State v. Shoults

[Cite as State v. Shoults, 2019-Ohio-1400.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

FAYETTE COUNTY

STATE OF OHIO, : CASE NO. CA2018-05-009

Appellee, : OPINION
4/15/2019
:
- vs -
:

CLAYTON J. SHOULTS, :

Appellant. :

CRIMINAL APPEAL FROM FAYETTE COUNTY COURT OF COMMON PLEAS
Case No. CRI 20170334

Jess C. Weade, Fayette County Prosecuting Attorney, John M. Scott, Jr., Fayette County
Courthouse, 110 East Court Street, Washington Court House, OH 43160, for appellee

James T. Boulger, 45 West Fourth Street, Chillicothe, OH 45601, for appellant

M. POWELL, J.

{¶ 1} Appellant, Clayton Shoults, appeals a decision of the Fayette County Court of

Common Pleas denying his motion to suppress.

{¶ 2} On October 17, 2017, law enforcement officers executed a search warrant at

a single-family home located at 1117 Yeoman Street in Washington Court House, Ohio (the

"target residence"). The search warrant was predicated upon an affidavit filed the day
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before by Anthony Cable, a special agent of the Ohio Department of Taxation, Criminal

Investigation Division.

{¶ 3} The Ohio Department of Taxation ("ODT") had discovered that several

fraudulent income tax returns had been filed for inmates incarcerated in Ohio Correctional

Institutions. In his affidavit, Agent Cable stated that ten such false tax returns were

electronically filed in April 2017, and that they were associated with three separate Internet

Protocol ("IP") addresses. Five of those false tax returns were associated with one

particular IP address. This IP address was issued by Charter Communication to an

individual identified as suspect 1. Associated with each electronically filed tax return was a

bank account to which each tax refund was deposited. Four bank accounts were used for

the ten false tax returns. The four bank accounts were linked to four "Netspend" cards. In

April and May 2017, all four bank accounts were accessed electronically from the IP

address issued by Charter Communication to suspect 1.

{¶ 4} The affidavit stated that because suspect 1 had moved several times between

May and October 2017, ODT was unable to determine a permanent residence for suspect

1. Consequently, ODT obtained a warrant from the Franklin County Common Pleas Court

to place a GPS tracking device on the vehicle driven by suspect 1. The GPS tracking device

showed that between September 6, 2017, and October 16, 2017, the vehicle driven by

suspect 1 was parked numerous times at or in the vicinity of the target residence in

Washington Court House.

{¶ 5} The affidavit stated that suspect 1 had an extensive criminal record, including

crimes of violence and narcotics trafficking. The affidavit further stated that another

individual, suspect 2, was also believed to be residing in the target residence and that he,

too, had an extensive criminal record, including kidnapping, weapons charges, and other

crimes of violence.

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{¶ 6} The affidavit stated that Agent Cable had been a special agent with ODT's

Criminal Investigation Division for 16 years and that he had conducted and participated in

investigations involving tax fraud and identity theft. Agent Cable averred that in his

experience, fraudulent filers and identity thieves use electronic devices, including

cellphones and computers, to access fraudulent accounts and claims, communicate with

one another, and find information on the internet in furtherance of their fraudulent activities,

and that electronic devices provide fraudulent filers and identity thieves with mobile access

and control over their illegal activity. The affidavit detailed the manner in which electronic

devices are used to commit tax fraud and identity theft crimes and store data to facilitate

such crimes.

{¶ 7} Based upon his training and experience and the facts described in the

affidavit, Agent Cable stated there was probable cause to believe that evidence of identity

theft, telecommunications fraud, fraudulent tax return filings, and participation in a criminal

gang would be found in the target residence and in electronic devices found therein.

{¶ 8} On October 16, 2017, a Washington Court House municipal judge issued a

search warrant for the target residence. The search warrant was executed the next day.

During the course of the search, ODT agents discovered two safes which contained

cocaine, marijuana, $1,340, and other items. The search further yielded appellant's birth

certificate, an ID card in appellant's name, two car titles in appellant's name, and an iPhone.

