After being convicted of obstructing official business in
violation of Ohio Revised Code § 2921.31, Robert J. Young appealed, arguing
that the trial judge denied his motion to suppress certain evidence. State
v. Young, 2012 WL 1268667 (Ohio Court of Appeals 2012). Ohio Revised Code § 2921.31(A) provides as
follows:
No person, without privilege to do so
and with purpose to prevent, obstruct, or delay the performance by a public
official of any authorized act within the public official's official capacity,
shall do any act that hampers or impedes a public official in the performance
of the public official's lawful duties.
The case began on June 7, 2010, when a
17–year–old girl went missing from the
Norwalk home of her grandparents. Sometime after the girl's disappearance,
police began to suspect that her 20–year–old boyfriend, . . . Robert Young, was
harboring her or knew where she was. [Young] denied such knowledge, but police
remained suspicious.
State v. Young, supra.
On June 9, 2010,
without [Young’s] consent or review by
a judge or magistrate, police obtained [his] cell phone records from his
carrier, Verizon Wireless, by submitting a single page Emergency Request Form.
Police also obtained the 17–year–old
girl's cell phone records with the consent of her mother. The records acquired
contained, not only the numbers that had been called, but also the content of
the text messages that had been exchanged.
The
17 year old was eventually found living in an apartment rented by [Young]. She
had not been held against her will. The girl was returned to her parents.
State v. Young, supra.
The police charged Young with “with obstructing official
business, a second degree misdemeanor.” State v. Young, supra. He pled not guilty and moved to suppress the
cell phone records the police had obtained without a warrant. State
v. Young, supra. The trial judge
held a hearing on Young’s motion to suppress, at which the
investigating officer testified that
the records had been obtained without a warrant and that, at the time the
records were requested, although police has strong suspicions, he did not
believe police had probable cause to obtain a warrant.
Moreover, the officer testified, at the
time he did not believe a warrant was needed where an Emergency Request Form was used. A subpoena for the records
issued only after [Young] was charged.
State v. Young, supra.
Young had some success with his motion to suppress. The trial judge sustained his
motion, in part. The court concluded
that [Young] had a reasonable expectation of privacy in the content of his text
messages even though those messages were maintained in records held by a third
party, his cell phone provider.
As a result, the police had no right to
obtain these records absent [Young’s] consent, a warrant issued on probable
cause or a recognized exception to a warrant requirement. Since no warrant had
been obtained, the court suppressed the text messages that had been produced by
[Young’s] cell provider.
State v. Young, supra.
(If you’re not familiar with the use of "emergency letters" and how the 4th
Amendment works, and does not work, in the context of records – cell phone
records, utility records, etc. – held by third parties, you might want to check
out this blog post, which surveys the state of the law in this area. You can also read more about it in the article
you can find here.)
The judge also, however, denied Young’s motion to suppress,
in part:
The court refused . . . to suppress
messages [Young] had sent to the 17 year-old's cell phone that had been acquired
with the consent of her mother from the girl's cell phone provider. These, the
court ruled, could be used in evidence.
State v. Young, supra.
Young then pled “no contest” and was found “guilty as
charged”. State v. Young, supra. The
judge “fined him $200” and sentenced Young “to jail for 90 days, 60 suspended,
and two years of probation.” State v. Young, supra. As I noted earlier, he appealed, challenging
the partial denial of his motion to suppress.
State v. Young, supra.
The Court of Appeals began its analysis of Young’s argument
that the “seizure” of the messages he sent to the girl was an “unreasonable”
seizure that violated the 4th Amendment:
The 4th Amendment and the OhioConstitution, Article I, Section 14, guarantee that individuals be free from
unreasonable searches and seizures. Evidence obtained in violation of this
guarantee must be excluded from introduction in any criminal trial. . . . Searches
conducted without a probable cause based warrant are per se unreasonable,
subject to only a few specifically established and well-defined
exceptions.
State v. Young, supra.
