State v. Neely
| Citation | 2012 Ohio 212 |
| Decision Date | 20 January 2012 |
| Docket Number | Trial Court Case No. 09-CR-4042,Appellate Case No. 24317 |
| Parties | STATE OF OHIO Plaintiff-Appellee v. JOHNATHAN NEELY Defendant-Appellant |
| Court | United States Court of Appeals (Ohio) |
(Criminal Appeal from Common Pleas Court)
OPINIONMATHIAS H. HECK, JR., by JOHNNA M. SHIA, Atty. Reg. #0067685, Montgomery County Prosecutor's Office, Appellate Division, Montgomery County Courts Building, Attorney for Plaintiff-Appellee
ROBERT ALAN BRENNER, Atty. Reg. #0067714, Post Office Box 341021, Beavercreek, Attorney for Defendant-Appellant
{¶ 1} Defendant-appellant Johnathan Neely appeals from his conviction and sentence, following a no-contest plea, for Trafficking in Cocaine, in the amount of at least ten grams,but less than twenty-five grams, in the vicinity of a school or a juvenile. He contends that the trial court erred when it overruled his motion to suppress, because he had a reasonable expectation of privacy in certain information concerning his cell telephone usage (which did not include the contents of any communications) that police obtained from his cell telephone service provider, without a warrant. He also concludes that his trial counsel was ineffective for having relied solely upon State v. Smith, 124 Ohio St.3d 163, 2009-Ohio-6426, 920 N.E.2d 949, in support of his argument in support of his motion to suppress, without recognizing that Smith is distinguishable because it involved the warrantless obtaining of information stored on a defendant's cell phone upon that defendant's arrest.
{¶ 2} We conclude that Neely had no reasonable expectation of privacy in the following records maintained by his telephone service provider: (1) the name and address of the subscriber (Neely) assigned to the particular cell phone number; (2) the numbers of telephones placing calls to, or receiving calls from, that cell phone number; and (3) the duration of those calls. Consequently, we conclude that the trial court did not err in overruling Neely's motion to suppress, and also conclude that his trial counsel was not ineffective in his argument to the trial court in support of the motion to suppress.
{¶ 3} Neely further contends that the trial court erred by ordering him to pay court costs without having informed him of its intent to do so, thereby depriving him of the opportunity to argue in favor of the waiver of court costs. The State concedes error in this regard. We agree. The award of court costs is Reversed, and this cause is Remanded for a hearing on the issue of court costs. In all other respects, the judgment of the trial court is Affirmed.
{¶ 4} In the course of a drug investigation, Moraine Police Detective Jason Neubauer was informed by a confidential informant that a particular phone number was being used to make drug transactions. Neubauer used Phone Finder on the worldwide web to determine that the phone number was provided by Cincinnati Bell Wireless. A further investigation determined that the number had not been "ported" - i.e., a card in the cell phone had not been switched, resulting in a different service provider.
{¶ 5} Neubauer then had his informant, in Neubauer's presence, make a call, which was recorded, to that number to arrange a purchase of crack cocaine, in order to verify that the number was, in fact, being used in drug transactions. The purchase of the crack cocaine by the informant was then consummated, as a controlled buy. Neely was observed completing the sale to the informant. The conversation between Neely and the informant during their face-to-face transaction was recorded; it confirmed that Neely had sold the crack cocaine to the informant. Neely was not apprehended at this time, and his identity was not ascertained.
{¶ 6} Then, Neubauer obtained a court order requesting subscriber information and call detail records from Cincinnati Bell Wireless corresponding to the phone number used in the drug transaction, within a time frame from briefly before the informant made the call to briefly afterward. Neubauer faxed the order to Cincinnati Bell Wireless, and later obtained, by e-mail, the information requested, which included the fact that the number was assigned to Neely, and that a call was made between that phone and the phone used by the informant at the time of the transaction. The information obtained from Cincinnati Bell Wireless was used to ascertain the identity of the person selling the crack cocaine as Neely.
{¶ 7} Neely was charged by indictment with one count of Trafficking in Crack Cocaine in an amount equaling or exceeding ten grams, but less than twenty-five grams, within the vicinity of a school or juvenile, in violation of R.C. 2925.03(A)(1), a felony of the first degree.
