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State of Ohio v. James Mahan

October 6, 2011

STATE OF OHIO PLAINTIFF-APPELLEE
v.
JAMES MAHAN DEFENDANT-APPELLANT



AFFIRMED AND REMANDED Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-525553

The opinion of the court was delivered by: James J. Sweeney, J.:

Cite as State v. Mahan,

JOURNAL ENTRY AND OPINION

JUDGMENT:

BEFORE: Sweeney, J., Stewart, P.J., and Celebrezze, J.

{¶1} Defendant-Appellant, James Mahan, appeals from the trial court's denial of his motion to suppress and his motion to compel. Appellant also appeals the sentence imposed upon him. For the reasons that follow, we affirm but remand with instructions to reclassify defendant as a Tier II sex offender as both parties conceded at oral argument defendant was improperly classified as a Tier III sex offender.*fn1

{¶2} In this case, defendant was indicted with 95 counts, including pandering sexually-oriented matter involving a minor, illegal use of a minor in nudity-oriented material or performance, and possessing criminal tools. The charges stemmed from the presence of certain files found on defendant's home computer as a result of an investigation conducted by Rick McGinnis ("McGinnis"). McGinnis is an investigator assigned to Ohio's Internet Crimes Against Children Task Force ("ICAC"). McGinnis utilized software known as "Peer Spectre," which identified an internet protocol ("IP") address associated with three files that he recognized from his experience as being child pornography. McGinnis prepared an affidavit and obtained a search warrant for defendant's residence.

{¶3} During the course of the proceedings, defendant filed a motion to compel certain information from the state, including a mirror image forensic copy of Peer Spectre and any and all instruction/operation and/or training manuals associated with Peer Spectre, and the software's source code. Defendant believed the information would reveal the functionality and calibration of the software, and asserted it was material to his defense in order to challenge the software's reliability and methodology.

{¶4} In opposition, the state maintained the requested discovery was not subject to disclosure by the state pursuant to Crim.R. 16. Specifically, the state indicated that Peer Spectre is maintained under the strict control and ownership of William Wiltse and is restricted to use by law enforcement. Wiltse supplied an affidavit wherein he averred that "without the source code, it is not possible to authenticate the function of the application or validate its 'calibration.'" Wiltse averred that the source code is not distributed. Officers are trained how to validate the findings of Peer Spectre by "conducting similar searches on the Gnutella network using freely available software applications." The state confirmed that it did not own or have in its possession a copy of the source code and maintained that it could not produce what it did not have. The trial court denied the motion to compel discovery from the state and instructed that defendant could contact the software company regarding issues pertaining to programming.

{¶5} The trial court conducted a hearing on defendant's motion to suppress and the motion was denied. Defendant then entered a plea of no contest and was found guilty. The trial court imposed an aggregate prison sentence of 16 years comprised of the following: eight year concurrent prison terms on 11 counts to be served consecutively with eight year concurrent prison terms on 70 other counts; all concurrent with four and one year prison terms on the remaining counts.

{¶6} Defendant's appeal presents four assignments of error for our review:

{¶7} "I. The trial court erred when it denied the defendant-appellant's motion to suppress."

{¶8} "Appellate review of a trial court's ruling on a motion to suppress presents mixed questions of law and fact. An appellate court is to accept the trial court's factual findings unless they are clearly erroneous. We are therefore required to accept the factual determinations of a trial court if they are supported by competent and credible evidence.

The application of the law to those facts, however, is subject to de novo review." State v. Polk, (Internal citations omitted) Cuyahoga App. No. 84361, 2005-Ohio-774, at ¶2.

{¶9} Under this asserted error, defendant raises multiple issues that allege that:

(1) the trial court erred in its findings of fact and conclusions of law; (2) the warrantless use of Peer Spectre constituted an unlawful search in violation of his constitutional rights;

(3) the search warrant was issued without probable cause because it relied on information obtained from use of Peer Spectre; and (4) the probable cause finding for the search warrant was based upon an affidavit that contained substantive inaccuracies and omissions.

{¶10} The trial court conducted an evidentiary hearing on defendant's motion to suppress at which McGinnis was the only witness.

{¶11} McGinnis testified as follows: He obtained training on internet investigations of child pornography from Fox Valley Technical College, and the training included peer-to-peer network searches. As part of his training, he was instructed on the use of Peer Spectre, which is exclusively restricted to law enforcement. Peer Spectre is a search program that operates on the Gnutella network, which is a public peer-to-peer network where people share their computer files back and forth. The Gnutella network enables people to log onto the internet to search, find, retrieve, and download shared files from other computers, including child pornography. The search will reveal an IP address and SHA1 values,*fn2 and from this information the user can download the desired file from the computer(s) that offered to share it.

{¶12} McGinnis repeatedly testified that all the information he obtained from using Peer Spectre he could have obtained using other publicly available software, such as LimeWire or Phex, the only difference being that with the other software he would have to manually enter the data to keep searching. McGinnis stated that Peer Spectre saves time.

{¶13} In short, Peer Spectre conducts an automated search that identifies file sharing of known or suspected child pornography associated with a specific IP address. While McGinnis acknowledged that he did not create Peer Spectre and was unaware of the technical aspects of it, he testified that he was trained how to operate it and understood that it reads publicly available advertisements from computers that are sharing files over the Gnutella peer-to-peer network.

{¶14} Each time that Peer Spectre is used by a law enforcement agency anywhere in the world, the results are compiled in a centralized server. The information that is logged into the central database includes the IP address, the port that it came from, and the date and time of the search. Law enforcement agencies are then enabled to query the information that Peer Spectre recorded into the central server.

{ΒΆ15} On May 23, 2008, McGinnis used this technology to search for IP addresses that were active in Ohio in May of 2008 and had been recorded as sharing known or suspected child pornography. McGinnis retrieved a "hit list" for the IP addresses at issue, which identified each file's SHA1 value, the date and time the file was made available for sharing, and the file's size, geographical location, and description. The records identified a particular IP address ...


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