State v. RiveraState v. Rivera
Blake P. Somers, 708 Walnut Street, Suite 600, Cincinnati, Ohio 45202, for defendant-appellant
O P I N I O N
BRESSLER, P.J.
{¶1} Defendant-appellant, Armando Rivera, appeals his convictions in the Butler County Court of Common Pleas for compelling prostitution.
{¶2} In November 2007, a high school student in Butler County informed his teacher that appellant was his former boss at Wonderpark Family Entertainment in Cincinnati, and that he believed appellant paid other high school students for photographs and films of themselves engaged in sex acts. The student indicated he had not taken part in this activity, nor did appellant personally ask him to do so.
{¶3} The teacher then contacted the Fairfield Police Department, and Fairfield police officers began an investigation. During the investigation, Fairfield police officers obtained appellant‘s cell phone number, which appellant used to communicate with the boys. Pursuant to
{¶4} On January 28, 2008, appellant was arrested and transported to the Fairfield police station. That day, appellant signed a written waiver of his Miranda rights. During the interview appellant was informed that the officers had obtained his cell phone text messages. At the conclusion of the interview, appellant provided a written statement, in which he admitted to participation in these activities. On May 7, 2008, appellant was indicted on seven counts of compelling prostitution in violation of
{¶5} On August 8, 2008, appellant moved to suppress all text and picture messages sent or received by appellant, all evidence seized pursuant to search warrants, and all statements made by appellant. On September 12, 2008, appellant filed a supplemental motion to suppress and also moved to declare
{¶6} Assignment of Error No. 1:
{¶7} “THE COURT BELOW ERRED WHEN IT DENIED MR. RIVERA‘S MOTION TO DECLARE AS UNCONSTITUTIONAL
{¶8} Assignment of Error No. 2:
{¶9} “EVEN IF THE S.C.A. IS NOT UNCONSTITUTIONAL, THE COURT BELOW ERRED WHEN IT DENIED MR. RIVERA‘S MOTION TO SUPPRESS.”
{¶10} Appellant argues that the Act is facially unconstitutional, in that it abridges the protected Fourth Amendment privacy rights of individuals in the content of their private, electronic communications. Further, appellant argues the seizure of his private electronic communications and all other evidence seized as a result should have been suppressed.1
{¶11} The Fourth Amendment to the United State Constitution guarantees that “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 uрon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
{¶12} While the Fourth Amendment does not contain an express mandate that
{¶13} Congress enacted the Act in 1986, which is codified at
{¶14} The compelled-disclosure provisions in the Act provide different levels of privacy protection bаsed on whether the electronic communication is held with an electronic communication service or a remote computing service, and based on the length of time the electronic communication has been in electronic storage. Id. When an electronic communication has been in electronic storage for more than 180 days, the government may compel an electronic communication service provider to disclose the contents of the communication by: 1) obtaining a warrant; 2) using an administrative subpoena; or 3) obtaining a court order pursuant to
{¶15} Pursuant to
{¶16} Despite being enacted in 1986, the Act has rarely been challenged as facially unconstitutional, and there is no valid legal decision declaring the constitutionality of the Act. In Warshak v. United States (C.A.6, 2007), 490 F.3d 455 (Warshak I), the Sixth Circuit Court of Appeals declared portions of the Act unconstitutional, but later vacated its decision in Warshak II, finding that Warshak‘s constitutional claims were not ripe for review. In Warshak I, Warshack sought injunctive relief to prevent the government from obtaining any further emails during its investigation. However, this case is different in that the government obtained text
{¶17} Several courts have considered the constitutionality of the Act as applied to particular defendants. See United States v. Hart (W.D.Ky.2009), Slip Op. Criminal Action No. 08-109-C, 2009 WL 2552347; Quon v. Arch Wireless Operating Co., Inc. (C.A.9, 2008), 529 F.3d 892; United States v. Ferguson (D.C.Cir.2007), 508 F.Supp.2d 7. However, even where courts have found the government violated the provisions of the Act, courts have routinely held that exclusion of improperly obtained evidence is not the appropriate remedy. See, e.g., Hart;
{¶18} The Act permits both criminal prosecutions and civil actions for violations of its terms.
{¶19} Also, the Act provides that “[t]he remedies and sanctions described in this chapter are the only judicial remedies and sanctions for nonconstitutional violations of this chapter.”
{¶20} Further, to the extent that appellant argues the government‘s alleged violation of the Act violates the privacy protections of the Fourth Amendment, appellant‘s argument must fail. States v. Cray (S.D.Ga.2009), Slip Op. No. CR 109-074, 2009 WL 4059071. As stated by the United States District Court for the Southern District of Georgia in Cray at *6, “[i]mpоrtantly, a right bestowed by Congress does not create a constitutional right, and does not trigger the exclusionary rule. ‘The rights created by Congress are statutory, not constitutional.’ * * * [A] statutory violation by itself is insufficient to justify the exclusion of any evidence obtained in that manner. * * * Violation of a statute will not result in suppression unless the statute itself specifies exclusion as a remedy.” (Internal citations omitted.)
{¶21} Moreover, several courts have declined to rule on the constitutionality of the Act when the government‘s reliance on the Act being constitutional was in good faith and objectively reasonable. For example, in Ferguson, 508 F.Supp.2d 7, the United States District Court for the District of Columbia reiterated that the Fourth Amendment‘s exclusionary rule does not apply where the challenged evidence was obtained by an officer acting in objectively reasonablе reliance on a statute, even if that statute was later determined to be unconstitutional.
