State v. Hamrick

2011 Ohio 5357

STATE OF OHIO, Plaintiff-Appellee,

v.CHARLES R. HAMRICK, Defendant-Appellant

CASE NO. CA2011-01-002

COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO MADISON COUNTY

Dated: October 17, 2011

CRIMINAL APPEAL FROM MADISON COUNTY COURT OF COMMON PLEAS

Case No. CRI20100042

Stephen J. Pronai, Madison County Prosecuting Attorney, Eamon Costello and Rachel M. Price, 59 North Main Street, London, Ohio 43140, for plaintiff-appellee

Jonathan T. Tyack, 536 South High Street, Columbus, Ohio 43215, for defendant-appellant

HUTZEL, J.

{¶1} Defendant-appellant, Charles R. Hamrick, appeals his conviction and sentence in the Madison County Court of Common Pleas for multiple sexual offenses.

{¶2} In early November 2010, Detective Marcus Penwell of the Franklin County Sheriff's Office, Internet Crimes Against Children Task Force, conducted an internetsearch for child pornography using the file share program known as "MP3 Rocket." MP3 Rocket allows "users," i.e., those who download the program onto their computer, to search for and share files with other users.

{¶3} Detective Penwell searched the MP3 Rocket network for files with titles indicative of child pornography. His search generated a list of files, along with the internet protocol address ("IP address"), of each computer possessing the files. An IP address is "similar to a home's mailing address and is unique to the computer's location." State v. Thornton, II, Franklin App. No. 09AP-108, 2009-Ohio-5125. See, also, United States v. Kennedy (D.Kan.2000), 81 F.Supp.2d 1103, footnote 3.

{¶4} Using MP3 Rocket, along with specialized investigative software, Detective Penwell made a direct connection with a specific IP address, at which time he discovered nearly 400 files with titles indicative of child pornography. As a result of his findings, Detective Penwell prepared an investigative subpoena to obtain the subscriber information associated with the IP address.¹ Detective Penwell delivered the subpoena to Time Warner Cable, the internet service provider for the IP address. Time Warner indicated the IP address belonged to appellant, who resided at 2830 Oneida Drive in London, Ohio.

{¶5} Using this information, Detective Penwell obtained a search warrant for appellant's residence. On November 25, 2010, Detective Penwell assisted the Madison County Sheriff's Office in executing the warrant. During the search, appellant indicated he was the primary user of the computer and admitted to installing MP3 Rocket on the hard drive. Appellant also indicated the pornography files were password-protected and that no one else knew his password or had access to the material.

{¶6} Pursuant to the search warrant, law enforcement seized various computerequipment from appellant's residence. Upon searching appellant's hard drive, investigators discovered 339 images and 28 videos containing child pornography. As a result, the Madison County Grand Jury issued an eight-count indictment against appellant. Counts 1 through 4 charged appellant with the illegal use of a minor in nudity-oriented material or performance in violation of R.C. 2907.323(A)(3). Counts 5 and 6 charged appellant with pandering obscenity involving a minor in violation of R.C. 2907.321(A)(1). Counts 7 and 8 charged appellant with pandering obscenity involving a minor in violation of R.C. 2907.321(A)(2).

{¶7} Appellant filed a pretrial motion to suppress the evidence obtained at his residence. Appellant argued law enforcement illegally obtained his subscriber information from Time Warner, therefore the search warrant based on this information was invalid. After a hearing, the trial court denied appellant's motion. Following a bench trial, appellant was convicted as charged in Counts 1-4, 6, and 8. As for Counts 5 and 7, the trial court found appellant guilty of R.C. 2907.321(A)(5), rather than R.C. 2907.321(A)(1) and (A)(2), respectively.

{¶8} Appellant timely appeals, raising three assignments of error for review.

{¶9} Assignment of Error No. 1:

{¶10} "THE TRIAL COURT ERRED IN OVERRULING APPELLANT'S MOTION TO SUPPRESS ALL EVIDENCE ARISING OUT OF OR RESULTING FROM THE INVESTIGATIVE SUBPOENA SENT TO TIME WARNER CABLE BY DETECTIVE PENWELL FOR THE PURPOSES OF DETERMINING APPELLANT'S IDENTIY [sic]. (R.28)."

{¶11} In his first assignment of error, appellant argues law enforcement obtained his subscriber information in violation of the Electronic Communications Privacy Act, Section 2701, et seq., Title 18, U.S.Code (ECPA). Appellant argues the trial courterroneously failed to suppress all evidence stemming from the illegal attainment of his subscriber information as fruit of the poisonous tree.

