Campbell v. Warden, London Correctional Institution

Filing 15

REPORT AND RECOMMENDATIONS - It is respectfully recommended that the Petition herein be DISMISSED WITH PREJUDICE. Because reasonable jurists would not disagree with this conclusion, Petitioner should be denied a certificate of appealability and the Court should certify to the Sixth Circuit that any appeal would be objectively frivolous and therefore should not be permitted to proceed in forma pauperis. Objections to R&R due by 7/24/2017. Signed by Magistrate Judge Michael R. Merz on 7/10/2017. (kpf)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT CINCINNATI
BILLY S. CAMPBELL,
Petitioner,

:

- vs -

Case No. 1:16-cv-631
District Judge William O. Bertelsman
Magistrate Judge Michael R. Merz

TERRY A. TIBBALS, Warden,
London Correctional Institution,
:
Respondent.

REPORT AND RECOMMENDATIONS

This habeas corpus case, brought by Petitioner Campbell pro se under 28 U.S.C. § 2254,
is before the Court for decision on the merits. Having reviewed the Petition (ECF No. 1),
Magistrate Judge Bowman ordered the Warden to Answer (Order for Answer, ECF No. 3). The
Warden filed both the state court record (“SCR,” ECF No. 7) and a Return of Writ (ECF No. 8)
Petitioner filed his Traverse & Reply December 22, 2016 (ECF No. 12). To help spread the
Magistrate Judge workload in the Western Division, Judge Bowman transferred the case to the
undersigned (ECF No. 13).

Procedural History

The Butler County grand jury indicted Campbell for trafficking in heroin and possession
of heroin, both with a major drug offender specification. Campbell moved to suppress his
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statements to the police and the seized heroin. After the trial court denied the motion, Campbell
pleaded no contest. The trial court found him guilty, merged the two offenses, and sentenced
him to eleven years imprisonment. Campbell appealed to the Ohio Twelfth District Court of
Appeals which affirmed the conviction. State v. Campbell, 2014 WL 6725967 (12th Dist. Dec. 1,
2014), appellate jurisdiction declined, 143 Ohio St. 3d 1404 (2015); cert. den., Campbell v. Ohio,
136 S. Ct. 902 (2016). Campbell then timely filed the instant habeas Petition, pleading the
following grounds for relief:
Ground One: The State violated Petitioner’s rights under the
Fifth Amendment to the United States Constitution when it failed
to read him his Miranda rights prior to his interrogation.
Supporting Facts: The police may have read the Petitioner his
Miranda rights during the initial traffic stop but he made no
statements at that time. Later, he was arrested, transported to the
police department, and after a substantial delay he was interrogated
a second time without having been read his Miranda rights. The
police officer whom the State claims Mirandized him did not
testify at the suppression hearing, there was no written waiver of
rights, and the videotape of the interrogation conveniently
malfunctioned at the point in time when the State claims the
Miranda warning would have been read. The state courts placed
the burden on the Petitioner to prove that the rights were not read
instead of placing the burden on the State to prove that they had
been read to the Petitioner after the substantial delay.
Ground Two: The State violated Petitioner’s 4th and 14th
Amendment rights when Ohio police tracked him through a cell
phone without a valid search warrant using GPS technology while
he was in Massachusetts,
Supporting Facts: Ohio police found a Massachusetts phone
number at Petitioner’s home and used cell phone pings to track
him to a private residence in Massachusetts. Police continued to
track him as he traveled cross country without a valid search
warrant. The warrant the police received from a state court in Ohio
had no authority outside of Ohio and it constituted an unlawful
search and seizure outside of law enforcement’s jurisdiction.
Petitioner was not given an opportunity for full and fair litigation
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of these claims in state court because the state court prohibited him
from presenting them on the grounds of standing and it applied an
ex post facto version of Rule 41 of the Ohio Rule of Criminal
Procedure to justify the result in violation of Article I, Section 9 of
the U.S. Constitution.
Ground Three: The pinging of the cell phone violated the
Petitioner’s Fourth Amendment rights in violation of the U.S.
Constitution.
Supporting Facts: The State of Ohio avoided addressing
Petitioner’s Fourth Amendment claims in state court by claiming
that since the cell phone was billed to Petitioner’s spouse,
Petitioner lacked standing to challenge the State’s search. However
the State lacked any probable cause to track the spouse and did so
only to track Petitioner. The State may not circumvent the Fourth
Amendment by disingenuously claiming that it was tracking a
suspect’s spouse and not the suspect. Petitioner was not given an
opportunity for full and fair litigation of these claims in state court
because the state court prohibited him from presenting them on the
grounds of standing.
Ground Four: The state court unreasonably failed to apply wellestablished U.S. Supreme Court precedent when it upheld the
State’s traffic stop of the Petitioner without probable cause in
violation of the Fourth Amendment to the U.S. Constitution.
Supporting Facts: The police officers in this case physically
followed Petitioner’s vehicle from Ashland, Ohio to Butler County
Ohio looking for a traffic violation that would constitute probable
cause to stop the vehicle. Finding none they stopped the vehicle
anyway before the Petitioner could reach his home. The lack of
probable cause to stop the vehicle violated Petitioner’s Fourth
Amendment rights. The state court unreasonably failed to apply
well established U.S. Supreme Court precedent in deciding this
issue.
(Petition, ECF No. 1, PageID 5-9.)