As I’ve noted in earlier posts, the same principle applies
to searches and seizures, i.e., either is “unreasonable” and violates the 4th
Amendment if it is not conducted pursuant to a warrant or an exception to the
warrant requirement. As noted above, the opinion says Young was arguing that
the police’s obtaining the messages was a 4th Amendment “seizure,”
but the rest of the opinion focuses on his argument that the police’s obtaining
them violated his 4th Amendment right to privacy. State
v. Young, supra.
As I’ve explained in earlier posts, a “search” violates a
“reasonable expectation of privacy” under the Supreme Court’s decision in Katz v. U.S., 389 U.S. 347 (1967). And as I’ve also noted, to have a reasonable,
Katz expectation of privacy in a
place or thing, I must personally believe that place or thing is “private” and
society must accept my belief as objectively reasonable
So if someone is walking around an airport terminal talking
loudly on a cell phone and planning a crime, he/she may personally believe the
conversation is private (however unrealistic that may seem) but a court would
find that that belief, it if existed, was objectively unreasonable, which means
it wouldn’t be a search for a police officer to listen to the conversation and
use it as probable cause to obtain a search/arrest warrant.
That brings us back to the Court of Appeals and Mr.
Young. The court next explained that
There are limits on who may assert the
right to suppress evidence obtained in violation of the Fourth Amendment. `[S]uppression
of the product of a 4th Amendment violation can be successfully urged only by
those whose rights were violated by the search itself[.]' Alderman v. U.S.,394 U.S. 165 (1969). `Fourth Amendment rights are personal in nature and
may not be vicariously asserted by others.’ State v. Dennis, 79
Ohio St.3d 421, 683 N.E.2d 1096 (1997).
`A person who is aggrieved by an illegal
search and seizure only through the introduction of damaging evidence secured
by a search of a third person's premises or property has not had any of his Fourth
Amendment rights infringed.’ Rakas v. Illinois, 439 U.S. 128 (1978).
For
a person to have been aggrieved by an unlawful search or seizure, he or she ‘“‘must
have been a victim of a search or seizure, one against whom the search was
directed, as distinguished from one who claims prejudice only through the use
of evidence gathered as a consequence of a search or seizure directed at
someone else.’“’ Alderman v. United States, supra (quoting Jones
v. U.S., 362 U.S. 257 (1960)). `We adhere to these cases and to the
general rule that Fourth Amendment rights are personal rights which, like some other
constitutional rights, may not be vicariously asserted.’ Id. at
174.
State v. Young, supra. In other words, I can’t successfully move to
suppress evidence that was obtained in violation (only) of your 4th
Amendment rights.
The Court of Appeals then addressed the significance of this
issue in the context of the Young prosecution.
It began by noting that Young
raises many interesting, and perhaps
novel, questions about the nature of the privacy expectations of text messages
stored by third parties. Nonetheless, the trial court suppressed the evidence
that was obtained from [Young]'s cell phone provider.
The issue is whether the records
obtained from [his 17–year–old girlfriend's cell phone provider, with the
consent of her mother, should be excluded.
State v. Young, supra. I wish I could tell you what those questions
are, but I don’t have access to the appellate briefs in this case and the
opinion doesn’t provide any more information on what they were.
The Court of Appeals went on to note that the
parties engage in considerable argument
as to whom the girlfriend's cell phone belonged, whether a minor can contract
and whether a minor's mother can consent in circumstances like these. None of
these issues is dispositive, because [Young] was not the aggrieved party.
Suppression might be an issue if the
information obtained from the girlfriend's cell phone provider were to be
offered against the girlfriend. In such an instance, she could raise the issue.
But [Young] has put forth nothing that would establish that he had any
reasonable privacy expectation in his girlfriend's phone records.
State v. Young, supra.
The Court of Appeals held that since Young’s 4th
Amendment rights were not violated by the police’s obtaining messages from his
girlfriend’s cell phone provider, the trial judge did not err in denying his
motion to suppress that evidence. State v. Young, supra. It therefore affirmed the judgment, and
sentence, of the lower court. State v.
Young, supra.
(The photo, in case you’re wondering, is of Norwalk, Ohio,
which is where this case arose.)
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