[Cite as State v. Lowe, 2017-Ohio-851.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                   MONTGOMERY COUNTY

 STATE OF OHIO                                  :
                                                :
         Plaintiff-Appellee                     :   Appellate Case No. 26994
                                                :
 v.                                             :   Trial Court Case No. 14-CR-4182
                                                :
 CARL LOWE                                      :   (Criminal Appeal from
                                                :    Common Pleas Court)
         Defendant-Appellant                    :
                                                :

                                          ...........
                                          OPINION
                             Rendered on the 10th day of March, 2017.
                                          ...........

MATHIAS H. HECK, JR., by MEAGAN D. WOODALL, Atty. Reg. No. 0069386,
Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts
Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45402
       Attorney for Plaintiff-Appellee

V. GAYLE MILLER, Atty. Reg. No. 0091528, 724 Clifton Drive, Post Office Box No. 10124,
Dayton, Ohio 45402
      Attorney for Defendant-Appellant
                                  .............




HALL, P.J.
                                                                                        -2-




      {¶ 1} Carl Lowe appeals from his convictions stemming from the discovery of child

pornography on his computer. Finding no error, we affirm.

                                     I. Background

      {¶ 2} In May 2013, Special Agent Azia Mason of the Ohio Bureau of Criminal

Identification and Investigation (BCI) downloaded a file containing child pornography from

a device at IP address [****]. She discovered that this IP address was registered to Time

Warner Cable, and Time Warner was subpoenaed for information on who had been

assigned the IP address. Time Warner responded that the IP address was assigned to

Lowe at 205 Jackson Street, Apartment 4, in Dayton, Ohio. BCI Special Agent Stephen

Burke drafted an application for a search warrant of this address and a supporting

affidavit. He presented both documents to a Montgomery County Common Pleas Court

judge in February 2014, and the judge issued the requested warrant. BCI Special Agent

David Pauly, and others, executed the search warrant a couple of days later and found

child pornography on one of the computers in Lowe’s residence. While they were there,

Lowe arrived. Agent Pauly questioned Lowe but did not arrest him.

      {¶ 3} A year later, in February 2015, Lowe was indicted on ten counts of pandering

sexually oriented material involving a minor, in violation of R.C. 2907.322(A)(5); two

counts of pandering obscenity involving a minor, in violation of R.C. 2907.321(A)(2); and

one count of possession of criminal tools, in violation of R.C. 2923.24(A). Lowe filed a

motion to suppress and a motion for a Franks hearing, and the trial court held a hearing

on both motions. After the hearing, the trial court overruled the motion to suppress.
                                                                                         -3-




       {¶ 4} Lowe pleaded no contest to all the charges. He was designated a Tier II sex

offender and sentenced to community control for up to five years.1

       {¶ 5} Lowe appealed.

                                       II. Analysis

       {¶ 6} Lowe presents four assignments of error for our review. The first two argue

that the search warrant should not have been issued. The third assignment of error argues

that Agent Pauly purposely made false statements and misled Lowe into cooperating.

And the fourth assignment of error argues that Lowe was in custody, so Agent Pauly

should have advised him of his Miranda rights.

       {¶ 7} “Review of a trial court’s ruling on a motion to suppress is ‘a mixed question

of law and fact.’ State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71,

¶ 8. We accept the trial court’s factual findings as long as they are supported by

competent, credible evidence. However, we review de novo the application of the law to

these facts.” (Citations omitted.) State v. Belton, Ohio Sup. Slip Opinion No. 2016-Ohio-

1581, ¶ 100.

                                  A. The search warrant

       {¶ 8} “When a motion to suppress evidence seized pursuant to a search warrant

attacks the [judge]’s issuance of the warrant, the motion presents two potential issues.

One, and the critical issue, is whether the affidavit for the warrant provided a substantial

basis upon which the [judge] could make an independent determination that probable

cause existed for the search. Illinois v. Gates (1983), 462 U.S. 213, 103 S.Ct. 2317, 76



1According to the State, and the online docket at the Montgomery County Clerk of
Courts’s website, the community-control sanction was revoked in May 2016, and Lowe
was sentenced to four years in prison.
                                                                                        -4-




L.Ed.2d 527. * * * The other issue is whether the warrant process was compromised by a

false statement in the warrant affidavit. Franks v. Delaware (1978), 438 U.S. 154, 98 S.Ct.

