Update: Read the analysis of the argument here.

On October 26, 2021, the Supreme Court of Ohio will hear oral argument in State of Ohio v. Daniel J. Campbell, 2020-1187. At issue in this case is whether the warrantless, suspicionless search of a probationer’s cell phone violated the Fourth Amendment or R.C. 2951.02 and, if so, whether the evidence should be excluded. This argument will be held at the University of Akron School of Law.

Case Background

After serving two years for robbery, Daniel Campbell was granted judicial release. As part of his release, Campbell signed an acknowledgement form that read, in part, “I consent to searches of my person, my property, my vehicle, and my residence at any time without a warrant.” Kelsey Conn served as Campbell’s probation officer and after a year of good behavior, Conn decided to reduce the level of supervision. Before doing so, however, Conn and several other probation officers visited Campbell’s home and conducted a “home check.” Campbell had not violated any terms of his probation and there was no cause or suspicion to believe he was violating the law.

After Conn knocked on the front door, Campbell admitted her and other officers without objection. As the officers searched the home, they discovered a cell phone in Campbell’s bedroom. Conn searched through the phone until she came across pornographic images of minors. Campbell confirmed the cell phone was his. The officers suspended the search until a warrant could be obtained for the phone. The affidavit to secure the warrant relied upon the imagines Conn saw when searching the phone. Campbell was subsequently charged with nine felony offenses relating to the child pornography.

At trial, Campbell moved to suppress the evidence on the basis that the probation department lacked reasonable grounds for the search.  After hearing testimony, Judge Richard Berens of the Fairfield County Court of Common Pleas denied the motion. The trial court found that Campbell had consented to a search of his property and that even if there was a violation, Conn had acted in good faith reliance on the release acknowledgement. Campbell was sentenced to seven years in prison and registration as a sex offender. Campbell appealed.

The Appeal

A unanimous panel of the Fifth District Court of Appeals reversed, finding the search violated R.C. 2951.02(A). Judge Craig Baldwin authored the opinion of the court, in which Judges William Hoffman and John Wise concurred.

Absent constitutional issues, R.C. 2951.02(A) requires “reasonable grounds” and notice to a probationer in order to conduct a warrantless search. This statutory right grants a probationer more protection than he or she might be afforded under the Fourth Amendment. Applying that scheme here, the trial court exceeded its sentencing authority by allowing the warrantless search condition of Campbell’s probation terms. R.C. 2951.02(A) is unambiguous and it alone resolves this case without a constitutional analysis. The good faith exception to the exclusionary rule is also inapplicable because Conn lacked an objective basis for reliance on the probationary terms. The State appealed.

Key Statutes and Precedent

U.S. Constitution, Amendment IV (“the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”)

R.C. 2951.02(A) (Probation officers “may search, with or without a warrant, [. . .] the place of residence of the offender, and a motor vehicle, another item of tangible or intangible personal property, or other real property [. . .] if the probation officers have reasonable grounds to believe that the offender is not abiding by the law or otherwise is not complying with the conditions of   [. . .] community control.” The court that places the offender under community control “shall provide the offender with a written notice that informs the offender that probation officers may conduct” warrantless searches.)

Mapp v. Ohio, 367 U.S. 643 (1961) (Under the exclusionary rule, evidence obtained from searches and seizures conducted in violation of the Fourth Amendment is inadmissible in court.)

Griffin v. Wisconsin, 483 U.S. 868 (1987) (recognizing that probation system is a unique context and reasonable, warrantless searches are constitutional under the special needs exception to the Fourth Amendment.)

Samson v. California, 547 U.S. 843 (2006) (suspicionless, warrantless search of a parolee was upheld under the Fourth Amendment. The search was reasonable because parolees, who have consented to random searches as a condition of release, have a diminished expectation of privacy. Further, the State has “substantial” and “overwhelming” interests in combating recidivism.)

State v. Benton, 82 Ohio St.3d 316 (1998) (“A warrantless search performed pursuant to a condition of parole requiring a parolee to submit to random searches of his or her person, motor vehicle, or place of residence by a parole officer at any time is constitutional.” Defendant had agreed to a probation term that permitted “a search without warrant of my person, my motor vehicle, or my place of residence by a parole officer at any time.”)

State v. Karns, 2011-Ohio-6109 (5th Dist.) (“Ohio law permits a probation officer to conduct a warrantless search of a probationer’s person or home if an officer has reasonable grounds to believe that the probationer failed to abide by the law or by the terms of probation.”)

Votes to Accept the Case

Yes: Chief Justice O’Connor*, Justices DeWine, Donnelly, French, Fischer, and Kennedy.

No: Justice Stewart

*Chief Justice O’Connor would accept propositions of law I and III only.

State’s First Proposition of Law Accepted for Review

Ohio courts may constitutionally require a probationer to consent to warrantless searches as a condition of community control.

State’s Second Proposition of Law Accepted for Review

A probation officer may rely in good faith upon a warrantless consent to search community control condition agreed to by a probationer.

State’s Third Proposition of Law Accepted for Review

An Ohio court may not impose the remedy of exclusion to an otherwise constitutional search based upon a violation of R.C. 2951.02 where the General Assembly provided for no remedy.

State’s Argument

Probationers should not be afforded greater Fourth Amendment protections than the average citizen. Rather, a probationer must accept a reduced level of Fourth Amendment protection. Further, on the facts of this case, the probation officer acted in objective, good faith reliance upon judicially ordered conditions that obviates the need to exclude the evidence. The Fifth District wrongly held that the probation officer did not act in good faith in doing so.

