Petition for Writ of Certiorari — Ohio, Petitioner v. Daniel Deuble
Supreme Court briefJun 21, 2021
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No. ______
In the
Supreme Court of the United States
__________________
STATE OF OHIO,
Petitioner,
v.
DANIEL DEUBLE,
Respondent.
__________________
On Petition for Writ of Certiorari to the
Court of Appeals to the State of Ohio,
Eighth Appellate District
__________________
PETITION FOR WRIT OF CERTIORARI
__________________
MICHAEL C. O’MALLEY
CUYAHOGA COUNTY PROSECUTOR
DANIEL T. VAN
Assistant Prosecuting Attorney
Counsel of Record
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113
(216) 443-7865
dvan@prosecutor.cuyahogacounty.us
Counsel for Petitioner State of Ohio
June 21, 2021
Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001
i
QUESTIONS PRESENTED
1. Whether probable cause existed under the Fourth
Amendment to the United States Constitution to
detain a person suspected of soliciting sexual activity
from a law enforcement officer posing as a minor
through a social media application where the person’s
identity is corroborated through the person’s actions.
Here the suspect agreed to meet the law enforcement
officer posing as a minor for sexual activity, and was
the only person observed at the agreed meeting location
using his cell phone as the law enforcement officer
posing as the minor sent communications to the
suspect through the social media application.
2. Whether a phone is searched for purposes of the
Fourth Amendment of the United States Constitution
where the phone’s content was not affirmatively
accessed by law enforcement officers?
ii
STATEMENT OF RELATED PROCEEDINGS
The directly related proceedings are as follows.
• In the Cuyahoga County Court of Common Pleas, a
decision was entered denying Respondent’s motion
to suppress evidence under the Fourth Amendment
of the United States Supreme Court on March 28,
2019 in State v. Deuble, Cuyahoga C.P. No.
CR-18-632279-A. Respondent’s plea of no contest
was entered on April 4, 2019. Respondent's sentence
was entered on May 29, 2019.
• In the Ohio Court of Appeals, Eighth District for
following judgments were entered:
• A decision reversing the judgment of the
Cuyahoga County Court of Common Pleas’
denial of the motion to suppress on August 6,
2020 in State v. Deuble, 8th Dist. Cuyahoga No.
108814.
• A decision denying Petitioner’s motion to
reconsider on September 22, 2020 in State v.
Deuble, 8th Dist. Cuyahoga No. 108814.
• In the Supreme Court of Ohio, a judgment was
entered denying the State of Ohio’s request for
discretionary review on January 22, 2021 in State v.
Deuble, S. Ct. No. 2020-1351.
iii
TABLE OF CONTENTS
QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . i
STATEMENT OF RELATED PROCEEDINGS . . . . ii
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . vi
PETITION FOR A WRIT OF CERTIORARI . . . . . . 1
OPINIONS BELOW. . . . . . . . . . . . . . . . . . . . . . . . . . 1
JURISDICTIONAL STATEMENT . . . . . . . . . . . . . . 1
RELEVANT CONSTITUTIONAL PROVISIONS
........................................... 2
STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . 3
A. The Indictment . . . . . . . . . . . . . . . . . . . . . . . . 3
B. The Suppression Hearing . . . . . . . . . . . . . . . . 4
C. The Trial Court’s Denial of Defendant’s
Motion to Suppress Evidence . . . . . . . . . . . . . 9
D. The Conviction and Appeal . . . . . . . . . . . . . . 11
REASONS FOR GRANTING THE WRIT. . . . . . . . 13
I.
The Petition for a Writ of Certiorari
Raises Important Constitutional Issues
That Recur In A Common Type of Police
Investigation As Online Child Enticement
Is Criminalized Across the Country. . . . . 14
iv
II.
The Decision of the Ohio Court of
Appeals, Cuyahoga County On Whether
There Was Cause to Detain Respondent
Is Clearly Erroneous . . . . . . . . . . . . . . . . 19
III.
The Decision of the Ohio Court of
Appeals, Eighth District With Respect to
Whether Respondent Had an Expectation
of Privacy in his Phone’s Notification
Screen Conflicts in Principle with a
Decision of the United States Court of
Appeals, Seventh Circuit. . . . . . . . . . . . . 23
IV.
This Case Serves as an Excellent Vehicle
to Decide the Constitutional Issues
Involved and to Distinguish the Court’s
Opinion in Riley v. California, 573 U.S.
373 (2014) . . . . . . . . . . . . . . . . . . . . . . . . . 26
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
APPENDIX
Appendix A Entry in The Supreme Court of Ohio
(January 22, 2021) . . . . . . . . . . . . App. 1
Appendix B Journal Entry in The Court Of
Common Pleas, Cuyahoga County,
Ohio
(March 28, 2019) . . . . . . . . . . . . . . App. 2
v
Appendix C Journal Entry and Opinion in the
Court of Appeals of Ohio, Eighth
Appellate District, County of
Cuyahoga
(August 6, 2020) . . . . . . . . . . . . . App. 16
Appendix D Journal Entry in the Court of Appeals
of Ohio, Eighth District
(September 22, 2020) . . . . . . . . . App. 35
vi
TABLE OF AUTHORITIES
CASES
Beck v. Ohio,
379 U.S. 89 (1964). . . . . . . . . . . . . . . . . . . . . . . . 21
Boyd v. United States,
116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Carroll v. United States,
267 U.S. 132 (1925). . . . . . . . . . . . . . . . . . . . . . . 20
Illinois v. Gates,
462 U.S. 213 (1983). . . . . . . . . . . . . . . . . 10, 20, 27
Katz v. United States,
389 U.S. 347 (1967). . . . . . . . . . . . . . . . . . . . . . . 27
Ohio v. Robinette,
519 U.S. 33 (1996). . . . . . . . . . . . . . . . . . . . . . . . 27
Riley v. California
573 U.S. 373 (2014). . . . . . . . . . . . . . . . . . . passim
State v. Deuble,
No. 108814, 2020 Ohio App. LEXIS 2863, 2020
WL 4532961 (Ohio Ct. App. Aug. 6, 2020). . . 1, 11
State v. Torres,
No. 86530, 2006 Ohio App. LEXIS 3641 (Ohio
Ct. App. July 20, 2006) . . . . . . . . . . . . . . . . . . . . 21
State v. Welch,
18 Ohio St. 3d 88 (Ohio 1985) . . . . . . . . . . . . . . 20
