Court of Appeals of Ohio, Second District, Montgomery
Court Case No. 2016-CR-1809 (Criminal Appeal from Common
MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No.
0069384, Assistant Prosecuting Attorney, Montgomery County
Prosecutor's Office, Appellate Division, Attorney for
MATTHEW M. SUELLENTROP, Atty. Reg. No. 0089655, Attorney for
1} Defendant-appellant Deonte D. Snowden appeals his
conviction and sentence for two counts of murder (proximate
result), in violation of R.C. 2903.02(B), both unclassified
felonies, both counts accompanied by a three-year firearm
specification; one count of felonious assault (serious
physical harm), in violation of R.C. 2903.11(A)(1), a felony
of the second degree, accompanied by a three-year firearm
specification; one count of felonious assault (deadly
weapon), in violation of R.C. 2903.11(A)(2), a felony of the
second degree, accompanied by a three-year firearm
specification; one count of having weapons while under
disability (prior drug conviction), in violation of R.C.
2923.13(A)(3), a felony of the third degree; and one count of
bribery (corrupt witness), in violation of R.C. 2921.02(C), a
felony of the third degree. After some of the offenses were
merged, the court imposed an aggregate sentence of 21 years
to life. Snowden filed a timely notice of appeal with this
Court on August 21, 2018.
2} Shortly after 11:00 p.m. on the night of June 6,
2016, Theodora Watson and her three grandsons,
"D.O." (16 years old at the time), "D.E."
(13), and "D.S." (10), were getting into her car
outside her home in order to drive to a restaurant. Watson
and D.E. testified that, just as they were about to leave,
the victim, William Sarver, walked up to the driver's
side of the vehicle and began a conversation with Watson.
Watson testified that Sarver had lived in her neighborhood
for several years, and the two were well acquainted. In fact,
Sarver, whose nickname in the neighborhood was "Carl
Lewis," would routinely shovel the snow at Watson's
residence and go to the store for her.
3} Watson testified that when Sarver learned that
Warner was going to buy food, he handed her a $20 bill to pay
for dinner. While she was speaking to Sarver, defendant-
appellant Snowden walked up her driveway talking on a cell
phone. Snowden was Watson's husband's nephew, and she
had known him for his entire life. Snowden's nickname
around the neighborhood was "DeeDot." D.E. also
testified that he observed Snowden walking up the driveway
toward the vehicle after Sarver had already
approached the vehicle and begun speaking with Watson. Unlike
Watson and D.E., D.S. testified that he observed Snowden walk
up to Watson's vehicle before Sarver arrived.
Nevertheless, Watson, D.E., and D.S. all testified that,
after a short time, Snowden and Sarver got into an argument
while they were standing near Watson's vehicle.
4} Watson testified that Snowden initially slapped
Sarver in the face with an open hand, knocking Sarver
backwards. Sarver then slapped Snowden in the same manner.
Watson, D.S., and D.E. testified that Snowden then pulled a
handgun from the waistband of his pants and fired a single
shot, striking Sarver in the abdomen. Watson and D.S.
testified that, because it was dark, they never saw the
handgun with which Snowden shot Sarver. D.E. testified,
however, that from his vantage point inside the vehicle, he
was able to see the handgun in Snowden's hand as Snowden
5} Watson, D.S., and D.E. testified that there were
no other individuals standing close to Watson's vehicle
when Snowden shot Sarver. Specifically, Watson, D.S., and
D.E. each testified that Derrick Watson, Theodora's adult
son and the boys' father, was not present when Snowden
shot Sarver. In fact, they each testified that Derrick did
not appear at the scene of the shooting until after the
paramedics and police had arrived. Watson testified that
there were some people standing in the street talking, but
when the shot was fired, they all ran away. Watson, D.S., and
D.E. all testified that after shooting Sarver, Snowden ran to
a black sedan and drove away. D.S. and D.E. testified that
the vehicle was a black Chevrolet Impala. All three witnesses
had observed Snowden in the same vehicle in the past.
