[Cite as State v. McCloude, 2013-Ohio-2226.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



STATE OF OHIO                                  :    JUDGES:
                                               :    Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellant                    :    Hon. William B. Hoffman, J.
                                               :    Hon. Sheila G. Farmer, J.
-vs-                                           :
                                               :
RAYMOND MCCLOUDE                               :    Case No. 2012CA00101
                                               :
        Defendant-Appellee                     :    OPINION




CHARACTER OF PROCEEDING:                            Appeal from the Alliance Municipal
                                                    Court, Case No. 2012 CRB 00189



JUDGMENT:                                           Reversed and Remanded




DATE OF JUDGMENT:                                   May 28, 2013




APPEARANCES:

For Plaintiff-Appellant                             For Defendant-Appellee

ANDREW L. ZUMBAR                                    FREDRICK PITINII
470 East Market Street                              101 Central Plaza South
Alliance, OH 44601                                  Suite 1000
                                                    Canton, OH 44702
Stark County, Case No. 2012CA00101                                                           2

Hoffman, J.

      {¶1}    Plaintiff-appellant the State of Ohio appeals the May 17, 2012 Judgment

Entry entered by the Alliance Municipal Court granting Defendant-appellee Raymond

McCloude’s motion to suppress evidence.

                             STATEMENT OF FACTS AND CASE

      {¶2}    On February 9, 2012, Alliance Police Detective Bob Rajean obtained a

search warrant from Judge Dixilene Park, a judge of the Court of Common Pleas of

Stark County, Probate Division. The warrant was executed on a commercial business

operated by Appellee Raymond McCloude. As a result, Appellee was charged with one

count of gambling, in violation of R.C. 2915.02, and one count of operating a gambling

house, in violation of R.C. 2915.03.

      {¶3}    On March 12, 2012, Appellee filed a motion to suppress, claiming R.C.

2913.01 precludes a probate judge from issuing a search warrant. A hearing was held

before a magistrate on April 4, 2012. By report and recommendation filed April 30,

2012, the magistrate agreed with Appellee and recommended granting the motion.

Appellant, the state of Ohio, filed objections. By judgment entry filed May 17, 2012, the

trial court overruled the objections and approved the magistrate's report.

      {¶4}    It is from that entry, Appellant prosecutes this appeal, assigning as error:

                                             I

      {¶5}    "THE TRIAL COURT ERRED WHEN IT ADOPTED THE MAGISTRATE'S

RULING CONCLUDING THAT THERE WAS NO AUTHORITY ON THE PART OF

JUDGE OF THE COMMON PLEAS COURT, PROBATE DIVISION TO ACT UPON A

REQUEST FOR A SEARCH WARRANT."
Stark County, Case No. 2012CA00101                                                    3


                                            II

       {¶6}   "THE TRIAL COURT ERRED WHEN IT ADOPTED THE MAGISTRATE'S

RULING WHICH SUPPRESSED ALL ITEMS SECURED BY ALLIANCE POLICE

DEPARTMENT IN A COMMERCIAL STRUCTURE INCLUDING THOSE ITEMS

WHICH WERE LOCATED IN PLAIN VIEW IN AN AREA OPEN TO THE GENERAL

PUBLIC."

                                            III

       {¶7}   "THE TRIAL COURT ERRED WHEN IT GRANTED THE REMEDY OF

SUPPRESSION OF EVIDENCE FOR A CLAIMED VIOLATION OF A STATUTORY

PROVISION WHEN OFFICERS WERE ACTING IN GOOD FAITH ON A WARRANT

BELIEVED TO BE VALID."

                                                  I

       {¶8}   The primary issue before this Court is whether a judge of the Court of

Common Pleas, Probate Division, has the authority to issue a search warrant. For the

reasons that follow, we think not.

       {¶9}   R.C. 2933.21 (Search warrant) states, in part:

              “A judge of a court of record may, within his jurisdiction, issue

       warrants to search a house or place…”

              In conjunction thereto, Crim.R.41(A) (Authority to issue warrant)

       provides:

              “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…”
Stark County, Case No. 2012CA00101                                                     4


      {¶10} However, R.C. 2931.01 states, “As used in Chapters 2931. to 2953. of the

Revised Code… (B) ‘Judge’ does not include the probate judge. (C) ‘Court’ does not

include the probate court.”

