This post examines an Ohio court’s opinon in which it ruled on “19 related
appeals” that “involve[d] numerous charges of prostitution against dancers
(Appellees) working at the GoGo Girls Cabaret (`Cabaret’) in Austintown, a
suburb of Youngstown, Ohio.” State v. Wallace, ___ N.E.2d ___, 2012
WL 6765388 (Ohio Court of Appeals – 7th District 2012). The opinion begins by explaining that the
charges
stem, in part, from information
obtained off of computers seized from the Cabaret, pursuant to a warrant. On
these computers were security camera recordings that showed the dancers
performing for patrons in private rooms in the Cabaret. The state intended to
use the videos as evidence of prostitution.
Several of the Appellees filed motions
to suppress the security camera recordings. They claimed the warrants were
deficient under the 4th Amendment. . . . Appellees also filed motions to
dismiss the charges entirely. The court granted both motions for all of the
Appellees and this prosecutor's appeal on behalf of the state was filed.
State v. Wallace,
supra. This post only examines the Court of Appeals’ ruling on the 4th
Amendment issue.
The court began its analysis of the issues in the case by
noting that it began
[o]n or about April 27, 2010, [when] Detective
Sergeant Jeffrey Solic of the Austintown Township Police Department filed
misdemeanor prostitution charges against the 19 defendants who are the
Appellees. . . . The acts of prostitution allegedly occurred in April and May
of 2009. The charges arose after Det. Solic obtained and executed search
warrants on May 15, 2009 to search the Cabaret and seize evidence of drug
trafficking and prostitution, including seizure of the Cabaret's computers.
Those computers contained videos of women performing acts that the state
determined should be charged as acts of prostitution.
State v. Wallace,
supra. The prostitution charges were
brought under Ohio Revised Code § 2907.25(A).
On appeal, the prosecution argued that the dancers were
independent contractors and not
employees, and for this reason they had no standing to raise a 4th Amendment
challenge to the search warrants (and the evidence seized pursuant to the
warrants). [The prosecution] contends that independent contractors, unlike
employees, do not have a reasonable expectation of privacy in the premises of
their employer and cannot challenge a search of the premises.
State v. Wallace,
supra.
As I have noted in prior posts, the 4th Amendment
protects us from “unreasonable” searches and seizures conducted by law
enforcement officers. It does not, as I
have noted in other posts, protect us from “searches” conducted by private
citizens and/or “reasonable” searches.
“Reasonable” searches are conducted either pursuant to a valid search
warrant or to an exception to the warrant requirement. As this site explains, a “search” violates a
reasonable expectation of privacy, and to have such an expectation (i) I must
subjectively believe the place/thing is “private” and (ii) society must accept
my belief as objectively reasonable.
Courts generally assume we have a reasonable expectation of privacy in
our homes, but we can also have such an expectation elsewhere, including
businesses property.
That brings us back to the prosecution’s claim that the
dancers did not have “standing” to challenge the warrant and the resulting
search. State v. Wallace, supra. As
noted above, the prosecution argued that they did not have “standing” to assert
that the search warrants (and searches) violated their 4th Amendment
rights. State v. Wallace, supra. The
court began its analysis of that argument by explaining that the 4th
Amendment to the U.S. Constitution guarantees
[t]he right of the people to be secure
in their persons, houses, papers, and effects, against unreasonable searches
and seizures.’ In order to challenge a search and seizure as being in violation
of 4th Amendment rights, a defendant must demonstrate that he has standing to
raise such a claim by showing he has a `legitimate expectation of privacy’ in
the object searched and seized. Rakas v. Illinois, 439 U.S.128 (1978).
State v. Wallace,
supra.
It also explained that a 4th Amendment reasonable
expectation of privacy can extend to
commercial premises as well as to
private homes. See v. City of Seattle, 387 U.S. 541 (1967).
Employees may have some expectation of privacy in their workspace, and
therefore, often have standing to assert a 4th Amendment violation. Mancusiv. DeForte, 392 U.S. 364 (1968). Whether an employee had a reasonable
expectation of privacy in order to have standing to object to a search of his
or her workplace is decided on a case by case basis. . . . In some situations,
an independent contractor has less right to object to a search than would an
employee, but these situations are also reviewed on a case by case basis. .
. .
State v. Wallace,
supra.
As to the argument that the dancers were independent
contractors who could not bring a 4th Amendment challenge, the court
found it was “not well-taken.” State v. Wallace, supra. It noted the prosecution “cite[d] no Ohio case
law that would create a separate 4th Amendment analysis when the person
asserting the right is an independent contractor.” State
v. Wallace, supra. It also noted
that the hearing the trial judge held on the issue was not recorded, so it did
not have the evidence presented at the hearing.