2674, 57 L.Ed.2d 667.” State v. Myers, 143 Ohio App.3d 342, 347, 757 N.E.2d 1258 (2d

Dist.2001). The first assignment of error here argues that there was insufficient probable

cause to issue the search warrant because the information in the supporting affidavit was

stale. And the second assignment of error argues that the affidavit contains material

misrepresentations and omits material information.

      {¶ 9} On May 16, 2013, Agent Mason used a computer program provided by the

Internet Crimes Against Children Initiative to download a file containing child pornography

from a device at IP address [****]. The next day, May 17, she downloaded the same file

from a device at the same IP address. Agent Mason discovered that the IP address was

registered to Time Warner Cable, and on September 6, she asked the Madison County

Prosecutor’s Office to issue a subpoena to Time Warner Cable requesting the subscriber

information for the IP address. The information that Time Warner provided showed that

the IP address was assigned to Carl Lowe and that his address was 205 Jackson Street,

Apartment 4, in Dayton, Ohio.

      {¶ 10} At the hearing, Agent Mason testified that on January 24, 2014, she and

another agent visited 205 Jackson Street and performed a wireless audit of the area by

using a program that could detect wireless access points. The program could identify the

media access control (MAC) number of each access point and whether the access point

was secured (required a password to connect) or unsecured (allowed anyone to connect).

The audit showed that all the wireless access points in the area of Lowe’s apartment

complex were secure.
                                                                                          -5-




       {¶ 11} Agent Mason decided to move forward with a search warrant. Using

information that Mason provided, Agent Burke drafted an application for a search warrant

of Lowe’s apartment and drafted a supporting affidavit. Burke did not mention the wireless

audit in his affidavit. He presented these documents to a Montgomery County Common

Pleas Court judge on February 26, 2014, and the judge issued the requested search

warrant. Two days later, on February 28, BCI agents, along with Dayton police officers,

executed the warrant and searched Lowe’s apartment.

                                        1. Staleness

       {¶ 12} As a general matter, “[a]n affidavit in support of a search warrant must

present timely information and include facts so closely related to the time of issuing the

warrant as to justify a finding of probable cause at that time.” (Citations omitted.) State v.

Marler, 2d Dist. Clark No. 2007 CA 8, 2009-Ohio-2423, ¶ 37. But “[n]o arbitrary time limit

dictates when information becomes ‘stale.’ The test is whether the alleged facts justify the

conclusion that certain contraband remains on the premises to be searched. If a

substantial period of time has elapsed between the commission of the crime and the

search, the affidavit must contain facts that would lead the judge to believe that the

evidence or contraband are still on the premises before the judge may issue a warrant.”

(Citations omitted.) Id.

       {¶ 13} In cases of child pornography, we have held that the elapse of substantial

periods of time often do not render the information in a supporting affidavit stale. In State

v. Marler, approximately 18 months separated the police’s downloading of child

pornography from the defendant’s computer and the issuance of the search warrant. We

said that the information in the supporting affidavit was “not so stale as to render the
                                                                                         -6-




warrant defective.” Id. at ¶ 39. And in State v. Hale, 2d Dist. Montgomery No. 23582,

2010-Ohio-2389, we concluded that information in the affidavit was not stale even though

over a year had passed between the defendant’s purchasing of a subscription to a child

pornography website and the application for a search warrant. Hale at ¶ 40.

