S.D.Ohio: Nexus was lacking for def’s cell phone for evidence of rape, but GFE applies

“Unlike the officers in Hodson and Neuhard, however, the officers in this case were not seeking evidence of child pornography. Instead, the Detective’s affidavit sought evidence related to ‘Rape 2907.02, Gross Sexual Imposition 2907.05.’ … A commonsense review of the affidavit does, in fact, suggest a fair probability that evidence of child rape and gross sexual imposition will be found, but it does not demonstrate a likelihood it will be found in the place to be searched, Surgener’s black iPhone. Unlike the affidavit in Neuhard, the affidavit here makes no mention that a phone or similar electronic device was used as part of the sexual assault. Accordingly, the Court must conclude that the search warrant here lacks probable cause because the affidavit fails to demonstrate the required nexus between the alleged rape/gross sexual imposition of Minor Victim B and Surgener’s black iPhone.” Nevertheless, the good faith exception saves this search. United States v. Surgener, 2020 U.S. Dist. LEXIS 186780 (S.D. Ohio Oct. 6, 2020).