State v. Zwick

[Cite as State v. Zwick, 2014-Ohio-230.]
IN THE COURT OF APPEALS FOR MIAMI COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 2013 CA 4
v. : T.C. NO. 12CR92
JASON M. ZWICK : (Criminal appeal from
Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 24th day of January , 2014.
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JANNA L. PARKER, Atty. Reg. No. 0075261, Assistant Prosecuting Attorney, Miami
County Prosecutor’s Office, 201 W. Main Street, Troy, Ohio 45373
Attorney for Plaintiff-Appellee
ROBERT K. HENDRIX, Atty. Reg. No. 0037351, 87 S. Progress Drive, Xenia, Ohio 45385
Attorney for Defendant-Appellant
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FROELICH, P.J.
{¶ 1} After the trial court overruled his motion to suppress evidence and
other motions, Jason M. Zwick pled no contest to one count of rape of a child under the age
of thirteen, in violation of R.C. 2907.02(A)(1)(b). In exchange for the plea, two additional
rape counts were dismissed. The trial court found Zwick guilty, sentenced him to ten years
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to life in prison and imposed a $20,000 fine and court costs. Zwick was designated a Tier
III sex offender.
{¶ 2} Zwick appeals from the trial court’s judgment, claiming that the trial court
erred in denying his motion to suppress. For the following reasons, the trial court’s
judgment will be affirmed.
{¶ 3} Zwick’s sole assignment of error states:
THE TRIAL COURT ERRED BY FAILING TO GRANT DEFENDANT’S
MOTION TO SUPPRESS BELOW WHERE THE EVIDENCE SEIZED
WAS BEYOND THE SCOPE OF THE ITEMS IDENTIFIED IN THE
SEARCH WARRAN[T] TO BE SEARCHED FOR.
{¶ 4} The evidence at the suppression hearing included the testimony of
Beavercreek Police Officer Christopher Unroe and the presentation of two search warrants
with accompanying affidavits, for which Unroe was the affiant. The evidence revealed the
following facts:
{¶ 5} In January 2012, Detective Marcus Penwell of the Franklin County Sheriff’s
Office Internet Crimes Against Children Task Force was involved in a child exploitation
investigation concerning the website craigslist.com. His investigation revealed that the IP
address 99.47.217.166 had been used to conduct internet chats and to send emails involving
such crimes. On January 31, 2012, Penwell responded to an ad looking for “Taboo? Incest?
Two Brothers or Dad and Son?,” posing as a single father with eight-year-old and
twelve-year-old sons. The detective quickly received a response from an individual, who
asked the detective to add him on Yahoo Instant Messenger and said that his screen name
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was “hotjock01.” Detective Penwell did so. Penwell engaged in an online instant message
exchange with hotjock01; the individual was later identified as Zwick by photos sent by
Zwick to the detective and by Zwick’s BMV photo.
{¶ 6} During Detective Penwell’s online exchange, Zwick indicated that he had
met with another father, who had a ten-year-old son, and that the father had allowed Zwick
to meet and engage in anal sex with the son. Zwick solicited Penwell to allow him (Zwick)
to engage in anal sex with Penwell’s twelve-year-old and oral sex with the eight-year-old
son. Zwick asked for photos of the children. Zwick indicated that he had met with three
fathers and that they had sent him photographs of their sons or allowed him to view their
sons on webcam.
{¶ 7} Detective Penwell continued to have online instant message exchanges with
Zwick on least nine different dates. In one of those exchanges, Zwick asked Penwell if he
would be willing to communicate with a friend of Zwick who had the “same interests.”
Penwell agreed and received an instant message from another individual, who was identified
as Patrick Rieder. At one point, Rieder indicated to Penwell that he had met the same father
and ten-year-old as Zwick, that their names were “Ken” and “Justin”, respectively, and that
they lived in a particular city in Miami County, Ohio. During their last exchange, Rieder
told Penwell that “Ken” had asked Rieder to give Ken’s email address to Penwell.
{¶ 8} On February 3, 2012, Detective Penwell obtained a search warrant for the
email account that Zwick was using. The information provided by the email service
provider included an email communication between Zwick and Rieder describing in detail
their sexual activity with the ten-year-old boy. On February 21, 2012, a subpoena was
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served on AT&T Internet Services for the IP address 99.47.217.166, which had been used on
two different dates for online chats between Penwell and Zwick; the information indicated
that Zwick was the owner of the IP address at 3620 Sequoia Drive in Beavercreek, Ohio.