      {¶11} Appellant argues the probate judge and probate court were abolished by

amendments to the Ohio Constitution in 1968 and 1973, and R.C. 2931.01 is “…a hold-

over from the antiquated General Code, and refers to a prior time period when there

actually existed a separate Probate Judge and separate Probate Court in Ohio.”

Appellant expounds the most plausible explanation for their exclusion from authority to

issue search warrants is they were originally not courts of record. Appellant argues they

became such by amendments to the Ohio Constitution in 1968 and 1973.

      {¶12} We believe there still exists a “probate judge” and a “probate court,”

although they are now recognized as a separate division of the Court of Common Pleas.

We recognize the probate court is now considered a “court of record.” But does this

changed status render the exclusion found in R.C. 2931.01(B) and (C) of no

consequence?

      {¶13} The Ohio Supreme Court in State v. Cotton (1978) 56 Ohio St.2d 8, 12-13,

found R.C. 2931.01 was ineffective to disqualify judges of the Probate Division of the

Court of Common Pleas from serving on criminal cases, based upon the 1968 and 1973

constitutional amendments establishing the Probate Division of a Court of Common

Pleas.1 Because Section 5(A)(3) of Article IV of the Ohio Constitution authorizes the

chief justice or acting chief justice to assign any judge of a court of common pleas or a

division thereof to temporarily sit or hold court on any other court of common pleas or

1
 See State v. Bays (1999), 87 Ohio St.3d 15; and State, ex rel. Key v. Spicer (2001), 91
Ohio St.3d 469, for a similar result.
Stark County, Case No. 2012CA00101                                                          5


division thereof, the Ohio Supreme Court concluded a probate court judge could serve

in criminal cases despite R.C. 2931.01.

      {¶14} We find Cotton is not dispositive of the issue herein for the simple reason

Judge Park was not assigned by the chief justice or acting chief justice pursuant to

Section (5)(A)(3) to preside over a criminal case. In the absence of such a specific

constitutional delegation of authority, we find no reason the legislature’s directive in

2931.01(B) and (C) should be declared ineffective as it relates to excluding a probate

court judge from having the authority to issue a search warrant.

      {¶15} Appellant relies upon State v. Johnson (Ohio App.4th Dist.) 1986 WL 8799,

in support of its argument. The Johnson court concluded R.C. 2931.01(B) and (C) are

mere relics from [the] past and the phrase “judge of a court of record” in R.C. 2933.21

and Crim.R.41 is sufficiently specific to supersede the general definition of “judge” and

“court” in R.C. 2931.01, under the rules of construction codified at R.C. 1.12 and 1.51.2

      {¶16} R.C. 1.51 provides:

             If a general provision conflicts with a special or local provision, they

      shall be construed, if possible, so that effect is given to both. If the conflict

      between the provisions is irreconcilable, the special or local provision

      prevails as an exception to the general provision, unless the general

      provision is the later adoption and the manifest intent is that the general

      provision prevail.



2
  We find R.C. 1.12 of little or no consequence in determining the issue before us. R.C.
1.12 makes specific reference to special provisions as to service, pleadings, and
competency of witnesses. We find such to be essentially procedural in nature. On the
other hand, we find R.C. 2931.01 specifically defines a court’s authority/jurisdiction to
issue a search warrant, essentially a substantive provision.
Stark County, Case No. 2012CA00101                                                       6

         {¶17} Appellee argues the Johnson court misapplied the above rules.           We

agree.

         {¶18} 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.

         {¶19} 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 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.

         {¶20} Appellant’s first assignment of error is overruled.
Stark County, Case No. 2012CA00101                                                        7


                                                III

       {¶21} In United States v. Leon (1984), 468 U.S. 897, 104 S.Ct. 3405, the United

States Supreme Court established a good faith exception regarding insufficient or

defective search warrants. The Leon court held:

       {¶22} "This is particularly true, we believe, when an officer acting with objective

good faith has obtained a search warrant from a judge or magistrate and acted within its

scope. (Footnote omitted.) In most such cases, there is no police illegality and thus

nothing to deter. It is the magistrate's responsibility to determine whether the officer's

allegations establish probable cause and, if so, to issue a warrant comporting in form

with the requirements of the Fourth Amendment. In the ordinary case, an officer cannot

be expected to question the magistrate's probable-cause determination or his judgment

that the form of the warrant is technically sufficient. ‘[O]nce the warrant issues, there is

literally nothing more the policeman can do in seeking to comply with the law.’ Id., 428

U.S., at 498, 96 S.Ct., at 3054 (BURGER, C.J., concurring). Penalizing the officer for

the magistrate's error, rather than his own, cannot logically contribute to the deterrence

of Fourth Amendment violations. (Footnote omitted.)