{¶ 9} Appellant was indicted on one count each of trafficking in cocaine, trafficking

in marijuana, cocaine possession, and marijuana possession. Appellant moved to suppress

the evidence, arguing that the affidavit contained insufficient facts to establish probable

cause to issue the search warrant. The trial court denied the motion to suppress. Appellant

subsequently pled no contest to one count of trafficking of cocaine and one count of

trafficking in marijuana. The trial court accepted his plea and sentenced him to an

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aggregate three-year prison term.

{¶ 10} Appellant now appeals, raising three assignments of error.

{¶ 11} Assignment of Error No. 1:

{¶ 12} THE TRIAL COURT ERRED AS A MATTER OF LAW IN FINDING THAT THE

AFFIDAVIT IN SUPPORT OF THE SEARCH WARRANT PROVIDED A SUBSTANTIAL

BASIS FOR CONCLUDING THAT THERE WAS PROBABLE CAUSE TO ISSUE A

WARRANT TO SEARCH THE RESIDENCE, CURTILAGE, OUTBUILDINGS, VEHICLES,

AND ANY PERSON OR PERSONS ON THE TARGET PREMISES.

{¶ 13} Appellant argues that the trial court erred in denying his motion to suppress

because the search warrant affidavit submitted by Agent Cable was insufficient to establish

probable cause. Specifically, appellant argues the affidavit was deficient because it did not

indicate (1) when the GPS tracking device was attached to the vehicle, (2) whether suspect

1 owned, leased, borrowed, or stole the vehicle, (3) whether suspect 1 was the driver or a

passenger in the vehicle when it was parked in the vicinity of the target residence, (4) when

or whether Agent Cable knew suspect 1 drove the vehicle, (5) how suspect 1 was

associated with the target residence besides the vehicle, and (6) whether suspect 1 was

ever observed in or around the target residence or the vehicle while it was parked in the

vicinity of the target residence.

{¶ 14} Appellate review of a ruling on a motion to suppress presents a mixed

question of law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8.

When considering a motion to suppress, the trial court, as the trier of fact, is in the best

position to weigh the evidence in order to resolve factual questions and evaluate witness

credibility. State v. Nelson, 12th Dist. Clermont No. CA2017-08-042, 2018-Ohio-2819, ¶

17. Thus, we are bound to accept the trial court's findings of fact if they are supported by

competent, credible evidence. Id. "An appellate court, however, independently reviews the

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trial court's legal conclusions based on those facts and determines, without deference to

the trial court's decision, whether as a matter of law, the facts satisfy the appropriate legal

standard." State v. Cochran, 12th Dist. Preble No. CA2006-10-023, 2007-Ohio-3353, ¶ 12.

{¶ 15} The Fourth Amendment to the United States Constitution provides that

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 place to be searched, and the
persons or things to be seized.

{¶ 16} In determining the sufficiency of probable cause in an affidavit submitted in

support of a search warrant, the duty of the judge or magistrate issuing the warrant is to

simply "make a practical, common-sense decision whether, given all the circumstances set

forth in the affidavit before him, including the 'veracity' and 'basis of knowledge' of persons

supplying hearsay information, there is a fair probability that contraband or evidence of a

crime will be found in a particular place." State v. George, 45 Ohio St.3d 325 (1989),

paragraph one of the syllabus; Nelson, 2018-Ohio-2819 at ¶ 18. The issuing judge or

magistrate is confined to the averments contained in the affidavit supporting the issuance

of the search warrant. State v. Moore, 12th Dist. Fayette No. CA2017-11-023, 2018-Ohio-

3122, ¶ 32.

{¶ 17} When reviewing the decision to issue a search warrant, neither a trial court

nor an appellate court will conduct a de novo determination as to whether the affidavit

provided sufficient probable cause. State v. Quinn, 12th Dist. Butler No. CA2011-06-116,

2012-Ohio-3123, ¶ 21. Instead, the duty of a reviewing court is limited to ensuring that the

issuing judge or magistrate had a substantial basis for concluding that probable cause

existed based on the information contained in the four corners of the affidavit filed in support

of the warrant. State v. Jones, 143 Ohio St.3d 266, 2015-Ohio-483, ¶ 13; Nelson at ¶ 19.

