State v. Borger , 2023 Ohio 2025 ( 2023 )

[Cite as State v. Borger, 2023-Ohio-2025.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-220394
TRIAL NO. B-2104466
Plaintiff-Appellee, :
O P I N I O N.
vs. :
LARRY BORGER, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: June 21, 2023
Melissa A. Powers, Hamilton County Prosecuting Attorney, and Paula E. Adams,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Jeffery J. Cutcher, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
KINSLEY, Judge.
{¶1} Defendant-Appellant, Larry Borger, appeals the denial of his motion to
suppress evidence, arguing that the trial court’s denial was in error because he did not
receive notification under R.C. 2951.02 prior to probation officers searching his home
during a visit. Because the notification requirement under R.C. 2951.02 does not
provide constitutional grounds under which Borger can appeal, we affirm the trial
court’s decision.
I. Factual and Procedural Background
{¶2} Borger was on community control (“on probation”) in August 2021 for
misdemeanor drug offenses. As a condition of his community control, Borger was
prohibited from using controlled substances and consuming alcohol.
{¶3} Two probation officers arrived at Borger’s house to assess his
community control compliance and determine his treatment needs, if any. Borger
answered the door and immediately informed the probation officers he was “high as f-
--” before allowing them into his home.
{¶4} Upon entering, the officers explained to Borger they would need to “look
around.” Borger pointed the officers towards the bedroom, where they found a “crack
pipe” in plain view on a bedside table. Borger was then searched by one of the officers
as a safety precaution and to prevent him from swallowing potential evidence. The
officer found a plastic baggie in Borger’s pocket that Borger identified as a baggie of
methamphetamines.
{¶5} The officer promptly arrested Borger. He was subsequently charged
with aggravated possession of drugs.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶6} Borger filed a motion to suppress the evidence seized during the home
visit, arguing that the search was unconstitutional under the Fourth and Fourteenth
Amendments to the United States Constitution and Article 1, Section 14 of the Ohio
Constitution because he did not receive proper notice under R.C. 2951.02(A)(3). The
trial court denied Borger’s motion. Borger pleaded no contest to and was convicted of
aggravated possession of drugs. This appeal timely followed.
II. Analysis
A. Constitutional Violation
{¶7} In his first assignment of error, Borger argues the trial court wrongly
denied his motion to suppress because there was insufficient evidence to show that he
received the notice required under R.C. 2951.02(A)(3) informing him that he could be
searched, with or without a warrant, as a condition of his community control. Borger
argues this failure to notify him of possible searches pursuant to the statute makes the
warrantless search of his residence and person unconstitutional under the Fourth and
Fourteenth Amendments to the United States Constitution and Article 1, Section 14 of
the Ohio Constitution.
{¶8} The review of a trial court’s decision on a motion to suppress presents a
mixed question of law and fact. State v. Showes, 1st Dist. Hamilton No. C-180552,
2020-Ohio-650, ¶ 9. This court must accept the trial court’s findings of fact as true if
competent, credible evidence supports them. State v. Burnside, 100 Ohio St.3d 152,
2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. However, this court must independently
determine whether the facts satisfy the applicable legal standard. Id. at ¶ 8; State v.
Sweeten, 1st Dist. Hamilton No. C-150583, 2016-Ohio-5828, ¶ 8.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶9} Borger argues that the lack of proof that he signed the rules of probation
alerting him to the requirements of R.C. 2951.02(A)(3) before his home was searched
amounts to a constitutional violation. But in State v. Campbell, Slip Opinion No.
2022-Ohio-3626, ¶ 12, 21, 23, the Supreme Court of Ohio determined that the failure
of probation officers to give notice under R.C. 2951.02(A)(3) does not violate the
Fourth Amendment, and further, that any violation of the statute cannot be remedied
through evidentiary exclusion. While a probation “officer violates R.C. 2951.02(A) if
the officer conducts a search without reasonable grounds to believe that the
probationer violated the law or conditions of probation,” a court cannot exclude
evidence resulting from this type of illegal search because the exclusionary rule applies
only to constitutional violations. Id. at 21, 23; State v. Clardy, 1st Dist. Hamilton No.
C-210262, 2022-Ohio-4300, ¶ 21. Because Campbell prohibits this court from
providing an exclusionary remedy for officer violations under R.C. 2951.02, an
analysis of whether an officer violated the statute is irrelevant in cases requesting
exclusion of evidence. Clardy at ¶ 22. An independent constitutional claim must be
raised for this court to offer evidentiary exclusion as a remedy. Id. at ¶ 21; Campbell
at ¶ 12, 21, 23.
{¶10} Borger only argues that his constitutional rights were violated through
the failure of officers to comply with the statutory requirements of R.C. 2951.02(A)(3).
He does not independently assert a constitutional violation. Because Borger does not
assert a constitutional claim and no exclusionary remedy is available under
R.C. 2951.02, we hold that no error occurred in the trial court’s denial of his motion to
suppress and overrule Borger’s first assignment of error.
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OHIO FIRST DISTRICT COURT OF APPEALS
B. Consideration of the August 2021 Rules of Probation
{¶11} Borger argues in his second assignment of error that the trial court
improperly considered the August 23, 2021 signed rules of probation submitted by the
prosecution after the hearing on the motion to suppress closed. Contrary to Borger’s
argument, the trial court seemingly found that Borger signed the rules of probation
prior to the search based on unrefuted officer testimony that Borger signed the
community control conditions prior to the date of the search, rather than relying upon
the actual signed document submitted after the hearing. However, even were we to
hold that the trial court improperly relied upon the signed rules submitted after the
close of evidence, we cannot grant the exclusionary remedy that Borger seeks because,
as explained above, Borger has not asserted a constitutional violation. See Campbell,
Slip Opinion No. 2022-Ohio-3626, at ¶ 23. Borger’s second assignment of error is
accordingly overruled.
C. Inaccurate Findings of Fact
{¶12} In his third and last assignment of error, Borger argues that the trial
court relied on findings of fact not supported by the record when it determined he was
detained prior to the search of his residence and person. Even if the trial court had
made inaccurate factual findings, those findings relate only to Borger’s sole argument
regarding compliance with R.C. 2951.02(A)(3), which is not a basis for excluding
evidence. See id. at ¶ 23. As a result, we are constrained to overrule Borger’s
assignment of error because he has not asserted a constitutional violation under which
exclusion can be granted as a remedy.
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OHIO FIRST DISTRICT COURT OF APPEALS
III. Conclusion
{¶13} Because Borger does not raise a constitutional claim independent of the
alleged statutory violation of R.C. 2951.02(A)(3), this court cannot provide an
exclusionary remedy. The trial court’s judgment denying Borger’s motion to suppress
is accordingly affirmed.
Judgment affirmed.
BERGERON, P.J., and BOCK, J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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