State v. Tolbert (amicus)

Law enforcement is increasingly using artificial intelligence, including facial recognition technology to investigate crimes. However, the use of such technology to identify a suspect is akin to relying on an anonymous informant, which in and of itself is insufficient to establish probable cause.

On the evening of February 14, 2024, a man was approached from behind, robbed and shot, before his assailant fled on foot. The victim walked home but unfortunately died in his apartment. Although the murder was captured on a surveillance camera, the picture was not clear enough for the police to identify anyone, and the police had no suspect for the first five days of their investigation. Police then watched surveillance cameras in the neighborhood record a man later identified as Qeyeon Tolbert leave his apartment, roughly a block from where the murder happened, and walk to a nearby convenience store. Police claimed this man looked like the same one captured in the surveillance footage of the murder.

Cleveland police took this video footage to the Northeast Ohio Regional Fusion Center, an interagency law enforcement intelligence group, to identify the person in the video. The Fusion Center ran an artificial intelligence (AI) powered facial recognition search through a technology company named Clearview AI, which turned up 8 photos, 2 of which were pictures of Mr. Tolbert, along with his name and other identifying information. Police used this information to seek a search warrant from a judge to search Mr. Tolbert’s house.

To obtain such a warrant, the judge must determine whether there is probable cause that a person linked to the location to be searched committed a crime. The police affidavit indicated that the Fusion Center had identified Mr. Tolbert as a suspect, but did not disclose that police had used facial recognition technology in their identification, or that the search revealed several other photos of other individuals in addition to Tolbert.

The search warrant was issued and the police searched Mr. Tolbert’s apartment and found a handgun, among other evidence. Mr. Tolbert was thereafter charged with murder and a criminal trial ensued. Mr. Tolbert’s attorneys argued that the search warrant was not based on probable cause and should not have issued because facial recognition technology is not admissible in court. Clearview AI even issues a disclaimer on their website stating as much. They argued that the identification of Tolbert was akin to an anonymous informant, which in and of itself is insufficient to establish probable cause.

The judge agreed and suppressed any evidence found as a result of the invalid search warrant. Prosecutors have appealed the court’s ruling to the 8th District Court of Appeals.

Facial recognition technology (FRT) results are fundamentally unreliable because of well-known technical limitations, racially disparate false-match rates, and human operator errors. Furthermore, the detective’s concealment of the use of FRT and representation that there had been an “identification” were materially false and misleading, and thus should require suppression because absent this “identification”, the remaining facts in the affidavit cannot establish probable cause.

The prosecutor filed an appeal of the suppression order on January 14, 2025. On February 18 the Court set the due date for Appellant’s brief on March 10. After Appellee received an extension, we filed our amicus brief on April 4. The Appellant prosecutor filed a reply brief on April 14. The court held oral argument on August 22, 2025. We filed a motion to participate in oral argument on July 29, but that request was denied.

Following oral argument, the Eighth District Appeals Court entered an opinion on September 25, reversing and remanding the trial court decision. The appellate panel found that the trial court never made any findings regarding whether the search warrant affidavit contained any intentionally false statements or false statements made with reckless disregard for their truth, nor whether the search warrant affidavit’s remaining content would be sufficient to establish probable cause. The appellate court directed the trial court to make such findings.

On remand, the trial court has ordered parties to submit Proposed Findings of Fact and Conclusions of Law by November 12, 2025. Mr. Tolbert waived his speedy trial rights through July 1, 2026.

Following remand by the appeals court, on January 6, 2026, the trial court judge once again quashed the search warrant, finding “that Tolbert provided proof by a preponderance of the evidence that the search warrant affidavit contained averments that were deliberately false or showed reckless disregard for the truth. After removing these statements from the affidavit, the Court finds that there was an insufficient showing of probable cause to issue the warrant. The search warrant is quashed and voided, and all evidence therefrom is excluded.”
The State appealed this decision on January 9, 2026. Appellant’s brief was filed March 17.