vii
Terry v. Ohio,
392 U.S. 1, 88 S. Ct. 1868,
20 L. Ed. 2d 889 (1968) . . . . . . . . . . . . . . . . . 20, 27
United States v. Brixen,
908 F.3d 276 (2018) . . . . . . . . . . 12, 13, 24, 25, 28
United States v. Conley,
342 F. Supp. 3d (D. Conn. 2018) . . . . . . . . . . . . 24
United States v. Mendenhall,
446 U.S. 544 (1980). . . . . . . . . . . . . . . . . . . . . . . 27
United States v. Ross,
456 U.S. 798 (1982). . . . . . . . . . . . . . . . . . . . . . . 20
United States v. Watson,
423 U.S. 411 (1976). . . . . . . . . . . . . . . . . . . . . . . 20
CONSTITUTIONAL PROVISIONS AND
STATUTES
U.S. Cost. Amend. IV. . . . . . . . . . . . . . . . . . . . . . . . . 2
U.S. Cost. Amend. XIV, §1. . . . . . . . . . . . . . . . . . . . . 2
18 U.S.C. § 2422 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
18 U.S.C. § 2423 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
28 U.S.C. § 1257(a). . . . . . . . . . . . . . . . . . . . . . . . . . 1
720 Ill. Comp. Stat. Ann. 5/11-6 . . . . . . . . . . . . . . . 18
Ala. Code § 13A-6-122 . . . . . . . . . . . . . . . . . . . . . . . 18
Alaska Stat. § 11.41.452 . . . . . . . . . . . . . . . . . . . . . 18
Ariz. Rev. Stat. § 13-3554 . . . . . . . . . . . . . . . . . . . . 18
viii
Ark. Code Ann. § 5-27-306 . . . . . . . . . . . . . . . . . . . . 18
Cal. Penal Code § 288.4 . . . . . . . . . . . . . . . . . . . . . . 18
Colo. Rev. Stat. § 18-3-306 . . . . . . . . . . . . . . . . . . . . 18
Conn. Gen. Stat. § 53a-90a . . . . . . . . . . . . . . . . . . . 18
D.C. Code § 22-3010 . . . . . . . . . . . . . . . . . . . . . . . . . 18
Del. Code Ann. tit. 11, § 1112A . . . . . . . . . . . . . . . . 18
Fla. Stat. Ann. § 847.0135 . . . . . . . . . . . . . . . . . . . . 18
Ga. Code Ann. § 16-12-100.2 . . . . . . . . . . . . . . . . . . 18
Haw. Rev. Stat. Ann. § 707-756. . . . . . . . . . . . . . . . 18
Idaho Code § 18-1509a, . . . . . . . . . . . . . . . . . . . . . . 18
Ind. Code Ann. § 35-42-4-6 . . . . . . . . . . . . . . . . . . . 18
Iowa Code § 710.10. . . . . . . . . . . . . . . . . . . . . . . . . . 18
Kan. Stat. Ann. § 21-5509 . . . . . . . . . . . . . . . . . . . . 18
Ky. Rev. Stat. § 510.155 . . . . . . . . . . . . . . . . . . . . . . 18
La. Rev. Stat. Ann. § 14:81.3 . . . . . . . . . . . . . . . . . . 18
Mass. Ann. Laws ch. 265, § 26C . . . . . . . . . . . . . . . 18
Md. Code Ann., Crim. Law § 3-324 . . . . . . . . . . . . . 18
Me. Rev. Stat. tit. 17-A, § 259-A . . . . . . . . . . . . . . . 18
Mich. Comp. Laws Serv. § 750.145d . . . . . . . . . . . . 18
Minn. Stat. Ann. § 609.352 . . . . . . . . . . . . . . . . . . . 18
Miss. Code Ann. § 97-5-33 . . . . . . . . . . . . . . . . . . . . 18
ix
Mo. Rev. Stat. § 566.151 . . . . . . . . . . . . . . . . . . . . . 18
Mont. Code Ann. § 45-5-625. . . . . . . . . . . . . . . . . . . 18
N.C. Gen. Stat. § 14-202.3 . . . . . . . . . . . . . . . . . . . . 18
N.D. Cent. Code § 12.1-20-05.1 . . . . . . . . . . . . . . . . 18
Neb. Rev. Stat. Ann § 28-833. . . . . . . . . . . . . . . . . . 18
Nev. Rev. Stat. Ann. § 201.560 . . . . . . . . . . . . . . . . 18
N.H. Rev. Stat. Ann. § 649-B:4 . . . . . . . . . . . . . . . . 18
N.J. Stat. § 2C:13-6 . . . . . . . . . . . . . . . . . . . . . . . . . 18
N.M. Stat. Ann. § 30-37-3.2 . . . . . . . . . . . . . . . . . . . 18
N.Y. Penal Law § 120.70 . . . . . . . . . . . . . . . . . . . . . 18
Ohio Rev. Code §2907.07(D)(2) . . . . . . . . . . . . . . 3, 15
Ohio Rev. Code §2907.31(A)(1) . . . . . . . . . . . . . . . . . 3
Ohio Rev. Code §2907.04(A) . . . . . . . . . . . . . . . . . . . 4
Ohio Rev. Code §2923.02 . . . . . . . . . . . . . . . . . . . . . . 4
Ohio Rev. Code §2923.24(A) . . . . . . . . . . . . . . . . . . . 4
Okla. Stat. tit. 21, § 1040.13a . . . . . . . . . . . . . . . . . 18
Or. Rev. Stat. Ann. § 163.432 . . . . . . . . . . . . . . . . . 18
Pa. Cons. Stat. Ann. § 6318 . . . . . . . . . . . . . . . . . . . 18
R.I. Gen. Laws Section 11-37-8.8 . . . . . . . . . . . . . . 18
S.C. Code Ann. § 16-15-342 . . . . . . . . . . . . . . . . . . . 18
Tenn. Code Ann. § 39-13-528. . . . . . . . . . . . . . . . . . 18
x
Tex. Penal Code § 33.021 . . . . . . . . . . . . . . . . . . . . . 18
Utah Code Ann. § 76-4-401 . . . . . . . . . . . . . . . . . . . 18
Va. Code Ann. § 18.2-374.3 . . . . . . . . . . . . . . . . . . . 18
Vt. Stat. Ann. tit. 13, § 2828 . . . . . . . . . . . . . . . . . . 18
W. Va. Code § 61-3C-14b . . . . . . . . . . . . . . . . . . . . . 18
Wash. Rev. Code Ann. § 9.68A.090 . . . . . . . . . . . . . 18
Wis. Stat. Ann. § 948.075 . . . . . . . . . . . . . . . . . . . . 18
Wyo. Stat. Ann. § 6-2-318 . . . . . . . . . . . . . . . . . . . . 18
OTHER AUTHORITIES
Merriam-Webster Dictionary,
https://www.merriam-webster.com/
dictionary/catfish (last visited June 18, 2021
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
National Center for Missing & Exploited Children,
https://www.missingkids.org/theissues/onlinee
nticement (last visited June 18, 2021). . . . . . . 18
The National Strategy for Child Exploitation
Prevention and Interdiction, A report to
C o n g r e s s ,
A u g u s t
2 0 1 0 ,
https://www.justice.gov/psc/docs/
natstrategyreport.pdf (last visited June 18,
2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
xi
Ohio Internet Crimes Against Children Task Force,
https://www.ohioicac.org (last visited June 18,
2021). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 17
The Online Enticement of Children: An In-Depth
Analysis of CyberTipline Reports,
https://www.missingkids.org/content/dam/
missingkids/pdfs/ncmec-analysis/Online
%20Enticement%20Pre-Travel.pdf (last visited
June 18, 2021). . . . . . . . . . . . . . . . . . . . . . . . 14, 15
1
PETITION FOR A WRIT OF CERTIORARI
Petitioner State of Ohio respectfully petitions for a
writ of certiorari to review the judgment of the Court of
Appeals of Ohio, Eighth District.
