Franklin County Criminal Law Casebook
Reproduced with permission from
Allen V. Adair and the Franklin County Public Defender Office

A. In General; When Required (ME509)

B. Issuance (ME510)

(1) The requirement of a detached magistrate

(2) Sufficiency of information provided

(3) Form of the warrant

(4) Description of persons and places to be searched and items to be seized

C. Execution (ME504)

(1) Nighttime searches

(2) The knock and announce rule

(3) Scope of search

(4) Seizure of items not listed in warrant

(5) Detention and search of persons on the premises

(6) Inventory and return

D. Wiretapping and electronic surveillance (ME505)

A. In General; When Required (ME509)

R.C. 2933.32(B)(4) -- Search warrant generally required for body cavity search of arrestee

State v. McFarland, 150 Ohio App. 3d 396, 2002-Ohio-6353 -- There is no "crack house" exception to the warrants requirement. State v. Taylor (1992), 82 Ohio App. 3d 434, 443 does not create such an exception. A Terry frisk of anyone on the premises must be supported by particularized facts supporting the search as does any other frisk.

Kirk v. Louisiana (2002), 122 S.Ct. 2458 -- Police with probable cause to arrest defendant for a drug offense unlawfully detained and searched him at his home without first obtaining a warrant. Remanded to determine whether exigent circumstances were in fact present. Payton v. New York (1980), 445 U.S. 573, followed.

Coolidge v. New Hampshire (1971), 403 U.S. 443, 454-455 -- "Thus the most basic constitutional rule in this area is that 'searches conducted outside the judicial process, without prior approval by a judge or magistrate, are per se unreasonable under the Fourth Amendment - subject only to a few specifically established and well-delineated exceptions.' The exceptions are 'jealously and carefully drawn,' and there must be 'a showing by those who seek exemption...that the exigencies of the situation make that course imperative.' '[T]he burden is on those seeking the exemption to show the need for it.'"

Agnello v. United States (1925), 269 U.S. 20, 33 -- "Belief, however well founded, that an article sought is concealed in a dwelling house furnishes no justification of that place without a warrant."

Payton v. New York (1980), 445 U.S. 573 -- A routine felony arrest, even with a warrant, does not allow warrantless entry to a residence. A search warrant is required.

Steagald v. United States (1981), 451 U.S. 204 -- Police may not enter the home of a third party without a search warrant in order to execute an arrest warrant for someone else. Also see State v. Wilson (1981), 2 Ohio App. 3d 151.

Michigan v. Tyler (1978), 436 U.S. 499 -- While firemen may enter a burning building to extinguish the blaze and before leaving may investigate the cause of the fire and seize evidence of arson which is in plain view, further investigation requires a search warrant. Also see Michigan v. Clifford (1983), 464 U.S. 287.

Thompson v. Louisiana (1985), 469 U.S. 17 -- There is no homicide scene exception to the warrants requirement. Evidently, defendant shot her husband, then took an overdose of sleeping pills. When she changed her mind about committing suicide she called her daughter who in turn called the police and admitted them to the house. Once the police check to see if there are other victims or anyone in need of aid, or to see if the killer is still present, further search for evidence relating to the crime requires either a warrant or consent. Also see Mincey v. Arizona (1978), 437 U.S. 385; Flippo v. West Virginia (1999), 120 S.Ct. 7. Note that if the defendant does not have a legitimate claim of privacy as to premises searched, he would lack standing to challenge such a search.

Johnson v. United States (1947), 333 U.S. 10 -- Though obtaining a warrant may be inconvenient and may cause delay, to be valid a warrantless search must fall within one of the recognized exceptions to the warrants requirement. Belief that marijuana is being consumed does not excuse the need to obtain a warrant. Also see State v. Sperry (74), 72 Ohio Ops. 2d 296.

United States v. Karo (1984), 468 U.S. 705 -- A warrant is not required to install an electronic beeper in a can of chemicals used in the processing of cocaine if the shipper, who is a government informant, agrees to the installation. However, a warrant is required for continued monitoring of the can as it is moved into a storage facility and eventually the defendant's residence. For other beeper cases see United States v. Knotts (1983), 460 U.S. 276; United States v. Lewis (5th Cir. 1980), 621 F. 2d 1382; United States v. Bailey (6th Cir. 1980), 628 F. 2d 938.

State v. Pearson (1996), 114 Ohio App. 3d 153 -- (1) Blood specimen acquired by court order issued in response to a bare bones motion by the prosecutor was unlawfully obtained. A validly issued search warrant was required. (2) Second specimen obtained through a properly issued search warrant was admissible. (3) Neither inevitable discovery nor good faith rendered the first specimen and related test results admissible. Also see related case of State v. Pearson (1996), 114 Ohio App. 3d 168 -- Even though results of first and second tests were admitted at trial of companion charges, error was not harmless. Related cases: State v. Pearson (1996), 114 Ohio App. 3d 168; State v. Pearson (1997), 119 Ohio App. 3d 745; State v. Pearson (1998), 130 Ohio App. 3d 577.

State v. Kesler (1996), 111 Ohio App. 3d 98 -- Officers responding to a disturbance call looked into apartment through screen door and saw the defendant holding a plate containing what one officer thought might be marijuana. At p. 103: "...(T)here was no compelling reason to left the failure of law enforcement officers to place the matter before a detached and neutral judicial officer who could properly assess whether the officers had probable cause to obtain a valid warrant prior to entering appellant's home and searching and arresting him for what amounted to a minor misdemeanor offense."

Middleburg Heights v. Theiss (1985), 28 Ohio App. 3d 1 -- Police did not have the right to force entrance to home, without a search warrant, after being refused admittance while investigating a loud music complaint. Unfortunately for the defendants, court finds they did not have the right to assault officer who did so.

State v. Rodriquez (1990), 66 Ohio App. 3d 5 -- Suppression ordered where it appeared that the initial entry to premises occurred before the search warrant was issued.

Centerville v. Smith (1973), 43 Ohio App. 2d 3 -- Warrant was required for search of entire house following arrest of defendant and others for possession of marijuana. Search violated the Fourth and Fourteenth Amendments.

