State v. Green , 2023 Ohio 501 ( 2023 )

[Cite as State v. Green, 2023-Ohio-501.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ROSS COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : Case
No. 21CA3760
vs. :
JUSTIN GREEN, : DECISION AND
JUDGMENT ENTRY
Defendant-Appellant. :
________________________________________________________________
APPEARANCES:
Michael L. Benson, Chillicothe, Ohio, for appellant.
Jeffrey C. Marks, Ross County Prosecuting Attorney, and Pamela
C. Wells, Ross County Assistant Prosecuting Attorney,
Chillicothe, Ohio, for appellee.
________________________________________________________________
CRIMINAL APPEAL FROM COMMON PLEAS COURT
DATE JOURNALIZED: 2-14-23
ABELE, J.
{¶1} This is an appeal from a Ross County Common Pleas
Court judgment of conviction and sentence. The trial court
found Justin Green, defendant below and appellant herein, guilty
of five counts of pandering obscenity involving a minor, in
violation of R.C. 2907.321.
{¶2} Appellant assigns the following error for review:
“THE TRIAL COURT ERRED IN DENYING THE
FEBRUARY 8, 2021 MOTION TO SUPPRESS FILED BY
DEFENDANT-APPELLANT, JUSTIN GREEN.”
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On April 1, 2020, Chillicothe Police Detective Christopher Fyffe
received a phone call from an individual who identified himself
as Agent Alex Harnish. Harnish stated that he worked with the
Internet Crimes Against Children task force and informed Fyffe
that he would be sending the detective some images depicting
minors from a website named Kik. Harnish indicated he would
send the detective a compact disk that contained the images, a
copy of a subpoena with subscriber information, and other data
to assist in the investigation.
{¶4} Shortly thereafter, Detective Fyffe received a compact
disk that contained subscriber information for an IP address.
This information identified appellant as the subscriber and
listed appellant’s street address, email address, and phone
number. The disk also contained four files, dated June 29,
2019, that each contained an image of possible underage females
photographed in various states of undress.
{¶5} On April 7, 2020, Detective Fyffe requested a warrant
to search appellant’s residence, which the trial court granted.
Two days later, the detective served the search warrant and
talked to the occupants, appellant and his girlfriend.
Appellant admitted that he had used Kik in the past, and his
girlfriend stated that appellant “has had a problem in the past
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with ‘chatting’ with young females on Kik.” As a result of the
search, the detective seized a cell phone and an Apple iPad.
Fyffe later applied for a warrant to search the electronic
devices, which the court also granted.
{¶6} A Ross County Grand Jury subsequently returned an
indictment that charged appellant with five counts of pandering
obscenity involving a minor, in violation of R.C. 2907.321.
{¶7} On February 8, 2021, appellant filed a motion to
suppress the evidence obtained from the searches of his
residence and electronic devices. Appellant alleged that the
search warrants were not based upon probable cause because the
search warrant affidavits were based upon hearsay and the
affidavits did not set forth the veracity and basis of knowledge
of the person who provided the detective with the information.
Appellant additionally argued that the information contained in
the affidavits was stale. He contended that nearly ten months
had elapsed since the alleged criminal conduct and, due to the
lapse of time, evidence of this criminal conduct was not likely
to be found at his residence or on his electronic devices at the
time that the detective applied for the search warrant.
{¶8} On March 21, 2021, the trial court held a hearing to
consider appellant’s motion to suppress the evidence. At the
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hearing, Detective Fyffe testified that on April 1, 2020 a
person who identified himself as Agent Alex Harnish with
Internet Crimes Against Children called the detective to inform
him that the agent would be sending in the mail some pictures
and documentation. The detective indicated he also exchanged
emails with the agent, but did not recall whether they exchanged
emails before or after he requested the search warrants. Fyffe
noted that Harnish’s email address ended with “ice.dhs.gov.”
{¶9} Detective Fyffe also explained that when he received
the information from Agent Harnish, it arrived in a certified
mail envelope. He did not recall, however, whether the envelope
contained a return mailing address. The detective further
testified that the information that Harnish sent him contained a
subpoena from Franklin County that was issued to Charter
Communications. Fyffe stated he does not know who prepared this
subpoena, but the subpoena did state that the subpoenaed
information should be sent to “Special Agent Anna Edgar of ICE,
with the Department of Homeland Security.”
