RILEY, J.
With considerable regret, the court will grant motion of defendants to suppress all of the evidence obtained as a result of the simultaneous searches of apartments numbered 301, 302 and 303 of the Edyth Apartments, 516 West Delaware Avenue, Toledo Ohio, which search was conducted on February 2, 1969. The court mentions its regret for the reason that this court, along with thousands and thousands of good citizens, is deeply distressed by the apparent growing use of marijuana, barbiturates and other narcotics in our community and in our nation. In this particular case the court is even more distressed by the fact that the Toledo Police Department had in its possession at the time of the issuance of the search warrants more than enough evidence and more than adequate reason to justify the issuance of the warrants. Unfortunately, either through ineptness in composing the affidavits, or through some ill-based desire to reveal as little as possible in the affidavits, the Police Department personnel defeated their own laudable purpose. For the defects which lead the court to its reluctant decision lie in the affidavits which were supposed to support the issuance of the warrants. The court rejects, out of hand, the protestations of defense counsel as to the mode of execution of the search warrants, and specifically finds that if the warrants had been lawfully issued, their execution would have been in all ways proper.
It seems clearly to be the law that an affidavit in support of a search warrant must be capable of standing alone, even though the issuing magistrate may require further evidence to support it. Cleveland Heights v. Spellman (1965), 7 Ohio Misc. 149, and cases cited therein. This point is not really an issue in the instant cases, since we have no indication that anything other than the affidavits was presented in support of the issuance of the warrants by the magistrate. But this rule does clearly indicate that facts not properly set forth in the supporting affidavits, but brought out later at a hearing, cannot be considered in determining whether or not the search warrants were properly issued. Under the present state of the law, the affidavits in the instant cases must be and are found insufficient to support the issuance of the warrants which were issued and executed. Therefore, the evidence obtained thereunder must be suppressed.
The cases of Mapp v Ohio, 367 U.S. 643, and Ker v. California, 374 U.S. 23, and the line of authority following, apply Fourth Amendment United States Constitutional standards to state cases involving search and seizure in criminal proceedings. More recent United States Supreme Court decisions, Aguilar v. Texas, 378 U.S. 108, and Spinelli v. United States, 393 U.S. 410, have set forth requirements which must be held applicable to the individual states, and which simply have not been met by the affidavits here under our scrutiny.
At the hearing held upon the motion of defendants to suppress evidence, it was revealed that Officer George Ryan of the Toledo Police Department swore to and signed the affidavits in question and that he did so upon certain information related to him by other members of the Toledo Police Department. He stated in the affidavits that a police investigation and surveillance had developed information, but he did not relate what this information was. Upon questioning at the hearing, it became apparent that officer Ryan, in fact, did not know what the information was; that he did not take part, personally in the investigation and surveillance; but that he still concluded that the illegal items mentioned in the affidavits (narcotics, marijuana, barbiturates, "pep pills," hallucinogens and equipment for their administration to humans) were to be found within the various premises named. The testimony further developed that officer Ryan accepted the statement of one Officer Brimmer that he (Brimmer) had "personal knowledge" that the apartments had been used as locations from which to obtain marijuana and as places where that particular vegetation had been smoked. If properly presented, this information certainly would have constituted acceptable legal grounds for the issuance of search warrants. Unfortunately, Officer Ryan never bothered to find out, much less to mention in the affidavits, how Officer Brimmer came into this "personal knowledge." In fact, as the hearing brought out, Officer Brimmer's knowledge was based upon statements from a very reliable and trustworthy informant who had not only witnessed, by sight, the smoking of marijuana within the premises, but had also brought a sample of the vegetation smoked out of the premises and delivered it to Officer Brimmer. Subsequent chemical and miscroscopic tests proved the vegetation to be marijuana. Not one word pertaining to the reliability of the informant and the evidence in Officer Brimmer's possession was mentioned in the affidavits.
Similar information was apparently obtained by the police from another reliable and trustworthy source. But again, statements as to the actual information and the type of informant involved were omitted from the language of the affidavits altogether.
Why the omitted information was allowed to be omitted, this court will never know. But this court does know that the information was omitted from the affidavits
In his opinion in the Aguilar case, supra, Mr. Justice Goldberg quotes Mr. Justice Jackson's opinion in the case of Johnson v. United States, 333 U.S. 10, on a matter quite pertinent. "`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.'" Then Mr. Justice Goldberg continued in the paragraph which follows in the Aguilar opinion, "the court must still insist that the magistrate perform his `neutral and detached' function and not serve merely as a rubber stamp for the police." Therefore, the magistrate must be given information upon which to exercise his "neutral and detached" function and from which to derive his justifiable inferences. In the instant cases the magistrate could only infer probable cause upon the bald and unsupported statements of belief set forth by a police officer who, in fact, had nothing on which to base his belief except another inference established in the mind of a fellow officer. Under the law of the United States, now imposed upon the separate states thereof, under the Fourteenth Amendment, this is grossly insufficient to provide the footing for a search warrant.
The court has laid particular emphasis upon the federal requirements in the field of search warrants which have now been laid upon the individual states. Perhaps, the court has overemphasized this factor. We would, therefore, now call attention to Section 2933.23, Revised Code, which reads in part: "A warrant for search shall not be issued until there is filed with the judge or magistrate an affidavit particularly describing the house or place to be searched, the person to be seized, the things to be searched for and seized, and alleging substantially the offense in relation thereto, and that the complainant believes and has good cause to believe that such things are there concealed, and he shall state the facts upon which such belief is based." (Emphasis ours.) Under this statute, and particularly the phrase stressed in the above quotation, the court would be hard put to find a proper compliance by the Toledo Police Department and Officer Ryan in the affidavits here in question, even if we were without the very clear guidance now given by the several cases decided by the United States Supreme Court.
Defendants' motion to suppress the evidence obtained as a result of the searches above mentioned is granted. The court has not been made aware, fully, of the extent of the physical items obtained as a result of those searches. However, the court is of the impression that the items not ordered returned to their lawful owner during the course of the hearing all constitute contraband and will thus order such items destroyed by the Toledo Police Department on or shortly after the 30th day of August, unless upon motion of the defendants, other disposition thereof is ordered.