[Cite as Blanchard Twp. Bd. of Trustees v. Simon, 2023-Ohio-1704.]

IN THE COURT OF APPEALS OF OHIO

THIRD APPELLATE DISTRICT

HARDIN COUNTY

BOARD OF TRUSTEES

BLANCHARD TOWNSHIP,

 PLAINTIFF-APPELLEE,

CASE NO. 6-22-17

 v.

ENOCH SIMON,

 DEFENDANT/THIRD-PARTY

 PLAINTIFF-APPELLANT,

 v. O P I N I O N

ROB WILSON, INDIVIDUALLY AND AS 

TRUSTEE OF BLANCHARD TOWNSHIP, ET AL.

 THIRD-PARTY DEFENDANTS-

 APPELLEES.

Appeal from Hardin County Common Pleas Court

Trial Court No. CVH 20211132

Judgment Affirmed

Date of Decision: May 22, 2023 

APPEARANCES:

Zachary D. Maisch for Appellant

Patrick Kasson and Mac P. Malone for Appellees
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ZIMMERMAN, J.

 

{¶1} Defendant/third-party plaintiff-appellant, Enoch Simon (“Simon”), 

appeals the August 23 and 30, 2022 judgments of the Hardin County Court of 

Common Pleas granting summary judgment in favor of plaintiff-appellee, the 

Blanchard Township Board of Trustees (Blanchard Township), and third-party 

defendants-appellees, Rob Wilson (“Wilson”), Mike Crist (“Crist”), Kevin 

Ridgeway (“Ridgeway”), and Thomas Jenkins (“Jenkins”) as to Simon’s 

counterclaims and third-party complaint. We affirm. 

{¶2} This case stems from the issuance and execution of two search warrants

at Simon’s property located at 1445 SR 68 in Dunkirk, Ohio. Simon’s property is 

zoned for agricultural use. 

{¶3} On December 11, 2019, Jenkins (in his capacity as the township-zoning

inspector) appeared before the trial court as the affiant on the affidavit for a search 

warrant for Simon’s property. Katey L Henson (“Henson”), a non-attorney 

employee of the Hardin County Prosecutor’s Office, and Wilson appeared with 

Jenkins. (See Doc. No. 44, Ex. B). Based on the evidence presented, the trial court 

issued a search warrant to Jenkins to enter Simon’s property. According to Wilson, 

Henson bolstered the township’s warrant request by presenting the trial court with 

pictures reflecting the condition of Simon’s property. (Wilson Depo. at 10).
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{¶4} As a result, Jenkins, Wilson, and Henson executed the search warrant 

at Simon’s property on December 16, 2019. Prior to executing the search warrant, 

Blanchard Township requested the assistance of law enforcement but was unable to 

obtain such assistance. 

{¶5} Jenkins returned the search warrant on December 16, 2019 along with 

a statement of his observations of the condition of Simon’s property relative to a 

possible zoning violation. In response, Simon removed all property identified as 

being a violation of “R.C. 505.87,” except for a boat, which was abated by the 

township.1 (Jenkins Depo. at 19, 22).

{¶6} Following that discord, Simon “began to erect * * * greenhouses [and 

a fence] on his property.” (Id. at 23). (See also id. at 26). Prior to beginning 

construction of the fence, Simon contacted Jenkins on March 9, 2020 inquiring 

whether Blanchard Township required a permit to erect a “non-farming” fence. (Id.

at 21). According to Jenkins, there were no “regulations at all about fences at that 

time in the zoning code.” (Id. at 22). Nevertheless, Blanchard Township amended 

its zoning resolution in December 2020. As a result of the zoning-resolution 

amendment, Jenkins sent Simon a letter explaining the amendments as they related 

to “[t]he fencing that he was building and the buildings that he was putting up” even 

though Simon was not in violation of any zoning code. (Id. at 26). 

1 Simon testified that the boat was on the property when the property was deeded to him. 
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{¶7} Nonetheless, in the spring of 2021, Blanchard Township developed

renewed concerns that Simon was using his property in a manner that was 

inconsistent with its agricultural designation. Specifically, based on his observation, 

Jenkins did not think that Simon was using the new, partially constructed structures 

for an agricultural use. According to Jenkins, “[o]ne was just for storing junk, and 

the one behind the fence, it didn’t even look like a building yet.” (Id. at 30). 

{¶8} Moreover, Wilson testified that the structures were visible from the 

road. Simon agreed that “some things are visible” from the road; however, he 

further testified that “some things are blocked out by a fence” and “half a building 

wall.” (Simon Depo. at 14). Importantly, Simon testified that “the only way to” 

ascertain the condition of his property is “to go on the property.” (Id. at 15).

{¶9} Based on Jenkins’s and Wilson’s observations, Blanchard Township 

elected to pursue another search warrant for Simon’s property. Specifically, Wilson 

testified that Blanchard Township’s purpose for seeking the search warrant was to 

“look[] to see if there were” any “zoning violations.” (Wilson Depo. at 19).

{¶10} To obtain the second search warrant, Wilson (in his capacity as a

township trustee), along with Henson, appeared before the trial court on August 3, 

2021. Wilson—the affiant on the affidavit for the second search warrant—averred 

that he “observed there to be structures that have been partially finished for six (6) 

months, garbage and debris, and excessive, overgrown vegetation” on Simon’s 
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property. (Doc. No. 39, Ex. L). Wilson further averred that such conditions “are 

evidence of” a violation of R.C. 505.87. Moreover, Wilson testified that the trial 

court was provided with new pictures depicting the condition of Simon’s property.