{¶10} After hearing the evidence, the trial court overruled
appellant’s motion to suppress. Later, appellant entered no-
contest pleas to the five counts of the indictment.
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{¶11} On October 20, 2021, the trial court sentenced
appellant to serve 12 months in prison for each offense, that
the sentences for counts one and two to be served consecutively
to one another and the remaining sentences to be served
concurrently to the others. This appeal followed.
{¶12} In his sole assignment of error, appellant asserts
that the trial court erred by overruling his motion to suppress
evidence because, appellant contends, the search warrants were
not based upon probable cause. Appellant claims that the
information contained in the affidavits is not reliable and is
stale. Appellant argues that the search warrant affidavits did
not include any facts to indicate (1) why the information
purportedly obtained from Agent Harnish is reliable, or (2) that
Harnish is indeed who he stated he was. As such, appellant
believes that Harnish’s information should be treated the same
as an unidentified informant. Additionally, appellant argues
that the nearly ten-month-old information contained in the
affidavits did not make it probable that evidence of criminal
activity would be found at his residence, or on his electronic
devices, at the time that the detective applied for the search
warrant.
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{¶13} The appellee disputes appellant’s characterization of
Agent Harnish’s information and argues that information obtained
from other law enforcement officers may serve as a reliable
basis for issuing a search warrant. The state further disagrees
with appellant’s assertion that the nearly ten-month-old
information did not establish probable cause to believe that
evidence of child pornography would be located at his residence,
or on his electronic devices, when Detective Fyffe applied for
the search warrants.
STANDARD OF REVIEW
{¶14} Appellate review of a trial court’s ruling on a motion
to suppress evidence involves a mixed question of law and fact.
E.g., State v. Castagnola, 145 Ohio St.3d 1, 2015-Ohio-1565, 46
N.E.3d 638, ¶ 32; State v. Burnside, 100 Ohio St.3d 152, 2003-
Ohio-5372, 797 N.E.2d 71, ¶ 8; State v. Moore, 2013-Ohio-5506, 5
N.E.3d 41, ¶ 7 (4th Dist.). Appellate courts thus “‘must accept
the trial court’s findings of fact if they are supported by
competent, credible evidence.’” State v. Leak, 145 Ohio St.3d
165, 2016-Ohio-154, 47 N.E.3d 821, ¶ 12, quoting Burnside at ¶
8. Accepting those facts as true, reviewing courts
“‘independently determine as a matter of law, without deference
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to the conclusion of the trial court, whether the facts satisfy
the applicable legal standard.’” Id., quoting Burnside at ¶ 8.
FOURTH AMENDMENT PRINCIPLES
{¶15} The Fourth Amendment to the United States Constitution
provides:
The right of the people to be secure in their
persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be
violated, and no Warrants shall issue, but upon probable
cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and
the persons or things to be seized.
Article I, Section 14 of the Ohio Constitution contains
nearly identical language and provides the same protection as
the Fourth Amendment. E.g., State v. Banks-Harvey, 152 Ohio
St.3d 368, 2018-Ohio-201, 96 N.E.3d 262, ¶ 16, citing State v.
Jones, 143 Ohio St.3d 266, 2015-Ohio-483, 37 N.E.3d 123, ¶ 12;
accord State v. Taylor, 4th Dist. Lawrence No. 15CA12, 2016-
Ohio-2781, ¶ 31; State v. Eatmon, 4th Dist. Scioto No. 12CA3498,
2013-Ohio-4812, ¶ 11.
{¶16} “The ‘basic purpose of [the Fourth] Amendment’ * * *
‘is to safeguard the privacy and security of individuals against
arbitrary invasions by governmental officials.’” Carpenter v.
United States, ___ U.S. ___, 138 S.Ct. 2206, 2213, 201 L.Ed.2d
507 (2018); accord Castagnola at ¶ 33, quoting Wolf v. Colorado,
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338 U.S. 25, 27, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949), overruled
on other grounds, Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6
L.Ed.2d 1081 (1961) (“‘The security of one’s privacy against
arbitrary intrusion by the police * * * is at the core of the
Fourth Amendment.’”). Moreover, “[i]n none is the zone of
privacy more clearly defined than when bounded by the
unambiguous physical dimensions of an individual’s home.”
