What’s on their Minds? Sufficiency of Affidavit in Support of Warrant to Search Computer. State of Ohio v. Nicholas Castagnola.

Update: On April 28, 2015, the Supreme Court of Ohio handed down a merit decision in this case.  Read the analysis here.

On May 28, 2014, the Supreme Court of Ohio heard oral argument in the case of State of Ohio v. Nicholas Castagnola2013-0781.  At issue in this case is whether an affidavit which incorrectly asserted 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.

Case Background

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,” and the side mirror of his wife’s car vandalized.

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, the police learned from an informant that Castagnola was indeed responsible for the egging. The informant provided copies of ten text messages from Castagnola admitting to the crime, and agreed to wear a wire and to go 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. The conversation was monitored and recorded by law enforcement.

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 the informant 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.

On appeal, in a split decision on this issue, the Ninth District Court of Appeals found that the search 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.

At Oral Argument

Defense Argument

The seizure of Castagnola’s computer and the exploratory search of that computer was completely unreasonable. There is no mention of a computer in the affidavit in support of the search warrant. The only thing in the affidavit that gave even a hint of probable cause to believe that the computer was used in the retaliation case was the solitary word “online”—that Castagnola found the prosecutor’s address online. It is undisputed that in the recording with the informant, Castagnola himself never said he searched for the address online. This was an inference drawn by the detective and presented to the magistrate as a fact. The Fourth Amendment doesn’t work that way. The police present the facts and the issuing magistrate draws the inferences.  Here you have the police presenting as fact something which did not occur.

Further, the single use of the word “online” does not create probable cause to believe that Castagnola used his computer, as opposed to a smartphone or other device with browser capability, or a public or friend’s computer to access the address at issue here.  The single use of the word “online” was not a sufficient basis to seize Castagnola’s personal computer and search through it.

State’s Argument

The search warrant affidavit was supported by probable cause in this case, and the warrant did state with particularity the items to be searched. In his affidavit the officer did not present as a fact that the defendant used the word “online.” The officer merely went through a summary of the investigation which he had been conducting, which included numerous acts of criminal mischief, not just the incident with the prosecutor’s car. Evidence was being sought for many charges, not just those involving the prosecutor. It is clear from the affidavit the officer was not quoting the defendant because what is quoted—specifically the text messages—is in quotation marks, but what was taken from the recorded message is not. There is no indication whatsoever that the officer was dishonest in this case.

The only way the defendant could have gotten the prosecutor’s address was by finding it online.  Listening to the recorded conversation reveals a man very flagrant in his disregard for the law.  The prosecution has the right to bring as much evidence as it needs to make its case.  In this case the defendant could have recanted, or said he was just joking. This court should affirm and find the affidavit was sufficient as far as probable cause and that the warrant set forth what was to be searched with particularity.

What Was on their Minds

The Word “Online” in the Affidavit

Since the defendant said he found the address from the clerk of courts, was there an inference to be made that the only two ways he could have done that were getting it online, or that he went there, asked Justice French?

In one of the key questions of the day, Justice O’Donnell asked whether this whole thing came down to whether or not the officer’s insertion of the word “online” justifies the searches of the computers at the defendant’s home? The officer had the impression the defendant found the information about the law director’s address online, but the defendant never said that on the recording, he noted. So the question becomes whether or not the magistrate was misled into believing that the defendant had admitted he’d looked up the address online, and whether that justified the search of the defendant’s computer–that’s the essence of this case?

Evidence Needed to Convict on Retaliation Offenses

Since the defendant had already confessed, wasn’t the action in seeking the warrant just surplusage, asked Justice O’Donnell? Hadn’t he already been arrested and found with dozens of eggs? And then confessed to a wired informant?

Couldn’t the defendant have recanted after confessing, or said he was just joking, asked Chief Justice O’Connor? Wasn’t a proper reason for the computer search finding corroborating evidence as to the bragging or whatever is recorded on that conversation? Was it unreasonable to assume he might have recorded the vandalism? At what point had the defendant confessed to the retaliation offenses?

Where is the Nexus Here?

In another of the key exchanges of the day, Justice Lanzinger asked, how do you even get to the computer in the first place? She went on at some length, noting that it wasn’t as if the defendant was being investigated for a computer crime or pornography or anything like that which would suggest probable cause to search the computer to begin with.

Couldn’t we agree that if a young person had been involved in egging incidents, one’s computer is not where we go to look for evidence of that, asked Justice Pfeifer?

The Computer Search

Was the defendant suggesting the computer search should have been limited, asked Justice O’Donnell? (Defense counsel suggest that in argument at one point). What about the inadvertent discovery rule? What language could be used to limit a computer search? If, hypothetically we are looking at a cellphone and we want to find out what phone numbers had been called for a drug deal, if we find other phone numbers are we are not permitted to look at those? If we are searching for one body and find 15, are we supposed to ignore those? In another key exchange of the day, O’Donnell said to the defense, “you are asking us to adopt a rule that doesn’t have any common sense in it.”

Are you conceding that a computer search was all right to begin with, asked Justice Lanzinger, suggesting to defense counsel it sounded like he was (and it did, mid argument, but he emphatically said no he wasn’t. Her question seemed to get him back on track). Once you are in a computer it is going to be very hard to limit what’s being searched in that computer, she commented. Don’t we need look at the crime involved to see if the computer is implicated? She later asked a lot of questions about what the detective actually said, quoting from the court of appeals dissent, which the prosecutor suggested she believed contained some errors.

