Court of Appeals of Ohio, Eighth District, Cuyahoga
Appeal from the Cuyahoga County Court of Common Pleas Case
ATTORNEYS FOR APPELLANT Robert Tobik Cuyahoga County Public
Defender, Paul Kuzmins Erika B. Cunliffe Assistant Cuyahoga
County Public Defenders
ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga
County Prosecutor, Margaret Kane Kerry A. Sowul Holly Welsh
Assistant County Prosecutors The Justice
BEFORE: Blackmon, J., E.T. Gallagher, P.J., and Laster Mays,
JOURNAL ENTRY AND OPINION
PATRICIA ANN BLACKMON, JUDGE
William Waters, III ("Waters") appeals his
convictions for various sex offenses and accompanying
sentence of life in prison without the possibility of parole.
Waters assigns 13 errors for our review.
Having reviewed the record and pertinent law, we affirm. The
apposite facts follow.
In July 2014, 15-year-old K.L. told her mother
("Mother") that Waters, who, at the time, was
Mother's husband and K.L.'s stepfather, had been
sexually abusing her for several years. Mother and K.L. filed
a report with the Westlake Police Department. After
interviewing K.L. and her younger sisters, H.L. and E.L., the
police identified other alleged victims. The police searched
Waters's Westlake home and discovered that he had fled
the state, taking with him several electronic data storage
devices. The police seized multiple cell phones, electronic
data storage devices, and a personal computer that Waters
Waters was arrested on October 2, 2014, in Arkansas. After
searching Waters's hotel room and van, authorities seized
numerous additional electronic devices with videos and images
of child pornography. Additionally, the police recovered
flash drives from Waters's pockets, which also contained
child pornography, including images of Waters and K.L.
engaging in unlawful sexual conduct.
Waters was indicted on October 14, 2014, in Cuyahoga C.P. No.
CR-14-588664 and on February 2, 2015, in Cuyahoga C.P.
CR-14-591898. On June 4, 2015, Waters was charged, in the
case at issue, with 68 felony counts including rape,
kidnapping, gross sexual imposition, and child pornography
involving victims K.L., H.L., E.L., S.S., and K.D. The
charges in all three cases stemmed from developments in the
investigation of K.L.'s accusations of Waters.
On September 9, 2015, the court dismissed cases CR-14-588664
and CR-14-591898. The case at issue went to trial, and on
November 17, 2015, a jury found Waters guilty of 37 counts
involving three victims. Waters was also convicted of sexual
motivation and sexually violent predator specifications. On
November 25, 2015, the court sentenced Waters to life in
prison without the possibility of parole. Waters now
appeals his convictions and sentence.
to Suppress Evidence
In Waters's first, second, and third assigned errors, he
argues that the court erred by denying his motion to suppress
Appellate review of a motion to suppress presents a mixed
question of law and fact. When considering a motion to
suppress, the trial court assumes the role of trier of fact
and is therefore in the best position to resolve factual
questions and evaluate the credibility of witnesses.
Consequently, an appellate court must accept the trial
court's findings of fact if they are supported by
competent, credible evidence. Accepting these facts as true,
the appellate court must then independently determine,
without deference to the conclusion of the trial court,
whether the facts satisfy the applicable legal standard.
(Citations omitted.) State v. Burnside, 100 Ohio
St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8.
In the case at hand, six search warrants were issued between
July and October 2014, regarding: Waters's Westlake home;
the electronic devices recovered from his Westlake home;
Waters's motel room in Oklahoma; the van Waters was
driving in Oklahoma and/or Arkansas; the electronic devices
recovered from his motel room and van; and the electronic
data storage devices recovered from Waters's pockets when
he was arrested.
Waters argues in his first and third assigned errors that
"the underlying search warrant affidavits failed to
provide any facts that supported a finding of probable cause
to believe that Waters had transferred the photo of K.L. from
his LG G-Z cell phone to a computer or data storage device *
* *." Waters does not challenge the allegation that he
used a cell phone to photograph himself engaging in unlawful
sexual conduct with K.L. Rather, he argues that
"probable cause did not exist to seize any device other
than the LG G-Z cell phone that was used to take the
As support for his argument, Waters cites State v.