6} Watson, D.S., and D.E. immediately got out and
attempted to help Sarver, who had fallen over into the open
rear driver's-side door of Watson's vehicle. Watson
called 911 using her cordless home phone, which she had taken
with her when they initially left the house for food. We note
that the record establishes that, while on the phone with the
911 operator, Watson stated that she was unable to identify
the perpetrator. At trial, Watson testified that she told the
operator that she could not provide the name of the
perpetrator because she was scared and nervous immediately
after the shooting occurred. Watson testified that she had no
doubt that Snowden shot Sarver. When the paramedics arrived
at the scene, Sarver was put in an ambulance and transported
to Miami Valley Hospital, where he was later pronounced dead
as a result of the gunshot wound.
7} Upon arriving at the scene, police officers
placed Watson, D.S., and D.E. in separate cruisers to await
questioning by detectives. The record establishes that they
each separately identified Snowden as the perpetrator and
provided a description of his vehicle. Police also discovered
a spent .40 caliber shell casing on the ground near
Watson's vehicle. We note that no handgun was recovered
during the investigation of Sarver's shooting.
8} Detective Brad Daugherty from the Montgomery
County Sheriff's Office was one of the detectives
assigned to investigate Sarver's death. Detective
Daugherty testified that he knew Snowden from working with
him on other investigations, and he possessed Snowden's
cell phone number. Detective Daugherty further testified that
he had spoken with Snowden earlier in the day on June 6,
2016, prior to the shooting. After completing an
"exigent circumstance" form, Detective Daugherty
requested that the phone service provider "ping"
Snowden's cell phone in an attempt to locate him. When an
attempt was made to "ping" Snowden's cell phone
on the night of the shooting, Detective Daugherty was
informed that Snowden's cell phone had been turned off.
When the cell phone was "pinged" the following day
on June 7, 2016, it was discovered that the cell phone had
been turned back on and was in the possession of
Snowden's girlfriend. Snowden, however, was not with his
9} On June 7, 2016, the police also located
Snowden's black Impala car parked in an alleyway against
a garage. The vehicle was approximately half a block away
from Snowden's mother's house. Police officers found
that a large garbage can and a box had been placed in front
of the tires of the vehicle. The officers also learned that
Snowden's vehicle had been outfitted with distinctive
after-market black rims. Dayton Police Detective David House
testified that he viewed the placement of the garbage can and
box in front of the rims of the vehicle as an intentional
attempt at concealment. The police were unable to ascertain
10} On July 14, 2016, Snowden was indicted for two
counts of murder (proximate result) and two counts of
felonious assault (serious physical harm and deadly weapon),
each of which was accompanied by a three-year firearm
specification; he was also indicted on one count of having
weapons while under disability (prior drug conviction).
11} Detective Daugherty testified that in October
2016, he was provided with a phone number of a cell phone in
Snowden's possession. Detective Daugherty testified that
the cell phone was "pinged" to a location in
Maricopa, Arizona. Thereafter, Detective Daugherty contacted
the U.S. Marshals to assist in Snowden's apprehension.
Snowden was arrested in Maricopa and extradited back to
Dayton, Ohio, where he was taken into custody and placed in
jail. At his arraignment on October 25, 2016, Snowden stood
mute, and the trial court entered a plea of not guilty on his
12} On November 22, 2017, Snowden waived his right
to a jury trial on the count of having weapons while under
disability. Thereafter, the remaining charges in the
indictment were tried to a jury on November 27-29, 2017.
However, the jury could not reach a verdict regarding any of
the offenses, and the trial court declared a mistrial.
13} It eventually came to light that in late
November 2017, D.E., who testified at trial, received a phone
call from Snowden who was in jail. During the conversation,
Snowden offered D.E. $2, 500 to give testimony favorable to
him at trial. On November 30, 2017, Snowden also called
Watson from the jail and asked her to change her story
regarding her recollection of the events surrounding
14} On March 23, 2018, Snowden was additionally
charged in a "B Indictment" with one count of
bribery (corrupt witness), in violation of R.C. 2921.02(C), a
felony of the third degree. On June 26, 2018, Snowden filed a
motion for leave to a file a motion to suppress accompanied
by a proposed motion to suppress, based upon the authority of
Carpenter v. United States, ___U.S.___, 138 S.Ct.
