Update: read what happened on remand in this case here.
On April 28, 2015, the Supreme Court of Ohio handed down a merit decision in State v. Castagnola, 2015-Ohio-1565. In a 4-3 opinion written by Justice Kennedy, for herself and Justices Pfeifer, O’Neill, and O’Donnell, the court held that the search warrant issued in the case was invalid and the evidence seized as a result had to be suppressed. Justice Lanzinger wrote the dissent for herself, Chief Justice O’Connor, and Justice French. The case was argued May 28, 2014. Warning! Long post.
David Maistros, law director and prosecutor of Twinsburg in Summit County, charged Appellant Nicholas Castagnola with selling alcohol to minors. Two months later, Maistros found his and his wife’s cars had been “egged,” and the side mirror of his wife’s car vandalized.
The police learned from an informant that Castagnola had bragged to the informant in text messages that he was responsible for the damage to the cars. The informant agreed to wear a wire, and to record a conversation with Castagnola at Castagnola’s house. In that recorded conversation, Castagnola admitted he and another man had egged and damaged the cars, and that he had “looked up” Masitros’ address on court records.
With the text messages and recording in hand, a Twinsburg police detective sought a warrant to search Castagnola’s house. Instead of attaching the recording or a transcript of the conversation between the informant and Castagnola to the search warrant affidavit, the detective paraphrased what happened, stating that Castagnola said he’d found Maistros “online in the clerk of courts.” Nothing further was provided in the affidavit about this alleged online search.
The search warrant was issued, and the search led to the seizure of a number of items, including two computers. While searching one of the computers for evidence of retaliation, a forensic examiner came across what appeared to be child pornography. After securing a second warrant, the examiner discovered images and 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.
Castagnola filed a motion to suppress in both cases. Castagnola argued at the hearing that the first search warrant was not supported by probable cause because nothing in the affidavit implicated a computer in his house. He argued he had never used the term “online” in his conversation with the informant, so the detective’s use of that term in the affidavit was an unwarranted inference drawn by the detective that usurped the role of the neutral magistrate. That made the first warrant bad, and since the first warrant led to the second, all evidence from both had to be suppressed as fruit from the poisonous tree. The suppression hearing is described in great detail in the majority opinion.
While the trial court agreed that Castagnola never directly stated that he used the internet to perform his search for the law director’s address, the court found the detective’s paraphrase of the conversation was fair and not done with any intent to mislead the judge who issued the warrant. Since the detective had acted with objective good faith, excluding the evidence was not required. Castagnola was convicted of all retaliation charges by a jury and of all the pandering charges in a bench trial. He was sentenced to thirty months in prison and classified as a Tier II sex offender.
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.
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.”)
People v. Caffott, 105 Cal.App.3d 775 (1980)(establishes test adopted by the majority in this case; see analysis in merit decision section.)
State v. Joseph, 25 Ohio St.2d 95 (1971)(A magistrate cannot be viewed as neutral and detached if the magistrate issues a search warrant that is unknowingly based on the police officer’s conclusions.)
State v. McKnight, 107 Ohio St.3d 101, 2005-Ohio-6046 (When a defendant challenges the sufficiency of a search warrant on the ground that the affidavit contains a false statement affecting the magistrate’s probable-cause determination, a reviewing court must consider whether those statements were made intentionally or with reckless disregard for the truth.)
Groh v. Ramirez, 540 U.S. 551 (2004)(“[T]he presumptive rule against warrantless searches applies with equal force to searches whose only defect is a lack of particularity in the warrant.”)
United States v. Otero, 563 F.3d 1127 (10th Cir.2009)(“The modern development of the personal computer and its ability to store and intermingle a huge array of one’s personal papers in a single place increases law enforcement’s ability to conduct a wide-ranging search into a person’s private affairs, and accordingly makes the particularity requirement much more important.”)
United States v. Upham, 168 F.3d 532 (1st Cir.1999)(When examining the particularity requirement, a court must determine whether the warrant provides sufficient information to “guide and control” the judgment of the executing officer in what to seize.)