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Furthermore, in conducting any after-the-fact scrutiny of an affidavit submitted in support of

a search warrant, reviewing courts must accord great deference to the issuing judge's

determination of probable cause, and doubtful or marginal cases in this area should be

resolved in favor of upholding the warrant. Jones at ¶ 14. This court should therefore "not

invalidate [warrants] by interpreting [affidavits] in a hypertechnical, rather than

commonsense, manner." Illinois v. Gates, 462 U.S. 213, 236, 103 S.Ct. 2317 (1983).

{¶ 18} Upon reviewing Agent Cable's affidavit, we find it provided the necessary

probable cause for the issuance of the search warrant. The affidavit provided that the

information submitted in the affidavit was based upon Agent Cable's "personal knowledge,

as well as information learned from other law enforcement agents, investigators, witnesses,

and documents." The affidavit identified the vehicle to which the GPS tracking device was

attached as "the vehicle driven by suspect 1," and stated that "the vehicle driven by suspect

1 [was] parked at or around the target residence numerous times since September 6, 2017."

The affidavit connected the electronic filing of false tax returns to a specific IP address

whose "subscriber is suspect 1." The affidavit further stated that four bank accounts were

used for the false tax returns, the bank accounts were linked to Netspend cards, and all four

bank accounts were accessed electronically from suspect 1's IP address. Thus, the affidavit

connected suspect 1 to the target residence, the electronic filing of false tax returns, and

the tax refund proceeds through the IP address, the bank accounts, and the Netspend

cards. The electronic filing of the false tax returns necessarily involved the use of electronic

devices, as did the use of the Netspend cards and the access to the bank accounts.

{¶ 19} For the foregoing reasons, and deferring to the issuing judge's determination

of probable cause, we find that the issuing judge had a substantial basis for concluding that

probable cause existed in support of issuing a search warrant for the target residence.

{¶ 20} Appellant's first assignment of error is overruled.

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{¶ 21} Assignment of Error No. 2:

{¶ 22} THE TRIAL COURT ERRED TO THE PREJUDICE OF THE DEFENDANT IN

FAILING TO FIND THAT THE "ALL PERSONS" PROVISION OF THE WARRANT FOR

THE SEARCH OF THE TARGET RESIDE[N]CE CONSTITUTED AN INVALID GEN[E]RAL

WARRANT AND IN FAILING TO CONCLUDE THAT THE SEARCH OF THE

DEFENDANT'S PERSON AND PERSONAL PROPERTY WAS A VIOLATION OF HIS

RIGHT TO BE FREE FROM UNREASONABLE SEARCHES UNDER THE FOURTH AND

FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND

ARTICLE 1, SECTION 14 OF THE OHIO CONSTITUTION.

{¶ 23} The search warrant contained a provision which allowed officers to search

"any person or persons at [the target residence], identities known or otherwise." The

provision was itself predicated upon paragraph 19 of the affidavit, which stated

Because several people may share target residence as a
residence, it is possible that the target residence will contain
electronic devices that are predominantly used, or perhaps
owned, by person[s] who are not suspected of a crime. If it is
nonetheless determined that it is possible that the things
described in this warrant could be found on any of those
electronic devices, the warrant applied for would permit the
seizure and review of those items as well.

{¶ 24} Appellant argues the trial court erred in denying his motion to suppress

because the warrant was an invalid "general warrant" that improperly allowed a search of

all electronic devices found in the target residence even if they were owned or used by a

person not suspected of being involved in the offenses under investigation. Appellant

further argues that the search warrant does not meet the criteria for an "all persons" warrant

pursuant to State v. Kinney, 83 Ohio St.3d 85 (1998).

{¶ 25} "A search warrant authorizing the search of 'all persons' on a particular

premises does not violate the Fourth Amendment requirement of particularity if the

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supporting affidavit shows probable cause that every individual on the subject premises will

be in possession of, at the time of the search, evidence of the kind sought in the warrant."