State v. Pi Kappa Alpha Fraternity (1986), 23 Ohio St. 3d 141 -- Liquor control agents fabricated a story to gain access to a fraternity house, where beer was purchased from a vending machine. Syllabus: "Pursuant to Section 14, Article I of the Ohio Constitution, and in the absence of any judicially recognized exception to the warrant requirement, government officers are not privileged to deceptively gain entry into the private home or office of another without a warrant, where such home or office is not a commercial center of criminal activity, and where the invitation to enter the private home or office was not extended by the occupant for the purpose of conducting illegal activity. (Gouled v. United States [1921], 255 U.S. 298; and Lewis v. United States [1966], 385 U.S. 206, followed.)

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B. Issuance (ME510)

(1) The requirement of a detached magistrate

(2) Sufficiency of information provided

(3) Form of the warrant

(4) Description of persons and places to be searched and items to be seized

Criminal Rule 41 -- Search and Seizure.

R.C. Chapter 2933 -- Peace Warrants; Search Warrants.

(1) The requirement of a detached magistrate

Criminal Rule 41(A) -- Authority to issue warrant.

R.C. 2933.21 -- Search warrant.

Johnson v. United States (1947), 333 U.S. 10, 13-14 -- "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. Any assumption that evidence sufficient to support a magistrate's disinterested determination to issue a search warrant will left the officers in making a search without a warrant would reduce the amendment to a nullity and leave the people's homes secure only in the discretion of police officers."

Coolidge v. New Hampshire (1971), 403 U.S. 443, 449-453 -- A magistrate involved in the investigation is per se disqualified from serving as a neutral and detached magistrate. (The state Attorney General, who was also a justice of the peace, signed warrant.)

Lo-Ji Sales, Inc. v. New York (1979), 442 U.S. 319 -- Bad form for the magistrate to go with officers to an adult bookstore and participate in the execution of the warrant he had signed.

State v. Morgan (1988), 55 Ohio App. 3d 182 -- Court not offended by fact judge who issued warrant to search for drugs had previously represented defendant in a drug prosecution. Also see State v. Martins Ferry Eagles (1979), 62 Ohio Misc. 3 (Newly elected judge had recently been an assistant prosecutor). Compare In re Disqualification of Pepple (1989), 47 Ohio St. 3d 606 -- "In general, prior representation of a party by one who is now a judge is a disqualifying factor."

State v. Adkins (1992), 80 Ohio App. 3d 211 -- Judge who issued warrant for search of motel room upheld as a "detached and neutral" magistrate despite the fact he owned a limited partnership share in the business and had taken a phone call from the manager concerning suspected drug activity and made referral to sheriff's department.

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(2) Sufficiency of information provided

Criminal Rule 41(C) -- Issuance and contents.

R.C. 2933.22 -- Probable cause.

R.C. 2933.23 -- Affidavit for search warrant.

State v. Nunez, 180 Ohio App. 3d 189, 2008-Ohio-6806 – Affidavit was insufficient because it failed to set forth indicia of reliability of the information provided, and the claimed basis for the knowledge of one of the informants. Results of the surveillance undertaken by the police were too neutral to overcome these shortcomings, but good faith saves the search.

State v. Williams, 173 Ohio App. 3d 119, 2007-Ohio-4472 – Affidavit must contain information that verifies current drug activity and the reliability of the informant. This affidavit did not. Good faith does not save the search as the affiant should have known it was insufficient based on his nineteen years of experience.

State v. Provan, 178 Ohio App. 3d 107, 2008-Ohio-4343 – Landlord thought former collection agent was embezzling. Warrant was obtained for search of the agent‘s office. Trial court suppressed, citing lack of supporting information and documents indicating that a crime had been committed. Looking to the transcript of the warrant application hearing, the appellate court finds documentation was proffered.

State v. Taylor, 174 Ohio App. 3d 477, 2007-Ohio-7066 – If the affidavit in support of a search warrant contains inaccuracies, the warrant is valid if it establishes probable cause with that material excised.

State v. Davis, 166 Ohio App. 3d 468, 2006-Ohio-1592 -- While the affidavit provided a basis for inferring that a house was the source for a sale of cocaine, it was not clear what was known to the officer and what came from an informant, nor was there a basis establishing the reliability of the informant, such as being checked before and after the alleged transaction. An inference is only as strong as the predicate facts.

State v. Gross, 97 Ohio St. 3d 121, 2002-Ohio-5524, ¶16-17 -- A warrant is valid if after excising tainted information in the affidavit enough remains to establish probable cause. Court thus sidesteps question whether evidence should have been suppressed because some of the information in the affidavit came from a brief warrantless entry of the premises.

State v. Craig, 110 Ohio St. 3d 306, 2006-Ohio-4571, ¶24-35 -- Affidavit seeking search warrant for DNA exemplar was sufficient even though the basis for concluding that the defendant was a suspect in a rape/murder was only modestly suspicious.

State v. Young (2001), 146 Ohio App. 3d 245 -- Detective accompanied housing inspectors executing an administrative search warrant. Upon seeing a small bag of marijuana on a table in plain view he obtained a search warrant for drugs of all sorts, using boilerplate language in the affidavit. Evidence seized was properly suppressed by the trial court. Simply observing a small bag of marijuana was not in itself evidence of trafficking. Warrant should have been narrowly tailored to included only those items which the police could adequately anticipate finding based on what was actually seen, such as marijuana and related paraphernalia. Scattershot list of items to be searched for, including drugs, weapons and electronic equipment, defeats good faith claim.

State v. Hillegass (2001), 144 Ohio App. 3d 108, 111 -- "...(A) supporting affidavit that fails to give any time frame for the events it describes fails, as a matter of law, to demonstrate probable cause, and a search warrant based solely on that affidavit is invalid." But this case presents the unusual situation where the issuing magistrate would have known the time frame because the warrant was for a follow up search based on information obtained during the execution of a warrant he had issued two and a half hours earlier.

State v. McNamee (2000), 139 Ohio App. 3d 875 -- Affidavit used to procure a search warrant for drugs and evidence of a sexual assault did not provide facts reasonably connecting residence to the subject matter of warrant. Nor was the warrant saved by good faith. Compare State v. Thompson (2000), 110 Ohio Misc. 2d 139.

State v. Gales (2001), 143 Ohio App. 3d 55 -- Affidavit did not furnish probable cause for search of the defendant's house. Neither of the controlled buys took place at the house. While there was an indication drugs were at the house at the time of the first controlled buy, this was stale three months later. Nothing tied the house to the circumstances of the second controlled buy. Good faith does not save the search.