OPINIONS BELOW
The Supreme Court of Ohio’s order declining
jurisdiction is reproduced at Pet. App. 1. The judgment
of the Court of Common Pleas, Cuyahoga County, Ohio,
denying Respondent’s motion to suppress is reproduced
at Pet. App. 2. The opinion of the Ohio Court of
Appeals, Eighth District, State v. Deuble, No. 108814,
2020 Ohio App. LEXIS 2863, 2020 WL 4532961 (Ohio
Ct. App. Aug. 6, 2020), reversing the judgment of the
Court of Common Pleas, Cuyahoga County, Ohio is
reproduced at Pet. App. 16. The judgment of the Ohio
Court of Appeals, Eighth District, denying
reconsideration is reproduced at Pet. App. 35.
JURISDICTIONAL STATEMENT
The Ohio Court of Appeals, Eighth District reversed
the order denying Respondent’s motion to suppress.
Pet. App. 16. The Ohio Court of Appeals, Eighth
District denied a timely application for reconsideration
on September 22, 2020. Pet. App. 35.
The Supreme Court of Ohio denied a timely petition
for discretionary review on January 22, 2021. Pet. App.
1. On March 19, 2020, this Court entered a standing
order that extended the time to petition for a writ of
certiorari to June 21, 2021. This Court has jurisdiction
under 28 U.S.C. § 1257(a).
2
RELEVANT CONSTITUTIONAL PROVISIONS
The Fourth Amendment to the United States
Constitution provides:
The right of the people to be secure in their
persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be
violated, and no warrants shall issue, but upon
probable cause, supported by Oath or
affirmation, and particularly describing the
places to be searched, and the persons or things
to be seized.
U.S. Cost. Amend. IV.
The Fourth Amendment to the United States
Constitution is made applicable to the states through
the Fourteenth Amendment to the United States
Constitution which states in part:
All persons born or naturalized in the United
States and subject to the jurisdiction thereof, are
citizens of the United States and of the State
wherein they reside. No State shall make or
enforce any law which shall abridge the
privileges or immunities of citizens of the United
States; nor shall any State deprive any person of
life, liberty, or property, without due process of
law; nor deny to any person within its
jurisdiction the equal protection of laws.
U.S. Cost. Amend. XIV, §1.
3
STATEMENT OF THE CASE
A. The Indictment
An Ohio grand jury indicted Respondent in a four
count indictment with importuning, disseminating
matter harmful to juveniles, attempted unlawful sexual
conduct with a minor, and possession of criminal tools.
Pet. App. 3.
Ohio Rev. Code §2907.07(D)(2) the section of the
Ohio Revised Code defines the felony offense of
importuning and states:
No person shall solicit another by means of a
telecommunications devices […] to engage in
sexual activity with the offender when the
offender is eighteen years of age or older and […]
The other person is a law enforcement officer posing as
a person who is thirteen years of age or older but less
than sixteen years of age, the offender believes that the
other person is thirteen years of age or older but less
than sixteen years of age or is reckless in that regard,
and the offender is four or more years older than the
age the law enforcement officer assumes in posing as
the person who is thirteen years of age or older but less
than sixteen years of age.
Ohio Rev. Code §2907.31(A)(1) defines the felony
offense of disseminating matters harmful to juveniles
and states:
No person, with knowledge of its character or
content, shall recklessly do any of the following:
4
Directly sell, deliver, furnish, disseminate,
provide, exhibit, rent, or present to a juvenile, a
group of juveniles, a law enforcement officer
posing as a juvenile, or a group of law
enforcement officers posing as juveniles any
material or performance that is obscene or
harmful to juveniles[.]
The offense of attempted unlawful sexual conduct with
a minor, defined by Ohio Rev. Code §2923.02 and
2907.04(A) criminalizes the attempt by a person older
than eighteen years old to engage in sexual conduct
with a person older than thirteen years old but less
than sixteen years old. The offense of possession of
criminal tools, defined by Ohio Rev. Code §2923.24(A)
criminalizes the possession of an item with the purpose
to use it criminally. All offenses charged were felonies.
B. The Suppression Hearing
Respondent moved to suppress evidence which the
trial court denied. Pet. App 4. Specifically, Respondent
sought to suppress from evidence at trial all of the
evidence, including his statement and the contents of
his cell phone, gathered by investigators. Pet. App. 6.
Respondent asserted that he was arrested without
probable cause and that all of the evidence gathered
then should be excluded under his Fourth Amendment
right against unreasonable seizure. Id.
The Court of Common Pleas, Cuyahoga County,
Ohio found these facts after hearing testimony at the
suppression hearing:
An undercover officer with the Ohio Internet
Crimes Against Children Task Force (“ICAC”) was
5
impersonating a 15-year old named “Bella Jane” on a
social media application known as Whisper. Pet. App.
4. Whisper is a social media app that is an anonymous
messaging board where users can post anything and
other users can respond to those posts. Id. The
undercover officer posted a profile picture showing a
girl on a pier from behind and the comment “bored!!!!!!”
Id. The conversation was not directed at any person in
particular but was made visible to users in the same
geographical area, here Northeast Ohio. Id.
Respondent, under the user name EY, initiated a
chat with “Bella Jane” by responding to her initial post
with the message “Like hung white guys.” Id.