       {¶ 14} In both cases, we used essentially the same rationale. Quoting the Tenth

District, we noted that Ohio courts generally consider certain factors in determining

whether the information contained in an affidavit is stale, including “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.” State v. Ingold,

10th Dist. Franklin No. 07AP-648, 2008-Ohio-2303, ¶ 23. As the Tenth District has said,

“[i]n child pornography cases, these factors are so closely intertwined that consideration

of one necessarily involves consideration of the others.” Id. Although a substantial period

of time elapsed in Marler and Hale, we noted that “pornographic images may be stored

on computers or computer-related items for long periods of time.” Hale at ¶ 40. We cited

the Sixth Circuit’s decision in U.S. v. Frechette, 583 F.3d 374 (6th Cir.2009), in which the

court observed that “time limitations which typically apply to more fleeting crimes do not

fit child pornography, because child pornography ‘ “is generally carried out in the secrecy

of the home and over a long period.” ’ ” Hale at ¶ 28, quoting Frechette at 378. We also

noted that “[d]ownloaded materials also often remain on computers for a lengthy period

of time,” id., citing Frechette at 378, and that “digital images of pornography are easily

duplicated and have an infinite life span, being recoverable even after being deleted from

a computer’s hard drive,” id. at ¶ 29, citing Frechette at 379. “Simply put,” we said in

Marler, “the very nature of the offending images coupled with the medium by which the
                                                                                          -7-




images were sent support the trial court’s holding that there was a ‘fair probability’ that

evidence of criminal activity was present on [the defendant]’s computer when the warrant

was issued * * *. The enduring quality of child pornography is demonstrated by the fact

that such images can be stored indefinitely in the hard drive of an individual’s computer.”

Marler at ¶ 41. In light of such facts, we concluded, the issuing judge can reasonably

assume that the defendant retained child pornography on the same computer at the same

residence he lived in when police first discovered that he had it. Id.

         {¶ 15} In the present case, just over nine months elapsed between the

downloading of the child pornography in mid-May 2013, and the search-warrant

application at the end of February 2014.2 The rationale expressed in Marler and Hale

applies here. Collectors of child pornography tend to keep images for a long time, and

digital images can be kept forever and can even be recovered after being deleted. Also,

the place to be searched was a residence, where a collector of child pornography would

likely store images. Although a substantial period of time separated the file download and

the application for a search warrant, the trial court reasonably concluded that the

information in the affidavit was not stale.

         {¶ 16} The first assignment of error is overruled.

                              2. The information in the affidavit

         {¶ 17} Lowe argues, in the second assignment of error, that the supporting affidavit

contains material misrepresentations and omits material information. “Suppression * * *

[is] an appropriate remedy if the magistrate or judge in issuing a warrant was misled by

information in an affidavit that the affiant knew was false or would have known was false



2   Lowe mistakenly asserts in his brief that the time was “twelve months and nine days.”
                                                                                         -8-




except for his reckless disregard of the truth.” United States v. Leon, 468 U.S. 897, 923,

104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), citing Franks v. Delaware, 438 U.S. 154, 98 S.Ct.

2674, 57 L.Ed.2d 667 (1978).

       {¶ 18} Lowe argues that the affidavit misrepresents the facts by stating that the

pornographic file was downloaded from “the computer at IP address [****]” (emphasis

added). In fact, says Lowe, the IP address is the address of his cable modem. At the

hearing, Lowe’s expert testified that it is the modem that actually connects to the internet.

A device—be it a computer, tablet, or other such device—accesses the internet by

connecting to the modem.3 Indeed, multiple devices could connect to the modem and

access the internet simultaneously. Any connecting device would use the modem’s IP

address as its public (as opposed to private) IP address to communicate on the internet.

So if multiple devices access the internet through the modem at the same time, they all

would have the same public IP address—the address assigned to the modem.

       {¶ 19} For search-warrant purposes, though, we think that this is a distinction

without a difference. The question for the issuing judge was whether a fair probability

existed that child pornography, or evidence of the same, would be found in the apartment.

The specific type of device and who owned it was not nearly so important as the fact that

there was a device and it was likely in the residence. The important facts are that child

pornography was obtained from some device communicating on the internet using the IP

address assigned to Lowe at 205 Jackson Street, Apartment 4. And it is reasonable to

think that it was fairly probable that the device would be in the apartment.