State v. Reniff, 146 Ohio App. 3d 749, 2001-Ohio-4353 -- Affidavit did not support issuance of warrant where it set forth nothing beyond guilt by association. While there were indications the occupant of one apartment was selling drugs, mere conversations with the occupant of a second apartment, and conclusory allegations that he was selling drugs and supplying the first subject, did not establish probable cause. Nor does good faith save the search.

State v. Wilson, 156 Ohio App. 3d 1, 2004-Ohio-144 -- Mistakenly applying the superseded Aguilar test, court concludes affidavit was sufficient, notwithstanding minimal information demonstrating the reliability of the confidential informant.

State v. Freeman (2000), 138 Ohio St. 3d 408, 425 -- To challenge the accuracy of statements made in a supporting affidavit, the defendant must provide an offer of proof specifically outlining the portions of the affidavit alleged to be false. This should include supporting affidavits or otherwise reliable statements. The warrant may be upheld only if it still establishes probable cause absent the improper assertions.

Illinois v. Gates (1983), 462 U.S. 313, 230-241 -- Warrant was issued based on information in an anonymous letter corroborated by further investigation and surveillance. Under the totality of the circumstances, the information provided the magistrate asked to issue a warrant must establish a "fair probability" (probable cause) that contraband or evidence of a crime will be found in the place the warrant is addressed to. Duty of reviewing court is to determine whether magistrate had a substantial basis for concluding probable cause existed. The "two-pronged test" of Aguilar v. Texas (1964), 378 U.S. 108 and Spinelli v. United States (1968), 393 U.S. 410 is replaced by a totality of the circumstances test. Also see State v. George (1989), 45 Ohio St. 3d 325; State v. DeLeon (1991), 76 Ohio App. 3d 68, 71-74; Massachusetts v. Upton (1984), 466 U.S. 721. Also see State v. Barzacchini (1994), 96 Ohio App. 3d 440, 450-453, also addressing when a hearing must be conducted based on allegations that false information was provided at the time the warrant was issued.

United States v. Ventresca (1965), 380 U.S. 102, 111 -- "Observations of fellow officers of the Government engaged in a common investigation are plainly a reliable basis for a warrant applied for by one of their number."

Franks v. Delaware (1978), 438 U.S. 154 -- If a defendant claims the affidavit in support of a search warrant contains deliberate or reckless falsehood, he is entitled to a hearing if the unchallenged portion of the affidavit by itself is not sufficient to establish probable cause. If after a hearing the defendant shows by a preponderance that such false statements were included, suppression is required, as if probable cause was lacking on the face of the affidavit.

Murray v. United States (1988), 487 U.S. 533 -- Federal agents had defendant and others suspected of illegal drug activity under surveillance. In the process, agents made an illegal entry into a warehouse where bales of marijuana were seen. A valid search warrant was obtained by providing other information but making no mention of the illegal entry. Held that if there is an independent source for the discovery of contraband, not tainted by whatever unlawful activity occurred, suppression is not required. Factual issue on remand is whether agents would have sought warrant had it not been for information gained during the illegal entry.

State v. Waddy (1992), 63 Ohio St. 3d 424, 441 -- "To successfully attack the veracity of a facially sufficient search warrant affidavit, a defendant must show by a preponderance of the evidence that affiant made a false statement, either 'intentionally, or with reckless disregard for the truth.'" Also see Franks v. Delaware (1978), 438 U.S. 154, 155-156; State v. Smith (1997), 117 Ohio App. 3d 656, 665 (A search warrant is not per se invalid upon proof of an unintentional misrepresentation in the affidavit.)

State v. Joseph (1971), 25 Ohio St. 2d 95 -- (1) At p. 96 "The sufficiency of search warrants issued under state law must be tested against the federal constitutional standards regarding probable cause prescribed by the United States Supreme Court." (2) While hearsay information received from an informant may be the basis for the finding of probable cause supporting the issuance of a warrant, the magistrate must be sufficiently informed of circumstances indicating to the officer that the informant's information was reliable. Also see State v. Haynes (1971), 25 Ohio St. 2d 264; Jones v. United States (1960), 362 U.S. 257; Rugendorf v. United States (1964), 376 U.S. 528; United States v. Ventresca (1965), 380 U.S. 102.

State v. George (1989), 45 Ohio St. 3d 325 -- Objective at suppression hearing is not de novo determination whether probable cause existed but rather there was a sufficient basis for conclusion of issuing magistrate. Also see Cincinnati v. Contemporary Arts Center (1990), 57 Ohio Misc. 2d 9.

State v. Brown (1995), 101 Ohio App. 3d 227 -- Common pleas court judge hearing a suppression motion, like appellate judges, must show a degree of deference towards the municipal court judge's determination that probable cause existed for issuance of warrant. Issue is whether there was a substantial basis for issuance, rather than whether common pleas judge would have issued warrant based upon the information submitted.

State v. Boyd (1989), 63 Ohio App. 3d 790, 794-795 -- In determining the sufficiency of the information before the issuing magistrate, it is incorrect to merely defer to his finding of probable cause or to conclude that an informant's information was reliable since drugs were actually found on the premises.

State v. Shingles (1974), 46 Ohio App. 3d 1 -- Headnote: "Additional testimony given orally to a judge to bolster an affidavit for a search warrant, pursuant to Crim. R. 41(C), is only admissible if it is recorded and made a part of the affidavit. On a motion to suppress, an unrecorded statement is inadmissible."

State v. Jaschik (1993), 85 Ohio App. 3d 589, 594-597 -- Court finds search warrant does not fail, though information within the affidavit is insufficient to establish probable cause and bolstering information heard by the magistrate was not transcribed and made a part of the affidavit as required by Crim. R. 41(C). Information was recorded and available at the suppression hearing. Also see State v. Dreve (December 15, 1977), Franklin Co. App. No. 77AP-383, unreported (1977 Opinions 4633).

State v. Freeman (1986), 32 Ohio App. 3d 42 -- Information advanced in support of a search warrant may come from a "concerned citizen" who was voluntarily admitted to the premises and completed a drug buy. A warrant was not needed for the controlled buy to be undertaken. See Maryland v. Macon (1985), 472 U.S. 463.

