by Hannah Riggle, Associate Member, University of Cincinnati Law Review Vol. 93
I. Introduction
As technology continues to develop rapidly, the places where personal data can be found, and as a result, locations where evidence of crimes can be discovered, also rapidly increases. As seen in State v. Schubert, law enforcement can discover completely unrelated crimes while searching a cell phone for evidence.[1] In addition to privacy concerns, cases like Schubert raise questions about the social costs people are willing to tolerate to uphold the Fourth Amendment and its judicially created remedy: the exclusionary rule.
This article will discuss the Ohio Supreme Court’s application of the good faith exception to the exclusionary rule in Schubert.[2] Part II will provide background on the Fourth Amendment, the exclusionary rule, and the good faith exception. Part II will also discuss the Ohio Supreme Court’s recent decision, Schubert, focusing on the analysis the court conducted to determine whether the good faith exception applied. Part III will argue that the court’s decision in Schubert communicates the court’s hesitancy to reflexively apply the good faith exception to cell phones that are found at the scene of a crime without a showing of a nexus between the alleged crime and the device. Part III will also examine the possible implications of the Schubert decision.[3] Finally, Part IV will conclude that a narrow and objective application of the good faith exception to the exclusionary rule is necessary to prevent the good faith exception from evolving into a means to excuse law enforcement’s wrongdoing.
II. Background
The Fourth Amendment of the United States Constitution protects against unreasonable searches and seizures.[4] Specifically, the amendment provides:
[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.[5]
Therefore, a violation of the Fourth Amendment occurs when a government actor conducts a search or seizure that is unreasonable.[6]
The Supreme Court famously addressed the Fourth Amendment in the context of privacy and telephones in Katz v. United States.[7] The Court asserted that searches conducted without a valid warrant are per se unreasonable, absent an exception.[8] In Katz, the government violated the Fourth Amendment by conducting an unreasonable search and seizure when federal agents attached a listening device to a public telephone booth without judicial approval.[9]
A. The Exclusionary Rule
When a violation of the Fourth Amendment occurs, the remedy is that “evidence obtained in violation of the Fourth Amendment is inadmissible at trial.”[10] This is a judicially created remedy called the exclusionary rule.[11] The exclusionary rule was first recognized in Weeks v. United States.[12] During this trial, Weeks objected to the use of evidence that was obtained when law enforcement entered his home without a warrant.[13] However, his objection was overruled, the evidence was used against him, and Weeks was convicted.[14] Weeks appealed to the Supreme Court.[15] Ultimately, the Court concluded that by allowing the illegally seized materials to be used against Weeks at trial, the lower court committed prejudicial error.[16]
In Mapp v. Ohio, the Supreme Court incorporated the exclusionary rule against the states through the Fourteenth Amendment.[17] By extending the exclusionary rule to the states, the Court attempted to create uniformity in how both state and federal prosecutors could procure and use evidence at trial. In addition to extending the exclusionary rule to state courts, Mapp also stressed the deterrence rationale behind the rule.[18] Essentially, the exclusionary rule serves as a strong deterrence to law enforcement conducting unconstitutional searches by making the evidence inadmissible in court.
B. The Good Faith Exception to the Exclusionary Rule
Since its creation, the exclusionary rule has faced criticism for infringing on law enforcement’s investigative powers.[19] When police officers seek warrants to conduct a search, critics of the exclusionary rule believe that law enforcement officers should be able to rely on those warrants to do their jobs.[20] Further, critics argue that police officers know very little about search and seizure law and depend on a magistrate who does know the law to determine probable cause.[21] Because of this concern, various exceptions to the exclusionary rule developed in response to the perceived curtailment of police power.