{¶11} Based on that evidence, the trial court issued the second search warrant 

to Wilson (and all assisting agencies) to search for evidence of a violation of R.C. 

505.87. (Doc. No. 39, Ex. M). Consequently, Wilson, Henson, and a lawenforcement officer (in plain clothing) entered Simon’s property on August 5, 2021 

to execute the search warrant. 

{¶12} Wilson returned the search warrant on August 5, 2021. In the searchwarrant return, Wilson stated that he observed “[e]xcessive [o]vergrown 

[v]egetation scattered throughout the perimeter of the property”; “[d]ebris 

(including but not limited to scrap metal, scrap wood, building materials scattered 

throughout, [and] farm equipment”; “[n]umerous brush and wood piles overgrown 

with weeds”; “[a]t least 3 junk motor” vehicles; and “2 partially built structures, one 

housing more junk and debris with no roof.” (Doc. No. 39, Ex. N.).

{¶13} Subsequently, on October 20, 2021, Blanchard Township filed a 

complaint in the trial court against Simon alleging claims for zoning-injunctive 

relief and requesting that the trial court declare the property a nuisance under R.C. 

505.87 and 505.871. On December 17, 2021, Simon filed an answer along with

counterclaims and a third-party complaint against Wilson, Crist, and Ridgeway, 
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individually and in their capacities as Blanchard Township trustees, and Jenkins, 

individually and in his capacity as the (former) Blanchard Township zoning 

inspector (collectively, “third-party defendants”). Simon alleged four 

counterclaims and third-party claims: (1) a violation of his civil rights by trespass

under 42 U.S.C. 1983; (2) violation of his civil rights by malicious prosecution

under 42 U.S.C. 1983; (3) conspiracy to violate civil rights under 42 U.S.C. 1983; 

and (4) conspiracy to interfere with civil rights under 42 U.S.C. 1985.2 Blanchard 

Township and the third-party defendants filed an answer on January 4, 2022.

{¶14} On July 1, 2022, Simon filed a motion in the trial court to suppress 

evidence—namely, “photographs and visual observation as included in the search 

warrant return of [Wilson] filed * * * on August 5, 2021.” (Doc. No. 39). In his 

motion, Simon argued that the search warrant issued by the trial court on August 3, 

2021 was invalid or defective. As a result, Simon claimed that search violated his 

Fourth Amendment Rights. The third-party defendants and Blanchard Township 

filed memoranda in opposition to Simon’s motion to suppress on July 14 and 22,

2022, respectively. 

{¶15} On August 12, 2022, the trial court denied Simon’s motion to suppress 

after concluding that “[a] motion to suppress is a procedure usable in a criminal 

2 On December 29, 2021, Simon removed his counterclaims and third-party complaint to federal court. 

However, on January 7, 2022, Simon’s counterclaims and third-party complaint was remanded to the trial 

court.
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case, but has no place in a civil case.” (Doc. No. 51). Nevertheless, the trial court, 

treating Simon’s motion as a motion in limine, denied the motion after concluding 

that the “motion is so vague as to be impossible to determine exactly what [Simon] 

is asking to disallow into evidence.” (Id.). Reaching that conclusion, the trial court 

reasoned that 

[i]t appears probable that all evidence obtained by a visual reviewing 

of [Simon’s] property * * * from the highway or the raised railroad 

bed adjacent to or near the property, would be admissible under the 

‘open fields’ doctrine. Case law has even extended this provision to 

allow the viewing of the premises while standing on complaining 

owner’s land.

(Id.). Likewise, the trial court concluded that “Simon has not specifically designated 

which photos or other evidence he believes would not have been obtainable by the 

‘open fields’ doctrine.” (Id.).

{¶16} On July 1, 2022, Blanchard Township filed a motion for summary 

judgment, arguing that there is no genuine issue of material fact that Simon’s 

constitutional and civil rights were not violated because the search warrants were 

validly issued. That same day, the third-party defendants filed a motion for 

summary judgment as to Simon’s counterclaims and third-party complaint, arguing 

that there is no genuine issue of material fact that Simon’s rights were not violated. 

On July 25, 2022, Simon filed his memorandum in opposition to Blanchard 

Township’s and the third-party defendants’ motions for summary judgment. The 
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third-party defendants filed their reply to Simon’s memorandum in opposition to 

their motion for summary judgment on July 26, 2022. 

{¶17} That same day, the trial court conducted a hearing during which it 

permitted the parties to present arguments relative to Blanchard Township’s and the 

third-party defendants’ motions for summary judgment. On August 23, 2022, the 

trial court granted summary judgment in favor of Blanchard Township and the thirdparty defendants. Specifically, the trial court concluded that “the civil search 

warrants issued [in this case] were not ‘bogus’ and were properly executed.” (Doc. 

No. 52). Likewise, the trial court concluded that Simon “provided no facts, nor case 

law, nor statutory law to support his specific claims of violation of his civil rights 

nor malicious prosecution, nor even that this property was being used in compliance 

with the Blanchard Township building regulations.” (Id.). Consequently, the trial 

court dismissed Simon’s counterclaims and third-party complaint.

{¶18} On August 24, 2022, Simon filed a motion requesting that the trial 

court reconsider its decision granting summary judgment in favor of Blanchard 

Township and the third-party defendants. In his motion, Simon argued that the trial 

court incorrectly concluded that Simon did not file a response to the motions for 

summary judgment. On August 25, 2022, the third-party defendants filed a 

memorandum in opposition to Simon’s motion for reconsideration. However, 

realizing its oversight, on August 30, 2022, the trial court reconsidered its decision 
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granting summary judgment in favor of Blanchard Township and the third-party 

defendants, yet reached the same result. (Doc. No. 56).