{¶12} Appellate review of a ruling on a motion to suppress presents a mixed question of law and fact. State v. Little, Warren App. No. CA2010-12-124, 2011-Ohio-4175, ¶10; State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶8. When considering a motion to suppress, the trial court, as the trier of fact, is in the best position to weigh the evidence in order to resolve factual questions and evaluate witness credibility. Little at ¶10. In turn, the appellate court must accept the trial court's findings of fact so long as they are supported by competent, credible evidence. Id. After accepting the trial court's factual findings as true, the appellate court must then determine, as a matter of law, and without deferring to the trial court's conclusions, whether the trial court applied the appropriate legal standard. Id.

{¶13} The ECPA regulates the disclosure of electronic communications and subscriber information. Section 2703(c)(1)(B), Title 18, U.S.Code states, in pertinent part: "[a] governmental entity may require a provider of electronic communication service or remote computing service to disclose a record or other information pertaining to a subscriber to or customer of such service * * * only when the governmental entity * * * (ii) obtains a court order for such disclosure under subsection (d) of this section[.]" Subsection (d) sets forth the requirements of a court order:

{¶14} "(d) Requirements for court order - A court order for disclosure under subsection (b) or (c) * * * shall issue only if the governmental entity offers specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation." Section 2703(d), Title 18, U.S.Code. {¶15} Appellant argues the investigative subpoena utilized in this case did not qualify as a "court order" under the ECPA or, for that matter, state law. Specifically, appellant argues law enforcement failed to comply with R.C. 2935.23 in applying for the investigative subpoena.² Absent compliance with state law, appellant argues there could be no compliance with federal standards for a court order. Appellant seeks to suppress all evidence obtained as a result of the allegedly invalid court order.

{¶16} Because the remedy appellant seeks is unavailable to him, we decline to address whether the investigative subpoena constituted a valid "court order."

{¶17} Even if law enforcement obtained appellant's subscriber information pursuant to an invalid court order, suppression is not a remedy contemplated under the ECPA. See Kennedy, 81 F.Supp.2d at 1110. "The statute specifically allows for civil damages and criminal punishment for violations of the ECPA, see 18 U.S.C. §§ 2707, 2701(b), but speaks nothing about the suppression of information in a court proceeding. Instead, Congress clearly intended for suppression not to be an option for a defendant whose electronic communications have been intercepted in violation of the ECPA." Id. (Emphasis sic.) See, also, Section 2703(e), Title 18, U.S.Code. The ECPA specifically states: "[t]he remedies and sanctions described in this chapter are the only judicial remedies and sanctions for nonconstitutional violations of this chapter." Section 2708, Title 18, U.S.Code. See, also, Davis v. United States (2011), __ U.S. _, 131 S.Ct. 2419, 2427 (suppression remedy should apply as a "last resort").

{¶18} Appellant's constitutional rights were not violated when law enforcement obtained his subscriber information from Time Warner because he has not demonstratedan objectively reasonable expectation of privacy in this information. "[W]hat a person knowingly exposes to the public, even in his home or office, is not a subject of Fourth Amendment protection." Katz v. United States (1967), 389 U.S. 347, 351, 88 S.Ct. 507. Further, "a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties." Smith v. Maryland (1979), 442 U.S. 735, 743-744, 99 S.Ct. 2577.

{¶19} When appellant entered an agreement with Time Warner for internet service, he knowingly revealed the subscriber information associated with his IP address, including his name, address and telephone number. Appellant cannot now claim to have a Fourth Amendment privacy interest in this information. See United States v. Cray (S.D.Ga.2009), 673 F.Supp.2d 1368, 1375; Freedman v. Am. Online, Inc. (D.Conn.2005), 412 F.Supp.2d 174, 181 ("courts have universally found that, for purposes of the Fourth Amendment, a subscriber does not maintain a reasonable expectation of privacy with respect to his subscriber information"); Thornton, 2009-Ohio-5125 at ¶12.

{¶20} Thus, even if law enforcement used an invalid court order to obtain appellant's subscriber information, this statutory violation would not provide appellant with a basis to suppress this information or any evidence stemming therefrom.

{¶21} Accordingly, the trial court did not err in overruling appellant's motion to suppress.

{¶22} Appellant's first assignment of error is overruled.

{¶23} Assignment of Error No. 2:

{¶24} "THE TRIAL COURT ERRED IN OVERRULING DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL PURSUANT TO CRIMINAL RULE 29 AS IT RELATES TO COUNTS...