The Cell Phone, the Fourth Amendment and Border Searches

This post examines a recent opinion from the U.S. District Court for the Southern District of California:  U.S. v. Caballero, 2016 WL 1546731 (2016).  The judge begins by explaining that before the Court

is Defendant's motion to suppress evidence. Defendant seeks to suppress statements made and cell phone evidence discovered during questioning. . . .

U.S. v. Caballero, supra.

He goes on to outline the factual “background” for the motion to suppress and for his ruling on it.  U.S. v. Caballero, supra.  As the opinion explains,

[a]ccording to the Complaint, Defendant drove his automobile from Mexico to the United States Port of Entry in Calexico, California. He was the sole occupant of the automobile. At the Port of Entry, United States Customs and Border Protection officers decided to search the automobile and discovered fifteen kilograms of methamphetamine and one kilogram of heroine inside the gasoline tank. Defendant was arrested. Several hours later Defendant was questioned while his cell phone was being manually searched.

Defendant has now provided a sworn declaration in support of his motion. Defendant states that during his post-arrest questioning, one of the officers manually searched his cell phone and discovered a photograph of a large sum of money. He now seeks to suppress that photographic evidence and the officer's observation. He argues that it should be suppressed under the exclusionary rule as the fruit of an illegal search, based on Riley v. California, 134 S.Ct. 2473, 2485 (2014). The Government remonstrates that Riley has no application and that the search was permissible under the long-standing border search doctrine described in U.S. v. Flores–Montano, (541 U.S. 149, 152 (2004)).

U.S. v. Caballero, supra.

In a footnote to the first sentence in the second paragraph above, the judge explains that
Southern District of California Local Rule 47.1(g)(1) requires a declaration. `Criminal motions requiring a predicate factual finding must be supported by declaration(s). . . .The court need not grant an evidentiary hearing where either party fails to properly support its motion of opposition.’

U.S. v. Caballero, supra.  

In another footnote that follows the first, the judge explains that

[a]lso provided is a video recording of the Defendant's questioning in custody, and a partial translation of the Spanish language used during the questioning. The questions and answers are in Spanish and the video lasts approximately one hour. Defendant provides an English translation for 37 seconds of questioning. The 37 seconds of transcribed and translated questioning takes place midway through the interrogation. The Government provides a translation for the entire interrogation. The video picture is difficult to see. Much of the time, the Defendant is `off camera.’ At times, it appears that one of the officers is holding a dark object in his hand; the object could be a cell phone.

U.S. v. Caballero, supra.  

He then began his analysis of the substantive legal issues in the case, explaining that

[i]nternational travelers carry in their hands, pockets, handbags, and backpacks: laptop computers, iPhones, iPads, tablets, phablets, flip phones, smart phones, contract phones, no-contract phones, and digital cameras. These devices often contain private and sensitive data and photographs. U.S. v. Cotterman, 709 F.3d 952 (U.S. Court of Appeals for the 9th Circuit 2013) (en banc). . . . Particularly for cell phones, Riley announced that arresting officers must generally obtain a search warrant before conducting a search. Riley v. California, supra. Fair enough. But, does Riley apply to a border arrest and search?

U.S. v. Caballero, supra.  

The judge went on to explain that,

[b]efore deciding whether Riley applies to this search, the issue of Defendant's standing needs to be addressed. Standing is required before a court will consider whether evidence found during a search will be suppressed at trial. U.S. v. Padilla, 111 F.3d 685, 688 (U.S. Court of Appeals for the 9^th Circuit 1997) (`We do not hold that members of a conspiracy can never have standing to contest a search of items or places related to the conspiracy. However, conspirators must show that they personally have “a property interest protected by the Fourth Amendment that was interfered with. . ., or a reasonable expectation of privacy that was invaded by the search”’) (citation omitted).

The Government argues that Caballero has not shown he has standing to contest the cell phone search. However, his declaration presents enough facts to demonstrate standing. Specifically, in his declaration, Caballero says that at the time of the arrest he possessed a black LG cell phone, that he used the cell phone, and that the phone was given to him by an ex-girlfriend. He did not consent to the search of that cell phone. This comports with the interrogation transcript and the officer's arrest report and is sufficient for standing. U.S. v. Lopez–Cruz, 730 F.3d 803 (U.S. Court of Appeals for the 9th Circuit 2013) (standing exists where defendant has possession of phone, uses the phone, has right to exclude others from using the phone, did not abandon or attempt to dispose of the phone, and legitimately possessed the phone).

U.S. v. Caballero, supra.  

In another footnote, the judge quotes from a transcript of the officers’ questioning Caballero about the photo and the phone that took it:

Officer: Yes, and these photos?

Def: Which ones?

Officer: Do you take money into Mexico?

Def: No.

Officer: That's your phone.

Def: That's my phone.

Officer: Where did you take that photo?

Def: But that phone's not in my name. I use it. But the other one is in my name.

Officer: Oh, [expletive], man.

Def: I just use the phone.

Officer: Hey, look, do you think we're stupid or what?

Def: No, sir.

Officer: So then?

Def: I'm not saying you're stupid or anything. Those two are my phones. Those two are.

Officer: Ah, and this one? Oh, what about that one? Did you find it?

Def: Those two are in my name.

Officer: And this phone? What's the deal with this phone?

Def: Ah, somebody gave me that phone.

Officer: Who?

