State v. Gould, Slip Opinion No. 2012-Ohio-71. Case No. 2010-1315
Lucas App. No. L-08-1383, 2010-Ohio-3437

(Jan. 17, 2012) The Supreme Court of Ohio today held that a warrantless search of abandoned property does not violate the property owner’s Fourth Amendment right against unreasonable searches because the owner forfeits any expectation of privacy in the property after it has been abandoned. The Court held further that, to establish a reasonable expectation of privacy in property protected by the Fourth Amendment, a person must exhibit a subjective expectation of privacy that, viewed objectively, is reasonable under the circumstances.

Applying those holdings to a Lucas County criminal case, the Court reinstated the convictions and life prison sentence of Dennis Gould of Toledo on rape and child pornography charges.

The Court’s 7-0 decision reversed a ruling by the 6th District Court of Appeals that had vacated Gould’s convictions based on a finding that evidence obtained through a police search of a computer hard drive that Gould had left unattended at a former residence for several months after he left the city must be excluded because the search was unconstitutional.

In December 2005, after being laid off from his job, Gould moved in with his mother, Sharon Easterwood. At that time, he gave her a computer hard drive and told her to keep it and not ‘let anybody get their hands on it.’ Easterwood put the hard drive in an envelope and placed it in her nightstand. In May 2006, Gould moved into his own apartment, taking his belongings, but not the hard drive. About a month later, Gould’s twin brother, Douglas, told his mother that she should get the hard drive out of her house because it probably contained child pornography. As a result, she returned it to Gould.

Thereafter, in August 2006, after Gould’s older brother, Gregory had moved in with him, Gould stole Gregory’s truck and left Toledo without taking any of his belongings from the apartment, and he never advised anyone of his whereabouts. Sometime later, Gregory sold Gould’s belongings at a garage sale, but before the sale, Easterwood retrieved the hard drive because of her concerns about its contents.

On Sept. 6, 2006, Easterwood delivered the hard drive to Detective Regina Lester in the Special Victims Unit of the Toledo Police Department. According to Lester, Easterwood told her that it had been in her possession since December 2005. Easterwood further advised Lester that she believed that Gould had abandoned it and that she did not want it in her home because of her suspicions about its contents.

Lester did not attempt to access the data on the hard drive but booked it into the police property room and began efforts to locate Gould. In December 2006, after three months of attempts to contact Gould, Lester obtained permission from Easterwood for a police search of the hard drive.

A forensic examination conducted by Detective Jim Dec disclosed child pornography, including images of Gould engaging in sexual conduct with a seven-year-old child. Police identified the victim as the daughter of Gould’s former girlfriend. Federal marshals ultimately arrested Gould in Lansing, Michigan, and returned him to Toledo.

Based on the images discovered on the hard drive, a grand jury subsequently indicted Gould 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. Gould moved to suppress the evidence obtained through the search of the hard drive, asserting that police had illegally searched it in violation of the Fourth Amendment. The trial court denied the motion, finding that “Lester reasonably could have believed that [Gould] had abandoned any reasonable expectation of privacy in the hard-drive,” such that the search did not violate the Fourth Amendment.

The case proceeded to trial, and a jury returned verdicts finding Gould guilty on all counts. He was sentenced to two concurrent life sentences for the rape convictions, and received additional prison terms for the other offenses.

On review, the 6th District Court of Appeals 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 “Lester’s subjective belief that the hard drive had been abandoned was unsupported by the objective facts and Easterwood's testimony.” The 6th District therefore concluded that “the state failed to demonstrate by credible, competent evidence that the hard drive was abandoned.”

Writing for the Court in today’s decision, Justice Terrence O’Donnell 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). He also cited 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.

Justice O’Donnell wrote: “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.”

“ ... As in Hershenow, Freeman, Chandler, and Davis, here the evidence similarly weighs against a finding that Gould had an objectively reasonable expectation of privacy in the hard drive. He left the hard drive in his apartment with his other belongings when he stole his brother’s truck and left Toledo sometime in August 2006. From the time he left Toledo until his arrest by federal marshals sometime before June 3, 2007, Gould never inquired about the hard drive or attempted to assert control over it or its location, he concealed his whereabouts, and he never knew the hard drive had been removed from his apartment when his brother sold his other belongings.”

“And even if we consider the period of time from when Gould left Toledo until Detective Dec searched the hard drive in December 2006, the facts reveal that Gould had not made any inquiry about the hard drive or asserted control over it for almost four months. Hence, the police could have reasonably concluded Gould had abandoned it.”

