The warrant in this case guided the judgment of the searchers and did not include items that should not be seized or call for a general exploratory search of the devices; rather, it described the items to be seized as best as could be done under the circumstances of this case and the nature of the activity.

 

State v. Boyd

2022 – Ohio – 4725

Seventh District Appellate Court

Mahoning County, Ohio

September 30, 2022

Mr. Robert Boyd appeals his convictions for rape of a juvenile.  He was sentenced to twenty-four and a half years in prison.  Mr. Boyd was fifty years old when he was sentenced.  His release date is scheduled for November 16, 2043.

Investigation is Initiated

The affidavit for the Instagram warrant explained the investigation began when a father called the Boardman police to report finding an Instagram message on his 15-year-old son’s phone suggesting he regularly bought tobacco products from Mr. Robert Boyd. The father saw the following message from another juvenile to his son: “if you got 10 lets go Bobs and get a blizzy.” (The father explained this is what his son called a black andmild cigar.) When the father responded while pretending to be his son, he discovered Robert Boyd had been providing alcohol and tobacco to juveniles at his residence in Boardman and other locations.

Sexual Predator Solicits a Juvenile

On April 3, 2017, the school resource officer, a Boardman police sergeant, met with the juvenile, who is not one of the victims in this case. The juvenile admitted Mr. Boyd provided him with alcohol and tobacco and additionally reported that at the beginning of March 2017, Mr. Boyd asked via Instagram if he could give the juvenile a “blowjob” (and then asked the juvenile to delete the message after his request was rejected). It was noted that Mr. Boyd’s Instagram username (robertboyd5515) was Mr. Boyd’s first and last name combined with the street address at his house on West Boulevard. The police were provided with screenshots of conversations between this username and the reporting juvenile.

5515 West Boulevard was one of the houses that Boardman Police searched for evidence of serious child sexual assaults that Mr. Boyd was suspected.  Was there enough probable cause for the warrants?  The Seventh District Appellate Court determined that there was enough probable cause.

Juvenile Asks for a Tobacco Favor

On March 18, 2017, the juvenile asked Mr. Boyd for a “favor” by stating: “All I have is a dollar and I really need a black and mild” and “I’d ask for a pack but I don’t have enough to get u back.” Mr. Boyd arranged to meet the juvenile at a gas station, telling him to “jump in the mustang so no one sees me giving it to ya” after noting, “You showed me you can keep a secret.”.

No School Tomorrow

On March 22, 2017, the juvenile asked for “blacks with that bottle, I got money for em, don’t forget what the bottle is for lol.” Mr. Boyd asked, “No school tomorrow?” The juvenile disclosed he had been expelled, and Mr. Boyd arranged to meet him at a certain address.

Sexual Predator Coaches Juvenile how to Conceal Felonies

On March 28, 2017, Mr. Boyd reminded the juvenile, “Delete our messages here.” The juvenile responded, “I do. I’m broke but I really need a black.” Mr. Boyd replied, “Messages aren’t deleting here. Thats weird.” Mr. Boyd then instructed him how to delete the messages. Mr. Boyd also tried to direct the child to Snapchat, which would automatically delete each message once read.

Juvenile said he ‘might’ be a Pedophile

Other screenshots showed conversations wherein the juvenile disclosed to his friend: he has been trying to “get wit me”; he “asked me to let him suck my dick”; “he wont stop trying”; “he dropped off the bottle and snapped me and said damn ur so fine”; and “He keeps asking me for dick pics.” In one message, the reporting 15-year-old juvenile explained: “it started with him saying I’ve heard a rumor you let [someone] suck u off”; “I was like bob wym and he said doing that to u would be interesting and I said nah bob”; “he just started asking me to keep it a secret and shit and all that, but all the time he snaps and dms me”; “he might be a pedophile but he do be getting me free shit like all the time and he’s always given me rides and shit, he bought me that bottle * * * and gaveme a pack of blacks for free”; and “he’ll just be like having a normal convo and then outa no where start saying shit about my dick and how he wants to gimme head and make me relax.”.

