Mr. Seem was coerced into consenting to the “dump” of his phone after the detective asserted a claim of lawful authority to seize the phone.
State v. Seems
2022 – Ohio – 3507
Sixth District Appellate Court
Sandusky County, Ohio
September 30, 2022
Mr. Jeremy Seem was indicted on August 21, 2020, on seven counts of Pandering Obscenity Involving a Minor, violations of O.R.C. §2907.321(A)(1), and four counts of Pandering Sexual Matter Involving a Minor, violations of O.R.C. §2907.322(A)(1), all second-degree felonies. These charges were filed after obscene or sexual photos and videos of minors were found on Mr. Seem’s cellphone.
Mr. Seem moved to suppress the evidence retrieved from his cellphone. He claimed that a detective in the Sixth District Appellate District, unlawfully seized his phone, then searched it, without a warrant. The state responded that no warrant was required because Mr. Seem consented to the search and seizure of his phone. Following an evidentiary hearing on April 5, 2021, the trial court denied Mr. Seem’s motion in a written decision. The court found that the detective possessed probable cause to believe that Mr. Seem’s phone contained evidence of illegal activity, which may have been deleted if the phone was left in Mr. Seem’s possession. Thus the phone was lawfully seized without a warrant. It further found that Mr. Seem consented to the seizure and search of his phone.
After the trial court denied his motion to suppress, Mr. Seem entered a plea of no contest to two counts of pandering obscenity involving a minor and two counts of pandering sexual matter involving a minor, in exchange for the dismissal of the remaining seven counts. The trial court accepted Mr. Seem’s plea, found him guilty, and sentenced him to eight years in prison on each count, to be served concurrently, for a total indefinite term of eight to twelve years in prison.
Mr. Seem appealed. He assigns the following errors for our review:
- The trial court erred when it failed to suppress evidence seized from a search of Mr. Seem’s cellular phone when such evidence was seized without a warrant and without a valid warrant exception.
- The indeterminate sentence violates the Ohio and United States Constitutions.
We begin by summarizing the evidence that was presented at the suppression hearing.
In July of 2020, a Sheriff’s Department in the Sixth District received information that Mr. Seem was in a chat room “talking to another individual about inappropriate things, possibly putting pictures of his daughter on this website, sharing them, and some of the comments that were being made that there was possibly some sexual misconduct.” On July 23, 2020, Mr. Seem voluntarily appeared at the sheriff’s office where the detective interviewed him. Mr. Seem was not under arrest.
Mr. Seem had not brought his phone to the interview, so after the detective finished questioning him, he asked Mr. Seem if he could go to Mr. Seem’s home and look at his phone. Mr. Seem said yes, and the detective followed Mr. Seem to his residence. Mr. Seem got his phone, which was password-protected, and opened it for the detective. The detective looked to see what apps were on the phone and he browsed through Mr. Seem’s photographs. The app the detective was looking for was not on the phone. Mr. Seem said he deleted it because it was not being used. Mr. Seem was sober, they were in his garage, he knew why the detective was talking to him, and he understood the nature of the allegations.
The detective and Mr. Seem’s interaction was recorded, and the recording was played at the hearing. The detective told Mr. Seem that he spoke with his supervisor on the way over and his supervisor was not comfortable with the detective just looking at the phone – he wanted to get Mr. Seem’s phone “dumped”—i.e., to extract data from the phone, including deleted data and photos. The detective told Mr. Seem that this could be accomplished in “two different ways.” He could take the phone and get a warrant to search its contents. Or he could take the phone and with Mr. Seem’s consent, he could search its contents without a warrant. This exchange between the detective and Mr. Seem was critical to the outcome of the case.
The detective explained:
Detective: I can take your phone and I can do a search warrant and go that route, which will take longer.
Mr. Seem: Sure.
Detective: Which I’m guessing, from what you’re telling me, there’s nothing going to be on here.
Mr. Seem: Right.
Detective: But, I — and I guess in a way it is better for you if we can dump it. I might even be able to get it somewhere tomorrow morning. And get it back tomorrow.
Mr. Seem: Okay.
Detective: If I can do that, then I can try to get your phone back to you — I could probably leave it maybe at the dispatch center or the jail and then you could come pick it up when you get off work.
Mr. Seem: Mmhmm.
Detective: The downside is I don’t know who is going to be available tomorrow and it might have to go ‘til Monday. And I know it’s a long time to go without your phone.
Mr. Seem: Right.
Detective: Umm — I guess that’s the deal. Is I could try to do it tomorrow morning. I know that there’s a guy up in Perrysburg. He’s usually pretty quick. He’ll probably have it done — I could even ask him if he could maybe speed-track it for me if I take it up there. Maybe I’ll go get something to eat, come back and pick it up.
Mr. Seem: Okay.
Detective: If not, like I said, I’ll just have to take the phone. And then I’ll have to probably next week get a search warrant, get it signed, and I’ll try to get it back to you sometime next week.
Mr. Seem: Okay. So you’ll take it now without a search warrant?