3

Analysis

Ground One: Introduction of Involuntary Admissions

In his First Ground for Relief, Mr. Campbell asserts his privilege against selfincrimination protected by the Fifth Amendment was violated when the state courts failed to
suppress statements he made to the police without validly waiving his Fifth Amendment rights.
The Warden concedes this ground for relief is preserved for merits review in this Court.
The First District Court of Appeals considered this claim on direct appeal. That court
found as relevant background facts the following:
{¶ 2} The Butler County Undercover Regional Narcotics Unit
(BURN) received a tip from a confidential informant that
Campbell was transporting heroin from the East Coast to Ohio.
The informant gave BURN agents Campbell's name and address,
along with information that several heroin overdoses in the area
could be attributed to the heroin Campbell was selling. Agents also
learned that Campbell would rent a car, and take his family with
him on the trip to the East Coast to retrieve the heroin, usually in
and around the Boston, Massachusetts area. Campbell's family
included his wife and two children, ages 14 and six. BURN agents
received similar information from other trusted informants and
cooperating defendants, including that Campbell was soon to go to
Boston for a large heroin purchase and would be bringing the
heroin back to Ohio.
{¶ 3} BURN agents began an investigation, which included
surveillance on Campbell's home. Agents learned from other
confidential informants that Campbell was about to take a trip to
Boston to purchase heroin, and through surveillance, confirmed
that a rental car was located at Campbell's home. Campbell, along
with his wife and two children, then left for Boston in the rental
car.

4

{¶ 4} Once the car had departed, agents continued their
investigation and performed a trash-pull at Campbell's residence.
During the trash-pull, agents located a paper that listed various
phone numbers. Agents received a warrant related to Campbell's
cellular phone, allowing them to “ping” the cell phone in order to
determine Campbell's physical location. However, when the
number associated with Campbell was found to be invalid, agents
received a warrant associated with another phone number that was
listed on the paper found during the trash-pull, which subsequently
was discovered to belong to Campbell's wife. Agents “pinged” the
phone belonging to Campbell's wife, and determined that the
phone was located in Massachusetts. Agents later traced the pings
from Massachusetts to Ohio as the Campbells traveled back toward
Butler County.
{¶ 5} Agents shared information learned from the investigation
with the Butler County Sheriff's Office regarding the confidential
informants' tips and surveillance of Campbell's residence. Butler
County officers then became involved in the investigation and
offered assistance in performing an investigatory stop when
Campbell returned from Boston to the Butler County area.
{¶ 6} After following the Campbells' rental car, BURN agents
instructed an officer to pull over Campbell's car for an
investigatory stop. An officer pulled the car over, and within a few
minutes, a canine officer arrived on the scene and walked his
canine partner around Campbell's car. The canine alerted to the
presence of drugs, and officers found marijuana in the driver's-side
door as well as heroin in a suitcase located in the rental car's trunk.
Campbell was immediately given his Miranda warnings as he
stood on the side of the road. Campbell was then taken to the
police station, where he spoke with one of the agents after being
re-advised of his Miranda rights.
State v. Campbell, supra.
The Twelfth District then considered and decided Campbell’s Third Assignment of Error
as follows:
{¶ 33} Assignment of Error No. 3:
{¶ 34} THE TRIAL COURT ERRED IN OVERRULING
APPELLANT'S MOTION TO SUPPRESS EVIDENCE BY
UPHOLDING THE NUMEROUS VIOLATIONS OF THE
APPELLANT'S MIRANDA RIGHTS, AND THEREBY
5