State v. Wallace, supra. It therefore found that it could not “overturn
the trial court's judgment on the basis that the Appellees were independent
contractors because that fact is not established in the record before us.” State
v. Wallace, supra.
The prosecution also argued that “even if” the Appellees had
standing, they “needed to prove that a 4th Amendment violation took place” and
“did not meet their burden of proof in challenging evidence seized pursuant to
a valid search warrant.” State v. Wallace, supra. The court noted that the prosecution was “correct
that a search warrant and its supporting affidavits enjoy a presumption of
validity”, which meant the party challenging a search warrant and its outcome
has the burden of proof to show that the evidence seized as a result of the
search should be suppressed. State v. Wallace, supra.
The prosecution claimed the Appellees “did not submit any
evidence to prove their allegations that the search or the warrants were
invalid” which meant the trial judge “had no basis for granting the motion to
suppress.” State v. Wallace, supra. The
Court of Appeals agreed, noting that in moving to suppress, the Appellees “completely
relied on alleged facial inadequacies of the search warrants to establish
alleged violations of” the 4th Amendment, which meant that if it “determine[d]
that the warrant is facially valid,” the trial judge’s granting the motion to
suppress would be error. State v. Wallace, supra.
The Appellees first claimed the “the warrant was facially
invalid because it was based, in part, on allegedly illegal recordings of
conversations made by confidential informants.”
State v. Wallace, supra. The court noted that using a confidential informant “to record conversations is not a violation of the 4th Amendment.” State
v. Wallace, supra. “Both federal and Ohio courts have long permitted the warrantless
recording of conversations between a cooperating informant and a defendant.” State
v. Wallace, supra.
Next, the Appellees argued that “the warrants were facially
invalid because they allowed for the confiscation of security videos that were
allegedly made in violation of privacy interests protected by the 4th
Amendment.” State v. Wallace, supra. The
Court of Appeals also rejected this argument, noting that the security videos
were recorded
by a private entity, i.e., the
Cabaret, and not by a state entity or agent of the state. A search or seizure
conducted by a private citizen is not a `search or seizure’ within the meaning
of the 4th Amendment. . . .
For a search by a private person to
trigger 4th Amendment protection, the government must have known about the
search in advance, and the private party must be acting in furtherance of law
enforcement purposes. . . . There is certainly nothing in the search
warrant or accompanying affidavit suggesting that the Cabaret was an agent of
the police in producing the security videos.
State v. Wallace,
supra. Since “the Cabaret is a
private entity,” the Appellees “had no basis on which to raise a facial
challenge of the search warrant centered on the actions of the Cabaret in
creating security videos.” State v. Wallace, supra.
Finally, the Appellees argued that the search warrant did
not allow the police to
actually search through the files on
the computer. Appellees submit that the search warrant only allowed the police
to seize the computer itself, rather than the files on the computer. Appellees
conclude that if the police sought to search the files in the computer, the
search warrant failed to satisfy the 4th Amendment requirement that a warrant
`particularly’ describe the things to be searched and seized.
State v. Wallace,
supra.
The Court of Appeals began its analysis of this argument by explaining
that, in Maryland v. Garrison, 480 U.S. 79 (1987), the Supreme Court noted that the 4th Amendment “categorically
prohibits the issuance of any warrant except one `particularly describing the
place to be searched and the persons or things to be seized.’” State v. Wallace, supra. As the Court of Appeals explained the purpose
is to limit a search to the items the officers are specifically authorized to
search for and seize, if they are found.
The court then rejected the Appellees’ particularity
argument, finding that it was
baseless. The warrant affidavits refer
to the security cameras and the images included on the security camera videos.
The warrants describe in detail the computers and the hard drives on the
computers, and note that there would be security camera recordings on the computers.
The evidence sought in the warrants is stated with sufficient particularity to
satisfy the 4th Amendment.
State v. Wallace,
supra.
The Court of Appeals therefore held that even if the
Appellees had standing to arise a 4th Amendment challenge,
they failed to demonstrate any facial
errors in the warrant and they failed to submit any other evidence challenging
the warrants or search. Therefore, there was no basis to grant the motion to
suppress pursuant to the 4th Amendment.
State v. Wallace, supra.
The court therefore reversed the trial court’s judgment
granting the motion to suppress. State v. Wallace, supra. And since it also vacated the trial judge’s
order granting the Appellees’ motions to dismiss the charges against them, it
reinstated the misdemeanor prostitution charges in all 19 cases. State
v. Wallace, supra. If you would like
to read more about the case, including the evidence obtained from the
computers, check out the news story you can find here.
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