Computers and Electronic Devices

 

Franklin County Criminal Law Casebook

Reproduced with permission from:
David L. Strait and the Franklin County Public Defender Office
 

State v. Smith, Slip Opinion No. 2009-Ohio-6426 – Syllabus: "The warrantless search of data within a cell phone seized incident to a lawful arrest is prohibited by the Fourth Amendment when the search is unnecessary for the safety of law-enforcement officers and there are no exigent circumstances."
 
State v. Rivas, 121 Ohio St. 3d 469, 2009-Ohio-1354 – Syllabus: "Pursuant to a Crim. R. 16(B) (1) (c) discovery request, when a prosecutor has provided a written transcript that purports to accurately reflect data stored on a computer hard drive, a court may not order an examination of the computer hard drive unless the defense makes a prima facie showing that the state has provided false, incomplete, adulterated, or spoliated evidence." Reverses State v. Rivas, 172 Ohio App. 3d 473, 2007-Ohio-3593. Defense wanted a mirror image of a hard drive also containing information pertaining to other investigations. Claim seems to have been that rebooting computer might affect files.
 
State v. Hurst, 181 Ohio App. 3d 454, 2009-Ohio-983 – Injured employee was placed on light duty at the office. In five days 14,000 pictures landed on a new computer‘s temporary Internet cache folder, leading to kiddie porn charges. The defendant testified he had meager computer skills and described crawling under a table to unplug the computer when screens full of images rapidly downloaded. As to the sufficiency of proof on the mens rea element of recklessness in relation to possession, at ¶65-99, the court does not hold the state to merely proving presence of prohibited images in the cache. Defendant loses because of the search terms he used and file names associated with his computer activity – "amazing preteens, elite preteens, family incest tree," etc.
 
State v. Brady, 119 Ohio St. 3d 375, 2008-Ohio-4493 – Attorney was appointed as an expert witness in a kiddie porn prosecution. The FBI raided his home and seized his laptop and the digital image exhibits was preparing for use at trial. Trial court sustained a motion to dismiss. Court of Appeals affirmed. Reversed. Court could consider matters beyond the face of the indictment in ruling on motion to dismiss premised on claim federal child pornography statutes deprived the defendant of his right to expert assistance, since the motion could be decided without deciding the general issue. Expert could do his work at the prosecutor‘s office.
 
State v. Ellison, 178 Ohio App. 3d 734, 2008-Ohio-5282 – Defendant posted a picture of a former friend on her MySpace page, captioned "molested a little boy." This was based on the defendant‘s belief her younger brother had been molested by the former friend. (1) The posting constituted a "telecommunication" even though there was not direct contact between the defendant and complaining witness. (2) Telecommunications harassment is a specific intent offense, requiring an intent to harass, and not merely showing the defendant knew or should have known her posting would cause harassment. Here the lack of direct communication and possibility it was meant as a legitimate warning compel the finding that the conviction was not supported by the evidence. Defamation is a separate issue which might be addressed in civil proceedings. Court does not address First Amendment claim, though the concurring opinion states, "The First Amendment would not allow punishment for making a nonthreatening comment on the Internet, just as it would not for writing a newspaper article, posting a sign, or speaking on the radio."
 
State ex rel. Glasgow v. Jones, 119 Ohio St. 3d 391, 2008-Ohio-4788 – P.E.R.S. recipient sought e-mails, text messages, and correspondence from two state representatives who sponsored a bill which would have required divestiture by certain public investors of holdings in companies doing business in Iran and Sudan. Request was overly broad, but accepted that as related to the subject bill the request was proper as the texts and e-mails were public records. Opinion does not determine whether e-mails to a private account were public records.
 
State v. Mays, 161 Ohio App. 3d 175, 2005-Ohio-2609 -- Officers admitted to a house while investigating possible foul play noticed the instant message "he will die today" on a computer screen. Seizure was warranted under the plain view doctrine.
 
State v. Bettes (2000), 106 Ohio Misc.2d 41 -- Welfare fraud indictment dismissed because of preindictment delay. Opinion suggests action might also have been barred by the statute of limitations if it could have been documented when information state would be charged with knowledge of went into computer database.
 
