“You are assuming that being under the influence was the cause. What if it wasn’t the cause? What if distracted driving was?”

Justice Kennedy, to counsel for Schubert

“If we affirm the court of appeals does this give license to all enforcement officers anywhere and everywhere to rely on a warrant that doesn’t have probable cause, by using the good faith exception, to always look into a cellphone?”

Justice Stewart to the Assistant County Prosecutor

On April 27, 2022, the Supreme Court of Ohio heard 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 was 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 a 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 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.”

Read the oral argument preview of the case here.

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 . . . “)

*cited by counsel at argument

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.

At Oral Argument

Arguing Counsel

April P. Campbell, Campbell Law LLC, Delaware, for Appellant Alan Schubert

Clay Mischka, Assistant Prosecuting Attorney, Licking County, for Appellee State of Ohio

Schubert’s Argument

For the good faith exception to apply it is not enough when asking to search a particular place to say that evidence might be found in that place. Courts have traditionally found that the good faith exception does not apply without specific facts to back up the belief whether it may be a belief that evidence might be found or whether it is a conclusion that evidence will be found.

In this case the trial court was pretty clear that the court believed that any time there’s a car crash, but the reason why is unknown, a search of the phone is permissible to see if there is evidence of distracted driving. That is a mere possibility, and one which is based on a speculation that the phone was used at all. There must be some sort of factual circumstance to support the conclusion that the evidence might be found in a particular place. There are no such facts here. An example would be a witness who saw something in the defendant’s hand or saw a rectangular object fly out of the car. There must be something, some factual support upon which the belief is formed. The fact that there were drugs in Mr. Schubert’s system provides the cause of the accident. He was impaired. He was high. But it does not provide a cause to get into someone’s phone. There is no causal connection.

Distracted driving is only a possibility. It’s just as likely that Mr. Schubert was rummaging around looking for methamphetamines and discovered he had already consumed them. And there are many causes of distracted driving that have nothing to do with a phone. The point is there must be a causal connection between any sort of factual circumstances and the place sought to be searched. The affiant has to provide the circumstances on which his belief is formed in order for the neutral detached magistrate to be able to say, yes, that’s fair. There must be objective reasonableness to presume that the place to be searched is going to be the right place to search. There must be a nexus between the place sought to be searched and any sort of facts to back up that connection.

The Leon court specifically noted that the good faith exception is not intended to create an excuse for magistrates to start rubber stamping everything. The Leon court describes why objective reasonableness is required. Objective reasonableness does deter police misconduct.

Privacy interests also must be discussed in this case. Privacy interests in cell phones are very high. They are too high to say that any time there is a car crash a warrant can be obtained and the phone searched. If a driver tells an officer he just ran a red light, with no reason, that does not allow the officer to get into the driver’s phone without a warrant.

In this case the Fifth District should have found that the good faith exception did not apply.

State’s Argument

If the Court were to adopt the appellant’s proposition of law, every officer, after they have received a signed search or arrest warrant, would now have to doubt the magistrate’s decision going forward. That would be a dangerous situation for pretty much every search warrant.

The state believes there was probable cause in this case, as did the initial magistrate and the trial court. Only the majority in the court of appeals did not. The affidavit set forth that these three phones were found at the collision. There was only the decedent and no recollection from the defendant in this case. There were no witnesses. Based on the accident reconstruction, and the opinions of the initial trooper who got there, it appeared that Mr. Schubert crossed the double yellow lines. Recklessness was involved here, and he was charged with that. The standard of recklessness would take it above a normal accident between two cars and something where distracted driving was the cause versus just simply going over the line for a moment.

It is the state’s position that there was enough here because of where the cell phones were found at the scene. Regardless, there is still a level of privacy here. None of the data pulled from that initial search warrant was ever pulled from the actual device. The data was pulled from the SD cards that were taken out of the device due to the search warrant. The victim is deceased, and the defendant has no memory. There were no witnesses to this accident at any time. At some point it needs to be established how the accident occurred and whether distracted driving was a cause. If there was an error here, it was not on the officer who receives the warrant. Their job is essentially done as they believe the probable cause is there as stated by the judge or the magistrate who issued that warrant. But there will still be cases where the good faith exception does not apply.

