“Shouldn’t there be a nexus between what the person is on probation for and why they would search?”

Justice Donnelly, to the assistant county prosecutor

“So, what do we do about the fact there’s no remedy spelled out in the statute?”

Chief Justice O’Connor, to counsel for the defendant

On October 26, 2021, the Supreme Court of Ohio heard 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 was 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 was 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 images 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, the trial court 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).

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.)

*Kettering v. Hollen, 64 Ohio St.2d 232 (1980) (“the exclusionary rule would not be applied to statutory violations falling short of constitutional violations, absent a legislative mandate requiring the application of the exclusionary rule.”) 

*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. Jones, 2009-Ohio-316 (Ohio courts may not develop a remedy for a violation of a state statute where the General Assembly has chosen not to or failed to do so.)  

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.”)

Riley v. California, 573 U.S. 373 (2014) (recognizing that cell phones are unique not only in the amount of data that can be accessed but also its private nature.)  

*United States v. Lara, 815 F.3d 605 (9th Cir. 2016) (holding that the word “property” does not clearly and unambiguously include a cell phone.)  

*State v. Storer, No. 2019-04-005 (12th Dist.) (State v. Benton remains controlling precedent in Ohio and it can coexist with R.C. 2951.02. Warrantless consent to search conditions of supervision are nevertheless lawful mechanisms to ensure appropriate rehabilitation and community safety.)  

*United States v. Fletcher, 978 F.3d 1009 (6th Cir. 2020) (Probation officer’s warrantless search of probationer’s cell phone was not supported by reasonable suspicion, as required by R.C. 2951.02 and was not authorized by a consent that was clear and unambiguous.)  

*State v. Dibble, 2020-Ohio-546 (holding that suppression of evidence under the exclusionary rule can be warranted for violations of Crim.R. 41 or statutes if the violation is of “constitutional magnitude.”) 

*State v. Lietzau, 463 P.3d 200 (Ariz. 2020) (holding that the term “property” does include a cell phone.)  

* Cited by counsel at oral argument

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.

Read the oral argument preview of the case here.

At Oral Argument

Arguing Counsel

Christopher A. Reamer, Assistant Prosecuting Attorney, Fairfield County, for Appellant State of Ohio

John L. Rockenbach, Deputy Solicitor General, for Amicus Ohio Attorney General Dave Yost, in support of Appellant State of Ohio

Scott P. Wood, Conrad/Wood, Lancaster, for Appellee Daniel J. Campbell

The state shared oral argument time with its amicus, the Ohio Attorney General.

State’s Argument

This case is vitally important because it ensures that a felony probationer who was in possession of child pornography will stand convicted of the contents that he possessed during his period of supervision. The state seeks this Court’s guidance as to whether or not it can validly require a probationer to agree to warrantless, suspicionless, random searches as a condition of his probation.

The nuance here has to do with electronic data and cell phones. When this search was conducted, the electronic devices were considered to be the personal property of Mr. Campbell and were searched on that basis. Case law establishes that the constitutional rights of individuals such as a recent arrestee would require that law enforcement obtain a warrant for the search of that phone.

In this case, the defendant was serving a prison term related to a robbery conviction. In December of 2017 he applied for and received judicial release and as part of that the trial court ordered that among other things, he allow probation officers to search his personal property. He did have a choice. He could have objected to that condition at the time it was imposed. But he didn’t. He signed off on those terms and conditions upon receiving his judicial release. Within a month his assigned probation officer met with him again and covered those specific terms and conditions. He had no questions about that and no objections. If the Court agrees that this requirement was proper, the Court does not need to reach the state’s second proposition of law about the good faith exception.

The original consent to search did not specify a cell phone. It simply stated property. However, a cellular telephone does constitute an item of personal property. And the defendant signed off on the terms and conditions of probation.

When the search was performed by the probation officer there was no suspicion that the defendant was not in compliance with the terms of his probation. It was just a normal house check. The probation officer testified that based on her training and experience the search was a constitutional one to which the probationer had consented.

