Four Justices of the Supreme Court of Ohio determine that affidavit information was ‘bare bones’ and suppressed the child porn found on the cell phone following a fatal accident.
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.
State v. Schubert
2022 – Ohio – 4604
Supreme Court of Ohio
December 22, 2022
On Wednesday June 20, 2018, Mr. Alan Schubert, drove his car left of center and hit another car, causing the death of the driver of the other car – Ms. Kristen Bergund. Police obtained a search warrant for Mr. Schubert’s blood, and a blood draw was performed by staff of the local hospital where Mr. 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 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.
While searching Mr. Schubert’s phone, police discovered what they believed to be pictures of nude juveniles. Mr. 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.
Mr. 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. Mr. Schubert then pleaded no contest to all the charges and was found guilty of them. The court merged the pandering – obscenity-involving-a-minor counts and sentenced Mr. Schubert to four years in prison for that conviction. The court also merged the aggravated-vehicular-homicide counts and sentenced Mr. 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 twelve years.
On appeal, the Fifth District Court of Appeals affirmed the trial court’s judgment denying Mr. Schubert’s motion to suppress. 2021-Ohio-1478. 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 Mr. 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.
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.
Mr. Schubert filed a discretionary appeal to this court, and we accepted review of his third proposition of law, which states:
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. 2021-Ohio-2923.
Analysis
The Exclusionary Rule and Leon’s Good-Faith Exception
The exclusionary rule safeguards Fourth Amendment rights through its deterrent effect. Herring v. United States, 555 U.S. 135, 139-140, (2009), citing United States v. Calandra, 414 U.S. 338, 348, (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, (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.
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, quoting United States v. Ross, 456 U.S. 798, 823, (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, (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).
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).
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 (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, (1960), overruled on other grounds by United States v. Salvucci, 448 U.S. 83, 85, (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, (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.
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 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).
The minimally-sufficient-nexus standard thus recognizes the Supreme Court’s determination in Leon, 468 U.S. 897, 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 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.
The Good-Faith Exception to the Exclusionary Rule Does Not Apply
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.
The warrant affidavit at issue includes the following 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 Mr. 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. Mr. Schubert was transported to the hospital with serious injuries. An official statement was not taken from Mr. Mr. Schubert and he told a sergeant on scene he did not remember how the crash occurred. A blood sample from Mr. Mr. Schubert was obtained from Grant Hospital via a search warrant through Licking County. Those results were returned positive for amphetamine and methamphetamine.
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.
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 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, (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.
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 Mr. 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.
The affiant’s additional averments that the victim died, that there were no witnesses to the crash, and that Mr. Schubert did not remember how the crash occurred fare no better in supplying the necessary, albeit minimal connection 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 Mr. 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 Mr. 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.
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.
The statement in the affidavit noting that Mr. 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 Mr. Schubert’s car to cross the center line, and that it 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).
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 Mr. 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.
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. But the court nevertheless made clear that law enforcement still has a duty to act reasonably in executing a warrant and that there is no irrebuttable presumption of good-faith reliance regarding all warrants that excuses all facial deficiencies. See id. at 923-924.
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.
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.
Probable Cause to Issue the Warrant Was Lacking
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. See 2019-Ohio-1478.
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 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 Mr. 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.
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 “[D]eclin[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. 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.
Conclusion
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 Mr. Schubert’s motion to suppress the evidence recovered as a result of the 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.
This case was issued by the Supreme Court of Ohio and is binding throughout the State of Ohio.
Information for this case was obtained from State v. Schubert, 2022 – Ohio – 4604
Lessons Learned:
- The Supreme Court of Ohio in a four to three decision applied bad decision making when applying the Good Faith Doctrine.This case centers on Sergeant John Chaney of the Ohio State Highway Patrol affidavit statement that states in pertinent part “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 [Aggravated Vehicular Homicide]. 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.” Alan Schubert went left of center and struck Ms. Kristen Bergund’s car head-on and killed her. A blood test would later reveal that Mr. Schubert had ingested amphetamine, methamphetamine, and fentanyl. Prior to the blood test results, Sgt. Chaney sought and obtained a search warrant on the three phones found at the accident scene. Therein he discovered Mr. Schubert was not only a felonious drug consumer but also a possessor of child pornography. Sgt. Chaney’s intent was to determine if Mr. Schubert was a distracted driver which caused or contributed to the accident by the information on one of the cell phones. The information contained in the affidavit strongly supports this logical, reasonable concept. Unfortunately, four of the seven justices could not see the obvious probable cause.
- Even though the Supreme Court of Ohio did not see probable cause in a haystack full of probable cause, they did do well do fully analyze the Good Faith Doctrine. The Good Faith Doctrine was established in United States v. Leon, 468 U.S. 897, 919, (1984). 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, quoting United States v. Ross, 456 U.S. 798, 823, (1982), fn. 32. The Good Faith Doctrine can be overcome by the defense if the affidavit is determined to be ‘bare bones’. 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). In this case the Supreme Court of Ohio determined there was not a minimally sufficient nexus between the cell phone and a fatal head-on accident. The dissent in this case was crafted by Justice Sharon Kennedy [joined by Justice Pat Fischer and Justice Pat DeWine] who challenged the majority decision when she opined “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.”
- Hopefully the prosecution will appeal this incorrect decision to the U.S. Supreme Court so that the Good Faith Doctrine can be applied in … good faith. In the interim, law enforcement should provide enough specificity as to how a cell phone may contain information that resulted in an accident by explaining well enough for some supreme court justices to understand that distracted driving information can be discovered on a cell phone.
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