Castagnola, 145 Ohio St.3d 1, 2015-Ohio-1565, 46 N.E.3d
638, ¶ 106, which holds that:
the particularity requirement of the Fourth Amendment applies
to the search of a computer and requires a search warrant to
particularly describe the items believed to be contained on
the computer with as much specificity as the affiant's
knowledge and the circumstances of the case allow and that
the search be conducted in a manner that restricts the search
for the items identified.
The facts concerning the search warrant in
Castagnola are markedly different than the facts
concerning the search warrant in the case at hand. In
Castagnola, a witness "received a series of
text messages * * * from [the defendant] bragging about
having damaged [the victim's] vehicles." The
defendant also told the witness that the defendant had to
"look up" the victim's address on court
records. Id. at ¶ 3. The police detective
inferred that the defendant "looked up" the
victim's address online. Id. at ¶ 21-25.
The detective testified that this inference, coupled with the
defendant's "blatant" text messages, led him to
believe that there are "probably other items in the
house that would be of evidentiary value." Id.
at ¶ 25.
Based on this information, a magistrate issued a search
warrant for "[r]ecords and documents either stored on
computers * * * or any other electronic recording device * *
*" relating to the vandalism and criminal damaging
offenses with which the defendant was charged. Id.
at ¶ 28. The Ninth District Court of Appeals upheld the
warrant, finding that "[a]s a matter of common sense,
the issuing judge could have determined that [the defendant]
used a computer to conduct the foregoing online searches such
that the computer would contain evidence of his criminal
activities." State v. Castagnola, 9th Dist.
Summit Nos. 26185, 26186, ¶ 13.
The Ohio Supreme Court reversed and found that the search
warrant violated the defendant's Fourth Amendment rights.
We * * * reject the trial court's supposition that
statements sent by text message admitting criminal activity
create substantial basis for concluding that evidence of a
crime will be found on a computer. Similarly, we are not
inclined to leap to the conclusion that the information
stored on a phone will necessarily be backed up on a
computer. Although we are in the computer age, records * * *
still exist in paper form and are available to the public in
* * * offices around the state.
State v. Castagnola, 145 Ohio St.3d 1,
2015-Ohio-1565, 46 N.E.2d 638, ¶ 63.
Furthermore, the recorded conversation between the witness
and the defendant revealed that the defendant never used the
term "online" when talking about looking up the
victim's address. The court held that the detective's
use of the term "online" in the affidavit was an
unwarranted inference, and "there was no probable cause
to believe that computer in [the defendant's] residence
was used in furtherance of the alleged crimes."
Id. at ¶ 61.
Search warrants must particularize the items to be searched
for to the best of the authorities' knowledge at the time
the warrant is issued. Id. at ¶ 88. "[T]he
Fourth Amendment does not require a search warrant to specify
restrictive search protocols, but we also recognize that the
Fourth Amendment does prohibit a 'sweeping comprehensive
search of a computer's hard drive.'"
Id. "The logical balance of these principles
leads to the conclusion that officers must describe what they
believe will be found on a computer with as much specificity
as possible under the circumstances." Id.
In Castagnola, the authorities used text messages
and an unsubstantiated inference of an online inquiry as the
basis to search for incriminating evidence of vandalism on
the defendant's computer. The Ohio Supreme Court found
that this violated the defendant's Fourth Amendment
rights. Id. at 107-108. In the case at hand, the
authorities used allegations of child pornography as the
basis to search for incriminating evidence of child
pornography on the defendant's electronic storage
devices. This search is neither overbroad nor insufficiently
particularized. See, e.g., U.S. v. Deppish, 994
F.Supp.2d 1211, 1220 (Kan.2014) ("A temporal limitation
was not reasonable because child pornography collectors tend
to hoard their pictures for long periods of time.")
Upon review, we find that the search-warrant affidavit for
Waters's Westlake home contains sufficient information
"that there is a fair probability that evidence of a
crime will be found in a particular place." Id.
at ¶ 35. Specifically, the police believed to find child
pornography on Waters's electronic devices. According to
Westlake Police Detective Roseanna McCoy, K.L. stated that
"since age of eight, [Waters] had been sexually abusing
her by showing her pornographic images, " and
"Waters took a picture of his penis inserted in
[K.L.'s] vagina. Waters used his cell phone to take the
Furthermore, the affidavit stated that "cell phones are
readily capable of transferring images to computer devices
and other electronic storage media * * * ." Mother told
McCoy that "Waters is known to keep various S.D. cards
in random jacket pockets throughout the house." Mother
and K.L. told McCoy that Waters was "computer savvy,
" and he used a desktop computer at the Westlake house.