VIOLATED APPELLANT'S RIGHT TO A FAIR TRIAL, RIGHT
TO DUE PROCESS OF LAW, AND RIGHT TO REMAIN
SILENT, AS GUARANTEED BY THE FIFTH, SIXTH, AND
FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION AND COMPARABLE PROVISIONS OF THE
OHIO CONSTITUTION.
{¶ 35} Campbell argues in his third assignment of error that the
trial court erred in denying his motion to suppress because his Fifth
Amendment right against self-incrimination was violated.
{¶ 36} It is well-established that before law enforcement officials
interrogate a suspect in custody, the suspect must be advised of his
Miranda rights and make a knowing and intelligent waiver of those
rights before any statements obtained during the interrogation will
be admissible as evidence. State v. Hernandez–Martinez, 12th Dist.
Butler No. CA2011–04–068, 2012–Ohio–3754. If a defendant later
challenges a confession as involuntary, the state must prove a
knowing, intelligent, and voluntary waiver by a preponderance of
evidence. State v. Vunda, 12th Dist. Butler Nos. CA2012–07–130,
CA2013–07–113, 2014–Ohio–3449. To determine whether a valid
waiver occurred, we “consider the totality of the circumstances,
including the age, mentality, and prior criminal experience of the
accused; the length, intensity, and frequency of interrogation; the
existence of physical deprivation or mistreatment; and the
existence of threat or inducement.” Id. at ¶ 15, quoting State v.
Edwards, 49 Ohio St.2d 31 (1976), paragraph two of the syllabus.
{¶ 37} During the motion to suppress hearing, a BURN agent
testified that he gave Campbell Miranda warnings by reading the
warnings from a card listing the warnings, as provided by the Drug
Enforcement Agency. The agent testified that he issued the
warnings once Campbell got out of the car during the investigatory
stop and once agents located the marijuana and heroin in the car.
The issuance of Miranda warnings was witnessed by another agent
on the scene, and that agent also testified that Campbell received
his Miranda warnings. Agents also testified during the motion to
suppress hearing that Campbell was issued his Miranda warnings a
second time at the police station once he was transported there.
{¶ 38} To rebut the state's evidence that Campbell was issued valid
Miranda warnings, he argues that the record does not contain a
recording demonstrating that he signed a waiver of his rights. The
record indicates that some of the recording equipment used by the
BURN agents and the Butler County Sheriff's office malfunctioned
during Campbell's interview. However, the fact that the recording
6

equipment malfunctioned does not rebut the evidence offered by
the state that Campbell was read his Miranda rights on two
different occasions; once at the scene of the investigatory stop and
once when Campbell arrived at the police station for questioning.
Nothing in the record indicates that Campbell refused to speak
with agents or officers, or that he requested counsel at any time,
whether or not the entire interview was recorded.
{¶ 39} Moreover, no Ohio law requires that Miranda waivers must
be signed or recorded in order to be valid. Instead, this court has
recognized that the failure to have a defendant sign a Miranda
waiver form does not render that waiver invalid. State v.
Hernandez–Martinez, 12th Dist. Butler No. CA2011–04–068,
2012–Ohio–3754.
{¶ 40} Nor does the record indicate that there was any indicia of an
involuntary waiver of rights. No evidence exists on the record that
Campbell's age, mentality, or any prior criminal experience
impacted his decision to speak with officers. Nor is there any
indication that the length, intensity, and frequency of the
interrogation resulted in Campbell's decision to answer questions.
Nor is there any evidence or suggestion that there was physical
deprivation, mistreatment, threat or inducement on the state's part
before Campbell spoke with agents on the night of his arrest.
Instead, the undisputed evidence was that two agents advised
Campbell of his rights, and that Campbell waived those rights
knowingly, intelligently, and voluntarily.
{¶ 41} After reviewing the record and considering each of
Campbell's arguments, we find that Campbell's Fifth Amendment
rights against self-incrimination were not violated. As such,
Campbell's final assignment of error is overruled.

State v. Campbell, supra.
Campbell contends that this decision of the Twelfth District is based on an unreasonable
determination of the facts on the basis of the evidence of record and also is an objectively
unreasonable application of clearly established Supreme Court precedent, to wit, Miranda v.
Arizona, 384 U.S. 436 (1966)(Traverse, ECF No. 12, PageID 422).
The record reflects that an evidentiary hearing was held on Campbell’s motion to

