If I am on probation, can my probation search my cell phone at any time and for any reason? The answer is yes, if you consented to the search.
The Ohio Supreme Court recently ruled a probation officer did not need reasonable grounds to search a cell phone of a defendant who was on probation. As a result, the high court overturned a Fifth District Court of Appeals decision that held incriminating evidence was illegally obtained by the probation officer and therefore, should have been suppressed and not used in prosecuting the defendant.
In State v. Campbell, (found here) the defendant Daniel Campbell was sentenced to prison for robbery and applied for judicial release in 2017. When he was granted judicial release from prison, he was on felony probation, which Ohio calls “community control.” As a term and condition and his community control, Mr. Campbell agreed to certain rules, including the search of: “my person, my property, my vehicle, and my residence any time without a warrant.”
Mr. Campbell was seemingly doing well on community control and there was no reason to believe he had not been compliant with the rules. His probation officer had even indicated she was going to reduce Mr. Campbell’s level of supervision assuming the home search went smoothly. Things did not go so smoothly for Mr. Campbell when his probation officer searched his cell phone. The probation officer found child pornography on Mr. Campbell’s cell phone and he was subsequently indicted on nine counts of possessing child porn.
Mr. Campbell’s attorney tried to suppress the evidence, arguing that it should not be used in his prosecution because his probation officer violated his constitutional rights. The trial court did not buy the argument stating Mr. Campbell waived those constitutional rights when he consented to the search. Ultimately, Mr. Campbell was convicted and sentenced to 7 years in prison.
Mr. Campbell appealed his conviction to the 5th District court of Appeals, who agreed with Mr. Campbell’s attorney. The 5th District Court of Appeals reversed the trial court’s decision, stating the probation officer’s search of his cell phone violated Ohio Revised Code Section 2951.02(A), which states a probation officer may search a person or the person’s property without a search warrant only if: “the probation officers have reasonable grounds to believe that the offender is not abiding by the law or otherwise is not complying with the conditions…of community control.” The prosecutor appealed to the Ohio Supreme Court.
The Ohio Supreme Court found the probation officer did violate section 2951.02(A) of the Ohio Revised Code. However, a violation of that statute does not have the same consequences—in favor of a defendant and to the detriment of the state—as a violation of the Fourth Amendment has. Unlike a violation of the 4th Amendment—where illegally obtained evidence must be excluded (i.e., suppressed), often times resulting in a dismissal of a criminal case—a violation of the statute did not have that same effect of excluding the evidence. The Court explained the statute’s plain reading did not indicate any legislative requirement or intent to exclude evidence where a violation of the statute occurred.
Instead, the Court highlighted individuals on probation/community control or parole have a lower expectation of privacy than folks who are not on such supervision. Further, in order to obtain early release from prison, Mr. Campbell agreed to follow and acknowledged certain terms and conditions in his community control agreement. Specifically, the Court noted he waived his constitutional rights to reasonable search and seizure when he signed the consent to search his property, which the Court said, is “something that inarguably encompasses his cell phone.”
As a result, the Ohio Supreme Court overruled the 5th District Court of Appeals’ decision and Mr. Campbell was convicted.
This case highlights the importance of understanding that an individual’s constitutional protections are given up when those protections are waived in writing with the government or a probation officer working on behalf of the government. Unfortunately, individuals have no choice but to waive these rights when they are on probation. If they do not comply, jail time or other more severe sanctions can be imposed.
If you or someone you know needs representation on a probation violation, or criminal charge/s, feel free to contact the experienced criminal defense attorneys at Rittgers Rittgers & Nakajima at 513-496-0134. Please visit our website at https://www.rittgers.com/