Payton v. New York, 445 U.S. 573, 589, 100 S.Ct. 1371, 63
L.Ed.2d 639 (1980); accord Florida v. Jardines, 569 U.S. 1, 6,
133 S.Ct. 1409, 185 L.Ed.2d 495 (2013) (“[W]hen it comes to the
Fourth Amendment, the home is first among equals.”). “‘At the
Amendment’s “very core” stands “the right of a man to retreat
into his own home and there be free from unreasonable
governmental intrusion.”’” Collins v. Virginia, ___ U.S. ___,
138 S.Ct. 1663, 1670, 201 L.Ed.2d 9 (2018), quoting Jardines,
569 U.S. at 6, quoting Silverman v. United States, 365 U.S. 505,
511, 81 S.Ct. 679, 5 L.Ed.2d 734 (1961). Accordingly, “the
Fourth Amendment has drawn a firm line at the entrance to the
house. Absent exigent circumstances, that threshold may not
reasonably be crossed without a warrant.” Payton, 445 U.S. at
590; accord State v. Maranger, 2018-Ohio-1425, 110 N.E.3d 895, ¶
20 (2d Dist.) (citations omitted) (“[u]nless a recognized
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exception applies, the Fourth Amendment * * * mandates that
police obtain a warrant based on probable cause in order to
effectuate a lawful search.”).
STANDARD FOR ISSUING SEARCH WARRANT
{¶17} A search warrant may only be issued (1) upon probable
cause, (2) supported by oath or affirmation, and (3)
particularly describing the place to be searched and the person
and/or things to be seized. See King, 563 U.S. at 459 (the
Fourth Amendment allows a warrant to issue only when “probable
cause is properly established and the scope of the authorized
search is set out with particularity”); accord R.C. 2933.23;
Crim.R. 41. “The essential protection of the warrant
requirement of the Fourth Amendment * * * is in ‘requiring that
[the usual inferences which reasonable men draw from evidence]
be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive
enterprise of ferreting out crime.’” Illinois v. Gates, 462
U.S. 213, 240, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), quoting
Johnson v. United States, 333 U.S. 10, 13-14, 68 S.Ct. 367, 92
L.Ed. 436 (1948).
{¶18} Accordingly, a search warrant “affidavit must set
forth particular facts and circumstances underlying the
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existence of probable cause, so as to allow the magistrate to
make an independent evaluation of the matter.” Franks v.
Delaware, 438 U.S. 154, 165, 98 S.Ct. 2674, 57 L.Ed.2d 667(1978). Moreover, the facts and circumstances set forth in the
“affidavit must provide the magistrate with a substantial basis
for determining the existence of probable cause.” Gates, 462
U.S. at 239. A search warrant affidavit need not, however,
comply with any “‘[t]echnical requirements of elaborate
specificity.’” Id. at 235, quoting Ventresca, 380 U.S. 102,
108, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965). Instead,
[i]n determining the sufficiency of probable cause in an
affidavit submitted in support of a search warrant,
“[t]he task of the issuing magistrate is simply to make
a practical, common-sense decision whether, given all
the circumstances set forth in the affidavit before him,
including the ‘veracity’ and ‘basis of knowledge’ of
persons supplying hearsay information, there is a fair
probability that contraband or evidence of a crime will
be found in a particular place.”
State v. George, 45 Ohio St.3d 325, 544 N.E.2d 640 (1989),
paragraph one of the syllabus, quoting Gates, 462 U.S. at 238-
239; accord Castagnola at ¶ 35 (“[T]he evidence must be
sufficient for the magistrate to conclude that there is a fair
probability that evidence of a crime will be found in a
particular place.”).
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{¶19} A search warrant affidavit thus must contain
“[s]ufficient information” to allow a magistrate or judge to
conclude that probable cause to search exists. Gates, 462 U.S.
at 239. A magistrate or a judge cannot simply ratify “the bare
conclusions of others.” Id. Therefore, “[i]n order to ensure
that such an abdication of the magistrate’s duty does not occur,
courts must continue to conscientiously review the sufficiency
of affidavits on which warrants are issued.” Id.{¶20} A search warrant issued after a magistrate or judge
has independently determined that probable cause to search
exists will enjoy a presumption of validity. State v. Jones, 90
Ohio St.3d 403, 412, 739 N.E.2d 300 (2000), citing State v.
Roberts, 62 Ohio St.2d 170, 178, 405 N.E.2d 247 (1980); State v.
