State v. Dixon
| Docket Number | 21AP-152 |
| Decision Date | 15 December 2022 |
| Citation | 204 N.E.3d 103 |
| Parties | STATE of Ohio, Plaintiff-Appellee, v. Joseph E. DIXON, Defendant-Appellant. |
| Court | Ohio Court of Appeals |
On brief: G. Gary Tyack, Prosecuting Attorney, and Taylor M. Mick, for appellee. Argued: Darren M. Burgess.
On brief: Yeura R. Venters, Public Defender, and Robert D. Essex, Columbus, for appellant. Argued: Robert D. Essex.
DECISION
{¶ 1} Defendant-appellant, Joseph E. Dixon, appeals from the March 12, 2021 judgment of conviction and sentence entered by the Franklin County Court of Common Pleas pursuant to no contest pleas to five counts of pandering sexually oriented matter involving a minor. In particular, appellant appeals the court's December 2, 2020 decision and entry denying the motion to suppress evidence of pandering sexually oriented matter involving a minor found upon execution of a search warrant. For the following reasons, we affirm.
{¶ 2} On September 3, 2019, appellant was indicted on five counts of pandering sexually oriented matter involving a minor in violation of R.C. 2907.322,1 all felonies of the fourth degree. On February 27, 2020, appellant filed a motion to suppress the evidence obtained as a result of the execution of a search warrant issued October 17, 2016. The trial court conducted a hearing on the motion to suppress on November 2, 2020.
{¶ 3} In the affidavit on which the search warrant was issued, affiant Sergeant Jeff Zech with the Franklin County Sheriff's Office ("Sheriff's Office"), averred that in October 2015 the United States Department of Homeland Security Investigations ("HSI") in Phoenix, Arizona, commenced an investigation into an internet-based video conferencing application used by persons interested in exchanging child pornography. In order to preserve the ongoing investigation, the affiant referred to the application as "Application A." On December 11, 2015, at 1750 hours GMT, an HSI agent, acting in an undercover capacity, signed into Application A and entered an Application A meeting room without a password. The HSI agent viewed one user displaying to all other users two videos depicting child pornography. The agent also observed a user with a display name of "Jay Smith Prv" sitting nude and masturbating.
{¶ 4} The United States Department of Justice subpoenaed Application A on December 17, 2015, and obtained the subscriber and login information related to the users in this particular Application A meeting. The subpoena information revealed that Jay Smith Prv was logged into the Application A meeting on December 11, 2015 from 17:39 GMT to 18:31 GMT from the IP address 104.11.134.223. It was determined, pursuant to the online database American Registry for Internet Numbers ("ARIN"), that the IP address was registered to AT&T. The Department of Justice served a subpoena on AT&T on March 22, 2016, and on March 27, 2016 received in response information which revealed that the IP addresses account holder was William Wynnyk. The information also revealed Wynnyk's e-mail address and a physical address as 830 South Ohio Avenue in Columbus, Ohio. However, upon checking with the property manager at that address, it was revealed that Wynnyk had moved.
{¶ 5} Investigators determined Wynnyk was living at 1107 Oak Bay Drive, Galloway, Ohio ("Oak Bay residence") beginning July 21, 2016, and confirmed the same through surveillance observing a vehicle registered to Wynnyk parked in the driveway, and through a subpoena to AT&T which revealed the internet subscriber at that address was also William Wynnyk.
{¶ 6} On October 17, 2016, a judge of the Franklin County Municipal Court issued a search warrant for the Oak Bay residence. The Sheriff's Office executed the search warrant. Investigators discovered that appellant was living at the Oak Bay residence with Wynnyk, a.k.a. Jay Smith Prv. Wynnyk and appellant identified electronic devices which belong to each of them and also told investigators they used each other's electronic devices.
{¶ 7} Sergeant Zech and other detectives at the Sheriff's Office conducted forensic examinations of the electronic devices seized during execution of the search warrant. They found child pornography on electronic devices owned by Wynnyk and appellant. They also found usernames that could be linked to appellant on the same electronic devices. They further found online conversations in which Jay Smith Prv described plans to sexually abuse children and live stream the abuse.
