[Cite as State v. Kithcart, 2013-Ohio-3022.]


                                         COURT OF APPEALS
                                      ASHLAND COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT



STATE OF OHIO                                  :      JUDGES:
                                               :      Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                     :      Hon. Sheila G. Farmer, J.
                                               :      Hon. John W. Wise, J.
-vs-                                           :
                                               :
TYLER W. KITHCART                              :      Case No. 12-COA-048
                                               :
        Defendant-Appellant                    :      OPINION




CHARACTER OF PROCEEDING:                              Appeal from the Municipal Court,
                                                      Case No 12-CRB-825AB



JUDGMENT:                                             Affirmed




DATE OF JUDGMENT:                                     July 10, 2013




APPEARANCES:

For Plaintiff-Appellee                                For Defendant-Appellant

W. DAVID MONTAGUE                                     LORI ANN RUSSELL
1213 East Main Street                                 5735 County Road 98
Ashland, OH 44805                                     Williamsport-Chesterville Road
                                                      Mt. Gilead, OH 43338
Ashland County, Case No. 12-COA-048                                                  2

Farmer, J.

       {¶1}     On July 16, 2012, Ashland Police Detective Brian Evans secured and

executed a search warrant at the home of appellant, Tyler Kithcart. The search warrant

had been signed by a magistrate. As a result of the search, appellant was charged with

one count of possession of drug paraphernalia in violation of R.C. 2925.14 and one

count of possession of marijuana in violation of Ashland Codified Ordinance

513.03(C)(2).

       {¶2}     On September 4, 2012, appellant filed a motion to suppress, challenging

the search warrant. A hearing was held on September 18, 2012. No testimony was

taken, but arguments were made. By opinion and judgment order filed November 9,

2012, the trial court denied the motion.

       {¶3}     On November 27, 2012, appellant pled no contest to the charges. By

judgment order filed January 2, 2013, the trial court found appellant guilty and

sentenced him to thirty days in jail, ten days suspended.

       {¶4}     Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

                                            I

       {¶5}     "THE TRIAL COURT ERRED IN DENYING PLAINTIFF'S MOTION TO

SUPPRESS EVIDENCE OBTAINED AS A RESULT OF A SEARCH, PURSUANT TO A

WARRANT, OF THE APPELLANT TYLER KITHCART'S RESIDENCE BECAUSE THE

AFFIDAVIT IN SUPPORT OF THE WARRANT DID NOT ESTABLISH THE

CONSTITUTIONALLY REQUIRED PROBABLE CAUSE ALL IN VIOLATION OF THE
Ashland County, Case No. 12-COA-048                                                           3


FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND

SECTION 14 ARTICLE I OF THE OHIO CONSTITUTION."

                                               II

       {¶6}    "THE TRIAL COURT ERRED IN DENYING PLAINTIFF'S MOTION TO

SUPPRESS EVIDENCE OBTAINED AS A RESULT OF A SEARCH, PURSUANT TO A

WARRANT, OF THE APPELLANT TYLER KITHCART'S RESIDENCE BECAUSE THE

WARRANT WAS SIGNED BY A MAGISTRATE AND NOT A JUDGE, AND

THEREFORE VOID IN ACCORDANCE WITH STATE V. COMMINS IN VIOLATION OF

THE    APPELLANT'S        RIGHTS      AS    GUARANTEED          BY    THE    FOURTH       AND

FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND

SECTION 14 ARTICLE I OF THE OHIO CONSTITUTION."

                                               I

       {¶7}    Appellant claims the trial court erred in denying his motion to suppress as

the affidavit for the search warrant was deficient and fell far short of probable cause.

We disagree.

       {¶8}    There are three methods of challenging on appeal a trial court's ruling on a

motion to suppress. First, an appellant may challenge the trial court's findings of fact.

In reviewing a challenge of this nature, an appellate court must determine whether said

findings of fact are against the manifest weight of the evidence. State v. Fanning, 1

Ohio St.3d 19 (1982); State v. Klein, 73 Ohio App.3d 486 (4th Dist. 1991); State v.

