[Cite as State v. Hidey,

.]

COURT OF APPEALS TUSCARAWAS COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : Hon. W. Scott Gwin, P.J. Plaintiff - Appellant : Hon. Patricia A. Delaney, J. : Hon. Craig R. Baldwin, J. -vs- : : KODY S. HIDEY : Case No. 2016 AP 03 0017 : Defendant - Appellee : OPINION

CHARACTER OF PROCEEDING: Appeal from the Tuscarawas County Court of Common Pleas, Case No. 2015 CR 03 0090

JUDGMENT: Reversed and Remanded

DATE OF JUDGMENT: October 3, 2016

APPEARANCES:

For Plaintiff-Appellant For Defendant-Appellee

MICHAEL J. ERNEST ADAM WILGUS Assistant Prosecuting Attorney 401 Tuscarawas Street, W., Suite 200 125 E. High Avenue Canton, Ohio 44702 New Philadelphia, Ohio 44663 Tuscarawas County, Case No. 2016 AP 03 0017 2

Baldwin, J.

{¶1} Appellant the State of Ohio appeals a judgment of the Tuscarawas County

Common Pleas Court suppressing a cell phone seized from appellee Kody S. Hidey.

STATEMENT OF THE FACTS AND CASE

{¶2} On October 28, 2014, an armed robbery took place at Marty’s Coaches

Corner in New Philadelphia, Ohio. Detective Shawn Nelson of the New Philadelphia

Police Department commenced an investigation. Det. Nelson received a tip from Charla

Hamilton on October 29, 2014, that a man by the name of Devonte Sherman might be

responsible for the robbery.

{¶3} Ms. Hamilton informed Det. Nelson that she received a text message on the

day of the robbery from Devonte Sherman asking if she knew of anywhere to “make some

moves.” She understood “make some moves” to be a slang term for committing a robbery

or stealing. She told Det. Nelson that Devonte Sherman did not have a phone, but had

been staying with appellee and shared appellee’s phone. The text messages from

Sherman came to her from a number she recognized as appellee’s cell phone number.

She further indicated that Sherman used appellee’s phone after the robbery, saying he

was “hot” in New Philadelphia and needed to let things cool down before coming back.

{¶4} After police met with Hamilton, they prepared a photo lineup that was shown

to the employees who worked in Marty’s Coaches Corner on the night of the robbery.

Both employees identified Devonte Sherman as the perpetrator of the armed robbery.

{¶5} Det. Nelson conducted an interview with appellee at the police department

on November 3, 2014. Det. Nelson asked appellee if he had his phone with him. He

asked appellee to see the phone, saying, “I’m not taking it. I just want to see it while Tuscarawas County, Case No. 2016 AP 03 0017 3

you’re sitting here with me. Make sure it’s off.” Tr. 13. After confirming that Sherman

used appellee’s phone, Det. Nelson told appellee that he was taking the phone. On

November 13, 2014, police obtained a search warrant to retrieve the contents of

appellee’s phone.

{¶6} Appellee was indicted by the Tuscarawas County Grand Jury with one count

of aggravated robbery (R.C. 2911.01(A)(1)) with a firearm specification. Appellee filed a

motion to suppress all evidence obtained from the warrantless seizure of his cell phone.

{¶7} Following a hearing, the court found that although there may have been

probable cause to seize the phone, there were no exigent circumstances to justify the

seizure because Det. Nelson knew about the phone’s potential link to criminal activity

prior to his interview with appellee, and could have obtained a warrant to seize the phone.

The court found that even if the seizure was proper, the seizure subsequently became

unreasonable because the detective waited ten days after the seizure to obtain a warrant

for the information contained in the phone. The court accordingly granted appellee’s

motion to suppress.

{¶8} Appellant assigns two errors:

{¶9} “I. THE POLICE HAD PROBABLE CAUSE TO SEIZE THE APPELLEE’S

CELLULAR PHONE UNTIL A SEARCH WARRANT COULD BE OBTAINED.

{¶10} “II. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY

SUPPRESSING EVIDENCE SUA SPONTE ON AN ISSUE NOT RAISED BY THE

PARTIES OR COURT.” Tuscarawas County, Case No. 2016 AP 03 0017 4

I.

{¶11} Appellant argues that the court erred in finding that the seizure of appellee’s

cell phone violated the Fourth Amendment.

{¶12} There are three methods of challenging on appeal a trial court's ruling on a

motion to suppress. First, an appellant may challenge the trial court's findings of fact. In

reviewing a challenge of this nature, an appellate court must determine whether said

findings of fact are against the manifest weight of the evidence. State v. Fanning,

,

(1982); State v. Klein,

,

(1991); State v. Guysinger,

,

(1993). Second, an

appellant may argue the trial court failed to apply the appropriate test or correct law to the

findings of fact. In that case, an appellate court can reverse the trial court for committing

an error of law. State v. Williams,

,

(1993). Finally,

assuming the trial court's findings of fact are not against the manifest weight of the

evidence and it has properly identified the law to be applied, an appellant may argue the

trial court has incorrectly decided the ultimate or final issue raised in the motion to

suppress. When reviewing this type of claim, an appellate court must independently

determine, without deference to the trial court's conclusion, whether the facts meet the

appropriate legal standard in any given case. State v. Curry,

,

(1994); State v. Claytor,

,

(1993);

As the United States Supreme Court held in Ornelas v. U.S.,

,

,

(1996), “... as a general matter

determinations of reasonable suspicion and probable cause should be reviewed de novo

on appeal.” Tuscarawas County, Case No. 2016 AP 03 0017 5

{¶13} A seizure of personal property is ordinarily per se unreasonable within the

meaning of the Fourth Amendment unless it is accomplished pursuant to a judicial warrant

issued upon probable cause and particularly describing the items to be seized. United

States v. Place,

,

,

(1983).