Def: A person.

Officer: Uh huh, a person.

U.S. v. Caballero, supra.  

The opinion goes on to explain that the

interrogation transcript along with the declaration makes clear that agents conducted a cursory search of Defendant's cell phone and discovered the photo. There is no evidence that the agents did an extensive forensic search or transported the phone away from the border for computerized searching.

U.S. v. Caballero, supra.  

The Judge then outlines the specific legal issues that arise in this case:

The issue of whether such a search violates the Fourth Amendment stands at the intersection of two avenues of law. Heading in one direction is the Supreme Court's bright line rule in Riley: law enforcement officers must obtain a warrant to search a cell phone incident to an arrest. Heading on a different course is the border search exception. The border search exception describes an exception to general Fourth Amendment principles. It is the notion that the government may search without a warrant anyone and anything coming across its border to protect its national sovereignty. sovereignty. U.S. v. Cotterman, 709 F.3d 952 (U.S. Court of Appeal sfor the 9th Circuit 2013) (`The broad contours of the scope of searches at our international borders are rooted in “the long-standing right of the sovereign to protect itself by stopping and examining persons and property crossing into this country.” Thus, border searches form “a narrow exception to the Fourth Amendment prohibition against warrantless searches without probable cause”’) (citations omitted).

The question presented by this case is this: once a person is placed under arrest at the border, may officers conduct a cursory search of the arrestee's cell phone without a warrant? Riley says, `No.’ But, Riley does not address a search at the border. The border search exception says, `Yes.’ But, neither the Supreme Court, nor the Ninth Circuit, has decided a case involving the heightened privacy interests implicated by a cell phone search at the border after an arrest.

U.S. v. Caballero, supra.  

He also noted that, a

decade before Riley, the Supreme Court reaffirmed the Government's historical right to search without a warrant people and property crossing the border into the United States. Flores–Montano, supra. Flores–Montano explains,

[t]he Government's interest in preventing the entry of unwanted persons and effects is at its zenith at the international border. Time and again, we have stated that `searches made at the border, pursuant to the longstanding right of the sovereign to protect itself by stopping and examining persons and property crossing into this country, are reasonable simply by virtue of the fact that they occur at the border.’ Congress, since the beginning of our Government, `has granted the Executive plenary authority to conduct routine searches and seizures at the border, without probable cause or a warrant, in order to regulate the collection of duties and to prevent the introduction of contraband into this country.’

 The modern statute that authorized the search in this case, 19 U.S. Code § 1581(a), derived from a statute passed by the First Congress, the Act of Aug. 4, 1790, ch. 35, § 31, 1 Stat. 164, and reflects the `impressive historical pedigree’ of the Government's power and interest. It is axiomatic that the United States, as sovereign, has the inherent authority to protect, and a paramount interest in protecting, its territorial integrity.

Flores–Montano, supra (citations omitted).

The judge went on to address a case that complicated the analysis even further, noting that the 9^th Circuit Court of Appeals’ decision in U.S. v. Cotterman, supra, 

applied the border search doctrine to digital storage devices. In particular, a laptop computer. The decision offers several guideposts. To begin with, `border searches are generally deemed “reasonable simply by virtue of the fact that they occur at the border.”” U.S. v. Cotterman, supra (quoting U.S. v. Ramsey, 431 U.S. 606 (1977)). `Individual privacy rights are not abandoned’ at the border but are weighed against the interests of the sovereign. U.S. v. Cotterman, supra. . . .`That balance “is qualitatively different . . . than in the interior” and is 'struck much more favorably to the Government.’ U.S. v. Cotterman, supra (quoting Montoya de Hernandez, 473 U.S. 531, 538, 540, 105 S.Ct. 3304 (1985)). `Nonetheless, the touchstone of the Fourth Amendment analysis remains reasonableness. The reasonableness of a search or seizure depends on the totality of the circumstances, including the scope and duration of the deprivation.’ U.S. v. Cotterman, supra (citations omitted).

U.S. v. Caballero, supra.  

The judge pointed out that,

[a]pplying these principles to a border search, the Ninth Circuit held (pre-Riley) that a manual (or cursory) search of a personal electronic device such as a laptop computer needs no warrant. U.S. v. Cotterman, supra. The court noted that it had previously approved – under the border search doctrine—`a quick look and unintrusive search of laptops’ without suspicion or a warrant. U.S. v. Cotterman, supra. . . . Cotterman did not change that.

What Cotterman did change was the standard for conducting a deep, forensic search of a laptop at the border. Cotterman attempted to achieve the correct balance between: (a) the increased interests of the sovereign at the border; (b) a traveler's diminished expectations of privacy in general at the border; and (c) the substantial personal privacy interests implicated by the broad amount of data contained in or accessible through a digital device. `Notwithstanding a traveler's diminished expectation of privacy at the border, the search is still measured against the Fourth Amendment's reasonableness requirement, which considers the nature and scope of the search. Significantly, the Supreme Court has recognized that the “dignity and privacy interests of the person being searched” at the border will on occasion demand “some level of suspicion in the case of highly intrusive searches of the person.”' U.S. v. Cotterman, supra.

U.S. v. Caballero, supra.  