Sexual Predator Asks for Naked Housekeeping

The friend (whose identity the police confirmed) disclosed in a message, “he asked me for a threesome with my best friend and then he asked me for nudes and one time I asked him for a ride and he told me if I clean his house naked that he would help me.” This friend also said, “U know he literally had sex with this one guy at our school?”.

Instagram Search Warrant

Based upon the above-recited evidence, the affiant attested to believing Mr. Boyd provided alcohol and tobacco products to juveniles on multiple occasions, encouraged the deletion of evidence, and solicited sex from juveniles online. The resulting search warrant for the Instagram records of robertboyd5515 was limited to the time period of February 1, 2017 through April 4, 2017. The warrant said it was to search for messages to be used in the prosecution of the offenses of sale of liquor to underage persons, contributing to the delinquency of a minor, unlawful sexual conduct with a minor, and importuning. In addition to seeking messages and photos, the warrant asked for location and identifying information.

“Under the totality of the circumstances, there was probable cause for the issuance of a search warrant…”

The affidavit clearly set forth a substantial basis for finding there was a fair probability evidence of various crimes would be found within the Instagram account of robertboyd5515. They had screenshots of incriminating conversations between that account and a 15-year-old. Additionally, this child specifically told the police Mr. Boyd asked if he could provide oral sex to the juvenile (who was under the age of sexual consent), and the child confirmed Mr. Boyd provided him with alcohol and tobacco products. Conversations between this child and a friend showed the child was complaining of the conduct before his father interceded. The probability of finding evidence of illegal conduct, including attempts, did not apply to just this child. Another juvenile acknowledged to the reporting juvenile in preserved messages he or she had a similar experience with Mr. Boyd requesting nude photos, proposing the exchange of services (a ride for nude cleaning), and asking for sex via a threesome. In addition, the reporting juvenile’s father saw a message from another juvenile encouraging his son to go with him to “bobs” to buy tobacco products. Under the totality of the circumstances, there was probable cause for the issuance of a search warrant for the Instagram account for the limited date range.

Was the Instagram Search Warrant Overbroad?

Contrary to Mr. Boyd’s contention, the resulting search warrant was not overbroad. It sought messages and photos from an Instagram account during a limited two month period surrounding the screenshots and asked for associated information in order to confirm the identity of the user. The warrant listed the crimes for which the evidence would be used if found. The police would not have been able to find messages related to the crimes being investigated without reading the messages provided by Instagram. They were not required to have Instagram screen the messages for them or only seek messages involving the reporting juvenile (who showed them some of the messages he received from Mr. Boyd). The warrant was as specific as the circumstances allowed.

Was the Search Warrant on the Residences Lawful?

As to subsequent warrants allowing the search of devices at Mr. Boyd’s residences, Mr. Boyd initially sets forth an argument that is dependent on the above arguments. That is, he argues if his Instagram suppression argument is sustained, then the later warrants should be invalidated as the fruit of the poisonous tree because the later affidavits partially relied on the results of the Instagram warrant. As the suppression arguments on the Instagram warrant are without merit, Mr. Boyd’s initial argument on the subsequent warrants fails as well.

Did the Electronic Search Warrants Establish Probable Cause?

Next, Mr. Boyd contends the affidavit for the search of devices at his residences lacked probable cause because it included old or irrelevant events and there was no nexus between the crime alleged and the things to be seized. He also complains the search warrant lacked specificity and thus allowed a “fishing expedition” on his entire electronic life.

Instagram Search Warrant was Issued

On May 11, 2017, a month after the Instagram warrant was issued, a search warrant was issued for each of Mr. Boyd’s residences in Boardman. The affidavit in support of each warrant pointed out he moved to the Lockwood Boulevard residence after his West Boulevard residence suffered a fire in November 2016.  The affiant first reviewed the facts contained in the April 2017 affidavit for the Instagram warrant. Next, Mr. Boyd’s arrest history was recited as including harassment, unauthorized use of a motor vehicle, unlawful restraint, assault, and domestic violence (in 2008, 2009, and 2017). Previous investigations were also reviewed.