       {¶23} "We conclude that the marginal or nonexistent benefits produced by

suppressing evidence obtained in objectively reasonable reliance on a subsequently

invalidated search warrant cannot justify the substantial costs of exclusion. We do not

suggest, however, that exclusion is always inappropriate in cases where an officer has

obtained a warrant and abided by its terms. ‘[S] earches pursuant to a warrant will rarely

require any deep inquiry into reasonableness,’ Illinois v. Gates, 462 U.S., at 267, 103

S.Ct., at 2347 (WHITE, J., concurring in judgment), for ‘a warrant issued by a magistrate
Stark County, Case No. 2012CA00101                                                      8


normally suffices to establish’ that a law enforcement officer has ‘acted in good faith in

conducting the search.’ United States v. Ross, 456 U.S. 798, 823, n. 32, 102 S.Ct.

2157, 2172, n. 32, 72 L.Ed.2d 572 (1982). Nevertheless, the officer's reliance on the

magistrate's probable-cause determination and on the technical sufficiency of the

warrant he issues must be objectively reasonable, cf. Harlow v. Fitzgerald, 457 U.S.

800, 815–819, 102 S.Ct. 2727, 2737–2739, 73 L.Ed.2d 396 (1982), (Footnote omitted)

and it is clear that in some circumstances the officer (Footnote omitted) will have no

reasonable grounds for believing that the warrant was properly issued."

      {¶24} Under the good faith exception espoused in Leon, the exclusionary rule

should not be applied so as to bar the use in the prosecution's case-in-chief of evidence

obtained by officers acting in objectively reasonable reliance on a search warrant issued

by a detached and neutral magistrate but ultimately found to be unlawful. State v.

Oprandi, 5th Dist. No. 07-CA-5, 2008-Ohio-168.

      {¶25} We agree with the State's position the officers herein acted in good faith

when executing the search warrant according to Leon. Alliance City Prosecutor Andrew

Zumbar testified at the suppression hearing herein,

      {¶26} “The Court: Okay. But you have a town whether it’s the Alliance Municipal

Court judge duly elected, you also have a general division judge who resides nearby, is

there a reason not only in your case, but in any cases you’ve cited why the probate

judge heard the search warrant?

      {¶27} “Mr. Zumbar: In this particular case before the Court?

      {¶28} “The Court: Or in the ones you cite or both?
Stark County, Case No. 2012CA00101                                                        9


       {¶29} “Mr. Zumbar: I don’t believe it’s clear in the cases. That question that

you’ve asked is not answered in the cases that you’ve - - that I’ve presented to the

Court, you know, why did the probate judge hear this. In terms of this case, the Stark

County Common Pleas, Court, Probate Division judges have been haring probable

cause for search warrants dating back at least to R.R. Denny Clunk. I can tell this Court

as an officer before this Court, I have personally secured warrants from Judge Clunk

himself when he was a probate division judge of the common pleas court and then

subsequently when he began as acting judge of the Alliance Municipal Court as well.

But that was the very first time that I secured a warrant from the probate judge was

when Judge Clunk was on the bench. It goes back that far.

       {¶30} “The Court: Okay. So, it’s judge shopping.

       {¶31} “Mr. Zumbar: No, ma’am.

       {¶32} “The Court: Okay.

       {¶33} “Mr. Zumbar: No, Ma’am. If- -if the judge is available that’s who they- -

they go to whatever judge they can get their hands on at that time.

       {¶34} “The Court: Whatever judge is available. So, in choosing you contact the

other judges and they either don’t answer- -unavailable, is that…

       {¶35} “Mr. Zumbar: I can’t state specifically, I was not the prosecutor who

submitted the probable cause in this case. I do know that other judges of the common

pleas division have been solicited from time to time. I’m directly aware of the fact that- -

Judge Sinclair has issued warrants. I’m directly aware that Judge Brown has issued

warrants.   I’m directly aware of the fact that not only has Judge Lavery issued

conservatively speaking, five hundred (500) search warrants.”
Stark County, Case No. 2012CA00101                                                    10


       {¶36} Tr. at p. 28-29.

