State v. Shaskus

• Decision Date: 29 November 2016
• Docket Number: No. 14AP–812.,14AP–812.
• Citation: 66 N.E.3d 811
• Parties: STATE of Ohio, Plaintiff–Appellant, v. James F. SHASKUS, Defendant–Appellee.
• Court: Ohio Court of Appeals

66 N.E.3d 811

STATE of Ohio, Plaintiff–Appellant,

v.James F. SHASKUS, Defendant–Appellee.

No. 14AP–812.

Court of Appeals of Ohio, Tenth District, Franklin County.

Nov. 29, 2016.

On brief: Ron O'Brien, Prosecuting Attorney, and Seth L. Gilbert, for appellant. Argued: Seth L. Gilbert.

On brief: Dennis C. Belli, Columbus, for appellee. Argued: Dennis C. Belli.

BROWN, J.

{¶ 1} This is an appeal by plaintiff-appellant, State of Ohio, from a judgment of the Franklin County Court of Common Pleas granting a motion to suppress filed by defendant-appellee, James F. Shaskus.

{¶ 2} On September 18, 2013, a Franklin County Grand Jury returned an indictment charging appellee with five counts of pandering sexually oriented matter involving a minor, in violation of R.C. 2907.322. On April 18, 2014, appellee filed a motion to suppress physical evidence and statements. Specifically, appellee sought an order from the court suppressing "the email messages under the account of jack.flash75@yahoo.com which were obtained by a detective of the Franklin County Sheriff's Department Internet Crimes Against Children Task Force from Yahoo, Inc. pursuant to a search warrant issued on October 21, 2011." Appellee also sought to suppress "the digital images, data, and emails stored on the hard drive of the Dell desktop computer which was seized by the same detective from [appellee's] residence pursuant to a search warrant issued on November 14, 2011." On May 23, 2014, the state filed a memorandum contra appellee's motion to suppress. (Def.['s] Mot. to Suppress at 1.)

{¶ 3} On July 7, 2014, the trial court conducted a hearing on the motion to suppress. The state called as a witness David R. Hunt, formerly a detective with the Franklin County Sheriff's Department. During his employment with the sheriff's department, Detective Hunt's duties included performing investigations as part of the Franklin County Internet Crimes Against Children Task Force ("ICAC task force").

{¶ 4} At the suppression hearing, Detective Hunt provided testimony regarding a 2011 police investigation into a Craigslist advertisement soliciting sexual encounters with minors. Detective Hunt became involved in the investigation leading to the indictment against appellee as a result of "a spinoff of an investigation from another case" in which investigators "were looking at different Craigslist predators." (July 7, 2014 Tr. at 8–9.)

{¶ 5} In April 2011, a police investigator with the Franklin County Sheriff's Department became aware of an online advertisement indicating that an individual "might be seeking to have sexual encounters with minors." (July 7, 2014 Tr. at 9.) Specifically, the advertisement read: "Up to 500 younger the more u get—m4w 38. Younger the better let me take u shopping lol send pic, stats, and number! To text u." (State's Ex. A at 2.)

{¶ 6} Investigators opened an investigation and "started issuing subpoenas to various internet service providers, tracking the postings." (July 7, 2014 Tr. at 9.) According to Detective Hunt, Craigslist maintains the anonymity of posters, requiring investigators to "notify [Craigslist] with a subpoena requesting identification information" such as the internet protocol address ("IP address") used to post the advertisement. (July 7, 2014 Tr. at 10.)

{¶ 7} On September 20, 2011, Detective Hunt observed the following online Craigslist advertisement:

[T]rade young 4 young (Columbus) I have a really young lover looking to find another guy who has the same to share. Mine is 4ft5in, 70lbs blonde, very little hair and has only been with me. If u are interested send pics, stats of yours and if I like we might do some trading. Or I can give benefits to u. No questions asked. I'm clean [white] and safe.

(State's Ex. B at 3.)

{¶ 8} After contacting Craigslist for information, Detective Hunt determined that an individual named Virgil Pennington had placed the advertisement linked to the email address leevp3@gmail.com, and that Pennington had an email account through America Online. Detective Hunt sought and obtained a search warrant to review other emails generated in response to Craigslist advertisements posted through Pennington's Gmail address. Specifically, on October 4, 2011, a judge from the Franklin County Municipal Court approved a warrant to Google, Inc., in California, seeking "evidence of the commission of the criminal offense of Importuning," in violation of R.C. 2907.07, to wit: "any and all emails including read, unread, and sent since September 21, 2011 and all indicia, documents, and records showing ownership or rights of possession of the email account of Virgil Pennington." (State's Ex. A at 1.)