He therefore found that the

warrantless, cursory search of Defendant's cell phone in this case is clearly permissible under the border search doctrine enunciated by Cotterman.  With the discovery of undeclared, illicit drugs hidden in Defendant's vehicle, law enforcement officers had plenty of evidence to meet the heightened standard: reasonable particularized suspicion of unlawful conduct. Officers certainly had reasonable suspicion to search the cell phones carried by Caballero after finding 15 kilograms of methamphetamine and one kilogram of heroin hidden in the gas tank of Caballero's automobile as he crossed the border.

There is no question that a cell phone search, limited as it was in this case, qualifies as a reasonable search at the international border when performed prior to an arrest. Cotterman dictates this much. Since the Cotterman decision is almost on all fours, it controls the outcome of this motion to dismiss. Reviewing the totality of the circumstances, the Caballero cell phone search: (1) took place at a port of entry; (2) was based on reasonable suspicion of criminal activity; (3) was conducted manually and appeared to be a cursory search of the device's contents; (4) did not involve the application of forensic software; (5) did not destroy the cell phone; (6) was performed in minutes, as opposed to hours or days; (7) was performed upon a device being brought into the country, rather than being taken out of the country; and (8) was performed approximately four hours after Caballero was placed under arrest.

Other than the last factor, each of these factors was either similar to or less intrusive than the warrantless search Cotterman decided was reasonable. . . .

U.S. v. Caballero, supra.  

The Judge, however, also found that

[w]hat makes this case different is that there was no arrest before the laptop search in Cotterman. Cotterman was permitted to pass into the country. Only his laptops and a camera were detained and searched. In fact, Cotterman was able to flee to Australia two days later. Once an international traveler is placed under arrest at the border, the context changes. While, `[t]he Government's interest in preventing the entry of unwanted persons and effects is at its zenith at the international border’ (Flores–Montano, supra), once unwanted drugs have been discovered and a person arrested, it can be said that the Government has achieved its goal of discovery.

A `stopping and examining [of] persons and property crossing into this country’ (Flores–Montano, supra), has already taken place. Illicit narcotics have been discovered. Reasonable suspicion has jelled into probable cause. Any goal the Government might have of proceeding expeditiously to avoid delaying innocent travelers, evaporates. There is no more need for agents to work expeditiously to return the digital device to the traveler so that he or she may be on their way. Agents may take their time to obtain a search warrant.

U.S. v. Caballero, supra.  

He went on to explain that,

[i]f this Court were free to decide the question in the first instance, it would hold that the warrantless cell phone search under these circumstances would be unreasonable. See e.g., U.S. v. Djibo, 2015 WL 9274916 (U.S. District Court for the Eastern District of New York 2015) (“In this case, the search was undertaken to find contraband or currency and neither were found. . . . Based on the line of [the government agent's] questioning and Djibo's outbound status, this cannot be considered within the purview of a border search. . . . He could have been arrested, his phone seized pursuant to the border authority, and a search warrant obtained before any searching occurred. [The government agent] sought to sidestep these constitutional guarantees’). A warrantless search of a cell phone incident to an arrest in the interior of the country, is clearly a Fourth Amendment violation under Riley v. California, supra.

After all, in an area where bright line rules are few, Riley paints a fairly bright line: `Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple—get a warrant.’ Riley v. California, supra. Requiring a search warrant after an arrest at the border would offer a consistently bright line.

U.S. v. Caballero, supra.  

He then explained why he could not apply the Supreme Court’s decision in Riley v. California, supra.  He pointed out that,

[a]lthough Riley could be applied to a cell phone search at the border, this Court is bound by Cotterman. The Ninth Circuit [Court of Appeals] has answered the `sometimes very difficult question’ of when a district court may reexamine normally controlling circuit precedent in the face of an intervening Supreme Court case. See Miller v. Gammie, 335 F.3d 889 (U.S. Court of Appeals for the 9<sup>th</sup> Circuit 2003) (en banc). It adopted a `clearly irreconcilable’ standard:

`We hold that in circumstances like those presented here, where the reasoning or theory of our prior circuit authority is clearly irreconcilable with the reasoning or theory of intervening higher authority, a three-judge panel should consider itself bound by the later and controlling authority, and should reject the prior circuit opinion as having been effectively overruled.'

Id. at 893 (emphasis added). In other words, `the relevant court of last resort must have undercut the theory or reasoning underlying the prior circuit precedent in such a way that the cases are clearly irreconcilable.’ Miller v. Gammie, supra. Here, the reasoning and theory of Cotterman is not clearly irreconcilable with the reasoning and theory of Riley, as evidenced by a number of courts finding that Riley simply does not apply to cell phone searches at the border.

U.S. v. Caballero, supra.  

The judge therefore held that,

[b]ecause the cases are not clearly irreconcilable, this Court is bound by the en banc decision in Cotterman, which requires neither warrant nor reasonable suspicion to justify a manual cursory search of a digital device being brought across an international border. Therefore, the motion to suppress is denied.

U.S. v. Caballero, supra.  

“Operating a Motor Vehicle upon a Highway while Using Hand-Held Mobile Phone”

This post examines an opinion from the Appellate Court of Connecticut:  State v.
Dunbar, 2016 WL 1566996 (2016).  The court begins the opinion by explaining that

[t]he defendant, Lonnie Dunbar, appeals from his judgment of conviction, rendered after a trial to the court, on the charge of operating a motor vehicle upon a highway while using a hand-held mobile telephone in alleged violation of General Statutes § 14–296aa (b).  