7

suppress on January 2, 2014 (Tr., ECF No. 7-1, PageID 244, et seq.). The State presented eight
witnesses and the defense presented none. Id. at PageID 245.
Erik Betz testified he was in the Road Patrol Division of the Butler County Sheriff’s
Department. Id. at PageID 282. He was instructed by agents of the narcotics (“BURN”) unit of
that Department to pull over Mr. Campbell’s rental vehicle on the day he was stopped. Id. at
PageID 284. Deputy Betz had no conversation with Campbell. Id. at PageID 287.
Michael Baker testified he was also a Deputy Sheriff in Butler County and part of the
canine unit. Campbell and his wife, who was driving the car, told different stories about where
they had been. Id. at PageID 291. After the drug dog alerted, the heroin was found “within
seconds” and Campbell was arrested. Id. at PageID 293. Virtually the whole BURN unit was
there and Baker testified he observed Sergeant Herring Mirandize Mr. Campbell. Id. at PageID
294. Campbell stated nothing in response in Baker’s presence. Id. at PageID 295.1
Timothy Andrews, also an agent with the BURN unit, was one of the lead investigators
on this case. Id. at PageID 300. On August 19, 2013, Andrews testified he interviewed Campbell
at the Butler County Jail and advised him of his Miranda rights, which Campbell waived. Id. at
PageID 328. Andrews understood that someone else had interviewed Campbell on August 16
after his arrest. Id. at PageID 329. Although there was no Miranda card, Andrews testified that
the statements of Agent Herring, Detective Owens, and Sergeant Hackney showed Campbell was
Mirandized at the Jail on August 16. Id. at PageID 331. Andrews admitted that there was no
mention of Miranda in his incident report of what happened at the scene because he did not
witness it. Id. at PageID 334.
Defense counsel admitted he was not attempting to suppress any statement Campbell
1

Baker was cross-examined about a statement in a document he did not prepare that said Agent Herring witnessed
the Miranda warnings. The author of the document, Agent Andrews, testified the report was about the second
Miranda warning after arrival at the Sheriff’s Office. Id. at PageID 300.

8

made on the 19th of August. Id. at PageID 336.
Mike Hackney testified he was a sergeant with the Butler County Sheriff. Id. at PageID
343. He testified he Mirandized Campbell at the side of the road during the initial stop. Id. at
PageID 348. Campbell acknowledged understanding Miranda and did not ask to talk to a
lawyer. Id. Deputy Baker witnessed the reading of the Miranda card. Id. at PageID 350.
Campbell was not questioned at that point, but was told there would be further discussions at the
Jail. Id.
In argument the prosecutor summarized the testimony about Miranda warnings. Id. at
PageID 356-57.

Most of the defense argument was about whether there was reasonable

articulable suspicion for the stop. All that was said about Miranda was “The other testimony that
– regarding relative to Miranda and it goes to the weight of what you heard, Judge. And again,
we have and we can argue and submit what we get out of discovery and we’re at a disadvantage
sometimes with who and what we call as witnesses.” Id. at PageID 360. Having listened to the
testimony, the judge found there was “no debate” about the Miranda issues and “there’s no
evidence that he did not knowingly, intelligently, and voluntarily give up his rights.” Id. at
PageID 363. Based on his oral findings, Judge Sage entered an Order denying the Motion to
Suppress (SCR, ECF No. 7, PageID 33). In the Motion to Suppress, defense counsel did not state
the content of any statement Campbell may have made on August 16, but merely alleged the
Miranda warnings had never been read. Id. at 31.
There was ample oral testimony from persons who were present on both occasions that
Campbell was read his Miranda rights twice, one at the scene of the traffic stop and once later at
the Butler County Jail. There does not exist the tangible evidence of a signed waiver or a video
record of either warning, but Judge Sage was able to observe the demeanor of the witnesses and

9

entitled credit to their testimony.

His conclusion that the warnings were given is not an

unreasonable determination of the facts on the basis of the evidence presented to him, which
included no evidence from the defense at all. That is to say, Campbell now claims that the
Miranda warnings were not given a second time at the Jail, but there is no sworn testimony to
that effect. The Twelfth District would have reviewed Judge Sage’s findings of fact under a
clearly erroneous standard and this Court reviews them under the same standard, with AEDPA
deference.
Therefore Ground One is without merit and should be dismissed with prejudice.

Grounds Two, Three, and Four: Asserted Violations of the Fourth Amendment

In his Second, Third, and Fourth Grounds for Relief, Campbell alleges the Butler County
officers obtained evidence from him in violation of his Fourth Amendment rights by tracking
him to and from Boston, Massachusetts, through use of GPS technology by pinging his wife’s
cell phone.
The Warden asserts habeas corpus review of these claims is barred by Stone v. Powell,
428 U.S. 465 (1976)(Return, ECF No. 8, PageID 394-400).
Federal habeas corpus relief is not available to state prisoners who allege they were
convicted on illegally seized evidence if they were given a full and fair opportunity to litigate
that question in the state courts. Stone v. Powell, 428 U.S. 465 (1976). Stone requires the district
court to determine whether state procedure in the abstract provides full and fair opportunity to
litigate, and Ohio procedure does.

