Read the analysis of the oral argument here.

On April 27, 2022, the Supreme Court of Ohio will hear oral argument in State of Ohio v. Alan Schubert, 2021-0761. At issue in this case is whether police officers may reasonably rely on a search warrant issued for a cell phone despite scant factual evidence linking it to a crime.. The case will be argued at Miami Trace High School in Fayette County as part the Court’s off-site program.

Case Background

In June 2018, Alan Schubert, driving a Jeep in Licking County, allegedly crossed the center line and caused a crash, which killed another driver. Police obtained a search warrant to test Schubert’s blood, which allegedly contained illegal concentrations of amphetamine and methamphetamine.

Police then obtained two additional search warrants, authorizing their search of three cell phones found at the crash scene. The first warrant authorizing search of the phones was issued November 2018 by Franklin County Municipal Court Judge Amy Salerno; the second March 2019 by Franklin County Municipal Court Judge Paul Herbert. All the phones belonged to Schubert, and he allegedly stored child pornography on one of them. He was charged with six counts of pandering obscenity of a minor. Schubert contested the validity of all three warrants, arguing police lacked the required probable cause to obtain them. Licking County Common Pleas Court Judge Thomas M. Marcelain overruled Schubert’s motion to suppress evidence found on his phones.

Schubert entered no-contest pleas to the six pandering charges, as well as to aggravated vehicular homicide. He was convicted and sentenced to twelve years.

The Appeal

Schubert appealed his conviction to the Fifth District. The Fifth District held that the warrant authorizing the collection of Schubert’s blood and the March 2019 search warrant in which the forensic examiner observed photographs of nude juvenile females contained probable cause. But Judges William B. Hoffman, Scott Gwin, and Earle E. Wise all agreed with Schubert’s claim that the November 2018 Salerno search warrant for the three cellphones lacked probable cause. However, Judges Hoffman and Gwin found the good-faith exception applied, and that the trial court properly denied Schubert’s motion to suppress evidence.

The Fifth District quoted the affidavit used to obtain the November 2018 search warrant for the discovered phones: “[T]he digital devices in question may contain additional evidence into the criminal investigation.” Though no one witnessed the crash, officers wrote in the affidavit that evidence may include call, texting, or internet activity performed on the phone at the time of the crash.

The use of the word “may” in the affidavit proved fatal to its validity, according to the Fifth District. It showed the officer “did not have a fair probability to believe evidence [concerning the crash] was in the cell phone data, but rather was merely speculating.” Finding probable cause in this case would allow officers to search phones after any car crash, as they may find evidence therein. The Fifth District declined to establish such a rule.

However, the Fifth District majority found suppressing evidence was not warranted in this case, as the officers reasonably relied on the faulty warrant. The court applied the good-faith exception and affirmed the trial court’s denial of Schubert’s motion to suppress.

Judge Wise dissented on the application of the good faith exception, writing that the good-faith exception should not apply. Judge Wise instead wrote that the data sought in the phone was not linked with any particularity to criminal activity. Police offered “no evidence” that Schubert had been using his phone during or preceding the crash and instead relied on “speculation.” Citing United States v. Leon, the United States Supreme Court case that established the good-faith exception, Judge Wise wrote the exception does not apply when a warrant fails to “particularize the . . . things to be seized.”

 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.”)

Ohio Constitution, Article I, Section 14 (“The right of the people to be secure in their persons … against unreasonable searches and seizures shall not be violated; and no warrant shall issue, but upon probable cause, supported by oath or affirmation, particularly describing … the person … to be seized.”)

Nathanson v. United States, 290 U.S. 41 (1933) (holding “mere suspicion” is insufficient for a finding of probable cause.)

Aguilar v. Texas, 378 U.S. 108 (1964) (The Fourth Amendment’s protection requires that “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.”)

Spinelli v. United States, 393 U.S. 410 (1969) (A magistrates’ “determination of probable cause should be paid great deference by reviewing courts.”)

Illinois v. Gates, 462 U.S. 213 (1983) (“The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place.”)

United States v. Leon, 468 U.S. 897 (1984) (“When police act in an objectively reasonable manner in executing a search believed in good faith to be legal, there is no bad conduct to deter” under the exclusionary rule. . . . “[A] warrant may be so facially deficient — i.e., in failing to particularize the place to be searched or the things to be seized — that the executing officers cannot reasonably presume it to be valid.”)

State v. Wilmoth, 22 Ohio St. 3d 251 (1986) (in which the Supreme Court of Ohio adopts the Leon good-faith exception.)

Ornelas v. United States, 517 U.S. 690 (1996) (“[A] reviewing court should take care both to review findings of historical fact only for clear error and to give due weight to inferences drawn from those facts by resident judges and local law enforcement officers.”)

