The Akron Legal News

Trial court properly granted search warrant on probable cause

ANNIE YAMSON
Special to the Legal News
Published: July 24, 2013

The 8th District Court of Appeals recently overruled an appeal from the Cuyahoga County Court of Common Pleas challenging the county court’s denial of a motion to suppress evidence found in a search of the defendant’s home.

Christopher Willard was arrested after a search of his residence resulted in the seizure of several electronic storage devices which contained images of child pornography.

In his appeal, Willard argued the court lacked enough probable cause to grant the warrant.

According to the facts and procedural history provided by the appellate court, Detective Brian Berardi of the Lakewood Police Department prepared an affidavit in support of a search warrant for Willard’s home on March 11, 2011.

Berardi said he had probable cause to believe evidence of criminal activity would be recovered from the computer storage devices inside Willard’s house based on information received from Willard’s brother, Charles.

In his affidavit, Berardi stated that, on Feb. 22, 2011, Charles arrived at the Lakewood Police Department with his three minor sons to file a police report against his brother.

Charles alleged that Willard had shown his three sons — ages 9, 13 and 16 — pornographic material while the boys were spending the night at their uncle’s home.

The police department obtained written statements from the boys that Willard had shown them pornographic images on his computer.

The boys claimed Willard called them over to the computer to show them images, websites and videos of pornography and instructed them not to tell their parents about what he was showing them.

Berardi ran a criminal records check on Willard which revealed a prior conviction for pandering obscenities involving a minor.

After careful review of the affidavit, a Cuyahoga County judge granted a search warrant which was executed on March 14, 2011.

Berardi seized, among other things, a number of computers and storage devices.

The evidence was examined by members of the Internet Crimes Against Children Task Force, who discovered child pornography files on the devices.

Willard was indicted on 21 counts charging him with obtaining, pandering and disseminating sexually oriented matter involving minors and disseminating matter harmful to a juvenile.

After an initial plea of not guilty, Willard filed a motion to suppress the evidence seized from his residence.

The trial court held a hearing on the motion and hear d testimony from Berardi and Detective Jason Howell of the Internet Crimes Against Children Task Force, after which it denied Willard’s motion.

Willard proceeded to plead no contest to all of the counts contained in the indictment and the trial court subsequently found him guilty of all 21 counts and sentenced him to five years of community control sanctions.

In a direct appeal to the Eighth District, Willard argued that the affidavit upon which the search warrant was based failed to establish probable cause because it contained stale information and lacked evidence of ongoing criminal activity.

The appellate court stated that, in reviewing the sufficiency of probably cause in an affidavit submitted in support of a search warrant, the duty of the reviewing court is to determine whether the issuing judge or magistrate had a substantial basis to conclude that probable cause existed.

“The issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, there is a fair probability that contraband or evidence of a crime will be found in a particular pace,” wrote Presiding Judge Frank Celebrezze on behalf of the Eighth District.

In challenging the probable cause supporting the warrant, Willard maintained the information contained in Berardi’s affidavit was so stale that it was unreasonable for the issuing judge to believe there was a fair probability that evidence of a crime would be found.

In support of his argument, Willard noted that almost eight months had elapsed between the date he allegedly showed the children the images and the date the warrant was issued.

“There is no arbitrary time limit that dictates when information becomes stale,” Celebrezze countered. “The test for staleness is whether the alleged facts justify the conclusion that contraband is probably on the person or premises to be searched at the time the warrant is issued.”

Celebrezze noted that if a substantial period of time has elapsed between the commission of the crime and the search, the affidavit is required to contain facts that would lead the judge to believe that the evidence is still on the premises.

“The likelihood that the evidence sought is still in place is a function not simply of watch and calendar, but of variables that do not punch a clock.”

Factors that courts must consider include the character of the crime, the criminal, the thing to be seized, as in whether it is perishable; the place to be searched and whether the affidavit relates to a single isolated incident or ongoing criminal activity.

Celebrezze determined that, with regard to the nature of the offenses present in Willard’s case, Ohio courts have recognized the continuing nature of sexual offense involving minors often justifies a finding of probable cause, even if an affidavit identifies conduct that occurred several months prior to the warrant’s issuance.

The appellate court recognized that eight months had passed between the time of the alleged crimes and the date the warrant was issued.

“Moreover, we note that although child pornography was ultimately discovered in appellant’s residence, Detective Berardi’s application for the search warrant was not based on allegations that (Willard) unlawfully possessed child pornography,” wrote Celebrezze.

Rather, the court found the affidavit was premised on allegations that he showed his minor nephews images of adults performing sexual acts.

Nevertheless, due to the digital nature of pornographic images stored on a computer and the fact that they are not perishable, coupled with Willard’s prior conviction, the appellate panel determined the trial court could have reasonably concluded there was a fair probability that evidence of a crime was present in the home.

“On review of the record in its entirety, we find no merit to appellant’s argument,” wrote Celebrezze.

He was joined by Judges Mary Kilbane and Tim McCormack in affirming the trial court’s decision to overrule Willard’s motion to suppress.

The case is cited State v. Willard, 2013-Ohio-3001.

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