Sexual Predator Offers Fourteen Year Old Boy a Massage

According to the affidavit, a 2013 investigation was initiated when a 14-year-old friend of Mr. Boyd’s son reported Mr. Boyd showed him photographs on a computer of young boys, estimated to be six to eight years old, in “skimpy clothes” and said he wanted to take a similar photograph of him. When the boy lifted up his shirt, Mr. Boyd asked him to turn around and took a picture of his bare back. The boy said Mr. Boyd then pulled down the top of his shorts and underwear to expose the top of his buttocks for the next photograph. The boy also reported Mr. Boyd gave him a ride during which Mr. Boyd offered to give the boy a massage to help him relax.

Sexual Predator Deletes Photographs

Mr. Boyd told the police he merely offered the use of a massage chair and denied showing the boy inappropriate photographs. He admitted taking shirtless photographs of the boy but denied pulling down his shorts. He told the police he deleted the photographs. After being instructed by the police not to contact the boy or his family, Mr. Boyd contacted the boy’s mother and offered to show her one of the photographs, which he told the officer he deleted. The photograph showed the boy shirtless from the back, though his buttocks were not visible.

Testimony of Mr. Boyd’s Adopted Son

In addition, a Children Services investigation was initiated in 2016 when Mr. Boyd’s adopted son reported during a group counseling session that he had a flashback of being forced to perform oral sex on his adoptive father when he was seven or eight years old. He also said Mr. Boyd tried to take photographs of his friend without pants. Mr. Boyd denied the oral sex incident to a caseworker and said he showed the photographs of the friend to the police and the boy’s parents (which was false as he only showed one photograph). The caseworker was unable to speak to Mr. Boyd’s son again until he appeared in juvenile court with his father. When she interviewed the son, he altered his story. He said he remembered “someone” performed oral sex on him but came to believe it may have occurred before he was adopted; he also said he sometimes believed it was just a dream.

Sexual Predator’s Daughter was Repeatedly Truant

The search warrant affidavit also noted at the time of the November 2016 fire, a 16-year-old friend of Mr. Boyd’s son was staying with Mr. Boyd, even though his son was living at a rehabilitation center. It was additionally disclosed police made contact with Mr. Boyd in January 2017 after his daughter was repeatedly truant. They found her at a motel where she intended to meet a registered sex offender.

Incriminating Emoji’s 

A few days later, Mr. Boyd contacted the police to say a juvenile he allowed to stay with him before the fire was heavily using drugs and was associated with four other juveniles whom he also believed were using drugs. One of these juveniles (age 15) was questioned by police in March 2017 for a noise complaint and said he obtained fireworks from Mr. Boyd’s residence. After messages were recovered with the Instagram warrant, the police saw a message from this juvenile to Mr. Boyd asking, “Can you come get me and [other juvenile] and we can [emojis of open mouth and fireworks].” (An officer opined this emoji combination represented oral sex.)

Another Seventeen-Year-Old Victim Discovered in the Instagram Messages

The Instagram warrant also led the police to messages between Mr. Boyd and a 17-year-old boy. The conversations included discussions about sex acts and the 17 year-old asking how he could make money. Mr. Boyd advised the juvenile to delete his messages and attempted to direct him to Snapchat. Mr. Boyd’s first recovered message to this juvenile was a sad face with the message, “if you weren’t interested yo just needed to tell me. I still would have helped you with finding work and that to help you out.” Later, Mr. Boyd asked, “Does that mean your still interested in a bj?

Fastest Way to Make $375?

In other conversations, the 17-year-old asked, “What is the fastest way to make $375? Mr. Boyd replied, “Legally?” The juvenile responded, “ANY WAY. I NEED THE MONEY.” The juvenile said: he wanted to buy his dream camera; he had no job; and he could not afford to get his driver’s license. When he again asked how to make money, Mr. Boyd said, “There really is no shortcut to money other than work.”.