Dayton v. Davis (1999), 136 Ohio App. 3d 26 -- Law student's aggravated menacing and menacing by stalking convictions based on e-mail and web page activities were supported by the evidence.
 
State v. Darling (2000), 139 Ohio App. 3d 610 -- Conviction for possession of a device used to secure unauthorized cable television service was based on use of ordinary coaxial cable to make hookup to cable utility box. Reversed as the cable had not been modified or adapted for such purpose.
 
State v. Mason (2001), 143 Ohio App. 3d 114 -- For defendant to have processed a fraudulent application for a state ID card she would have had to override a conflict message generated by the Department of Motor Vehicles computer system. Unauthorized access to a computer system (R.C. 2913.04) conviction upheld.
 
State v. Moller, Greene App. No. 2001-CA-99, 2002-Ohio-1890 -- Defendant was disappointed to learn the 14-year old girl he met in a chat room was an undercover officer in Xenia. (1) Because the officer was a "party to the communication" there was no violation of 18 U.S.C. 2510, et. seq. Prior authorization to intercept was not required. (2) The Fourth Amendment does not extend to cyberspace conversations an individual engages in with a stranger who may be an undercover officer posing as someone else. State v. Pi Kappa Alpha Fraternity (1986), 23 Ohio St. 3d 141 distinguished on the basis that that case involved the privacy expectation in one's own home and efforts to gain admittance. One is always a visitor to a chat room, and in this case the "girl" waited to be approached by the defendant. However, there might be an expectation of privacy when it is reasonably believed an Internet conversation is with a known acquaintance and officers have circumvented security precautions. (3) Venue lay in Greene County because the defendant travelled there to engage in sex with a minor.
 
State v. Cook, 149 Ohio App. 3d 422, 2002-Ohio-4812 -- (1) At ¶3-15: Visiting brother-in-law went looking for porn on family computer and found kiddie-porn. He made copies to disks and took them to the police. In furtherance of obtaining a warrant he was asked to bring in a piece of mail with addressed to the defendant. Suppression not required. As to making copies, he had so far had no contact with the police, and thus, was not acting as their agent. Providing a piece of mail at police request was of no consequence in determining the validity of the warrant. To authorize a search of the premises, the magistrate only had to determine whether criminal activity was being conducted. Defendant's person was not searched. (2) Using EnCase software, a "mirror image" was made of the defendant's hard drive, which provided exhibits used at trial. No abuse of discretion in admission of testimony. Claims raised went to weight, not admissibility.
 
State v. Rivas, 172 Ohio App. 3d 473, 2007-Ohio-3593 -- 36 year old man, posing as a 19 year old, arranged to meet a Xenia cop posing as a 14 year old girl. Defendant claimed he had arranged to meet a 41 year old woman and that the transcript prepared by the state from the police department's hard drive was inaccurate. Court refused to order the state provide a mirror copy of the hard drive which included information from other investigations. ¶18: Right to confrontation was denied. ¶19: Right to due process denied. Proposed alternative to providing a mirror image is in camera review by the court, perhaps employing its own expert.
 
State v. Bell, 142 Ohio Misc. 2d 72, 2007-Ohio-2629 -- An "interception warrant" signed by a common pleas court judge was not required for data stored in a computer.
 
State v. Morris, Wayne App. No. 04CA0036, 2005-Ohio-599 -- No due process violation found in wiping hard drive on which kiddie porn was found before returning it to the defendant's son, who was the owner and had reported his father to the police after finding images in the recycle bin. Encase, Version 3, had been used to copy the contents to make a replica for forensic use.
 
State v. Turner, 156 Ohio App. 3d 177, 2004-Ohio-464 -- A computer can be used as a criminal tool.
 
State v. Franklin, 164 Ohio App. 3d 758, 2005-Ohio-6854 -- Distance to school in a drug case was measured using satellite imaging software. The city geographical information specialist knew how to use the software but was not an expert on how it had been programmed. In the court's view global imaging devices are widely used and considered reliable, so pursuant to Evidence Rule 702 it is not scientific evidence requiring expert testimony.
 
