The opinion
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
v. Schubert, Slip Opinion No. 2022-Ohio-4604.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2022-OHIO-4604
THE STATE OF OHIO, APPELLEE, v. SCHUBERT, APPELLANT.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State v. Schubert, Slip Opinion No. 2022-Ohio-4604.]
Criminal law—Fourth Amendment to United States Constitution—Good-faith
exception to exclusionary rule—Probable cause—For the good-faith
exception to the exclusionary rule to allow the introduction of evidence
obtained through a defective search warrant, the affidavit supporting the
warrant must evince a minimum connection between the item or place
searched and the alleged criminal activity—Good-faith exception to
exclusionary rule did not apply to search of cell phones found at
automobile-accident scene—Warrant to search cell phones lacked probable
cause—Court of appeals’ judgment reversed and cause remanded.
(No. 2021-0761—Submitted April 27, 2022—Decided December 22, 2022.)
APPEAL from the Court of Appeals for Licking County, No. 2020 CA 00040,
2021-Ohio-1478.
__________________
SUPREME COURT OF OHIO
STEWART, J.
{¶ 1} In this appeal, we are asked to decide whether the good-faith
exception to the exclusionary rule applies to the execution of a constitutionally
deficient search warrant authorizing the search of cell phones found at the scene of
a car crash, when nothing in the affidavit supporting the warrant connected the
phones to the crash other than the police officer’s averment that evidence of how
the accident occurred “may” be found on the phones. We determine that the good
faith-exception does not apply under the facts of this case. For the objective-good-
faith exception to the exclusionary rule to allow the introduction of evidence
obtained through a defective search warrant in violation of the Fourth Amendment
to the United States Constitution, the affidavit supporting the warrant must evince
a minimum connection between the item or place searched and the alleged criminal
activity. This is not a difficult standard to meet; a minimum connection means only
some modicum of evidence, however slight, that connects the criminal activity
described in the affidavit to the item or place searched. See United States v. White,
874 F.3d 490, 497 (6th Cir.2017). The warrant affidavit at issue in this case, even
when generously construed, does not meet this standard. Thus, the good-faith
exception to the exclusionary rule does not apply to the search of the cell phones in
this case.
I. Facts and Procedural History
{¶ 2} Appellant, Alan Schubert, drove his car left of center and hit another
car, causing the death of the driver of the other car. Police obtained a search warrant
for Schubert’s blood, and a blood draw was performed by staff of the local hospital
where Schubert was taken. His blood tested positive for amphetamine,
methamphetamine, and fentanyl. Thereafter, police obtained another search
warrant for the search of three cell phones that were discovered at the scene of the
crash. The probable-cause affidavit signed by the officer who applied for the
second warrant stated that he was seeking the warrant to search the phones because
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they “may” contain additional evidence regarding the active aggravated-vehicular-
homicide investigation relating to the crash. Specifically, the affidavit stated:
The digital device may contain personal identifiers for the owner,
also date and time stamps for incoming and outgoing calls, text
messages and/or Internet browsing information. The affiant submits
the digital device in question may contain evidence to phone
conversations, texting, and/or video related to the crimes referenced.
Also, the use of cloud storage has become so closely tied with many
devices that the cloud storage functions as an extension of their
digital devices; for this reason, a person may have data on the cloud
storage that is not present on the digital device. For these reasons,
the affiant requests authorization to seize, listen to, read, review and
copy, operate and maintain the above described property and
convert it to human readable form as necessary.
{¶ 3} While searching Schubert’s phone, police discovered what they
believed to be pictures of nude juveniles. Schubert was subsequently charged in
the Licking County Common Pleas Court with five second-degree-felony counts of
pandering obscenity involving a minor, one fourth-degree-felony count of
pandering obscenity involving a minor, and one count each of second-degree-
felony and third-degree-felony aggravated vehicular homicide.
{¶ 4} Schubert filed a motion to suppress the evidence obtained from the
search of the phones, arguing that the affidavit supporting the search warrant did
not establish probable cause upon which the magistrate could issue the warrant.
The trial court denied the motion to suppress, finding that the affidavit established
probable cause for the search warrant to issue. Schubert then pleaded no contest to
all the charges and was found guilty of them. The court merged the pandering-
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obscenity-involving-a-minor counts and sentenced Schubert to four years in prison
for that conviction. The court also merged the aggravated-vehicular-homicide
counts and sentenced Schubert to eight years in prison for that conviction. The
court ordered the four-year and eight-year prison terms to be served consecutively,
for an aggregate prison term of 12 years.
{¶ 5} On appeal, the Fifth District Court of Appeals affirmed the trial
court’s judgment denying Schubert’s motion to suppress. 2021-Ohio-1478, 170
N.E.3d 1296, ¶ 37-43. In doing so, however, the appellate court disagreed with the
trial court’s decision that the affidavit supporting the warrant to search the cell
phones established probable cause for the search. Id. at ¶ 37. The appellate court
noted that at the time police requested the warrant to search the cell phones, they
already had information about the cause of the crash—the amphetamine and
methamphetamine in Schubert’s system. Id. The court further noted that if the
affidavit’s assertion that there “may” be evidence of the cause of the crash on the
phones were enough to establish probable cause to search the phones, then there
would be probable cause to search any phone discovered at the scene of a crash
based on mere speculation that the crash was caused by distracted driving. Id.
