State v. Flack

[Cite as State v. Flack, 2022-Ohio-3861.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF WAYNE )
STATE OF OHIO C.A. No. 22AP0021
Appellant
v. APPEAL FROM JUDGMENT
ENTERED IN THE
ZACHARY FLACK COURT OF COMMON PLEAS
COUNTY OF WAYNE, OHIO
Appellee CASE No. 2021 CRC-I 331
DECISION AND JOURNAL ENTRY
Dated: October 31, 2022
HENSAL, Presiding Judge.
{¶1} Appellant, the State of Ohio, appeals from the decision of the Wayne County Court
of Common Pleas, granting a motion to suppress filed by Appellee, Zachary Flack. This Court
reverses.
I.
{¶2} Mr. Flack’s ex-girlfriend’s mother called the Wooster Police Department to report
that Mr. Flack had violently raped her daughter and had used his cell phone to record the incident.
Detective Juan McCloud interviewed Mr. Flack, and Mr. Flack indicated that he and his ex-
girlfriend had engaged in consensual sexual conduct. Though Mr. Flack admitted that he had
recorded some of the incident on his cell phone, he claimed he had since deleted the recording.
{¶3} Detective McCloud later interviewed Mr. Flack’s current girlfriend. During her
interview, the girlfriend said Mr. Flack had “video proof” to support his version of the events. The
detective understood her statement to mean that Mr. Flack had not, in fact, deleted the recording
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of the incident from his cell phone. The detective then asked the current girlfriend to call Mr.
Flack on speakerphone so they could discuss the recording.
{¶4} Mr. Flack was at work when his girlfriend and Detective McCloud called. When
Detective McCloud asked Mr. Flack about the recording, Mr. Flack indicated that he had chosen
not to share it because it made him “look bad[.]” He informed the detective that he had not filmed
his ex-girlfriend’s consent, so the recording “looked very violent” and “more like hate sex” than a
consensual act. After Detective McCloud explained that the recording was evidence in his
investigation, he told Mr. Flack he was coming to collect Mr. Flack’s phone.
{¶5} Mr. Flack invoked his right to counsel when Detective McCloud arrived. The
detective then seized his cell phone and brought it back to the police station. While drafting a
request for a warrant to search the contents of the phone, Detective McCloud activated the phone
to obtain its phone number and serial number. He discovered that the phone was “in setup mode[,]”
meaning that it appeared to have been restored to its factory settings.
{¶6} Once Detective McCloud obtained a search warrant for the contents of the phone,
he submitted it to the Bureau of Criminal Investigation (“BCI”) for analysis. BCI confirmed that
the phone had “been wiped clean” around the time Detective McCloud was traveling to Mr. Flack’s
workplace to retrieve it. Following BCI’s analysis, Mr. Flack was charged with one count of
tampering with evidence.
{¶7} Mr. Flack filed a motion to suppress. Relevant to this appeal, he challenged the
warrantless seizure of his cell phone and further alleged that Detective McCloud had performed a
warrantless search when he activated the phone at the police station. The trial court held a
suppression hearing and heard arguments from both parties. At the conclusion of the hearing, the
court found that Detective McCloud violated Mr. Flack’s constitutional rights when he seized his
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cell phone. The court found that the detective did not have a warrant for the seizure and no
exceptions to the warrant requirement applied. Thus, the court granted Mr. Flack’s motion to
suppress.
{¶8} The State now appeals from the trial court’s suppression ruling in favor of Mr. Flack
and raises one assignment of error for review.
II.
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED IN GRANTING MR. FLACK’S MOTION TO
SUPPRESS ON THE BASIS THAT THE SEIZURE OF MR. FLACK’S PHONE
VIOLATED THE CONSTITUTIONAL PROTECTIONS REGARDING
SEARCH AND SEIZURE.
{¶9} In its sole assignment of error, the State argues that the trial court erred when it
granted Mr. Flack’s motion to suppress on the basis that Detective McCloud engaged in an
unconstitutional seizure. We agree.
{¶10} A motion to suppress evidence presents a mixed question of law and fact. State v.
Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8. “When considering a motion to suppress,
the trial court assumes the role of trier of fact and is therefore in the best position to resolve factual
questions and evaluate the credibility of witnesses.” Id., citing State v. Mills, 62 Ohio St.3d 357,
366 (1992). Thus, a reviewing court “must accept the trial court’s findings of fact if they are
supported by competent, credible evidence.” Id., citing State v. Fanning, 1 Ohio St.3d 19, 20
(1982). “Accepting these facts as true, the appellate court must then independently determine,
without deference to the conclusion of the trial court, whether the facts satisfy the applicable legal
standard.” Id., citing State v. McNamara, 124 Ohio App.3d 706, 710 (4th Dist.1997). Thus, this
Court grants deference to the trial court’s findings of fact but conducts a de novo review of whether
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the trial court applied the appropriate legal standard to those facts. State v. Booth, 151 Ohio App.3d
635, 2003-Ohio-829, ¶ 12 (9th Dist.).
{¶11} The Fourth Amendment requires searches and seizures to “be based upon probable
cause and executed pursuant to a warrant.” State v. Moore, 90 Ohio St.3d 47, 49 (2000). Yet, the
United States Supreme Court has recognized that “it is not unreasonable [for police] to seize
property on the basis of probable cause for the time necessary to secure a warrant.” State v. Swartz,
9th Dist. Summit No. 14514, 1990 WL 131733, *1 (Sept. 12, 1990), citing Segura v. United States,
468 U.S. 796, 806 (1984). “Different interests are implicated by a seizure than by a search.”
Segura at 806. While searches implicate a person’s right to privacy, seizures are usually
considered “less intrusive” because they only affect a person’s possessory interests. Id. Given
that distinction, “society’s interest in the discovery and protection of incriminating evidence from
removal or destruction can supersede, at least for a limited time, a person’s possessory interest in
property, provided that there is probable cause to believe that the property is associated with
criminal activity.” Swartz at *1, citing Segura at 808.