On appeal, the defendant claims that the trial court improperly found him guilty under that statute. We agree with the defendant, and accordingly we reverse the judgment of the trial court and remand the case with direction to render a judgment of acquittal.

State v. Dunbar, supra.

Before I outline the facts and procedural history of the case, I need to note that

Connecticut General Statutes § 14–296aa(b)(1) provides as follows:

Except as otherwise provided in this subsection and subsections (c) and (d) of this section, no person shall operate a motor vehicle upon a highway, as defined in section 14-1, while using a hand-held mobile telephone to engage in a call or while using a mobile electronic device. An operator of a motor vehicle who types, sends or reads a text message with a hand-held mobile telephone or mobile electronic device while operating a motor vehicle shall be in violation of this section, except that if such operator is driving a commercial motor vehicle, as defined in section 14-1, such operator shall be charged with a violation of subsection (e) of this section.

And Connecticut General Statutes § 14-1(54) defines “motor vehicle” as

any vehicle propelled or drawn by any nonmuscular power, except aircraft, motor boats, road rollers, baggage trucks used about railroad stations or other mass transit facilities, electric battery-operated wheel chairs when operated by physically handicapped persons at speeds not exceeding fifteen miles per hour, golf carts operated on highways solely for the purpose of crossing from one part of the golf course to another, golf-cart-type vehicles operated on roads or highways on the grounds of state institutions by state employees, agricultural tractors, farm implements, such vehicles as run only on rails or tracks, self-propelled snow plows, snow blowers and lawn mowers, when used for the purposes for which they were designed and operated at speeds not exceeding four miles per hour, whether or not the operator rides on or walks behind such equipment, motor-driven cycles as defined in section 14-286, special mobile equipment as defined in section 14-165, mini-motorcycles, as defined in section 14-289j, and any other vehicle not suitable for operation on a highway. . . .

Getting back to the Appellate Court’s opinion, it begins by explaining that at

trial, the state presented the testimony of Trooper Josh McElroy of the Connecticut State Police.  McElroy testified that on the morning of April 19, 2014, while he was on traffic enforcement duty observing passing traffic on Route 66 in Columbia from an elevated parking lot, he saw the defendant drive by in a gray car while holding a cell phone in his right hand, `right around the steering wheel—or I mean the steering wheel height in the center of, the center of the car.’ Upon making that observation, McElroy pulled out from the parking lot, activated the lights of his cruiser, and pulled the defendant's vehicle over. When McElroy stopped the defendant, the defendant told him that he was `just answering’ his cell phone. McElroy observed that `[h]e had some type of microphone. It looked like from like a Walkman almost on his head. . . . He said that's what he used to talk on the phone.’ McElroy explained to the defendant that he had been cited for an infraction because `[y]ou were using your cell phone while you were driving.’

Based upon the foregoing evidence, the trial court concluded: `[T]he state has established beyond a reasonable doubt that the defendant, on April 19, 2014, was using a hand-held device while operating a motor vehicle. . . . Accordingly, the court finds the defendant guilty of violating . . . § 14–296aa as a second time offender.’ The court imposed a fine of $250 plus fees and costs. This appeal followed.

On appeal, the defendant claims that the evidence was insufficient to sustain the court's finding of guilt because the state failed to prove beyond a reasonable doubt that he was engaged in a call, as required to prove a violation of § 14–296aa, instead of merely answering his cell phone at the time that the trooper observed him holding it in his right hand. We agree.

State v. Dunbar, supra.

The Appellate Court went on to explain that

`In [a defendant's] challenge to the sufficiency of the evidence . . . [w]hether we review the findings of a trial court or the verdict of a jury, our underlying task is the same. . . . We first review the evidence presented at trial, construing it in the light most favorable to sustaining the facts expressly found by the trial court or impliedly found by the jury. We then decide whether, upon the facts thus established and the inferences reasonably drawn therefrom, the trial court or the jury could reasonably have concluded that the cumulative effect of the evidence established the defendant's guilt beyond a reasonable doubt. . . .

In assessing the defendant's claim that the evidence against him was insufficient to establish his guilt . . . we must look to the trial court's findings of fact.... [W]e give great deference to the findings of the trial court because of its function to weigh and interpret the evidence before it and to pass upon the credibility of witnesses. . . .’

`In evaluating evidence that could yield contrary inferences, the trier of fact is not required to accept as dispositive those inferences that are consistent with the defendant's innocence. . . . The trier [of fact] may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. . . . As we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt . . . nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the trier [of fact], would have resulted in an acquittal. . . . On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the [trier of fact's] verdict of guilty.’ (Citations omitted; internal quotation marks omitted.) State v. Drupals, 306 Conn. 149, 157–58, 49 A.3d 962 (Connecticut Supreme Court 2012).

State v. Dunbar, supra.

The Appellate Court then took up the issue in this case, explaining that

Section 14–296aa(b)(1) provides in relevant part: `[N]o person shall operate a motor vehicle upon a highway, as defined in section 14–1, while using a hand-held mobile telephone to engage in a call or while using a mobile electronic device. . . .’ Here, the trial court did not set forth the factual findings underlying its determination that the state had established beyond a reasonable doubt that the defendant had violated § 14–296aa. In order to make that determination, however, the court necessarily had to find that the defendant had been operating his vehicle while using his hand-held mobile telephone to engage in a call. The defendant claims on appeal that the state failed to prove that he was engaged in a call as he was merely answering his cell phone at the time that the trooper observed it in his right hand. In response to the defendant's claim, the state argues that the court could have presumed that the defendant was engaged in a call at that time due to the proximity of the phone to his ear.