Guysinger, 86 Ohio App.3d 592 (4th Dist. 1993). Second, an appellant may argue the

trial court failed to apply the appropriate test or correct law to the findings of fact. In that

case, an appellate court can reverse the trial court for committing an error of law. State
Ashland County, Case No. 12-COA-048                                                      4

v. Williams, 86 Ohio App.3d 37 (4th Dist. 1993). Finally, assuming the trial court's

findings of fact are not against the manifest weight of the evidence and it has properly

identified the law to be applied, an appellant may argue the trial court has incorrectly

decided the ultimate or final issue raised in the motion to suppress. When reviewing

this type of claim, an appellate court must independently determine, without deference

to the trial court's conclusion, whether the facts meet the appropriate legal standard in

any given case. State v. Curry, 95 Ohio App.3d 93 (8th Dist. 1994); State v. Claytor, 85

Ohio App.3d 623 (4th Dist. 1993); Guysinger. As the United States Supreme Court held

in Ornelas v. U.S., 517 U.S. 690, 116 S.Ct. 1657, 1663 (1996), "…as a general matter

determinations of reasonable suspicion and probable cause should be reviewed de

novo on appeal."

       {¶9}     We note no evidence was taken during the hearing on the motion to

suppress, as the matter was solely argued from the four corners of the affidavit attached

to the search warrant. As the trial court properly noted in its opinion and judgment order

filed November 9, 2012, the affidavit does not contain any specific information as to the

credibility or reliability of the two informants included in the affidavit which partially

formed Detective Evans's probable cause assertion. However, the trial court was also

correct in finding that strict adherence to Spinelli v. U.S., 393 U.S. 430 (1969), has been

modified and retooled by the United States Supreme Court in Illinois v. Gates, 462 U.S.

213 (1983), and the Supreme Court of Ohio in State v. George, 45 Ohio St. 3d 325

(1989). The George court held the following at paragraph one of the syllabus and 329,

respectively:
Ashland County, Case No. 12-COA-048                                                   5


            [syllabus] 1. In determining the sufficiency of probable cause in an

     affidavit submitted in support of a search warrant, "[t]he task of the issuing

     magistrate is simply to make a practical, common-sense decision whether,

     given all the circumstances set forth in the affidavit before him, including

     the 'veracity' and 'basis of knowledge' of persons supplying hearsay

     information, there is a fair probability that contraband or evidence of a

     crime will be found in a particular place." (Illinois v. Gates [1983], 462

     U.S. 213, 238–239, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 followed.)

            [329] The Gates decision provides considerable elaboration as to

     the "fair probability" standard applicable to the magistrate's probable

     cause determination.       We find the following passage particularly

     instructive:

            "*** '[T]he term "probable cause," according to its usual acceptation,

     means less than evidence which would justify condemnation***. It imports

     a seizure made under circumstances which warrant suspicion' [quoting

     from Locke v. United States (1813), 7 Cranch 339, 348]. More recently,

     we said that 'the quanta***of proof' appropriate in ordinary judicial

     proceedings are inapplicable to the decision to issue a warrant. Brinegar,

     338 U.S., at 173.      Finely tuned standards such as proof beyond a

     reasonable doubt or by a preponderance of the evidence, useful in formal

     trials, have no place in the magistrate's decision.***[I]t is clear that 'only

     the probability, and not a prima facie showing, of criminal activity is the

     standard of probable cause.' Spinelli, 393 U.S., at 419. See Model Code
Ashland County, Case No. 12-COA-048                                                      6


       of Pre-Arraignment Procedure § 210.1(7) (Prop. Off. Draft 1972); 1 W.

       LaFave, Search and Seizure § 3.2(e) (1978)." (Emphasis added.) Illinois

       v. Gates, supra, at 235.



       {¶10} In Brinegar v. United States, 338 U.S. 160, 175 (1949), the United States

Supreme Court explained "probable cause" as: "[i]n dealing with probable cause,

however, as the very name implies, we deal with probabilities. These are not technical;

they are the factual and practical considerations of everyday life on which reasonable

and prudent men, not legal technicians, act." Using the totality of the circumstances, we

find there was probable cause to issue the search warrant.

       {¶11} Pursuant to the affidavit, one informant stated appellant asked him to buy

pseudoephedrine.       Detective Evans stated through his personal investigation, he

discovered that the informant had indeed purchased pseudoephedrine on two

occasions from area stores and appellant had purchased 96 count boxes of

pseudoephedrine from local drug stores. The dosage purchased was consistent with

the size used to manufacture methamphetamine. All the purchases occurred over a

four   day   period.      Both    informants   stated   appellant   admitted   to   cooking

methamphetamine. The second informant admitted to purchasing methamphetamine

from appellant.