{¶19} On August 31, 2022, Simon filed a motion requesting that the trial 

court certify its decision under Civ.R. 54(B), which the trial court denied on 

September 1, 2022.

{¶20} On September 22, 2022, the parties entered into an agreed entry 

settling the case. (Doc. No. 63). In the agreed entry, Simon agreed to “petition the 

appropriate authorities to reclassify the property from A-1 Agricultural to general 

commercial C-1”; remove “junk, debris piles that have nothing to do with the 

construction of green houses or Quonset structures”; to mow the grass “to prevent 

an obnoxious weed issue”; and to remove “all junk motor vehicles [and] trailers or 

semi-trailers.” (Id.).

{¶21} Simon filed his notice of appeal on October 21, 2022. He raises two 

assignments of error for our review, which we will address together.

Assignment of Error No. I

The trial court erred in granting summary judgment and 

dismissing the Counterclaim/Third-party Complaint since two 

civil search warrants and resultant searches and confiscated 

evidence were not properly authorized under the law and were a 

violation of defendant’s constitutional rights against 

governmental intrusion onto private property.
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Assignment of Error No. II

The trial court erred in granting plaintiff and third-party 

defendants [sic] summary judgment and dismissing the 

Counterclaim/Third-party Complaint in applying the “open 

fields” doctrine to justify the governmental intrusion onto 

defendant’s real property and the confiscation of evidence.

{¶22} In his assignments of error, Simon argues that the trial court erred by 

granting summary judgment in favor of Blanchard Township and the third-party 

defendants. Specifically, Simon argues that the trial court erred by concluding that 

there is no genuine issue of material fact that his constitutional and civil rights were 

not violated because the warrants were validly issued in this case.

Standard of Review

{¶23} We review a decision to grant summary judgment de novo. Doe v. 

Shaffer, 90 Ohio St.3d 388, 390 (2000). “De novo review is independent and 

without deference to the trial court’s determination.” ISHA, Inc. v. Risser, 3d Dist. 

Allen No. 1-12-47, 2013-Ohio-2149, ¶ 25, citing Costner Consulting Co. v. U.S. 

Bancorp, 195 Ohio App.3d 477, 2011-Ohio-3822, ¶ 10 (10th Dist.). Summary 

judgment is proper where there is no genuine issue of material fact, the moving party 

is entitled to judgment as a matter of law, and reasonable minds can reach but one 

conclusion when viewing the evidence in favor of the non-moving party, and the 

conclusion is adverse to the non-moving party. Civ.R. 56(C); State ex rel. Cassels 

v. Dayton City School Dist. Bd. of Edn., 69 Ohio St.3d 217, 219 (1994).
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{¶24} “The party moving for summary judgment has the initial burden of 

producing some evidence which demonstrates the lack of a genuine issue of material 

fact.” Carnes v. Siferd, 3d Dist. Allen No. 1-10-88, 2011-Ohio-4467, ¶ 13, citing 

Dresher v. Burt, 75 Ohio St.3d 280, 292 (1996). “In doing so, the moving party is 

not required to produce any affirmative evidence, but must identify those portions 

of the record which affirmatively support his argument.” Id., citing Dresher at 292.

“The nonmoving party must then rebut with specific facts showing the existence of 

a genuine triable issue; he may not rest on the mere allegations or denials of his 

pleadings.” Id., citing Dresher at 292 and Civ.R. 56(E).

Analysis

{¶25} In this case, the trial court granted summary judgment on August 23 

and 30, 2022 in favor of Blanchard Township and the third-party defendants as to 

Simon’s counterclaims and third-party complaint after concluding that there is no 

genuine issue of material fact that Simon’s constitutional or civil rights were not 

violated. Specifically, the trial court concluded that “the civil search warrants were 

not ‘bogus’, and that same were properly presented, granted and executed.” (Doc. 

No. 56). Likewise, the trial court concluded that “[t]he ‘open fields’ doctrine * * * 

applies in its simplest form” because there was “no evidence” that “the Township 

required any other inspection than a visual inspection from the properties adjacent 

to [Simon’s] property, or the railroad bed.” (Id.).
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{¶26} Here, Simon argues there are genuine issues of material fact that

remain as to whether Blanchard Township and the third-party defendants violated 

his constitutional and civil rights. Specifically, Simon contends that genuine issues 

of material fact remain as to whether Blanchard Township and the third-party 

defendants violated his Fourth Amendment rights. See Trubiani v. Graziani, 9th 

Dist. Medina No. 2874-M, 2000 WL 14043, *4 (Dec. 29, 2000) (noting that 

Trubiani based his Section 1983 claim on “his Fourth Amendment right to be free 

from a warrantless search and seizure”). 

{¶27} 42 U.S.C. 1983 provides, in its relevant part, that

“Every person who, under color of any statute, ordinance, regulation, 

custom, or usage, of any State * * *, subjects, or causes to be 

subjected, any citizen of the United States * * * to the deprivation of 

any rights, privileges, or immunities secured by the Constitution and 

laws, shall be liable to the party injured in an action at law, suit in 

equity, or other proper proceeding for redress.”