Parks, 4th Dist. Ross No. 1306, 1987 WL 16567 (Sept. 3, 1987),
*4; accord Franks, 438 U.S. at 171 (search warrant affidavit
presumed valid). Thus, “‘the burden is on a defendant who seeks
to suppress evidence obtained under a regularly issued warrant
to show the want of probable cause.’” United States v. de la
Fuente, 548 F.2d 528, 534 (5th Cir. 1977), quoting Batten v.
United States, 188 F.2d 75, 77 (5 Cir. 1951); accord Xenia v.
Wallace, 37 Ohio St.3d 216, 218, 524 N.E.2d 889 (1988), citing
de la Fuente (“[t]he burden of initially establishing whether a
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search or seizure was authorized by a warrant is on the party
challenging the legality of the search or seizure”); State v.
Hobbs, 4th Dist. Adams No. 17CA1054, 2018-Ohio-4059, ¶ 32; State
v. Wallace, 2012-Ohio-6270, 986 N.E.2d 498, ¶ 27 (7th Dist.) (a
defendant who “attacks the validity of a search conducted under
a warrant” carries “the burden of proof * * * to establish that
evidence obtained pursuant to the warrant should be
suppressed”).
{¶21} A court that is reviewing a defendant’s challenge to a
probable-cause determination in a search warrant must “accord
great deference to the magistrate’s” probable-cause
determination and must resolve “doubtful or marginal cases” “in
favor of upholding the warrant.” George, paragraph two of the
syllabus. Indeed, any “after-the-fact scrutiny by courts of the
sufficiency of an affidavit should not take the form of de novo
review.” Gates, 462 U.S. at 236. Thus, a reviewing court may
not “substitute its judgment for that of the magistrate by
conducting a de novo determination as to whether the affidavit
contains sufficient probable cause upon which that court would
issue the search warrant.” George at paragraph two of the
syllabus. Instead, a reviewing court’s duty “is simply to
ensure that the magistrate had a substantial basis for
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concluding that probable cause existed.” Id.; accord Gates, 462
U.S. at 238-39; Castagnola at ¶ 35. Additionally, reviewing
courts must refrain from interpreting search-warrant affidavits
“‘in a hypertechnical, rather than a commonsense, manner.’”
Gates, 462 U.S. at 236, quoting United State v. Ventresca, 380
U.S. 102, 109, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965).
Nevertheless, “a reviewing court may properly conclude that,
notwithstanding the deference that magistrates deserve, the
warrant was invalid because the magistrate’s probable-cause
determination reflected an improper analysis of the totality of
the circumstances, or because the form of the warrant was
improper in some respect.” United States v. Leon, 468 U.S. 897,
915, 104 S.Ct. 3405, 3416-17, 82 L.Ed.2d 677 (1984), citing
Gates, 462 U.S. at 238-239; accord State v. Jones, 143 Ohio
St.3d 266, 2015-Ohio-483, 37 N.E.3d 123, ¶ 13 (“reviewing courts
must examine the totality of the circumstances”).
{¶22} Probable cause is “a fluid concept” that is “not
readily, or even usefully, reduced to a neat set of legal
rules.” Gates, 462 U.S. at 232. Rather, probable cause “deals
with probabilities and depends on the totality of the
circumstances.” Maryland v. Pringle, 540 U.S. 366, 371, 124
S.Ct. 795, 157 L.Ed.2d 769 (2003). The probable-cause standard
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“requires only a probability or substantial chance of criminal
activity, not an actual showing of such activity.” Gates at
243–244, fn.13. Thus, the probable-cause standard does not set
“a high bar.” Kaley v. United States, 571 U.S. 320, 338, 134
S.Ct. 1090, 188 L.Ed.2d 46 (2014); accord District of Columbia
v. Wesby, ___ U.S. ___, 138 S.Ct. 577, 586, 199 L.Ed.2d 453(2018).
SOURCE OF INFORMATION
{¶23} Appellant first alleges that the search warrant
affidavits did not establish probable cause because the
detective failed to ensure that the source of the information
contained in the affidavits (Agent Harnish) is a reliable
source. Appellant contends that the detective should have
independently verified that Harnish is indeed who he claimed to
be.
