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State v. Lemasters

Court of Appeals of Ohio, Twelfth District

July 8, 2013

STATE OF OHIO, Plaintiff-Appellee,
v.
DONALD F. LEMASTERS, Defendant-Appellant.

CRIMINAL APPEAL FROM MADISON COUNTY COURT OF COMMON PLEAS Case No. CRI20110122

Stephen J. Pronai, Madison County Prosecuting Attorney, Kirsten J. Gross, for plaintiff-appellee

Tyack, Blackmore, Liston & Nigh Co., L.P.A., Jonathan T. Tyack, for defendant-appellant

PIPER, J.

{¶ 1} Defendant-appellant, Donald Lemasters, appeals a decision of the Madison County Court of Common Pleas, denying his motion to suppress.

{¶ 2} Detective Marcus Penwell of the multi-jurisdictional Internet Crimes Against Children Task Force investigates social networking sites where adults solicit children for sexual activity. He also monitors file-sharing programs for distribution of child pornography files. During an investigation, Detective Penwell connected with an internet protocol (IP) address belonging to a computer that contained child pornography files. Through the use of "Shareaza, " a file sharing program, Detective Penwell was able to access and download child pornography from the computer, which had an IP address belonging to a Time Warner Cable internet customer.

{¶ 3} Detective Penwell obtained an investigative subpoena issued by a court and contacted Time Warner Cable in order to determine the user of the IP address. Detective Penwell discovered that the IP address belonged to Lemasters, and contacted the Madison County Sheriffs Office to involve them in the investigation. Police then obtained and executed a search warrant for Lemasters' home. Police seized over 170, 000 images of child pornography from Lemasters' home, including images of infant and toddler rape. The images were found on Lemasters' computer and also on various DVDs that Lemasters made from the child pornography he downloaded from his computer.

{¶ 4} Lemasters was charged with 15 counts of pandering sexually-oriented matter involving a minor, nine counts of possession of sexually-oriented material involving a minor, and one count of possession of criminal tools. Lemasters filed a motion to suppress evidence of the images seized from his house. At the hearing, Detective Penwell appeared and testified. The trial court denied Lemasters' motion to suppress, and Lemasters pled no contest to the charges against him. The trial court found Lemasters guilty and sentenced him to an aggregate sentence of eight years. Lemasters now challenges the trial court's decision denying his motion to suppress, raising the following assignment of error.

{¶ 5} THE TRIAL COURT ERRED IN OVERRULING APPELLANT'S MOTION TO SUPPRESS ALL EVIDENCE ARISING OUT OF OR RESULTING FROM THE INVESTIGATIVE SUBPOENA SENT TO TIME WARNER CABLE BY DETECTIVE PENWELL FOR THE PURPOSES OF DETERMINING APPELLANT'S IDENTITY.

{¶ 6} Lemasters argues in his assignment of error that the trial court erred in denying his motion to suppress.

{¶ 7} Appellate review of a ruling on a motion to suppress presents a mixed question of law and fact. State v. Cochran, 12th Dist. No. CA2006-10-023, 2007-Ohio-3353. Acting as the trier of fact, the trial court is in the best position to resolve factual questions and evaluate witness credibility. Id. Therefore, when reviewing a trial court's decision regarding a motion to suppress, a reviewing court is bound to accept the trial court's findings of fact if they are supported by competent, credible evidence. State v. Oatis, 12th Dist. No. CA2005-03-074, 2005-Ohio-6038. "An appellate court, however, independently reviews the trial court's legal conclusions based on those facts and determines, without deference to the trial court's decision, whether as a matter of law, the facts satisfy the appropriate legal standard." Cochran at ¶ 12.

{¶ 8} The Fourth Amendment to the United States Constitution protects people from illegal searches and seizures. In order to employ Fourth Amendment protections, a defendant must have a "constitutionally protected reasonable expectation of privacy." Katz v. United States, 389 U.S. 347, 360, 88 S.Ct. 507 (1967). The United States Supreme Court has directed reviewing courts to consider a two-part test in order to determine whether the Fourth Amendment is implicated. "First, has the individual manifested a subjective expectation of privacy in the object of the challenged search? Second, is society willing to recognize that expectation as reasonable?" California v. Ciraolo, 476 U.S. 207, 211, 106 S.Ct. 1809 (1986), citing Katz at 360.

{¶ 9} As stated by the court in Katz, "what a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection." 389 U.S. at 351. Instead, "a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties." Smith v. Maryland, 442 U.S. 735, 743, 99 S.Ct. 2577 (1979). As this court has specifically held, a subscriber does not have a reasonable expectation of privacy with respect to his subscriber information, including the IP address associated with his internet service. State v. Hamrick, 12th Dist. No. CA2011-01-002, 2011-Ohio-5357, ¶ 19, jurisdiction declined 131 Ohio St.3d 1513, 2011-Ohio-5357.

{¶ 10} In Hamrick, the appellant was using a file-sharing program to share child pornography over the internet. In the exact same manner as what occurred in the case at bar, Detective Penwell became aware of an IP address that was linked to child pornography. Detective Penwell moved for an investigative subpoena, which he delivered to Time Warner Cable. Time Warner then identified Hamrick as the subscriber in question. A search warrant was later obtained and executed, and police seized 339 images and 28 videos of child pornography. Hamrick was indicted on several counts of illegal use of a minor in nudity-oriented material and pandering obscenity involving a minor. Hamrick moved to suppress the images seized from his home, arguing that his Fourth Amendment rights were ...


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