2206, 201 L.Ed.2d 507 (2018). The trial court granted
Snowden's motion for leave on July 2, 2018. The trial
court held a hearing on Snowden's motion to suppress on
July 9, 2018, immediately prior to the beginning of his
second trial. After hearing from both parties, the trial
court overruled Snowden's motion to suppress from the
15} During the same hearing, Snowden also made an
oral motion for the trial court to sever the "B
Indictment" from the "A Indictment" for
purposes of trial. The trial court overruled Snowden's
motion to sever from the bench. Thereafter, the case
proceeded to trial, and on July 11, 2018, the jury found
Snowden guilty on all counts presented to it. On July 13,
2018, the trial court found Snowden guilty of having weapons
under disability following a bench trial. The trial court
merged the two counts of murder and the two counts of
felonious assault and merged all of the accompanying firearm
specifications. The State elected to proceed on Count I,
murder (proximate result), which carried a mandatory sentence
of 15 years to life in prison. The trial court also sentenced
Snowden to three years in prison for having weapons under
disability, to be served concurrently to his sentence for
murder. The trial court sentenced Snowden to three years for
bribery, to be served consecutively to the sentence for
murder. Finally, the trial court sentenced Snowden to three
years in prison for the firearm specification, to be served
consecutively to Snowden's sentence for murder. The
aggregate sentence was 21 years to life in prison. The court
also ordered Snowden to pay restitution, court costs, and
16} It is from this judgment that Snowden now
17} Snowden's first assignment of error is as
THE TRIAL COURT ERRED IN OVERRULING DEFENDANT'S MOTION TO
18} In his first assignment, Snowden contends that
the trial court erred when it overruled his motion to
suppress the cell phone "pinging" information that
was used to attempt to locate him on the night of the
shooting and the following day. In support of his argument,
Snowden relies upon the U.S. Supreme Court's recent
opinion in Carpenter, ___U.S.___, 138 S.Ct. 2206,
201 L.Ed.2d 507.
19} Initially, we note that defense counsel withdrew
his challenge to the "pings" that occurred in
Maricopa, Arizona. Accordingly, Snowden has waived this
portion of his argument on appeal, and we decline to address
20} In ruling on a motion to suppress, the trial
court "assumes the role of the trier of fact, and, as
such, is in the best position to resolve questions of fact
and evaluate the credibility of the witnesses."
State v. Retherford, 93 Ohio App.3d 586, 592, 639
N.E.2d 498 (2d Dist.1994); State v. Knisley, 2d
Dist. Montgomery No. 22897, 2010-Ohio-116, ¶ 30.
Accordingly, when we review suppression decisions, we must
accept the trial court's findings of fact if they are
supported by competent, credible evidence. Retherford at 592.
"Accepting those facts as true, we must independently
determine as a matter of law, without deference to the trial
court's conclusion, whether they meet the applicable
legal standard." Id.
21} The threshold issue in every Fourth Amendment
analysis is whether a particular government action
constituted a "search" or "seizure"
within the meaning of the Amendment. United States v.
Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 80 L.Ed.2d
85 (1984). In its early jurisprudence, the Supreme Court
determined whether a particular action was a
"search" or "seizure" based on principles
of property trespass. In Katz v. United States, 389
U.S. 347, 353, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), however,
the Court recognized that the Fourth Amendment also protects
certain expectations of privacy, not just physical intrusions
on constitutionally protected areas. Id.; Carpenter
at 2213. Under Katz, to prove a Fourth Amendment
violation, a defendant must show (1) that the person had a
subjective expectation of privacy and (2) that the subjective
expectation of privacy is one that society recognizes, or is
prepared to recognize, as reasonable. Smith v.
Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 61 L.Ed.2d
220 (1979), citing Katz at 361 (Harlan, J, concurring).
22} After Katz, the Supreme Court rejected
the government's "contention that it should be able
to monitor beepers in private residences without a warrant if
there is the requisite justification in the facts for
believing that a crime is being or will be committed and that
monitoring the beeper wherever it goes is likely to produce
evidence of criminal activity." United States v.