To `[e]ngage in a call’ is defined in § 14–296aa(a)(6) as `talking into or listening on a hand-held mobile telephone, but does not include holding a hand-held telephone to activate, deactivate or initiate a function of such telephone.’ Section 14–296aa(b)(2) provides: `An operator of a motor vehicle who holds a hand-held mobile telephone to, or in the immediate proximity of, his or her ear while operating a motor vehicle is presumed to be engaging in a call within the meaning of this section. The presumption established by this subdivision is rebuttable by evidence tending to show that the operator was not engaged in a call.’ Section 14–296aa (a)(7) defines `[i]mmediate proximity’ as `the distance that permits the operator of a hand-held mobile telephone to hear telecommunications transmitted over such hand-held mobile telephone, but does not require physical contact with such operator's ear.’

State v. Dunbar, supra.

The court then pointed out that, at trial, the prosecution

offered no direct evidence to support a finding that the defendant was engaged in a call when McElroy saw him holding his cell phone. McElroy testified that he saw the defendant from approximately twenty feet away, while the defendant was driving on the highway, holding his cell phone in his right hand in the center of the car at the approximate height of the steering wheel. Although the court could have inferred from that testimony that the defendant was seen holding a cell phone in his hand that it was no further from his ear than the length of his arm, no evidence was presented as to the length of the defendant's arm, or whether he was holding the phone in such a way as to suggest that he was then using it to engage in a call.

McElroy's testimony that the defendant was holding the phone `in the center of the car’ does little to elucidate its precise location. More importantly, perhaps, no evidence was presented as to what type of phone the defendant was holding, what speaker feature it may have had, whether any such speaker features were then engaged, and, if so, at what volume they were set. There was thereby no evidence from which the court reasonably could have inferred that the phone was being held close enough to the defendant's ear to permit him to hear telecommunications transmitted over it. Absent such proof, the statutory presumption was unavailable to support the necessary finding that the defendant was then engaged in a call.

State v. Dunbar, supra.

The court therefore held that

[a]bsent any basis for the presumption, the only evidence as to how the defendant was using the phone as he held it came from the defendant's statements to McElroy when he was pulled over, all of which are inconsistent with the court's finding of guilt.

To begin with, the defendant's statement that he was holding the phone to answer it merely brought his conduct within the statutory exception for holding a phone to activate or initiate a function on it, which does not constitute `engaging in a call’ as a matter of law. Second, his statement that the Walkman-like device on his head was the apparatus he used to speak on the phone tended to show that the device held in his hand was not what he used for that purpose. Although the court need not have believed these statements, it could not have drawn an inference to the contrary of either statement merely because the defendant made it. See State v. Alfonso, 195 Conn. 624, 633, 490 A.2d 75 (Connecticut Supreme Court 1985).

State v. Dunbar, supra.

The Appellate Court therefore ordered that the “judgment is reversed and the case is remanded to the trial court with direction to render a judgment of acquittal.” State v. Dunbar, supra.

You can, if you are interested, you can find a news story here, that describes the traffic stop at issue in this case, and adds some other details.

Sex Offender Registration, Failure to Provide a Change of Address and Biometrics

This post examines a recent opinion from the Court of Appeals of Ohio – 8th District: State v. Young, 2016 WL 1295951 (2016). The court begins by explaining that

Defendant-appellant, Leonard Young (`Young'), appeals from his conviction for failure to provide notice of change of address in violation of [Ohio Revised Code §] 2950.05(E)(1). For the reasons set forth below, we conclude that because Young did include the address that is the subject of the conviction as a `secondary address’ on Cuyahoga County's Sex Offender Registration form (“registration form”), there is insufficient evidence to support the conviction. Therefore, we reverse and remand the matter with instructions to vacate the conviction.

State v. Young, supra.

The opinion goes on to explain that in 2006, Young

was convicted of rape and was classified as a sexually oriented offender. Following his release from a seven-year prison term, Young was notified by the Cuyahoga County Sheriff's Department that he is required to register as a sex offender.

As a registered sex offender, Young was required to register his address annually, for a period of ten years, with the sheriff's department of his county of residence. It is undisputed that Young completed the registration form on June 12, 2014, listing the Lutheran Metropolitan Ministries men's shelter, located at 2100 Lakeside Avenue (`homeless shelter’), as his `current address,’ and an apartment located at 1369 West 112th Street as his `secondary address.’

State v. Young, supra.

The court goes on to explain that

[t]he registration form states:

6.) Current Address 2100 Lakeside Cleveland 44114

* * *

12.) Secondary Address 1369 W. 112 # 307 Cleveland, Oh 44102

The state alleges that Young stopped residing at the homeless shelter and moved into the apartment on June 22, 2014. Young waived his right to a jury trial, and the matter proceeded to a bench trial on April 9, 2015.

State v. Young, supra.

The court then explains that

[a]t trial, Mike Moguel (`Moguel’), director of operations for the homeless shelter, testified that the homeless shelter has an occupancy rate of 365, but can provide shelter for up to 420 individuals because it has offsite housing with an additional 50 beds. The homeless shelter keeps track of the individuals who spend the night there by using a computerized system that is based upon biometric scans of residents' thumb prints. Individual attendance is then tracked using a unique record number. The average length of stay is 32 days.