The district court must also decide if a Petitioner's

presentation of claim was frustrated because of a failure of the state mechanism. Habeas relief is

10

allowed if an unanticipated and unforeseeable application of a procedural rule prevents state
court consideration of merits. Riley v. Gray, 674 F.2d 522 (6th Cir. 1982). The Riley court, in
discussing the concept of a “full and fair opportunity,” held:

The mechanism provided by the State of Ohio for resolution of
Fourth Amendment claims is, in the abstract, clearly adequate.
Ohio R. Crim. P. 12 provides an adequate opportunity to raise
Fourth Amendment claims in the context of a pretrial motion to
suppress, as is evident in the petitioner’s use of that procedure.
Further, a criminal defendant, who has unsuccessfully sought to
suppress evidence, may take a direct appeal of that order, as of
right, by filing a notice of appeal. See Ohio R. App. P. 3(A) and
Ohio R. App. P. 5(A). These rules provide an adequate procedural
mechanism for the litigation of Fourth Amendment claims because
the state affords a litigant an opportunity to raise his claims in a
fact-finding hearing and on direct appeal of an unfavorable
decision.
Id. at 526.
In Good v. Berghuis, 729 F.3d 636 (6th Cir. 2013), the Sixth Circuit held an evidentiary
hearing was not required by due process and followed its prior conclusion that “opportunity
means opportunity . . . the state court need do no more than ‘take cognizance of the constitutional
claim and render a decision in light thereof.” Id. at 638, quoting Moore v. Cowan, 560 F.2d
1298, 1302 (6th Cir. 1977).
Consistent with Moore and with two of the three votes in Bradley,
we make clear that the Powell "opportunity for full and fair
consideration" means an available avenue for the prisoner to
present his claim to the state courts, not an inquiry into the
adequacy of the procedure actually used to resolve that particular
claim.
Id. at 639-40.
Campbell used the procedures Ohio law makes available for raising Fourth Amendment
claims by filing and litigating a motion to suppress, then pleading no contest and appealing the

11

trial court’s ruling on that motion.
Campbell raised his Fourth Amendment claims as his First and Second Assignments of
Error on direct appeal and the Twelfth District decided them as follows:
{¶ 8} Assignment of Error No. 1:
{¶ 9} THE TRIAL COURT ERRED IN OVERRULING
APPELLANT'S MOTION TO SUPPRESS EVIDENCE
BECAUSE THE GPS PINGING INFORMATION USED TO
LOCATE THE APPELLANT WAS AN ILLEGAL SEARCH,
THEREBY VIOLATING APPELLANT'S RIGHT TO A FAIR
TRIAL, RIGHT TO DUE PROCESS OF LAW, AND RIGHT TO
BE FREE FROM UNREASONABLE SEARCHES AND
SEIZURES, AS GUARANTEED BY THE FOURTH, SIXTH,
AND FOURTEENTH AMENDMENTS TO THE UNITED
STATES
CONSTITUTION,
AND
COMPARABLE
PROVISIONS TO THE OHIO CONSTITUTION, AS WELL AS
THE OHIO RULES OF CRIMINAL PROCEDURE AND OHIO
REVISED CODE.
{¶ 10} Assignment of Error No. 2:
{¶ 11} THE TRIAL COURT ERRED IN OVERRULING
APPELLANT'S MOTION TO SUPPRESS EVIDENCE BY
UPHOLDING THE WARRANTLESS SEARCH AND SEIZURE
OF APPELLANT'S VEHICLE, DESPITE THE LACK OF ANY
TRAFFIC VIOLATION OR THE PRESENCE OF ANY OTHER
REASONABLE SUSPICION, AND THEREBY VIOLATED
APPELLANT'S RIGHT TO A FAIR TRIAL, RIGHT TO DUE
PROCESS OF LAW, AND RIGHT TO BE FREE FROM
UNREASONABLE SEARCHES AND SEIZURES, AS
GUARANTEED BY THE FOURTH, SIXTH, AND
FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION, AND COMPARABLE PROVISIONS OF THE
OHIO CONSTITUTION.
{¶ 12} Campbell argues in his first two assignments of error that
the trial court erred in denying his motion to suppress the evidence
seized as a result of the vehicle search.
{¶ 13} Appellate review of a ruling on a motion to suppress
presents a mixed question of law and fact. State v. Cochran, 12th
Dist. Preble No. CA2006–10–023, 2007–Ohio–3353. Acting as the
trier of fact, the trial court is in the best position to resolve factual
12