{¶ 6} The appellate court refused to sanction such a blanket rule that
probable cause always exists in such instances, instead determining that police in
this case needed to establish a connection between the cell phones and the crash,
which they had not done. Id. Nevertheless, the appellate court upheld the cell-
phone search under the “good faith exception” to the exclusionary rule set forth in
United States v. Leon, 468 U.S. 897, 919, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984),
and adopted by this court in State v. Wilmoth, 22 Ohio St.3d 251, 254, 490 N.E.2d
1236 (1986). 2021-Ohio-1478 at ¶ 38-41.
{¶ 7} Schubert filed a discretionary appeal to this court, and we accepted
review of his third proposition of law, which states:
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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.
See 164 Ohio St.3d 1419, 2021-Ohio-2923, 172 N.E.3d 1041.
II. Analysis
A. The Exclusionary Rule and Leon’s Good-Faith Exception
{¶ 8} The exclusionary rule safeguards Fourth Amendment rights through
its deterrent effect. Herring v. United States, 555 U.S. 135, 139-140, 129 S.Ct. 695,
172 L.Ed.2d 496 (2009), citing United States v. Calandra, 414 U.S. 338, 348, 94
S.Ct. 613, 38 L.Ed.2d 561 (1974). In Leon, the United States Supreme Court
explained that given the heavy societal cost of excluding “inherently trustworthy
tangible evidence” from a jury’s consideration, id. at 907, the exclusionary rule
should be applied only when its application will result in appreciable deterrence of
Fourth Amendment violations, id. at 909. The Leon court recognized that when an
officer’s conduct was objectively reasonable, “ ‘excluding the evidence will not
further the ends of the exclusionary rule in any appreciable way.’ ” Id. at 920,
quoting Stone v. Powell, 428 U.S. 465, 539-540, 96 S.Ct. 3037, 49 L.Ed.2d 1067
(1976) (White, J., dissenting). It thus adopted the objective-good-faith exception
to the exclusionary rule for it to be applied to instances in which police acted in an
objectively reasonable manner. Id. at 918-919.
{¶ 9} The court in Leon explained that a police officer’s having relied on a
warrant issued by a judicial officer—even when the warrant was later determined
to be invalid for want of probable cause—generally suffices to show that the police
officer “ ‘acted in good faith in conducting the search.’ ” 468 U.S. at 922, 104 S.Ct.
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3405, 82 L.Ed.2d 677, quoting United States v. Ross, 456 U.S. 798, 823, 102 S.Ct.
2157, 72 L.Ed.2d 572 (1982), fn. 32. Nevertheless, the court made clear that a
police officer’s reliance on a warrant, even in good faith, must still be “objectively
reasonable,” id., and that “in some circumstances the [police] officer will have no
reasonable grounds for believing that the warrant was properly issued,” id. at 922-
923. The court then noted certain circumstances in which it would not be
objectively reasonable for a police officer to rely on a warrant, one being when the
affidavit supporting the warrant is “ ‘so lacking in indicia of probable cause as to
render official belief in its existence entirely unreasonable.’ ” Id. at 923, quoting
Brown v. Illinois, 422 U.S. 590, 610-611, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975)
(Powell, J., concurring in part). “An affidavit that is so lacking in indicia of
probable cause that no reasonable officer would rely on the warrant has come to be
known as a ‘bare bones’ affidavit.” White, 874 F.3d at 496, citing United States v.
Weaver, 99 F.3d 1372, 1380 (6th Cir.1996). An affidavit is “bare bones” when it
fails to establish a minimally sufficient nexus between the item or place to be
searched and the underlying illegal activity. United States v. McPhearson, 469 F.3d
518, 526 (6th Cir.2006).
{¶ 10} To avoid being labeled as “bare bones,” an affidavit must state more
than “ ‘suspicions, or conclusions, without providing some underlying factual
circumstances regarding veracity, reliability, and basis of knowledge,’ ” United
States v. Christian, 925 F.3d 305, 312 (6th Cir.2019), quoting United States v.
Washington, 380 F.3d 236, 241 (6th Cir.2004), fn. 4, and make “ ‘some
connection,’ ” id. at 313, quoting White at 497, “ ‘between the illegal activity and
the place to be searched,’ ” id., quoting United States v. Brown, 828 F.3d 375, 385
(6th Cir.2016).
{¶ 11} The minimally-sufficient-nexus understanding of the “so lacking in
indicia of probable cause” language employed in Leon developed out of the rule of
law first announced in Illinois v. Gates, 462 U.S. 213, 236-239, 103 S.Ct. 2317, 76
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January Term, 2022
L.Ed.2d 527 (1983), in which the United States Supreme Court held that some
deference must be accorded to a judicial officer’s probable-cause decision.
Although the Fourth Amendment requires search warrants to issue only “upon
probable cause,” meaning only when the affidavit supporting the warrant
establishes a “fair probability that contraband or evidence of a crime will be found
in a particular place,” Gates at 238, the court in Gates made clear that the “duty of
a reviewing court is simply to ensure that the magistrate had a ‘substantial basis for
* * * conclud[ing]’ that probable cause existed,” (ellipsis and brackets added in
Gates) id. at 239, quoting Jones v. United States, 362 U.S. 257, 271, 80 S.Ct. 725,
4 L.Ed.2d 697 (1960), overruled on other grounds by United States v. Salvucci, 448
U.S. 83, 85, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980). Thus, even though the
existence of probable cause is a legal question to be determined on the historical
facts presented, see Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657,
134 L.Ed.2d 911 (1996), a warrant should be upheld when the issuing judicial
officer had a substantial basis for believing that probable cause existed, regardless
of what the reviewing court’s independent determination regarding probable cause
might be.
