Wednesday, December 28, 2016

“Use of a Minor in Nudity-Oriented Material,” the Search Warrant and Search Protocols

This post examines an opinion from the Court of Appeals of Ohio – 5th District, Ashland County: State v. Gornall, 2016 WL 6575173 (2016).  The opinion begins by explaining that
Elliot T. Gornall appeals a judgment of the Ashland County Common Pleas Court convicting him of sixty-six counts of illegal use of a minor in nudity-oriented material or performance (Ohio Revised Code 2907.323(A)(1)), six counts of attempted illegal use of a minor in nudity-oriented material or performance (Ohio Revised Code 2923.02(A), (Ohio Revised Code 2907.323(A)(1)), fifty-five counts of pandering obscenity involving a minor (Ohio Revised Code 2907.321(A)(5)), forty-five counts of illegal use of a minor in nudity-oriented material or performance (Ohio Revised Code 2907.323(A)(3)), two counts of aggravated possession of drugs (Ohio Revised Code 2925.11(A), possession of marijuana (Ohio Revised Code 2925.11(A)), and receiving stolen property (Ohio Revised Code 2913.51(A)). Appellee is the State of Ohio.
State v. Gornall, supra.
The article you can find on this site outlines the provisions of the Ohio statutes that target the use of children in obscenity, nudity-oriented material and most of the other offenses outlined above. As the title suggests, this post examines arguments Gornall raised in a motion to suppress evidence in which he alleged that the investigation of the crime included certain failures to abide by the requirements of the Fourth Amendment to the U.S. Constitution.
The Court of Appeals’ opinion goes on to explain that
[o]n November 4, 2014, the Loudonville Police Department was contacted by the U.S. Department of Homeland Security in San Diego, California. The U.S. Customs and Border Protection facility in San Diego had intercepted a package from overseas containing narcotics. The package was addressed to appellant, who was employed as a kindergarten teacher by the Loudonville–Perrysville School District. Capt. James Coey of the Loudonville police contacted the U.S. Postal Service to arrange a controlled delivery of the parcel, and obtained an anticipatory search warrant for appellant's residence.

On November 13, 2014, Capt. Coey surveilled the residence along with other detectives while a postal inspector delivered the package. Appellant retrieved the parcel and took it inside his residence. Police entered shortly thereafter to conduct the search. The detectives found marijuana, a marijuana smoking pipe, a firearm, the delivered parcel of narcotics, and another parcel containing narcotics. In addition to the evidence of drug activity, they found fourteen pairs of little girls' panties and some soiled tissues next to appellant's bed. Inside a trunk behind his couch, detectives found a copy of a book titled `Show Me,' containing graphic images of nude small children.

Appellant told Capt. Coey that he ordered the drugs online from the Philippines, and he had ordered drugs from South Africa and other countries online as well. He later admitted that he had a sexual fetish for children's panties, and used them to masturbate. Officers seized appellant's computers and other electronic devices.

Police obtained a second search warrant on November 26, 2014, to search the contents of the seized computers for evidence related to trafficking in drugs and pandering obscenity involving a minor. Agents of the Bureau of Criminal Identification & Investigation (BCI & I) conducted the search of the hard drive of appellant's computer using forensic software. Nicholas Jenkins began by searching for evidence of narcotics activity. The search revealed that pictures were stored in the image files. While looking through the image files for evidence of drug activity, Jenkins found images and videos of nude children performing sexual acts, and also found videos of small children using the restroom.

After the search, the Ohio Supreme Court published its decision in State v. Castagnola, 145 Ohio St.3d 1, 46 N.E.3d 638, 2015–Ohio–1565, 46 N.E.3d 638. After reviewing the case, the State obtained a third search warrant to insulate the search of the computers in light of that decision. The third warrant was obtained on June 10, 2015, and yielded the same results as the November 26, 2014 search warrant.