State v. Taylor (1992), 82 Ohio App. 3d 434, 442 -- "While it is desirable to have the affiant provide as much detail as possible from his or her own knowledge, practical considerations will often require that the affiant rely on information provided by other sources...However, the basis of knowledge and the veracity of the person supplying the hearsay information are circumstances that must be considered in determining the value of the information and whether probable cause exists."

State v. Roberts (1980), 62 Ohio St. 2d 170, 177-178 -- To be entitled to a hearing, a defendant claiming the affidavit upon which a search warrant was issued contains knowing, intentional or reckless falsehoods must make an offer of proof outlining the portions of the affidavit claimed to be false and the reasons supporting the defendant's claim. Also see Franks v. Delaware (1978), 438 U.S. 154; United States v. Schauble (10th Cir. 1981), 647 F. 2d 113; United States v. Taborda (2nd Cir. 1980), 635 F. 2d 131.

State v. Hunt (1984), 22 Ohio App. 3d 43 -- Where falsehoods in the affidavit are merely surplusage and balance of affidavit provides an adequate basis for finding probable cause, suppression is not required. Also see United States v. Jenkins (6th Cir. 1984), 728 F. 2d 396.

State v. Jones (1991), 72 Ohio App. 3d 522, 526 -- Information contained in the affidavit must be timely in order to left the conclusion contraband will be found on the person or at the place to be searched. While there is no arbitrary time limit, four incidents spread over three months were not a proper basis for the issuance of a warrant. In these circumstances, the good faith exception did not apply.

State v. Bean (1983), 13 Ohio App. 3d 69 -- In assessing the legal sufficiency of an affidavit in support of a search warrant, the reviewing court may draw reasonable, common sense inferences from the information provided, but these inferences may only be drawn from facts specifically set forth in the affidavit. Also see State v. Thomas (1980), 61 Ohio St. 2d 223, 227-229.

State v. Rodriguez (1989), 64 Ohio App. 3d 183 -- A bare bones affidavit providing no indication of how an informant came into the information related, the relevant time frame or of corroboration is insufficient to support issuance of the warrant and is not sufficient for invocation of the good faith rule. Also see State v. Graddy (1978), 55 Ohio St. 2d 132; State v. Fant (1977), 53 Ohio App. 3d 87.

State v. Gill (1977), 49 Ohio St. 2d 177 -- Syllabus: "A police officer's affidavit in support of a search warrant is not sufficient to show probable cause when that affidavit contains only information received from the personal observations of an unnamed confidential informant and the officer's avowal that the informant is 'reliable.'" Compare State v. Karr (1975), 44 Ohio St. 163 where the affidavit provided some corroboration.

State v. Folk (1991), 74 Ohio App. 3d 468 -- Warrant may properly issue on probable cause anticipating property will be found at location at a specific time in the future.

State v. Freeman (1986), 32 Ohio App. 3d 42 -- Headnote: "Where a police informant is voluntarily admitted to an apartment as a buyer of illegal drugs and he effects a 'controlled buy' in the ordinary course of the defendant's drug-selling business, a search warrant based on an affidavit containing the informant's first-hand observations is valid. (Maryland v. Macon [1985], 472 U.S. 463, followed.)"

State v. Hollis (1994), 98 Ohio App. 3d 549 -- Warrant to search for obscene materials was invalid as it failed to sufficiently establish that the materials were obscene under the law. Either there should have been a judicial view of the materials, and a determination that they were obscene, or a sufficiently detailed description of the materials permitting such a determination. Determination may not be delegated to the officer executing the warrant. Information set forth in affidavit so plainly failed to establish probable cause that good faith does not save search.

State v. Gantz (1995), 106 Ohio App. 3d 27 -- Warrant properly issued where hydroponic growth of marihuana was suspected. Tips were corroborated in various ways, including electric bills and expenses of occupant apparently exceeding income.

State v. Sharp (1996), 109 Ohio App. 3d 757 -- Affidavit was insufficient in that it contained hearsay with no basis for believing it to be reliable.

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(3) Form of the warrant

Criminal Rule 41(C) -- Issuance and contents.

R.C. 2933.23 -- Affidavit for search warrant.

R.C. 2933.24 -- Contents of search warrant; report of inspection findings.

R.C. 2933.25 -- Form of search warrant.

United States v. Grubbs (2006), 126 S.Ct. 1494 -- Anticipatory warrants may issue before contraband arrives at the premises to be searched so long as there is probable cause to believe it will be present at the time the warrant is executed. The Fourth Amendment's particularity requirement is not violated when the warrant does not include the conditions triggering its execution. Particularity goes only to the place to be searched and the persons or property to be seized.

State v. Marks, Montgomery App. No. 19629, 2003-Ohio-4205 -- An anticipatory warrant may issue on a showing of probable cause that at some future time evidence of a crime will be located at the specific place to be searched. Typically there is a triggering event, such as a controlled delivery, or a beacon indicating a package has been opened. Here, execution of the warrant was proper even though the beacon did not activate, as the warrant also authorized entry when a reasonable time had passed since delivery. Also see State v. Nathan, Montgomery App. No. 18911, 2001-Ohio-1826.

State v. Williams (1991), 57 Ohio St. 3d 24 -- A search warrant is void ab initio if not signed by a judge prior to the search. Also see State v. Spaw (1984), 18 Ohio App. 3d 77; State v. Vuin (1962), 89 Ohio L. Abs. 193.

State v. Hairston (1989), 63 Ohio App. 3d 58 -- Command requirements of Crim. R. 41(C) and R.C. 2933.25 apparently found to have been satisfied by recitation "law enforcement officers as set forth herein are commanded to search said premises"

State v. Prince (1977), 52 Ohio Misc. 93 -- Headnote 2: "Criminal Rule 41(C) does not require that a search warrant be directed to a specific law enforcement officer but only that it be directed to none other than a law enforcement officer." Court finds address "To: Any police officer of authority" sufficient.

State v. Krout (1982), 6 Ohio App. 3d 5 -- Pursuant to Crim. R. 41 it is not fatal for a search warrant to fail to direct that it be executed in the daytime.

State v. Applebury (1987), 34 Ohio App. 3d 376 -- Exclusionary rule not applied where defect in affidavit was variance between name of affiant on first line of affidavit and name of officer who ultimately swore to and signed the affidavit. Error was contrary to Crim. R. 41 but was not of constitutional dimension.

State v. Kuykendall (1977), 51 Ohio App. 2d 215 -- Suppression not required where the oath was sworn in the presence of judge but was acknowledged by the clerk.