Sexual Predator Asks Where he Should Park

Mr. Boyd talked about meeting the 17-year-old at his “other house” which he described as the “One im working on” and as being located “2 blocks from current house.” They discussed whether they should just park the car somewhere, and Mr. Boyd asked the juvenile if he was into “Top, bottom, etc?” He also asked if the juvenile had “any other pics.” Mr. Boyd’s messages said he mapped the address in his phone to the juvenile’s residence thirty minutes away and later indicated Mr. Boyd was on his way to retrieve the juvenile. Two hours later, Mr. Boyd texted, “Just got home” and “Did you have fun?” The juvenile did not respond. The juvenile’s Facebook account was open to the public, and the police learned he purchased the desired camera for $375 after his meeting with Mr. Boyd.

Electronic Incriminating Evidence

The affiant further explained the IP addresses captured by Instagram were associated with Mr. Boyd’s house on Lockwood Boulevard and a cell phone. The phone was registered to Mr. Boyd’s juvenile son, but Mr. Boyd provided that phone’s number to police as his personal number when they arrested his daughter on May 3, 2017. At that time, police officers noticed three desktop computers, a laptop, and several cell phones.

Detective Acknowledges Mr. Boyd was Grooming the Juveniles

The affiant referred to the offenses of importuning and contributing to the delinquency of a minor with alcohol and tobacco, citing to the juvenile’s report that instigated the prior Instagram warrant and to the conversations with other juveniles discovered from that warrant. The affiant also referred to the potential for findingcommunications with juveniles and the probability Mr. Boyd paid a juvenile for sex. The affiant further emphasized Mr. Boyd’s pattern of grooming children, noting the technique is used by sex offenders to gain trust, test secret-keeping, and make the child a willing participant. The affiant concluded by stating he believed Mr. Boyd possessed at his residence phones, computers, and drives which could be used to store child pornography or communications on child pornography or child exploitation. Permission was requested to preview the devices at the scene to avoid power disconnection, which also served to limit the amount of devices eventually seized.

Search Warrant was based on Probable Cause

The search warrant listed some of the offenses being investigated: sale of liquor to an underage person, contributing to the delinquency of a minor, unlawful sexual conduct with a minor, and importuning. The warrant found probable cause to believe there was evidence relevant to the crimes being investigated at the residences, including on cell phones, security DVRs, computers and drives which could be used to store child pornography, and records of communications on the topic of child exploitation or contributing to the delinquency of a minor.

BCI Executes Search Warrant

During the execution of the search warrant, BCI agents prescreened various devices. From the seized devices, the trial evidence was recovered from: Mr. Boyd’s cell phone, which contained the photographs of Mr. Boyd’s penis sent to victim C, constituting the misdemeanor charges of disseminating matter harmful to juveniles; and a hard drive which contained the nine photographs of nude pre-pubescent children, constituting the charges of illegal use of a minor in nudity-oriented material.

Was the Information for the Search Warrant Stale Probable Cause?

Regarding the warrants allowing the search of his devices, Mr. Boyd says the trial court failed to specifically determine whether there existed a nexus between the crimes alleged and the things to be seized and claims some of the evidence was stale. In determining whether there was fair probability that evidence of a crime will be found in a particular place, some considerations include “how stale the information relied upon is when the facts relied upon occurred, and whether there is a nexus between the alleged crime, the objects to be seized, and the place to be searched.” State v. Castagnola, 145 Ohio St.3d 1 at ¶ 34-35.

Mr. Boyd’s allegation of stale evidence cites the recitation in the affidavit regarding the 2013 investigation, which started when a 14-year-old reported Mr. Boyd showed him photographs of very young, skimpily-dressed boys on his computer and took a photograph of the boy’s bare back and then the top of the boy’s buttocks. Mr. Boyd’s staleness argument also includes the recitation in the affidavit about his son’s 2016 disclosure at a group counseling session that he had a flashback that his adoptive father forced him to perform oral sex on him when he was younger.