However, where law enforcement authorities have probable cause to believe that a

container holds contraband or evidence of a crime, but have not secured a warrant, the

Fourth Amendment permits seizure of the property, pending issuance of a warrant to

examine its contents, if the exigencies of the circumstances demand it or some other

recognized exception to the warrant requirement is present.

Different interests are

implicated by a seizure than by a search, as a seizure implicates only the person’s

possessory interests, while a search affects the person’s privacy interests. Segura v.

United States,

,

,

(1984). Because the

nature of a seizure is generally less intrusive than a search, the United States Supreme

Court has frequently approved a warrantless seizure of property on the basis of probable

cause, for the time necessary to secure a warrant.

{¶14} Although the Ohio Supreme Court has declined to define a cell phone as a

closed container, once the cell phone is in police custody, the State has satisfied its

immediate interest in collecting and preserving evidence and can take preventive steps

to ensure that the information found on the phone is neither lost nor erased. State v.

Smith,

,

,

(2009). But

because a person has a high expectation of privacy in a cell phone's contents, police

must obtain a warrant before intruding into the phone's contents.

Tuscarawas County, Case No. 2016 AP 03 0017 6

{¶15} The evidence presented at the hearing demonstrated that the detective had

probable cause to believe appellee’s cell phone contained evidence of the armed robbery

of Marty’s Coaches Corner on October 28, 2014. Charla Hamilton told Det. Nelson of a

photo of the front page of the local newspaper talking about the robbery which was sent

or received from that phone. Messages from Devonte Sherman asking her about “moves”

had come from appellee’s phone, as well as Sherman’s message that he needed to stay

clear of New Philadelphia until things cooled down. Further, Hamilton had some, but not

all, of the messages on her phone to corroborate her statements to police. Sherman had

been identified by both employees from a photo lineup as the person who robbed the

store. While talking to appellee, Det. Nelson confirmed that Sherman had used appellee’s

phone.

{¶16} However, the trial court erred in finding that the exigencies which supported

the seizure of the phone were created by Det. Nelson by his failure to secure a warrant

to seize the phone, and could not be relied on to support the warrantless seizure of the

phone. The officer testified that prior to locating appellee, he did not have information he

needed to get a warrant to seize the phone. He testified that needed information such as

the phone number, the pin number, and the description of the device being sought. All

he knew was that appellee had a phone which may or may not be in his possession, and

police would not know where to execute a warrant for the phone. Further, the court erred

in finding that the warrantless seizure was not demanded by the exigencies of the

situation. Appellee knew from the interview that police suspected his phone had been

used by Sherman to relay information concerning a crime. Det. Nelson testified that he

therefore had reason to believe that the minute appellee walked out the door, the phone Tuscarawas County, Case No. 2016 AP 03 0017 7

would be destroyed or thrown in the river, or all the information on it would be deleted.

The seizure of the cell phone from appellee at the police interview did not violate the

Fourth Amendment.

{¶17} The first assignment of error is sustained.

II.

{¶18} Appellant argues that the court erred in finding the ten-day delay in

obtaining a warrant to be unreasonable, as the court raised the issue sua sponte without

notice to appellant. Appellant argues in the alternative that the court erred in finding the

delay unreasonable based on the evidence presented at the hearing.

{¶19} Although appellee’s motion did not raise the issue of the delay in seeking a

warrant, we agree with appellant that the evidence presented at the hearing did not

support the court’s finding that the delay was unreasonable.

{¶20} A seizure based on probable cause is unconstitutional if police act with

unreasonable delay in securing a warrant. United States v. Martin,

(2d

Cir. 1998). However, in Martin, the United States Court of Appeals for the Second Circuit

found that an eleven-day delay in securing a warrant for a package seized without a

warrant was not unreasonable. The court relied on several factors in finding the delay

was not constitutionally infirm. The time period in question included two weekends and

Christmas.

Martin had assumed the risk that a third party involved in the transaction

concerning the package would reveal information to the authorities, and thus his

expectation of privacy in the package was weakened.

Similarly, a seizure is

necessarily less intrusive where the owner has relinquished control of the property to a

third party.

Finally, the case was not one where seizure of property would effectively Tuscarawas County, Case No. 2016 AP 03 0017 8

restrain the liberty interests of the person from whom the property was seized, as is the

case where officers seize a traveler's luggage and thereby cause disruption of his travel

plans.

{¶21} In the instant case, although the officer testified that he was in no hurry to

secure a warrant because the phone was secured in the evidence locker, and he perhaps

could have obtained a warrant in a more timely fashion, the delay was not

unconstitutional. The time period in question, from November 3, 2014 to November 13,

2014, included a weekend and the Veterans Day holiday. Appellee’s expectation of

privacy in the phone was weakened by the fact that he shared his phone with Sherman.

Further, this is not a case where the seizure of the phone restrained appellee’s liberty

interests, such as the seizure of luggage from a traveler, or deprived him of his residence

as in the seizure of a home or apartment.

{¶22} The second assignment of error is sustained. Tuscarawas County, Case No. 2016 AP 03 0017 9

{¶23} The judgment of the Tuscarawas County Common Pleas Court is reversed.

This cause is remanded to that court for further proceedings according to law, consistent

with this opinion. Costs are assessed to appellee.

By: Baldwin, J.

Gwin, P.J. and

Delaney, J. concur.