The 5^th district’s conclusion that Benton was superseded by R.C. 2951.02 is flawed. The 4^th district, by contrast, still believes that an offender can be validly required to consent to random suspicionless searches. Consent to search has been recognized in the common law for many years and authority from this Court suggests that when the legislature intends to overturn a general common law protection, it will be explicit in its intent to do so. In fact, R.C.2951.02 was intended to apply only to a subclass of Ohio probationers-those who do not agree to consent to search terms. The General Assembly set a baseline level for searching a probationer, but that is only applicable when the probationer did not agree to a blanket consent to search term.

If anything, this case involves a statutory, as opposed to a constitutional, violation. But it is a statutory violation for which the General Assembly has provided no remedy. There’s no language in the statute about what should happen if there is a bad search. It’s the state’s position that if the General Assembly believes that their will is not being followed by law enforcement or probation officers, then it is their duty to amend the statute. But it is not for a trial court or any other court to suggest what that remedy should be.

It is clear there was no constitutional violation here. This was an acceptable search based on the consent to search. The U.S. Supreme Court made that clear in California v. Sampson. The Benton case, which is the most authoritative case on point from this Court remains good law. While courts of appeals may express some confusion many trial courts continue to rely on Benton.

The consent form language is admittedly boilerplate as to the terms and conditions of probation. But here, the defendant went over it with the probation officer, didn’t object, and he didn’t object at the time he was judicially released either. Instead, he waited until there was a problem and then raised an issue.

The Fifth District should be reversed.

Amicus Ohio Attorney General’s Argument

Three points are crucial to understand in this case. First, the statute at issue only established a baseline condition of parole. It is not intended to apply broadly to every probationer in Ohio. Second, the General Assembly provided no statutory remedy, and it is not the job of this Court to write in a remedy provision. Finally, as to the cell phone issue, the 5^th district did not fully consider the issue and it did not receive sufficient briefing before this Court. To the extent the Court does decide this issue, the cases Campbell cites for support that a cell phone is not considered “property,” are factually distinguishable. In fact, there is sufficient authority in Ohio and across the country that cell phones are considered “property.” The Fifth District’s opinion, which improperly interpreted R.C. 2951.02, should be overruled.

Campbell’s Argument

If the court of appeals decision is correct, that R.C. 2951.02(A) is the only way in which a community control officer can search a probationer, then that would be a statutory violation. The court of appeals admitted they were not going through a constitutional analysis. So, the issue in this case, is whether or not the search provisions of R.C. 2951.02 can coexist with a waiver or consent to be searched by a probationer. But even if there is a statutory violation, exclusion may still apply. In State v. Dibble, this Court very recently said that may be a proper remedy in a non-constitutional violation under certain circumstances.

The court of appeals in this case did not address the exclusionary rule. They simply found that this was a statutory violation, remanded the case back to the trial court, and determined it was the trial court’s role at that point to decide whether the exclusionary rule would apply here.

As for Mr. Campbell’s cell phone in this case, there is nothing in the record to reflect that he objected to its being searched. There is testimony that he was questioned as to whether it was his phone. He acknowledged that it was. And the probation officers simply took it and searched it. And while he could have refused the search of his phone, he would have been looking at prison as the alternative. But Benson held that a choice between two unattractive alternatives is still a choice. So, while his decision wasn’t necessarily involuntary, Mr. Campbell would argue whether it was knowingly and intelligently made with regard to his phone.

Mr. Campbell did have counsel with him at the time of his judicial release. And he agreed to the search of his property. Both this Court, recently, and the U.S. Supreme Court have held that cell phones are different from ordinary property based on the information that can be contained in a smart phone, and the information that can be accessed by them. So, the question here is whether or not the consent to search signed by Mr. Campbell was clear and unambiguous to him that property included cell phones. He did not verbally object at the time of the search. At the time that he consented, at the time he was granted judicial release, was it clear and unambiguous to him that the word property included a cell phone? A cell phone contains the privacies of life. Almost anything we do is within that cell phone. This case presents the opportunity for this Court to make the distinction between cell phones and smart phones and any other property. Precedent from this Court and the U.S. Supreme Court support that distinction. And a laptop would be in the same category as a smart phone, but people don’t usually carry them around in the same way as they do with their phones. A cell phone contains far more than the personal papers people carry around in their wallets.