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Criminal Rule 41(C) -- Issuance and contents.

R.C. 2933.23 -- Affidavit for search warrant.

R.C. 2933.24 -- Contents of search warrant; report of inspection findings.

R.C. 2933.25 -- Form of search warrant.

State v. Dillard, 173 Ohio App. 3d 373, 2007-Ohio-5651 – Police responded to reports of gunshots and a 911 call, finding two people fatally shot on the porch and stopped a wounded man leaving the area in a car. After a protective sweep of the house a search warrant was obtained focused on evidence related to the shootings. Heroin was found while the warrant was being executed. In the court‘s view the drug was found in areas officers were entitled to search for evidence relating to the shootings. Catchall language in the warrant must be construed in accordance with specifically enumerated items, and here did not create a general warrant. See dissent which would remand for a good faith inquiry.

State v. Jones, Lucas App. No. L-00-1231, 2003-Ohio-219, ¶73-78 -- A search warrant which contains an incorrect address will not preclude admission of evidence discovered during a search where the premises were sufficiently described and there was no possibility the wrong property would be searched. Warrant gave wrong city name. Good faith saves the results from a second search where the warrant did not give separate addresses for three adjacent parcels.

State v. Hardy, Montgomery App. No. 19652, 2003-Ohio-6896 -- Court splits on whether a search warrant was valid when the address was changed through a subsequent sworn addendum attached to the original warrant. Warrant is upheld, but concurring judge feels constrained by terms of prior remand.

State v. Dalpiaz, 151 Ohio App. 3d 257, 2002-Ohio-7346 -- Though warrant did not mention the barn, court concludes it was a part of the curtilage and subject to search. However, broad authority to search for evidence of any illegal drug activity rendered warrant invalid since officer only had reason to believe the defendant was cultivating marijuana. Failure to address reliability of informants also rendered warrants invalid.

Andressen v. Maryland (1976), 427 U.S. 463, 478-484 -- Addition of the phrase "together with other fruits, instrumentalities and evidence of crime at this time unknown" after detailed list of items to be searched for did not render the warrant fatally general and the reference must be read in reference to the enumerated items.

Maryland v. Garrison (1987), 480 U.S. 79 -- Warrant was issued for third floor of a building, believed to be the apartment of a named suspect, however there were actually two apartments, which officers didn't discover until after contraband was found in the wrong apartment. Suppression not required where failure to realize warrant was overly broad was objectively reasonable.

State v. Kinney (1998), 83 Ohio St. 3d 85 -- Syllabus: "A search warrant authorizing the search of 'all persons' on a particular premises does not violate the Fourth Amendment requirements of particularity if the supporting affidavit shows probable cause that every individual on the subject premises will be in possession of, at the time of the search, evidence of the kind sought in the warrant." At p. 91: "In public places, the substantial likelihood that a person with no connection to the criminal wrongdoing might be subjected to search makes most claims of probable cause unsustainable." At pp. 95-96 there is discussion of indications of innocent activity at the premises.

State v. Tucker (1994), 98 Ohio App. 3d 308 -- Warrant was invalid insofar as it authorized search of unnamed persons and their vehicles present at residence during execution of warrant. Criminal Rule 41(C) applied.

State v. Pruitt (1994), 97 Ohio App. 3d 258 -- Warrant gave correct street number and accurately described premises, but the street name proved to be incorrect. Name given was formerly applied to a portion of the same street and may have continued in use, even though there was no longer a dedicated street by that name. Search upheld.

State v. Benner (1988), 40 Ohio St. 3d 301, 306-307 -- Degree of specificity required varies with the nature of the items sought. Where police were seeking "fibers and hairs and other trace evidence for comparison," description was sufficiently specific as search was limited to objects likely to yield such evidence.

State, ex rel. Ohio Bell, v. Williams (1980), 63 Ohio St. 2d 51 -- Syllabus: "Trial courts have the inherent authority pursuant to Crim. R. 41(B) to issue a warrant to search for and seize evidence by means of a pen register."

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C. Execution (ME504)

(1) Nighttime searches

(2) The knock and announce rule

(3) Scope of search

(4) Seizure of items not listed in warrant

(5) Detention and search of persons on the premises

(6) Inventory and return

(1) Nighttime searches

Criminal Rule 41(C): "...The warrant shall be served in the daytime, unless the issuing court, by appropriate

provision in the warrant, and for reasonable cause shown, authorizes its execution at times other than daytime..." Also see R.C. 2933.24.

Criminal Rule 41(F) -- Daytime means 7:00 a.m. until 8:00 p.m.

State v. Krout (1982), 6 Ohio App. 3d 5 -- Pursuant to Crim. R. 41 it is not fatal for a search warrant to fail to direct that it be executed in the daytime. Since it was served at 7:50 a.m. there was no prejudice in any event.

State v. Eichorn (1975), 47 Ohio App. 3d 227 -- Though need for warrant to be executed in the nighttime may appear dubious, appellate court is not to reverse unless an abuse of discretion by issuing judge has been shown. Also see State v. Marko (1973), 36 Ohio App. 2d 114.

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R.C. 2935.12 -- Forcible entry in making arrest or executing search warrant.

R.C. 2933.231 -- Request for waiver of statutory precondition for nonconsensual entry.

R.C. 2933.23 -- Search warrant may include provision waiving statutory precondition for nonconsensual entry.

State v. Nunez, 180 Ohio App. 3d 201, 2008-Ohio-6806 – Presentation to magistrate did not justify issuance of a no knock warrant. Hudson v. Michigan (2006), 547 U.S. 586 held suppression is not always required on Fourth Amendment grounds when the police violate the knock and announce rule. Citing cases in other districts holding suppression is not required, and that a case on that issue is pending in the Supreme Court, the court elects not to decide the issue, instead finding appellant failed to establish how entry was gained to his apartment.

Hudson v. Michigan (2006), 126 S.Ct. 2159 -- Violation of the knock and announce rule, previously held to be within the command of the Fourth Amendment, does not require suppression of evidence seized.

State v. Oliver, 112 Ohio St. 3d 447, 2007-Ohio-372 -- In a case pending before the Supreme Court when Hudson v. Michigan was decided, the court remands to the trial court rather than deciding whether the Ohio Constitution provides broader protection that the federal constitution. Dissent notes Scalia may claim to be an "originalist" generally but is a "minimalist" with respect to the Fourth Amendment.