United States v. Laughton, 409 F.3d 744 (6th Cir. 2005) (reversing district court’s validation of warrant under the good-faith exception upon finding no nexus between place to be searched and alleged criminal activity.)

State v. Hoffman, 2014-Ohio-4795 (“[T]he purpose of the exclusionary rule is to deter unlawful police conduct.”)

State v. Castagnola, 2015-Ohio-1565 (in suppressing evidence based on invalid search warrant, Supreme Court of Ohio writes, in part, that “the broad language of this search warrant clearly included items that were not subject to seizure. The search warrant permitted [an officer] to examine every record or document on [appellant’s] computer in order to find any evidence of the alleged crimes.”)

Stevenson v. State, 168 A.3d 967 (2017) (finding officers relied in good faith on warrant backed by affidavit that stated, “It is through my knowledge and experience that suspects in robberies and assaults will sometimes take pictures, videos and send messages about their criminal activities on their cellular phones. I am wishing to search this phone to attempt to recover any evidence of the robbery and assault of [the victim] which may be stored on the phone . . . “)

Votes to Accept the Case

Yes: Justices Donnelly, Stewart, Brunner, and Kennedy*

No: Chief Justice O’Connor and Justices DeWine and Fischer

*Justice Kennedy would accept the appeal on all propositions of law.

Schubert’s Third Proposition of Law Accepted for Review

An officer cannot reasonably presume a warrant to search a cell phone found at a crash scene is valid, when the affidavit supporting the warrant only states that the police “may” find evidence of how a crash occurred on the phone, without any actual evidence that the driver was using his phone when the crash occurred.

Schubert’s Argument

The November 2018 warrant in question lacked probable cause, and the affidavit supporting the warrant was so facially deficient and “bare bones” that an officer could not reasonably presume its validity.

Leon held that, when affidavits lack sufficient factual support to allow a magistrate to determine the existence of probable cause, suppression is justified. Under Aguilar, inference-making, in determining probable cause, must be performed by a magistrate, not by officers.

The need for a factual basis in warrant applications manifests in most of the Leon scenarios calling for suppression: the issuing judge abandoned her role, the officer’s reliance on the warrant was unreasonable, or the warrant was facially deficient.

Police in this case provided just one fact in the affidavit: that the phones were discovered at the crash scene.

Second, Laughton held that in determining if an affidavit is bare bones, courts should gauge whether there existed a connection between criminal activity and the place to be searched. The absence of such a nexus precludes reasonable belief in probable cause.

Mere suspicion is an insufficient basis for probable cause. As this Court held in Castagnola, a warrant based on conjecture is insufficient.

Here, there was no factual nexus between the phones and the crash. No witnesses saw Schubert operating a phone while driving, nor even did saw a phone in his hand. The officer merely speculated that evidence of a crime existed on the discovered phones.

The State’s reliance on Stevenson is not persuasive, as the officer there identified specific evidence commonly found on phones for the type of crime being investigated. Here, the officer did not do so.

In addition, the State cites Leon for the proposition that disagreement as to the existence of probable cause among judges supports that an officer reasonably relied on a warrant. However, all three appellate judges in this case found the November 2018 warrant lacked probable cause.

This Court should reverse the Fifth District’s holding that the good-faith exception precludes suppression of the evidence.

State’s Argument

The trial court found that none of the four Leon possibilities — that the issuing judge was misled or abandoned her role, that the officer’s reliance on the warrant was unreasonable, or that the warrant was facially deficient — apply here, so the case should not be removed from the reach of the good-faith exception.

Two Ohio appellate judges affirmed that the warrant was not facially deficient, and thus an officer could reasonably presume its validity.

Leon stands for the proposition that disagreement among judges regarding probable cause supports an argument for the good-faith exception. Here, both Judge Marcelain, reviewing at the trial level, and Judge Salerno, who issued the search warrant, agreed that probable cause existed.

Judge Marcelain also wrote that the warrant called for a search of phones that may contain evidence of distracted driving. The Fifth District agreed that the phones could contain such evidence.

A valid affidavit for a search warrant must only provide a “fair probability . . . that evidence of a crime will be found in a particular place.” Probable cause may be based on “common-sense conclusions about human behavior.”

In Stevenson, a Maryland court held the good-faith exception applied when an officer requesting a warrant to search a phone stated perpetrators “sometimes” recorded illegal activity on their phones.

In Spinelli, the United States Supreme Court held that reviewing courts should pay “great deference” to magistrates who make probable cause determinations. In addition, police may make inferences based on their experience when determining if probable cause exists.

The inferences made by police in this case were supported by both Judge Salerno’s issuance of the warrant and the trial court’s upholding the probable-cause determination.

The exclusionary rule is meant to deter police misconduct. When officers rely in good faith on a warrant, suppressing evidence serves no useful purpose.

Schubert’s appeal should be denied.

Student Contributor: Max Londberg