State v. ThorntonState v. Thornton
Rendered on September 29, 2009
Ron O‘Brien, Prosecuting Attorney, and Laura R. Swisher, for appellee.
Tyack, Blackmore & Liston Co., L.P.A., and Thomas M. Tyack, for appellant.
APPEAL from the Franklin County Court of Common Pleas
KLATT, J.
{¶1} Defendant-appellant, Harold Thornton, II, appeals from a judgment of conviction and sentence entered by the Franklin County Court of Common Pleas. Because the trial court properly denied appellant‘s motion to suppress, we affirm that judgment.
{¶3} Officer Priest searched the Limewire network for files with titles that included words indicative of child pornography. His search generated a list of files on the Limewire network containing those words. The list also included the internet protocol address (“IP address“) of each of the computers that possessed the relevant files. A computer‘s IP address is similar to a home‘s mailing address and is unique to the computer‘s location.
{¶4} Officer Priest recognized one of the IP addresses as being associated with the Columbus, Ohio region and, more specifically, Time Warner‘s Road Runner internet service.1 Using the Limewire program, Officer Priest downloaded the file from that IP address and confirmed that it contained child pornography. Officer Priest then prepared a court order to obtain the subscriber information associated with that IP address to find the location of the computer. After a judge of the Franklin County Court of Common Pleas signed the court order, Priest delivered it, via fax, to Time Warner‘s legal department in Connecticut. Time Warner‘s response indicated that the IP address was assigned to Terri
{¶5} With that information, Officer Priest requested and obtained a search warrant for Perry‘s home. On May 7, 2007, the UAPD executed the search warrant at Perry‘s home. A number of people, including appellant, were in the house at the time. Appellant spoke with Officer Priest and informed him that the Road Runner internet service was exclusive to the computer in the upstairs bedroom that he shared with Perry.2 He also told Priest that he was the primary user of that computer and that he used the Limewire program. In a subsequent interview with the police, appellant admitted to installing the Limewire program on the computer.
{¶6} Pursuant to the search warrant, police seized Perry‘s computer from the house. A search of the computer‘s hard drive revealed seven files that contained child pornography. As a result, a Franklin County Grand Jury indicted appellant with 14 counts of pandering sexually oriented matter involving a minor in violation of
{¶8} Appellant appeals and assigns the following error:
I. THE TRIAL COURT ERRED IN OVERRULING THE MOTION TO SUPPRESS AS THE ACTIONS OF THE UPPER ARLINGTON POLICE DEPARTMENT VIOLATED THE DEFENDANT‘S RIGHTS UNDER THE FOURTH AND FOURTEENTH AMENDMENTS OF THE CONSTITUTION OF THE UNITED STATES AND THE CONSTITUTION OF THE STATE OF OHIO.
{¶9} Appellant contends the trial court erred when it overruled his motion to suppress. Appellate review of a motion to suppress presents a mixed question of law and fact. State v. Groce, 10th Dist. No. 06AP-1094, 2007-Ohio-2874, {¶}6. When considering a motion to suppress, the trial court assumes the role of trier of fact, and is therefore, in the best position to resolve factual questions and evaluate the credibility of witnesses. State v. Mills (1992), 62 Ohio St.3d 357, 366. Consequently, an appellate court must accept the trial court‘s findings of fact if they are supported by competent, credible evidence. State v. Brooks (1996), 75 Ohio St.3d 148, 154. Accepting these facts as true, the appellate court must then independently determine, without deference to the conclusion of the trial court, whether the facts satisfy the applicable legal standard. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, {¶}8; Columbus v. Dials, 10th Dist. No. 04AP-1099, 2005-Ohio-6305, {¶}17-18.
{¶11} The
{¶12} Appellant knowingly exposed to the public the files found on Perry‘s computer and the IP address associated with that computer through the use of the Limewire program on the computer. Therefore, he had no reasonable expectation of privacy in that evidence. United States v. Ganoe (C.A.9, 2008), 538 F.3d 1117, 1127 (no legitimate expectation of privacy in files defendant made available to public using Limewire software); United States v. Borowy (D.Nev. 2008), 577 F.Supp.2d 1133, 1136 (same); United States v. Forrester (C.A.9, 2008), 512 F.3d 500, 510 (no reasonable expectation of privacy in IP address); United States v. Li (Mar. 20, 2008), S.D. Cal. No. 07 CR 2915 JM, at 5, slip opinion (same). In that situation, Fourth Amendment protections are not implicated because a search does not occur. See Keith, citing State v. Sheppard (2001), 144 Ohio App.3d 135, 141.
{¶13} Appellant next addresses the process used by the UAPD to obtain Perry‘s subscriber information from Time Warner. Subscriber information, such as name,
{¶14} Assuming without deciding that appellant has standing to raise this argument,3 federal courts addressing this matter have consistently held that the remedy for a violation of the ECPA is a civil action for damages, not suppression.
{¶15} Finally, appellant contends that the court order requiring Time Warner‘s disclosure of his wife‘s subscriber information was not a valid subpoena. Appellant
{¶16} For all these reasons, the trial court did not err by denying appellant‘s motion to suppress. Accordingly, appellant‘s assignment of error is overruled and we affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
FRENCH, P.J., and CONNOR, J., concur.