{¶ 12} With this understanding, the United States Court of Appeals for the
Sixth Circuit adopted the Fourth Circuit’s explanation for why a standard less strict
than that of “substantial basis” applies to the good-faith exception:
“If a lack of a substantial basis also prevented application of
the Leon objective good faith exception, the exception would be
devoid of substance. In fact, Leon states that * * * a finding of
objective good faith [is inappropriate] when an officer’s affidavit is
‘so lacking in indicia of probable cause as to render official belief in
its existence entirely unreasonable.’ This is a less demanding
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showing than the ‘substantial basis’ threshold required to prove the
existence of probable cause in the first place.”
(Ellipsis and brackets added in Carpenter.) United States v. Carpenter, 360 F.3d
591, 595 (6th Cir.2004), quoting United States v. Bynum, 293 F.3d 192, 195 (4th
Cir.2002). Thus, the Sixth Circuit concluded that when an affidavit does not
contain a substantial basis supporting the judicial officer’s finding of probable
cause but nevertheless contains a “minimally sufficient nexus between the illegal
activity and the place to be searched,” a police officer relying on the warrant acts
in objective good faith. Id. at 596. Further defining the contours of what
“minimally sufficient nexus” means, the Sixth Circuit has explained that “[i]f the
reviewing court is ‘able to identify in the averring officer’s
affidavit some connection, regardless of how remote it may have been’—‘some
modicum of evidence, however slight’—‘between the criminal activity at issue and
the place to be searched,’ then the affidavit is not bare bones and official reliance
on it is reasonable.” (Emphasis added in Laughton.) White, 874 F.3d at 497,
quoting United States v. Laughton, 409 F.3d 744, 749-750 (6th Cir.2005).
{¶ 13} The minimally-sufficient-nexus standard thus recognizes the
Supreme Court’s determination in Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d
677, that a judicial officer is the foremost person responsible for determining
probable cause and that law-enforcement officers are not expected to have the same
nuanced understanding of probable cause that judicial officers are expected to have.
Nevertheless, the minimally-sufficient-nexus standard recognizes the important
contours of Leon’s holding: that law-enforcement officers also play a role in
upholding the Fourth Amendment; that it is not always reasonable for law
enforcement to rely on a judicial officer’s finding of probable cause and that when
it is unreasonable to do so, the exclusionary rule should apply to enforce the Fourth
Amendment; and that when a warrant is based on an affidavit that is so lacking in
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indicia of probable cause as to render official belief in the existence of probable
cause entirely unreasonable, no well-trained law-enforcement officer should rely
on it.
B. The Good-Faith Exception to the Exclusionary Rule Does Not Apply
{¶ 14} We conclude that under the facts of this case, the warrant affidavit
at issue does not evince a minimal connection between the alleged criminal activity
and the three cell phones discovered at the scene of the car crash. Thus, the
appellate court erred in applying Leon’s good-faith exception to the exclusionary
rule.
{¶ 15} The warrant affidavit at issue includes the following factual
assertions:
On June 20, 2018, at approximately 4:00 p.m. Trooper
Vogelmeier was dispatched to a fatal crash on SR 37 near Milepost
23 in Licking County, Union Township, Ohio. According to
Vogelmeier’s report, evidence at the scene indicates the vehicle
driven by Alan Schubert was traveling Southbound on SR 37 and
crossed left of center striking Northbound vehicle driven by [the
victim].
***
[The victim] died as a result of the injuries sustained in the
crash. Mr. Schubert was transported to the hospital with serious
injuries. An official statement was not taken from Mr. Schubert and
he told a sergeant on scene he did not remember how the crash
occurred. A blood sample from Mr. Schubert was obtained from
Grant Hospital via a search warrant through Licking County. Those
results were returned positive for amphetamine and
methamphetamine.
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There were no witnesses to the crash and the three phones
were found outside of the vehicles at the scene.
The affiant, Sergeant John Chaney of the Ohio State Highway Patrol, then offered
the following:
Affiant avers, based on his knowledge, training and
experience, the digital devices in question, may contain additional
evidence into the criminal investigation. The digital device may
contain personal identifiers for the owner, also date and time stamps
for incoming and outgoing calls, text messages and/or Internet
browsing information. The affiant submits the digital device in
question may contain evidence to phone conversations, texting
and/or video related to the crimes referenced. Also, the use of cloud
storage has become so closely tied with many devices that the cloud
storage functions as an extension of their digital devices; for this
reason, a person may have data on the cloud storage that is not
present on the digital device. For these reasons, the affiant requests
authorization to seize, listen to, read, review and copy, operate and
maintain the above described property and convert it to human
readable form as necessary.
(Emphasis added.)
{¶ 16} Of course, much of this statement is obviously true. Cell phones and
other digital devices regularly contain personal identifiers and call, text, and
internet-browsing information, and they have cloud storage that can function as an
extension of the device. Critically missing from this affidavit, however, is
information providing any reason to believe that the material listed in it would
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contain evidence relevant to the crash in this case. Although the affiant bases his
assertion that the cell phones “may” contain evidence of an aggravated vehicular
homicide on his “knowledge, training and experience,” he does not venture to
explain what that knowledge, training, or experience amounts to, let alone how it
relates to the facts of this case. Without that information, the affidavit’s language
is wholly conclusory as to the existence of probable cause to search the cell phones.