State v. Taylor (1999), 135 Ohio App. 3d 182 -- Waiting three or four seconds after pounding on door before forcing entry did not comply with the knock and announce rule. Also see State v. Hunter, 153 Ohio App. 3d 628, 2003-Ohio-4204.

State v. Dixon (2001), 141 Ohio App. 3d 654 -- Officers knocked and announced their presence. Knocking caused the door to partially open. Officers entered within 10-15 seconds. Though there was no violation of R.C. 2935.12, there was a Fourth Amendment violation as not enough time had passed to constitute a constructive refusal to admit the officers. Exigent circumstances were not present.

State v. King (1999), 136 Ohio App. 3d 1999 -- Record supported ruling in favor of the defendant on a motion to suppress for failure to prove compliance with the knock and announce rule. While an exception is recognized when there is a reasonable suspicion that an occupant is armed, the mere fact that a weapon was found on the premises during a search two years earlier is not enough.

State v. Gibson, 164 Ohio App. 3d 558, 2005-Ohio-6380 -- The statutory knock and announce rule did not apply where there was no forcible entry.  Defendant's 10 and 7-year old children gave valid consent to enter premises. Other cases involving children of such ages distinguished on the basis that officers were there to investigate child abuse and to execute an arrest warrant from another county, not to conduct a search.

Wilson v. Arkansas (1995), 514 U.S. 927, 929 -- "At the time of the framing, the common law of search and seizure recognized a law enforcement officer's authority to break open the doors of a dwelling, but generally indicated that he first ought to announce his presence and authority. In this case, we hold that this common-law 'knock and announce' principle forms a part of the reasonableness inquiry under the Fourth Amendment." Circumstances may be such that officers need not announce their presence before entering. Principle applies to warrantless entries as well as those with a warrant.

Richards v. Wisconsin (1997), 520 U.S. 385 -- The Wisconsin Supreme Court was not allowed to create a blanket exception to the knock and announce rule for felony drug investigations. While such investigations may frequently warrant a no-knock entry: "In order to left a 'no-knock' entry, the police must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence."

United States v. Ramirez (1998), 523 U.S. 65 -- Officers went to execute a no knock search warrant for a fugitive said to be at the defendant's house. At the same time they announced their presence over a loudspeaker, a garage window was broken out to control any rush towards a supposed weapons cache. The Ninth Circuit had held that where property destruction was involved, a heightened standard was to be applied in determining whether a no knock entry was justified. The Supreme Court holds no such distinction arises from the Fourth Amendment.

State v. Amundson (1996), 108 Ohio App. 3d 438 -- Court finds knock and announce rule was complied with where seven to ten deputies whooping "deputy sheriff, search warrant" got out of marked vehicles and one knocked on the door while the others took up positions surrounding the house.

State v. Baker 1993), 87 Ohio App. 3d 186, 193 -- Court finds the exclusionary rule does not apply where there has been a failure to comply with the knock and announce rule set forth in R.C. 2935.12, finding the rule to be statutory and not of constitutional dimension. Decision is at odds with a multitude of other cases and overlooks the constitutional aspects of the rule.

State v. Valentine (1991), 74 Ohio App. 3d 110 -- Suppression required where a three second delay after knocking did not allow time for occupants to respond. In addition, police had not properly announced their purpose. Claimed concern for safety of undercover officer inside and fear of destruction of evidence were insufficient to left failure to comply with R.C. 2935.12. Compare State v. Roper (1985), 27 Ohio App. 3d 212 where court found exigent circumstances for forced entry after brief delay without a response.

State v. DeFiore (1979), 64 Ohio App. 2d 115 -- Ten to thirty second delay between knocking and forced entry was not sufficient time to allow actual or constructive refusal to admit officers.

State v. Morgan (1988), 55 Ohio App. 3d 182, 185 -- Officers knocked on three separate occasions and were twice told to wait. Combined with other circumstances, there was a constructive refusal to admit the officers and forcible entry was justified.

State v. Applebury (1987), 34 Ohio App. 3d 376 -- Suppression not required where officer arriving to execute search warrant found the defendant standing in an open doorway and properly announced his purpose. Compare State v. Early (1977), 7 Ohio Ops. 3d 227 -- Door was opened but police never announced purpose was to execute an arrest warrant.

State v. Furry (1971), 31 Ohio App. 3d 107 -- Suppression required where officers upon seeing defendant and others inside entered through an unlocked screen door without first announcing their purpose to execute a search warrant. Also see Sabbath v. United States (1968), 391 U.S. 585.

State v. Wilson (1974), 41 Ohio App. 2d 240 -- If no one is home, police may force entrance after knocking and announcing purpose.

State v. Campana (1996), 112 Ohio App. 3d 297 -- The knock and announce rule applies to the execution of arrest warrants. Absent exigent circumstances, officers must identify themselves and wait for response by occupant.

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Criminal Rule 41(B) -- Property which may be seized with a warrant.

Criminal Rule 41(F) -- Property includes documents, books, papers and any other tangible objects.

R.C. 2933.21 -- Search warrant.

Marron v. United States (1927), 275 U.S. 192 -- General or exploratory searches are prohibited. Also see State v. Halczyszak (1986), 25 Ohio St. 3d 301, 302.

United States v. Ross (1982), 456 U.S. 798 -- Though case involves the warrantless search of an auto, court observes that a warrant to search a house carries with it the right to open closets, chests, drawers and containers, warrant to search a vehicle extends to every part of the vehicle, including wrapped packages.

State v. Curtis (1978), 54 Ohio St. 2d 128 -- Syllabus: "Where the defendant's automobile was seized by police officers as an item of evidence listed in a valid search warrant, it may be searched for smaller items listed in the warrant that may reasonably be found in the automobile even though the warrant did not specifically state that the automobile was to be searched."

State v. Tewell (1983), 9 Ohio App. 3d 330 -- When a warrant directs the search of a house, garages and the "surrounding curtilage," curtilage includes an auto parked near the house. (Holding is debatable.) Compare State v. Carter (1993), 63 Ohio Misc. 2d 84 holding car parked in driveway is not within curtilage.

State v. Porter (1977), 53 Ohio Misc. 25 -- A search warrant must be executed by the officers to whom it is addressed. Search may not be conducted by representatives of the prosecutor's office while officers to whom warrant was addressed stood by.