The affidavit specified the property to be searched to
include the following: "cellular phones, S.D. cards,
desktop computer system, [and] any device capable of storing
video files, picture files, [and] images
When the police executed this search warrant on July 19,
2014, they learned that Waters had left the state of Ohio.
The police seized ten cellular phones, a computer tower and
hard drive, approximately one dozen thumb or USB drives, and
several other electronic storage devices, such as DVD-Rs, SIM
cards, and S.D. cards from Waters's house. Police also
determined that computers and other electronic devices were
missing from Waters's Westlake home.
Detective McCoy testified at the suppression hearing that it
was unclear to whom the multiple cell phones found in the
house belonged. "They were inside the home in a drawer
together. And because * * * these images can be transferred,
I was looking for the photographs and the different images
that [K.L.] had reported to me about [Waters] taking
photographs of her while he was having sex with her."
Detective McCoy also testified that K.L. told her "about
other instances where [Waters] photographed her or took
videos of her having sex." Although Waters focuses on
one photograph that he took on a cell phone, the affidavit
contains information that Waters had been showing K.L.
pornographic images for years.
Asked what the police were searching for based on the
warrants issued, Detective McCoy testified as follows:
Any type of child pornography videos of any sexual assaults
involving any of the victims, because after my investigation
there were now four victims.Any type of text messages on Kick
or chats indicating [Waters] talking to any of the non family
member victims. Any text messages. Pretty much anything that
could be stored in those devices.
Upon review of this evidence, we find that there was probable
cause to believe that evidence of a crime would be found on
the electronic devices in Waters's home.
Waters further argues in his second assigned error that
"because the probable cause to search for the photo of
K.L. was two years old and stale, " the search of his
computer and electronic data storage devices violated the
Fourth Amendment. A review of the search-warrant affidavits
shows that it is unclear when Waters took the picture of his
penis inserted in K.L.'s vagina. K.L. recalled that it
took place in the Westlake residence and claimed that Waters
raped her vaginally and anally "two to three times a
week at the Westlake home over the past two years."
Nonetheless, "[t]he question of staleness is not
measured solely by counting the days between the events
listed in the affidavit and the application for the
warrant." State v. Willard, 8th Dist. Cuyahoga
No. 99184, 2013-Ohio-3001, ¶ 16.
In determining whether information in a search-warrant
affidavit is "stale, " courts look to the following
factors: "the character of the crime; the criminal; the
thing to be seized; * * * whether it is perishable; the place
to be searched; and whether the affidavit relates to a single
isolated incident or ongoing criminal activity."
Id. As it relates to cases involving child
pornography, the staleness analysis is "sensitive to
technology and to the particular criminal activity at
issue." Id. at ¶ 18. Ohio courts, as well
as courts across the country, have held that "child
pornography collectors tend to retain their collections in
secure, private, but available places for extended periods of
time [and] possessors of child pornography often obtain and
retain images of child pornography on their computers."
State v. Ingold, 10th Dist. Franklin No. 07AP-648,
2008-Ohio-2303, ¶ 25 (citing U.S. v. Riccardi,
405 F.3d 852 (C.A.10, 2005)). See also U.S. v. Lamb,
945 F.Supp. 441, 460 (N.D.N.Y.1996) ("The observation
that images of child pornography are likely to be hoarded by
persons interested in those materials in the privacy of their
homes is supported by common sense and the cases").
In the case at hand, the allegations are of ongoing criminal
activity including child pornography and rape. Waters fled
the jurisdiction upon learning of the claims against him and
took several personal electronic data storage devices. The
initial search warrant was for Waters's home, where
numerous electronic devices were seized. The police got a
second search warrant on August 1, 2014, authorizing the
search of these electronic devices for communication between
Waters and the alleged victims, as well as photographs that
may be used as evidence in the case. Upon review, we cannot
say that K.L.'s allegation that Waters took illegal
pictures of her was stale.
We find that the search warrants in the case at hand did not
violate Waters's Fourth Amendment rights, and his first
three assigned errors are overruled.