       {¶12} Despite no statement as to the credibility and reliability of the two

informants, we find Detective Evans's independent knowledge sufficiently corroborated

the information contained in the affidavit.

       {¶13} Assignment of Error I is denied.
Ashland County, Case No. 12-COA-048                                                  7


                                            II

      {¶14} Appellant claims the issuance of the search warrant by a magistrate was

unlawful and therefore the warrant was void as there is no statutory authority for a

magistrate to issue a warrant. While we agree that only a "judge" in Ohio can issue a

search warrant, we nonetheless find the good faith exception to the exclusionary rule

applies sub judice.

      {¶15} We have recently addressed the issue of "who" can issue a search

warrant in State v. Brown, 5th Dist. No. 2012CA00099, 2013-Ohio-2224. Although this

writer dissented and found a Probate Judge had the authority to issue search warrants,

the majority opinion clearly found only a "judge" can issue a warrant at ¶ 18-19:



             R.C. 2931.01 (B) and (C) became effective January 1, 1976, nearly

      eight years after the 1968 and 1973 Modern Courts Amendments. Crim.

      R.41 was adopted January 1, 1973. R.C. 2933.21 became effective June

      13, 1975. It is important to note the effective date of R.C. 2931.01 is the

      latest enactment. We cannot ignore, nor do we presume, the legislature’s

      specific exclusion of a "probate judge" and the "probate court" found

      therein was an act of oversight or inadvertence. To the contrary, we find it

      an expression of the legislature’s manifest intent.

             Applying R.C. 1.51, we opine the definition of "courts of record" in

      R.C. 2933.21 and Crim.R. 41 are general provisions in comparison to the

      specific exclusion of a probate judge and the probate court found in R.C.

      2931.01(B) and (C). To the extent they cannot be reconciled to give effect
Ashland County, Case No. 12-COA-048                                                       8


       to both, R.C. 1.51 states the special provision [R.C. 2931.01(B) and (C)]

       prevails as an exception to the general provision [R.C. 2933.21 and

       Crim.R.41] unless the general provision is the later adoption and the

       manifest intent is that the general provision prevail. But as previously

       stated, R.C. 2933.21 and Crim.R.41 were both enacted before the

       adoption of R.C. 2931.01(B) and (C).             Assuming, arguendo, R.C.

       2931.01(B) and (C) is a general provision and R.C. 2933.21 and

       Crim.R.41 are specific provisions, R.C. 2931.01(B) and (C) would be the

       "later adoption" and by it the legislature manifested its intent it prevail over

       the former because R.C. 2931.01(B) and (C) specifically excludes a

       probate judge or the probate court as used in Chapters 2931. to 2953. of

       the Revised Code.



       {¶16} R.C. 2933.23, contra to Crim.R. 41 and R.C. 2933.21, includes the term

"magistrate" in requiring an affidavit to secure a search warrant:



              A search warrant shall not be issued until there is filed with the

       judge or magistrate an affidavit that particularly describes the place to be

       searched, names or describes the person to be searched, and names or

       describes the property to be searched for and seized; that states

       substantially the offense in relation to the property and that the affiant

       believes and has good cause to believe that the property is concealed at

       the place or on the person; and that states the facts upon which the
Ashland County, Case No. 12-COA-048                                                    9


      affiant's belief is based. The judge or magistrate may demand other and

      further evidence before issuing the warrant. If the judge or magistrate is

      satisfied that grounds for the issuance of the warrant exist or that there is

      probable cause to believe that they exist, he shall issue the warrant,

      identifying in it the property and naming or describing the person or place

      to be searched.



      {¶17} As our brethren from the Twelfth District in State v. Commins, 12 Dist.

Nos. CA2009-06-004 and CA2009-06-005, 2009-Ohio-6415 ¶ 21-22, pointed out:



             For purposes of R.C. Chapter 2933, R.C. 2931.01(A) defines

      "magistrate" as "county court judges, police justices, mayors of municipal

      corporation[s], and judges of other courts inferior to the court of common

      pleas." See R.C. 2933.01. In turn, Crim.R. 2 defines "judge" as "judge of

      the court of common pleas, juvenile court, municipal court, or county court,

      or the mayor or mayor's court magistrate of a municipal corporation having

      a mayor's court;" and "magistrate" as "any person appointed by a court

      pursuant to Crim.R. 19. 'Magistrate' does not include an official included

      within the definition of magistrate contained in [R.C.] 2931.01." Crim.R.