{¶ 9} Detective Hunt obtained approximately 500 email communications sent in response to the poster of the Craigslist advertisement, including a reply by an individual who identified himself online as "Jack Flash." One of the emails from the Jack Flash email account, dated in September 2011, "included a photograph of a young, white female." The female "was fully clothed, standing in * * * a kitchen area * * * next to a birthday cake with the number ‘13’ on it." (July 7, 2014 Tr. at 12.)

{¶ 10} In an email exchange between Flash and Pennington on September 27, 2011, Flash wrote to Pennington at the email address leevp3@gmail.com, stating: "id love if you shared yours with me but i might be able to get one for you to have as well tell me about yours." A response from leevp3@gmail.com stated: "U first. I gave mine stats now u. She has only been with me and does what * * * daddy tells her." Flash responded as follows: "mine is 4'9 and she weighs about 80lbs shes a very good girl and very accommodating do you have a pic of yours i could see? and where in columbus are you? id love to play." Pennington then wrote: "Yes pic for pic. and there will be any trading. I take urs out for a so called lunch and if all goes well Ill let u take mine out for lunch. I'm very protective of her. She is a good girl. So I also have to know u are clean and safe." Flash responded: "[P]lease send yours as well."

{¶ 11} Detective Hunt, out of concern "that there was a live victim" that he "needed to identify and locate," subpoenaed Yahoo!, Inc. ("Yahoo") to obtain the IP address information for Flash. (July 7, 2014 Tr. at 24.) The detective subsequently sought and obtained a warrant, issued by a municipal court judge on October 21, 2011, to search Yahoo for:

[E]vidence of the commission of the criminal offenses of Compelling Prostitution, 2907.21 R.C., to wit: specifically, any and all emails including opened, unopened, sent, forwarded, deleted; any and all subscriber information including names, addresses, other email accounts; original IP address used and date the account was opened; any other information relating to the email account requested; and all indicia, documents, and records showing ownership or rights of possession of the email account of Jack Flash c/o Yahoo Inc.

(State's Ex. B at 1.)

{¶ 12} Approximately one week later, the detective received a CD from Yahoo containing "approximately 3,000 e-mails from the jack.flash75 account." (July 7, 2014 Tr. at 18.) The information included "some IP addresses as to when the account was opened," and Detective Hunt was able to determine that the Flash account was through Time Warner Cable. (July 7, 2014 Tr. at 18.) The detective sent a subpoena to Time Warner Cable, issued on November 1, 2011, "for the subscriber information for that specific IP address." (July 7, 2014 Tr. at 20.) Time Warner Cable sent Detective Hunt information that the IP address was associated with an address on Hunter Avenue, Columbus.

{¶ 13} During his review of emails, Detective Hunt found photographs of an individual he was later able to identify as appellee. The detective determined that a second individual associated with the Hunter Avenue address did not match photographs from the emails. Appellee's name eventually appeared in a public records search as an individual who also resided at the Hunter Avenue address. Based on the information obtained, the detective believed that appellee "was jack.flash75." (July 7, 2014 Tr. at 26.)

{¶ 14} Detective Hunt testified that he initially reviewed the emails from the Flash account "that only had attachments, i.e., photographs." (July 7, 2014 Tr. at 24.) During his "review of the different attachments and the earlier e-mails," Detective Hunt "came across numerous images" of what he believed to be "child pornography." (July 7, 2014 Tr. at 26.)

{¶ 15} Detective Hunt subsequently obtained a warrant to search appellee's residence on Hunter Avenue, Columbus, for evidence of pandering obscenity involving a minor, in violation of R.C. 2907.32, illegal use of a minor in nudity oriented material, in violation of R.C. 2907.323, disseminating matter harmful to juveniles, in violation of R.C. 2907.31, and endangering children, in violation of R.C. 2919.22. Detective Hunt identified state's exhibit C as the search warrant, dated November 14, 2011. At the time Detective Hunt and other officers arrived at the Hunter Avenue residence, appellee was at his workplace; Detective Hunt and another law enforcement officer went to appellee's place of employment and advised him of the nature of the warrant and "asked him if he would return home with us voluntarily or give us a key so that we could gain entry into the residence." (July 7, 2014 Tr. at 28.) Appellee accompanied the officers back to his residence.

{¶ 16} During the search, police officers recovered a computer from appellee's residence. Detective Hunt testified that a forensic examination of the computer revealed "over 900 images" of child pornography. (July 7, 2014 Tr. at 28.)

{¶ 17} Appellee testified on his own behalf during the hearing, and stated he was at work on the date the officers sought to execute the search warrant. Detectives arrived at his workplace and told him "[t]hey were getting ready to kick down the door if I would not go with them." (July 7, 2014 Tr. at...