Karo, 468 U.S. 705, 717, 104 S.Ct. 3296, 82 L.Ed.2d 530
(1984). The Supreme Court found "[i]ndiscriminate
monitoring of property that has been withdrawn from public
view would present far too serious a threat to privacy
interests in the home to escape entirely some sort of Fourth
Amendment oversight." (Footnote omitted). Id.
at 716. Later, the Supreme Court held that when "the
Government uses a device that is not in general public use,
to explore details of the home that would previously have
been unknowable without physical intrusion, the surveillance
is a 'search' and is presumptively unreasonable
without a warrant." Kyllo v. United States, 533
U.S. 27, 40, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001).
23} More recently, the Supreme Court held that
attaching a GPS tracking device to a vehicle constitutes a
search under the Fourth Amendment. United States v.
Jones, 565 U.S. 400, 404, 132 S.Ct. 945, 181 L.Ed.2d 911
(2012). Two years later, the Supreme Court held that "a
warrant is generally required before such a search [of a cell
phone], even when a cell phone is seized incident to
arrest." Riley v. California, 573 U.S. 373,
401, 134 S.Ct. 2473, 189 L.Ed.2d 430 (2014). The Court
recognized that cell phones hold "the privacies of
life," id. at 2495, quoting Boyd v. United
States, 116 U.S. 616, 630, 6 S.Ct. 524, 29 L.Ed. 746
(1886), and noted that "[t]he fact that technology now
allows an individual to carry such information in his hand
does not make the information any less worthy of the
protection for which the Founders fought." Id.
24} In Carpenter, ___U.S.___, 138 S.Ct.
2206, 201 L.Ed.2d 507, the defendant challenged on Fourth
Amendment grounds the government's warrantless
acquisition -pursuant to 18 U.S.C. 2703 -- of his cell-site
location information ("CSLI") from his wireless
telecommunications carrier that had been sent to cell towers
by his cell phone and stored by that carrier. Id. at
at 2211-12. The CSLI data acquired in Carpenter
identified the defendant's movements across nearly 13,
000 specific location points during a 127-day span.
Id. at 2212.
25} The government, in response, invoked the
third-party doctrine to justify its warrantless acquisition
of the CSLI from the carrier. Id. at 2219. The
Supreme Court held, however, that the government's
acquisition of the CSLI from the carrier constituted a search
for which the government needed a warrant, because the
defendant retained a reasonable expectation of privacy in the
CSLI at issue even though he had shared it with his wireless
carrier. Id. at 2217-20.
26} Carpenter reasoned that, given the
location information that CSLI conveyed and the fact that a
cell phone user transmits it simply by possessing the cell
phone, if the government could access the CSLI that it had
acquired without a warrant in that case, then the result
would be that "[o]nly the few without cell phones could
escape" what would amount to "tireless and absolute
surveillance." Id. at 2218. Carpenter
thus declined to extend the third-party doctrine to the CSLI
at issue in that case and instead determined that the
defendant did have a reasonable expectation of privacy in the
CSLI that he sought to suppress. Id. at 2219-20.
27} However, the Carpenter court also
stated the following regarding the limited application of its
Our decision today is a narrow one. We do not express a
view on matters not before us: real-time CSLI or
"tower dumps" (a download of information on all the
devices that connected to a particular cell site during a
particular interval). We do not disturb the application of
Smith [442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220]
and Miller [425 U.S. 435, 96 S.Ct. 1619, 48 L.Ed.2d
71] or call into question conventional surveillance
techniques and tools, such as security cameras. Nor do we
address other business records that might incidentally reveal
location information. Further, our opinion does not consider
other collection techniques involving foreign affairs or
national security. As Justice Frankfurter noted when
considering new innovations in airplanes and radios, the
Court must tread carefully in such cases, to ensure that we
do not "embarrass the future." Northwest
Airlines, Inc. v. Minnesota, 322 U.S. 292, 300, 64 S.Ct.
950, 88 L.Ed. 1283 (1944).
(Emphasis added.) Id. at 2220. Accordingly, the
Supreme Court has not addressed the narrow issue presented in
the instant case: whether police action that causes an
individual's cell phone to transmit its real-time
location intrudes on any reasonable expectation of privacy.
