not raise an inference of jurisdictional and constitutional infirmity. Since the Ohio Constitution created the Court of Common Pleas, its judges are vested with statewide jurisdiction. See Ohio Constitution, Article IV, Section 4(A) ("There shall be a court of common pleas and such divisions thereof as may be established by law serving each county of the state. Any judge of a court of common pleas may temporarily hold court in any county."); Cheap Escape Co. v. Haddox, LLC, 120 Ohio St.3d 493, 2008-Ohio-6323, ¶ 7 ("[C]ourts of common pleas * * * are created by the Ohio Constitution and have statewide subject-matter jurisdiction * * *."); Wiegand v. Deutsche Bank Natl. Trust, 8th Dist. Cuyahoga No. 97424, 2012-Ohio-933, ¶ 4 ("The Ohio Constitution created the several courts of common pleas and granted them statewide jurisdiction."); Arlington Bank v. BEE, Inc., 10th Dist. Franklin No. 10AP-41, 2010-Ohio-6040, ¶ 12 ("The Ohio Constitution created the courts of common pleas and granted them statewide subject matter jurisdiction."). R.C. 2933.21 authorizes judges to issue warrants for their "jurisdiction, " which, pursuant to the Ohio Constitution, exists for judges of Courts of Common Pleas throughout the state. Accordingly, unlike the judges in Master and this matter, the Meigs County Court of Common Pleas judge in Ridenour was properly authorized to issue the search warrant for the search and seizure in Gallia County. Due to this critical difference, we find that Ridenour offers limited guidance to the disposition of this matter.

(¶15} The State also points us to Hardy, supra in support of its argument for affirmance.[6] There, a Dayton Municipal Court judge issued a search warrant for the search and seizure of property located in Miamisburg. The Second District found that the Dayton Municipal Court's issuance of an invalid warrant for a search outside of its jurisdiction did not result in a Fourth Amendment violation. The Tenth District's opinion in State v. Bowman, 10th Dist. Franklin No. 06AP-149, 2006-Ohio-6146, reached the same conclusion where the Franklin County Municipal Court issued an invalid warrant for the search and seizure of property located in Pickaway County. Id . at ¶ 14.

(¶16} We decline to follow Hardys and Bowman's guidance here since we find that the rule of law announced in those cases is contrary to well-settled federal interpretation of the Fourth Amendment.[7] It is axiomatic that "[a] search warrant signed by a person who lacks the authority to issue it is void as a matter of law." United States v. Peltier, 344 F.Supp.2d 539, 548 (E.D.Mich. 2004); accord United States v. Scott, 260 F.3d 512, 515 (6th Cir. 2001) ("We therefore hold that when a warrant is signed by someone who lacked the legal authority necessary to issue search warrants, the warrant is void ab initio."), overruled on other grounds by Master, 614 F.3d at 242; United States v. Neering, 194 F.Supp.2d 620, 628 (E.D.Mich. 2002) ("The Court concludes, therefore, that [the magistrate]'s lack of authority to issue the search warrant in this case rendered it void."). Hardy and Bowman depart from this well-established axiom handed down by the federal courts, which are the final authority on the interpretation of the United States Constitution, and we find that it is more appropriate in this case to follow the federal courts' lead. See State v. Grays, 8th Dist. Cuyahoga No. 82410, 2003-Ohio-6889, ¶ 22 ("Although we are aware that the state can impose stricter constitutional protections than the federal government, federal law is considered 'very persuasive' when dealing with search and seizure issues because Section 14 Article I of the Ohio Constitution and the Fourth Amendment have virtually identical language."), citing State v. Robinette, 80 Ohio St.3d 234, 239 (1997) (stating that the interpretation of the Fourth Amendment and Article I, Section 14 of the Ohio Constitution should be "harmonize[d]"); State v. Barlow, 6th Dist. Wood No. WD-83-80 (Apr. 20, 1984) (Handwork, J., dissenting) ("Of course, state courts are free to interpret the provisions of the federal constitution, but, in our federal system, they are not the final arbiters of what such provisions mean -only the federal courts are."); City of Cleveland v. Watts, 164 Ohio Misc.2d 25, 2011-Ohio-3606, ¶ 6 (M.C.) ("[D]ecisions from the Federal Court of Appeals are entitled to due consideration and respect.").