questions and evaluate witness credibility. Id. Therefore, when
reviewing the denial of a motion to suppress, a reviewing court is
bound to accept the trial court's findings of fact if they are
supported by competent, credible evidence. State v. Oatis, 12th
Dist. Butler No. CA2005–03–074, 2005–Ohio–6038. “An
appellate court, however, independently reviews the trial court's
legal conclusions based on those facts and determines, without
deference to the trial court's decision, whether as a matter of law,
the facts satisfy the appropriate legal standard.” Cochran at ¶ 12.
{¶ 14} Campbell asserts that his motion to suppress should have
been granted because the police unlawfully used a GPS to locate
him by pinging his wife's cell phone, and because the vehicle
search was not the result of a traffic violation. 1 We disagree with
both of Campbell's arguments.
{¶ 15} Regarding the GPS ping, Campbell argues that agents did
not have probable cause to support the warrant issued that allowed
them to ping the phone to indicate the location of Campbell or his
family. However, the record is clear that the phone did not belong
to Campbell so that he lacks standing to challenge the validity of
the warrant.
{¶ 16} Fourth Amendment privacy rights are “personal rights
which, like some other constitutional rights, may not be vicariously
asserted.” Rakas v. Illinois, 439 U.S. 128, 133, 99 S.Ct. 421
(1978). As such, a person who alleges error by the use of evidence
taken from someone else's property cannot claim that his own
rights have been violated. State v. Coleman, 45 Ohio St.3d 298,
306 (1989). Only those whose personal rights have been violated
can raise Fourth Amendment claims. Id. Thus, in order to
challenge a search or seizure on Fourth Amendment grounds, a
defendant must possess a legitimate expectation of privacy in the
area searched, and the burden is upon the defendant to prove facts
sufficient to establish such expectation. State v. Renner, 12th Dist.
Clinton No. CA2002–08–033, 2003–Ohio–6550, citing United
States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547 (1980).
{¶ 17} The record is clear that the BURN agents obtained a search
warrant for a cell phone belonging to Campbell's wife so that
Campbell did not have reasonable expectation of privacy in his
wife's phone. The fact that agents pinged the phone belonging to
Campbell's wife did not implicate Campbell's personal rights in
any way and he cannot raise a challenge to the warrant related to
his wife's phone. See State v. Crawford, 8th Dist. Cuyahoga No.
98605, 2013–Ohio–1659, ¶ 45 (finding that appellant did not have
13

standing to challenge a search involving his codefendants where he
“could not challenge the cell phone records of anyone but his
own”).
{¶ 18} Even if we were to entertain Campbell's argument that his
rights were somehow implicated even though the phone belonged
to his wife, we would still overrule his argument regarding the cell
phone pinging for two reasons. First, Campbell had no reasonable
expectation of privacy in the pinging of the phone voluntarily used
while traveling on public thoroughfares. See State v. Taylor, 2d
Dist. Montgomery No. 25764, 2014–Ohio–2550 (affirming trial
court's denial of appellant's motion to suppress where appellant had
no reasonable expectation of privacy in the pings emitted by the
cell phone in appellant's possession); and United States v. Skinner,
690 F.3d 772, 777 (6th Cir.2012) (holding that appellant did not
have a reasonable expectation of privacy in the data given off by
his voluntarily procured cell phone).
{¶ 19} The other reason this court would affirm the denial of
Campbell's motion to suppress is because agents had procured a
valid search warrant supported by probable cause. The record
indicates that agents requested the search warrant to follow the
pinging of the cell phone belonging to Campbell's wife, and that
such warrant was valid. As we will discuss next in regard to the
stop, agents had ample probable cause to investigate, including
pinging the cell phone to show its location in or about the
Massachusetts area.
{¶ 20} According to Crim.R. 41(C),
(1) A warrant shall issue on either an affidavit or
affidavits sworn to before a judge of a court of record or
an affidavit or affidavits communicated to the judge * * *.
The affidavit shall name or describe the person to be
searched or particularly describe the place to be searched,
name or describe the property to be searched for and
seized, state substantially the offense in relation thereto,
and state the factual basis for the affiant's belief that such
property is there located. * * *
(2) If the judge is satisfied that probable cause for the
search exists, the judge shall issue a warrant identifying
the property and naming or describing the person or place
to be searched.
{¶ 21} When determining the sufficiency of probable cause in an
affidavit submitted in support of a search warrant, “the task of the
14