Harvey v. Republic Servs. of Ohio II, L.L.C., 5th Dist. Stark No. 2007 CA 00278, 

2009-Ohio-1343, ¶ 68, quoting 42 U.S.C. 1983. See also Ramey v. Mudd, 154 Ohio 

App.3d 582, 2003-Ohio-5170, ¶ 21 (4th Dist.) (“Municipalities and other local 

governments are included among those ‘persons’ to whom Section 1983 applies.”). 

“[T]he purpose of Section 1983 [is] providing ‘a remedy for violations of 

substantive rights created by the United States Constitution or federal statute.” 

Mayes v. Columbus, 124 Ohio App.3d 411, 415 (10th Dist.1997). See also Trubiani 
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at *4 (noting that Section 1983 claim “is limited, however, to deprivations of federal 

constitutional or statutory rights”). 

{¶28} “To establish a Section 1983 claim, a plaintiff must show that (1) the 

conduct in question was committed by a person acting under color of state law, and 

(2) the conduct deprived the plaintiff of rights, privileges or immunities secured by 

the United States Constitution or other federal law.” Harvey at ¶ 69. See also Ramey

at ¶ 21 (noting that “when the execution of a government’s policy or custom, 

whether made by lawmakers or by those whose edicts or acts may fairly be said to 

represent official policy, inflicts the injury, the government may be responsible 

under Section 1983.”). 

{¶29} We will begin by addressing Simon’s argument that Blanchard 

Township and the third-party defendants violated his constitutional and civil rights 

because the search warrants were defective or invalid. “The Fourth Amendment to 

the United States Constitution, applied to the states through the Fourteenth 

Amendment, provides that ‘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.’” State v. Harrington, 10th Dist. 

Franklin No. 14AP-571, 2015-Ohio-2492, ¶ 7, quoting the Fourth Amendment to 

the U.S. Constitution. “The Ohio Constitution contains a nearly identical 

provision.” Id., citing Ohio Constitution, Article I, Section 14. 
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{¶30} “The Fourth Amendment to the Constitution of the United States 

protects against unreasonable searches and seizures.” Huber Hts. v. Liakos, 145 

Ohio App.3d 35, 48 (2d Dist.2001). “The reasonableness of a search depends on 

the totality of the circumstances in each case.” Id. “Probable cause exists when 

there are reasonable grounds for a belief of guilt that is particularized with respect 

to the person, place, or items to be seized.” Dawson v. Richmond Hts., 8th Dist. 

Cuyahoga No. 105938, 2018-Ohio-1301, ¶ 15. “The existence of probable cause is 

determined by analyzing the totality of the circumstances surrounding the 

governmental intrusion and involves a practical, common-sense review of the facts 

available to the government actor at the time of the search or seizure.” Id.

{¶31} “The United States Supreme Court has applied the principle that ‘a 

search of private property without proper consent is ‘unreasonable’ unless it has 

been authorized by a valid search warrant’ * * * .” State v. Griesbaum, 11th Dist. 

Ashtabula No. 2017-A-0029, 2017-Ohio-8363, ¶ 20, quoting Camara v. Mun. Court 

of San Francisco, 387 U.S. 523, 528-529, 87 S.Ct. 1727 (1967). See also See v. 

Seattle, 387 U.S. 541, 543, 87 S.Ct. 1737 (1967) (noting that the inspection of 

private property by a government official is presumptively unreasonable under the 

Fourth Amendment if such search is conducted without a warrant). “In addition, 

‘[t]o be reasonable under the Fourth Amendment, a search ordinarily must be based 
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on individualized suspicion of wrongdoing.’” Griesbaum at ¶ 20, quoting Chandler 

v. Miller, 520 U.S. 305, 313, 117 S.Ct. 1295 (1997).

“The warrant procedure is designed to guarantee that a decision to 

search private property is justified by a reasonable governmental 

interest. But reasonableness is still the ultimate standard. If a valid 

public interest justifies the intrusion contemplated, then there is 

probable cause to issue a suitably restricted search warrant.” 

Id., quoting Camara at 539. See also Dawson at ¶ 18 (noting that the issuing court 

“could properly consider the conditions of the * * * property, as well as the 

conditions of surrounding neighborhood properties, to determine whether probable 

cause existed to believe that conditions on [the] property were or could become 

hazardous to the public health, safety, or welfare”).

{¶32} “‘“Administrative searches are ‘significant intrusions upon the 

interests protected by the Fourth Amendment,’ and generally require that a 

government official possess ‘a suitably restricted search warrant.””” Baughman v. 

Bd. of Zoning Appeals for Harrison Twp., 3d Dist. Logan No. 8-01-27, 2002-Ohio3931, ¶ 19, quoting Huber Hts. v. Liakos, 145 Ohio App.3d 35, 48 (2d Dist.2001), 

quoting J.L. Spoons, Inc. v. Brunswick, 49 F.Supp.2d 1032, 1040 (N.D.Ohio 1999), 

quoting Camara at 534. See also Dawson at ¶ 16 (“The Fourth Amendment 

protections extend to administrative searches.”). However, “[p]robable cause to 

issue an administrative warrant for entry into premises is the subject of a flexible 

standard of reasonableness given the agency’s particular demand for access and the 
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public need for effective enforcement of the regulation involved.” State v. Finnell, 

115 Ohio App.3d 583, 589 (1st Dist.1996). See also Dawson at ¶ 16 (noting that 

“the evidence of a specific violation required to establish administrative probable 

cause must ‘show that the proposed inspection is based upon a reasonable belief that 

a violation has been or is being committed’”), quoting W. Point-Pepperell, Inc. v. 