One exception to the exclusionary rule is the good faith exception, which was first recognized in United States v. Leon.[22] In Leon, respondents sought to suppress evidence that was obtained after law enforcement conducted a search pursuant to a “facially valid” search warrant.[23] In determining whether the evidence should have been suppressed, the Supreme Court weighed the cost of allowing evidence obtained via unconstitutional means against the possible social cost of excluding evidence in a trial.[24] Ultimately, the Court held that when law enforcement relies in good faith upon “a warrant issued by a detached and neutral magistrate,” the evidence is admissible, regardless of the exclusionary rule’s requirement that such evidence be suppressed.[25]
The Ohio Supreme Court adopted the good faith exception in State v. Wilmoth and accepted the Supreme Court’s rationale that when officers act in good faith, the exclusionary rule no longer serves its deterrence rationale.[26] In Wilmoth, the appellants were indicted for charges relating to an alleged theft.[27] At trial, the appellants moved to suppress the evidence offered against them because of a faulty search warrant.[28] The trial court ultimately granted the appellants’ motion to suppress.[29] However, the Ohio Supreme Court reversed the trial court and held that the evidence should not have been suppressed because the good faith exception applied.[30] The court concluded that the good faith exception applied because it was wholly the magistrate’s error that caused the warrant to be defective and the law enforcement officers relied on the warrant in good faith.[31]
The good faith exception is only triggered when law enforcement officers obtain a warrant before the search or seizure.[32] The overarching rationale behind the exception stems from the idea that an average law enforcement officer should be able to rely on a warrant granted by a neutral magistrate.[33] The intended effect of the exception is to encourage law enforcement to adhere to the warrant application process by not penalizing them for their reliance on a magistrate.[34] Despite allowing officers to rely on a neutral magistrate, a key requirement of the good faith exception is that the officer’s reliance must be objectively reasonable.[35] Courts have noted that an officer’s reliance on a warrant would not be objectively reasonable if the warrant is “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.”[36]
C. The Ohio Supreme Court’s Good Faith Exception Analysis in State v. Schubert
In Schubert, Mr. Schubert struck and killed the driver of an oncoming vehicle.[37] During their investigation, police discovered that Mr. Schubert was under the influence of narcotics at the time of the crash.[38] In addition to obtaining a warrant to test the levels of narcotics in Mr. Schubert’s blood, the police also sought a warrant for the appellant’s three cell phones found at the scene, believing that they may contain evidence relating to the crash.[39] After the warrant for the cell phones was granted, police searched Mr. Schubert’s cell phone and discovered evidence of child pornography.[40] Mr. Schubert was charged with crimes relating to the images discovered on his phone.[41] Mr. Schubert moved to suppress the evidence on the basis that the application for the search warrant did not establish probable cause to permit the issuance of the warrant.[42] The trial court denied the motion to suppress, concluding that “the affidavit established probable cause for the warrant to issue.”[43] Mr. Schubert was found guilty on all charges.[44]
On appeal, the Fifth District Court of Appeals upheld the trial court’s ruling under the good faith exception to the exclusionary rule, relying on Leon and Wilmoth.[45] However, the Fifth District disagreed that the application for the warrant established probable cause because, in the court’s view, doing so would recognize a broad rule that anytime a phone is discovered at the scene of a crash, there is probable cause to search it because it may contain evidence of the cause of the crash based on a suspicion of distracted driving.[46]
Mr. Schubert then appealed to the Supreme Court of Ohio.[47] The court began its analysis by noting that while the good faith exception allows a law enforcement officer to rely on a warrant, even if it is later determined that the warrant lacks probable cause, the officer’s reliance on the warrant must have been “objectively reasonable.”[48] Specifically, the court highlighted the argument that it would not be reasonable for an officer to rely on a warrant if the supporting affidavit was lacking in an indication of probable cause.[49] The court then stated that “[a]n 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.”[50] Further, the affidavit must go beyond stating mere suspicions or conclusory statements without some factual underpinning.[51]
The court then stated that “when an affidavit does not contain a substantial basis supporting the judicial officer’s finding of probable cause but 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.”[52] Ultimately, the court concluded that the good faith exception should not have been applied to this case because the warrant affidavit did not establish a “minimal connection between the alleged criminal activity and the three cell phones discovered at the scene of the car crash.”[53] Thus, the lack of a minimal connection between the cell phones and the crash rendered the law enforcement officer’s reliance on the warrant unreasonable.
III. Discussion
The Schubert court was correct in ruling that the good faith exception did not apply. The standard that must be cleared for the good faith exception to apply is a minimal one.[54] If an affidavit in support of a warrant cannot clear this low bar, an application of the good faith exception would erode what minimal force the exclusionary rule continues to be afforded. For example, if the court had ruled that the mere presence of the cell phones at the crime scene created an inference of a connection to a crime without any other factual basis, the door would have been opened for warrant applications for any technology found remotely near a crime, despite the lack of any connection between the object and the crime itself.[55] This possible scenario would have proven to be a dangerous erosion of privacy, the very kind that the Fourth Amendment seeks to protect against.[56] The requirement that officers have an objectively reasonable belief that a warrant is valid narrows the application of the good faith exception. Without it, the good faith exception can render the exclusionary rule almost moot.[57]
Critics of the exclusionary rule could argue that Schubert is a textbook example of the social cost incurred when the exclusionary rule is enforced. Instead of regarding the discovery of evidence of an additional crime as a positive development that allowed a predator to be taken off the street, the exclusionary rule would let this individual remain uncharged in the name of the Fourth Amendment protection.
However, while the social cost in cases like this may be high, the constitutional cost is even higher. By declining to extend the good faith exception in this case, the court prevented further erosion of the already low standard that officers must clear to reasonably rely on a neutral magistrate’s decision to invoke the good faith exception: objective reasonableness. If the court had agreed that the good faith exception applied in Schubert, the court would have endorsed that an officer’s subjective belief can be considered in the good faith analysis. In Schubert, the officer’s subjective belief was that the cell phones found at the scene may contain evidence of the car crash, despite lacking any factual information to establish probable cause. In Schubert, the absence of a “nexus” between the crime and the cell phones and the officer’s desire to search the cell phones could essentially be characterized as a fishing expedition, which the court was correct to shut down.