According to Respondent’s profile, which was visible to
“Bella Jane”, he was 18-20 years old and from Summit
County, Ohio (which is next to the south of Cuyahoga
County, Ohio). Id. “Bella Jane” replied to Respondent
saying, “LOL what.”, to which Respondent crudely
asked whether “Bella Jane” was partial to wellendowed Caucasian men. Id. As the conversation
continued, the undercover officer represented “Bella
Jane” as being 15 years old, through the message, “I
mean I’m 15 I’ve never seen one before.” Pet. App. 5.
Respondent continued the chat by sending more than
one picture of a turgid phallus and proposed to meet
“Bella Jane” for sexual conduct. Id. Respondent later
changed his profile age to 21-25 years old. Id.
The Ohio Court of Appeals judgment would expand
on the details of this conversation by explaining that
Respondent sent “Bella Jane” a message that read: “I’d
like to stretch your tight little virgin pussy wide,” and
sent “Bella Jane” two photographs of his erect penis,
6
one next to a Rubik’s cube and another with a Post-It
note on his penis with the name Bella. Pet. App. 19.
The next morning Respondent asked “Bella Jane” if she
was still, “okay with me coming over, us making out,
me eating your pussy out, sucking my cock, and then
losing your virginity.” Pet. App. 20.
Respondent arranged to meet “Bella Jane” later
that morning at Kurtz Park in Parma Heights, Ohio at
10:00 A.M. and Respondent said he would be driving a
green Honda. Pet. App. 5, 11. That morning, several
investigators conducted surveillance and Respondent
sent the following message to “Bella Jane” in response
to her asking if he was nearby, “I drove by and there
was a cop I’m not trying to get arrested.” Id. The
surveilling investigators had seen no person suspected
of being EY by then and that chat continued with
Respondent agreeing to return for the planned sexual
encounter. Id.
Respondent returned to Kurtz Park shortly before
11:00 a.m., was wearing a t-shirt and shorts and began
shooting basketball. The only other man at the park
was a man who appeared to be middle-aged who was
playing basketball at another basketball court. Pet.
App. 6.
The undercover officer, to help identify the person
he had been communicating with, continued to use the
Whisper app to communicate with EY. From the
undercover officer’s observations, time the undercover
officer would send a message to EY, Respondent would
go to his phone, which was in the grass near the
basketball court. Id. The undercover officer did not
observe the other man using a cell phone. Id.
7
Respondent appeared to be college-aged and was
seen using his phone at the same time the messages
were being sent by the undercover officer through the
Whisper app. Id. The undercover officer radioed
another officer to detain Respondent. Id. Petitioner
argued below that this initial detention was a lawful
investigatory stop.
Once Respondent was detained, officers collected his
phone from the basketball court and sent a “test
message” to verify that they had the right guy. Pet.
App. 9. The “test message” went through to
Respondent’s phone, confirming that he was the person
chatting with the undercover officer. Id. Respondent
was then un-handcuffed and taken into an airconditioned truck that had an interview room for
questioning. Respondent was immediately read his
Miranda warnings. The entire encounter between
being handcuffed and unhandcuffed lasted less than six
minutes. Pet. App. 9-10. Respondent conveyed he
understood his rights and admitted that he had come
to Kurtz Park to have sex with a 15-year-old girl. Pet.
App. 21.
Testimony during the suppression hearing supports
the contention that law enforcement officers did not
affirmatively access the phone’s contents to observe the
notification on Respondent’s cellular phone screen. As
an investigator testified:
[PROSECUTOR]: …in that video we saw you
and Investigator Rotili having a conversation
about Mr. Deuble’s phone. Dou you recall seeing
that?
8
[WITNESS]: Yes.
[PROSECUTOR]: Okay. And what were you
talking about the phone for?
[WITNESS]: As is common practice with these
investigations, we will send a final – when we
come across a device involved with the
investigation, we will send a final test or text
message to the device in an attempt to
determine if that’s the device associated with the
investigation.
[PROSECUTOR]: So if the undercover on
Whisper sends a message that says, test or text,
what are you looking for on the other phone?
[WITNESS]: We’re looking for the notification
screen to appear or some reference on that
screen to appear to indicate that’s the correct
device.
[PROSECUTOR]: And did that happen here in
this case?
[WITNESS]: It did.
[***]
[PROSECUTOR]: And I guess the question is,
why do you send a test or text message instead
of you just using his fingerprint and getting into
that phone?
[WITNESS]: Well, again, we didn’t know. At this
point we’re still trying to determine if this
9
individual is involved in this investigation.
That’s just something that we’ve always done.
[PROSECUTOR]: But you’re not getting into the
content of the phone in order to see the
notification message?
[WITNESS]: No.
(Record Tr. 84-85).
C. The Trial Court’s Denial of Defendant’s
Motion to Suppress Evidence
The Court of Common Pleas, Cuyahoga County,
Ohio rejected the initial detention of Respondent as an
investigatory stop but found sufficient probable cause
for the detention. The court explained:
When [Respondent] was approached on the
basketball court Rotilli had dozens of messages
over Whisper from a person purporting to be a
white male around 18-25 years old. The
messages included pictures of a slender white
man, a description that fit [Respondent]. The
person agreed to meet Bella at Kurtz Park on
Friday morning. The person texted Bella “I’m at
the park” at a time when only two people could
be seen by the officers at the park, and only
[Respondent] was using his cell phone.
Moreover, he was observed using that phone at
the same time Bella was sending and receiving
texts.
It is true, as argued by [Respondent], that Rotilli
and the other investigators had no reason to
10
know whether anything said by EY in the chat
was true. For example, EY said he would be in a
green Honda and [Respondent] did not arrive in
a green Honda. He also said his name is Gabe,
and that proved incorrect. Nevertheless,
someone persisted in dozens of texts over two
days in persuading Bella to meet for sex and,
when the time set for the assignation arrived,
only two people could have been the other party
to the chat, and of those two only [Respondent]
was using his phone at the same time EY and
Bella were sending and getting messages. Under
those circumstances it would be ludicrous for the
police to ignore [Respondent].
This case bears some resemblance to situations
where police receive anonymous tips that a
crime is being committed. Typically, an
anonymous tip by itself will not support a
finding of probable cause; instead, the totality of
circumstances, including the tip, must be
examined to determine whether probable cause
exists. Illinois v. Gates, 462 U.S. 213, 238 (1983).
In essence, Rotilli was tipped that a young adult
man was going to Kurtz Park that Friday
morning to meet an underage girl for sex. The
tip was corroborated by circumstances when
[Respondent] showed up at around the
appointed time and was seen using his phone at
the same time the unknown suspect was
communicating with the girl over a cell phone
app.
Pet. App. 12-13.