Donovan, 689 F.2d 950, 958 (11th Cir.1982); Camara at 535 (“In determining 

whether a particular inspection is reasonable—and thus is determining whether 

there is probable cause to issue a warrant for that inspection—the need for the 

inspection must be weighed in terms of these reasonable goals of code 

enforcement.”). Importantly, “‘the decision to enter and inspect will not be the 

product of the unreviewed discretion of the enforcement officer.’” Finnell at 589, 

quoting See at 543. 

{¶33} “[I]n Ohio, search warrants are issued according to the authority in 

R.C. 2933.21 through 2933.25, and Crim.R. 41.” State v. Wilkes, 6th Dist. Wood 

No. WD-19-087, 2020-Ohio-5292, ¶ 11. See also Alton v. Beightler, N.D.Ohio No. 

1:07CV3799, 2009 WL 112828, *9 (Jan. 15, 2009) (noting that Crim.R. 41(A) sets 

“forth the rules governing search warrants in Ohio”). Specifically, “R.C. 

2933.21(F) permits a judge to issue warrants permitting a search for existing or 

potential physical conditions hazardous to the public health, safety, or welfare.” 

Dawson at ¶ 18. “R.C. 2933.22(B) goes on to state that “a warrant of search * * * 
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shall issue only upon probable cause to believe that conditions exist upon such 

property which are or may become hazardous to the public safety.” State v. 

Campana, 11th Dist. Lake No. 9-180, 1983 WL 6068, *1 (Dec. 30, 1983). Under 

“Crim.R. 41(B), a search warrant may be issued to seize evidence concerning the 

commission of a crime.” (Emphasis sic.) State ex rel. Gains v. Go Girls Cabaret, 

Inc., 187 Ohio App.3d 356, 2010-Ohio-870, ¶ 32 (7th Dist.). 

{¶34} Based on our review of the search warrants at issue in this case, we 

conclude that they are invalid. In particular, our review of the search warrants 

reveals that neither warrant was requested by a prosecuting attorney or a law 

enforcement officer and neither warrant was issued to a law enforcement officer.

{¶35} Indeed, Crim.R. 41 provides, under the “[a]uthority to issue [a] 

warrant,” that such warrant my issue “[u]pon the request of a prosecuting attorney

or a law enforcement officer.” (Emphasis added.) Crim.R. 41(A). See State v. 

Morgan, 12th Dist. No. CA2013-08-146, 2014-Ohio-2472, ¶ 12; State v. Balduff, 

6th Dist. Huron No. H-92-029, 1993 WL 24483, *3 (Feb. 5, 1993).

{¶36} Likewise, the rule requires that the warrant “be directed to a law 

enforcement officer.” Crim.R. 41(A). Accord United States v. Powell, N.D.Ohio 

No. 3:19-CR-216, 2020 WL 2199758, *2 (May 6, 2020) (“Ohio law requires that a 

search warrant be issued by a judge to a law enforcement officer.”). See also State 

v. Harrison, 20 Ohio Misc. 282, 287 (C.P.1969) (“The use of the term ‘A warrant 
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for search shall be directed to the proper officer’ in section 2933.24, Ohio Revised 

Code, indicates that the legislature intended that the search warrant should be 

executed and the search made by a sheriff, constable or police officer in the area of 

their respective territorial jurisdictions”); R.C. 2933.24 (requiring that “[a] search 

warrant shall be directed to the proper law enforcement officer or other authorized 

individual”); R.C. 2935.12(A) (describing an “other authorized individual” as 

possessing the authority to arrest).

{¶37} “This requirement means that the issuing judge, after determining that 

probable cause exists to search, must issue the warrant to a * * * law enforcement 

officer and only to a law enforcement officer.” (Emphasis sic.) State v. Klein, 6th 

Dist. Wood No. 84-CR-106, 1985 WL 7095, *17 (Apr. 12, 1985) (Handwork, J., 

dissenting). See also Powell at *2 (“While a state law enforcement officer must 

execute a search warrant issued by an Ohio court, that officer may be accompanied 

by an individual who does not fall within the definition of ‘law enforcement 

officer.’”), quoting State v. Joiner, 8th Dist. Cuyahoga No. 81394, 2003-Ohio-3324, 

¶ 15. 

{¶38} Based on our review of the search warrants at issue in this case, we 

conclude that neither warrant was requested by a prosecuting attorney or a law 

enforcement officer and neither warrant was issued to a law enforcement officer. 

That is, the persons requesting the search warrants in this case or to whom the 
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warrants were issued—Jenkins, Wilson, and Henson—are neither a prosecuting 

attorney nor a law enforcement officer. 

{¶39} Under the Revised Code, a “‘[p]rosecutor’ includes the county 

prosecuting attorney and any assistant prosecutor designated to assist the county 

prosecuting attorney, * * * or any attorney designated by the prosecuting attorney 

of the county to appear for the prosecution of a given case.” R.C. 2935.01(C) (2016)

(current version at R.C. 2935.01(C) (2023)). See also R.C. 2933.231(A)(2). A 

“‘[p]rosecuting attorney’ means the attorney general of this state, the prosecuting 

attorney of a county, the law director, city solicitor, or other officer who prosecutes 

a criminal case on behalf of the state or a city, village, township, or other political 

subdivision, and the assistant or assistants of any of them.” Crim.R. 2(G).