Kinney at syllabus. The Ohio Supreme Court noted the danger that an "innocent person

may be swept up in a dragnet and searched." Id. at 95. Probable cause is more likely to

exist when the search is for items easily concealed or transported and the search of all

persons will be conducted in a private residence Id. at 91.

{¶ 26} The supreme court adopted guidelines to assist a judge or magistrate in the

determination of probable cause within the context of an "all persons" warrant, including a

consideration of the size of the area to be searched; whether the premises are public or

private; the nature and importance of the suspected illegal activity; the number and behavior

of persons observed; the purpose of the search and the difficulty of a more specific

description of the persons to be searched; whether persons completely unconnected with

the suspected illegal activity have been observed at the premises; and the necessity for an

"all persons" search. Kinney, 83 Ohio St.3d at 95; State v. Hash, 9th Dist. Medina No.

10CA0008-M, 2011-Ohio-859, ¶ 10. In adopting these guidelines, the supreme court

emphasized that "we do not intend to make the process of determining the sufficiency of an

affidavit a hypertechnical one. When an 'all persons' warrant is requested, determination

of probable cause will still require practical, common-sense decisionmaking by

magistrates." Kinney at 95; Quinn, 2012-Ohio-3123 at ¶ 31.

{¶ 27} In addition to probable cause, the supreme court also mandated a particularity

requirement:

[A]n "all persons" clause may still be "carefully tailored to its
justifications" if probable cause to search exists against each
individual who fits within the class of persons described in the
warrant. The controlling inquiry is whether the requesting
authority has shown probable cause that every individual on the
subject premises will be in possession of, at the time of the
search, evidence of the kind sought in the warrant. If such

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probable cause is shown, an "all persons" provision does not
violate the particularity requirement of the Fourth Amendment.

Kinney at 91.

{¶ 28} We find that the affidavit presented probable cause for the judge to issue the

"all persons" warrant. The affidavit detailed the use of electronic devices in filing the false

income tax returns and accessing the income tax refunds. The affidavit implicated suspect

1 as involved with the fraudulent activity under investigation due to his connection to the IP

address that was used to facilitate the filing of the false tax returns. The affidavit detailed

Agent Cable's experience in investigating tax fraud and identity theft involving the use of

electronic devices and the manner in which such devices are used to commit and facilitate

tax fraud and identity theft. The affidavit further described the target residence as a single-

family residence, thus suggesting that persons present in the target residence may be

expected to be residents of the home or associates of the residents. These factors support

a finding of probable cause that "all persons" present in the target residence may be

associated with and possess relevant evidence of the tax fraud. See Quinn, 2012-Ohio-

3123.

{¶ 29} Significantly, the suspected illegal activity involved the use of electronic

devices. An IP address is a string of numbers associated with the internet connection of a

particular service provider and is akin to the street address of a person's internet service.

See State v. Duhamel, 8th Dist. Cuyahoga No. 102346, 2015-Ohio-3145. A computer,

tablet, or other electronic device accesses the internet by connecting to a modem. See

State v. Lowe, 2d Dist. Montgomery No. 26994, 2017-Ohio-851. Multiple devices can

connect to the modem and access the internet simultaneously. Id. Any connecting device

would use the modem's IP address as its public IP address to electronically file false tax

returns and access bank accounts.

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{¶ 30} Here, the IP address used to electronically file the false tax returns and access

the bank accounts was issued to suspect 1. However, this information does not identify

who was actually using an electronic device at the relevant time to commit tax fraud. Thus,

Agent Cable obtained a search warrant for the target residence based upon his belief

electronic devices at that address were used to commit tax fraud and identity theft. The

question for the issuing judge was whether a fair probability that an electronic device used

to commit the illegal activities would be found in the target residence. The specific 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. Id. at ¶ 19. When an "all persons" warrant is requested,

determination of probable cause still requires practical, common-sense decision making by

issuing judges who "ought to be permitted to make common-sense inferences supported

by other evidence in the affidavits." Kinney, 83 Ohio St.3d at 95-96. "When a magistrate

has determined that every person at a particular location is, upon the evidence, properly

suspected of wrongdoing or of holding important evidence, the same standard has been

applied." Id. at 92. "Thus, the danger of reaching innocent parties does not, in this regard,

render an 'all persons' provision in a warrant unreasonable." Id.