11
D. The Conviction and Appeal
Respondent later pled no contest to all four counts
of the indictment. Pet. App. 18. On appeal to the Ohio
Court of Appeals, Eighth District, Respondent raised a
single assignment of error and argued that the trial
court erred in denying the motion to suppress because
the arresting officer lacked probable cause to carry out
the warrantless arrest.
The Ohio Court of Appeals, Eighth District in State
v. Deuble, No. 108814, 2020 Ohio App. LEXIS 2863,
2020 WL 4532961 (Ohio Ct. App. Aug. 6, 2020)
reversed with a dissenting opinion. The majority found
that probable cause did not exist until Respondent’s
phone had been “searched.” In doing so, the majority
rejected the totality of the circumstances and
reasonable conclusion that Respondent was EY, and
found that Respondent had an expectation of privacy in
his phone notification screen, which was described as
a part of the phone’s content. Pet. App. 24, 30, 32-33.
More specifically the court found probable cause
lacking because the description that Respondent
provided through his online persona was too vague and
because Respondent did not arrive in a green Honda
like he said he would. Pet. App. 30.
The dissent found no issue with the vague
description that Respondent provided of himself and
found the existence of probable cause through facts
glossed over by the majority:
Although the officers did not have a detailed
description of Deuble’s physical appearance,
they knew he was a young, thin, white male.
12
There were only two white males at the park at
the time EY indicated that he was there to meet
“bella_jane.” The officers sent several text
messages to EY and watched to see which of the
two white males would respond in order to
correctly identify the perpetrator. Officer Rotili
testified that Deuble picked up his phone every
time Rotili sent him a message under the guise
of “bella_jane,” and Rotili received a response to
his text messages as soon as Deuble put his
phone back down. After repeating this test
several times, Rotili concluded: “That’s when I
knew that [he] was going to be our person.” (Tr.
138.)
Pet. App. 34.
Finding no probable cause to place Respondent in
handcuffs, the appellate court’s holding that
Respondent had an expectation of privacy in his
phone’s notification screen was based on a conclusory
application of this Court’s decision in Riley v.
California, 573 U.S. 373 (2014). Petitioner filed a
motion for reconsideration and argued in part that
contrary to the opinion of the Ohio Court of Appeals,
Eighth District, the United States Court of Appeals,
Seventh Circuit found no such expectation of privacy in
a phone notification screen in United States v. Brixen,
908 F.3d 276 (2018), even under Riley. The motion for
reconsideration was denied. The same issues raised in
the motion for reconsideration were raised in the
Petitioner’s request to the Ohio Supreme Court for
discretionary review. The Ohio Supreme Court denied
the timely request for review. Pet. App. 1.
13
REASONS FOR GRANTING THE WRIT
For four reasons, the Court should grant the
petition for writ of certiorari to review the Ohio Court
of Appeals, Eighth District in this case. First, the
constitutional issues involved here implicate a common
type of police investigation as jurisdictions across the
nation criminalize the online solicitation of minors for
sexual activity. Second, the opinion of the Ohio Court
of Appeals, Eighth District that Respondent was
unlawfully detained without sufficient cause is clearly
erroneous. Third, the Ohio Court of Appeals, Eighth
District found that probable cause only existed after an
illegal search of Respondent’s cell phone. The reference
here is now to the forensic examination of Respondent’s
cell phone but the observation of the “test message.”
Thus, the court found that Respondent had an
expectation of privacy in his cell phone’s notification
screen. This holding conflicts in principle with the
United States Court of Appeals, Seventh Circuit’s
decision in United States v. Brixen, 908 F.3d 276 (2018)
which considered whether there was an expectation of
privacy in a phone’s notification screen in light of Riley
v. California, 573 U.S. 373, 403 (2014), there was no
expectation of privacy. Thus, this case serves as a good
opportunity to consider whether the Court’s holding in
Riley requires a search warrant to observe a phone’s
notification screen. Fourth, this case provides a good
vehicle for the Court to consider the issues raised as
Respondent raised the constitutional issues through his
motion to suppress. The decision of the trial court and
opinion of the Ohio Court of Appeals, Eighth District
rested mainly on federal constitutional grounds and
application of decisions from this Court.
14
I.
The Petition for a Writ of Certiorari
Raises Important Constitutional Issues
That Recur In A Common Type of Police
Investigation As Online Child
Enticement Is Criminalized Across the
Country.
The petition for a writ of certiorari raises
substantial constitutional questions, under the Fourth
Amendment of the United States Constitution, that
importantly impact a common investigative technique
of the Ohio Internet Crimes Against Children (“ICAC”)
Task Force and other investigative agencies. The issue
involves the circumstances in which police may detain
a person suspected of soliciting a minor over the
internet for sexual activity. A majority of the Ohio
Court of Appeals, Eighth District finds that probable
cause was lacking because the description Respondent
provided of himself was vague and because Respondent
did not arrive in the type of car he said he was driving.
This logic relies on suspected online predators giving
accurate information about themselves and ignores the
concept of “catfishing”, which Merriam-Webster defines
as, “to deceive (someone) by creating a false personal
profile online.” Merriam-Webster Dictionary,
https://www.merriam-webster.com/dictionary/catfish
(last visited June 18, 2021). It is not uncommon for
persons to assume false personas on the internet. For
instance, the National Center for Missing & Exploited
Children in a 2017 report found 20% of offenders
pretended to be younger. The Online Enticement of
Children: An In-Depth Analysis of CyberTipline
Reports, https://www.missingkids.org/content/dam/
missingkids/pdfs/ncmec-analysis/Online
15
%20Enticement%20Pre-Travel.pdf (last visited June
18, 2021).
In determining probable cause, Petitioner focuses on
the charged offense of importuning under Ohio Rev.
Code §2907.07(D)(2). The question here is whether
there was probable cause to believe that Respondent
was the person who communicated with the law
enforcement officer posing as a fifteen-year-old girl.
The facts prove that law enforcement had cause to
detain Respondent. Respondent, a 21-year-old man
awaited “Bella Jane” who Respondent believed was a
15-year-old girl. Earlier Respondent had sent “Bella
Jane” pictures of his penis, told “Bella Jane” that he
was 18 years old, asked, “Bella Jane” if she liked “white
men with big dicks,” and engaged in communications
with “Bella Jane”, and revealed that he wanted to
engage in sexual activity with “Bella Jane” in no
uncertain terms. Respondent provided “Bella Jane” a
time and place to meet him. Unbeknownst to
Respondent, he was not communicating with a 15-yearold girl but an undercover investigator of the ICAC.
Investigators observed two white males at Kurtz Park.