{¶40} Further, the Revised Code defines a “[l]aw enforcement officer” as 

any of the following:

(a) A sheriff, deputy sheriff, constable, police officer of a township 

or joint police district, marshal, deputy marshal, municipal police 

officer, member of a police force employed by a metropolitan housing 

authority under division (D) of section 3735.31 of the Revised Code, 

or state highway patrol trooper;

(b) An officer, agent, or employee of the state or any of its agencies, 

instrumentalities, or political subdivisions, upon whom, by statute, a 

duty to conserve the peace or to enforce all or certain laws is imposed 

and the authority to arrest violators is conferred, within the limits of 

that statutory duty and authority;

(c) A mayor, in the mayor’s capacity as chief conservator of the 

peace within the mayor’s municipal corporation;
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(d) A member of an auxiliary police force organized by county, 

township, or municipal law enforcement authorities, within the scope 

of the member’s appointment or commission;

(e) A person lawfully called pursuant to section 311.07 of the 

Revised Code to aid a sheriff in keeping the peace, for the purposes 

and during the time when the person is called;

(f) A person appointed by a mayor pursuant to section 737.10 of the 

Revised Code as a special patrolling officer during riot or emergency, 

for the purposes and during the time when the person is appointed;

(g) A member of the organized militia of this state or the armed 

forces of the United States, lawfully called to duty to aid civil 

authorities in keeping the peace or protect against domestic violence;

(h) A prosecuting attorney, assistant prosecuting attorney, secret 

service officer, or municipal prosecutor;

(i) A veterans’ home police officer appointed under section 5907.02 

of the Revised Code;

(j) A member of a police force employed by a regional transit 

authority under division (Y) of section 306.35 of the Revised Code;

(k) A special police officer employed by a port authority under 

section 4582.04 or 4582.28 of the Revised Code;

(l) The house of representatives sergeant at arms if the house of 

representatives sergeant at arms has arrest authority pursuant to 

division (E)(1) of section 101.311 of the Revised Code and an 

assistant house of representatives sergeant at arms;

(m) The senate sergeant at arms and an assistant senate sergeant at 

arms;

(n) A special police officer employed by a municipal corporation at 

a municipal airport, or other municipal air navigation facility, that has 

scheduled operations, as defined in [the Code of Federal Regulations], 
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and that is required to be under a security program and is governed by 

aviation security rules of the transportation security administration of 

the United States department of transportation * * * .

R.C. 2901.01(A)(11) (2019) (current version at R.C. 2901.01(A)(11) (2023)). See 

R.C. 2933.231(A)(1). See also Klein at *17 (specifying, in relevant part, that “[a]

statutory power of arrest * * * is given to police officers under R.C. 2935.03”).

{¶41} Likewise, Crim.R. 2 defines a “[l]aw enforcement officer” as 

“a sheriff, deputy sheriff, constable, municipal police officer, marshal, 

deputy marshal, or state highway patrolman, and also means any 

officer, agent, or employee of the state or any of its agencies, 

instrumentalities, or political subdivisions, upon whom, by statute, the 

authority to arrest violators is conferred, when the officer, agent, or 

employee is acting within the limits of statutory authority.”3 

(Emphasis added.) Crim.R. 2(J).

{¶42} Consequently, as a (non-attorney) employee of the prosecutor’s office, 

Henson is not a prosecuting attorney or a law enforcement officer. Furthermore, 

neither Jenkins (in his capacity as a zoning inspector) nor Wilson (in his capacity as 

a township trustee) are a law enforcement officer. See 1998 Ohio Atty.Gen.Ops. 

No. 98-018, at paragraph two of the syllabus (“A township zoning inspector is not 

a ‘[l]aw enforcement officer’ under R.C. 2901.01(A)(11) or [Crim.R.] 2(J).”). 

{¶43} Therefore, neither Jenkins, nor Wilson, nor Henson had the authority 

to request a search warrant or were individuals to whom a search warrant could be 

3

“The definition of ‘law enforcement officer’ contained in this rule shall not be construed to limit, modify, 

or expand any statutory definition, to the extent the statutory definition applies to matters not covered by the 

Rules of Criminal Procedure.” Crim.R. 2(J).
Case No. 6-22-17

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properly directed. Compare Klein, 1985 WL 7095 at *18 (concluding that a BCI 

agent “was not a ‘law enforcement officer’ to whom a search warrant could be 

properly directed”); State v. Martins Ferry Eagles, 62 Ohio Misc. 3, 6 (C.P.1979) 

(concluding that “[a] secret service officer appointed by the prosecuting attorney 

does not have statutory authority to arrest and thus is not a law enforcement officer 

under Crim.R. 2 for the purpose of receiving and executing a search warrant under 

Crim.R. 41”); Campana, 1983 WL 6068, at *1 (concluding that the search warrant 

was invalid under Crim.R. 41(C) because it “was not ‘directed to a law enforcement 

officer’”; rather, it “was issued to the Health Commissioner” and “[t]here is no 

statutory authority authorizing issuance to the Health Commissioner”), quoting 

Crim.R. 41(C).

{¶44} Importantly, neither Jenkins, nor Wilson, nor Henson had any 

authority to arrest (beyond that of a private citizen) Simon. See Klein at *18; 

Morgan, 2014-Ohio-2472, at ¶ 12 (suggesting that, to constitute a law enforcement 

officer under Crim.R. 41(A), such person must have the authority to arrest). See 

also 1998 Ohio Atty.Gen.Ops. No. 98-018 at *6 (expressing that “no provision 

within the Revised Code authorizes a township zoning inspector to make arrests 

while enforcing township zoning regulations”).