“Thus, based on his conduct, Gould had no objectively reasonable expectation of privacy in the hard drive because when he relocated to Michigan he abandoned it by leaving it in his Toledo apartment without the ability to exert control over it. And, as the courts concluded in Chandler and Davis and as we held in Freeman, a warrantless search of abandoned property does not offend the Fourth Amendment. ... Accordingly, the judgment of the court of appeals ordering the exclusion of the evidence obtained from the hard drive is reversed, and Gould’s convictions and sentence are reinstated.”

Justice O’Donnell’s opinion was joined by Chief Justice Maureen O’Connor and Justices Evelyn Lundberg Stratton, Judith Ann Lanzinger, Robert R. Cupp and Yvette McGee Brown. Justice Paul E. Pfeifer concurred in judgment only.

Get V.I.S. app for free on 12/31

App Store Link

From the V.I.S. Developer Website

The idea for VIS came on a boring Thursday night while flying patrol over Southern California. At the time I was full time flight officer assigned to the Air Support Unit. We were flying over down town just after mid night when a grand theft auto just occurred. Dispatch said a Saturn Ion was just stolen from a small car dealer.I instantly thought to myself, Saturn Ion, that's a small suv, we're going to own this guy. We were on scene and overhead in less than thirty seconds. I saw a small car going eastbound, I checked it with my binoculars just in case. It wasn't an suv so I dismissed it. We orbited the area for about a minute. There were no other cars on the road. I started to get frustrated. I saw a patrol unit light up that same small car a half mile to the east. It was the stolen vehicle. A Saturn Ion is a small car, not a small suv. The guy gave up and the call was over.

I couldn't believe I completely messed up the call. I just didn't know what I was looking for. Then again, how many times do street cops not know exactly what a car looks like. Sometimes you might only have thirty seconds to educate yourself about the car to make the difference. As cops do, I thought of a worse case scenario. What if that was a suspect who just shot a cop. I would have completely blown the chance to catch the guy.

That's when the light bulb went off. “There should be a program that you could reference cars in seconds.” I figured someone had already come up with the idea but to my surprise I couldn't find one. I spent the next couple weeks looking into the legal issues, copyrights, and patents. Luckily I had been a business major my first two years of college so I had a little bit of an idea of where to start looking.

I talked to one of our contract pilots Don, about the idea. He was a retired Captain and a small business owner. He motivated me to go all out on the idea. I took his advice and haven't looked back. Two and a half years later VIS has 10 years, 9500 images, and available on numerous platforms.

Both U.S. Cop and Ohio Cop was scheduled to be FREE during the Christmas holiday in the Apple App Store. Today, Apple released holiday stats that reveled 5,229 apps were downloaded between the 24th-25th. Some may be wondering why the Android version was only reduced to $.99 and not free. With Android, once an app is set to free, it will forever be free - a price can never be set unless a new app is created, which would prevent current users from receiving updates.

Happy Holidays!

Great News....transferability to SD card and Field Notes features are finished. Be looking for an update tomorrow afternoon or Monday. SD card transferability is only for v2.2 or higher.

I frequently receive requests to add the charge for Bath Salts in Ohio. Answer: It's already in the app. Bath salts is banned as a Schedule I drug under R.C. section 3719.41(C)(41) and (C)(42), MDPV and Mephedrone, respectively. [law effective 10-17-2011]

Possession: charge Aggravated Possession of Drugs, R.C. section 2925.11(A) per sub-section (C)(1)(a) (schedule I less than bulk amount) - F5.

Trafficking: charge Aggravated Trafficking in Drugs, R.C. section 2925.03(A)(1) per sub-section (C)(1)(a) (schedule I less than bulk amount) - F4.

Bulk Amount: Since MDPV and Mephedrone is scheduled as a hallucinogen under R.C. section 3719.41(C) and not a depressant (D) or stimulant (E), the bulk amount of 2925.01(D)(1)(c) applies: "equal to or exceeding thirty grams or ten unit doses."

In November, aside from the usual legal updates and minor additions, two new features will be added to Android:

1. SD Card transfer (v2.2 or higher req'd)
2. Notepad feature

In December, there will be two minor improvements to iOS. ThePhoto Library for the Evidence Camera will be optimized to:

1. Cache the images so that they don't take so long to load
2. Select multiple images for email, deletion, etc.

After these changes have been implemented, it's full speed ahead to complete the Field Interview feature.

If you receive a "Download unsuccessful" message when attempting to download an app, try the following troubleshooting steps to resolve the issue:

• Restart your phone then try downloading the app again.
• Try cleaning Market cache like this:
  1. Settings -> Applications -> Manage Applications
  2. Open settings for Market app
  3. Tap [Force Stop]
  4. Tap [Clear data]

If you're still unsuccessful, let Google know. Some users have had to Factory Reset their phone to retrieve app updates as a result of the recent Android Market update.