Furthermore, the affiant’s repeated use of the term “may” patently signals that
whatever his beliefs might have been regarding potential evidence on the phones,
they were based in complete speculation. A well-trained police officer offering or
encountering this language should know that such conclusory and speculative
statements, without more, do not support a finding of probable cause. See Aguilar
v. Texas, 378 U.S. 108, 111-115, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) (an affidavit
that states suspicions, beliefs, or conclusions, without providing some underlying
factual circumstances pertaining to veracity, reliability, and basis of knowledge, is
a bare-bones affidavit), abrogated on other grounds by Gates, 462 U.S. at 238-239,
103 S.Ct. 2317, 76 L.Ed.2d 527.
{¶ 17} Moving beyond the affiant’s conclusory and speculative assertion
that there “may” be evidence on the phones, there is not a single fact or statement
in the remainder of the affidavit, nor are there any inferences that may be drawn
therefrom, suggesting that the phones had anything to do with the crime of
aggravated vehicular homicide. To begin, the averments concerning the
circumstances of the crash simply explain where and when it occurred and that
Schubert’s car went left of center and hit the victim’s car. None of these averments
suggest that the cell phones might contain evidence of the crime of aggravated
vehicular homicide.
{¶ 18} The affiant’s additional averments that the victim died, that there
were no witnesses to the crash, and that Schubert did not remember how the crash
occurred fare no better in supplying the necessary, albeit minimal connection
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between the cell phones and the alleged crime. On the contrary, these statements
highlight the utter lack of any facts or evidence suggesting that the phones were
involved in causing the crash. For example, had the victim survived or had there
been witnesses to the crash, those individuals may have been able to say that they
saw Schubert using his phone at the time of the crash. If this hypothetical
information were available and included in the affidavit, it would create at least a
minimally sufficient connection between the phones and the alleged crime.
Similarly, if Schubert had had better recall of the incident, he might have been able
to offer some insight as to what happened just before the collision. And if this
insight were included in the affidavit, it may have suggested some connection
between the phones and the alleged crime. But because none of this information or
insight was available, there was no minimally sufficient nexus between any
evidence that might have been found on the phones and the crime.
{¶ 19} It is axiomatic that a proper finding of probable cause requires the
affidavit to show not only the affiant’s knowledge but also that the affiant has
sufficient basis for the knowledge. See Gates, 462 U.S. at 238, 103 S.Ct. 2317, 76
L.Ed.2d 527 (a judicial officer’s job is to determine “whether, given all the
circumstances set forth in the affidavit before him, including the ‘veracity’ and
‘basis of knowledge’ of persons supplying hearsay information, there is a fair
probability that contraband or evidence of a crime will be found in a particular
place”). It is thus inconceivable that an affiant’s lack of knowledge could somehow
contribute to a finding of probable cause.
{¶ 20} The statement in the affidavit noting that Schubert’s blood had tested
positive for the presence of amphetamine and methamphetamine after the crash also
supplies no connection whatsoever between the crime and the cell phones. Indeed,
the rational inference that may be drawn from that fact is that impaired driving
caused the crash. That this is the only evidence or information in the affidavit that
suggests what may have caused Schubert’s car to cross the center line, and that it
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bears no connection to the cell phones, is significant and further informs our
analysis. The ultimate question in this case is whether the affidavit supporting the
warrant was so lacking in indicia of probable cause that no reasonable officer would
have relied on the warrant. An affidavit that includes facts and statements that
affirmatively cut against a finding of probable cause—as opposed to simply being
neutral on the issue—not only fails to support a finding of probable cause but
affirmatively reduces any indicia of it and thus informs whether an officer’s
reliance on the warrant was reasonable. See People v. Smith, 2022 CO 38, 511 P.3d
647, ¶ 25; United States v. Valenzuela, 365 F.3d 892, 897 (10th Cir.2004).
{¶ 21} On these facts, we hold that the information in the warrant affidavit
did not establish a minimal connection between the alleged crime of aggravated
vehicular homicide and the cell phones that were searched. We therefore reverse
the Fifth District’s judgment affirming the trial court’s denial of Schubert’s motion
to suppress on the court of appeals’ ground that the good-faith exception to the
exclusionary rule applied. To hold otherwise would allow bare-bones affidavits
like the one at issue here to be used time and time again in future investigations
whenever one or more cell phones or similar electronic devices are discovered at a
crime scene.
{¶ 22} We recognize that it may seem to some that this decision indicates
that we expect a police officer to know more than a judicial officer about what
constitutes probable cause and that some may find it unfair to hold police
accountable for a judicial officer’s mistake. However, in any case in which a
warrant is deemed facially invalid, the fact that the judicial officer issued the
warrant in the first place means that the judicial officer believed that probable cause
existed. The United States Supreme Court recognized this fact in Leon, 468 U.S.
897, 104 S.Ct. 3405, 82 L.Ed.2d 677. But the court nevertheless made clear that
law enforcement still has a duty to act reasonably in executing a warrant and that
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there is no irrebuttable presumption of good-faith reliance regarding all warrants
that excuses all facial deficiencies. See id. at 923-924.
{¶ 23} The Supreme Court’s decision in Leon tacitly recognizes that all
parties involved with securing and executing a warrant are required to uphold
individuals’ Fourth Amendment rights. And each government official involved
with obtaining and executing a search warrant plays a role in protecting those rights.
While the judicial officer is the official initially tasked with determining whether
probable cause exists to issue a search warrant, the government’s duty to adhere to
the Fourth Amendment does not stop there.
