State v. Seem

196 N.E.3d 384

STATE of Ohio, Appellee

v.Jeremy SEEM, Appellant

No. S-21-014

Court of Appeals of Ohio, Sixth District, Sandusky County.

Decided: September 30, 2022

Beth A. Tischler, Sandusky County Prosecuting Attorney, and Alexis M. Otero, Assistant Prosecuting Attorney, for appellee.

Andrew Schuman, Bowling Green, for appellant.

DECISION AND JUDGMENT

MAYLE, J.

{¶ 1} Defendant-appellant, Jeremy Seem, appeals the August 26, 2021 judgment of the Sandusky County Court of Common Pleas, convicting him of two counts of pandering obscenity involving a minor and two counts of pandering sexual matter involving a minor, and sentencing him to a total indefinite term of eight to 12 years in prison. For the following reasons, we reverse the trial court judgment.

I. Background

{¶ 2} Jeremy Seem was indicted on August 21, 2020, on seven counts of pandering obscenity involving a minor, violations of R.C. 2907.321(A)(1), and four counts of pandering sexual matter involving a minor, violations of R.C. 2907.322(A)(1), all second-degree felonies. These charges were filed after obscene or sexual photos and videos of minors were found on Seem's cellphone.

{¶ 3} Seem moved to suppress the evidence retrieved from his cellphone. He claimed that then-Detective Zachary Zender, of the Sandusky County Sheriff's Department, unlawfully seized his phone, then searched it, without a warrant. The state responded that no warrant was required because Seem consented to the search and seizure of his phone. Following an evidentiary hearing on April 5, 2021, the trial court denied Seem's motion in a written decision and judgment entry journalized on May 12, 2021. It found that Zender possessed probable cause to believe that Seem's phone contained evidence of illegal activity, which may have been deleted if the phone was left in Seem's possession, thus the phone was lawfully seized without a warrant. It further found that Seem consented to the seizure and search of his phone.

{¶ 4} After the trial court denied his motion to suppress, Seem entered a plea of no contest to two counts of pandering obscenity involving a minor and two counts of pandering sexual matter involving a minor, in exchange for the dismissal of the remaining seven counts. The trial court accepted Seem's plea, found him guilty, and sentenced him to eight years in prison on each count, to be served concurrently, for a total indefinite term of eight to 12 years in prison.

{¶ 5} Seem appealed. He assigns the following errors for our review:

1. The trial court erred when it failed to suppress evidence seized from a search of Mr. Seem's cellular phone when such evidence was seized without a warrant and without a valid warrant exception.

2. The indeterminate sentence violates the Ohio and United States Constitutions.

II. Law and Analysis

{¶ 6} In his first assignment of error, Seem challenges the trial court's denial of his motion to suppress. Seem argues that his phone was seized without a warrant and without a valid exception to the warrant requirement. He maintains that he did not give express consent to the search and seizure of his cellphone, and to the extent that he permitted Zender to seize, then search, his phone, he merely acquiesced to Zender's display of authority, which does not constitute valid consent.

{¶ 7} "Appellate review of a motion to suppress presents a mixed question of law and fact." State v. Burnside , 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. When the trial court considers a motion to suppress, it acts as the factfinder and is in the best position to resolve factual questions and to evaluate the credibility of witnesses. Id. We, therefore, must accept the trial court's findings of fact if they are supported by competent, credible evidence. Id. Our role then is to independently determine, without deference to the trial court's conclusion, whether the facts satisfy the applicable legal standard. Id.

A. The Evidence Adduced at the Suppression Hearing

{¶ 8} We begin by summarizing the evidence that was presented at the suppression hearing. One witness testified at the hearing—then-Detective Zachary Zender—and the following evidence was elicited.

{¶ 9} In July of 2020, the Sandusky County Sheriff's Department received information that Seem was in a chat room "talking to another individual about inappropriate things, possibly putting pictures of his daughter on this website, sharing them, and some of the comments that were being made that there was possibly some sexual misconduct." On July 23, 2020, Seem voluntarily appeared at the Sheriff's Office where Zender interviewed him. Seem was not under arrest.

{¶ 10} Seem had not brought his phone to the interview, so after Zender finished questioning him, he asked Seem if he could go to Seem's home and look at his phone. Seem said yes, and Zender followed Seem to his residence. Seem got his phone, which was password-protected, and opened it for Zender. Zender looked to see what apps were on the phone and he browsed through Seem's photographs. The app Zender was looking for was not on the phone. Seem said he deleted it because it was not being used. Seem was sober, they were in his garage, he knew why Zender was talking to him, and he understood the nature of the allegations.

{¶ 11} Zender and Seem's interaction was recorded and the recording was played at the hearing. Zender told Seem that he spoke with his supervisor on the way over and his supervisor was not comfortable with Zender just looking at the phone—he wanted to get Seem's phone "dumped"—i.e., to extract data from the phone, including deleted data and photos. Zender told Seem that this could be accomplished in "two different ways." He could take the phone and get a warrant to search its contents. Or he could take the phone and with Seem's consent, he could search its contents without a warrant. Zender explained:

Zender: I can take your phone and I can do a search warrant and go that route, which will take longer.

Seem: Sure.

Zender: Which I'm guessing, from what you're telling me, there's nothing going to be on here.

Seem: Right.

Zender: But, I -- and I guess in a way it is better for you if we can dump it. I might even be able to get it somewhere tomorrow morning. And get it back tomorrow.

Seem: Okay.

Zender: If I can do that, then I can try to get your phone back to you -- I could probably leave it maybe at the dispatch center or the jail and then you could come pick it up when you get off work.

Seem: Mmhmm.

Zender: The downside is I don't know who is going to be available tomorrow and it might have to go ‘til Monday. And I know it's a long time to go without your phone.

Seem: Right.

Zender: Umm -- I guess that's the deal. Is I could try to do it tomorrow morning. I know that there's a guy up in Perrysburg. He's usually pretty quick. He'll probably have it done -- I could even ask him if he could maybe speed-track it for me if I take it up there. Maybe I'll go get something to eat, come back and pick it up.

Seem: Okay.

Zender: If not, like I said, I'll just have to take the phone. And then I'll have to probably next week get a search warrant, get it signed, and I'll try to get it back to you sometime next week.

Seem: Okay. So you'll take it now without a search warrant?

Zender: Correct . Yeah, and the reason why I'm going to take it now and I can take it now is because if I leave it here without one, the odds that if there is something on here that you can either reset your phone.

Seem: Right.

Zender: So it's something I can do -- I'm not going to get in your phone without a search warrant.

Seem: Right.

Zender: But because the chance of things being destroyed, evidence being destroyed, if I leave it here. I need to take it with me now , if that makes sense.

Seem: Yeah, I mean there's not really much I can do about it . I guess.

Zender: Right now, there's not . But, what I would like to do is, is make it more convenient just for you. ‘Cause I'm not trying to be -- make it inconvenient or be a dick about it or anything like that.

Seem: Right.

Zender: But, if I do it, there's nothing on there, that just helps me say, "Okay, guess what, he told me he posted that stuff. It's a fantasy thing that he was involved in and it didn't go farther than that."

Seem: Okay.

Zender: You know what I'm saying?

Seem: Yeah, I got you.

Zender: Because -- honestly it helps you more than it hurts you, but it is going to inconvenience you.

Seem: Yeah. Yeah, I mean if that's the option, go ahead .

Zender: Okay.

Seem: I mean, take it and see what you can do with it.

(Emphasis added.) With the understanding that Zender would be taking his phone either way, Seem consented to Zender searching it without a warrant.

{¶ 12} Zender conceded at the hearing that he saw nothing on the phone that led him to believe that it had been used for illegal activity. Seem did admit to having deleted a particular app on his phone through which messages had been sent, but Zender saw no photographs or other data he believed were illegal. Zender claimed, however, that "a lot of data that is deleted off of a device like that is retained in some shape or form that might not be seeable to the naked eye."

{¶ 13} Zender was asked specifically about whether he saw anything on Seem's phone that provided him with probable cause that the phone had been used for illegal activity; he confirmed that he did not:

Q: From the standpoint of generating probable cause to believe that the phone was used for illegal activity, nothing that you saw on that phone on July 23 of 2020 was discernible to you as evidence of illegal activity on that phone, would that be accurate?

A: It would be accurate that I did not see anything on the phone at that point in time. However, through my experience and doing these cases in the past, if there – if he was doing these things on that device, there is a very high likelihood that that might still be retained in some shape or form.

* * *

A: But not that – I did not see anything that day.

{¶ 14} Zender also made clear that he told Seem...