In a case in which a computer hard drive was initially left with a defendant’s mother, and then effectively abandoned, later found to contain child pornography for which the defendant was then indicted, the Ohio Supreme Court last Tuesday referenced a line of federal court cases dating back to the U.S. Supreme Court’s 1979 decision in Smith v. Maryland, and including United States v. Hershenow (1982), United States v. Chandler (1999) and United States v. Davis (2010), in holding that “The United States Supreme Court has long held that the Fourth Amendment prohibition against unreasonable searches does not apply to property that has been voluntarily abandoned, because society does not recognize an expectation of privacy in abandoned property as being objectively reasonable.”
Justice Terrence O’Donnell also referred to the Supreme Court of Ohio’s 1980 decision in State v. Freeman as a state precedent addressing searches of property that an owner has abandoned.
Defendant Dennis Gould, the Court summarized, having been indicted on two counts of rape, one count of gross sexual imposition, six counts of pandering sexually oriented material involving a minor, and five counts of illegal use of a minor in nudity-oriented material or performance; had moved to suppress the evidence obtained through the search of the hard drive, in trial court, asserting that police had illegally searched it in violation of the Fourth Amendment. The trial court denied the motion and he was subsequently found guilty & sentenced to two concurrent life sentences.
On appeal, the appellate court reversed the judgment of conviction and held that the trial court should have suppressed the evidence obtained from the hard drive as the product of an illegal search, stating that the subjective belief that the hard drive had been abandoned was unsupported by the objective facts and testimony in the case.
The state appealed that decision based on Herring v. United States (2009), 555 U.S. 135, 129 S.Ct. 695, 172 L.Ed.2d 496, and arguing that the exclusionary rule should apply only when a violation of the Fourth Amendment is the result of deliberate, reckless, or grossly negligent disregard of Fourth Amendment rights or when it involves circumstances of recurring or systemic negligence.
State v. Gould, Slip Opinion No. 2012-Ohio-71