28} Using Snowden's cell phone number on the
night of the shooting, Detective Daugherty requested that the
phone service provider "ping" Snowden's cell
phone in an attempt to locate him. When an attempt was made
to "ping" Snowden's cell phone, Detective
Daugherty was informed that Snowden's cell phone had been
turned off. When the cell phone was "pinged" the
following day, it was discovered that the cell phone had been
turned back on and was in the possession of Snowden's
girlfriend. Snowden, however, was not present. Therefore, the
information gathered by the police in the instant case
amounted to "real-time CSLI," and in
Carpenter, the U.S. Supreme Court expressly declined
to discuss the application of the Fourth Amendment to such
conduct by law enforcement.
29} Carpenter specifically addressed the
government's ability to utilize cell phone data without a
warrant to ascertain a suspect's location and movement
over a period of weeks, months, and years. In the instant
case, Detective Daugherty pinged Snowden's phone twice,
in real time, in an effort to ascertain his whereabouts on
the night of the shooting and the following day.
30} Here, we find that the trial court should have
addressed the applicability of Carpenter to
Snowden's case, and incorrectly declined to do so. We
note that the State in its brief acknowledges that such an
analysis should have been done as Snowden's case was
still pending at the time that Carpenter was
decided. See Griffith v. Kentucky, 479 U.S. 314, 107
S.Ct. 708, 93 L.Ed.2d 649 (1987), syllabus. The
Griffith court held that new rules for the conduct
of criminal prosecutions must be "applied retroactively
to all cases, state or federal, pending on direct review or
not yet final, with no exception for cases in which the new
rule constitutes a 'clear break' with the past."
Id. at 328; see also State v. Thompson, 161
Ohio App.3d 334, 2005-Ohio-2508, 830 N.E.2d 394, ¶ 21-25
(2d Dist.) (applying new criminal law retroactively to case
pending on direct appeal).
31} We conclude that Carpenter has
retroactive applicability to Snowden's case. However,
"the question of whether a constitutional right is
retroactive is distinct from the question of whether an
individual is entitled to a remedy from any constitutional
violation." See United States v. Leyva, E.D.
Mich. No. 16-cr-20723, 2018 WL 6167890 (Nov. 26, 2018)
(stating that Carpenter is retroactive). As the
Supreme Court explained in Davis v. United States,
564 U.S. 229, 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011):
Our retroactivity jurisprudence is concerned with whether, as
a categorical matter, a new rule is available on direct
review as a potential ground for relief. Retroactive
application under Griffith lifts what would
otherwise be a categorical bar to obtaining redress for the
government's violation of a newly announced
constitutional rule. Retroactive application does not,
however, determine what "appropriate remedy" (if
any) the defendant should obtain. Remedy is a separate,
analytically distinct issue. As a result, the retroactive
application of a new rule of substantive Fourth Amendment law
raises the question whether a suppression remedy applies; it
does not answer that question.
Id. at 243-244.
32} As an initial matter, we reject the State's
argument that Carpenter explicitly limited its
holding to the collection of seven days or more of CSLI. In
fact, the language used by the U.S. Supreme Court arguably
suggests just the opposite in the following excerpt:
* * * [W]e need not decide whether there is a limited period
for which the Government may obtain an individual's
historical CSLI free from Fourth Amendment scrutiny, and if
so, how long that period might be. It is sufficient for our
purposes today to hold that accessing seven days of CSLI
constitutes a Fourth Amendment search.
Carpenter at 2272, fn 3.
33} In this case, although the State's request
for CSLI was limited to a two-day period, there is no
rationale that such a request is not a "search."
See State v. Burke, 11th Dist. Trumbull Nos.
2018-T-0032, 2018-T-0035, 2019-Ohio-1951, ¶ 31-32.
Before compelling a wireless carrier to turn over a
subscriber's CSLI, the State's obligation is a
familiar one - obtain a warrant. This is logically true
whether it is one day, two days, three days, or seven days or
more of data obtained.
34} We note that the State argues that even if the
police were required to obtain a warrant prior to pinging
Snowden's phone on the dates in question, their failure
to do so was harmless because they were ultimately unable to
locate him. As previously stated, the first ping of
Snowden's phone revealed that it had been turned off. The
second ping indicated that, although the phone had been
turned back on, it was in the possession of Snowden's
girlfriend, and he was not present. Thus, the State argues
that the failure of the police to get a warrant was
ultimately inconsequential, and therefore the evidence should
not be suppressed. We should not be preoccupied with what the
State learned, but rather the manner in which the government
obtained information about Snowden's cell phone.
