The absence of the judge’s signature on an arrest warrant was not fatal where the affidavit for probable cause sworn by the witness was attested to by the judge and attached. The good faith exception also applies. (Finally, the state’s alternative argument for a warrantless arrest was waived by failing to present it to the trial court.) State v. Harrison, 2021-Ohio-4465, 2021 Ohio LEXIS 2530 (Dec. 22, 2021):
[P30] We note initially that as addressed in Williams, Ohio law vests only judges with the authority to issue search warrants. See Crim.R. 41(A) (search warrant or tracking-device warrant may be issued by a judge of a court of record); Crim.R. 41(C)(2) (judge shall issue search warrant if satisfied that probable cause exists); R.C. 2933.21 (judge of a court of record may, within his jurisdiction, issue search warrants); R.C. 2933.24(A) (search warrant shall require executing officer to search the place or person named or described for the property and bring the person before judge or magistrate). See also State v. Commins, 12th Dist. Nos. CA2009-06-004 and CA2009-06-005, 2009-Ohio-6415, ¶ 19-23 (search warrant issued by magistrate was void). By contrast, Ohio law allows arrest warrants to be issued by a judge, magistrate, clerk of court, or officer of the court designated by the judge. See Crim.R. 4(A)(1).
[*P31] We further note that no procedural rule or statute expressly requires the judge’s signature on a search warrant. See Williams at 28 (Holmes, J., dissenting) (“There is no ‘signature requirement’ for search warrants provided by statute in Ohio, by Constitution or by rule, and such signature must be considered as only ministerial in nature”). Nevertheless, this court has held that “[t]he signing of a search warrant is the only identifiable objective manifestation of a judge’s subjective intent to issue a search warrant. * * * Without having the signature of the authorizing magistrate affixed to the warrant, a citizen is left to guess whether such a warrant has validity.” Id. at 25. Indeed, “the signature requirement provides both protection and assurance to property owners faced with the threat of a search of their property, in that they may review the document and determine whether or not they are required to allow officers to conduct the search.” Id. at 26.
[*P32] Like a search warrant in which the breadth of the search and seizure is limited by the terms expressly approved by the authorizing judge, an arrest warrant limits the scope of the seizure by naming (or adequately describing) the person charged with committing an identified criminal offense in either the warrant or an attached complaint. But unlike a search warrant in which prompt judicial review and relief may not be immediately available, an arrest and detention set the judicial machinery in motion, allowing for disputes as to the lawfulness of the arrest to be addressed promptly through preliminary judicial proceedings.
[*P33] We readily agree that a signature on search warrants and arrest warrants is “the best device for safeguarding an individual’s rights.” See Williams, 57 Ohio St.3d at 26, 565 N.E.2d 563. But our decision in Hoffman recognizes that the primary if not fundamental safeguard of an arrest warrant is that probable cause must be found before the warrant may be issued. See Hoffman, 141 Ohio St.3d 428, 2014-Ohio-4795, 25 N.E.3d 993, at ¶ 14.
[*P34] In the instant case, there is no doubt that probable cause to arrest Harrison was found before the arrest warrant was issued. The record here contains an affirmative indication that Judge Beck found probable cause to issue an arrest warrant on February 27, using a blank arrest warrant that expressly incorporated an attached sworn complaint. Though far from ideal, the judge’s affirmative documentation on the complaint that probable cause was found sufficed to confirm that the court issued the arrest warrant based on that finding.
[*P35] We therefore conclude that the arrest warrant at issue here adequately complied with the requirements of Crim.R. 4 notwithstanding the absence of a court official’s signature on the warrant. But finding that the arrest warrant did not violate Crim.R. 4 does not end our inquiry, for the trial court determined that the absence of a signature on the warrant made this an unreasonable seizure in violation of the Fourth Amendment. We turn now to consider that issue.
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)