[Cite as State v. Dulaney,

.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT PAULDING COUNTY

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 11-12-04

v.

VARAINA C. DULANEY, OPINION

DEFENDANT-APPELLANT.

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

Judgment Reversed and Cause Remanded

Date of Decision: September 16, 2013

APPEARANCES:

Peter R. Seibel for Appellant

Joseph R. Burkard and Matthew A. Miller for Appellee Case No. 11-12-04

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

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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

1 Pursuant to R.C. 1907.11(A), the proper term for the court at issue in this matter is the “Paulding County county court.” Despite the seeming redundancy of this terminology, we have elected to use this statutory term out of deference to the General Assembly, which is responsible for the court’s creation.

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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

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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,

, 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,

(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,

,

, ¶ 100. The appellate court must then review the application of

the law to the facts de novo.

.

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

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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,

,

, ¶ 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,

, ¶ 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,

(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,

,

(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,

,

(1909). As such, a judge/magistrate for Fourth Amendment purposes is an

2 This court does not engage in this practice of using “magistrate” to refer to the issuing authorities for search warrants because Ohio law does not allow “magistrates” to issue search warrants. E.g., State v. Commis, 12th Dist. Clinton Nos. CA2009-06-004, CA2009-06-005,

, ¶ 22 (finding that search warrant signed by a magistrate was invalid because “to be valid, a search warrant must be signed by a judge, and can only be signed by a judge, prior to the search”).

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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.,

concurring); accord United States v. Griffin, E.D.Wis. No. 11-CA-30,

, *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,

(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,

(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,

, and circuit court commissioners,

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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,

(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.

. 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

3 The State does not argue on appeal that the Paulding County county court judge had authority under Ohio law to issue the search warrant for the blood samples. Even if the State did raise such an argument, we are unable to find a statute or Criminal Rule that authorizes judges of a county court to issue warrants for seizures of evidence located in a foreign county.

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Defendant’s home. The search therefore violated Defendant’s Fourth Amendment

rights.”

; accord United States v. Youngbear, N.D.Iowa No. 11-CR-151-

LRR,

, *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,

(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 4 The same statutory creation and limitation applies to municipal courts. E.g., State v. Lovelace, 1st Dist. Hamilton No. C-110715,

.

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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, L.L.C.,

,

, ¶ 7

5 The issuing judge in Ridenour was a judge of the Probate/Juvenile Division of the Meigs County Court of Common Pleas.

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(“[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,

(“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,

, ¶ 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

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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,

, 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 Hardy’s and Bowman’s guidance here since we

find that the rule of law announced in those cases is contrary to well-settled federal

6 Although the State argues that we should adopt the majority opinion from Hardy, we approvingly note Judge Faine’s concurring opinion in that matter, which pertinently and persuasively states as follows:

Plainly, the Fourth Amendment requires that a search warrant issue from a “neutral and detached magistrate.” Johnson v. United States,

,

(1948). In my view, this must refer to a public officer authorized by law to issue search warrants. No matter how neutral and detached, or generally capable, a self-appointed “magistrate” may be, or a “magistrate” designated by General Motors, for example, anyone other than a public officer authorized by law to issue search warrants cannot, in my view, be considered a magistrate for Fourth Amendment purposes. A judge of a court of record in Ohio is authorized by R.C. 2933.21(A) to issue a search warrant “within his jurisdiction.” In my view, then a judge of a court of record in Ohio is not authorized by law to issue a search warrant outside of the judge’s jurisdiction and can no more be considered a magistrate for Fourth Amendment purposes than anyone else lacking that authority – be that judge the finest jurist who can be found in a sister state or a foreign country. I would overrule the assignment of error in this case, and affirm, because the police officer conducting the search and seizure was in good faith in believing that he had a valid warrant, even though he in fact did not. Once we allow for reasonable police officers within this jurisdiction to become acquainted with the territorial limits upon a magistrate’s authority to issue search warrants, however, claims of good-faith exceptions to the warrant requirement are likely to be unavailing.

(Emphasis added.) Hardy, supra (Fain, J., concurring).

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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,

(E.D.Mich. 2004); accord United

States v. Scott,

(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,

; United States v. Neering,

(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,

(1997)

(stating that the interpretation of the Fourth Amendment and Article I, Section 14

7 We also note that the courts in both Hardy and Bowman found that regardless of the warrants’ validity, the police officers’ execution of the warrants was in good faith and consequently did not create any constitutional infirmity. Bowman at ¶ 15-16; Hardy, surpa.