U.S. Cop has reentered the Top 10 Downloads list for Android under the Books & Reference category. This is an incredible feat, especially since the forerunners consist of WolframAlpha, Dictionary.com, iKamasutra, and religious apps. While I have no intention of defeating religion, sex positions, the English language, or the brains behind Siri, I think the support for U.S. Cop has been incredible. The app will only get better with future updates. Thanks for everyones support!

Source: U.S. Cop Reenters Top 10 Android Book Apps List

I'm still working on have the apps transferable to SD card. I previously indicated this should be available in October but it looks like we may be going into November for this feature. Please note that Android v2.2 and higher will be required for this feature.

I have received an influx of questions pertaining to social media policies lately and I have to ask why? This issue has already been discussed almost 20-years ago when the courts ruled that public employees have fewer rights to free speech under the First Amendment than private citizens. This is because the government has become your direct employer and so the government has a direct interest in regulating the speech of its employees.

As a public employee, your right to speak, even on matters of public concern, is only protected when the value of the speech outweighs the interest of the police department to maintain efficiency, morale and discipline.

The courts have held that police officers should keep in mind the following three principles:

1. The First Amendment gives officers the right to freely discuss their thoughts on matters of public interest (not of personal concern);
2. Officers should not make comments that negatively impact the efficiency, effectiveness, or morale of their respective police department;
3. The merits of 1) should outweigh the merits of 2).

For example, an off-duty police officer would be free to express his or her thoughts on a local issue (taxes, etc) in the public comments portion of a town council meeting, as he or she would be protected under the First Amendment in this case. Such an officer could even publicly criticize his or her department, as long as the complaints touch on matters of public concern and are not personal issues the officer has with his or her agency. As examples, these can include criticisms on whether the department is properly staffed to adequately protect the public, or concerns on whether an investigation was properly handled.

In a different example, a police officer who chooses to bad-mouth his or her agency on issues that have nothing to do with matters of public interest (complaints against his or her agency for personal reasons, publicizing personality conflicts with co-workers or superiors, publicly making bad jokes about the chief’s lousy haircut, etc.) would not only conflict with the first principle outlined above but would conflict with the second as well. As a result, such an officer could be lawfully disciplined by his or her police agency.

A public employee should ask, “Did I speak as a citizen on a matter of public concern?” If the answer is yes, then your employer must justify treating you differently from any other member of the general public.

The rationale for limiting a Government employee's constitutional rights are: (1) government employees can have a greater propensity to adversely affect government operations because public employees often occupy trusted positions in society; and (2) government offices could not function if every important decision became a constitutional matter.

So I ask, what’s the difference between already decided free-speech issues, as it effects public employees, and social media postings? I can think of two:

1. Posting messages publicly to fellow employees could be construed as “concerted activity” by the NLRB; and
2. Social media has an immense effect on reaching those that wouldn’t ordinarily be ‘around the water cooler.’

But even these two differences don’t change the aforementioned court decisions regarding the free speech of public employees. Simply put, don't bitch about work publicly through social media. If you have a legitimate gripe or concern, file a grievance. If it's not grievable, you should evaluate whether your gripe is sufficient enough to be vocal about. Remember the rule of thumb, “Comply now, grieve later.”

For supportive case law and details of the “balancing test” and “matter of public concern” analysis, view the Case Law tab and scroll to Internal Investigations > Free Speech Issues.

We're planning to drop support of Android below 2.1 in upcoming weeks. There is a very small number of devices that still have Android versions below 2.1, and supporting those means less features for everyone else. For example we can't do proper animations (including transitions) because they're not available on pre-2.0 Android. Even when we started developing for Android, we couldn't find a device with Android 1.5 to buy for testing. Take a look at latest stats:

http://developer.android.com/resources/dashboard/platform-versions.html

As of September 5, 2011, less than 2.8% of all Android users use version 2.0 or lower...

There seems to be some people experiencing difficulty adding their shift to the work schedule. The main issue is that users are using the end date/time of their daily shift rather than the end date of the work schedule rotation (see “A” below). The end date of the schedule rotation needs to be indicated in this field. An end date is required or else the work schedule would continue forever and couldn’t be changeable when your work schedule is modified.

The next step is to indicate your shift rotation. If you work 4-on/4-off, simply place 4 in the Days on field and 4 in the Days off field.

If you work a 4-on/2-off, 4-on/3-off, 4-on/2-off, 4-on/2-off schedule, the input would appear as it does below...

Once complete, you will receive a confirmation screen to add the work-schedule event to each of the working day (below). Make sure the schedule is correct because if it’s not, you will have to be manually delete each day separately.

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Click here for link to article.

Ohio House Bill 64 (H.B. 64) became law. October 17, 2011, is the effective date of the new code sections impacted by H.B. 64. Once this law takes effect, Spice, also known as K2, will become a Schedule I controlled substance and the possession of or trafficking in Spice will be a violation of Ohio Revised Code.