       {¶37} In addition, the State's appellate brief offered a litany of appellate cases

demonstrating the common practice of probate division judges issuing search warrants

throughout the State of Ohio. See, State v. Bradley, 2nd Dist. No. CIV A 93-CA-101,

November 23, 1993; State v. Dewald, 3rd Dist. No. 13-82-35, May 27, 1983; State v.

Ridgeway, 4th Dist. No. 00CA19, 2001-Ohio-2655; State v. Cassidy, 11th Dist. No.

90L049, November 15, 1991; State v. Tatonetti, 11th Dist. No. 1021, January 7, 1983;

State v. Abrams, 12th Dist. No. 315, May 4, 1983.

       {¶38} As noted supra in Johnson, there was existing appellate authority, albeit

from another appellate district and which we have herein found to be unpersuasive, to

support a probate judge's authority to issue a search warrant.

       {¶39} Accordingly, at the time the officers executed the search warrant herein,

the past practice of the court and the police, as well as the law of other jurisdictions,

lead the officers to believe in good faith the search warrant was valid.

       {¶40} However, this Court having now found the probate court judge does not

have authority to issue search warrants, the State is now on notice in any future actions

and executions of search warrants, those search warrants issued by a probate division

may no longer be relied upon in good faith per Leon, supra.

       {¶41} The State's third assigned error is sustained.

                                                II

       {¶42} In light of our analysis and disposition of the State's third assignment of

error, we find the second assignment of error moot.
Stark County, Case No. 2012CA00101                                               11


      {¶43} The judgment of the Alliance Municipal Court is reversed, and the matter

remanded to that court for further proceedings in accordance with the law and this

opinion.

By Hoffman, J.

Gwin, P.J. concurs

Farmer, J. dissents


                                         s/ William B. Hoffman _________________
                                         HON. WILLIAM B. HOFFMAN


                                         s/ W. Scott Gwin _____________________
                                         HON. W. SCOTT GWIN


                                         _______________________________
                                         HON. SHEILA G. FARMER
Stark County, Case No. 2012CA00101                                                   12

Farmer, J., dissents

      {¶44} I respectfully dissent from the majority's opinion in Assignment of Error I.

While the majority recognizes that the probate court is now considered a "court of

record," it concluded a probate judge does not have the authority to issue search

warrants under R.C. 2931.01(B) and (C).

      {¶45} Based upon the decisions in Cotton, Bays, and Johnston as cited in the

majority opinion, I would find R.C. 2931.01 does not prohibit a probate judge from

issuing search warrants.

      {¶46} In ¶ 14, the majority dismisses the Cotton decision on the fact that "Judge

Park was not assigned by the chief justice or acting chief justice pursuant to Section

(5)(A)(3) to preside over a criminal case." I would find an assignment by the chief

justice not to be necessary because Judge Park is a member of the Court of Common

Pleas. In fact, Judge Park has the statutory authority to appoint other common pleas

judges to act as probate judge. R.C. 2101.37.

      {¶47} I specifically disagree with the majority's opinion that an archaic statute

governs sub judice, when in fact the passage of the 1968 Modern Courts Amendment

has placed all of the judges on the Court of Common Pleas on equal footing.

      {¶48} I concur with the majority's opinion on Assignment of Error II. I would

reverse the case on both assignments of error.




                                                 s/ Sheila G. Farmer ________________

                                                 HON. SHEILA G. FARMER
[Cite as State v. McCloude, 2013-Ohio-2226.]


                    IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                                   FIFTH APPELLATE DISTRICT



STATE OF OHIO                                  :
                                               :
        Plaintiff-Appellant                    :
                                               :
-vs-                                           :        JUDGMENT ENTRY
                                               :
RAYMOND MCCLOUDE                               :
                                               :
        Defendant-Appellee                     :        CASE NO. 2012CA00101




        For the reasons stated in our accompanying Opinion, the judgment of the

Alliance Municipal Court is reversed, and the matter remanded to that court for further

proceedings in accordance with the law and our Opinion. Costs to Appellee.




                                               s/ William B. Hoffman _________________
                                               HON. WILLIAM B. HOFFMAN


                                               s/ W. Scott Gwin _____________________
                                               HON. W. SCOTT GWIN


                                               s/ Sheila G. Farmer __________________
                                               HON. SHEILA G. FARMER