R.C. 2951.02 is not the exclusive mechanism by which a probation officer can conduct a warrantless search of a probationer. Rather, the statute merely grants officers discretion to carry out searches when the probationer was not subject to a consent to search condition. This scheme promotes efficient supervision of probationers and ensures community safety. Common law, both nationally and in Ohio, has long held that a probationer’s consent to warrantless searches as a condition of supervision is lawful. Nothing in R.C. 2951.02 or otherwise would suggest that the General Assembly intended to supplant this common law rule. Moreover, R.C. 2951.02 has no remedy provision and the Fifth District was wrong in ordering exclusion without any statutory basis. It is also questionable whether the exclusionary rule even applies to probation officers.

Even if this Court accepts the statutory scheme as the Fifth District described it, the evidence still should not be suppressed because of the good faith exception to the exclusionary rule. Here, the court imposed a warrantless, suspicionless search condition on Campbell’s release, which Conn reasonably relied upon. Such search conditions of supervision remain a lawful way to ensure rehabilitation and community safety.  It was improper for the Fifth District to require that Conn have a greater working knowledge about Ohio law than the courts charged with overseeing it. Punishing Conn for following her supervising court’s directive does little to deter future forms of police misconduct—the core rationale behind the exclusionary rule. The underlying decision should be reversed.

Campbell’s Argument

Ohio’s statutory requirement for warrantless searches of probationers cannot simply be ignored. Pursuant to R.C. 2951.02, Campbell was entitled to written notice of the possibility of warrantless searches and even to conduct a search, there needed to be reasonable grounds to suspect a violation of the law or release conditions. Neither occurred here. As the Fifth District properly noted, this Court’s 1998 decision in Benton occurred prior to the enactment of R.C. 2951.02, and although the warrantless search of a parolee in Benton was upheld, it is of little force in light of R.C. 2951.02. Trial courts are subject to statutory requirements when imposing sentences, and the trial court here exceeded its authority.

Due to their unique ability to store massive amounts of personal data, cell phones have received increased Fourth Amendment protection—both by this Court and the U.S. Supreme Court. Further, the scope of a consent to search must be clear and unambiguous. Campbell’s terms of release, however, only stated that his “property” could be searched, not his cell phone. As other courts have held, it is not clear and unambiguous to a probationer that a consent to search “property” can lead to the search of his cell phone. In fact, the trial court here modified the general consent to search terms specifically to include “phones” and “computers.” Notably, however, this was done after Campbell had been placed on community control. The Fifth District’s opinion properly accounted for Ohio’s statutory requirements to search probationers and its decision should be affirmed.

Amici in Support of the State

Ohio Attorney General Dave Yost

As the State’s chief law officer, the Attorney General is interested in ensuring the correct interpretation of Ohio statutes and the effective monitoring of probationers. Specifically, the Attorney General is concerned that the Fifth District’s opinion will render widely used consent-to-search conditions inoperative, which will have negative impacts on non-prison sentencing.

A consented to, warrantless, suspicionless search of a probationer does not violate the Fourth Amendment because the State’s interests are high, and the probationer’s expectation of privacy is low. In fact, if the Fifth District’s opinion stands, Ohio courts will be less inclined to grant non-prison sentences or allow early release because they cannot ensure adequate monitoring. The search in this case did not violate the Fourth Amendment. But neither did it violate Ohio statutory law. Although R.C. 2951.02 prohibits one form of warrantless searches, it does not silently prohibit all others—namely when a suspect consents as Campbell did here. To hold R.C. 2951.02 applicable to all searches of probationers would inhibit trial courts’ broad authority to craft the terms of non-prison sentences.

Even if this Court finds a statutory violation, suppression of evidence is not the remedy. It makes little sense to apply a constitutional remedy to an alleged statutory violation.

AG’s First Proposed Counter Proposition of Law

Ohio courts may require that offenders agree to random searches as a condition of release from prison; warrantless searches preformed under those circumstances do not violate the Fourth Amendment.

AG’s Second Proposed Counter Proposition of Law

R.C. 2951.02(A) does not prohibit searches justified on grounds other than suspicion, including when consent is given as a condition of release; regardless, a violation of R.C. 2951.02(A) does not result in the exclusion of evidence.

Ohio Prosecuting Attorneys Association

The OPAA is a private, non-profit organization that assists Ohio’s 88 county prosecuting attorneys to promote truth, justice, and public safety. The OPAA is specifically interested in efficient felony prosecutions and ensuring courts do not improperly exclude highly relevant, reliable evidence of criminal conduct.

This Court was clear in Benton that a probation officer needs no suspicion to search probationers who consented to be searched as part of community release, and this includes the search of Campbell’s cell phone.  And R.C. 2951.02 is not a bar to that rule because it does not apply when independent grounds to search, such as consent, exist. Even if a violation occurred, the exclusionary rule is inapplicable here. First, at most, any violation here is statutory, not constitutional. Second, the Fifth District incorrectly applied the exclusionary rule when it focused on Conn’s subjective thought process and knowledge, not the objective reasonableness required.  

OPPA’s First Proposed Counter Proposition of Law

The “reasonable grounds” requirement in R.C. 2951.02(A) does not negate the validity of the consent-to-search condition of community control.

 OPPA’s Second Proposed Counter Proposition of Law

R.C. 2951.02(A) contains no suppression remedy, so any search in violation of the statute would provide no basis for suppression.

OPPA’s Third  Proposed Counter Proposition of Law

Any exclusionary rule under R.C. 2951.02(A) would not apply when the probation officer conducted the search in objective good faith.

Student Contributor: Brandon Bryer