Update: On April 28, 2015, the Supreme Court of Ohio handed down a merit decision in this case. Read the analysis here.
Read the analysis of the oral argument here.
On May 28, 2014, the Supreme Court of Ohio will hear oral argument in the case of State of Ohio v. Nicholas Castagnola2013-0781. At issue in this case is whether or not an affidavit which incorrectly claimed that the Defendant stated he used a computer to facilitate a crime was sufficient to establish probable cause for a warrant to search his computer, and if not, whether the exclusionary rule should apply to exclude evidence of child pornography found as a result of the search.
On April 24, 2010, Nicolas Castagnola was caught selling alcohol to two minors. David Maistros, law director for the City of Twinsburg, was assigned as prosecutor for the case. Castagnola, representing himself, filed a number of motions with the court on June 14, 2010, all of which were denied.
The following morning, Maistros emerged from his home to discover that his and his wife’s cars had been “egged.” Five days later, a police cruiser from a nearby town was similarly vandalized. While reviewing police reports, Maistros learned that the Twinsburg Police Department had stopped four individuals, including Castagnola, who were in possession of dozens of eggs.
On June 27, 2010, an informant, who the police dubbed “Source May,” reported that Castagnola was indeed responsible for the egging and provided copies of ten text messages from Castagnola admitting to the crime. The informant agreed to be fitted with an electronic transmitter and was sent to Castagnola’s home. The informant subsequently recorded a 55-minute conversation in which Castagnola described the crime in detail and admitted that the crimes were in retaliation against Maistros for prosecuting him for the sale of alcohol to minors.
Using the information obtained from the recorded conversation, law enforcement officers were able to obtain an arrest warrant for Castagnola as well as a warrant to search his home. The officers conducted the search on June 29, 2010, and removed two computers from the premises. While searching one of the computers for evidence of retaliation, a forensic examiner discovered child pornography. After securing a second warrant, the examiner discovered five images as well as five videos containing child pornography.
Castagnola was charged with of two counts of retaliation, one count of criminal damaging, one count of vandalism, one count of criminal trespass, and one count of criminal tools (the retaliation case) and, in a separate case (the pandering case) ten counts of pandering sexually oriented matter involving a minor.
In both cases, Castagnola filed a motion to suppress the evidence obtained from the search of his computer. Castagnola argued that the warrant was based on an affidavit that falsely claimed Castagnola had told Source May that he had looked up Maistros’ home address “online.” The trial court determined that, while Castagnola never directly stated that he used the internet in his search, the detective could have drawn a reasonable inference from the conversation that Castagnola had used the internet to search for the prosecutor’s address. The court denied the motion, and Castagnola was convicted of all retaliation charges by a jury and of all the pandering charges in a bench trial. Castagnola was sentenced accordingly.
Castagnola appealed to the Ninth District Court of Appeals. In the issue pertinent to this appeal, Castagnola challenged the sufficiency of the indicia of probable cause in the affidavit in support of the warrant issued to search his computer. In a split decision on this issue, the appeals court found that the warrant was supported by probable cause, and rejected the argument that the affidavit was false or misleading, untruthful, or reckless. The dissent found probable cause lacking.
Fourth Amendment to the U.S. Constitution (“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… and particularly describing the place to be searched, and the persons or things to be seized.”)
State v. Eash, 2005-Ohio-3749 (to secure a search warrant, an officer must provide a causal connection between the object to be searched and the crime substantiating the search.)
Franks v. Delaware, 438 U.S. 154 (1978) (in order to be entitled to a hearing on false statements in affidavits used to secure search warrants, the defendant must first make a substantial showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant of the affidavit.)
United States v. Leon, 468 U.S. 897 (1984) (Suppression of evidence is not appropriate where the police act in objectively reasonable reliance upon the magistrate’s determination of probable cause, even if that determination is subsequently determined to be wrong.)