Moguel authenticated the homeless shelter's computer printout of the bed records pertaining to Young's attendance from May 2014 through September 2014. According to Moguel, on May 16, 2014, Young was assigned to a bed in the sojourn dormitory. On May 26, 2014, he was on the waiting list for a bed in the sojourn dormitory, but left the shelter before a bed became available. On May 30, 2014, he stayed in the mat room. On June 1, 2014, he was on the waiting list, but left before a bed became available. The attendance records further indicated that Young stayed at the homeless shelter on June 2, 3, 13, and 14, 2014, and did not return again until September 17, 2014.

State v. Young, supra.

The opinion goes on to state that

Deputy Sheriff Detective Susan DeChant . . . of the Cuyahoga County Sheriff's Department testified that in 2014, she was in charge of sex offender registration compliance, and worked in the registration office. According to Detective DeChant, at the initial registration, the reporting requirements are explained to the offender. The offenders are required to complete a form and provide their name, social security number, date of birth, address, and other identifying information. Insofar as it pertains to the offender's address, the reporting form contains blanks where the offender is to list his or her `current address’ and `secondary address.’ Although Detective DeChant did not testify to the precise instructions given to Young on this particular matter, she explained the difference between an offender's `current address’ and `secondary address’ as follows:

`Whenever they have a secondary address, the registration office will explain to them this is just if you have the occasion to be someplace, but the majority of the time you have to be at your current residence.’

Detective DeChant admitted, however, that the sheriff's department does not verify whether an offender is at his `secondary address,’ because `the majority of the time [the offender has] to stay at their current residence.’ Detective DeChant acknowledged that the Ohio Attorney General's Office suggested that the registration form include a provision for `secondary addresses,’ but only Cuyahoga county asks for a `secondary address.’

Detective DeChant next testified that Young has been registering yearly since 2012. On his June 12, 2014 registration, which is the subject of the indictment, Young indicated that his `current address' was 2100 Lakeside (the homeless shelter). On the part of the form marked `secondary address,’ Young wrote, `1369 W. 112, # 307, Cleveland 44102.’ In undertaking a random verification of Young's address, she learned that he last stayed at the homeless shelter on June 20, 2014. She insisted that because Young had not advised the sheriff's department that he had moved from the homeless shelter listed as his `current residence’ and into the `secondary address,’ he was no longer in compliance with his registration duties.

State v. Young, supra.

The Court of Appeals then explained that

[f]ollowing the presentation of the state's case, the trial court denied Young's motion for acquittal. Young testified on his own behalf. He testified that he began living at the homeless shelter upon his release from prison. During his June 12, 2014 registration, he listed the homeless shelter as his `current address,’ and also noted `1369 West 112th Street, # 307,’ in a section of the form directly below `current address,’ marked `secondary address.’ He stated that he planned to move into the apartment permanently, but at the time of his registration, the apartment had various habitation issues that kept him from staying there. He explained that he had first stayed there one night in May 2014, but the housing issues were not rectified. He then stayed there regularly in July and August 2014, but it reminded him too much of prison, so he returned to the homeless shelter in September 2014.

On May 1, 2015, the trial court found Young guilty of failure to provide notice of change of address, as charged in the indictment. The court sentenced Young to nine months in prison and up to three years of post release control sanctions.

State v. Young, supra.

Young appealed, asking the Court of Appeals to consider “the following errors” in the proceeding below:

Assignment of Error One

It was error for the trial court to find [Young] guilty of a violation of § 29050.05 (failure to provide notice of change of address) based upon questionable so-called `bed records’ and other evidence insufficient to convict [Young] thereby depriving him of his rights to due process guaranteed by our Federal and State Constitutions.

                        Assignment of Error Two

The trial court erred in adjudicating a strict liability offense by failing to consider how law enforcement and those charged with enforcing statutory registration requirements upon persons classified as sexually oriented offenders do so by use of procedures and materials that lead to, or contribute to, criminal violations by such offenders.

State v. Young, supra.

The Court of Appeals explained that, “[i]n In his first assignment of error, Young argues that the trial court erred in admitting the homeless shelter `bed records’ into evidence, and that there is insufficient evidence to support his conviction for failure to provided notice of a change of address.”  State v. Young, supra.  It addressed the arguments in this order.

As to the first issue, the opinion explains that

[w]ith regard to the admission of the homeless shelter `bed records,’ Young complains that no testimony was offered to explain the biometric scanning procedure, its reliability, and the attendance records derived from those scans. He also complains that the records contain inadmissible hearsay.

We note, however, that Young failed to raise this issue at trial, so he has waived all but plain error. See Crim.R. 52(B). Under Crim.R. 52(B), `[n]otice of plain error * * * is to be taken with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice.’ State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978). . . . Crim.R. 52(B) places the following three limitations on a reviewing court's decision to correct an error despite the absence of a timely objection at trial: (1) there must be error; (2) the error must be an `obvious’ defect in the trial proceedings; and (3) the error must have affected “substantial rights.” State v. Barnes, 94 Ohio St.3d 21, 27, 2002–Ohio–68, 759 N.E.2d 1240.

We further note that `[t]he admission or exclusion of relevant evidence rests within the sound discretion of the trial court.’ State v. Sage, 31 Ohio St.3d 173, 510 N.E.2d 343 (1987), paragraph two of the syllabus.