{¶24} We recognize that “‘[o]bservations of fellow officers
of the Government engaged in a common investigation are plainly
a reliable basis for a warrant applied for by one of their
number.’” State v. Henderson, 51 Ohio St.3d 54, 57, 554 N.E.2d
104 (1990), quoting United States v. Ventresca, 380 U.S. 102,
111, 85 S.Ct. 741, 13 L.Ed.2d 684, (1965) (footnote omitted).
Thus, Ohio courts generally have held that “a law enforcement
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official who obtains information during an official
investigation and divulges that information to another law
enforcement officer * * * is a credible source.” State v.
Herron, 2nd Dist. Darke No. 1404, 1996 WL 697021, *4; accord
State v. Revere, 2nd Dist. Montgomery No. 28857, 2022-Ohio-551,
¶ 24, citing United States v. Horne, 4 F.3d 579, 585 (8th
Cir.1993) (“[P]robable cause may be based on the collective
knowledge of all law enforcement officers involved in an
investigation and need not be based solely upon the information
within the knowledge of the officer on scene[.]”).” This
collective-knowledge doctrine permits officers to form probable
cause (or reasonable suspicion) based upon information that
another law enforcement officer provided. See, e.g., State v.
Wortham, 145 Ohio App.3d 126, 130, 761 N.E.2d 1151 (2nd
Dist.2001); United States v. Beck, 765 F.2d 146 (6th Cir.1985)
(the collective-knowledge doctrine typically applied in
determining probable cause to arrest “is equally applicable to a
search warrant”); accord United States v. Spears, 965 F.2d 262,
277 (7th Cir.1992) (“In determining whether probable cause
exists, a magistrate is entitled to regard an affiant’s fellow
law enforcement officers as reliable sources.”). Accordingly,
Ohio courts generally have upheld search-warrant affidavits that
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rely upon information that another officer provided. Revere,
supra; State v. Jones, 2nd Dist. Montgomery No. 23926, 2011-
Ohio-1984, ¶ 20; Herron, supra.
{¶25} In Revere, for example, the court upheld a search
warrant that relied upon information received from another
police department. In that case, a Middletown Police detective
contacted the Moraine Police Department to request a welfare
check at the defendant’s residence, the place where a missing
person had last been spotted. After officers visited the
residence, they sought and were granted a warrant to search.
During the search, officers discovered the deceased body of the
missing person.
{¶26} Subsequently, a grand jury returned an indictment that
charged the defendant with several criminal offenses. The
defendant later sought to suppress the evidence obtained as a
result, but the trial court denied his motion.
{¶27} After his conviction, the defendant appealed and
argued, in part, that the search warrant affidavit rested upon
unreliable hearsay evidence (i.e., the Middletown Police
detective’s statement that the missing person was last spotted
at his residence). The appellate court disagreed and stated:
“it is well settled that officers may rely on information
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received from other members of the law enforcement community if
the reliance is reasonable.” Revere at ¶ 24, citing Doran v.
Eckold, 409 F.3d. 958, 965 (8th Cir.2005). The court thus
determined that the trial court did not err by concluding that
the Middletown Police detective’s information was reliable and
by overruling the defendant’s motion to suppress.
{¶28} Similarly, in the case sub judice, Detective Fyffe
relied upon information that Agent Harnish, another law
enforcement officer, provided. We find nothing in the record to
suggest that the detective’s reliance was unreasonable. The
detective stated that he received the information via certified
mail shortly after he spoke with Harnish, that part of this
information included an investigative subpoena issued to the IP
provider that included the name of another agent and an email
address that ended with ice.dhs.gov. Fyffe stated that
Harnish’s email address also ended with ice.dhs.gov. Although
the detective could not recall whether he exchanged emails with
Harnish before or after he applied for the warrant, the
information that the detective received in the mail, including
the investigative subpoena that listed the name of a Special
Agent, her email address ending in ice.dhs.gov and her phone
number, shows that he reasonably relied upon the information.
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{¶29} Consequently, we disagree with appellant that the
search warrant affidavits did not contain sufficiently reliable
information to support probable cause to believe that a search
of his residence and electronic devices would uncover evidence
of criminal activity.
STALENESS
{¶30} Appellant also asserts that the facts contained in the
search-warrant affidavits were too stale to establish probable
cause to search his residence or his electronic devices.
Appellant points out that the affidavits reference images
downloaded in June 2019 – nearly ten months before Detective
Fyffe applied for the search warrants. Appellant claims that,
given the lapse of time, when the detective applied for the
search warrants, he did not have a reasonable basis to believe
that this evidence of alleged criminal activity still might be
found at his residence or on his electronic devices.