Furthermore, the State's argument in this regard is
undermined by the fact that, at trial, the State argued in
its closing argument that Snowden's phone being turned
off immediately after the shooting was indicative of his
guilt insofar as he was trying to elude law enforcement.
Thus, it is apparent that the trial court's refusal to
suppress the cell phone pings were not inconsequential as
they were used by the State as evidence of Snowden's
guilt at trial.
35} Nevertheless, even though obtaining a CSLI
without a warrant violates the Fourth Amendment, such
evidence need not be suppressed if exigent circumstances
exist, and/or the officers acted in good faith.
The suppression of evidence" 'is not an automatic
consequence of a Fourth Amendment violation.'"
State v. Hoffman, 141 Ohio St.3d 428,
2014-Ohio-4795, * * * 25 N.E.3d 993, [¶ 24] quoting
Herring v. United States, 555 U.S. 135, 137, 129
S.Ct. 695, 172 L.Ed.2d 496 (2009). "The exclusionary
rule is a judicially created remedy for Fourth Amendment
violations. The question whether the evidence seized in
violation of the Fourth Amendment should be excluded is a
separate question from whether the Fourth Amendment was
violated." State v. Castagnola, 145 Ohio St.3d
1, 2015-Ohio-1565, * * * 46 N.E.3d 638, [¶ 92] citing
United States v. Calandra, 414 U.S. 338, 348, 94
S.Ct. 613, 38 L.Ed.2d 561 (1974) and United States v.
Leon, 468 U.S. 897, 906, 104 S.Ct. 3405, 82 L.Ed.2d 677
Burke at ¶ 29.
36} The Carpenter court indicates that
certain case-specific exceptions may support a warrantless
search of cell-site records under certain circumstances,
including "when the exigencies of the situation make the
needs of law enforcement so compelling that a warrantless
search is objectively reasonable under the Fourth
Amendment." Id. at 2222, quoting Kentucky
v. King, 563 U.S. 452, 460, 131 S.Ct. 1849, 179 L.Ed.2d
865 (2011), quoting Mincey v. Arizona, 437 U.S. 385,
394, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978).
37} In the instant case, Snowden shot the victim in
the presence of multiple witnesses. An important factor in
determining whether exigent circumstances exist is the
gravity of the underlying offense. Welsh v.
Wisconsin, 466 U.S. 740, 753, 104 S.Ct. 2091, 80 L.Ed.2d
732 (1984). Upon review, we find that an exigency existed.
State v. Johnson, 187 Ohio App.3d 322,
2010-Ohio-1790, 931 N.E.2d 1162 (2d Dist.) ("generally,
the exigent-circumstances exception to the Fourth
Amendment's warrant requirement can apply when the delay
associated with obtaining a warrant would result in
endangering police officers or other individuals, or would
result in concealment or destruction of evidence").
Snowden was identified as the perpetrator, fled the scene,
and was armed. Furthermore, Snowden had knowledge that the
eyewitnesses observed him commit the homicide, and therefore
could implicate him. Thus, exigent circumstances took the
police conduct herein outside of the warrant requirement.
38} Furthermore, the good faith exception to the
warrant requirement is applicable. At the time the police
obtained Snowden's CSLI phone records, the police conduct
was lawful under both federal and state law in this
jurisdiction. An officer who conducts a search in reliance on
binding appellate precedent does no more than"
'ac[t] as a reasonable officer would and should
act'" under the circumstances. United States v.
Leon, 468 U.S. 897, 920, 104 S.Ct. 3405, 82 L.Ed.2d 677
(1984), quoting Stone v. Powell, 428 U.S. 465,
539-540, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976). Therefore,
"[e]vidence obtained during a search conducted in
reasonable reliance on binding precedent is not subject to
the exclusionary rule." Davis, 564 U.S. 229,
241, 131 S.Ct. 2419, 180 L.Ed.2d 285.