United States v. Kow, 58 F.3d 423 (9th Cir.1995)(When examining the particularity requirement, courts must determine whether the category as specified is too broad in that it includes items that should not be seized.)
United States v. Fuccillo, 808 F.2d 173 (1st Cir.1987)(Warrants that fail to describe the items to be seized with as much specificity as the government’s knowledge and the circumstances allow are “invalidated by their substantial failure to specify as nearly as possible the distinguishing characteristics of the goods to be seized.”)
United States v. Walser, 275 F.3d 981 (10th Cir.2001)(Because computers can store a large amount of information “there is a greater potential for the ‘intermingling’ of documents and a consequent invasion of privacy when police execute a search for evidence on a computer * * * Officers must be clear as to what it is they are seeking on the computer and conduct the search in a way that avoids searching files and types not identified in the warrant.”)
Massachusetts v. Sheppard, 468 U.S. 981 (1984)(“[A] search conducted pursuant to a warrant that fails to conform to the particularity requirement of the Fourth Amendment is unconstitutional.”)
State v. Wilmoth, 22 Ohio St.3d 251 (1986)(“The exclusionary rule should not be applied to suppress evidence obtained by police officers acting in objectively reasonable, good faith reliance on a search warrant issued by a detached a neutral magistrate but ultimately found to be invalid.”)
State v. Hoffman, 141 Ohio St.3d 428, 2014-Ohio-4795 (If officers act in good-faith reliance on a warrant that is later determined to be invalid, suppressing the evidence obtained from the search would not serve the purpose of the exclusionary rule.)
State v. George, 45 Ohio St.3d 325 (1989)(Suppression remains an appropriate remedy (1) when an officer relies on a warrant that is based on an affidavit “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable” and (2) when a warrant is “so facially deficient—i.e., in failing to particularize the place to be searched or the things to be seized—that the executing officers cannot reasonably presume it to be valid.”)
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.)
State v. Jones, Slip Opinion No. 2015-Ohio-483 (the proper standard to determine whether probable cause exists to issue a search warrant is the totality of the circumstances.)
Requirements for a Search Warrant
To issue a search warrant, the evidence must be sufficient for the issuing magistrate to conclude that there is a fair probability that evidence of a crime will be found in a particular place, and the reviewing court must ensure that the magistrate had a substantial basis for concluding that probable cause existed.
Castagnola’s Challenges to the Search Warrant
Castagnola argued that the search warrant affidavit lacked probable cause because the detective presented an inference he had drawn as an empirical fact, and thus usurped the magistrate’s inference-drawing role, and because the warrant lacked the requisite degree of particularity.
Disputed Inference Stated as Empirical Fact in the Search Warrant Affidavit
Instead of attaching a transcript or the recording itself to the affidavit, the detective paraphrased the conversation as follows:
“Castagnola then says he found Masitros online in the clerk of courts because he [Maistros] got a parking ticket several years ago. Castagnola said that he…went through Maistros’ mailbox to confirm that Maistros did live at the address he found for him on line.”
But Castagnola never used the word “online” in the actual recording. To the majority, that proved to be crucial and fatal.
Usurpation of the Magistrate’s Inference-Drawing Authority
To determine whether Castagnola was correct, that in presenting an inference as an empirical fact, the detective usurped the magistrate’s role, the majority relied entirely on the decision in People v. Caffott, 105 Cal.App.3d 775 (1980). Interestingly, that case was not cited by either side, or by the appeals court. The dissent is very critical of using an old, rarely cited, intermediate appellate decision from California to underpin this portion of the decision.
The majority found that neither the trial court nor the appeals court in this case determined whether the detective, in presenting his inference as empirical fact, had usurped the magistrate’s inference-drawing drawing authority, so it rejected the probable cause determination made by both lower courts and undertook the analysis itself, using the test established in Caffott.
Caffott Test: Determining the Significance of the Undisclosed Inference
Was the hidden inference “so significant as to cross the line between permissible and impermissible interpretation and usurpation?”