{¶ 9} At some point in February 2012, Detective Penwell contacted Detective
Unroe and provided Unroe copies of the online chats and email communications that had
taken place between Penwell and Zwick, photographs of Zwick, and a statement of facts that
Penwell had prepared based on his investigation. Another Beavercreek detective contacted
Dayton Power and Light to verify service at 3620 Sequoia Drive; a DP&L employee stated
that service was in Zwick’s name and was on at the address.
{¶ 10} On February 24, 2012, Unroe prepared a warrant to search Zwick and the
premises of 3620 Sequoia Drive for evidence in connection with the offenses of pandering
obscenity and illegal use of a minor in nudity oriented material or performance. The
warrant sought the following items:
Computer, central processing unit, computer mother boards, printed circuit
boards, processor chips, all data drive, hard drives, floppy drives, optical
drives, tape drives, Digital audio tape drives, and/or other internal or external
storage devices such as Magnetic tapes and/or peripheral equipment, such as
but not limited to printers, digital scanning equipment, automatic dialers,
modems, acoustic couplers and/or direct line couplers, peripheral interface
and connecting cables and/or ribbons, and computer software, programs and
source documentation, computer logs, diaries, magnetic audio tape and
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recorders, digital audio disks and/or recorders, any memory devices such as
but Not limited to memory modules, integral RAM or ROM units, memory,
bubble memory and any other form of memory device utilized by the
computer or its peripheral devices and all computer related accessories not
specifically mentioned herein, all equipment having been used in violation of
Ohio revised code section 2907.32.2, 2907.32.3, 2923.24, any document
and/or notation referring to the computer, the contents of * * * the computer,
the use of the computer software and/or communications, all Information
within the above listed items including but not limited to machine readable
data, all previously erased data and any personal communications including
but not limited to e-mail, chat capture, capture files, correspondence stored in
electronic form, and/or correspondence exchanged in electric form, access
numbers, passwords, personal identification numbers, any financial records,
money and/or receipts kept as part and/or indicative of the obtaining,
maintenance, and/or evidence of said offense, financial and licensing
information with respect to the computer software and hardware, any Internet
service provider and any information pertaining to the use of the Internet
service provider for the retrieval of pictures depicting minors in sexually
explicit activity, child pornography, and/or pictures or drawing of children
clothed or unclothed. All of the above records, whether stored on paper of
magnetic media such as disks, diskette or on memory storage devices such as
optical disks, programmable instruments such as the telephone, electronic
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address books, calculator, or other storage media together with indicia of use,
ownership, possession or control of such records, photographic equipment,
audio, and video equipment all having been used in violation of the Ohio
Revised Code as previously stated.
{¶ 11} The proffered warrant was supported by an affidavit by Unroe, which
included a chronology of Detective Penwell’s investigation and set forth Unroe’s experience
during his four years as a detective in investigating computer-related crimes. Unroe stated
in his affidavit that, in his experience, “it is common in these types of child exploitation
investigations that subjects who have been involved with this type of internet activity and
chats are also involved with viewing and sharing child pornography on their computers and
other video and recording devices.”
{¶ 12} A judge issued the warrant that night (February 24). Upon execution of
the warrant by the Beavercreek police, three HP laptop computers, one HTC Droid
Incredible cell phone, a Kodak printer, and multiple computer memory and data storage
devices were seized.
{¶ 13} On March 5, 2012, Unroe prepared a second search warrant so that the
police could conduct a search of the seized items. Unroe’s affidavit in support of the
warrant was substantially similar to the February 24 affidavit, but it included additional
statements indicating items had been seized pursuant to the February 24 warrant. A judge
authorized the second warrant on the same day (March 5).
{¶ 14} On March 15, 2012, Zwick was indicted on three counts of rape of a child
under the age of 13. Two months later, Zwick moved to suppress the evidence obtained
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from the police pursuant to the February 24, 2012 and March 5, 2012 search warrants.1
Zwick claimed that the February 24 search warrant affidavit did not support a finding that
there was probable cause to believe that evidence would be found related to the charges of
pandering obscenity and illegal use of a minor in nudity oriented material or performance.
Zwick also claimed that the search warrant affidavit was based on false information. Zwick
did not assert that the police seized items beyond those authorized by the warrants.
{¶ 15} A hearing on Zwick’s motion was held in July 2012, during which Unroe
testified about his experience and training regarding sexual exploitation cases and how he
obtained the search warrants. In a written decision, the trial court found Unroe’s testimony
to be credible and concluded that “there was a substantial basis on which to conclude that
probable cause existed to issue the search warrant.” The court further determined that
Zwick did not demonstrate that any false information was included in the affidavit or that
any material misstatements were made knowingly or with reckless disregard for the truth.