Pursuant to Evid.R. 803(6), business records are an exception to the hearsay rule.

`To qualify for admission under Rule 803(6), a business record must manifest four essential elements: (i) the record must be one regularly recorded in a regularly conducted activity; (ii) it must have been entered by a person with knowledge of the act, event or condition; (iii) it must have been recorded at or near the time of the transaction; and (iv) a foundation must be laid by the `custodian’ of the record or by some `other qualified witness.’

State v. Davis, 116 Ohio St.3d 404, 2008–Ohio–2, 880 N.E.2d 31, ¶ 171, quoting Weissenberger, Ohio Evidence Treatise 600, Section 803.73 (2007).

In this matter, the record demonstrates that all four of the requirements for admission of the records under Evid.R. 803(6) were met, so we find no abuse of discretion in the admission of this evidence. We further note that this evidence is consistent with Young's own testimony regarding his whereabouts. Therefore, we find no plain error.

State v. Young, supra.

The Court of Appeals then took up the “sufficiency of the evidence” issue, noting that a

challenge to the sufficiency of the evidence supporting a conviction requires a determination of whether the state has met its burden of production at trial. State v. Thompkins, 78 Ohio St.3d 380, 390, 1997–Ohio–52, 678 N.E.2d 541. When reviewing sufficiency of the evidence, an appellate court must determine `”whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.”’ State v. Leonard, 104 Ohio St.3d 54, 2004–Ohio–6235, 818 N.E.2d 229, ¶ 77, quoting State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. In a sufficiency inquiry, an appellate court does not assess whether the state's evidence is to be believed, but whether if believed, the evidence admitted at trial supported the conviction. Thompkins; Jenks at paragraph two of the syllabus.

Offenders such as Young, who were convicted of sexually oriented offenses prior to January 2008, are required to register their addresses with the sheriff of the county in which they reside. R.C. 2950.05. They must also `provide written notice of any change of residence address,’ and also shall register `any new address.’ Id. Under this statute, an offender violates the registration law by: (1) failing to register one's address in the county where the offender resides within five days of coming into the county; (2) failing to register one's address in the county where the offender is temporarily domiciled for more than five days; or (3) failing to register a new address where the defendant resides or is temporarily domiciled. State v. Ballard, 7th Dist. Columbiana No. 08CO13, 2009–Ohio–5472, ¶ 92; State v. Sommerfield, 3d Dist. Union No. 14–05–23, 2006–Ohio–1420, ¶ 9; State v. Curtis, 8th Dist. Cuyahoga No. 89412, 2008–Ohio–916.

State v. Young, supra.

It went on to explain that the Supreme Court of Ohio 

has held that there is no scienter requirement for the offense because the act of failing to register alone, without more, is sufficient to trigger criminal punishment under R.C. 2950.99. State v. Cook, 83 Ohio St.3d 404, 409, 418, 1998–Ohio–291, 700 N.E.2d 570. Strict liability offenses impose liability for simply doing a prohibited act. State v. Johnson, 128 Ohio St.3d 107, 2010–Ohio–6301, 942 N.E.2d 347, ¶ 17. Similarly, failure to provide notice of `change’ of address for allegedly moving to a `new' address, in violation of R.C. 2950 .05, is a strict liability offense. State v. Stewart, 8th Dist. Cuyahoga No. 94863, 2011–Ohio–612, ¶ 17, citing State v. Beasley, 8th Dist. Cuyahoga No. 77761, 2001 Ohio App. LEXIS 4353 (Sept. 27, 2001). See also State v. Combs, 12th Dist. Brown No. CA2013–08–008, 2014–Ohio–2117. `An address changes when one no longer lives at that address.’ Beasley at ¶ 6.

State v. Young, supra.

The court also noted that,

[i]n enacting R.C. Chapter 2950, however, the legislature chose not to provide a specific definition of the term `residence.’ Combsat ¶ 9. The term is therefore construed with its ordinary meaning. Id.; Sommerfield at ¶ 18. 

The Combs court explained:

Black's Law Dictionary provides a helpful distinction between the terms residence and domicile:

`Residence usu[ally] just means bodily presence as an inhabitant in a given place; domicile usu[ally] requires bodily presence plus an intention to make the place one's home.’ Black's Law Dictionary (9th Ed.2009). * * * An individual can only have one domicile, but he can have more than one residence. * * *

`Secondary address’ is also undefined in the statutory scheme.

State v. Young, supra.

The Court of Appeals then pointed out that

[i]n this matter, the record indicates that Young, who is required to register yearly, completed the form by providing both the `current address’ of the homeless shelter and the `secondary address’ of his West 112th Street apartment. The prosecuting attorney informed the court at oral argument that the section for a `secondary address’ was included at the suggestion of the Ohio Attorney General, and that Cuyahoga county is the only county in the state to include it. According to Detective DeChant, the secondary address is provided if the offender `may have an occasion to stay at another address,’ whereas the primary address is `where the offender spends the majority of his time.’ Nonetheless, the term is undefined on the form and within the statutory reporting law scheme. In addition, it is undisputed that in undertaking random address verifications, the deputies do not check the secondary addresses.