{¶ 8} Appellant was indicted on five counts of pandering sexually oriented matter involving a minor in violation of R.C. 2907.322, all felonies of the fourth degree. On February 27, 2020, appellant filed a motion to suppress the evidence obtained through the execution of the search warrant. Plaintiff-appellee, State of Ohio, filed a memorandum contra. The court held a hearing and received testimonial evidence on November 2, 2020. On December 2, 2020, the court filed a decision denying appellant's motion to suppress. On January 26, 2021, appellant entered no contest pleas to the five counts in the indictment, and on March 12, 2021, the trial court sentenced appellant to 36 months of community control on risk reduction supervision - sex offender caseload.
{¶ 9} Appellant timely appealed.
{¶ 10} Appellant appeals and assigns the following sole assignment of error for our review:
The trial court erred in denying the appellant's motion to suppress as the four corners of the affidavit did not provide the magistrate with information establishing probable cause to believe that child pornography would be found at [the residence].
{¶ 11} The Fourth Amendment to the United States Constitution states:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation and particularly describing the place to be searched and the persons or things to be seized.
The Ohio Constitution, Article I, Section 14 states:
The right of the people to be secure in their persons, houses, papers, and possessions, against unreasonable searches and seizures shall not be violated; and no warrant shall issue, but upon probable cause, supported by oath or affirmation, particularly describing the place to be searched and the person and things to be seized.2
{¶ 12} The Supreme Court of Ohio has held that " " (Emphasis sic.) State v. Shaskus , 10th Dist., 2016-Ohio-7942, 66 N.E.3d 811, ¶ 25-26, quoting State v. Castagnola , 145 Ohio St.3d 1, 2015-Ohio-1565, 46 N.E.3d 638, ¶ 34, citing 2 LaFave, Search and Seizure , Section 3.1(b) (5th Ed.2012). "Special considerations to be taken into account when determining whether to issue a search warrant include how stale the information relied upon is, when the facts relied upon occurred, and whether there is a nexus between the alleged crime, the objects to be seized, and the place to be searched." Castagnola at ¶ 34, citing 2 LaFave at Section 3.7(a), (b), and (d).
{¶ 13} "A warrant of search or seizure shall issue only upon probable cause, supported by oath or affirmation particularly describing the place to be searched and the property and things to be seized." R.C. 2933.22. An affidavit in support of a search warrant need not demonstrate proof beyond a reasonable doubt, or even proof by a preponderance of the evidence, before a judicial officer may find probable cause. State v. Ingold , 10th Dist. No. 07AP-648, 2008-Ohio-2303, 2008 WL 2026441, ¶ 19. Rather, when determining whether a search warrant affidavit demonstrates probable cause, a magistrate must " ‘ "make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him * * * there is a fair probability that contraband or evidence of a crime will be found in a particular place." ’ " State v. Shaskus, 10th Dist. No. 18AP-340, 2019-Ohio-2190, 2019 WL 2355050, ¶ 8, quoting State v. George , 45 Ohio St.3d 325, 544 N.E.2d 640 (1989), paragraph one of syllabus, quoting Illinois v. Gates , 462 U.S. 213, 238-39, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).
{¶ 14} The information considered by a judge or magistrate in determining whether to issue a search warrant is provided by affidavit. The affidavit is sometimes supplemented by the affiant's oral testimony under oath. R.C. 2933.23 states in relevant part:
A search warrant shall not be issued until there is filed with the judge or magistrate an affidavit that particularly describes the place to be searched, names or describes the person to be searched, and names or describes the property to be searched for and seized; that states substantially the offense in relation to the property and that the affiant believes and has good cause to believe that the property is concealed at the place or on the person; and that states the facts upon which the affiant's belief is based. The judge or magistrate may demand other and further evidence before issuing the warrant. If the judge or magistrate is satisfied that grounds for the issuance of the warrant exist or that there is probable cause to believe that they exist, he shall issue the warrant, identifying in it the property and naming or describing the person or place to be searched.
Crim.R. 41(C)(1) and (2) state in relevant part:
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