{¶ 24} Leon makes clear that police officers also play a role in protecting
Fourth Amendment rights. They are required to (1) be truthful in search-warrant
affidavits, (2) not rely on warrants that they know were rubber-stamped by a
judicial officer who did not make an independent determination of probable cause,
(3) know that a warrant is facially deficient when it fails to state with particularity
the item or place to be searched and the things to be seized, and (4) not execute a
warrant that is so lacking in indicia probable cause that no well-trained officer
would reasonably rely on it. See Leon at 923. Courts reviewing a challenged search
warrant also play a role in upholding the Fourth Amendment; they are required to
suppress evidence when the good-faith exception to the exclusionary rule does not
apply because one or more of these four requirements has not been met and it was
unreasonable for the police officer to rely on the warrant. See Leon at 923. While
it might seem unfair that the law requires a police officer to question a judicial
officer’s probable-cause determination before the officer may properly execute the
warrant, that is in fact what the law requires. Thus, when the issue before this court
is viewed in its proper context, it is clear that finding the good-faith exception
inapplicable in this case and excluding the evidence obtained in the illegal search
does not punish law enforcement for the judicial officer’s failure but simply ensures
that the Fourth Amendment is not eroded.
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C. Probable Cause to Issue the Warrant Was Lacking
{¶ 25} Our holding today is that the appellate court erred in applying the
good-faith exception to the exclusionary rule in this case, and we reverse the
appellate court’s judgment on that basis. However, we affirm the appellate court’s
determination that the warrant affidavit did not establish probable cause and that
the warrant should not have been issued.1 See 2019-Ohio-1478, 170 N.E.3d 1296,
at ¶ 37.
{¶ 26} The warrant at issue in this case granted broad access to search all
data on three cell phones for evidence of “intent to commit a violation of” R.C
2903.06, aggravated vehicular homicide. The judicial officer issued the warrant,
thus granting the state’s request for unfettered access to search the phones.
However, the warrant was not supported by probable cause, but rather mere
1. Although the state did not ask this court to accept a discretionary appeal of the appellate court’s
judgment that the warrant affidavit did not establish probable cause to search the cell phones, we
nevertheless feel it necessary to address that question to discourage future Fourth Amendment
violations of this sort. The state’s decision not to appeal the appellate court’s probable-cause
determination in no way limits our ability to determine whether the warrant affidavit supported a
finding of probable cause to search. Indeed, in response to arguments raised in Leon that the
Supreme Court’s adoption of a good-faith exception to the exclusionary rule would cause Fourth
Amendment jurisprudence to suffer, the court stated:
If the resolution of a particular Fourth Amendment question is necessary
to guide future action by law enforcement officers and magistrates, nothing will
prevent reviewing courts from deciding that question before turning to the good-
faith issue. Indeed, it frequently will be difficult to determine whether the officers
acted reasonably without resolving the Fourth Amendment issue. Even if the
Fourth Amendment question is not one of broad import, reviewing courts could
decide in particular cases that magistrates under their supervision need to be
informed of their errors and so evaluate the officers’ good faith only after finding
a violation. In other circumstances, those courts could reject suppression motions
posing no important Fourth Amendment questions by turning immediately to a
consideration of the officers’ good faith. We have no reason to believe that our
Fourth Amendment jurisprudence would suffer by allowing reviewing courts to
exercise an informed discretion in making this choice.
468 U.S. at 925, 104 S.Ct. 3405, 82 L.Ed.2d 677. The significant privacy interests at stake here, as
well as law-enforcement and judicial officers’ apparent need for guidance in this area, compel our
consideration of the probable-cause question.
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conjecture. Not only does the supporting affidavit reflect this truth—as we have
explained in detail above—but so does the trial court’s decision denying Schubert’s
motion to suppress. Specifically, the judgment entry denying the motion to
suppress states:
The affidavit for Exhibit 3 specifies it is to search cellular
telephones, including SIM cards and/or SD cards for each phone,
related documentation, passwords, encryption keys, access codes,
voicemail, email, and geographical information. It alleges these
devices may contain personal identities for the owner, date and time
stamps for incoming and outgoing calls, text messages and/or
internet browsing information, evidence pursuant to phone
conversations, texting or video relating to these crimes. It also
explains how Cloud storage could indicate use and time even with a
lack of anything on the digital device.
***
In the present case, it is unknown what may be on the phone
to indicate distracted driving, only that three phones were found at
the scene, which may have belonged to the defendant or the decedent
or anyone else, and may have been evidence of distracted driving to
explain the left-of-center fatal crash.
The court finds the affidavit is sufficient to set forth
reasonable grounds to search the cell phones found at the scene of
the crash.
(Emphasis added.)
{¶ 27} It is clear from this entry that the trial court was operating under the
mistaken belief that as a matter of policy, any time there is a car crash, police may
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search any cell phones discovered at the scene to discern whether there is evidence
of distracted driving. This shows that the court was not evaluating the particular
facts presented in the warrant affidavit to determine whether there was a fair
probability that the phones would contain evidence of the crime—i.e., the probable-
cause analysis—but rather was ruling in accordance with its mistaken belief about
the law concerning probable-cause determinations as to cell phones recovered at the
scene of a crash.
{¶ 28} On appeal, the Fifth District took note of this error. It explained the
simple truth that cell phones are likely to be found at the scene of any car crash and
that without an affidavit’s presenting specific, case-related facts showing a fair
probability that evidence of the crime will be found on the phones, it can only be
speculated that the phones played any role in the crash. 2021-Ohio-1478, 170
N.E.3d 1296, at ¶ 37. The court of appeals explicitly “declin[ed] to adopt a rule
[that] police may obtain a warrant to search every cell phone found in a car crash on
the speculation evidence of texting or other improper cell phone use while driving
‘may’ be found in the phone,” and it reversed the trial court’s determination that
probable cause existed to search the cell phones. Id. We agree with the appellate
court’s analysis on that issue and affirm its determination that there was not probable
cause to issue the warrant to search the cell phones.