(¶17} Moreover, we view Hardy and Bowman as improper extensions of the Ohio Supreme Court's decision in State v. Wilmoth, 22 Ohio St.3d 251 (1986).[8] In Wilmoth, the court created a test to distinguish between "fundamental" and "non-fundamental" violations of Crim.R. 41. Id at 262-63. There, the court addressed a situation where the State violated the affidavit requirements contained in Crim.R. 41(C). Specifically, the investigating officers made unsworn oral statements to the issuing judge and submitted their police reports to support the issuance of the warrant. However, they did not submit written affidavits that contained the same information, as required by the rule. Id at 252-53. The court concluded that the violation was merely "technical" in nature and did not implicate questions of constitutionality. Id at 264.

(¶18} The jurisdictional violations present here, as well as in Hardy and Bowman, are of much greater importance than the merely technical affidavit defects in Wilmoth. Compare United States v. Beals, 698 F.3d 248, 265 (6th Cir. 2012) (finding no constitutional violation where the issuing judge failed to prepare two exact copies of the warrant because the issuing judge "had authority under state law to issue search warrants, and his failure to sign two copies of the search warrant did not in any way deprive him of that authority") with Master, 614 F.3d at 515 (finding constitutional violation where issuing judge had no authority to issue search warrants for search and seizure of property located in another county). The Fourth Amendment simply requires that a warrant be supported by probable cause and be issued by a neutral and detached judge who had authority to issue it. As such, in Wilmoth, neither prong of the Fourth Amendment analysis was lacking - the warrant was both supported by probable cause and issued by a judge with the proper authority. The merely technical defects of the affidavit had zero effect on either prong.

(¶19} The same cannot be said for the facts present in this matter or for the facts that were addressed in Hardy and Bowman. The Paulding County county court judge, like the Dayton Municipal Court and Franklin County Municipal Court judges, manifestly lacked the statutory authority to issue the search warrant for property located in a foreign county, outside of her jurisdiction. Consequently, the second prong of the Fourth Amendment analysis requiring issuance by a "judge" is absent here and there is a clear constitutional violation.

(¶20} In sum, the Paulding County county court judge lacked statutory authority to issue a search warrant for Dulaney's blood samples located in Defiance County. Under well-settled federal law, this lack of authority indicates that the issuing judge was not a judge for Fourth Amendment purposes and renders the warrant void ab initio. Accordingly, the investigating officers executed their search pursuant to an invalid warrant in violation of the Fourth Amendment. The trial court's finding to the contrary was in error and requires that we reverse its judgment.

Suppression of the Evidence

(¶21} Although we find that the search and seizure violated the Fourth Amendment, it is well-settled that not all Fourth Amendment violations give rise to suppression of the evidence illegally obtained. See, e.g., Hudson v. Michigan, 547 U.S. 586, 591, 126 S.Ct. 2159 (2006) ("Suppression of evidence * * * has always been our last resort, not our first impulse."); Arizona v. Evans, 514 U.S. 1, 13, 115 S.Ct. 1185 (1995) ("In Whiteley [v. Warden, Wyo. State Penitentiary, 401 U.S. 560, 91 S.Ct. 1031 (1971)], the Court treated identification of a Fourth Amendment violation as synonymous with application of the exclusionary rule to evidence secured incident to that violation. Subsequent case law has rejected this reflexive application of the exclusionary rule."); United States v. Leon, 468 U.S. 897, 906, 104 S.Ct. 3405 (1984) ("Whether the exclusionary ...


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