Further investigation revealed that appellant had placed a hidden camera in the private restroom of his kindergarten classroom, and surreptitiously videotaped his students using the restroom, exposing their genitalia to the hidden camera.
State v. Gornall, supra.
After being convicted, Gornall appealed, arguing, among other things, that the trial judge “erred in denying defendant's motion to suppress evidence, in derogation of defendant's rights under the Fourth Amendment to the United States Constitution and article i, section 14 of the Ohio constitution.” State v. Gornall, supra. More precisely, Gornall argued that
the trial court erred in overruling his motion to suppress evidence of child pornography taken from his computer, as the warrant was issued pursuant to an affidavit which failed to set forth probable cause that such evidence would be located on his computer. 
State v. GornallsupraThe article you can find here outlines the process, and the legal requirements, an officer uses in obtaining a search warrant. As it notes, one requirement is that the officer submit information to the Magistrate Judge from he or she seeks the warrant that establishes there is “probable cause” to believe evidence of a specific crime or crimes will be found at a specific place. As the article explains, officers often do this by submitting an affidavit, i.e., “sworn statements made under oath” to outline the facts and inferences that establish probable cause for the issuance of a warrant. That is what the officers did in this case.
 The court goes on to explain that after the
officers searched his computer pursuant to the warrant and found evidence that was later used to prosecute, and convict, Gornall, he filed the motion to suppress noted above.  State v. Gornall, supra. The Court of Appeal was not persuaded, explaining that

[Gornall] does not argue that the affidavit lacked probable cause to search the computer for evidence of narcotics activity. The trial court found that in searching for evidence of narcotics activity, evidence of child pornography would have been inevitably discovered, and did not address the issue of whether the affidavit was sufficient to provide probable cause to search the computer for evidence of child pornography.
State v. Gornall, supra.
The court went on to explain that
[p]ursuant to the inevitable discovery doctrine, illegally obtained evidence is properly admitted in a trial court proceeding once it is established that the evidence would have been ultimately or inevitably discovered during the course of a lawful investigation. State v. Perkins, 18 Ohio St.3d 193, 196, 480 N.E.2d 763 (1985), citing Nix v. Williams, 467 U.S. 431 (1984). The inevitable discovery doctrine is applied only in limited circumstances where the state can show by a preponderance of the evidence that, despite the constitutional violation, discovery of the evidence was, in fact, inevitable. Id. at 766–767.

Nicholas Jenkins of BCI & I testified that he began by searching for evidence of narcotics activity in the web history, and for images of drug paraphernalia or pictures of drugs. Supp. Tr. 34. He found two images depicting drug activity. Supp. Tr. 34–35. In searching in the image files for the pictures of narcotics, images of child pornography showed up. Supp. Tr. 35. He could not look for evidence probative of drug activity without finding the images of child pornography. Supp. Tr. 35. Although the warrant specified that he was looking for evidence of child pornography or pandering obscenity involving a minor, he began first searching for evidence of drug activity. Supp. Tr. 43. The evidence he found of child pornography was in the files he would have been looking through to find evidence of drug activity. Supp. Tr. 44. Based on Jenkins's testimony, the trial court did not err in finding that discovery of the evidence of child pornography and pandering obscenity involving a minor was inevitable.
State v. Gornall, supra.
The court then took up Gornall’s argument that
the discovery of the evidence could not be `inevitable’ because the search warrant specifically allowed Jenkins to search for evidence of child pornography and pandering. However, Jenkins testified that he began his search with a search for evidence of narcotics activity, and discovered the pornography in the files he was looking at to find evidence of drug activity.
State v. Gornall, supra. It went on to explain that Gornall
also argues that the discovery could not be `inevitable’ because Jenkins searched the entire computer, in violation of the Ohio State Supreme Court's decision in State v. Castagnola, 145 Ohio St.3d 1, 46 N.E.3d 638, 2015–Ohio–1565, 46 N.E.3d 638.
State v. Gornall, supra.
The opinion goes on to explain that
[i]n Castagnola, the affidavit provided to obtain the search warrant stated that the defendant said he found the victim's address `online in the clerk of courts.’ Execution of the warrant led to the seizure of two computers. A search of the contents of the computers revealed over a thousand videos and images of child pornography. The Ohio Supreme Court ultimately found the search warrant for the computers was not supported by probable cause to believe a computer in the defendant's residence was used in furtherance of the alleged crimes, as the defendant did not actually use the word `online’ in his interview with the detective concerning where he found the victim's address. Id. at ¶ 10, 46 N.E.3d 638.

The court then went on to address the particularity requirement of the Fourth Amendment as it pertains to the search of files on a computer. The warrant described the objects subject to seizure from the defendant's home as `[r]ecords and documents either stored on computers, ledgers, or any other electronic recording device.’ A separate section states that if found, said items will be used as evidence in the prosecution of retaliation, criminal trespassing, criminal damaging, and possession of criminal tools.