      2(E), (F). (Emphasis added.)

             In light of the definition of a magistrate under R.C. 2933.01 and

      Crim.R. 2(F), it is clear that when used in R.C. 2933.21 through 2933.25,

      the term "magistrate" exclusively and specifically refers to elected officials
Ashland County, Case No. 12-COA-048                                                     10


      who act in a judicial capacity, such as the trial judge here, and not to an

      appointed official, such as Magistrate Rowlands. It follows that to be valid,

      a search warrant must be signed by a judge, and can only be signed by a

      judge, prior to the search.



      {¶18} We concur with this analysis. We find R.C. 2933.23 only authorizes the

presentation of an affidavit to a magistrate, not the signing of a warrant by a magistrate.

Crim.R. 41 and R.C. 2933.21 are sufficiently clear that only a "judge" may issue a

warrant. The authority to issue search warrants is limited solely to judges.

      {¶19} In its opinion and judgment order filed November 9, 2012, the trial court

discussed the Commins case and found the good faith exception to the exclusionary

rule applied. As noted by the Commins court at ¶ 26, the good faith exception to the

exclusionary rule was first recognized by the United States Supreme Court in United

States v. Leon, 468 U.S. 897 (1984). The Supreme Court of Ohio adopted the good

faith exception two years later in State v. Wilmoth, 22 Ohio St.3d 251 (1986), syllabus:



             1. The exclusionary rule should not be applied to suppress

      evidence obtained by police officers acting in objectively reasonable, good

      faith reliance on a search warrant issued by a detached and neutral

      magistrate but ultimately found to be invalid.      (United States v. Leon

      [1984], 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677, followed.)

             2. Where the officer's conduct in the course of a search and seizure

      is objectively reasonable and executed in good faith, excluding the
Ashland County, Case No. 12-COA-048                                                  11


      evidence because the search warrant is found to be constitutionally invalid

      will not further the ends of the exclusionary rule in any appreciable way.



      {¶20} As noted by the Commins court at ¶ 25:



             "The fact that a Fourth Amendment violation occurred-i.e., that a

      search or arrest was unreasonable-does not necessarily mean that the

      exclusionary rule applies." Herrings v. United States (2009), 555 U.S.

      135, 129 S.Ct. 695, 700, 172 L.Ed.2d 496. The United States Supreme

      Court has "repeatedly rejected the argument that exclusion is a necessary

      consequence of a Fourth Amendment violation."          Id.   "To trigger the

      exclusionary rule, police conduct must be sufficiently deliberate that

      exclusion can meaningfully deter it, and sufficiently culpable that such

      deterrence is worth the price paid by the justice system." Id. at 702.



      {¶21} As we noted in Assignment of Error I, no evidence was taken during the

suppression hearing. Absent any evidence to the contrary, the record demonstrates no

conduct by the executing officer that would point to a lack of good faith or any

understanding that the warrant might be defective.

      {¶22} Assignment of Error II is denied.
Ashland County, Case No. 12-COA-048                                           12


      {¶23} The judgment of the Municipal Court of Ashland County, Ohio is hereby

affirmed.

By Farmer, J.

Gwin, P.J. and

Wise, J. concur.




                                        _______________________________



                                        _______________________________



                                        _______________________________

                                                     JUDGES

SGF/sg 620
[Cite as State v. Kithcart, 2013-Ohio-3022.]


               IN THE COURT OF APPEALS FOR ASHLAND COUNTY, OHIO

                                     FIFTH APPELLATE DISTRICT



STATE OF OHIO                                   :
                                                :
        Plaintiff-Appellee                      :
                                                :
-vs-                                            :       JUDGMENT ENTRY
                                                :
TYLER W. KITHCART                               :
                                                :
        Defendant-Appellant                     :       CASE NO. 12-COA-048




        For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Municipal Court of Ashland County, Ohio is affirmed.          Costs to

appellant.




                                                _______________________________



                                                _______________________________



                                                _______________________________

                                                            JUDGES