{¶ 31} For the foregoing reasons and based on the facts and circumstances

provided, we find the trial court did not err in finding that the search warrant was a valid "all

persons" warrant.

{¶ 32} Finally, there is no suggestion that the "all persons" nature of the search

warrant yielded any evidence that would not otherwise have been within the proper scope

of the warrant. Clearly, there was probable cause to search for electronic devices present

in the target residence and to search any areas where such devices may be stored or

concealed. The illicit drugs were not discovered while searching a person but while

searching safes within the target residence. Obviously, laptop computers, tablets,

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cellphones, hard drives, flash drives or other electronic devices could be stored in a safe.

See State v. Napier, 2d Dist. Montgomery No. 17326, 1999 Ohio App. LEXIS 1986, *6-7

(Apr. 16, 1999) (finding that even if invalid, a catch-all provision of a search warrant did not

invalidate the entire warrant, and upholding the seizure of drugs found in a gym bag in a

closet while searching for computer disks associated with the sale of illegal alcohol ); Casey,

2004-Ohio-5789 at ¶ 25-30.

{¶ 33} Appellant's second assignment of error is overruled.

{¶ 34} Assignment of Error No. 3:

{¶ 35} THE TRIAL COURT ERRED TO THE PREJUDICE OF THE DEFENDANT IN

FAILING TO FIND THAT THE WARRANT WAS INVALID FOR THE REASON THAT IT

DID NOT SATISFY THE PARTICULARITY OF THE FOURTH AMENDMENT OF THE

UNITED STATES CONSTITUTION IN THE DESCRIPTION OF THINGS TO BE SEIZED.

{¶ 36} Appellant generally argues that the search warrant was invalid because it was

essentially a "laundry list of colossal proportions" that allowed "the seizure of the property

of persons who are not suspected of crime," "a virtually limitless search of the contents of

all electronic devices of any person found at the residence," and "the potential opening of

libraries of personal information of persons not suspected of crimes base[d] on the mere

possibility of discovering something relevant to the investigation." In support of his

argument, appellant cites State v. Dalpiaz, 151 Ohio App.3d 257, 2002-Ohio-7346 (11th

Dist.); and State v. Casey, 7th Dist. Mahoning No. 03-MA-159, 2004-Ohio-5789. Both

decisions held that the respective search warrants for drugs were overbroad and were

essentially an improper laundry list or a fishing expedition for contraband.

{¶ 37} After a review of the record, we find that appellant did not specifically raise

this issue before the trial court in his motion to suppress and supplemental memorandum

to the motion to suppress. At most, the conclusory paragraph of appellant's supplemental

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memorandum simply asserted that the search warrant was an "all persons" warrant "which

is a further exacerbation of the violation of [appellant's] rights to be free from searches and

seizures under warrants not issued upon probable cause or containing sufficient

particularity describing the persons or things to be seized."

{¶ 38} It is "well-settled that issues not raised in the trial court may not be raised for

the first time on appeal." State v. Guzman-Martinez, 12th Dist. Warren No. CA2010-06-

059, 2011-Ohio-1310, ¶ 9. Therefore, because appellant did not specifically raise this issue

with the trial court, this matter is waived and we need not consider it for the first time on

appeal. State v. Vunda, 12th Dist. Butler Nos. CA2012-07-130 and CA2013-07-113, 2014-

Ohio-3449, ¶ 78; State v. Adkins, 12th Dist. Butler Nos. CA2014-02-036 and CA2014-06-

141, 2015-Ohio-1698.

{¶ 39} Appellant's third assignment of error is overruled.

{¶ 40} In light of all of the foregoing, we find that the trial court did not err in denying

appellant's motion to suppress.

{¶ 41} Judgment affirmed.

HENDRICKSON, P.J., and PIPER, J., concur.

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