{¶ 8} Neely moved to suppress "any and all records obtained by the State of Ohio relating to cell phone number * * * ." Neely submitted in his motion that State v. Smith, 124 Ohio St.3d 163, 2009-Ohio-6426, 920 N.E.2d 949, "forms the basis for this motion." His motion to suppress was heard. Police Detective Neubauer was the sole witness. During the hearing, Neubauer looked at, and referred to, the records obtained from Cincinnati Bell Wireless; but the records were not offered or admitted in evidence.
{¶ 9} The trial court overruled Neely's motion to suppress. Thereafter, Neely entered into a plea agreement wherein he would plead no contest to the offense as charged, and he would receive a prison term within the range of four to seven years.
{¶ 10} At the sentencing hearing, Neely was sentenced to a mandatory term of five years, with five years of post-release control, and a three-year driver's license suspension. He was found to be indigent, and the trial court did not impose a fine. No mention was made concerning court costs. Neely's sentencing entry was consistent with the foregoing; except that, he was ordered to pay court costs.
{¶ 11} From his conviction and sentence, Neely appeals.
in the Billing Records of His Telephone Service Provider.
{¶ 12} Neely's Second Assignment of Error is as follows:
{¶ 13} "THE TRIAL COURT ERRED BY OVERRULING THE MOTION TO SUPPRESS."
{¶ 14} Neely concedes that State v. Smith, 124 Ohio St.3d 163, 2009-Ohio-6426, 920 N.E.2d 949, upon which he relied in the trial court in support of his motion to suppress, is distinguishable. In that case, the Supreme Court of Ohio held that police could not lawfully obtain information stored on a cell phone on the person of an arrestee, without either exigent circumstances or a warrant, because a person has a reasonable expectation of privacy in the information stored on his cell phone. In Neely's case, no information was retrieved from his cell phone; the information at issue was obtained from the records of his telephone service provider.
{¶ 15} A federal statute - the Electronic Communications Privacy Act, 18 U.S.C. 2703(c)(1)(B) - establishes a procedure that a governmental entity is to follow in obtaining records pertaining to a subscriber to, or customer of, an electronic communication service. In this case, the police followed the procedure set forth in subsection (d) of the federal act, which governs information relevant to an ongoing criminal investigation. A court order is required. The existence of the federal act suggests that Congress was of the view that this type of information is not protected under the Fourth Amendment to the United States Constitution, but wanted to provide some statutory protection.
{¶ 16} Nevertheless, Neely argues that he had a reasonable expectation of privacy in the records maintained by Cincinnati Bell Wireless concerning his telephone service. Heargues that the information contained in the records is therefore protected by both the Fourth Amendment to the United States Constitution and by Article I, Section 14 of the Ohio Constitution.
{¶ 17} Neely attempts to distinguish his case from Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979), in which the United States Supreme Court upheld the warrantless use of pen registers to obtain information concerning calls made to and from a particular phone number. He argues that more information than that was obtained in his case; crucially, in his case the police obtained from the telephone service provider the name and address of the subscriber, Neely, assigned to the phone number - i.e., his identity.
{¶ 18} We are not persuaded. The essential distinction made in Smith v. Maryland is between the contents of telephone communications, which have been recognized as constitutionally protected since Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), and other information concerning the use of a telephone. Smith at 741. True, the Supreme Court went on to quote from United States v. New York Tel. Co., 434 U.S. 159, 167, 98 S.Ct. 364, 369, 54 L.Ed.2d 376 (1977), in which it had noted that: "Neither the purport of any communication between the caller and the recipient of the call, their identities, nor whether the call was even completed is disclosed by pen registers." Smith at 741. But we do not read the Supreme Court's reference to this passage quoted from New York Tel. Co. to indicate more than that it was indicating how far the information conveyed by a pen register is from the actual contents of the communications, which are constitutionally protected.
{¶ 19} The United States Supreme Court was at pains to reject the claim that persons have a reasonable expectation of privacy in the numbers that they dial from their phones:This claim must be rejected. First, we doubt that people in general entertain any actual expectation of privacy in the numbers they dial. All telephone users realize that they must "convey" phone numbers to the telephone company, since it is through telephone...
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