39} The good-faith exception to the exclusionary
rule provides that evidence will not be suppressed "when
the police act with an objectively 'reasonable good-faith
belief that their conduct is lawful or when their conduct
involves only simple, 'isolated' negligence."
Id. at 238. "To trigger the exclusionary
rule," the U.S. Supreme Court has said, "police
conduct must be sufficiently deliberate that exclusion can
meaningfully deter it, and sufficiently culpable that such
deterrence is worth the price paid by the justice
system." Herring v. United States, 555 U.S.
135, 144, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009). Accordingly,
"[e]vidence obtained during a search conducted in
reasonable reliance on binding precedent is not subject to
the exclusionary rule." Davis at 241.
40} As was the case in Burke, at the time
of the search of Snowden's CSLI, Carpenter had
not yet been decided by the U.S. Supreme Court. The Sixth
Circuit's precedent was that individuals "have no
such expectation [of privacy] in the locational
information" obtained from a wireless carrier.
United States v. Carpenter, 819 F.3d 880, 888 (6th
Cir.2016). According to the Sixth Circuit, obtaining such
information was not considered a "search" under the
Fourth Amendment. Id. at 890. See also State v.
Taylor, 2d Dist. Montgomery No. 25764, 2014-Ohio-2550,
¶ 7 (finding that appellant had no reasonable
expectation of privacy in the pings emitted by the cell phone
in his possession; "[therefore, no search warrant was
required regardless of whether exigent circumstances
41} Upon review, we therefore conclude that the
detectives who obtained Snowden's CSLI from his service
provider "did so in compliance with binding precedent
and with an objectively reasonable good-faith belief that
their actions were lawful." Burke at ¶
Thus, applying Carpenter retroactively leads us to
conclude that Snowden's Fourth Amendment rights were
violated by the failure to obtain a warrant, but the trial
court was not required to exclude the evidence because the
presence of exigent circumstances obviated the warrant
requirement and the good-faith exception applied. Therefore,
the trial court did not err when it overruled Snowden's
motion to suppress.
42} Snowden's first assignment of error is
43} Snowden's second assignment of error is as
THE TRIAL COURT ERRED IN OVERRULING DEFENDANT'S MOTION TO
SEVER PURSUANT TO CRIMINAL RULE 14.
44} In his second assignment, Snowden argues that
the trial court erred when it overruled his motion to sever
the trial of his "B Indictment" for bribery from
the trial for the offenses in his "A Indictment"
that were directly related to the shooting of Sarver. As
previously stated, the "B Indictment" contained one
count of bribery stemming from Snowden's offer to pay
D.E. $2, 500 to change his testimony.
45} Crim.R. 8(A) provides as follows:
Joinder of offenses. Two or more offenses may be charged in
the same indictment, information or complaint in a separate
count for each offense if the offenses charged, whether
felonies or misdemeanors or both, are of the same or similar
character, or are based on the same act or transaction, or
are based on two or more acts or transactions connected
together or constituting parts of a common scheme or plan, or
are part of a course of criminal conduct.
46} "The law favors joinder to prevent
successive trials, to minimize the possibility of incongruous
results in successive trials before different juries, to
conserve judicial resources, and to diminish the
inconvenience to witnesses." State v. Goodner,
195 Ohio App.3d 636, 2011-Ohio-5018, 961 N.E.2d 254, ¶
39 (2d Dist.), citing State v. Schaim, 65 Ohio St.3d
51, 58, 600 N.E.2d 661 (1992).
47} Crim.R. 14 provides:
If it appears that a defendant or the state is prejudiced by
a joinder of offenses or of defendants in an indictment,
information, or complaint, or by such joinder for trial
together of indictments, informations or complaints, the
court shall order an election or separate trial of counts,
grant a severance of defendants, or provide such other relief
as justice requires. In ruling on a motion by a defendant for
severance, the court shall order the prosecuting attorney to
deliver to the court for inspection pursuant to Rule
16(B)(1)(a) any statements or confessions made by the
defendants which the state intends to introduce in evidence
at the trial.