3We recognize the difference between a modem and a router and that, technically, it may
be the router that provides some of the functions that we mention. But to keep things
simple, we refer only to the modem.
                                                                                           -9-




       {¶ 20} As to what the affidavit omits, Lowe says that it should have stated that a

wireless audit of the area was done and that his cable modem, specifically, the modem’s

MAC number, was not detected.

       {¶ 21} The information given by Time Warner in response to the subpoena

included “Additional Subscriber Info: CM: [****.]” Lowe’s expert testified that this was likely

the MAC number for Lowe’s cable modem. Neither Agent Burke nor Agent Mason knew

if this was true. There is no evidence that the MAC number of Lowe’s modem was

obtained from the modem itself. The trial court assumed, without finding, that the above

number was the MAC number of Lowe’s cable modem. The court then found that the

inability to detect the modem was immaterial. The court noted that a device could have

connected to the modem with a physical cable instead of wirelessly. The court also noted

that it was possible that the wireless feature of the modem was simply turned off at the

time that the wireless audits were conducted. We agree that the wireless audit and results

were immaterial. Assuming that Lowe’s modem had a wireless feature, it is a trivial matter

to turn that feature off.

       {¶ 22} Lowe also says that the affidavit does not state whether, at the time Agent

Mason downloaded the pornographic file, his cable modem was secured or unsecured.

The issue here is that if Lowe’s modem had a wireless feature and if it were not secured

with a password, anyone in the area could have connected to it. Which would mean that

the pornographic file could have been downloaded from a device located outside Lowe’s

apartment. There is no evidence that Lowe’s modem ever operated as an unsecured

wireless access point. Therefore we do not think that this information was material.

       {¶ 23} The second assignment of error is overruled.
                                                                                      - 10 -




                                       B. Custody

      {¶ 24} Skipping over the third assignment of error for the moment, Lowe argues in

the fourth assignment of error that when Detective Pauly questioned him he was in

custody for Miranda purposes, so Pauly should have advised him of his Miranda rights.

      {¶ 25} The Miranda warnings are required only if there is custodial interrogation of

the suspect. State v. Buckner, 2d Dist. Montgomery No. 21892, 2007-Ohio-4329, ¶ 25,

citing Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). “The

determination whether a custodial interrogation has occurred requires an inquiry into ‘how

a reasonable man in the suspect’s position would have understood his situation.’ * * * The

ultimate inquiry is simply whether there is a formal arrest or restraint on freedom of

movement of the degree associated with a formal arrest.” State v. Biros, 78 Ohio St.3d.

426, 678 N.E.2d 891 (1997), quoting California v. Beheler, 463 U.S. 1121, 1125, 103 S.

Ct. 3517, 77 L.Ed.2d 1275 (1983). The test is entirely objective—what the interrogator

and the defendant believed is irrelevant.

      {¶ 26} Here, Agent Pauly met Lowe outside the apartment complex. Pauly asked

Lowe if he would like to speak with him, and Lowe said that he would. Pauly and Lowe

got into Pauly’s truck, and Pauly told Lowe about the search. He told Lowe that he was

not under arrest and that he could leave at any time. Agent Pauly said that he just wanted

to talk to Lowe and that Lowe did not have to answer any questions. After about ten

minutes, Lowe said that he needed to use the bathroom. Lowe invited Pauly to go up to

his apartment together so that he could use the bathroom there and they could continue

talking. Agent Pauly patted Lowe down before he went into the bathroom and told Lowe

to keep the door open. After Lowe finished in the bathroom, he and Agent Pauly sat down
                                                                                        - 11 -




at the kitchen table and continued talking. Agent Jim Ciotti (Pauly’s supervisor) was there

too. The three men talked for 15 or 20 minutes before Pauly and Ciotti left—without

arresting Lowe.

      {¶ 27} Lowe says that during the questioning he was not free to leave. He cites

Agent Pauly escorting him to the bathroom, patting him down, and requiring him to keep

the bathroom door open. Lowe also points out that no neutral party was ever present

during the questioning. Lastly, Lowe says that when his cell phone rang while in Agent

Pauly’s truck, Pauly instructed Lowe to answer it, rather than giving him the choice.