issuing magistrate is simply to make a practical, common-sense
decision whether, given all the circumstances set forth in the
affidavit before him * * * there is a fair probability that contraband
or evidence of a crime will be found in a particular place.” State v.
George, 45 Ohio St.3d 325 (1989), paragraph one of the syllabus.
{¶ 22} An appellate court should not substitute its judgment for
that of the issuing court as to whether the affidavit contains
sufficient probable cause upon which that court would issue the
search warrant. State v. Akers, 12th Dist. Butler No. CA2007–07–
163, 2008–Ohio–4164. “In conducting any after-the-fact scrutiny
of an affidavit submitted in support of a search warrant, trial and
appellate courts should accord great deference to the magistrate's
determination of probable cause, and doubtful or marginal cases in
this area should be resolved in favor of upholding the warrant.”
George, paragraph two of the syllabus.
{¶ 23} The record is clear that agents offered an affidavit that
detailed the information given by their confidential informants and
cooperating codefendants, including that Campbell would go to the
Massachusetts area to bring heroin back to Ohio, and that
Campbell would make such trips with his wife and children. The
agents also provided information regarding the cars that Campbell
had rented in the past, and that the cars were driven a distance
equal to the mileage required to go from Ohio to Massachusetts
and back. The information contained in the affidavit supporting the
search warrant request supplied the probable cause necessary to
issue the warrant. As such, and for several reasons, the trial court
did not err in denying Campbell's motion to suppress evidence
resulting from the pinging of his wife's cell phone.
{¶ 24} Regarding the investigatory stop, Campbell argues that
officers lacked authority to initiate the stop because the deputy
who performed the stop did not have personal knowledge as to the
investigation and was merely acting on orders when he initiated the
stop. We disagree.
{¶ 25} Ohio recognizes two types of lawful stops, a
noninvestigatory stop in which the officer believes a traffic
violation has occurred, and an investigatory stop. State v. Cochran,
12th Dist. Preble No. CA2006–10–023, 2007–Ohio–3353, ¶ 13.
The record is undisputed that the agents or other officers did not
witness Campbell commit a traffic violation. Instead, the stop was
executed solely on information shared by BURN agents, as that
information was derived from the investigation, that Campbell
possessed heroin in his car.
15

{¶ 26} Before an investigatory stop may occur, the officer must
demonstrate “specific and articulable facts which, taken together
with rational inferences from those facts, reasonably warrant that
intrusion.” Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868 (1968).
“The United States Supreme Court has interpreted the Fourth
Amendment to permit police stops of motorists in order to
investigate a reasonable suspicion of criminal activity.” City of
Maumee v. Weisner, 87 Ohio St.3d 295, 299 (1999), citing Terry at
22.
{¶ 27} Instead of employing an inflexible standard to determine
whether an officer has a reasonable suspicion of criminal activity,
its determination involves a consideration of “the totality of the
circumstances.” United States v. Cortez, 449 U.S. 411, 417, 101
S.Ct. 690 (1981). Accordingly, “both the content of information
possessed by police and its degree of reliability” are pertinent
when determining whether there is a reasonable suspicion of
criminal activity to justify a stop. Alabama v. White, 496 U.S. 325,
330, 110 S.Ct. 2412 (1990).
{¶ 28} The record demonstrates that officers had a reasonable
suspicion of criminal activity to justify the stop. Again, the BURN
agents received information from reliable informants and
codefendants that Campbell was trafficking in heroin. BURN
agents interviewed at least seven different informants and
cooperating codefendants, all of whom stated that Campbell was
responsible for the heroin that was causing several overdoses in the
area. Informants provided BURN agents with Campbell's name
and address, as well as information that Campbell would rent a car,
take his family with him, and travel to the Massachusetts area
before returning to Butler County with the heroin.
{¶ 29} BURN agents confirmed several pieces of information as
given to them by the informants, including that Campbell rented
cars and that a cell phone belonging to his wife was located in the
Massachusetts area when Campbell was believed to be on a heroin
buying trip. Agents performed surveillance on Campbell to verify
information from the informants, including that Campbell was set
to go on a large buying trip to the Boston area. Agents learned that
there was a rental car at Campbell's residence, and later traced the
cell phone pings from Massachusetts back to Ohio.
{¶ 30} While Deputy Erik Betz, the officer who stopped Campbell,
did not perform every step of the investigation first hand, we find
that he was justified in making the stop. The record indicates that
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Deputy Betz was involved at the beginning of the investigation by
confirming that there was a rental car at Campbell's residence.
Deputy Betz testified at the motion to suppress hearing that during
the initial phases of the investigation, he passed Campbell's
residence, saw a rental car in the drive, and confirmed that it was a
rental car by running the license plates. Deputy Betz testified that
he shared that information with BURN agents, and that the
investigation continued. Deputy Betz became involved again in the
investigation when he was on road patrol and was contacted by
BURN agents regarding Campbell's travels. BURN agents directed
Deputy Betz to pull over Campbell's car, and Deputy Betz initiated
the investigatory stop at the behest of the BURN agents.
{¶ 31} While Campbell argues that Deputy Betz lacked any
suspicion that Campbell was involved in drug activity, the record
indicates otherwise. Deputy Betz was clearly involved in the
beginning of the investigation, and was aware of the circumstances
surrounding the BURN investigation into Campbell's activities.
Deputy Betz indicated during the motion to suppress hearing that
he was in contact with BURN agents, and had spoken to them to
relate information regarding the rented car at Campbell's residence
and again on the day of the investigatory stop. As such, Deputy
Betz had the requisite specific and articulable facts which, taken
together with rational inferences from those facts, reasonably
warranted the stop. This is especially true where Deputy Betz was
directed by the BURN agents, who had been in charge of the
investigation, to initiate the stop. There is no doubt from the record
that the stop was a result of multiple officers and their knowledge
of specific and articulable facts which, taken together with rational
inferences from those facts, reasonably warranted the stop.