III. Conclusion
{¶ 29} For the foregoing reasons, we conclude that the warrant at issue in
this case is defective under the Fourth Amendment for want of probable cause in
the warrant’s supporting affidavit. We further conclude that because the warrant
affidavit failed to establish any connection between the cell phones recovered at the
scene of the crash and the crime of aggravated vehicular homicide, the affidavit is
“bare bones” and the good-faith exception to the exclusionary rule does not apply.
We therefore reverse the Fifth District’s judgment affirming the trial court’s denial
of Schubert’s motion to suppress the evidence recovered as a result of the
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constitutionally defective search warrant, and we remand the cause to the trial court
for further proceedings consistent with this decision.
Judgment reversed
and cause remanded.
O’CONNOR, C.J., and DONNELLY and BRUNNER, JJ., concur.
KENNEDY, J., dissents, with an opinion joined by FISCHER and DEWINE, JJ.
_________________
KENNEDY, J., dissenting.
{¶ 30} I dissent from the majority’s decision that the good-faith exception
to the exclusionary rule does not apply to the initial cell-phone searches in this case
because the affidavit supporting the warrant is bare-bones. An affidavit is not “bare
bones” merely because it “lacks the requisite facts and inferences to sustain the
magistrate’s probable-cause finding; rather, it must be so lacking in indicia of
probable cause that, despite a judicial officer having issued a warrant, no reasonable
officer would rely on it.” (Emphasis sic.) United States v. White, 874 F.3d 490,
497 (6th Cir.2017). The affidavit at issue here does not state suspicions or
conclusions but makes a connection between the fatal automobile accident and the
cell phones found at the accident scene—it is not bare bones. Therefore, I would
affirm the judgment of the Fifth District Court of Appeals.
I. FACTS
{¶ 31} I agree with the facts and procedural history set forth in the majority
opinion and rely on those here. However, it is necessary to clarify which officers
were involved in obtaining and executing the search warrants.
{¶ 32} After receiving the results of appellant Alan Schubert’s blood test,
Ohio State Highway Patrol Sergeant John Chaney applied for the search warrant to
search the three cell phones found at the accident scene. It was his affidavit in
support of the warrant that the Franklin County municipal-court judge considered
in finding probable cause to issue the warrant to search the three cell phones.
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{¶ 33} The search of the cell phones, however, was executed by Ohio State
Highway Patrol Forensic Computer Specialist Keith Ferguson. It was Ferguson
who found nude pictures of juvenile females on Schubert’s phone. Based on this
information, Ohio State Highway Patrol Trooper Evan Cox applied for and was
granted an additional search warrant to search Schubert’s phone for child
pornography.
II. LAW AND ANALYSIS
A. Standard of review
{¶ 34} “Appellate review of a motion to suppress presents a mixed question
of law and fact.” State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797
N.E.2d 71, ¶ 8. An appellate court must accept the trial court’s findings of fact if
they are supported by competent, credible evidence. See State v. Fanning, 1 Ohio
St.3d 19, 20, 437 N.E.2d 583 (1982). But the appellate court must decide the legal
questions de novo. Burnside at ¶ 8.
B. An affidavit that is so lacking in indicia of probable cause that no reasonable
officer would rely on it precludes application of the good-faith exception
{¶ 35} The crux of the dispute is whether the affidavit in support of the
search warrant regarding the cell phones was so lacking in indicia of probable cause
as to preclude application of the good-faith exception to the exclusionary rule. An
affidavit that is “ ‘so lacking in indicia of probable cause * * * render[s] official
belief in its existence entirely unreasonable.’ ” (Ellipsis and brackets added.)
United States v. Leon, 468 U.S. 897, 923, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984),
quoting Brown v. Illinois, 422 U.S. 590, 611, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975)
(Powell, J., concurring in part). This inquiry requires a court to determine whether
the officer who executed the warrant “ ‘reasonably believed that the warrant was
properly issued, not whether probable cause existed in fact.’ ” (Emphasis added in
Carpenter.) United States v. Laughton, 409 F.3d 744, 752 (6th Cir.2005), quoting
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United States v. Carpenter, 360 F.3d 591, 598 (6th Cir.2004) (Gilman, J.,
concurring).
{¶ 36} As stated above, an affidavit “so lacking in indicia of probable cause
that no reasonable officer would rely on the warrant” is known as a “bare bones”
affidavit. White, 874 F.3d at 496. However, an affidavit is not bare bones merely
because it lacks the requisite facts and inferences to sustain the probable-cause
finding. Id. at 496-497.
{¶ 37} To avoid being labeled as “bare bones,” an affidavit must state more
than “ ‘suspicions, or conclusions, without providing some underlying factual
circumstances regarding veracity, reliability, and basis of knowledge,’ ” United
States v. Christian, 925 F.3d 305, 312 (6th Cir.2019), quoting United States v.
Washington, 380 F.3d 236, 241 (6th Cir.2004), fn. 4, and make “ ‘some
connection,’ ” id. at 313, quoting White at 497, “ ‘between the illegal activity and
the place to be searched,’ ” id., quoting United States v. Brown, 828 F.3d 375, 385
(6th Cir.2016).
{¶ 38} In Leon, 468 U.S. at 915, 104 S.Ct. 3405, 82 L.Ed.2d 677, the United
States Supreme Court cited two classic examples of bare-bones affidavits, which
were respectively considered in Nathanson v. United States, 290 U.S. 41, 46-47,
54 S.Ct. 11, 78 L.Ed. 159 (1933), and Aguilar v. Texas, 378 U.S. 108, 84 S.Ct.
1509, 12 L.Ed.2d 723 (1964), abrogated on other grounds by Illinois v. Gates, 462
U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527. In Nathanson, the affiant had said
nothing more than that “ ‘he has cause to suspect and does believe that’ ” liquor
illegally brought into the United States “ ‘is now deposited and contained within
the premises’ ” belonging to the defendant in that case. Id. at 44. In Aguilar, a
warrant was obtained based only on officers’ statements that they had “ ‘received
reliable information from a credible person and do believe that heroin, marijuana,
barbiturates and other narcotics and narcotic paraphernalia are being kept at the
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above described premises for the purpose of sale and use contrary to the provisions
of the law.’ ” Id. at 109.
