Citations
- 46 Ohio App. 2d 1
Full opinion text
Mahoney, J.
These cases are before this court upon an appeal by the -state of Ohio, pursuant to Crim. R. 12(J). The trial court ordered the suppression of evidence seized, pursuant to two search warrants which the court found defective, as not having been “sworn to” before a judge, pursuant to Crim R. 41(C). They were, in fact, “sworn to” before a notary public.
The state has appealed, contending that such a defeel is only,ministerial and may be cured by presenting testimony of the affiant, and the judge who issued -the warrant, to the effect that the affiant swore to the same facts contained in the affidavit, before the judge, as well as before the notary public, and prior to the issuance of the- warrant.
The defendants (appellees) argue that Crim. R. 41(C) prohibits the state from presenting any additional testimony, unless it was recorded, transcribed, and made a part of the affidavit, as provided by Crim. R. 41(0).
The protection afforded by the Fourth Amendment to the United State Constitution requires that a search warrant be issued only by a detached and neutral judge, after a-determination of probable cause. See: Coolidge v. New Hampshire, 403 U. S. 443; Shadwick v. Tampa, 407 U. S. 345; and Nicholas v. Cleveland, 125 Ohio St. 474.
The federal courts have long permitted the supplementing of affidavits for search warrants by oral testimony before a judge or magistrate. See: Aguilar v. Texas, 378 U. S. 108; Spinelli v. United States, 393 U. S. 410. Such testimony, in effect, bolstered the affidavit and many times required post-seizure hearings to ascertain if there was sufficient testimony to establish probable cause under Fed. R. Crim. P. 41 (C). Many times, such testimony before a judge or magistrate was unrecorded.
Courts have, generally, favored the validity of searches pursuant to a warrant because a contrary position might tend to discourage police officers from submitting their evidence to a judicial officer before acting. Bee-. United States v. Ventresca, 380 U. S. 102.
Crim. R. 41(C) is similar to Fed. R. Gririi. P. 41(C), except for two important additional sentences: