State v. Lemasters , 2013 Ohio 2969 ( 2013 )

[Cite as State v. Lemasters, 2013-Ohio-2969.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
MADISON COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : CASE NO. CA2012-12-028
: OPINION
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:
DONALD F. LEMASTERS, :
Defendant-Appellant. :
CRIMINAL APPEAL FROM MADISON COUNTY COURT OF COMMON PLEAS
Case No. CRI20110122
Stephen J. Pronai, Madison County Prosecuting Attorney, Kirsten J. Gross, 59 North Main
Street, London, Ohio 43140, for plaintiff-appellee
Tyack, Blackmore, Liston & Nigh Co., L.P.A., Jonathan T. Tyack, 536 South High Street,
Columbus, Ohio 43215, for defendant-appellant
PIPER, J.
{¶ 1} Defendant-appellant, Donald Lemasters, appeals a decision of the Madison
County Court of Common Pleas, denying his motion to suppress.
{¶ 2} Detective Marcus Penwell of the multi-jurisdictional Internet Crimes Against
Children Task Force investigates social networking sites where adults solicit children for
sexual activity. He also monitors file-sharing programs for distribution of child pornography
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files. During an investigation, Detective Penwell connected with an internet protocol (IP)
address belonging to a computer that contained child pornography files. Through the use of
"Shareaza," a file sharing program, Detective Penwell was able to access and download child
pornography from the computer, which had an IP address belonging to a Time Warner Cable
internet customer.
{¶ 3} Detective Penwell obtained an investigative subpoena issued by a court and
contacted Time Warner Cable in order to determine the user of the IP address. Detective
Penwell discovered that the IP address belonged to Lemasters, and contacted the Madison
County Sheriff's Office to involve them in the investigation. Police then obtained and
executed a search warrant for Lemasters' home. Police seized over 170,000 images of child
pornography from Lemasters' home, including images of infant and toddler rape. The
images were found on Lemasters' computer and also on various DVDs that Lemasters made
from the child pornography he downloaded from his computer.
{¶ 4} Lemasters was charged with 15 counts of pandering sexually-oriented matter
involving a minor, nine counts of possession of sexually-oriented material involving a minor,
and one count of possession of criminal tools. Lemasters filed a motion to suppress
evidence of the images seized from his house. At the hearing, Detective Penwell appeared
and testified. The trial court denied Lemasters' motion to suppress, and Lemasters pled no
contest to the charges against him. The trial court found Lemasters guilty and sentenced him
to an aggregate sentence of eight years. Lemasters now challenges the trial court's decision
denying his motion to suppress, raising the following assignment of error.
{¶ 5} 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 IDENTITY.
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{¶ 6} Lemasters argues in his assignment of error that the trial court erred in denying
his motion to suppress.
{¶ 7} Appellate review of a ruling on a motion to suppress presents a mixed question
of law and fact. State v. Cochran, 12th Dist. No. CA2006-10-023, 2007-Ohio-3353. Acting
as the trier of fact, the trial court is in the best position to resolve factual questions and
evaluate witness credibility. Id. Therefore, when reviewing a trial court's decision regarding a
motion to suppress, a reviewing court is bound to accept the trial court’s findings of fact if
they are supported by competent, credible evidence. State v. Oatis, 12th Dist. No. CA2005-
03-074, 2005-Ohio-6038. "An appellate court, however, independently reviews the trial
court's legal conclusions based on those facts and determines, without deference to the trial
court's decision, whether as a matter of law, the facts satisfy the appropriate legal standard."
Cochran at ¶ 12.
{¶ 8} The Fourth Amendment to the United States Constitution protects people from
illegal searches and seizures. In order to employ Fourth Amendment protections, a
defendant must have a "constitutionally protected reasonable expectation of privacy." Katz v.
United States, 389 U.S. 347, 360, 88 S.Ct. 507 (1967). The United States Supreme Court
has directed reviewing courts to consider a two-part test in order to determine whether the
Fourth Amendment is implicated. "First, has the individual manifested a subjective
expectation of privacy in the object of the challenged search? Second, is society willing to
recognize that expectation as reasonable?" California v. Ciraolo, 476 U.S. 207, 211, 106
S.Ct. 1809 (1986), citing Katz at 360.
{¶ 9} As stated by the court in Katz, "what a person knowingly exposes to the public,
even in his own home or office, is not a subject of Fourth Amendment protection." 389 U.S.
at 351. Instead, "a person has no legitimate expectation of privacy in information he
voluntarily turns over to third parties." Smith v. Maryland, 442 U.S. 735, 743, 99 S.Ct. 2577-3-
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(1979). As this court has specifically held, a subscriber does not have a reasonable
expectation of privacy with respect to his subscriber information, including the IP address
associated with his internet service. State v. Hamrick, 12th Dist. No. CA2011-01-002, 2011-
Ohio-5357, ¶ 19, jurisdiction declined 131 Ohio St.3d 1513, 2011-Ohio-5357.
{¶ 10} In Hamrick, the appellant was using a file-sharing program to share child
pornography over the internet. In the exact same manner as what occurred in the case at
bar, Detective Penwell became aware of an IP address that was linked to child pornography.
Detective Penwell moved for an investigative subpoena, which he delivered to Time Warner
Cable. Time Warner then identified Hamrick as the subscriber in question. A search warrant
was later obtained and executed, and police seized 339 images and 28 videos of child
pornography. Hamrick was indicted on several counts of illegal use of a minor in nudity-
oriented material and pandering obscenity involving a minor. Hamrick moved to suppress the
images seized from his home, arguing that his Fourth Amendment rights were violated where
the police did not gain a search warrant before obtaining information from Time Warner. The
trial court overruled Hamrick's motion to suppress, and Hamrick appealed to this court.
{¶ 11} In our decision, we found that Hamrick's "constitutional rights were not violated
when law enforcement obtained his subscriber information from Time Warner because he
ha[d] not demonstrated an objectively reasonable expectation of privacy in this information."
2011-Ohio-5357 at ¶ 18. In so holding, we reasoned that "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." Id. at ¶ 19. Despite Lemasters' suggestion that we stray from our decision in
Hamrick, we decline to do so and find the reasoning set forth in Hamrick also applicable to
the case at bar.
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{¶ 12} Lemasters claims that our reasoning in Hamrick should be adjusted in light of
recent case law holding that use of a GPS to track a suspect's movements constitutes a
search and implicates the Fourth Amendment. United States v. Jones, __U.S.__, 132 S.Ct.
945 (2012). In Jones, the United States Supreme Court held very specifically that "the
Government's installation of a GPS device on a target's vehicle, and its use of that device to
monitor the vehicle's movements, constitutes a 'search.'" Id. at 949. In so holding, the court
reasoned that by placing a GPS on the suspect's car, "the Government physically occupied
private property for the purpose of obtaining information." Id. The court went on to state that
"we have no doubt that such a physical intrusion would have been considered a 'search'
within the meaning of the Fourth Amendment when it was adopted." Id.{¶ 13} Despite Lemasters' arguments to the contrary, the Jones holding does not
stand for the proposition that a person has a reasonable expectation of privacy in information
that he freely shares with third parties or to files that are shared openly with others through a
file-sharing program. While Lemasters spends a great amount of time in his brief quoting
and referencing the concurring opinions in Jones that suggest that the Fourth Amendment
should be stretched to include other privacy rights, we are bound only by the majority opinion
of the court, rather than questions raised and suggestions made within the dicta of concurring
opinions. Therefore, the rule of law from Jones that governs Fourth Amendment
jurisprudence is that the placement of a GPS on one's car is trespassory in nature and that
such placement requires a warrant.
{¶ 14} The trespassory nature of installing a GPS is clearly absent from the current
facts of this case. Just as Hamrick freely shared his information with Time Warner,
Lemasters did the same thing when he registered his information in order to make use of the
Time Warner internet service. Lemasters also opened his files for public sharing and
exhibited absolutely no expectation of privacy in them. Lemasters did nothing to make his
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information private or to protect any expectation of privacy, and Detective Penwell did not
perform any trespass in order to obtain from Time Warner the information that Lemasters
openly and freely shared regarding his IP address. We decline to extend Jones in the
manner advocated by Lemasters.
{¶ 15} Since the release of the Supreme Court's decision in Jones, several courts
have been asked to decide whether accessing file-sharing programs and IP address
information constitutes a search that implicates the Fourth Amendment. In finding that no
expectation of privacy exists in such cases, the courts have not analyzed the issue as being
controlled by Jones.
{¶ 16} For example, the United States District Court for the Eastern District of Missouri
declined to extend Jones in the same manner that Lemasters asserts. United States v.
Nolan, E.D.Mo. No. 1:11CR 82 CEJ, 2012 WL 1192183 (Mar. 6, 2012). In Nolan, the court
stated that the appellant's reliance on Jones was "misdirected." Id. at *10. In so stating, the
court reasoned that while Jones states that a search warrant is required before a police
officer can "legally attach a GPS device to a suspect's vehicle," accessing one's files and
internet information through peer-to-peer sharing is not a search because the files are not
"private." Id. The court concluded, "when Mr. Nolan placed the images in his shared folder,
he was offering them to the world. * * * Mr. Nolan's privacy was not invaded by [the police]
because Mr. Nolan offered them to [the police] and to anyone else on the world wide
network." Id.
{¶ 17} Similarly, the United States District Court for the Eastern District of New York
has also found an appellant's attempt to apply Jones to facts similar to the case at bar
"misplaced." United States v. Brooks, E.D.N.Y. No. 12-CR-166 (RRM), 2012 WL 6562947,
*5 (Dec.17, 2012). In Brooks, the appellant had multiple images of child pornography on his
computer, and used a file-sharing program to access and share the images. The
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investigating officer downloaded the files from Brooks' computer, and then procured Brooks'
identity through the use of his IP address.
{¶ 18} The Brooks court disregarded the appellant's reliance on Jones, and stated,
In contrast to Jones, there is no evidence here that the
undercover agent made any physical intrusion on a
constitutionally protected area. The agent did not install any
device or software on Brooks' computer to enable monitoring or
tracking, did not physically enter Brooks' home, and did not
physically access his computer. * * * As such, the undercover
agent did not physically intrude on any of Brooks' constitutionally
protected areas. Therefore, because this situation involves
"merely the transmission of electronic signals without trespass,"
the Katz reasonable-expectation-of-privacy governs this analysis,
which, as discussed above, does not implicate Brooks' Fourth
Amendment rights.
Id.{¶ 19} Additionally, the Sixth Circuit recently considered whether an appellant had a
reasonable expectation of privacy in files he shared using a file-sharing program. United
States v. Conner, 6th Cir. No. 12-3210, 2013 WL 1490109 (Apr. 11, 2013). In Conner, the
appellant was convicted of multiple counts related to his possession of child pornography.
Conner used the file sharing service "LimeWire" to share files containing child pornography
with other interested users. Once again, Detective Penwell used the file-sharing program to
access child pornography files on Conner's computer, after having moved for an investigatory
subpoena from the court and receiving Conner's IP address information from his internet
service provider.
{¶ 20} Conner argued to the Sixth Circuit that he had a reasonable expectation of
privacy in his files, and that Detective Penwell should have secured a warrant before using
the file sharing program to access child pornography files on his computer. The Sixth Circuit,
in affirming the district court's denial of Conner's motion to suppress, stated that "public
exposure of information in this manner defeats an objectively reasonable expectation of
privacy under the Fourth Amendment." 2013 WL 1490109 at *4. However, the court never
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discussed Detective Penwell's use of the file-sharing program or obtaining IP address
information as the trespassory invasion or "physical intrusion" contemplated by Jones.
{¶ 21} Similarly, the United States District Court for the Western District of
Pennsylvania recognized that "internet subscribers who use [internet service providers] to
connect to the internet from their homes do not have a reasonable expectation of privacy in
their subscriber information or IP addresses because they have conveyed this information to
third parties in order to connect to the internet." United States v. Stanley, W.D. Penn. No.
11-272, 2012 WL 5512987 (Nov.14, 2012). Despite Jones, the court did not analyze the
police investigation of the appellant's IP address as a trespassory search invoking the
appellant's Fourth Amendment rights.
{¶ 22} Well-settled legal pronouncements regarding reasonable expectation of privacy
as it relates to file-sharing and IP address information have not changed in the wake of
Jones, and this court will not diverge from established precedent to hold otherwise.