State v. Thomas (1980), 61 Ohio 223, 231 -- Police may answer the telephone while executing a search warrant, without obtaining prior judicial approval to do so.

Athens v. Wolf (1974), 38 Ohio St. 2d 237 -- Scope of search is limited to premises described in warrant. Police may not extend search to other areas for the purpose of security unless he has reasonable grounds to believe his safety is endangered. Officers executing a warrant at a college dorm room were not entitled to enter adjoining room through open door of shared bathroom.

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State v. Halczyszak (1986), 25 Ohio St. 3d 301 -- Police entered suspected chop shop with a warrant to search for a stolen Olds Cutlass. Noticing that other cars, not listed in the warrant, were in various stages of disassembly, VIN numbers were checked and it was ascertained they were stolen as well. Court holds the plain view doctrine permitted seizure of autos (but not parts) though not listed in warrant. Holding modifies State v. Wilmoth (1982), 1 Ohio St. 3d 118 (paragraph two of the syllabus) and State v. Williams (1982), 55 Ohio St. 2d 82. Opinion purports to apply the plurality decision in Texas v. Brown (1983), 460 U.S. 730. Also see Arizona v. Hicks (1987), 480 U.S. 321 -- In an otherwise valid warrantless search based on exigent circumstances was permissible to copy down serial number of stereo equipment when it was in plain view, but not when equipment had to be moved to do so. Also see State v. Willoughby (1992), 81 Ohio App. 3d 562.

State v. McGettrick (1988), 40 Ohio App. 3d 25 -- Headnote 2: "Evidence not specifically described in a search warrant may be validly seized under two theories: (1) based upon evidence known to the officers the articles seized were closely related to the crime being investigated; (2) the officers had reasonable cause to believe the items seized were instrumentalities of the crime." Question the soundness of the reasoning if not the outcome: Should the issue have been plain view or exigent circumstances allowing warrantless seizure?

State v. DeLeon (1991), 76 Ohio App. 3d 68, 73-74 -- Proper remedy where police seized jewelry which was not properly within the scope of the search warrant was suppression of the jewelry, though the balance of the evidence seized was not suppressed.

State v. Riddle (1995), 104 Ohio App. 3d 679 -- Warrant to search house, outbuildings and vehicles on the property did not extend to vehicle arriving while search was under way. Though Terry frisk was warranted, continued detention of vehicle until dope dog arrived was not.

State v. Bean (1992), 63 Ohio Misc. 2d 434 -- Court orders suppression of telephones, telephone answering devices, cameras and a fax machine not listed in the search warrant.

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State v. Jackson, 165 Ohio App. 3d 271, 2006-Ohio-262 -- Officers executing a search warrant at a boot joint frisked the defendant for weapons, but found cocaine. Ybarra v. Illinois (1979), 444 U.S. 85 distinguished as officers articulated a sufficient basis for a weapons frisk encompassing mention of weapons as subject of the search and personal experience of the officer that patrons might be armed.

Los Angeles v. Rettele (2007), 127 S.Ct. 1989 -- In the context of a 1983 suit, it was not unreasonable for officers executing a warrant to force a couple to stand naked in their bedroom for a few minutes the suspects who used to live at that address were of a different race. The police were entitled to exercise unquestioned command of the situation and thus were protected by immunity.

Ybarra v. Illinois (1979), 444 U.S. 85 -- Warrant to search tavern and the person of the bartender did not automatically permit search or weapons frisk of patrons, notwithstanding an Illinois statute allowing such searches. Nor may those merely present when a warrant is executed be frisked for weapons without satisfying the requirements of Terry v. Ohio (1968), 392 U.S. 1.. Also see State v. Croft (April 1, 1982), Franklin Co. App. No. 81AP-803, unreported (1982 Opinions 886) -- Police were not authorized to conduct weapons frisk of all patrons of unlicensed bar during a raid.

Michigan v. Summers (1981), 452 U.S. 692 -- Permissible for officers executing a search warrant to detain person descending front steps. For Fourth Amendment purposes, a warrant to search for contraband, founded on probable cause, implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is conducted. The reasonableness of the temporary detention is determined by balancing the character of the official intrusion and its justification.

State v. Forts (1995), 107 Ohio App. 3d 403 -- Warrant permitted search of "residence and on the person of anyone found in the residence." Defendant, known to be connected to drug activity on premises, was detained and searched when she was a few feet from the entrance, but not inside. Search upheld, since it was reasonably identifiable with the purpose of the warrant, though beyond the literal command portion of the warrant.

State v. Farmer (1984), 21 Ohio App. 3d 77 -- Terry frisk was justified where the subject was found on the steps of a building about to be searched at night and had no ready explanation for his presence. Also see State v. McGlown (1982), 3 Ohio App. 3d 344.

State v. Eyer (1991), 74 Ohio App. 3d 361 -- Search warrant for premises and occupants for gambling and drug paraphernalia included defendant's purse. Court draws dubious distinctions between this case and Ybarra v. Illinois (1979), 444 U.S. 85.

State v. Schultz (1985), 23 Ohio App. 3d 130 -- Occupant construed to include defendant who was at least an overnight guest.

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Criminal Rule 41(D) -- Execution and return with inventory.

Criminal Rule 41(E) -- Return of papers to clerk.

R.C. 2933.241 -- Inventory of property taken.

R.C. 2933.26 -- Property seized to be kept by court.

R.C. 2933.27 -- Disposition of property before trial.

State v. Dolce (1993), 92 Ohio App. 3d 687, 696-697 -- Chiropractor's records seized from various locations were not completely listed in inventory. Suppression motion was based on claim some records were missing. Court finds inventory made and overall control of seized property was adequate.

State v. Downs (1977), 51 Ohio St. 2d 47, 65 -- "...(T)he failure to return a search warrant to the properly designated judge and to prepare an inventory pursuant to Crim. R. 41(D) and (E), does not render inadmissible the evidence seized pursuant to the warrant." Also see United States v. Dudek (6th Cir. 1976), 530 F. 2d 684; State v. Ward (1974), 44 Ohio App. 2d 85.

State v. Givens (1983), 14 Ohio App. 3d 2 -- Failure to include items in inventory does not require suppression unless prejudice to the defendant can be demonstrated.