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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,

,

, ¶ 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,

(1986).8 In Wilmoth, the court created a test to distinguish between “fundamental”

and “non-fundamental” violations of Crim.R. 41.

. 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.

. The court

concluded that the violation was merely “technical” in nature and did not implicate

questions of constitutionality.

.

8 Both the Second and Tenth District relied on the rule announced in Wilmoth in reaching its conclusion. See Bowman,

; Hardy, supra.

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{¶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,

(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,

(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,

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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,

,

(2006) (“Suppression of evidence * * * has

always been our last resort, not our first impulse.”); Arizona v. Evans,

,

(1995) (“In Whiteley [v. Warden, Wyo. State Penitentiary,

,

(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

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reflexive application of the exclusionary rule.”); United States v. Leon,

,

(1984) (“Whether the exclusionary sanction is

appropriately imposed in a particular case * * * is an issue separate from the

question whether the Fourth Amendment rights of the party seeking to invoke the

rule was violated by police conduct.”). Accordingly, our finding that the seizure

of Dulaney’s blood samples violated the Fourth Amendment does not end our

inquiry. Rather, our finding mandates that we must determine whether we should

wield the exclusionary rule to suppress the evidence obtained from the illegal

seizure.

{¶22} When determining whether suppression is appropriate, courts must

consider the policy consequences and goals of the exclusionary rule. On the one

hand, the exclusionary rule’s application may cause “the loss of probative

evidence and the secondary costs that arise from the ‘less accurate and more

cumbersome adjudication that therefore occurs.’” State ex rel. Wright v. Adult

Parole Auth.,

(1996), quoting Immigration & Naturalization

Serv. v. Lopez-Mendoza,

,

(1984).

Conversely, the United States Supreme Court has noted that “[t]he exclusionary

rule operates as a judicially created remedy designed to safeguard against future

violations of Fourth Amendment rights through the rule’s general deterrent

effect.”

. As a result of these conflicting policy considerations, courts

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are required to engage in a balancing test that weighs the benefits of applying the

rule versus its costs.9 Master,

, citing Herring v. United States,

,

(2009). If the benefits outweigh the costs, then

suppression is appropriate.

{¶23} Here, the trial court found that the State did not violate the Fourth

Amendment when it seized Dulaney’s blood samples pursuant to an invalid search

warrant. We have concluded otherwise and reversed the trial court’s decision in

that regard. Based on its erroneous decision regarding the Fourth Amendment

violation, the trial court never reached the issue of whether suppression was

appropriate. Since it never reached this issue, the appropriate disposition is to

remand this matter to the trial court so that it may consider whether suppression is

appropriate based on the principles we enunciated above. See

(remanding

matter so that trial court could conduct the above balancing test); State v. Oliver,

,

, ¶ 13 (same).

{¶24} In sum, we reverse the trial court’s denial of Dulaney’s motion to

suppress, which was based on that court’s finding that there was no Fourth

Amendment violation. We find that the seizure of Dulaney’s blood samples

violated her Fourth Amendment rights. Nevertheless, we remand this matter to the

9 Trial courts should also consider the general background of the Fourth Amendment and the precious rights that it protects. See Lopez v. United States,

,

(1963) (Brennan, J., dissenting) (“The requirements of the Fourth Amendment are not technical or unreasonably strident; they are bedrock rules without which there would be no effective protection of the right to personal liberty.”).

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trial court so that it can determine whether suppression is the appropriate remedy

for the Fourth Amendment violation based on the principles enunciated in Master

and any other relevant issues. These other relevant issues may include any

potential misconduct by Trooper Coil in procuring the search warrant, see

Bowman,

(stating that evidence of police misconduct

could support suppression of evidence), and the potential applicability of

exclusionary rule exceptions, such as the good faith exception, see State v.

George,

(1989) (describing the applicable standard for the good

faith exception).

{¶25} Accordingly, we sustain Dulaney’s sole assignment of error.

{¶26} Having found error prejudicial to Dulaney, in the particulars assigned

and argued, we reverse the trial court’s judgment and remand this matter for

further proceedings consistent with this opinion.

Judgment Reversed and Cause Remanded

WILLAMOWSKI and SHAW, J.J., concur.

/jlr

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