In light of all of the foregoing, Young's conviction for failure to report a change of address, which is based on his move into the West 112th Street apartment Young identified as his `secondary address,’ is not supported by sufficient evidence. The state insists that Young violated his reporting duties when he moved from his `current address,’ identified as the homeless shelter, and into the apartment, identified as his `secondary address.’ Nonetheless, the term `secondary residence’ is not included within the statutory reporting scheme. We recognize that `an offender's acquisition of a second residence may be a change of address that triggers the notice requirements under R.C. 2950.05,’ and `[r]egistration of a single residence address gives rise to the impression that an offender has a single residence.’ Combs, 12th Dist. Brown No. CA2013–08–008, 2014–Ohio–2117, ¶ 10.

Here, however, Young provided candid, forthright, and accurate information and met his reporting requirements herein by listing all addresses where he resided. The state had actual notice of Young's address during the entire reporting period. There was no `change’ of address, such to trigger the imposition of strict liability under R.C. 2950.05(E). Young did not move to a `new address,’ or move out of a reported address, and did not commit any act that would trigger a duty to apprise the sheriff of a change in information required to be reported.

The first assignment of error is well taken.

State v. Young, supra.

The court then took up Young’s second assignment of error:

Young argues that the term `secondary address’ was not explained to him at the time of his registration and is not defined in the statutory reporting scheme. He therefore asserts that strict liability may not be imposed where, as here, an offender is at the identified `secondary address.’

The offense of failing to provide notice of a change of address is a strict liability offense. State v. Blanton, 184 Ohio App.3d 611, 617, 2009–Ohio–5334, 921 N.E.2d 1103 (10th Dist.). However, it is axiomatic that revised code provisions `defining offenses and penalties shall be strictly construed against the state, and liberally construed in favor of the accused.’ R.C. 2901.04(A). Further, in enacting R.C. Chapter 2950, the legislature did not provide a specific definition of the term `residence,’ so this term is given its ordinary meaning. Combs at ¶ 9. The term `secondary residence’ is not included within the reporting scheme.

The prosecuting attorney informed this court at oral argument that the section for a `secondary address’ was included at the suggestion of the Ohio Attorney General, and that Cuyahoga county is the only county to include it. The term `secondary address’ is not defined on the registration form, however. Detective DeChant testified that a secondary address is provided if the offender `may have an occasion to stay at another address,’ whereas the primary address is where the offender spends `the majority of his time,’ but the deputies are not required to go to the offender's secondary address to verify that there has been accurate registration. Had they done so in this instance, they would have learned that Young had provided them with accurate information. By application of the foregoing, we conclude that where, as here, the offender is accused of moving into the `secondary address’ that has actually been reported on the registration form, the offender may not be convicted of the strict liability offense of failure to provide notice of a change of address.

The second assignment of error is well taken. Judgment is reversed, and the matter is remanded with instructions to vacate the conviction.

State v. Young, supra.

One of the Court of Appeals Judges dissented, explaining, in part, that the shelter’s

bed records show that Young did not reside at the shelter for approximately three months following his registration in June 2014. Thus, the evidence presented at trial established that (1) Young no longer lived at the shelter at the time Detective DeChant attempted to verify his address, and (2) the designation of the shelter as Young's current address was no longer accurate. Under these circumstances, I would find that Young's address `changed,’ thereby triggering his duty to notify the sheriff's office of this change of address.

In reversing his conviction, the majority relies extensively on the sheriff office's `Registrant Information Form’ containing the section marked `secondary address.’ The majority states that it is this form that is the subject of the indictment in this case. In my view, however, the relevant document in this matter is the `Notice of Registration Duties of Sexual Oriented Offender or Child–Victim Offender Form’ (the `NRD’ form”) that solely lists Young's `primary home address’ as 2100 Lakeside, Cleveland, Ohio 44114. Significantly, the NRD form lists the `duties and responsibilities’ of Young's registration and contains Young's signature, `acknowledg[ing] that all of the [registration] requirements have been explained to [him]’ and attesting that he `understand[s] that [he] must abide by all of the provisions of the Ohio Revised Code Chapter § 2950, whether or not they have been explained to [him].’ In contrast to the majority's holding, I believe the NRD form is the document that triggered Young's criminal indictment in this case. . . .

Despite the future consequences that will result from the holding in this case, the sheriff's office's internal form was not intended to permit a registered sex offender to come and go from Residence A to Residence B as they wish. Similarly, I find no language in R.C. 2950.05 to conclude, as the majority's interpretation of Combs, 12th Dist. Brown No. CA2013–08–008, 2014–Ohio–211, suggests, that a sexually oriented offender can have more than one address. In my view, such a conclusion would be contrary to the public policy reasons supporting the creation of the notification requirements by the Ohio legislature.

I recognize that Young believed that he was permitted to live at his new apartment without notifying the sheriff's office based on the inclusion of the `secondary address’ section in the Registrant Information Form used by the Cuyahoga County Sheriff's Office. However, Young's subjective belief does not, and cannot, absolve him of his guilt. R.C. 2950.05 is a strict liability offense that places the burden on the defendant to comply with its notice requirements. Beasley, 8th Dist. Cuyahoga No. 77761, 2001 Ohio App. LEXIS 4353, at * 9.

Based on the foregoing, I would find there was sufficient evidence by which the trial court could have found the elements of the crime proven beyond a reasonable doubt. Accordingly, I would affirm Young's conviction.

State v. Young, supra (Gallagher, J., dissenting).