{¶31} “Probable cause must be determined as of the date the
warrant is requested.” State v. Goble, 2014-Ohio-3967, 20
N.E.3d 280, ¶ 11 (6th Dist.), citing State v. Sautter, 6th Dist.
Lucas No. L-88-324, 1989 WL 90630, *3 (Aug. 11, 1989). Thus,
“probable cause to search cannot be based on stale information
that no longer suggests that the item sought will be found in
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the place to be searched.” United States v. Shomo, 786 F.2d
981, 983 (10th Cir. 1986) (citation omitted); accord United
States v. Wagner, 951 F.3d 1232, 1246 (10th Cir. 2020); United
States v. Knox, 883 F.3d 1262, 1273, 1276 (10th Cir. 2018).
{¶32} “[T]he timeliness of the information contained in the
affidavit is an important variable.” Shomo, 786 F.2d at 984.
However, “probable cause is not determined simply by counting
the number of days between the facts relied on and the issuance
of the warrant.” Id. at 983–84 (citation omitted). Instead,
“[w]hether facts are ‘too stale’ to be of probative value must
be decided on a case-by-case basis.” Goble at ¶ 11, citing
Sautter at *3.
{¶33} “‘While there is no arbitrary time limit on how old
information can be, the alleged facts must justify the
conclusion that the subject contraband is probably on the person
or premises to be searched.’” State v. Jones, 72 Ohio App.3d
522, 526, 595 N.E.2d 485 (6th Dist.1991); accord State v.
Proffit, 5th Dist. Fairfield App. No. 07CA36, 2008-Ohio-2912,
2008 WL 2573265, ¶ 20 (“Although specific references to dates
and times are best, there is no hard and fast rule as to the
staleness issue”). “The affidavit must * * * contain some
information that would allow the magistrate to independently
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determine that probable cause presently exists - not merely that
it existed at some time in the past.” State v. Lauderdale, 1st
Dist. Hamilton No. C-990294, 2000 WL 209395, *1 (Feb. 18, 2000),
citing Sgro v. United States, 287 U.S. 206, 210, 53 S.Ct. 138,
77 L.Ed. 260 (1932).
{¶34} When reviewing whether information is too stale to
establish probable cause, courts may consider “the nature of the
criminal activity, the length of the activity, and the nature of
the property to be seized.” Shomo, 786 F.2d at 983–84
(citations omitted); accord State v. Reece, 3d Dist. Marion No.
9-17-27, 2017-Ohio-8789, ¶ 15, and State v. Jendrusik, 7th Dist.
Belmont No. 06-BE-06, 2006-Ohio-7062, ¶ 21 (listing factors more
specifically as “(1) the nature of the crime; (2) the criminal;
(3) the thing to be seized, as in whether it is perishable and
easily transferable or of enduring utility to its holder; (4)
the place to be searched; and (5) whether the information in the
affidavit relates to a single isolated incident or protracted
ongoing criminal activity”).
{¶35} For example, when “the property sought is likely to
remain in one place for a long time, probable cause may be found
even though there was a substantial delay between the occurrence
of the event relied on and the issuance of the warrant.” Shomo,
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786 F.2d at 984 (citations omitted). In other cases, like drug
cases where drugs are often sold or used promptly, information
that is months-old may well be stale. United States v.
Frechette, 583 F.3d 374, 378 (6th Cir.2009), citing United
States v. Kennedy, 427 F.3d 1136, 1142 (8th Cir.2005)
(“[I]nformation of an unknown and undetermined vintage relaying
the location of mobile, easily concealed, readily consumable,
and highly incriminating narcotics could quickly go stale in the
absence of information indicating an ongoing and continuing
narcotics operation.”) (citations omitted). In cases involving
child pornography, however, months-old information may not be
stale “because the images can have an infinite life span.” Id.;
accord State v. Dixon, 10th Dist. Franklin No. 21AP-152, 2022-
Ohio-4532, ¶ 30, quoting State v. Eal, 10th Dist. No. 11AP-460,
2012-Ohio-1373, ¶ 22 (“‘child pornography collectors tend to
retain their collections for long periods of time helps prevent
otherwise dated information from becoming stale’”); State v.