{¶12} The trial court found that Detective McCloud began investigating Mr. Flack
regarding a report of sexual assault. Although Mr. Flack initially denied that he had a recording
of the alleged sexual assault on his cell phone, the court found, further investigation revealed that
Mr. Flack “might have lied.” The court found that Detective McCloud contacted Mr. Flack, told
him he wanted his cell phone, and drove to Mr. Flack’s workplace to collect it. The detective then
seized the phone. The trial court found that “the seizure of the phone from [Mr. Flack] at his
worksite without a warrant violated the constitutional protections regarding search and seizure.
And, furthermore, that none of the exceptions to the warrant requirement apply.” Based on those
findings, the court granted Mr. Flack’s motion to suppress.
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{¶13} The State argues that the trial court erred when it granted Mr. Flack’s motion to
suppress. First, the State argues that the trial court failed to include its essential findings on the
record. According to the State, the trial court’s decision was conclusory and should be reversed
for the court to issue “more specific essential facts and conclusions of law.” Second, the State
argues that the trial court erred when it determined that the seizure of Mr. Flack’s cell phone
violated his constitutional rights. Because Detective McCloud had probable cause to believe the
phone contained evidence of a crime and the State had a legitimate interest in preserving that
evidence until a warrant could be obtained, the State argues, Detective McCloud was justified in
seizing the phone until he could secure a warrant to search its contents.
{¶14} Although the suppression ruling herein contains minimal factual findings, the trial
court did not fail to make any necessary findings so as to hinder appellate review. Compare State
v. Perez, 9th Dist. Lorain No. 19CA011461, 2020-Ohio-530, ¶ 7. The trial court found that
Detective McCloud seized Mr. Flack’s cell phone because he suspected it contained evidence of a
crime. The court ruled in Mr. Flack’s favor based solely on its conclusion that Detective McCloud
did not have a warrant for that seizure and no exception to the warrant requirement applied.
Because the court’s ruling contains adequate findings to allow for appellate review, this Court
rejects the State’s argument that this matter should be reversed and remanded for the trial court to
issue additional findings.1
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We note that any suppression issues Mr. Flack raised related to the search of his cell phone fall
outside the scope of our review. The trial court granted Mr. Flack’s motion to suppress based
strictly on Detective McCloud’s having engaged in an unconstitutional seizure. Thus, we limit our
review to that issue.
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{¶15} The State has not challenged any individual findings of the trial court, and the
record supports the conclusion that its findings are based on competent, credible evidence.
Detective McCloud testified that he seized Mr. Flack’s cell phone because he believed it contained
evidence of a crime and he wanted to preserve that evidence while he applied for a warrant to
search the contents of the phone. Accordingly, this Court will accept the foregoing findings as
true and limit our review to the trial court’s legal conclusions. See Burnside, 100 Ohio St.3d 152,
2003-Ohio-5372, at ¶ 8.
{¶16} The record does not support the trial court’s conclusion that Detective McCloud
violated Mr. Flack’s rights by engaging in an unconstitutional seizure. As previously noted, “it is
not unreasonable [for police] to seize property on the basis of probable cause for the time necessary
to secure a warrant.” Swartz, 1990 WL 131733, at *1, citing Segura, 468 U.S. at 806. Detective
McCloud had probable cause to believe Mr. Flack’s cell phone contained evidence relevant to his
investigation based on his interview with Mr. Flack’s current girlfriend and his telephone
conversation with her and Mr. Flack. He also had probable cause to believe Mr. Flack had already
lied about the existence of the recording on his phone, as he initially claimed to have deleted it.
While Mr. Flack had a possessory interest in his phone, “society’s interest in the discovery and
protection of incriminating evidence from removal or destruction can supersede, at least for a
limited time, a person’s possessory interest in property, provided that there is probable cause to
believe that the property is associated with criminal activity.” Swartz at *1, citing Segura at 808.
Because Detective McCloud had probable cause to temporarily seize Mr. Flack’s cell phone for
the purpose of securing a warrant, the seizure he conducted was justified. See Segura at 806-808;
State v. Cunningham, 2d Dist. Clark No. 10-CA-57, 2012-Ohio-2794, ¶ 28-30 (upholding seizure
of cell phone until search warrant could be obtained). See also Riley v. California, 573 U.S. 373,
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388 (2014) (noting that defendants made “sensible concession” that officers could seize and secure
their cell phones to prevent destruction of evidence while seeking a warrant). The State’s sole
assignment of error is sustained on that basis.
III.
{¶17} The State’s sole assignment of error is sustained. The judgment of the Wayne
County Court of Common Pleas is reversed, and the cause is remanded for further proceedings
consistent with the foregoing opinion.
Judgment reversed,
and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Wayne, State of Ohio, to carry this judgment into execution. A certified copy of
this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period
for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to
mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the
docket, pursuant to App.R. 30.
Costs taxed to Appellee.
JENNIFER HENSAL
FOR THE COURT
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CARR, J.
CALLAHAN, J.
CONCUR.
APPEARANCES:
DANIEL R. LUTZ, Prosecuting Attorney, and DAVID FOLK, Assistant Prosecuting Attorney,
for Appellant.
COLE F. OBERLI, Attorney at Law, for Appellee.