A hidden inference will be deemed significant if it had a “substantial bearing” on the magistrate’s determination of probable cause in two respects: relevance and complexity. And if the inference is significant, the court must examine the affiant’s animus. If done intentionally or with conscious indifference, then the warrant should be invalidated and the evidence suppressed, but if simply negligent, then the misstatement should be removed, the omitted underlying facts added, and the affidavit reassessed.
Conclusion on this point: highly relevant. “Because of the inference building required to support the probable cause determination that there was a fair probability that evidence of a crime would be found on a computer in Castagnola’s home, we find that the “online” inference was directly relevant to the magistrate’s determination,” Kennedy wrote.
Conclusion on this point: So significant that it “‘crossed the line between permissible interpretation and usurpation of the magistrate’s inference drawing authority.”
The officer in this case was simply negligent—there was no evidence of intent or conscious indifference. So, according to Caffott, that requires the court to “excise the inference, insert the omitted underlying facts, and reassess the affidavit for probable cause.”
“Removing the references to “online” and inserting the omitted statement from the recording that the detective had relied on to conclude that Castagnola had searched online (Castagnola’s statement that he had had to “look up” Maistros’s address on court records), we find, based on the totality of the circumstances, that there was no probable cause to believe that a computer in Castagnola’s residence was used in furtherance of the alleged crimes,” Kennedy concluded.
In short, the majority found that while there was certainly probable cause to believe Castagnola had searched for Maistros’ address, how he did the search was not clear. Strikingly, the court rejected the trial court’s conclusion that it was fair for the magistrate to infer that young folks do all their searching online.
Conclusion So Far
Under the totality of the circumstances, the warrant was not supported by probable cause.
Next Step: Should the Good Faith Exception to the Exclusionary Rule Apply?
Short answer: No. Getting there was not short, however.
Castagnola argued that a general exploratory search for evidence on a computer does not meet the particularity requirement of the Fourth Amendment. The state argued that Castagnola had waived this argument by not raising it below, and the dissent agreed. The majority held on this point that Castagnola had properly raised the issue below, but even if he hadn’t, the court could consider it because it was implicit in resolving the probable cause issue.
Since neither the trial court nor the appeals court specifically addressed the issue of particularity, the majority rejected their determinations of probable cause. The issue for the high court was whether the search warrant was specific and focused enough about what was to be searched on Castagnola’s computer.
The majority emphasized at considerable length the complexity of making such a determination, but ultimately determined that the particularity requirement had not been met. The majority essentially concluded that the descriptive language in the warrant– “records and documents stored on computers”– was just too broad and undifferentiated, and failed to provide enough information to ‘’guide and control” the officer in what to seize.
Bottom line: the search warrant lacked particularity and was invalid.
Next Step: Exclusion
The majority accepted Castagnola’s argument that the good-faith exception to the exclusionary rule does not apply. (If you want to read more about this exception, read this post.) Justice Kennedy reviewed some fundamentals. The purpose of the exclusionary rule is to deter police misconduct. If an officer relies in good faith on a warrant later found to be invalid, suppression of the evidence would not serve the purpose of the exclusionary rule, which is to deter police misconduct. An officer’s reliance on the warrant must be objectively reasonable.
Remember that the court found that the undisclosed inference in the affidavit was nothing more than negligence by the detective, and acknowledged that if that were all there was to it, the exclusionary rule would serve no purpose here. But the court concluded that was just “the tip of the iceberg.”
“The affidavit was so lacking in indicia of probable cause and the warrant was so facially deficient in failing to particularize the items to be searched for on Castagnola’s computer that the detective could not have relied on it in objective good faith, ” Kennedy wrote, concluding that the warrant was based on “layered inferences” rather than “evidentiary fact.”
“Where a privacy intrusion is based on blatant conjecture that evidence exists on a computer in a residence because of a text-message admission of vandalism, the societal benefits of suppressing the evidence outweigh the societal risks of harm,” Kennedy wrote.