{¶ 39} And in a recent case, Spencer v. Staton, 489 F.3d 658, 661-662 (5th
Cir.2007), opinion withdrawn in part on rehearing, the United States Court of
Appeals for the Fifth Circuit held that an affidavit that set forth the suspect’s
biographical and contact information, the charged offense, and a conclusory
statement that the suspect had assisted her husband and her brother-in-law in
evading authorities was “a textbook example of a facially invalid, ‘barebones’
affidavit.” The Sixth Circuit Court of Appeals has similarly held that an affidavit
stating that the defendant had been the last person to have contact with the victim,
that the defendant had been convicted of and had served time in prison for murder
and attempted murder, and that an unknown source had indicated that the defendant
dealt marijuana was bare bones. United States v. West, 520 F.3d 604, 607, 610 (6th
Cir.2008). The court in West concluded, “Taken on its face, the affidavit is bereft
of any facts that suggest any connection between [the victim’s] disappearance and
any evidence likely to be found at the residence or in the van. Instead, the affidavit
is based on unsubstantiated conclusions and unreliable hearsay, and accordingly, is
constitutionally deficient.” Id. at 610.
{¶ 40} Guided by these examples, this court should hold that Sergeant
Chaney’s affidavit is not so lacking in indicia of probable cause as to render
Ferguson’s official belief in the existence of probable cause when executing the
search entirely unreasonable.
C. The affidavit at issue is not so lacking in indicia of probable cause as to
preclude application of the good-faith exception
{¶ 41} In this case, the municipal-court judge found probable cause to
search the cell phones based on Sergeant Chaney’s affidavit. The affidavit stated
that Schubert had been driving a vehicle that went left of center and struck an
oncoming vehicle. There were no witnesses to the crash, Schubert had no memory
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of how the crash had occurred, and the driver of the other vehicle involved in the
crash died in the crash. The affidavit reported that Schubert’s blood had tested
positive for amphetamine and methamphetamine. And it explained that three cell
phones whose owners had not been identified were found at the scene of the crash.
Sergeant Chaney averred that “based on his knowledge, training and experience,”
the phones might contain “personal identifiers for the owner, also date and time
stamps for incoming and outgoing calls, text messages and/or Internet browsing
information” and evidence of “phone conversations, texting and/or video related to
the crimes referenced.”
{¶ 42} The affidavit looks nothing like the prototypical bare-bones
affidavits first identified by the Leon court and later by the federal courts of appeals.
The statements in the affidavit are not so vague as to be wholly conclusory or
merely conjecture. Instead, they suggest some connection between the fatal
automobile accident and the cell phones found at the accident scene; they suggest
that information about how the crash occurred, such as whether distracted driving
by one of the drivers was a factor in the fatal crash, may be found on the cell phones.
That is all that is needed. As such, the affidavit is not “bare bones.” To find
otherwise fails to put daylight between a bare-bones affidavit and one that merely
lacks probable cause. See United States v. Gilbert, 952 F.3d 759, 763 (6th
Cir.2020).
{¶ 43} The Sixth Circuit’s decision in Carpenter, 360 F.3d 591, provides
support for this conclusion. In Carpenter, the Sixth Circuit considered the
following affidavit language setting forth the reasons why the law-enforcement
officer in that case believed that evidence of criminal conduct would be found in
the residence to be searched:
On June 23, 1999 at approx[imately] 12:30 pm, Helicopter
Pilot Lt. Bob Crumley was conducting an aerial search of Hawkins
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Co when he was flying over the above described property he saw
numerous Marijuana Plants growing. Near the residence.
Upon information I received from Lt. Crumley, there is a
road connecting the above described residence to the Marijuana
Plants. Having personal knowledge that Lt. Crumley is certified in
the identification of Marijuana I feel there is probable cause to
search the said residence and property and seize any illegal
contraband found.
(Brackets added.) Id. at 593.
{¶ 44} The court concluded that there was no probable cause to search the
residence, because the affidavit failed to provide the required nexus between the
residence and the illegal activity. Id. at 595. However, it could not say that the
affidavit was “completely devoid of any nexus between the residence and the
marijuana that the police observed.” Id. at 595-596. Specifically, the court noted
the affidavit’s inclusion of the facts that “marijuana was growing ‘near’ the
residence and that ‘there is a road connecting’ the residence and the marijuana
plants.” Id. at 596.
{¶ 45} Similarly, there is some nexus in this case between the fatal
automobile accident and the cell phones found at the accident scene. The affidavit
states that Schubert was driving the vehicle that went left of center and struck an
oncoming vehicle, that three cell phones were found at the scene of the crash, and
that based on Sergeant Chaney’s knowledge, training, and experience, the phones
might contain “date and time stamps for incoming and outgoing calls, text messages
and/or Internet browsing information” and evidence of “phone conversations,
texting and/or video related to the crimes referenced.” Therefore, the affidavit was
not “ ‘so lacking in indicia of probable cause as to render belief in its existence
entirely unreasonable,’ ” Leon, 468 U.S. at 923, 104 S.Ct. 3405, 82 L.Ed.2d 677,
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quoting Brown, 422 U.S. at 611, 95 S.Ct. 2254, 45 L.Ed.2d 416 (Powell, J.,
concurring in part).