Overall, the court’s decision in Schubert to not apply the good faith exception should serve as a reminder of the breadth of personal information that is at risk of being discovered erroneously through a deficient warrant if officers fail to establish a connection between the cell phone and the alleged crime. However, this burden also lies with magistrates to ensure that the warrants officers submit are based on probable cause.
IV. Conclusion
Arguments that it is unreasonable to place responsibility for deficient warrants on law enforcement officers in addition to magistrates falls flat. Officers should, and are, informed of the low bar of probable cause they must clear in their affidavits to establish a nexus between the thing to be searched and the crime. As a society, we cannot permit fishing expeditions for evidence on the theory that law enforcement may uncover heinous crimes like the one in Schubert because the cost is far greater: the erosion of the public’s privacy through the degradation of the rights provided in the Fourth Amendment. As technology continues to advance, the amount of information available on devices like cell phones dramatically expands. The amount of user data on these devices makes it even more imperative that courts treat applications of the good faith exception narrowly, ensuring that they are considering whether an officer’s reliance was objectively reasonable, and not applying a laxer subjective standard. Both magistrates and police must remain cognizant of the probable cause requirement to avoid violations of Fourth Amendment. Therefore, Schubert should serve as a stark reminder that the good faith exception is not a solution that officers can invoke in the face of any wrongdoing.
[1] generally State v. Schubert, 219 N.E.3d 916, (2022).
[2] Id.
[3] Id.
[4] U.S. Const. amend. IV.
[5] Id.
[6] Id.
[7] Katz v. United States, 389 U.S. 347, 349 (1967).
[8]Id. at 358.
[9] Id.
[10] 27 James Wm. Moore et al., Moore’s Federal Practice : Rules of Criminal Procedure ¶ 641.20 ( 3d ed. 2024).
[11] Id.
[12] Weeks v. United States, 232 U.S. 383, (1914).
[13] Id. at 389.
[14] Id. 389.
[15] Katz, 389 U.S. at 389.
[16] Id. at 398.
[17] Mapp v. Ohio, 367 U.S. 643, (1961).
[18] Id. at 658.
[19] Guy Rubenstein, The Prosecutor-Oriented Exclusionary Rule, 65 B.U. L. Rev. 1756, 1766 (2024). (explaining, “[h]ardly anyone thinks that the exclusionary rule is perfect. After all, suppression of unconstitutionally seized evidence can result in the release of factually guilty (and sometimes dangerous) criminal defendants. As many scholars have noted, this social cost is oftentimes disproportionately higher than the harm entailed by police misconduct”).
[20] Matthew Tokson & Michael Gentithes, The Reality of the Good Faith Exception, 113 Geo. L. Rev. 1, 8 (2025).
[21] Id. at 1769.
[22] United States v. Leon, 468 U.S. 897, 919 (1984).
[23] Id.
[24] Id. at 907.
[25] Id. at 914.
[26] State v. Wilmoth, 490 N.E.2d 1236, 1247 (1986).
[27] Id. at 1237.
[28] Id. at 1236.
[29] Id. at 1244.
[30] Id.
[31] Id. at 1248.
[32] Laura Moraff, Resisting the Good-Faith Exception in Cases Involving Novel Types of Surveillance, The Champion, National Association of Criminal Defense Lawyers, July 11, 2023, at 58.
[33] Id.
[34] Rubenstein, supra note 19, at 1771-72.
[35] Moraff, supra note 32.
[36] State v. Schubert, 219 N.E.3d 916, 921 (quoting Brown v. Illinois, 422 U.S. 590, 610-611, (1975) (Powell, J., concurring in part)).
[37] Id. at 918-919.
[38] Id.
[39] Id.
[40] Id. at 619.
[41] Id.
[42] Id.
[43] Id.
[44] Id.
[45] Id. at 920.
[46] Id. 919.
[47] Id. at 920.
[48] Id. at 920 (quoting United States v. Leon, 468 U.S. 897, (1984).
[49] Id. at 920-921.
[50] Id. (citing United States v. McPherson, 469 F .3d 518, 526 (6th Cir. 2006)).
[51] Id. at 921.
[52] Id. (quoting United States v. Carpenter, 360 F.3d 591, 595 (6th Cir.2004)).
[53] Id. at 922.
[54] Rubenstein, supra note 19.
[55] generally Schubert, 219 N.E. 3d at 918.
[56] U.S. Const. amend. IV.
[57] Moraff, supra note 32, (stating that, “. . . the good faith exception at times appears to have swallowed the exclusionary rule whole”).
Cover Photo by Kenny Eliason on Unsplash