This Court and the U.S. Supreme Court have already identified the cell phone as a very unique object in modern life. In U.S. v. Lara, the 9^th Circuit said a cell phone is of such a special nature that it cannot be assumed that it is within the term “property”. And because it was not clear and unambiguous when Mr. Campbell signed the terms of his judicial release that property included cell phones, there was no waiver. Because there was no constitutional waiver, the statute must be relied on. Because there were no reasonable grounds to believe that Campbell had violated the terms of his community control, then the search was unlawful, not only from a constitutional standpoint but also from a statutory standpoint.

R.C. 2951.02 requires two things. It requires the trial court to put the person on notice that he is subject to a random, suspicionless, warrantless search at any time during the period of his supervision. There was no evidence that there was any written notice provided. The second requirement of the statute is that there must be reasonable grounds to believe that the probationer is not abiding by the law or not complying with the terms of probation. It is undisputed that there were no reasonable grounds to believe that Mr. Campbell had violated the law or had not been in compliance with the terms of his community control.  The reason the community control officer was conducting the search was to move Mr. Campbell from a reporting to a nonreporting status. He was doing so well that this search was the last step before they moved him. There was no indication, no reasonable grounds to believe that he had violated the law or not complied with the terms of his community control.

What Was On Their Minds

R.C.2951.02; The Absence of a Remedy

When the legislature passed R.C. 2951.02 did they think it would be kind of a dead letter and courts could just do whatever they wanted and get around this, asked Justice DeWine? Is the statute just good advice? If there is no remedy for it what incentive is there for anyone to follow it? Why wouldn’t we think about it like this. A court must have authorization to impose a community control term. Here there’s a specific statute that talks about searches of probationers and gives courts authorization to do that and since the legislature specifically legislated in that area then that’s the standard the courts can apply. They don’t have any authority to apply a different standard. How does the defendant get around Kettering v. Hollan where we said “we will not apply the exclusionary rule to statutory violations falling short of constitutional violations absent a legislative mandate requiring the application of the exclusionary rule?” That was a case involving a warrantless search and the interests certainly seemed to be at least as strong in that situation as in this one and we said the exclusionary rule doesn’t apply.

In this case the 5^th district concluded that Benton was legislatively superseded by 2951.02. If you start from that premise, wasn’t their ruling appropriate, asked Chief Justice O’Connor? If we believe R.C. 2951.02 remains in place, and the judge or the probation department cannot make an order that flies in the face of that statute, and they do, and there is contraband found, isn’t the question what do you do with the results of that search that are statutorily precluded? What do we do about the fact there’s no remedy spelled out in the statute?

Isn’t the statutory language cabining the powers of a probation officer to require reasonable suspicion, asked Justice Kennedy?

If the statute applies, why doesn’t the search fit the requirement that the search be reasonable, asked Justice Brunner? If there is a 4^th amendment problem, where does that leave the trial court? With structural error?

Unique Properties of Cell Phones

Normally, for someone who is not on probation it would require a warrant to search a telephone, wouldn’t it, asked Chief Justice O’Connor? Isn’t a cell phone property? What about a laptop? Is that in the same category as a phone?

Should we extrapolate from this Court’s precedent and the U.S. Supreme Court precedent about the uniqueness of the cell phone or electronic devices that a specific concern to search those devices is needed, asked Justice Stewart?

What about a wallet, asked Justice Fischer? They can contain some pretty personal information. Or a person’s diary?

Was there anything that the state can stand on to say that they had reasonable grounds to get into his phone, asked Justice Brunner?

Consent to Search As Condition of Probation

Is what was signed a blanket agreement to search anything and everything at all times at any time, asked Justice Stewart? The probationer really had no choice, did he?

In this matter the trial court really orders the probationer to waive all privacy rights, noted Chief Justice O’Connor. There was no suspicion of any illegal activity with this probationer, was there, and there was no reason to suspect anything that would be characterized as noncompliant with the terms of probation? Did he object at the search or once they are scrolling through his phone?

What would have happened if the defendant had told the trial judge that he wasn’t going to agree to that, asked Justice DeWine? He probably wouldn’t be on probation, would he? Is the issue really the consent? Isn’t the issue the probation officer’s authority to search? Regardless of what someone consents to, if a government actor doesn’t have the authority to do that action, they can’t do it.