      {¶ 28} The trial court concluded that a reasonable person in Lowe’s situation would

not have thought that he was in police custody during the questioning. We agree. Agent

Pauly told Lowe he was not under arrest and that he was free to leave. The questioning

occurred in Agent Pauly’s unmarked vehicle and in Lowe’s apartment. Lowe was not

handcuffed, his freedom to end the interview was not restricted, he was not physically or

verbally intimidated or threatened during the questioning, and the agents did not

overpower, trick, or coerce Lowe into making a statement. We agree with the trial court

that the fact that Lowe was a suspect and that no neutral parties were present do not

overcome the factors suggesting that he was not in custody. The same may be said of

Agent Pauly telling Lowe to answer the phone. We also agree with the trial court that the

pat-down before Lowe used the bathroom did not render him in custody for Miranda

purposes.

      {¶ 29} The fourth assignment of error is overruled.
                                                                                         - 12 -




                                 B. Improper inducement

       {¶ 30} In the third assignment of error Lowe argues that Agent Pauly purposely

misled him into cooperating, improperly inducing Lowe to forgo his right to counsel and

his right to remain silent.

       {¶ 31} Even if Miranda warnings are not required, a defendant’s statement may be

involuntary and subject to suppression. State v. Stringham, 2d Dist. Miami No. 2002-

CA99, 2003-Ohio-1100, ¶ 10. A statement is involuntary if, considering the totality of

circumstances, the defendant’s “will was overborne by the circumstances surrounding the

giving of his confession.” Id. at ¶ 11, citing Dickerson v. United States, 530 U.S. 428, 434,

120 S.Ct. 2326, 147 L.Ed.2d 405 (2000).

       {¶ 32} Here, Lowe says that during their conversation in Agent Pauly’s truck, Pauly

repeatedly made statements that led Lowe to believe that child pornography was not the

focus of the search. Lowe testified that Pauly told him that they were not interested in

what was on his computer but only whether children were being harmed. Lowe said that

these statements led him to believe that he would not be charged in connection with

having the child pornography.

       {¶ 33} The trial court gave two reasons for why Lowe was not intentionally misled:

              * * * First, there is no indication the agents inaccurately stated their

       primary concern because one’s primary concern—when comparing

       possession of child pornography to sexual conduct with a minor—would be

       the sexual conduct. If the agents’ desire was to trick Mr. Lowe into an

       admission regarding his possession of child pornographic material, then

       asking Mr. Lowe about sexual conduct with a minor—obviously a more
                                                                                       - 13 -




       serious matter—would be an odd, seemingly counterproductive approach.

       The court cannot conclude, under the totality of circumstances, that the

       agents’ “primary concern” remarks acted to overcome Mr. Lowe’s will, and,

       thus, prompted him to make the statements sought to be suppressed.

              The second reason Mr. Lowe’s argument fails is that the agents’

       “primary concern” conversation, assuming its purpose was to obtain a

       confession regarding stored images, did not work to obtain such a

       confession. Mr. Lowe—from the interview’s inception to its termination—

       was steadfast in his assertion he had no knowledge of child pornographic

       images on his computer. It cannot be concluded, given this, that the “primary

       concern” comments, or any other action taken by the agents, acted to

       overcome Mr. Lowe’s will. Mr. Lowe’s statements, in short, were voluntarily

       made, eliminating any basis upon which to suppress his statements.

Entry and Order Overruling Defendant’s Motions to Suppress Search Warrant Evidence

and Statements, 7 (Aug. 28, 2015). The trial court concluded Lowe made his statements

voluntarily. We agree.

       {¶ 34} The third assignment of error is overruled.

                                      III. Conclusion

       {¶ 35} We have overruled each of the four assignments of error presented.

Therefore the trial court’s judgment is affirmed.

                                      .............



FROELICH, J. and WELBAUM, J., concur.
                                                 - 14 -




Copies mailed to:
Mathias H. Heck
Meagan D. Woodall
V. Gayle Miller
Montgomery County Common Pleas Court
c/o Hon. Mary K. Huffman, Administrative Judge