If the Court is to state in this case that the good faith exception does not apply, who or what is being deterred? What is the benefit for the courts in this situation? There are two independent officers both going forward with the belief of probable cause in this warrant. The court of appeals should be affirmed in this case.

What Was On Their Minds

Probable Cause

Doesn’t there have to be some daylight between what is bare bones and what’s probable cause, asked Justice DeWine? What are some facts that would allow an officer to rely on it but wouldn’t amount to probable cause?

What about the fact that the phone was turned on, asked Chief Justice O’Connor?

We have a fatality car crash, noted Justice Kennedy. We have an individual who tests positive for methamphetamines and amphetamines. He has no memory of the crash or how it occurred. Three cellphones are found at the scene of the crash. Law enforcement is investigating how the crash occurred. That’s not sufficient?

Assuming that we agree that there was some probable cause for the warrant but do not recognize the good faith of the officer here wouldn’t we be requiring the officer to have more legal knowledge than the magistrate who issued the warrant, asked Justice Stewart? Is the defense asking us to say the officers in that scenario should technically overrule the magistrate or the judicial officers’ issuance of the warrant and not execute it? Later she noted there’s no indication that these phones could have been a cause. And at the time the warrant was requested the state already had the results and knew this individual was severely intoxicated and had a large amount of drugs in his system which arguably was the main cause of this accident. And the affiant said there “may” be evidence-it’s not a possible cause determination, it’s a probable cause determination.

Does the state concede there was not probable cause here, asked Justice Fischer? (the state did not) Why?

The Affidavit

This affidavit described exactly the circumstances, noted Justice DeWine. If you look at the cases with bare bones affidavits, those are all just officers saying they believe something. Here you have the officer laying out the facts, the accident, you have the 3 cellphones, and then you have the officer who did exactly what he was supposed to do. Instead of going through the phones he went to the magistrate, he got a search warrant. Was the officer really supposed to second guess the judge and say that this doesn’t amount to probable cause?

Justice Kennedy noted that here, as Justice DeWine explained, the officer laid out all the facts of the crash, instead of going through the 3 phones because he doesn’t know who belongs to what, he takes it to the hearing officer who makes a probable cause decision, that that’s sufficient in order to issue a warrant. How can the officer then not rely on that?

Was the affiant and the officer who conducted the search the same officer, asked Justice Stewart?

The Warrant

If there is a problem with the warrant, it doesn’t rest with the officer acting on that warrant, noted Chief Justice O’Connor. Wouldn’t it rest with the decision the magistrate made? And if that’s the case, then the officer was entitled to rely on the magistrate, the validity of the warrant issued by the magistrate. That’s not his concern to second guess or question the magistrate, are you sure what I put in the affidavit is sufficient for you to make this call? That’s not how it works.

If a magistrate issues a warrant, should the officer be required to know more about the law than the magistrate, asked Justice Stewart? If an officer gets this warrant with no probable cause then a cell phone can always be searched for any offense because it may contain evidence?

Good Faith Exception

What are some facts that would allow an officer to rely on it but wouldn’t amount to probable cause, asked Justice DeWine? What are some facts where the good faith exception would apply? Or is it the defense position that probable cause is the only standard? The rule can’t be that unless there’s probable cause the good faith exception doesn’t apply.

The good faith exception wouldn’t apply if the affidavit was deceptive and the officer that was executing it was the one that signed the affidavit and put the facts in that were speculative or deceptive, noted Chief Justice O’Connor. But we don’t have that here.

If we affirm the decision of the court of appeals, which found no probable cause for the warrant, but found that there was a good faith exception which should keep the evidence in because the officer had a good faith exception use, if we affirm the court of appeals does this give license to all enforcement officers anywhere and everywhere to rely on a warrant that doesn’t have probable cause, by using the good faith exception, to always look into a cellphone, asked Justice Stewart?