Doesn’t the potential probationer agree to follow the rules of the probation department and isn’t it at the time they go to the probation department and sign up that they find out they have to consent to a warrantless search and to follow the rules of the probation department, asked Justice Brunner? It was judicial release to community control? Whether it is judicial release or just straight sentencing to community control I don’t recall that there was anything that the trial judge has to say at the time or that’s in the agreements except to follow the terms and conditions of probation as determined by the probation department. Correct? If we agree that it is constitutional to require this consent, we don’t even need to get to the good faith exception in the second proposition of law, do we? Isn’t the question whether it is ok for courts to require this as a condition of being out on the street instead of locked up in a prison? Can a court really require this? Isn’t there case law that says requiring consent is constitutional?

Mr. Campbell’s original waiver or agreement consent form did not specify telephone in it, did it, asked Justice Donnelly? He added that the consent form was later amended for other probationers. How come Mr. Campbell wasn’t brought in and told this includes your telephone? Shouldn’t there be a nexus between what the person is on probation for and why they would search? For example, if someone were on probation for possessing illegal sexual materials it would make sense for probation officers to search computers and telephones, but Mr. Campbell was on probation for a robbery. What would be the necessity for the probation officer to check the telephone? Later he commented that counties weren’t required to use consent forms with their probationers, so perhaps this statute just exists for those counties that don’t require consent forms.

Aren’t probation officers and courts statutory creatures, asked Justice Kennedy?  Each only has that power to which is extended by the constitution or the statutes? Isn’t this consent form simply boilerplate to anybody who is going to sign that document?

When the defendant was searched, and they asked to see his cell phone, did he object, asked Justice Fischer? Can’t people waive Fourth Amendment rights and statutory rights? Isn’t that what we have here? Couldn’t the defendant have said no? Did he have counsel with him at the judicial release time? Is there anything in the record with him saying you can’t look at my cell phone?

How it Looks from the Bleachers

To Professor Emerita Bettman

I keep going back and forth on this one. I don’t see unanimity, but ultimately I think the state will win on the fact that Campbell did sign the consent without objection, and even though the form was later amended to put cell phones in a separate category, at the time Campbell signed it was reasonable to assume the phone was “property.” Justice Donnelly, on the other hand, clearly thinks there should be a nexus between what the person is on probation for, and the search, and that was missing here.

Those statutes without remedies are problematic.

To Student Contributor Brandon Bryer

I predict a win for the State. Although it appears straightforward, this is a difficult case to parse out the constitutional issues, statutory issues, and how they intersect. Controlling Fourth Amendment precedent cuts strongly against Campbell and I don’t see any constitutional argument going far. Campbell’s best argument is statutory, however, to prevail, he has numerous hurdles to overcome. First, he must demonstrate that R.C. 2951.02 applies to him. The State, however, has advanced a compelling argument that the statute only applies to a subclass of individuals, probationers who voluntarily consent to blanket searches not being one of them. If his first argument fails, he needs to show that a cell phone is so unique and special that it cannot fall under the term “property” which he agreed to warrantless, suspicionless searches of. Naturally, a cell phone is considered property and if the cell phone was so special, Campbell could have (but notably did not) object to the search or revoke his blanket consent on that ground. Third, even assuming Campbell convinces the Court to find a statutory violation or that cell phones are so unique, the General Assembly did not provide a remedy. The natural tendency in the search and seizure context would be to suppress the evidence via the exclusionary rule, however, the U.S. Supreme Court has considerably expanded the good faith exception to reduce suppression of evidence, even if unlawfully obtained. Therefore, even if the Court finds a violation—whether it be constitutional or statutory—Campbell’s probation officer acted in good faith reliance upon a court’s probationary terms of release.  

The justices’ questioning suggests two divided camps. I sense that Justices Kennedy and Fischer will side with the State. Justice Fischer, and to an extent the Chief Justice, really pressed counsel for Campbell on the lack of an objection to searching his cell phone. Indeed, at the search, Campbell confirmed that the phone was his but never objected or revoked consent. Leading the opposite camp is Justice Donnelly, who seemed to buy that R.C. 2951.02 applies here and that a cell phone might not fall under the term property in the consent to search form. Justice DeWine was especially hard to read in this case, but one point stuck out to me: he seemed uncomfortable applying a constitutional remedy of exclusion to a statutory violation. Ultimately, I think Campbell has too many hurdles to get over to win this case, and I sense a majority of the Court will agree.