{¶ 46} This conclusion is not altered by the fact that drugs were found in
Schubert’s system. While the presence of drugs in Schubert’s system may provide
an explanation for his driving left of center, it does not eliminate all other possible
causes of the fatal crash, such as distracted driving by either Schubert or the driver
of the other vehicle. Just because there was one factor known to be a possible cause
of the accident does not mean there were no other factors that could have caused
the accident.
{¶ 47} Here, Ferguson acted with an objectively reasonable, good-faith
belief in the validity of the warrant when executing the search of the cell phones.
The search warrant regarding the cell phones had been issued by a judicial officer
and was not so lacking in indicia of probable cause that no reasonable officer would
rely on it. Ferguson acted within the scope of the warrant. And when the search
revealed nude pictures of juvenile females, Ferguson stopped the search and police
applied for another warrant. The good-faith exception applies here.
{¶ 48} To echo the Leon court, it was the issuing judge’s “responsibility to
determine whether the officer’s allegations establish[ed] probable cause and, if so,
to issue a warrant comporting in form with the requirements of the Fourth
Amendment,” 468 U.S. at 921, 104 S.Ct. 3405, 82 L.Ed.2d 677. Here, the judge
found probable cause and issued the warrant. There are no facts in the record that
should cause us to expect a reasonable officer executing the warrant to question the
judge’s probable-cause determination.
D. The majority conflates an affidavit that is bare bones with an affidavit that
lacks probable cause
{¶ 49} “Too often courts raise the Leon bar, making it practically
indistinguishable from the probable cause standard itself.” Christian, 925 F.3d at
318 (Thapar, J., concurring). This is what the majority has done in concluding that
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the affidavit at issue is bare bones; it has “confuse[d] a bare bones affidavit with
one that merely lacks probable cause,” Gilbert, 952 F.3d at 763.
{¶ 50} The majority ignores the verifiable facts in the affidavit, which
establish “some connection” between the fatal automobile accident and the cell
phones found at the accident scene. Instead, the majority requires the establishment
of probable cause for the affidavit to avoid being labeled as “bare bones.” In doing
so, the majority fails to heed the fact that “[t]here must be daylight between the
‘bare bones’ and ‘substantial basis’ standards if Leon’s good-faith exception is to
strike the desired balance between safeguarding Fourth Amendment rights and
facilitating the criminal justice system’s truth-seeking function.” Id.
E. The majority’s consideration of probable cause is inappropriate
{¶ 51} As the majority recognizes, the state did not appeal the appellate
court’s determination that the affidavit in support of the initial search warrant
regarding the three cell phones lacked probable cause. Nevertheless, it proceeds to
consider that probable-cause issue and affirms the appellate court’s holding that the
affidavit lacked probable cause and therefore the warrant should not have been
issued. It does so on the belief that such review is necessary to discourage future,
similar Fourth Amendment violations.
{¶ 52} “It has long been the policy of this court not to address issues not
raised by the parties. * * * This court should be hesitant to decide such matters for
the reason that justice is far better served when it has the benefit of briefing,
arguing, and lower court consideration before making a final determination.”
Sizemore v. Smith, 6 Ohio St.3d 330, 333, 453 N.E.2d 632 (1983), fn. 2. An
appellate court relies on the parties in a case to determine the issues before the court
and to argue the applicable law:
“The premise of our adversarial system is that appellate
courts do not sit as self-directed boards of legal inquiry and research,
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but [preside] essentially as arbiters of legal questions presented and
argued by the parties before them.” Carducci v. Regan, 714 F.2d
171, 177 (D.C.Cir.1983). Proceeding to decide an issue not briefed
by the parties creates “ ‘the risk “of an improvident or ill-advised
opinion, given [the court’s] dependence * * * on the adversarial
process for sharpening the issues for decision.” ’ ” Carbino v. West,
168 F.3d 32, 35 (D.C.Cir.1999), quoting Headrick v. Rockwell
Internatl. Corp., 24 F.3d 1272, 1278 (10th Cir.1994), quoting
Herbert v. Natl. Academy of Sciences, 974 F.2d 192, 196
(D.C.Cir.1992).
(Brackets and ellipsis sic.) State v. Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424,
933 N.E.2d 753, ¶ 78 (O’Donnell, J., concurring in part and dissenting in part).
{¶ 53} This court should follow these principles, exercise a modicum of
judicial restraint, and refrain from deciding issues that no party has asked this court
to review and that the parties have had no opportunity to weigh in on.
III. CONCLUSION
{¶ 54} The affidavit supporting the warrant set forth facts and
circumstances that provided some connection between the fatal automobile
accident and the cell phones found at the accident scene and was not bare bones. It
was not so utterly lacking in indicia of probable cause as to render official belief in
the existence of probable cause entirely unreasonable, thereby preventing
application of the good-faith exception to the exclusionary rule. Therefore, the
specialist who executed the warrant to search the cell phones acted in good-faith
reliance on the warrant. Any error under the Fourth Amendment in this case rests
with the judge who issued the challenged warrant, not with the law-enforcement
employee who executed the warrant. Therefore, I would affirm the judgment of the
Fifth District Court of Appeals. Because the majority does otherwise, I dissent.
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FISCHER and DEWINE, JJ., concur in the foregoing opinion.
_________________
Jenny Wells, Licking County Prosecuting Attorney, and Clay Mischka,
Assistant Prosecuting Attorney, for appellee.
Campbell Law, L.L.C., and April F. Campbell, for appellant.
_________________
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