Probable Cause Can be Established, in part, Based on a  Pattern of Behavior

It was not improper to set forth various prior investigations in a search warrant to show pattern or escalation in a new child-related investigation involving sexual requests. This was by no means the only evidence to support the warrant seeking evidence of child pornography or child exploitation from Mr. Boyd’s devices during an investigation which included the provision of alcohol and tobacco products to children. A child under the age of 16 had recently reported Mr. Boyd solicited him for sex. And, Mr. Boyd repeatedly asked the child for illegal photographs of his penis, all while Mr. Boyd was supplying this minor with alcohol and tobacco products. The police also saw a communication from a different juvenile asking this child if he had money so they could go to Mr. Boyd’s residence to buy tobacco and a communication from another juvenile who claimed to have been propositioned by Mr. Boyd for sex with allusions to an exchange of services.

Not Stale Probable Cause but an Overabundance of Probable Cause

Then, from the results of the Instagram warrant, the police gained probable cause to believe Mr. Boyd induced a different minor to have sex for hire in the same time period. Mr. Boyd discussed this occurring at his house, and the police had prior information on Mr. Boyd’s use of security cameras within the house. Again, it is the totality of the circumstances set forth in the warrant that a trial court considers in determining probable cause for a warrant. A court need not evaluate each piece of evidence and reject it if it would not provide probable cause by itself.

Court Concludes All Search Warrants are Valid

After the trial court found the search of the Instagram account was supported by probable cause and conducted pursuant to a warrant that was not overbroad, the court then concluded the evidence found as a result of the Instagram warrant led to additional evidence that established probable cause for the search of the residences. The finding of probable cause implicitly contained a finding of a sufficient nexus. And, there was in fact a nexus between the criminal activity being investigated and the place to be searched when considering the totality of the circumstances, including the nature of the evidence.

Established Case Law

Various offenses regarding minors were at issue, and Mr. Boyd’s conduct of seeking illegal images from minors by communicating with them online was related even to the initially reported offenses of providing alcohol and tobacco to minors. A device such as Mr. Boyd’s phone or computer (with a hard drive) would have been the method of communication and the place where electronic images involving child pornography or exploitation (including soliciting) could be stored, which was all relevant to the offenses under investigation. The warrant specified the types of files to be seized. See State v. Waters, 8th Dist. Cuyahoga No. 103932, 2017-Ohio-650, ¶ 16 (finding search of electronic storage devices was not overbroad or insufficiently particularized while searching for child pornography). In evaluating the totality of the circumstances, we point to our above review of both the affidavit in support of this warrant for the search of devices and our review of the affidavit in support of the Instagram warrant (as this information was restated within the subsequent affidavit).

The warrant in this case guided the judgment of the searchers and did not include items that should not be seized or call for a general exploratory search of the devices; rather, it described the items to be seized as best as could be done under the circumstances of this case and the nature of the activity.

Holding

[T]his court finds the warrants were valid under the above analysis [therefore] Mr. Boyd’s first assignment of error is overruled.

Lessons Learned:

  1. Electronic Search Warrants – Electronic data search warrants are increasing in frequency and complexity. The detectives in this case should be commended for their attention to detail and keen eye to utilize the information obtained to discover additional victims.
  2. Was the Affidavit Overbroad or Specific? Mr. Boyd attacked the fourth part of the Fourth Amendment; “…and Particularly describing the place to be searched and the persons or things to be seized.” U.S. Constitution, Fourth Amendment Ratified December 15, 1791. Was the Instagram search warrant specific enough to satisfy this constitutional element? Yes!  Because the detectives could not know the exact dates and times of the social media exchanges the detectives simply requested all messages in a two-month period.  The Seventh District held that this was specific enough to satisfy the constitutional element.
  3. Pre-Sent Arms! The Seventh District Appellate Court also reviewed whether the information the detectives utilized was stale. The doctrine of Stale Probable Cause is applied when intervening information is discovered by law enforcement that makes previously known information invalid in the moment.  Here, all the information used by the detectives was current and the Stale Probable Cause argument raised by Mr. Boyd was another feeble attempt to overturn his conviction of raping young boys.

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Robert H. Meader Esq.