If we agree with the court of appeals is there going to be any case where the good faith exception does not apply, asked Justice Brunner? In this particular case, the initial judge who issued the warrant and then later the second judge who seemed to believe that whenever there’s a car crash you’re allowed to search cell phones, if they make a mistake, based on the warrant being barebones, then if it is even a more obvious one than that and the officer sees it and questions it, the officer still has the good faith exception just because the judge or the magistrate issued it? What if the officer looked at it and said no police officer in their right mind would think this is a good warrant? How could there be good faith if the warrant is defective on its face and any police officer who has served enough knows it? Would the good faith exception apply? If it’s just a generic without creating the probable cause for the magistrate or the judge to issue the warrant, saying it “may” be related to the crime, but basically doesn’t say how aren’t we pretty much just throwing all these exceptions out the window?

Cause of the Accident

We’re talking about a telephone here, correct, asked Chief Justice O’Connor? And ostensibly the reason for the search of the phone was to determine if either the victim or Mr. Schubert was texting, or were speaking on the phone immediately prior to the accident?

What if being under the influence wasn’t the cause of the accident, asked Justice Kennedy? What if distracted driving was? This is an investigation into a fatality. No one has a memory. The other individuals involved in the crash are dead. The only living individual has no memory of the crash whatsoever.

Would the defense position be different if the defendant was not found with drugs in his system, asked Justice Stewart? Is it the state’s position that an affiant can always say a cell phone may contain evidence of the alleged offense and an affidavit may issue because then everyone who carries cell phones who is arrested for an offense can have their cell phones checked?

Wouldn’t the state always want to get into the phones because it can do so many things, asked Justice Fischer? And there would be no privacy left?

Recklessness

Is it reckless to drive the wrong way on a ramp, asked Justice Stewart? Or crossing the double yellow line?

Search of the Cell Phone

Let me ask about the scope of the search of the cellphone, said Justice Donnelly. The purported reason for searching was to see if the defendant may have been using the phone, was distracted, and that may have contributed to the accident. So presumably, if the state received a warrant you’d want to look at the call log.  If the defendant  was on the phone at the approximate time of the crash, or a text, would that necessarily allow the state  to search photographs contained on the phone? How would that relate to the investigation?

How it Looks from the Bleachers

To Professor Emerita Bettman

This looks like a split decision. Justices DeWine and Kennedy clearly see probable cause here and the Chief seems to see at least a good faith exception. Justice Fischer will probably join them. Justices Donnelly, Stewart and Brunner seemed skeptical about the state’s position.

To Student Contributor Max Londberg

April F. Campbell, representing Schubert, appeared to have few allies on the bench. Justice Kennedy indicated the officer conduct here should be protected by the good-faith exception, by listing the facts that led police to request warrants before asking pointedly, “That’s not sufficient?” Justice DeWine echoed her, distinguishing this case from those involving bare-bones affidavits, in which officers were found to be “just saying that they believe something.” He and Kennedy then defended the officer’s actions in refraining from searching the phones prior to obtaining warrants. Chief Justice O’Connor joined her colleagues’ reasoning, while also defending the officer’s decision not to object to the issuance of the warrants. Justice Stewart continued with that thought: “Wouldn’t we be requiring the officer to have more legal knowledge than the magistrate who issued the warrant?”

But the justices also interrogated the State’s position. Justice Stewart highlighted the absence of evidence pointing to phone use as a cause of the crash. She also asked whether, if the justices affirm the appellate court, it would then “give license to all enforcement officers” to search phones even without probable cause, for any offense. Clay Mischka, representing the State, returned to the idea that officers should not be expected to second-guess magistrates’ decisions to issue warrants, to which Justice Stewart said, “So the answer is yes?” Mischka said that it was, barring officer conduct that removes the good-faith exception. Justice Brunner asked whether the State sought an irrebuttable presumption of good-faith reliance for all warrants, “no matter how facially deficient.”

Given the rationale for the good-faith exception, I predict a majority of justices will affirm the appellate court, citing a lack of deterrent effect in holding otherwise.