The dissent is asking us to address the rummaging through a personal computer for information that can be found somewhere else, commented Justice O’Neill.

How it Looks from the Bleachers

To Professor Bettman

I find this case very disturbing, and share Justice Lanzinger’s concerns about the lack of a nexus between the search of the defendant’s computer and the retaliation offenses with which he was the charged.  Her question, “how do we even get to the computer in the first place” said it all to me. “Online” is a vast place. As was pointed out, there wasn’t even any assurance that the defendant found the prosecutor’s address on a computer search (as opposed, say, to a smartphone) let alone his own computer (as it turned out later, he apparently got the information from a public library computer).  The use of the word “online” seems a dangerous and scary reed on which to hang an entire computer search for a crime unrelated to computers.

I find this case more difficult to call than my student contributors do, but that may be out of my own concerns about this issue, and my bleeding Fourth Amendment heart.  I agree that defense counsel really made a wrong turn when midway he appeared to concede that a computer search was warranted but had to be limited, causing the rebuke from Justice O’Donnell about a rule lacking in common sense. I agree that if the case turns on trying to formulate a rule limiting a computer search, that won’t have any traction here. But defense counsel emphatically corrected any misunderstanding, and came back very strong on his rebuttal.

I think Justice Lanzinger is not going to buy the state’s argument, and she may well be joined by Justices Pfeifer and O’Neill.  They may pick up Justice O’Donnell’s vote, although he was very hard on both lawyers, with skepticism toward both. He tended to dominate the argument at times. The Chief was in her prosecutorial mode, and seemed quite willing to accept the state’s need for corroborating evidence in case the defendant recanted or claimed he was just bragging, or for use in other cases. Justice Kennedy as usual said nothing, and Justice French’s position was hard to read from the only question she asked.

Justice Lanzinger authored the court’s opinion in State v. Smith, 2009-Ohio-6426, requiring a warrant to search the data in a cellphone.  Lanzinger seemed the most sensitive in the Castagnola case about the privacy implications of the computer search and the apparent lack of connection between the retaliation and vandalism offenses with which Castagnola was charged and the search of his personal computer.

To Student Contributor Cameron Downer

Looks like a win for the State.

At the beginning of Castagnola’s argument, defense counsel was asked questions regarding the need to search the computer in light of the other evidence—the admission, the eggs, and confession—that the State already possessed. However, it was clear that Chief Justice O’Connor did not buy the argument that the amount of evidence already procured should weigh against the reasonableness of a search. Further, it was apparent that the justices were not receptive to counsel’s argument that the way in which a computer is searched should be tailored to the evidence sought. At one point, Justice O’Donnell stated that defense counsel was asking the Court to adopt a rule that is without common sense.

The prosecutor was asked questions regarding the need to search Castagnola’s computer in the investigation. At one point after counsel’s responses, Justice O’Neill stated that she was making a very persuasive argument. Part way through the argument, Justice O’Donnell asked whether this case comes down to the use of the word “online” in the affidavit and whether it misled the magistrate in determining probable cause existed for the search. Lastly, Justice Lanzinger quoted the court of appeal’s dissent and asked whether the detective stated that he did not believe the computer seized was used in the retaliation crimes. In her response, counsel stated that she believed the statement was a misquote or taken out of context.

Overall, the questioning seemed to show that the justices were more sympathetic to the State’s argument and were, for the most part, unconvinced by the arguments put forth by defense counsel.

To Student Contributor Michael Elliot

It seems unlikely to me that the Court will rule in favor of Castagnola. With the exception of Justice O’Donnell, none of the justice seemed to buy into the Castagnola’s arguments that the warrant was either too broad, unnecessary, or invalid.

At the start of Castagnola’s argument, Justice French pressed the idea that the only two ways Castagnola could have found the prosecutor’s address was either through an internet search or an exhaustive search in person. Chief Justice O’Connor clearly did not buy the argument that the search warrant was invalid on any grounds. She questioned counsel as to why the recorded admission was not enough on its own to establish probable cause to search for corroborating evidence like photographs and video recordings of the vandalism that may be on Castagnola’s computer. Justice O’Donnell gave credit to the argument that a search for evidence may have been excessive in this case, however he also seems skeptical that a computer search could be limited in any way. Finally, Justice Lanzinger also expressed some doubt that there was probable cause to search the computer, but similarly thought that there was no practical way of limiting a computer search.

In questioning the state, the justices focused on whether or not there was sufficient evidence to secure the warrant for the search of the computer and whether or not the magistrate that issued the warrant had been misled by the officer’s affidavit. Justice Pfeifer seemed to question whether it was evident that a computer was used in this case, rather than a smartphone. Justice O’Donnell was the most skeptical of the state’s justification of the search warrant, questioning whether the evidence the state already had (including a recorded confession) was enough to convict Castagnola. Throughout her argument, the prosecutor did a good job of noting that Castagnola’s computer was searched on the belief that he may have taken pictures of his criminal activities, and that the evidence obtained from the recording was not enough to convict Castagnola on all of the crimes he was suspected of. Finally, on the issue of whether or not the officer’s statements to the issuing magistrate were misleading, Justice Lanzinger questioned whether or not the officer knew he was misleading the magistrate.

The justices seemed to be most strongly swayed by the state’s argument – this one looks like a pretty clear win for the state.

 

 

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