In finding the warrant was not sufficiently particular, the court noted first that the warrant did not guide or control the analyst's discretion as to what was to be seized on the computer, allowing her to look at all the evidence on the hard drive to determine what to seize. Id. at ¶ 83, 46 N.E.3d 638. Second, the broad language clearly included items that were not subject to seizure. Id. at ¶ 84, 46 N.E.3d 638. The state argued that nothing in the record suggested that the police knew ahead of time precisely where the items were stored. The court held that the particularity issue did not relate to where the information was stored, but rather `what’ evidence the detective had a fair probability of believing was on the computer. Id. at ¶ 85, 46 N.E.3d 638.
State v. Gornall, supra.
The court goes on to note that in the Castagnola case,
the detective believed the defendant found the victim's address online, and that evidence of the online search would be useful in the prosecution of the offenses. He testified that in addition to a general Google search or online-white-pages search, he believed the defendant might have searched the clerk of courts' website for information about the victim. The detective testified that from his previous experience, he knew that an online search would create a cookie. Under the Fourth Amendment, these details should have been included in the warrant to guide and control the searcher, and sufficiently narrow the category of records subject to seizure. Id. at ¶ 87, 46 N.E.3d 638.
State v. Gornall, supra.
The Court of Appeals then took up the issue of search protocols in digital searches, explaining that the Castagnola court
rejected the contention that the Fourth Amendment requires the warrant to specify restrictive search protocols:

`In urging this court to find that the search warrant sufficiently particularized the items to be searched for, the state provides a breadth of authority rejecting the notion that a search warrant must contain a restrictive protocol, methodology, or other strategy for conducting the search in order to satisfy the Fourth Amendment. We agree that the Fourth Amendment does not require a search warrant to specify restrictive search protocols, but we also recognize that the Fourth Amendment does prohibit a `sweeping comprehensive search of a computer’s hard drive.” Walser, 275 F.3d at 986. The logical balance of these principles leads to the conclusion that officers must describe what they believe will be found on a computer with as much specificity as possible under the circumstances. This will enable the searcher to narrow his or her search to only the items to be seized. Adherence to this requirement is especially important when, as here, the person conducting the search is not the affiant. See generally United States v. Gahagan, 865 F.2d 1490, 1498–1499 (U.S. Court of Appeals for the 6th Circuit1989).’
State v. Gornall, supra (quoting State v. Castagnola, supra).
The court then explained that Gornall argued that
[t]he warrant in the instant case allowed the same sweeping comprehensive search of the hard drive as the warrant in Castagnola. We disagree. Appellant argues the warrant and affidavit should have narrowed the search to files where evidence of his drug trafficking activity could be found, such as internet search history and bookmarks, and payment programs such as Quicken and excel. However, Castagnola specifically states that

`the Fourth Amendment does not require a search warrant to specify restrictive search protocols. Further, unlike the detective in Castagnola who testified specifically as to where he expected evidence of the search for the address to be, the record in the instant case does not support a conclusion that the officers possessed any more specificity as to the location of computer files concerning appellant's drug activity than set forth in the affidavit. The warrant provided sufficient guidance to the analyst to search for only the items to be seized: evidence of possession of drugs and trafficking in drugs, and/or pandering obscenity involving a minor.’

Jenkins testified that because of the way computer systems work, you can put things anywhere, `safe’ files anywhere. Supp. Tr. 35–36. He testified that he does not search all the files on the computer, and tries to limit the search to what is pertinent in the case. Supp. Tr. 41. For example, they do not look at the pre-installed Windows files that come with the operating system. Supp. Tr. 41. He further testified that it is necessary to look at the content of the files because file names don't necessarily represent what the files are. Supp. Tr. 44. In the instant case, evidence of drug possession or trafficking activity concerning appellant's admitted online purchases of narcotics could have been `hidden’ almost anywhere on the computer. The instant case is distinguishable from Castagnola, where the only evidence regarding the use of the defendant's computer in furtherance of the crime was an inference drawn by the police officer that he might have found the victim's address through an online search. Under the circumstances of the instant case, the warrant set forth what the officers believed would be found on the computer with as much specificity as possible. 
State v. Gornall, supra.

The Court of Appeals therefore rejected Gornall’s first argument on appeal.  State v. Gornall, supra. It also rejected the other arguments he made on appeal, e.g., that the “aggregate sentence of 56 years” which the trial judge imposed on him “was disproportionate to his crimes” and that the fine of $15,700 that the trial judge also imposed on him was not an abuse of the judge’s discretion. State v. Gornall, supra.

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