{¶ 32} After reviewing the record and considering each of
Campbell's arguments, we find that the trial court properly denied
Campbell's motion to suppress the evidence seized as a result of
the stop. As such, Campbell's first and second assignments of error
are overruled.

State v. Campbell, supra.
Campbell argues his opportunity to fully and fairly litigate his Fourth Amendment claims
was interfered with by the reliance of the state courts on his supposed lack of standing to contest
a search of his wife’s cell phone. He argues the Supreme Court has held “standing” is no part of
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Fourth Amendment analysis, citing Rakas v. Illinois, 439 U.S. 128 (1978). But in Rakas the
Supreme Court held that passengers in a car that was searched who asserted no property or
possessory interest in the car or in what was seized from the car could not challenge a search of
the glove box or the area under the seat because they had no reasonable expectation of privacy in
those areas. It was that holding of Rakas on which the Twelfth District relied here. What is
more, it did so correctly because Campbell could not and did not assert any reasonable
expectation of privacy in the location of his wife’s cell phone. Simply put, Campbell had no
Fourth Amendment rights as respects his wife’s phone.
Campbell asserts the officers had no probable cause to ping the phone because his wife
was not suspected of any illegal activity. But the police knew from more than one confidential
informant that Campbell’s trips to the East Coast to obtain drugs were customarily made in his
wife’s company. Whether or not his wife was complicit in his drug trafficking is not relevant.
Finally, Campbell argues the warrant was unlawful because it authorized a search outside
the jurisdiction of the issuing court. On the contrary, the warrant did not authorize officers to
search outside the territorial jurisdiction of Ohio; they could not have gone to Boston and
searched the content of Campbell’s spouse’s phone and they did not attempt to do so. Instead,
they maintained continual information on the location of the phone and therefore the probable
location of Campbell and the heroin, by using GPS to track the phone without every leaving
Ohio.
Campbell argues the state court judge was not authorized to issue the warrant in question
because the amendment to Ohio R. Crim. P. 41 which explicitly authorizes this sort of warrant –
the version of that Rule relied on by the Twelfth District – did not become effective until a
number of months after he pleaded no contest. Upon examination, the tracking warrant portion

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of the Rule is not the portion relied on by the Twelfth District. In any event, the Rules of
Criminal Procedure are adopted to standardized procedures used in criminal cases in Ohio. They
are not the sole source of a judge’s authority to issue search warrants.
The foregoing analysis establishes that the Twelfth District’s decision is not an
objectively unreasonable application of Supreme Court precedent. But the Court should not even
reach that question because Campbell had a full and fair opportunity to litigate his Fourth
Amendment claims.

Conclusion

Based on the foregoing analysis, it is respectfully recommended that the Petition herein
be DISMISSED WITH PREJUDICE. Because reasonable jurists would not disagree with this
conclusion, Petitioner should be denied a certificate of appealability and the Court should certify
to the Sixth Circuit that any appeal would be objectively frivolous and therefore should not be
permitted to proceed in forma pauperis.

July 10, 2017.
s/ Michael R. Merz
United States Magistrate Judge

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NOTICE REGARDING OBJECTIONS

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the
proposed findings and recommendations within fourteen days after being served with this Report
and Recommendations. Pursuant to Fed. R. Civ. P. 6(d), this period is extended to seventeen
days because this Report is being served by mail. .Such objections shall specify the portions of
the Report objected to and shall be accompanied by a memorandum of law in support of the
objections. If the Report and Recommendations are based in whole or in part upon matters
occurring of record at an oral hearing, the objecting party shall promptly arrange for the
transcription of the record, or such portions of it as all parties may agree upon or the Magistrate
Judge deems sufficient, unless the assigned District Judge otherwise directs. A party may
respond to another party=s objections within fourteen days after being served with a copy thereof.
Failure to make objections in accordance with this procedure may forfeit rights on appeal. See
United States v. Walters, 638 F.2d 947, 949-50 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140,
153-55 (1985).

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