The Issue Left for Another Day
Whether the Fourth Amendment “permits the seizure of any device capable of searching the Internet once a magistrate finds probable cause to believe that a suspect conducted an online search in furtherance of criminal activity.”
The majority essentially accepted both of Castagnola’s proposed propositions of law, which were these:
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.
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.
Still, it did not adopt these propositions as syllabus law. The case has no syllabus.
The evidence obtained from the warrant was ordered suppressed and the case sent back to the trial court for further proceedings.
Justice Lanzinger’s Dissent
Justice Lanzinger wrote a dissent joined by Chief Justice O’Connor, and Justice French. Her main points are these:
- She would not adopt the reasoning of the Caffott case, described as “a 35-year-old, out-of-state, intermediate court…cited in later opinions only three times, and not once since 1986.” “Caffott’s test to determine the relevance and complexity of a ‘hidden inference’ is inconsistent with established case law and appears to circumvent the holding in Franks [v. Delaware] that a facially valid search warrant will not be set aside unless the affiant makes a false statement intentionally or with reckless disregard for the truth. Requiring an affiant to present a hypertechnical recitation of the facts to obtain a search warrant is unnecessary” wrote Laninger.
- She believes Castagnola failed to raise the particularity of the warrant issue below, and thus forfeited that argument. He argued only that the computer should not have been seized because it had no nexus to the crime with which he was charged, not that the search was too general and exploratory or that the warrant failed to properly guide the searcher.
- The proper test to determine whether probable cause exists to issue a search warrant is the totality of the circumstances test, and under this test the magistrate had a substantial basis for issuing the search warrant. The officer honestly believed Castagnola had referred to an online search when he put that in the affidavit, and defense counsel had conceded there was no malfeasance in that regard. She “strenuously” dissented from the majority’s determination that the warrant was not executed in good faith, and does not believe the court should be second guessing the magistrate “by looking for hidden inferences.” And she directly disagreed with majority’s rejection of the trial court’s conclusion that it was fair for the magistrate to infer that young folks do all searching online, noting instead that “given today’s ubiquitous use of technology to obtain information, it is more than likely that Castagnola found the information online.
After the oral argument, I cited this as a key question of the day from Justice O’Donnell, who asked whether this whole thing came down to whether or not the officer’s insertion of the word “online” justified the searches of the computers at the defendant’s home. O’Donnell noted that the officer had the impression the defendant found the information about the law director’s address online, but also noted that the defendant never said that on the recording. “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?” It turns out it was the essence of the case.
I had hesitantly called this for the defense, by a vote of 4-3. I was right that Justices Pfeifer, O’Neill and O’Donnell would go for the defendant, but was very wrong about Justice Lanzinger, who seemed to be leaning the most strongly in favor of Castagnola during argument. Lanzinger seemed the most sensitive 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. As I noted, Justice Lanzinger authored the court’s 4-3 decision in State v. Smith, 2009-Ohio-6426, requiring a warrant to search the data in a cellphone.
Since Justice Kennedy continues not to ask questions at argument, it is not possible to predict from the argument which way she is leaning. I found the majority opinion both turgid and overwritten, and the reliance on Caffott—cited by neither party nor the appeals court– questionable and not terribly persuasive. Nevertheless, I much admire the majority conclusion, clearly swimming against the tide of eviscerating Fourth Amendment protections, and regularly excusing violations with the good faith exception. I think it would have been simpler just to find a lack of sufficient particularity in this warrant. I look forward to more on what is required for a computer search. I was also amused to see Justice Kennedy throw this wonderful quote from State v. Gardner, 2012-Ohio-5683 back at its author, Chief Justice O’Connor, who eloquently wrote in that case, “[T]here is always a temptation in criminal cases to let the end justify the means, but as guardians of the Constitution, we must resist that temptation.” 2012-Ohio-5683, 984 N.E.2d 1025, ¶ 24. O’Connor was one of the dissenters in Castagnola, and it was clear at oral argument she was buying none of what the defendant was arguing.