{¶45} For these reasons, we conclude that the search warrants issued in this 

case were invalid. Nevertheless, our inquiry does not end there. Accord State v. 
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Hardy, 2d Dist. Montgomery No. 16964, 1998 WL 543368, *4 (Aug. 28, 1998) 

(“Finding a violation of Crim.R. 41(A), however, does not end our inquiry into

whether the evidence obtained pursuant to the defective search warrant should have 

been suppressed.”).

{¶46} “‘The exclusionary rule operates to exclude evidence obtained by the 

government in violation of the United States Constitution.’” State v. Hoffman, 6th

Dist. Lucas No. L-12-1262, 2013-Ohio-1082, ¶ 20, quoting State v. Helton, 160 

Ohio App.3d 291, 2005-Ohio-1789, ¶ 14 (11th Dist.). “‘The purpose of this rule is 

to deter police misconduct.’” Id., quoting Helton at ¶ 14. “‘The exclusionary rule 

reaches not only primary evidence obtained as a direct result of an illegal search or 

seizure, but also evidence that is subsequently discovered and derivative of that prior 

illegality.’” Id., quoting State v. McLemore, 197 Ohio App.3d 726, 2012-Ohio-521, 

¶ 20 (2d Dist.). Consequently, “‘[t]he derivative-evidence rule, or fruit-of-thepoisonous-tree doctrine as it is widely known, requires suppression of evidence that 

was seized in a seemingly lawful manner but about which police learned because of 

a prior constitutional violation such as an illegal search or seizure.’” Id., quoting 

McLemore at ¶ 20.

{¶47} “The exclusionary rule is not a personal right or a means to redress 

constitutional injury; rather, it is used to deter future violations.” Id. at ¶ 23. “[T]he 

exclusionary rule generally applies where police exhibit ‘“deliberate,” “reckless,” 
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or “grossly negligent”’ disregard for Fourth Amendment rights, * * * ” but not 

‘when the police act with an objectively “reasonable good-faith belief” that their 

conduct is lawful.’” Id., quoting Davis v. United States, 564 U.S. 229, 131 S.Ct. 

2419 (2011), paragraph a of the syllabus. “Finally, if the police ‘conduct involves 

only simple, isolated negligence,’ the deterrence rationale loses much of its force,

‘and exclusion cannot “pay its way.”’” Id., quoting Davis at paragraph a of the 

syllabus, quoting United States v. Leon, 468 U.S. 897, 907, 104 S.Ct. 3405 (1984), 

fn. 6.

{¶48} “The exclusionary rule does not apply to evidence police obtain in 

good faith in reliance on the validity of a warrant.” Id. at ¶ 22. “Under the good 

faith exception, we are to uphold searches when police reasonably and in good faith 

relied upon a warrant subsequently declared to be invalid, because excluding 

evidence under such circumstances would not deter police misconduct.” Id., citing 

Leon at syllabus and State v. Wilmoth, 22 Ohio St.3d 251 (1986), paragraph one of 

the syllabus.

{¶49} Further, “‘[o]nly a “fundamental” violation of Rule 41 requires 

automatic suppression, and a violation is “fundamental” only where it, in effect, 

renders the search unconstitutional under traditional fourth amendment standards.’” 

Alton, 2009 WL 112828, at *8, quoting United States v. Luk, 859 F.2d 667, 671 (9th 

Cir.1988). See also State v. Jacob, 185 Ohio App.3d 408, 2009-Ohio-7048, ¶ 20
Case No. 6-22-17

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(2d Dist.). “‘Violations of Rule 41 which do not arise to constitutional error are 

classified as “non-fundamental.”’” Alton at *8, quoting Luk at 671. “‘“Nonfundamental” noncompliance with Rule 41 requires suppression only where: “(1) 

there was ‘prejudice’ in the sense that the search might not have occurred or would 

not have been so abrasive if the Rule had been followed, or (2) there is evidence of 

intentional and deliberate disregard of a provision in the Rule.”’” Id., quoting Luk

at 671, quoting United States v. Vasser, 648 F.2d 507, 510 (9th Cir.1980). See

Joiner, 2003-Ohio-3324, at ¶ 16. See also Morgan, 2014-Ohio-2472, at ¶ 15 

(observing that “‘[a]bsent a legislative mandate requiring its application, the 

exclusionary rule will not be applied to statutory violations falling short of 

constitutional violations.’”), quoting State v. Turner, 12th Dist. Butler No. CA91-

10-165, 1992 WL 121685, *2 (June 1, 1992). 

{¶50} Based on the evidence presented, we conclude that the search-warrant 

deficiencies are not fundamental violations because they are “not a violation of 

constitutional magnitude.” Wilmoth at 264. See also Hardy, 1998 WL 543368, at 

*5 (“In general, Ohio courts have concluded that evidence obtained in violation of 

Crim.R. 41 need not be suppressed.”). Critically, Simon was not prejudiced by the 

search and that there is no evidence of an intentional and deliberate disregard for 

the rule. See Morgan at ¶ 15 (noting that that “the Morgans have failed to provide 

any evidence that they were somehow prejudiced by [the] alleged [Crim.R. 41] 
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violation”); Wilmoth at 264 (concluding that “there is no evidence of prejudice and 

the [Crim.R. 41] violation was not intentional”). See also Klein, 1985 WL 7095, at 

*4; Alton at *8. 