But only the younger male, Respondent, was checking
his cellular phone as “Bella Jane” was sending
communications to EY. Respondent was detained and
his identity was confirmed beyond a reasonable doubt
when a final message was sent to the EY account and
a notification appeared on Respondent’s cell phone.
Respondent was handcuffed and escorted to a police
vehicle where he was advised of his Miranda rights.
Respondent consented to have his cell phone search
and admitted that he had come to Kurtz Park to have
16
sex with a 15-year-old girl. Respondent pled no contest
to the indictment and on appeal the Ohio Court of
Appeals, Eighth District suppressed all evidence
against Respondent as the court found that there was
no probable cause to arrest Respondent because
Respondent provided only a general description of
himself and because there was no sign of the car
Respondent said he would be driving. Pet. App. 30. The
court also determined Respondent’s phone was illegally
searched when a notification appeared on Respondent’s
phone. Pet. App. 31. Thus, the decision below
implicates two substantial questions under the Fourth
Amendment of the United States Constitution:
(1) whether there was cause to detain Respondent; and
(2) whether Respondent had a reasonable expectation
of privacy in his cell phone’s notification screen. The
lawfulness of the arrest is important because
Respondent’s confession and a forensic search of his
cell phone stemmed from these events.
The effect of this case will be significant. The Ohio
ICAC is a federally funded initiative. It consists of law
enforcement authorities across Ohio whose mission
includes the identification, arrest, and prosecution of
individuals who use the internet to lure minor into
illicit sexual relationships. Ohio Internet Crimes
Against Children Task Force, https://www.ohioicac.org
( last visited June 18, 2021). The Ohio ICAC is also
part of the Internet Crimes Against Children Task
Force Program, a nationwide network of 61 coordinated
task forces, that engage in the investigation and
prosecutions of persons involved in child abuse and
exploitation involving the internet. Internet Crimes
Aga i nst Chi l dren T a s k F orce P rog ra m ,
17
https://www.icactaskforce.org/Pages/Home.aspx (last
visited June 18, 2021). A 2010 report to Congress
highlights in part the dangers of online child
enticement, including how online predators manipulate
and groom children until they agree to meet for sex.
The National Strategy for Child Exploitation
Prevention and Interdiction, A report to Congress,
August 2010, https://www.justice.gov/psc/docs/
natstrategyreport.pdf (last visited June 18, 2010). The
National Center for Missing & Exploited Children
reported a 97.5% increase in online enticement reports.
National Center for Missing & Exploited Children,
https://www.missingkids.org/theissues/onlineenticem
ent (last visited June 18, 2021).
The type of investigation involved highlight common
investigative techniques in catching predators who use
the internet to solicit minors for sexual activity. The
decision below, left alone, frustrates future
investigations on the local level and cannot be
construed as an opinion to be isolated to the territorial
jurisdiction of the Ohio Court of Appeals, Eighth
District because it has implications on Ohio ICAC
investigations across Ohio. More importantly this case
has nationwide impact because the Ohio offense of
importuning is much like federal and state statutes
that criminalize the online solicitation, enticement or
luring of minors or persons believed to be minors for
sexual activity. It is not uncommon for law enforcement
officers to pose as minors to investigate online child
enticement. These statutes require only a belief that
the person is a minor, and some statutory provisions
make it no defense that the “minor” was a law
enforcement officer. See, e.g., 18 U.S.C. §§ 2422 &
18
2423, Ala. Code § 13A-6-122, Alaska Stat. § 11.41.452,
Ariz. Rev. Stat. § 13-3554, Ark. Code Ann. § 5-27-306,
Cal. Penal Code § 288.4, Colo. Rev. Stat. § 18-3-306,
Conn. Gen. Stat. § 53a-90a, Del. Code Ann. tit. 11,
§ 1112A, D.C. Code § 22-3010, Fla. Stat. Ann.
§ 847.0135, Ga. Code Ann. § 16-12-100.2, Haw. Rev.
Stat. Ann. § 707-756, Idaho Code § 18-1509a, 720 Ill.
Comp. Stat. Ann. 5/11-6, Ind. Code Ann. § 35-42-4-6,
Iowa Code § 710.10, Kan. Stat. Ann. § 21-5509, Ky.
Rev. Stat. § 510.155, La. Rev. Stat. Ann. § 14:81.3, Me.
Rev. Stat. tit. 17-A, § 259-A, Md. Code Ann., Crim. Law
§ 3-324, Mass. Ann. Laws ch. 265, § 26C, Mich. Comp.
Laws Serv. § 750.145d, Minn. Stat. Ann. § 609.352,
Miss. Code Ann. § 97-5-33, Mo. Rev. Stat. § 566.151,
Mont. Code Ann. § 45-5-625, Neb. Rev. Stat. Ann § 28833, Nev. Rev. Stat. Ann. § 201.560, N.H. Rev. Stat.
Ann. § 649-B:4, N.J. Stat. § 2C:13-6, N.M. Stat. Ann.
§ 30-37-3.2, N.Y. Penal Law § 120.70 N.C. Gen. Stat.
§ 14-202.3, N.D. Cent. Code § 12.1-20-05.1, Okla. Stat.
tit. 21, § 1040.13a, Or. Rev. Stat. Ann. § 163.432, 18 Pa.
Cons. Stat. Ann. § 6318, R.I. Gen. Laws Section 11-378.8, S.C. Code Ann. § 16-15-342, Tenn. Code Ann. § 3913-528, Tex. Penal Code § 33.021, Utah Code Ann. § 764-401, Vt. Stat. Ann. tit. 13, § 2828, Va. Code Ann.
§ 18.2-374.3, Wash. Rev. Code Ann. § 9.68A.090, W. Va.
Code § 61-3C-14b, Wis. Stat. Ann. § 948.075, Wyo. Stat.
Ann. § 6-2-318.
Thus, whether probable cause existed to detain
Respondent would have broad nationwide impact due
to its applicability to criminal investigations and
prosecutions across the country. Left alone, the opinion
below creates an unnecessary burden to establish
probable cause, particularly because like the
19
Respondent, suspects can provide generic or inaccurate
information about themselves to avoid detection.
Others may provide false information, such as their
age, to help exploit their would be victim. Imagine if
Respondent represented himself to be a 15-year-old
boy. This false piece of information should not prevent
investigators from detaining an older appearing subject
who is reasonably believed to be the suspect.
Here, investigators reasonably determined that
Respondent was the person who agreed to meet “Bella
Jane” for sexual activity. Simply put, cause existed to
detain Respondent because he was the only person at
the park seen using his phone every time law
enforcement sent a message through the social media
application. The investigative technique used by law
enforcement of sending a “test message” did not violate
any expectation of privacy. The writ of certiorari should
be granted to address these important issues with
nationwide impact.