Lowe, 2nd Dist. Montgomery No. 26994, 2017-Ohio-851, ¶ 13 (“In
cases of child pornography, we have held that the elapse of
substantial periods of time often do not render the information
in a supporting affidavit stale.”); Eal at ¶ 24 (“an issuing
magistrate * * * independently may notice that conduct involving
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child pornography is of a continuing nature.”); State v. Ingold,
10th Dist. Franklin No. 07AP-648, 2008-Ohio-2303, ¶ 37 (“the
enduring quality of child pornography to the perpetrator”).
{¶36} In Frechette, for example, the court determined that
information that a defendant paid for a one-month subscription
to a child-pornography web site still supported probable cause
to believe that evidence of criminal activity would be located
at the defendant’s home even though officers executed the search
warrant 16 months after the defendant’s one-month subscription
ended. In analyzing the staleness factors, the court observed
that “child pornography is not a fleeting crime,” and “‘is
generally carried out in the secrecy of the home and over a long
period.’” Id., quoting United States v. Paull, 551 F.3d 516,
522 (6th Cir.2009). Additionally, “‘evidence that a person has
visited or subscribed to web sites containing child pornography
supports the conclusion that he has likely downloaded, kept, and
otherwise possessed the material.’” Id., quoting United States
v. Wagers, 452 F.3d 534, 540 (6th Cir.2006). Thus, unlike drug
cases in which drugs typically are quickly transferred or used,
“digital images of child pornography can be easily duplicated
and kept indefinitely even if they are sold or traded. In
short, images of child pornography can have an infinite life
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span.” Id. at 379, citing United States v. Terry, 522 F.3d 645,
650 fn. 2 (6th Cir.2008) (“Images typically persist in some form
on a computer hard drive even after the images have been deleted
and, as ICE stated in its affidavit, such evidence can often be
recovered by forensic examiners.”). The court thus concluded
that “‘the same time limitations that have been applied to more
fleeting crimes do not control the staleness inquiry for child
pornography.’” Id., quoting United States v. Paull, 551 F.3d
516, 522 (6th Cir.2009).
{¶37} Applying these factors led the Frechette court to
conclude that the 16-month-old information regarding the
defendant’s one-month subscription was not stale information.
The court therefore determined that the magistrate correctly
considered the information when deciding whether probable cause
supported issuing the search warrant.
{¶38} In the case sub judice, the search warrant affidavits
contained information that, nearly ten months earlier, appellant
had downloaded child pornography. Because these images may
exist forever and because perpetrators often hold on to the
images for long periods of time, we believe that the ten-month-
old information is not stale. Consequently, we do not agree
with appellant that the information contained in the search-
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warrant affidavits was too stale to support probable cause to
believe that his residence and electronic devices would contain
evidence of child pornography.1 The trial court, therefore, did
not err by overruling appellant’s motion to suppress the
evidence discovered upon executing the search warrants.
{¶39} Accordingly, based upon the foregoing reasons, we
overrule appellant’s assignment of error and affirm the trial
court’s judgment.
JUDGMENT AFFIRMED.
1 Because we have determined that probable cause supported
issuing the search warrant, we do not consider the state’s
alternate argument that the good-faith exception applies.
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JUDGMENT ENTRY
It is ordered that the judgment be affirmed and appellee
recover of appellant the costs herein taxed.
The Court finds there were reasonable grounds for this
appeal.
It is ordered that a special mandate issue out of this
Court directing the Ross County Common Pleas Court to carry this
judgment into execution.
If a stay of execution of sentence and release upon bail
has been previously granted, it is continued for a period of 60
days upon the bail previously posted. The purpose of said stay
is to allow appellant to file with the Ohio Supreme Court an
application for a stay during the pendency of the proceedings in
that court. The stay as herein continued will terminate at the
expiration of the 60-day period.
The stay will also terminate if appellant fails to file a
notice of appeal with the Ohio Supreme Court in the 45-day
period pursuant to Rule II, Sec. 2 of the Rules of Practice of
the Ohio Supreme Court. Additionally, if the Ohio Supreme Court
dismisses the appeal prior to the expiration of said 60 days,
the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute that
mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Hess, J. & Wilkin, J.: Concur in Judgment & Opinion
For the Court
BY:__________________________
Peter B. Abele, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a
final judgment entry and the time period for further appeal
commences from the date of filing with the clerk.