Finally, the court found that the law enforcement officers who executed the warrants
reasonably relied on the warrants and thus the exclusionary rule would not apply.
{¶ 16} On appeal, Zwick claims that the trial court should have suppressed the
evidence obtained from his seized equipment, because chat logs found during the police
department’s search exceeded the scope of the search warrants. Specifically, Zwick states,
“What the police recovered from Defendant’s computer was chat logs between Defendant
and other individuals regarding sexual activity * * *. No images or evidence of images was
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Zwick’s motion also sought to suppress evidence purporting to identify
him as the perpetrator. He subsequently withdrew the identification portion of his motion.
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recovered from Defendant[’]s computer. The seizure therefor exceeded the scope of the
warrant.” Zwick further argues the evidence was not in plain view, because the files needed
to be opened and read before their incriminating nature was known.
{¶ 17} The State responds that Zwick has waived all but plain error as to the issue
that he now asserts by failing to raise it in the trial court. We agree.
Under Crim.R. 47, a motion, including a motion to suppress evidence,
must “state with particularity the grounds upon which it is made and shall set
forth the relief or order sought.” Motions to suppress evidence must be
made prior to trial. Crim.R. 12(C)(3). If a motion to suppress fails to state
a particular basis for relief, that issue is waived and cannot be argued on
appeal. See, e.g., State v. Cullins, Montgomery App. No. 21881,
2007-Ohio-5978, 2007 WL 3309638, at ¶ 10; State v. Carter, Montgomery
App. No. 21999, 2008-Ohio-2588, 2008 WL 2222717, at ¶ 20.
“The prosecutor must know the grounds of the challenge in order to
prepare his case, and the court must know the grounds of the challenge in
order to rule on evidentiary issues at the hearing and properly dispose of the
merits. Therefore, the defendant must make clear the grounds upon which
he challenges the submission of evidence * * *. Failure on the part of the
defendant to adequately raise the basis of his challenge constitutes a waiver of
that issue on appeal.” (Citations omitted.) Xenia v. Wallace (1988), 37
Ohio St.3d 216, 218, 524 N.E.2d 889.
State v. Demus, 192 Ohio App.3d 181, 2011-Ohio-124, 948 N.E.2d 508, ¶ 13-14 (2d Dist.).
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{¶ 18} In his motion to suppress, Zwick challenged the issuance of the search
warrants, not whether the seizure of items pursuant to the warrants exceeded the scope of the
warrants. Because Zwick failed to raise the scope of the warrants in the trial court, he has
waived all but plain error on that issue.
{¶ 19} Upon review of the record, we cannot conclude that plain error exists. The
limited record reflects that the Beavercreek police department’s seizure of three computers, a
cell phone, a printer, and several memory devices from Zwick’s residence was within the
scope of the February 24, 2012 search warrant. And assuming that the chat logs were on
one or more of the seized items, the February 24 warrant permitted the seizure of, among
other things, all information on the computers, memory devices, and the like, including
machine readable data and personal communications, such as email, “chat capture,” “capture
files,” and other correspondence.
{¶ 20} Zwick claims that the police should have limited their search of the seized
items to photographs and that the conversations regarding sexual activity “had nothing to do
with exchanges of child pornography as authorized by the warrant.”
{¶ 21} The record does not indicate when the contents of the computers, cell
phone, printer, and memory devices were searched, what evidence was found, or on which of
the seized items the evidence was found. Nevertheless, the March 5, 2012 search warrant
authorized the police to search the seized items for “any personal communications including
but not limited to e-mail, chat capture, capture files, correspondence store in electronic form,
and/or correspondence exchanged in electronic form” for evidence of pandering obscenity
and illegal use of a minor in nudity oriented material or performance. Based on the limited
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record, the search for and seizure of the chat logs appears to fall within the March 5, 2012
search warrant, authorizing a search of the contents of the electronic devices. We cannot
conclude that the officers exceeded the scope of the warrant simply because chat logs related
to sexual activity with children were apparently located, but photographs of children
allegedly were not. There is no evidence that the officers exceeded the scope of the search
warrants.
{¶ 22} Zwick’s assignment of error is overruled.
{¶ 23} The trial court’s judgment will be affirmed.
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FAIN, J. and DONOVAN, J., concur.
Copies mailed to:
Janna L. Parker
Robert K. Hendrix
Hon. Christopher Gee