{¶23} Also, as the court noted in Ferguson at 9, “[a]cts of Congress are entitled to a strong presumption of constitutionality. * * * The [Act] was enacted in 1986. Prior to the district court‘s ruling in Warshak in 2006, twenty years after enactment of the SCA, no court had ruled that the Act was unconstitutional.” Further, the court in Ferguson also found it important that the court orders obtained under the Act were approved with the legal judgment of a neutral magistrate. Id.
{¶24} According to the record in this case, Detective Woodall obtained appellant‘s text message records that were less than 180 days old by using a court order rather than a warrant as required by
{¶25} To benefit from the protection provided by the Fourth Amendment, appellant must demonstrate that he suffered a violatiоn of a constitutional right. At best, appellant has demonstrated that he suffered a violation of a statutory right. Because appellant has not demonstrated any valid privacy interest that invokes Fourth Amendment protection and the remedy he seeks for a nonconstitutional violation is impermissible, we need not determine whether the Act is facially unconstitutional. See Cray.
{¶26} Next, we turn to appellant‘s argument that the trial court erred in denying his motion to suppress evidence seized from his residence and the statement appellant provided. Appellant maintains the affidavit in support of the search warrant lacked probable cause to support the issuance of the warrant.
{¶27} Appellate review of a ruling on a motion to suppress presents a mixed question of law and fact. State v. Cochran, Preble App. No. CA2006-10-023, 2007-Ohio-3353. Acting as the trier of fact, the trial court is in the best position to resolve factual questions and evaluate witness credibility. Id. Therefore, when reviewing the denial of a motion to suppress, a reviewing court is bound to accept the trial court‘s findings of fact if they are supported by competent, credible evidence. State v. Oatis, Butler App. No. CA2005-03-074, 2005-Ohio-6038. “An appellate court, however, independently reviews the trial court‘s legal conclusions based on those facts and determines, without deference to the trial court‘s decision, whether as a matter of law, the facts satisfy the appropriate legal standard.” Cochran at ¶12.
{¶28}
{¶29} However, the exclusionary rule is unnecessary when law enforcement properly executes a legаl warrant issued by a detached judge that is supported by probable cause. Acord at ¶15, citing State v. George (1989), 45 Ohio St.3d 325. In determining whether probable cause exists to support the issuance of a warrant, courts employ a “totality-of-the-circumstances” test, which requires an issuing judge “to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit * * * including the ‘veracity’ and ‘basis of knowledge’ of persons supрlying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.” State v. Moore, Butler App. No. CA2005-08-366, 2006-Ohio-4556, ¶11, quoting George, 45 Ohio St.3d at 329.
{¶30} When reviewing a finding of probable cause in a search warrant affidavit, reviewing courts “may not substitute their own judgment for that of the issuing magistrate by conducting a de novo determination as to whether the affidavit contains sufficient probable cause upon which the reviewing court would issue the search
{¶31} With regard to hearsay information in a searсh warrant application, Ohio courts have determined that hearsay evidence is relevant to a probable cause determination. Id. at ¶13. Where a confidential or anonymous informant is the source of the hearsay, there must be some basis in the affidavit to indicate the informant‘s credibility, honesty or reliability. See State v. Harry, Butler App. No. CA2008-01-0013, 2008-Ohio-6380, ¶20. An affidavit containing detailed information from informants (permitting an inference that illegal activity was рersonally observed by the informants), police corroboration of an informant‘s [information] through its own independent investigation, or additional testimony by the affiant helps to bolster and substantiate the facts contained in the affidavit.” Id., citing State v. Ingram (Sept. 26, 1994), Butler App. No. CA94-03-076, 4-5.
{¶32} In Detective Woodall‘s affidavits, he stated he received a report from his department that a student, J.M., had confided in his teacher that he and several other kids had recently been firеd from Wonderpark, and that as a way of getting back at their manager, appellant, for firing them, they were thinking about reporting appellant‘s misconduct. J.M. elaborated that appellant pays kids $50 to masturbate in front of him while he takes pictures of the kids on his cell phone. J.M. said he did not participate in this but that several of the other employees did so and were paid for it.
{¶33} Detective Woodall also included notes from another officer‘s interview with J.M., which included additional facts that appellant conducted this activity with
{¶34} Detective Woodall stated that he interviewed J.M. himself and obtained the names and cell phone numbers of some of the other employees at Wonderpark. J.M. explained to Deteсtive Woodall that appellant did not approach him directly about this activity, but that appellant told J.M. to talk to D.H., another employee, about making extra money. It was D.H. who provided J.M. with the information that J.M. reported about appellant. J.M. also provided Detective Woodall with appellant‘s cell phone number.
{¶35} Detective Woodall then explained that he received 121 pages of text messages from appellant‘s cell phone provider, and that after reviewing these messages, Detective Woodall was certain that appellant had been soliciting boys for sexually explicit material. Detective Woodall included a portion of these messages where someone using appellant‘s cell phone offered between $100 and $300 for pictures and videos of known juveniles masturbаting and performing sex acts.
{¶36} Given that we place significant deference to the judge‘s determination of probable cause, even if we ignore the contents of the text messages, we find that based upon the facts and circumstances alleged in Detective Woodall‘s affidavits, there was a substantial probability that evidence used to facilitate the act of compelling prostitution would be found in apрellant‘s home, vehicle, and workplace. Therefore, the affidavits
{¶37} Accordingly, appellant‘s assignments of error are overruled.
{¶38} Judgment affirmed.
POWELL and HENDRICKSON, JJ., concur.