Ohio law does not allow probate court judges to issues criminal search warrants; however, prosecutors charging three men with illegal gambling in Alliance can use the evidence gathered from a probate judge-issued warrant against them.

The Ohio Supreme Court found state law distinctly excludes probate courts and probate judges from issuing criminal warrants, and only probate judges sitting on assignment by the chief justice of the Supreme Court in another court can issue criminal warrants.

The ruling, written by Justice William M. O’Neill, prevents Ohio law enforcement from seeking warrants from probate judges in the future, but does not impact the evidence recovered in the Alliance search because the court found police acted in good-faith to obtain the warrant.

Gambling Conviction
Todd E. Brown, Jeffrey J. Shipley, and Raymond McCloude leased a space in Alliance to open a business called “Little Vegas.” In February 2012, the Alliance police sought a warrant to search the business premises from Judge Dixilene Park, who serves as a judge in the probate division of the Stark County Common Pleas Court. The judge found probable cause and issued the warrant.

Pursuant to the warrant, police confiscated 30 video slot machines and charged Brown, Shipley, and McCloude with illegal gambling and operating a gambling house. The three filed motions to suppress the evidence obtained during the search arguing that the warrant was void because probate judges do not have the authority under R.C. 2933.21 to issue criminal search warrants. A municipal court magistrate and municipal court judge agreed with the three and granted the motion to suppress.

Prosecutors appealed to the Fifth District Court of Appeals, which affirmed the municipal court’s determination that a probate judge lacks the authority to issue a warrant. However, the appellate court reversed the trial court’s judgment suppressing the evidence, finding the police officers acted in good-faith reliance on the warrant. It directed the municipal court to allow the evidence from the search to be admitted.

The state appealed to the Ohio Supreme Court, arguing that because probate courts are divisions of the common pleas court, probate judges have the authority to hear evidence and issue search warrants in criminal matters. The three charged with the crime did not file briefs with the Supreme Court and were barred from presenting oral arguments.

Law Excludes Probate Judges
Justice O’Neill explained that R.C. 2933.21 and Ohio Criminal Rule 41(A)(1) indicate a judge within the court’s territorial jurisdiction can issue criminal warrants. However, R.C. 2931.01, effective Jan. 1, 1976, covers Chapters 2931 to 2953 of the Revised Code. It states: “(B) ‘Judge’ does not include the probate judge. (C) ‘Court’ does not include the probate court.”

“Plainly pursuant to the Ohio Revised Code, a probate judge does not have the authority to issue a search warrant in a criminal case,” Justice O’Neill wrote.

An exception to the law is recognized in cases where the chief justice uses the authority granted by Article IV, Section 5(A)(3) of the Ohio Constitution to assign a probate judge to temporarily sit or hold court in any other division of a common pleas court.

Justice O’Neill noted that authority was not invoked in this case because Judge Park was not on an assignment.

Excluding Probate an Oversight
The state had argued the statute excluding the probate court was missed or improperly left on the books after voters overhauled the judicial system with the 1968 Modern Courts Amendment. Prior to the change, the law had separate probate courts, but the amendment created probate divisions within the state’s common pleas courts. The high court explained that if it was an error, the Ohio General Assembly has had 45 years to correct it, and only when a statute is unclear is it proper for the court to examine the legislative history and intent to determine what a law means.

“The language of the statute is plain and unambiguous. Thus, we decline to ignore the plain language of the statue to embrace the state’s supposition,” Justice O’Neill wrote.

Clarifying ‘Good Faith’ Exemption
As to the evidence gathered in this case, the high court sided with the Fifth District. Justice O’Neill indicated that while neither the accused men nor the state appealed the issue of whether the evidence admission should stand, the court addressed the good-faith exception for clarity.

He explained the long-standing exclusionary rule created to protect rights guaranteed by the U.S. Constitution’s Fourth Amendment. In the 1984 United States v. Leon decision, the U.S. Supreme Court established a good-faith exception to the rule that applies when law enforcement actions are minor infractions, and the benefit to the criminal suspects of having the evidence excluded is significant.

“For this reason, the Supreme Court of the United States determined that the exclusionary rule should not be applied to bar evidence obtained by officers acting in reasonable good-faith reliance on a search warrant issued by a detached and neutral magistrate that is ultimately found to be unlawful,” Justice O’Neill concluded.

The court remanded the case back to the trial court with the directive that warrants issued by probate judges are not authorized, but in this matter the evidence obtained by the search can be admitted.

Chief Justice Maureen O’Connor and Justices Paul E. Pfeifer and Judith Ann Lanzinger concurred in the opinion. Justices Terrence O’Donnell, Sharon L. Kennedy, and Judith L. French concurred in the judgment only.

2013-1110, 2013-1111, and 2013-1112. State v. Brown, Slip Opinion No. 2015-Ohio-486.

View oral argument video of this case.

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