II.
The Decision of the Ohio Court of
Appeals, Cuyahoga County On Whether
There Was Cause to Detain Respondent
Is Clearly Erroneous
Law enforcement had probable cause to arrest
Respondent for arranging to meet a law enforcement
officer posing as a minor for sexual activity through a
social media app. Probable cause existed because
Respondent was at the meeting location and was the
only person who checked his cell phone when messages
were sent through the social media app. Under the
totality of the circumstances, the facts provided more
than sufficient cause to place Respondent in handcuffs.
20
Petitioner’s position below was that law
enforcement properly conducted an investigatory stop
of Respondent under Terry v. Ohio, 392 U.S. 1, 88 S.
Ct. 1868, 20 L. Ed. 2d 889 (1968).
The trial court found that when Respondent was
first handcuffed, he was arrested. In any event, the
trial court found that probable cause existed. Contrary
to the trial court’s finding, the Ohio Court of Appeals,
Eighth District found that probable cause did not exist
to arrest Respondent. Petitioner’s position is the same
as it was in the courts below as there was cause detain
Respondent under any circumstance.
A warrantless arrest is permitted under the Fourth
Amendment of the United States Constitution if it is
supported by probable cause and is authorized if there
is “reasonable cause” to believe that the individual is
guilty of a felony. Carroll v. United States, 267 U.S.
132, 156 (1925), United States v. Watson, 423 U.S. 411
(1976) Determining probable cause requires “the
assessment of probabilities in particular factual
contexts.” Illinois v. Gates, 462 U.S. 213 (1982). The
existence of probable cause is based on objective facts
that would support the issuance of a warrant by a
magistrate, not on the subjective good-faith belief of the
officers involved. See United States v. Ross, 456 U.S.
798 (1982), State v. Welch, 18 Ohio St. 3d 88 (Ohio
1985).
“The test for establishing probable cause to arrest
without a warrant is whether the facts and
circumstances within an officer’s knowledge were
sufficient to warrant a prudent individual in believing
that the defendant had committed or was committing
21
an offense.” State v. Torres, No. 86530, 2006 Ohio App.
LEXIS 3641 (Ohio Ct. App. July 20, 2006), ¶18 citing
Beck v. Ohio, 379 U.S. 89, 91 (1964).
As the trial court determined:
[Probable cause] was met here.
When [Respondent] was approached on the
basketball court Rotilli had dozens of messages
over Whisper from a person purporting to be a
white male around 18-25 years old. The
messages included pictures of a slender white
man, a description that fit [Respondent]. The
person agreed to meet Bella at Kurtz Park on
Friday morning. The person texted Bella “I’m at
the park” at a time when only two people could
be seen by the officers at the park, and only
[Respondent] was using his cell phone.
Moreover, he was observed using that phone at
the same time Bella was sending and receiving
texts.
It is true, as argued by [Respondent], that Rotilli
and the other investigators had no reason to
know whether anything said by EY in the chat
was true. For example, EY said he would be in a
green Honda and [Respondent] did not arrive in
a green Honda. He also said his name is Gabe,
and that proved incorrect. Nevertheless,
someone persisted in dozens of texts over two
days in persuading Bella to meet for sex and,
when the time set for the assignation arrived,
only two people could have been the other party
to the chat, and of those two only [Respondent]
22
was using his phone at the same time EY and
Bella were sending and getting messages. Under
those circumstances it would be ludicrous for the
police to ignore [Respondent].
Pet. App. 12-13.
All these circumstances observed by the officers are
enough to warrant a prudent individual that
Respondent was the person who sent “Bella Jane”
messages and who was expecting to meet a fifteenyear-old girl for sexual intercourse. Based on these
facts taken together, a prudent officer would conclude
that out of the only two individuals in the park, the one
whose phone activity precisely matched up to the
suspect’s responses was in fact the suspect. These facts
altogether provide more than just reasonable suspicion
of criminal activity. The circumstances here provided
officers a reasonable belief that Respondent was guilty
of criminal activity, which is adequate to establish
probable cause. Again, the criminal activity here is
criminalized in Ohio and across the country. The Ohio
Court of Appeals, Eighth District’s reasoning for
finding that probable cause was lacking places
impractical restrictions upon law enforcement efforts
and will frustrate future investigations of predators
who illegally use the internet to entice children.
Under the totality of the circumstances, law
enforcement had cause to detain Respondent. The
decision of the Ohio Court of Appeals, Eighth District
was clearly erroneous. If not summarily reversed, the
writ of certiorari should be granted.
23
III.
The Decision of the Ohio Court of
Appeals, Eighth District With
Respect to Whether Respondent Had
an Expectation of Privacy in his
Phone’s Notification Screen Conflicts
in Principle with a Decision of the
United States Court of Appeals,
Seventh Circuit.
The Ohio Court of Appeals, Eighth District
determined that police searched Respondent’s phone
after they handcuffed him. Pet. App. 17. The court in
its legal analysis again described Respondent’s phone
being searched before Respondent being led to the airconditioned interview room. Pet. App. 27. The court
held that Respondent had a privacy interest in his cell
phone and that there was no probable cause for police
to search Respondent’s cell phone when police sent the
test message. This conclusion relied on federal
constitutional grounds. Pet. App. 31.
First, the notification screen did not establish
justification to detain Respondent. As discussed,
probable cause already existed to detain Respondent
well before investigators viewed the test
communication. If anything, this piece of information
solidified any belief that Respondent was the person
who agreed to meet “Bella Jane” for sexual activity.
Second, the Ohio Court of Appeals, Eighth District,
relying on this Court’s decision in Riley v. California,
573 U.S. 373 (2014) found that Respondent had a
privacy interest in his cellular phone, including his cell
phone’s notification screen. Pet. App. 31. It is true that
in general, cell phone owners have a heightened
24
privacy interest in the data stored on their devices. But
this privacy interest should not extend to aspects of a
cellular phone that are held open to the public.
Viewing a notification screen on a cellular phone is
analogous to calling a known telephone number to
determine whether there is an expectation of privacy in
a phone ring (an issue that also appears to be
unsettled). In the context of whether the ringing of a
cell phone constitutes a search, the Connecticut
District Court recognized that this Court had not yet
had the occasion to address whether a search occurs
when an officer calls a known telephone number and
observes the defendant’s phone ring. United States v.
Conley, 342 F. Supp. 3d 247, 264 (D. Conn. 2018). The
district court ultimately found it was not a search
under the Fourth Amendment. Id. at 265.