Nardone v. United States, 308 U.S. 338 (1939) (Evidence discovered pursuant to a lawful search must be suppressed if its discovery stemmed from an earlier illegal search or seizure, and the taint of the initial illegality has not been attenuated by subsequent events.)
Castagnola argues that Detective Kreiger’s affidavit failed to establish probable cause to search his computer and that the warrant lacked the particularity necessary to ensure that any search of the computer was limited.
First, Castognola argues that the trial court erred in reasoning that the text messages sent from Castagnola’s cell phone established probable cause to search the computer. For support, Castagnola relies on State v. Eash in arguing that there was no connection between the use of text messages and the use of a computer.
Second, Castagnola argues that this case meets the two prong test established in Franks v. Delaware. He argues that the first prong is met because Detective Kreiger personally monitored the “Source May” conversation yet still falsely stated in the affidavit that Castognola said he looked up the prosecutor’s address online. Further, the second prong is met because the magistrate relied on the falsity in finding probable cause.
Third, Castagnola argues that the good faith exception in United States v. Leon does not apply to his case. Specifically, the good faith exception does not apply when the magistrate is misled by information the affiant knew was false. Further, the affidavit provided no basis that Castagnola used a computer, rather than some other device capable of accessing the internet, or that he had used his own computer to do so, rather than a public one or one belonging to his confederates, or that the evidence would still be on the computer.
Lastly, Castagnola argues that the warrant was not sufficiently particularized. He argues that the warrant offered no guidance as to what could be seized and that no additional evidence was needed to prosecute Castagnola. Specifically, Castagnola had already admitted to committing the crime, the police had the taped conversation with “Source May,” as well as Castagnola’s text messages. Further, nothing about the alleged retaliation offenses would lead officers to believe that contraband relating to those offenses would be found on his computer. In all, the warrant was too broad and included items—such as ledgers, printers, and video recorders—that had no connection with the retaliation crimes.
The State argues that both the affidavit and the warrant were sufficient and that the trial court’s denial of the motion to suppress should be affirmed. First, the State argues that the trial court correctly held that the issuing magistrate could have found sufficient probable cause through references in the affidavit to “online” and the inference that a person using a smart phone could have backed up or synchronized data onto a computer.
Second, the State argues that the Eash case is distinguishable. In Eash, the court found that there was no causal link between sexually propositioning minor females from a vehicle and the search of the predator’s computer. In contrast, the affidavit in this case contains averments from which an issuing magistrate could conclude that Castagnola used the internet on his computer to locate the prosecutor’s address.
Third, the State argues that the trial court correctly concluded that Detective Kreiger’s statement in the affidavit that Castagnola used the internet to find the prosecutor’s address was appropriate. The State argues that the statement was a correct impression based upon Castognola stating that he found the address through the clerk of courts and a text message asking “How many David M. Maistros’ could there be who are attorneys.”
Fourth, the State argues that the issue of particularity was not challenged at the trial court or the court of appeals. As such, the State contends that the issue was improvidently certified and accepted.
Lastly, the State argues that, under the circumstances, the warrant could not reasonably have described the items to be searched more precisely. The search was limited a list of items relating to the specified retaliation offenses. Further, the computer was searched specifically for evidence of the alleged offenses and the State procured an additional warrant once the child pornography was found.
Castagnola’s Proposed Proposition of Law No. 1
In determining whether an affidavit is sufficient to establish probable cause for the issuance of a search warrant, the inquiry is limited to the four corners of the affidavit, or testimony taken by the magistrate under oath, and cannot be based on inferences drawn by the affiant unless those inferences were fairly communicated to the issuing magistrate.
Castagnola’s Proposed Proposition of Law No. 2
A general exploratory search for evidence on a computer does not meet the particularity requirement of the Fourth Amendment. An affidavit and search warrant authorizing the seizure and search of a computer must describe with particularity the type of items to be sought, supported by probable cause to believe that those items will be found on the computer.
Student Contributors: Michael Elliott and Cameron Downer