State v. Weichowski (1975), 49 Ohio App. 2d 151, 154 -- Failure to recite in the return that the defendant was not present at the time an inventory of seized items was made does not require suppression. Compare State v. Bowland (1971), 29 Ohio Misc. 176.

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D. Wiretapping and electronic surveillance (ME505)

R.C. 2933.51 through 2933.66

State v. Were, 118 Ohio St. 3d 448, 2008-Ohio-2762, ¶105-107 – Use of listening devices to intercept inmate conversations during the Lucasville riots did not require a warrant or the consent of a party to the conversation. Also see State v. Robb (2000), 88 Ohio St. 3d 59, 65-66.

State v. Moller, Greene App. No. 2001-CA-99, 2002-Ohio-1890 -- Defendant was disappointed to learn the 14-year old girl he met in a chat room was an undercover officer in Xenia. (1) Because the officer was a "party to the communication" there was no violation of 18 U.S.C. 2510, et. seq. Prior authorization to intercept was not required. (2) The Fourth Amendment does not extend to cyberspace conversations an individual engages in with a stranger who may be an undercover officer posing as someone else. State v. Pi Kappa Alpha Fraternity (1986), 23 Ohio St. 3d 141 distinguished on the basis that that case involved the privacy expectation in one's own home and efforts to gain admittance. One is always a visitor to a chat room, and in this case the "girl" waited to be approached by the defendant. However, there might be an expectation of privacy when it is reasonably believed an Internet conversation is with a known acquaintance and officers have circumvented security precautions. (3) Venue lay in Greene County because the defendant travelled there to engage in sex with a minor.

State v. Davies (2001), 145 Ohio App. 3d 630 -- Suspicious husband began taping telephone conversations which proved to implicate a doctor in writing illegal prescriptions. This information was passed on to the police, leading to drug trafficking charges. The taping of the calls was illegal according to R.C. 2933.52, and the contents could not be used. Because the illegal act was by a private party, and because charges arose form independent police investigation, suppression of the results of that investigation was not required.

State v. Kimmel, Marion App. No. 9-03-53, 2004-Ohio-1207 -- OMVI defendant was allowed to call his attorney from a Highway Patrol post before taking breath test. The call was recorded and the arresting officer later listened to the tape.  The defendant's state constitutional right to confer privately with counsel was violated both by the recording and listening.  Dismissal was not required as a remedy as the situation did not become known until after the jury began deliberations, and the officer had not testified as to the substance of the conversation.

State v. Bell, 142 Ohio Misc. 2d 72, 2007-Ohio-2629 -- An "interception warrant" signed by a common pleas court judge was not required for data stored in a computer.

Katz v. United States (1967), 389 U.S. 347 -- Whether or not the results of electronic eavesdropping are admissible turns on the privacy expectations attached to the circumstances under which the information was obtained and not on the issue of physical intrusion into space of a particular nature.

United States v. White (1971), 401 U.S. 745, 751 -- "If the conduct and revelations of an agent operating without electronic equipment do not invade the defendant's constitutionally justifiable expectations of privacy, neither does a simultaneous recording of the same conversations made by the agent or by others from the transmissions received from the agent to whom the defendant is talking and whose trustworthiness the defendant necessarily risks."

United States v. Karo (1984), 468 U.S. 705 -- A warrant is not required to install an electronic beeper in a can of chemicals used in the processing of cocaine if the shipper, who is a government informant, agrees to the installation. However, warrant are required for continued monitoring of the can as it is moved into a storage facility and eventually the defendant's residence. For other beeper cases see United States v. Knotts (1983), 460 U.S. 276; United States v. Lewis (5th Cir. 1980), 621 F. 2d 1382; United States v. Bailey (6th Cir. 1980), 628 F. 2d 938.

State v. Milligan (1988), 40 Ohio St. 3d 341 -- Paragraph two of the syllabus: "Evidence obtained through the unauthorized interception of a private conversation between a criminal defendant and his attorney is subject to suppression pursuant to Section 10, Article I of the Ohio Constitution.

State v. Geraldo (1981), 68 Ohio St. 2d 120 -- Syllabus: "Neither the federal constitution nor state law requires the suppression of evidence obtained by the warrantless recording of a telephone conversation between a consenting police informant and a non-consenting defendant. (United States v. White, 401 U.S. 745, followed.)" May have been a violation of R.C. 4931.28 but exclusionary rule does not apply.

State v. Bidnost (1994), 71 Ohio St. 3d 449 -- Paragraph two of the syllabus: "The provisions of R.C. 2933.52(A), prohibiting the purposeful interception of wire or oral communications through the use of an interception device, apply to cordless telephone communications that are intentionally intercepted and recorded." Neighbor's baby monitor picked up one side of conversations over defendant's cordless telephone. Police asked them to make a recording.

State v. Smith (1997), 117 Ohio App. 3d 656, 661 -- Monitoring and recording telephone conversations is a search within the meaning of the Fourth Amendment. Monitoring inmate phone calls is not a Fourth Amendment violation when the prisoner has notice of a telephone monitoring practice and elects to place a call. Nor does such practice violate federal law with respect to unauthorized and intentional interception of wire communications.

State v. Robb (2000), 88 Ohio St. 3d 59, 65-68 -- During the Lucasville riots microphones in underground tunnels intercepted inmate conversations. Court balks at finding a violation of former Ohio wiretapping statutes, which drew no exception based on an expectation of privacy, and then finds federal law was actually controlling, and no violation was shown under those provisions.

State, ex rel. Ohio Bell, v. Williams (1989), 63 Ohio St 2d 51 --Syllabus: "Trial courts have the inherent authority, pursuant to Crim. R. 41(B), to issue a warrant to search for and seize evidence by means of a pen register."

State v. Thomas (1980), 61 Ohio St. 2d 223, 231 -- Police may answer the telephone while executing a search warrant, without obtaining prior judicial approval to do so. Also see United States v. Upton (S.D. Ohio 1991), 763 F. Supp. 232, 242-244 (seizure of tapes from answering machine).

State v. Knox (1984), 18 Ohio App. 3d 36 -- Telephone company security manager sufficiently qualified as custodian of the records to authenticate printouts generated by traps placed on phone lines to record and identify source of incoming phone calls.

Beaber v. Beaber (1974), 41 Ohio Misc 95 -- In a divorce action, husband may use recordings he made of wife's conversations with her lover for purposes of impeachment.

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