That said, just as a cellular phone owner does not
have an expectation of privacy in the ringtones of their
cell phone, a person cannot expect privacy in auditory
and visual notifications or vibrations that emit from
the cellular phone. The United States Court of Appeals,
Seventh Circuit agreed in United States v. Brixen, 908
F.3d 276 (2018). In Brixen, police posed as a fourteenyear-old female on the Whisper application and began
speaking to someone identifying themselves as a thirtyone-year-old male. This male sent pictures and
provided his Snapchat account. There was an
agreement to meet. The defendant arrived at the
location and police arrested him. Police seized the cell
phone incident to arrest. The police officer sent a
message to the Snapchat account and a notification
appeared on the defendant’s cell phone confirming his
25
identity. The Seventh Circuit held that just as someone
who fails to conceal a phone’s ring does not have a
reasonable expectation of privacy, someone who allows
notifications to appear in plain sight does not have a
reasonable expectation of privacy.
Brixen involves a similar investigation that is
involved in this case. While some facts are
distinguishable, an important issue in Brixen is
whether there was an expectation of privacy in the
notification on the cell phone. Here, when police
detained Respondent, he left his cell phone on the
ground by the basketball courts. Police could pick up
that cell phone under its caretaking function and
secure it while police were conducting their
investigatory stop. Testimony during the suppression
hearing establishes that police did not have to access
the phone’s contents in order to observe the notification
on Respondent’s cellular phone and the opinions
reproduced in the appendix describe the “test message”
sent by investigators as pinging a notification on
Respondent’s phone. Pet. App. 9, 25.
The Ohio Court of Appeals, Eighth District held
that Respondent had a reasonable expectation of
privacy in the contents of his cellular phone and that
police performed an unlawful search of the phone,
without fully considering whether Respondent had an
expectation of privacy in the notifications that
appeared on his phone or emitted vibrations from his
phone either in its opinion or through disposition of
Petitioner’s motion for reconsideration. Pet. App. 31.
This Court’s decision in Riley does not compel that
holding.
26
Petitioner’s position is that when police observed
Respondent’s notification screen was not part of the
protected contents of Respondent’s cellular phone. It is
important to observe that in the timeline of events,
that this occurred before Respondent was interviewed
and before his phone was forensically examined. As a
result, it only provided more information to detain
Respondent until the investigation was complete.
Grant of the writ of certiorari offers a valuable
opportunity to distinguish the privacy implications
here from those found by this Court in Riley v.
California, 573 U.S. 373 (2014).
IV.
This Case Serves as an Excellent Vehicle
to Decide the Constitutional Issues
Involved and to Distinguish the Court’s
Opinion in Riley v. California, 573 U.S.
373 (2014)
The Court should grant the petition for writ of
certiorari because this case provides a good vehicle to
consider the questions presented. To being with, the
question raised to the trial court was whether
Respondent’s motion to suppress should be granted. As
the basis of the motion, Respondent argued that he was
arrested without probable cause and that all of the
evidence gathered should be excluded based on the
violation of his Fourth Amendment right against
unreasonable seizure. Pet. App. 7. Furthermore, the
complete record below contains transcripts of the
suppression hearing and evidence submitted to the
court included body camera video.
Ohio Court of Appeals, Eighth District’s decision
rested mainly on federal constitutional grounds: the
27
Fourth Amendment of the United States Constitution
as made applicable to the states through the
Fourteenth Amendment. Pet. App. 15. Although, the
court referred to the Ohio Constitution as nearly
identical to the federal counterpart, the decision relied
mostly on federal precedent. See, e.g., Pet. App. 23-31
(citing Katz v. United States, 389 U.S. 347 (1967), Terry
v. Ohio, 392 U.S. 1 (1967), United States v.
Mendenhall, 446 U.S. 544 (1980), Illinois v. Gates, 462
U.S. 213 (1983), Riley v. California, 573 U.S. 373
(2014). The mention of the Ohio Constitution was
made only in passing and it can be discerned that the
opinion of the Ohio Court of Appeals rested mainly on
federal law, and the adequacy of independent state
grounds is not clear from the opinion, and so this Court
has jurisdiction to grant to writ of certiorari. See Ohio
v. Robinette, 519 U.S. 33, 37(1996).
Furthermore, this case will present the Court with
a valuable opportunity to distinguish this case from the
holding in Riley v. California, 573 U.S. 373 (2014). The
Ohio Court of Appeals, Eighth District cited Riley to
highlight a heightened privacy interest in the data
stored in a person’s devices. Pet. App. 31. It is true that
the Court held,
Modern cell phones are not just another
technological convenience. With all they contain
and all they may reveal, they hold for many
Americans “the privacies of life,” [Boyd v. United
States, 116 U.S. 616, 630, 6 S.Ct. 524, 29 L.Ed.
746 (1886)]. The fact that technology now allows
an individual to carry such information in his
hand does not make the information any less
28
worthy of the protection for which the Founders
fought. Our answer to the question of what
police must do before searching a cell phone
seized incident to an arrest is accordingly simple
– get a warrant.
Riley v. California, 573 U.S. 373, 403 (2014).
Riley shows this Court’s interest in constitutional
issues involving cell phone technology. That technology
continues to evolve, not only with hardware but with
changing features in cell phone operating systems and
applications made available through software
developers. Although, Riley highlights certain privacy
aspects of a person’s cell phone, Riley should not be
construed as an absolute requirement that viewing
data in open view and in plain sight requires a warrant
under the Fourth Amendment of the United States
Constitution. The Seventh Circuit in United States v.
Brixen, 908 F.3d 276 (2018), held in a case, involving a
near identical investigation, that a suspect did not have
an expectation of privacy in his suspect’s notification
screen. This again conflicts in principle with the
opinion of the Ohio Court of Appeals, Eighth District.
Resolving this conflict will give this Court an
opportunity to possibly draw a line over where a
person’s expectation of privacy in one’s cell phone
begins and when a warrant will be required. Given how
quickly cell phone technology software is changing, the
Court should hear the legal issues involved in this case
now rather than wait to see how other federal and state
courts will apply Riley to factually similar
circumstances. The writ of certiorari should be granted
as this case offers a good vehicle to examine the lower
29
courts application of federal constitutional provisions
and federal precedent.
CONCLUSION
For all these reasons, the petition for a writ of
certiorari should be granted.
Respectfully submitted,
MICHAEL C. O’MALLEY
CUYAHOGA COUNTY PROSECUTOR
DANIEL T. VAN
Assistant Prosecuting Attorney
Counsel of Record
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113
(216) 443-7865
dvan@prosecutor.cuyahogacounty.us
Counsel for Petitioner State of Ohio
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.