{¶51} Furthermore, notwithstanding the invalidity of the search warrants at 

issue in this case, they were not deficient for purposes of probable cause sufficient 

for an administrative search. See Klein at *17 (Handwork, J., dissenting) (analyzing 

that the “invalidity did not render the search warrant deficient for purposes of 

probable cause to search, because that is a different issue”). Importantly, an invalid 

search warrant is “harmless if the affidavit would have established probable cause 

when the omissions are taken into consideration.” United States v. Skeddle, 989 

F.Supp. 870, 872 (N.D.Ohio 1996). See also Morgan at ¶ 15 (concluding that 

Crim.R. 41 violations “merely constitute a technical, ‘non-fundamental’ violation 

of the rule”); Joiner at ¶ 16 (“If the error in the search warrant is not constitutional 

in nature, it is non-fundamental.”). 

{¶52} Apart from the deficiencies, the evidence presented to the trial court 

to corroborate the search warrants was sufficient to establish probable cause 

sufficient for an administrative search. Indeed, considering the totality of the 

circumstances of the intrusion in this case, the search warrants reasonably related to 

Blanchard Township’s particularized need to access Simon’s property for the 

effective enforcement at its zoning regulations. See Camara, 387 U.S. at 538-539.
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Notwithstanding that standard, the search warrants nevertheless particularly 

described the place to be searched and the things to be seized. Compare Alton at *8 

(repeating that the “search warrant at issue was otherwise constitutional—there was 

probable cause to search and the warrant described ‘with particularity the place to 

be searched and the items to be seized’”), quoting United States v. Freeman, 897 

F.2d 346, 350 (8th Cir.1990). In other words, the record reveals that the proof 

provided to the trial court in support of the search warrants demonstrated 

“reasonable grounds for a belief of guilt that is particularized with respect to the 

person, place, or items to be seized.” Dawson, 2018-Ohio-1301, at ¶ 15.

{¶53} As a result, because these violations constitute “a technical, ‘nonfundamental’ violation of Crim.R. 41(A) [and the Revised Code], the exclusionary 

rule simply does not apply here.” Morgan at ¶ 15. See Alton at *8 (noting that “‘the 

exclusionary rule should not be applied to a warrant improperly issued to and 

executed by an officer lacking authority under Rule 41’”), quoting Luk at 671; Klein

at *19 (confirming that “the use of the exclusionary rule is not the appropriate 

remedy for a violation of the rules of criminal procedure” or “for a violation of state 

statutory law”). See also Wilmoth at 262 (affirming that “the policy that the 

exclusionary rule would not be applied to statutory violations falling short of 

constitutional [sic] violations, absent a legislative mandate requiring the application 
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of the exclusionary rule”). As a result, we conclude that Simon’s Fourth 

Amendment rights were not violated under the facts presented.

{¶54} “Because we find no error of constitutional magnitude, we need not 

reach the issue of whether the good faith exception” applies in this case. Hardy, 

1998 WL 543368, at *6. “However, it should be obvious that ‘good faith’ has been 

a consideration in our decision to affirm.” Id. That is, “even ‘non-fundamental’ 

Crim.R. 41 violations require suppression where ‘there is evidence of intentional 

and deliberate disregard of a provision in the Rule,’” which are not present in this 

case. Id., quoting Vasser, 648 F.2d at 510.

{¶55} Nevertheless, Simon argues that the trial court erred by applying the 

open-fields doctrine to justify the intrusion. Under the open-fields doctrine, “even 

though there [is] a trespass by police officers, no illegal search or seizure occur[s] 

because the Fourth Amendment protection afforded to people in their ‘persons, 

homes, papers, and effects’ is not extended to ‘open fields.’” State v. Woolley, 5th 

Dist. Ashland No. 16-COA-003, 2017-Ohio-576, ¶ 28, quoting Hester v. United 

States, 265 U.S. 57, 59, 44 S.Ct. 445 (1924). That is, “[g]overnment intrusion upon 

open fields is not an ‘unreasonable search’ as proscribed by the Fourth 

Amendment.” Id. See also State v. Vondenhuevel, 3d Dist. Logan No. 8-04-15, 

2004-Ohio-5348, ¶ 10 (announcing that “no expectation of privacy legitimately 

attaches to open fields”). However, because we conclude that the Crim.R. 41 (and 
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corresponding Revised Code) violations do not rise the level of a constitutional 

violation (invoking the exclusionary rule), we need not address whether the openfields doctrine applies in this case. See Hardy at *6.

{¶56} Because we conclude that Simon’s Fourth Amendment rights were not 

violated in this case, we conclude that there is no genuine issue of material fact that 

neither Blanchard Township nor the third-party defendants violated Simon’s

constitutional or civil rights. See FRC Project, L.L.C. v. Canepa Media Sols., Inc., 

8th Dist. Cuyahoga No. 97845, 2013-Ohio-259, ¶ 14 (concluding that “there has 

been no deprivation of any right”); Linley v. DeMoss, 83 Ohio App.3d 594, 600 

(10th Dist.1992) (concluding that to “the extent that plaintiffs’ Section 1983 claim 

is based upon an alleged Fourth Amendment tort, it fails the objective 

reasonableness standard”). Consequently, “there can be no successful Section 1983 

action.” FRC Project at ¶ 14. See also Trubiani, 2000 WL 14043, at *5. Therefore, 

the trial court did not err by granting summary judgment in favor of Blanchard 

Township and the third-party defendants.

{¶57} Simon’s assignments of error are overruled.

{¶58} Having found no error prejudicial to the appellant herein in the 

particulars assigned and argued, we affirm the judgments of the trial court.

Judgments Affirmed

MILLER, P.J. and WALDICK, J., concur.