48} Even if offenses are properly joined pursuant to
Crim.R. 8(A), a defendant may move to sever the charges
pursuant to Crim.R. 14. In order to affirmatively show that
his rights have been prejudiced by the joinder, the defendant
must furnish the trial court with information sufficient to
allow the court to weigh the considerations favoring joinder
against the defendant's right to a fair trial; to obtain
reversal on appeal, the defendant must demonstrate that the
trial court abused its discretion in refusing to separate the
charges for trial. Goodner at ¶ 42. Thus, we
review the trial court's decision on severance under an
abuse of discretion standard. State v. Lott, 51 Ohio
St.3d 160, 163, 555 N.E.2d 293 (1990).
49} A defendant normally cannot establish prejudice,
however, where either (1) the evidence of each of the crimes
joined at trial is simple and direct or (2) the State could
have introduced evidence of one offense in a separate trial
of the other offense had severance been granted. State v.
Ward, 2d Dist. Montgomery No. 26773, 2016-Ohio-5354,
¶ 16. If the evidence of other crimes would be
admissible at separate trials, any "prejudice that might
result from the jury's hearing the evidence of the other
crime in a joint trial would be no different from that
possible in separate trials," and a court need not
inquire further. Schaim, 65 Ohio St.3d 51, 59, 600
N.E.2d 661 (1992), citing Drew v. United States, 331
F.2d 90 (D.C. Cir.1964).
50} Initially, we note that evidence that tends to
demonstrate the attempted bribery of a witness by a defendant
is admissible against that defendant since such an attempt is
an admission of guilt. See State v. Hunt, 8th Dist.
Cuyahoga No. 84528, 2005-Ohio-1871, at ¶ 8. Accordingly,
had the trial court granted Snowden's motion to sever,
his phone call to D.E. from the jail offering $2, 500 for
D.E. to change his testimony would have been admissible to
establish Snowden's consciousness of guilt regarding his
role in the murder of Sarver. If the charges had been
severed, the State would necessarily have called several of
the same witnesses from the trial on the underlying charges
to prove motive and interest in connection with the bribery
charges, which would have wasted judicial resources and
subjected the witnesses to a needless second turn on the
stand. Thus, we conclude that since the evidence of
Snowden's attempt to bribe D.E. would have been
admissible at Snowden's murder trial, the trial court did
not err when it overruled his motion to sever.
51} Snowden's second assignment of error is
52} Snowden's third assignment of error is as
THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN VARIOUS
53} In his third assignment, Snowden argues that the
trial court made several prejudicial evidentiary rulings
which require that his convictions be reversed and that he be
granted a new trial.
54} Relevant evidence is generally admissible
whereas irrelevant evidence is not. Evid.R. 402.
"Relevant evidence" is defined as "evidence
having any tendency to make the existence of any fact that is
of consequence to the determination of the action more
probable or less probable than it would be without the
evidence." Evid.R. 401. Relevant evidence is not
admissible if its probative value is substantially outweighed
by the danger of unfair prejudice, of confusion of the
issues, or of misleading the jury. Evid.R. 402; Evid.R.
55} Trial courts have discretion over the admission
or exclusion of evidence, and we review the court's
decision for abuse of discretion. State v. Dyer,
2017-Ohio-8758, 100 N.E.3d 993, ¶ 24 (2d Dist.). "A
trial court abuses its discretion when it makes a decision
that is unreasonable, unconscionable, or arbitrary. An abuse
of discretion includes a situation in which a trial court did
not engage in a 'sound reasoning process.'
Abuse-of-discretion review is deferential and does not permit
an appellate court to simply substitute its judgment for that
of the trial court." State v. Darmond, 135 Ohio
St.3d 343, 2013-Ohio-966, 986 N.E.2d 971, ¶ 34.
56} The first instance of allegedly prejudicial
testimony admitted into evidence over objection occurred
when, during direct examination, the prosecutor asked Watson
if she had ever changed her story regarding the events
surrounding Sarver's shooting on the night of June 6,
2016. The following exchange occurred regarding a recorded
conversation between Watson and Snowden on November 30, 2017,
when Snowden was in jail:
The State: Ma'am, do you remember back in November of
2017 testifying in another hearing regarding this matter?
Q: And the phone call I'm about to play for you, was that
after you received this call from Mr. Snowden?
(State's Exhibit 29 marked for ...