Ohio Supreme Court: Good-Faith Exception to Exclusionary Rule Inapplicable to Warrant Based on Affidavit Stating Cellphones Found at Scene of Traffic Crash ‘May’ Contain Evidence
by Anthony W. Accurso
The Supreme Court of Ohio held that the Court of Appeals erred in applying the good faith exception to the exclusionary rule where the search warrant for cellphones found at the scene of a traffic accident stated that evidence of a crime “may” be found on the defendant’s cellphone.
A vehicle being driven by Alan Schubert crossed the center line, striking another vehicle. Only Schubert survived, and while he was unconscious and receiving care at a nearby hospital, investigators determined that his blood tested positive for amphetamine, methamphetamine, and fentanyl.
Shortly thereafter, police sought a search warrant to inspect three cellphones they recovered at the scene of the accident. The affidavit accompanying the warrant stated that the phones “may” contain additional evidence in connection with the investigation, so police wanted to obtain “personal identifiers” and metadata for “incoming and outgoing calls, text messages and/or internet browsing information,” including any of this information that could be obtained from “cloud storage,” on the premise that this information “may contain evidence … to the crime” of aggravated vehicular homicide. (emphasis supplied)
While searching Schubert’s phone, police discovered pictures of nude juveniles sufficient to support multiple counts of pandering obscenity involving a minor.
Schubert filed a suppression motion, challenging the sufficiency of the warrant to search his cellphone. The trial court denied the motion and sentenced him to eight years in prison for the vehicular homicide and four years for the pandering, to be served consecutively for a total of 12 years. Schubert appealed.
The Court of Appeals affirmed the denial, but it concluded that, though the warrant was deficient, the evidence need not be suppressed because the officer relied on the magistrate to determine whether the warrant was sufficient – that is, it applied the good-faith exception to the exclusionary rule set forth in United States v Leon, 468 U.S. 897 (1984), and adopted by the Ohio Supreme Court in State v. Wilmoth, 490 N.E.2d 1236 (Ohio 1986).
The Court of Appeals rejected the trial court’s conclusion that there was probable cause to support the search warrant because of the mere fact that evidence related to a traffic accident “may” be found on cellphones located at the crash scene were sufficient to establish probable cause, the Court of Appeals explained that there would be probable cause to search every cellphone discovered at a crash scene. It declined to adopt such a blanket rule.
On review, the Ohio Supreme Court reviewed both the warrant’s validity and the application of the good-faith exception.
The Court began its analysis by recounting the rationale for the exclusionary rule, stating that it protects people’s Fourth Amendment rights through its deterrent effect. United States v. Calandra, 414 U.S. 338 (1974). Because there is a high societal cost of excluding “inherently trustworthy tangible evidence,” the U.S. Supreme Court has instructed that the exclusionary rule should only be applied in those situations where it will actually have a deterrent effect regarding violations of the Fourth Amendment. Herring v. United States, 555 U.S. 135 (2009). The Leon Court explained that when law enforcement’s conduct is objectively reasonable, “excluding the evidence will not further the ends of the exclusionary rule in any appreciable way.” Id. Consequently, the U.S. Supreme Court adopted the objective-good-faith exception to the exclusionary rule, which is applied to situations where the police behaved in an objectively reasonable manner. Id.
The Leon Court instructed that generally when police rely on a warrant issued by a judicial officer – even when it’s subsequently determined to be invalid – that is sufficient to show that they “acted in good faith in conducting the search.” Leon. But even when relying on a warrant in good faith, reliance on the warrant must still be “objectively reasonable.” Id. One circumstance in which it is not reasonable to rely on a warrant is when the supporting affidavit is “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.” Id.; see also Illinois v. Gates, 462 U.S. 213 (1983).
Such affidavits are known as a “bare bones” affidavit. United States v. White, 874 F.3d 490 (6th Cir. 2017). A bare bones affidavit doesn’t establish a “minimally sufficient nexus between the item or place to be searched and the underlying illegal activity,” the Court stated, citing United States v. McPhearson, 469 F.3d 518 (6th Cir. 2006). An affidavit must show more than mere “suspicions, or conclusions, without providing some underlying factual circumstances regarding veracity, reliability, and basis of knowledge” and make a connection “between the illegal activity and the place to be searched” in order to avoid being a bare bones affidavit. United States v. Christian, 925 F.3d 305 (6th Cir. 2019).
According to the U.S. Court of Appeals for the Sixth Circuit, “[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.” White.
Turning to the present case, the Court agreed with the Court of Appeals regarding the warrant’s invalidity, stating the affidavit in support of the warrant does not contain the requisite “minimal connection between the alleged criminal activity and the three cell phones discovered at the scene of the car crash.” It reasoned: “[I]f 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 the mere speculation that the crash was caused by distracted driving.”
Proceeding to the issue of whether the good-faith exception applies, the Court stated that the repeated use of the word “may” in the affidavit indicates that the officer’s belief about possible evidence on the phones was “based in complete speculation.” It chided: “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, 378U.S. 108 (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). Additionally, there isn’t a single fact or basis for inferring in the entire affidavit suggesting that the phones had anything to do with the vehicular homicide under investigation, according to the Court.
Thus, the Court held that the officer’s reliance on the warrant was objectively unreasonable, regardless of the magistrates blessing, and therefore the good-faith exception to the exclusionary rule does not apply in this case.
Accordingly, the Court reversed the Court of Appeals’ denial of the motion to suppress, but noted that it affirms the Court of Appeals’ determination that the warrant affidavit failed to establish probable cause and that the warrant should not have been issued, and remanded the case. See: State v Schubert, 2022 Ohio LEXIS 2599 (2022).
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