In addition, if Spice is used in the offense of “corrupting another with drugs” under O.R.C. 2925.02 the penalty will be the same as if marijuana was used in the offense (F-4, or if in a school zone F-3). The chemical compounds related to K2 or Spice are listed under the Schedule I substances in O.R.C. 3719.41(C)(35) – (39).

In addition to criminalizing K2/Spice and conduct related to it, H.B. 64 added the six synthetic derivatives of cathinone that have been found in bath salts to the Schedule I controlled substances as a hallucinogen under O.R.C. 3719.41(C)(40) – (45).

H.B. 64 also added a definition of a "controlled substance analog," O.R.C. 3719.01(HH)(1) and treats controlled substance analogs the same as Schedule I controlled substances, O.R.C. 3719.013. Keep in mind this bill does not take effect until October 17, 2011, but at that time K2 Spice and bath salts will be controlled substances under law.

I have noted some of the upcoming law changes for your reference (and mine). All law changes effective 9/23/2011 unless otherwise indicated.

• 4510.111 - (New Law) DUS for failure to pay court fine or failure to pay child support (unclassified misdemeanor). Vehicle immobilization and forfeiture laws applicable to multiple violations of this section.


• 4507.02 - Requires license plates to be impounded for the below offenses. Previous to this amendment, the law indicated the license plates “may” be impounded. New language indicates the license plates “shall” be impounded.
  1. 4510.11 - Driving under suspension or in violation of license restriction.
  2. 4510.14 - Driving under OVI suspension.
  3. 4510.16 (B)(3) - Driving under financial responsibility law suspension or cancellation with a prior conviction within previous five years.
  4. 4510.21 - Failure to reinstate license suspension
  5. 4507.164 (F) - Permitting operation by unlicensed driver


• 4507.35 - Duty to display license or furnish satisfactory proof of license upon demand - Changed from M1 to Unclassified Misdemeanor.


• Multiple DUS ORC sections - A non-certified copy of the LEADS sheet may be admitted into evidence as prima-facie evidence that the license of the person was under suspension at the time of the alleged violation.


• 4510.16 (B) - (New Law) DUS for failure to pay civil judgment (unclassified misdemeanor).


• 4510.21 - DUS for failure to pay reinstatement fees is now an unclassified misdemeanor.


• 4510.41 (B)(1) - The arresting officer shall seize the vehicle that the person was operating at the time of, or that was involved in, the below listed offenses if the vehicle is registered in the arrested person’s name and its license plates:
  1. 4510.14 - Driving under OVI suspension
  2. 4511.203 - Wrongful entrustment of motor vehicle
  3. 4510.16 G2 - Driving under financial responsibility law suspension or cancellation (only if 3rd violation within 3 years)
  4. 4510.161 B - Municipal ordinance created for violating 4510.14 (OVI suspension) or 4510.16 (FRA suspension)


• 4511.53 - New sections for motorcycle permit violations:
  1. (C)(1) - Helmets required for all passengers
  2. (C)(2)(a) - No nighttime riding
  3. (C)(2)(b) - No passengers permitted
  4. (C)(2)(c) - No freeway riding


• 4511.69 (C) - Parking a vehicle in the opposite direction is now a violation of subsection (C)(1) and not just (C). Subsection (C)(2) was added to allow motorcycles to park at an angle opposite of direction of travel.


• 4511.203 - All initial wrongful entrustment charges are now an unclassified misdemeanor.


• Vehicle forfeiture is now applicable for 3rd violation in 3 years for DUS under R.C. sections 4510.11, 4510.14, and 4510.16.


• 4549.02, 4549.021 & 4549.03 - Courts may add restitution up to $500 for accident victims


• 2923.121 (Possession of firearm in liquor permit premises) - Most people didn’t pay attention to the current law. The current law allowed the consumption of BEER while possessing a firearm. The new law prohibits consuming both beer and liquor while possessing a firearm. This section effective 9/30/2011


• 2923.16 (Improperly handling firearms in a motor vehicle) - The subsections of this law were changed. New subsections: This section effective 9/30/2011
  1. (E)(1) Fail to notify officer
  2. (E)(2) Fail to notify other officers that approach vehicle (new)
  3. (E)(3) Fail to remain in the motor vehicle while stopped
  4. (E)(3) Fail to keep the person’s hands in plain sight at any time
  5. (E)(4) Having contact with firearm
  6. (E)(5) Disregard or fail to comply with any lawful order
  7. This amendment also removed the requirement that the gun be in a holster; or in a closed case, bag, box, or other container; or stored in a closed glove compartment or vehicle console or in a case that is locked. Subsection (E) of current law.
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