Lemaster's Fourth Amendment rights were not implicated by Detective Penwell's use of the
file-sharing system, or in his obtaining Lemasters' information from Time Warner based upon
Lemaster's IP address.
{¶ 23} Lemasters also argues that Detective Penwell violated the federal Electronic
Communications Privacy Act, 18 U.S.C. 2701 et seq. (ECPA), by obtaining information from
Time Warner. According to the ECPA,
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 (not including the contents of
communications) only when the governmental entity—
(A) obtains a warrant issued using the procedures described in
the Federal Rules of Criminal Procedure (or, in the case of a
State court, issued using State warrant procedures) by a court of
competent jurisdiction;
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(B) obtains a court order for such disclosure under subsection (d)
of this section;
According to 18 U.S.C. 2703(d),
A court order for disclosure under subsection (b) or (c) may be
issued by any court that is a court of competent jurisdiction and
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. In the case of a
State governmental authority, such a court order shall not issue if
prohibited by the law of such State. A court issuing an order
pursuant to this section, on a motion made promptly by the
service provider, may quash or modify such order, if the
information or records requested are unusually voluminous in
nature or compliance with such order otherwise would cause an
undue burden on such provider.
{¶ 24} The facts are clear that Detective Penwell did not obtain a warrant before
obtaining Lemasters' information from Time Warner. Instead, Detective Penwell was granted
an investigative subpoena from a judge, which authorized him to require Time Warner to
share the information regarding Lemasters' IP address. However, Lemasters argues that the
investigative subpoena is not a court order as contemplated in the ECPA because it did not
follow state guidelines for a proper court order as stated in R.C. 2935.23.
{¶ 25} According to R.C. 2935.23,
After a felony has been committed, and before any arrest has
been made, the prosecuting attorney of the county, or any judge
or magistrate, may cause subpoenas to issue, returnable before
any court or magistrate, for any person to give information
concerning such felony. The subpoenas shall require the witness
to appear forthwith. Before such witness is required to give any
information, he must be informed of the purpose of the inquiry,
and that he is required to tell the truth concerning the same. He
shall then be sworn and be examined under oath by the
prosecuting attorney, or the court or magistrate, subject to the
constitutional rights of the witness. Such examination shall be
taken in writing in any form, and shall be filed with the court or
magistrate taking the testimony.
{¶ 26} Detective Penwell testified that he obtained the investigative subpoena by
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submitting relevant facts to the judge, including that he was investigating suspected child
pornography and that he had downloaded child pornography images from the IP address in
question. However, no representatives from Time Warner appeared as a witness, and the
judge issued the investigative subpoena without taking any testimony regarding the issue.
While it may be true that the investigative subpoena was issued without witness testimony,
the remedy Lemasters seeks is unavailable to him.
{¶ 27} As this court also stated in Hamrick, the ECPA does not provide suppression of
evidence as a remedy should information be obtained in a manner not consistent with state
law. We recognized in Hamrick that while the ECPA specifically allows for civil damages and
criminal punishment for violations of the ECPA, the statute states 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." 2011-Ohio-5357 at ¶ 17; see also United States v.
Ferguson, 508 F.Supp.2d 7, 10 (D.C.2007) (finding that the ECPA "does not provide for a
suppression remedy").
{¶ 28} The ECPA specifically states, "the remedies and sanctions described in this
chapter are the only judicial remedies and sanctions for nonconstitutional violations of this
chapter." 18 U.S.C. 2708. While Lemasters argues that his constitutional rights have been
violated so that suppression is a valid remedy under the ECPA, we have already stated that
Lemasters' Fourth Amendment rights were neither implicated nor violated because he had no
reasonable expectation of privacy in his IP address information or the files he shared.
{¶ 29} Having found that Lemasters' did not have a reasonable expectation of privacy,
that Detective Penwell's obtaining information from Time Warner was not a search that
implicated the Fourth Amendment, and that suppression is not a valid remedy contemplated
by the ECPA, the trial court did not err in denying Lemasters' motion to suppress. As such,
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Lemasters' single assignment of error is overruled.
{¶ 30} Judgment affirmed.
RINGLAND, P.J., and M. POWELL, J., concur.
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