State v. Perry (1998), 83 Ohio St. 3d 41 -- "...(P)rosecution of state charges of unauthorized use (of computer property pursuant to R.C. 2913.04) that are based solely upon the unauthorized uploading, downloading, and posting of software on a computer bulletin board is preempted by the federal copyright laws."
 
State ex rel. Wilson-Simmons v. Lake County Sheriff's Department (1998), 82 Ohio St. 3d 37 -- Racist e-mail disseminated over the Sheriff's computer system is not a public record for purposes of R.C. 149.43 as it does not serve to document the organization, functions, policies, decisions, procedures, operations or other activities of the Sheriff's Department.
 
State v. Clark (1995), 101 Ohio App. 3d 389, 409-419 -- Forensic photographer employed by the coroner's office found to have been properly qualified to testify as an expert witness concerning his use of an electronic drafting program to demonstrate through locations of entrance and exit wounds, bullet hole in bathroom wall, and firing distance, that the fatal shot could not have been fired in the manner described by the defendant. See dissent which stresses expert's failure to visit scene, inability to place locations of victim and defendant, and lack of academic degrees or experience as a reconstruction expert.
 
State v. Washington (1998), 126 Ohio App. 3d 264 -- Theft in office prosecution was premised on unauthorized use of a computer system which posted food stamp benefits on cards bearing a microchip which were issued to beneficiaries. It was not necessary to prove a lack of consent on the part of the cardholders as owners, as the ownership interest violated was established with respect to the central computer, whether or not the imbedded chips meant the cards by themselves qualified as a computer, system or network.
 
State v. Lebron (1994), 97 Ohio App. 3d 155 -- Unauthorized access to a computer system conviction upheld on finding that the testimony of the system's manager to the effect that use in the manner undertaken by the defendant was not permitted. Records involved also held not to be public records.
 
State v. Long (1992), 82 Ohio App. 3d 168 -- Escape conviction affirmed where defendant removed anklet used to monitor electronically monitored house arrest and went to local tavern.
 
State v. Faulkner (1995), 102 Ohio App. 3d 602 -- No credit for time served against prison sentence for period of electronically monitored house arrest.
 
State v. Vogelsang (1992), 82 Ohio App. 3d 354 -- In a medicaid fraud prosecution held that computer generated records were not properly admitted as public record pursuant to Evid. Rules 803 and 901 (authentication). At page 360: "It is not sufficient for admission of an alleged public record for a witness to state that this is information accessed through a computer operated by a public agency *** In general, for the public record exception to apply, the record must be one that is required by law to be maintained in the office in question whether originated by or filed in that office, or the nature of the record must be such that there is a duty by the agency to record and maintain the information therein. *** In general, there must be either an express requirement or implied duty set forth by statute for the public record exception to apply other than with respect to activities of the office or agency." Compare State v. Brown (1994), 99 Ohio App. 3d 604.
 
State ex rel. Margolius v. Cleveland (1992), 62 Ohio St. 3d 456 -- Syllabus: "A governmental agency must allow the copying of the portions of computer tapes to which the public is entitled pursuant to R.C. 149.43, if the person requesting the information has presented a legitimate reason why a paper copy of the records would be insufficient or impracticable, and if such person assumes the expense of copying."
 
State ex rel. Athens County Property Owners Association, Inc. v. Athens (1992), 85 Ohio App. 3d 129 -- Writ of mandamus may direct party be permitted to inspect public record in diskette form. (Data base files. Association would have had to furnish its own copy of the proprietary software required to read the files.)
 
State v. Breeze (1993), 89 Ohio App. 3d 464 -- After repairs were made to Health Department approved breath analysis machine, including use of replacement parts, no new RFI survey was performed. Trial court properly suppressed test results. Though a witness read from the work order, it was not properly authenticated as a public record and there was no testimony that the numbers of the parts used matched those of original or factory authorized replacement parts.
 

Publishing Information

Published by David L. Strait
 
Copyright © Franklin County Public Defender and David L. Strait, 2015
 
Contents may not be duplicated without express permission.

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