Probate judges can’t issue search warrants on criminal matters


Do probate judges — whose duties include a wide variety of legal matters, including adoptions, marriage licenses, wills, and birth certificates — have the authority to issue search warrants on criminal matters in Ohio? That’s the question we — the Ohio Supreme Court — were asked in a case that originated in Stark County.

In February 2012, a detective with the Alliance Police Department obtained a search warrant from a probate judge of the Stark County Court of Common Pleas, Probate Division. The warrant gave law enforcement permission to search a business in Alliance for evidence of illegal gambling.

With that warrant, more than 30 video slot machines were confiscated, giving rise to charges filed against the business operators — Todd Brown, Jeff Shipley, and Raymond McCloude.

All three eventually filed motions to suppress the evidence obtained during the search. They argued that the search warrant was void because probate judges do not have the authority to issue a criminal search warrant.

The men asserted that the evidence seized during the search was the fruit of an unconstitutional search under the Fourth Amendment — the amendment that protects against unreasonable searches and seizures, and that requires a search warrant.

The trial court agreed that the warrant was unlawful and granted the motions to suppress the evidence gathered with the tainted warrant. In response, the State of Ohio filed an appeal.

The court of appeals affirmed the trial court judgment that a probate judge lacks authority to issue a search warrant. However, the court of appeals reversed the judgment granting the motions to suppress the evidence, finding that the state had established that the police officers had acted in good-faith reliance on the warrant.

After the court of appeals’ judgment, the case came before us for a final review. The state asserted that “A ‘probate judge’ has the authority as a division of the Ohio Court of Common Pleas to hear evidence and issue search warrants on criminal matters within his or her territorial jurisdiction.”

The pertinent law states: “A judge of a court of record may, within his jurisdiction, issue warrants to search a house or place…” In addition, Criminal Rule 41(A)(1) – one of the procedural rules that govern the criminal justice system – states: “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.”

So, both the law and the Criminal Rules clearly establish that a judge may issue warrants within his or her jurisdiction. But, another section of Ohio law — a section that defines certain terms — says that “Judge” does not “include the probate judge,” and “Court” does not “include the probate court.”

Therefore, it’s clear that a probate judge does not have the authority to issue a search warrant in a criminal case.

In 1978, our court recognized that there is an exception to the law in cases where the chief justice of the Ohio Supreme Court — in accordance with a particular provision in the Ohio Constitution – assigns a probate judge to temporarily sit or hold court on any other division of a court of common pleas.

In those instances, a probate judge would be able to issue a warrant. However, no such assignment was made in the cases involving Brown, Shipley, and McCloude.

The State of Ohio admitted that the plain language of the law excludes probate judges from the definition of “judge.” But the state suggested that this particular section of the Revised Code was “missed or improperly recodified” when the Modern Courts Amendment to the Ohio Constitution was adopted by voters in 1968.

The Modern Courts Amendment made the probate court a division of the common pleas court, so the state’s supposition may be true. But more than 45 years have passed since the Modern Courts Amendment was passed.

As Justice William M. O’Neill wrote in our majority opinion, “Even in legislative time, 45 years is long enough to correct an error. Moreover, unless the court first makes a determination that the language of the statute is capable of more than one meaning, it is inappropriate to examine legislative history, legislative intent, public policy, or any other factors to determine the meaning of a statute.”

In this instance, the language of the law is plain and unambiguous. We therefore declined to ignore the plain language of the law to embrace the state’s supposition that the law was inadvertently “missed” by the Modern Courts Amendment. We concluded that unless appointed by the chief justice – in accordance with the Ohio Constitution – a probate judge does not have the authority to issue search warrants in criminal matters.

We also agreed with the court of appeals that the officers had acted in good-faith reliance on the warrant in accordance with a 1984 United States Supreme Court decision.

That 1984 case dealt with the “exclusionary rule.” The “exclusionary rule” is a judicially created sanction designed to protect Fourth Amendment rights through its deterrent effect. Under the rule, the state is precluded from using evidence obtained in violation of the Fourth Amendment.

But, as the United States Supreme Court stated, unbending application of the exclusionary rule “would impede unacceptably the truth-finding functions of judge and jury.” The Court has stated that when “law enforcement officers have acted in objective good faith or their transgressions have been minor, the magnitude of the benefit conferred on such guilty defendants offends basic concepts of the criminal justice system.”

For this reason, Justice O’Neill noted, the United States Supreme Court 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.

Thus, by a four-to-tree vote, we affirmed the court of appeals’ judgment that probate judges do not have authority to issue search warrants on criminal matters. And, the court of appeals rulings that the evidence would not be suppressed remain the law of the cases.

By Justice Paul E. Peifer

The writer is a justice of the Ohio Supreme Court.

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