Detective: Correct. Yeah, and the reason why I’m going to take it now and I can take it now is because if I leave it here without one, the odds that if there is something on here that you can either reset your phone.
Mr. Seem: Right.
Detective: So it’s something I can do — I’m not going to get in your phone without a search warrant.
Mr. Seem: Right.
Detective: But because the chance of things being destroyed, evidence being destroyed, if I leave it here. I need to take it with me now, if that makes sense.
Mr. Seem: Yeah, I mean there’s not really much I can do about it. I guess.
Detective: Right now, there’s not. But, what I would like to do is, is make it more convenient just for you. ‘Cause I’m not trying to be — make it inconvenient or be a dick about it or anything like that.
Mr. Seem: Right.
Detective: But, if I do it, there’s nothing on there, that just helps me say, “Okay, guess what, he told me he posted that stuff. It’s a fantasy thing that he was involved in and it didn’t go farther than that.”
Mr. Seem: Okay.
Detective: You know what I’m saying?
Mr. Seem: Yeah, I got you.
Detective: Because — honestly it helps you more than it hurts you, but it is going to inconvenience you.
Mr. Seem: Yeah. Yeah, I mean if that’s the option, go ahead.
Detective: Okay.Mr. Seem: I mean, take it and see what you can do with it.
With the understanding that the detective would be taking his phone either way, Mr. Seem consented to the detective searching it without a warrant.
The detective conceded at the hearing that he saw nothing on the phone that led him to believe that it had been used for illegal activity. Mr. Seem did admit to having deleted a particular app on his phone through which messages had been sent, but the detective saw no photographs or other data he believed were illegal. The lack of confirmation by the detective as also critical in the courts analysis. The detective claimed, however, that “a lot of data that is deleted off of a device like that is retained in some shape or form that might not be seeable to the naked eye.”.
The detective was asked specifically by defense counsel about whether he saw anything on Mr. Seem’s phone that provided him with probable cause that the phone had been used for illegal activity; he confirmed that he did not:
Defense Counsel: From the standpoint of generating probable cause to believe that the phone was used for illegal activity, nothing that you saw on that phone on July 23 of 2020 was discernible to you as evidence of illegal activity on that phone, would that be accurate?
The detective: It would be accurate that I did not see anything on the phone at that point in time. However, through my experience and doing these cases in the past, if there – if he was doing these things on that device, there is a very high likelihood that that might still be retained in some shape or form … But not that – I did not see anything that day.
The detective also made clear that he told Mr. Seem he would be taking the phone without seeking a warrant regardless of Mr. Seem’s consent. He made the decision to seize the phone even before arriving at Mr. Seem’s house. “That was going to happen whether [Mr. Seem] objected or not.” The only question was whether Mr. Seem’s consent would obviate the need for the detective to apply for a search warrant to “dump” the phone. The detective conceded that Mr. Seem told him “to go ahead and take [the phone] and see what [he] can do with it” only after being told that the phone would be taken anyway and that there was really nothing he could do about that. Mr. Seem did not give consent for the detective to take the phone:
The detective: I recall saying that I was going to take the phone.
Defense Counsel: Okay. Prior to that time, did my client give you consent to take that phone?
The detective: He did not.
Defense Counsel: Okay. And at that point in time, in listening to the audio, it would be clear to any individual that your intention was to seize and take that phone into custody; wouldn’t you agree?
The detective: Yes.
Defense Counsel: Alright. That was going to happen whether [Mr. Seem] objected or not, correct?
The detective: At that point in time, yes.
Constitutional Protections Against Unreasonable Searches and Seizures
A warrantless search and seizure is per se unreasonable unless one of the following judicially recognized exceptions applies: “(a) [a] search incident to a lawful arrest; (b) consent signifying waiver of constitutional rights; (c) the stop-and-frisk doctrine; (d) hot pursuit; (e) probable cause to search, and the presence of exigent circumstances; or (f) the plain-view doctrine.” State v. Akron Airport Post No. 8975, Veterans of Foreign Wars of U.S., 19 Ohio St.3d 49, 51, 482 N.E.2d 606 (1985).
“The state bears the burden of proving that one of these exceptions applies in order for evidence seized as a result of a warrantless search to survive a motion to suppress.” State v. Smith, 73 Ohio App.3d 471, 475, 597 N.E.2d 1132 (6th Dist.1991), citing State v. Kessler, 53 Ohio St.2d 204, 207, 373 N.E.2d 1252 (1978).
“When a prosecutor seeks to rely upon consent to justify the lawfulness of a search, he has the burden of proving that the consent was, in fact, freely and voluntarily given.” Bumper v. North Carolina, 391 U.S. 543, 548, (1968). That is, “the state must show by ‘clear and positive’ evidence that the consent was ‘freely and voluntarily’ given.” State v. Posey, 40 Ohio St.3d 420, 427, (1988), quoting Bumper at 548.
The detective claimed to have lawful authority to seize Mr. Seem’s phone. He told Mr. Seem that he would be taking his phone without a warrant, there wasn’t anything Mr. Seem could do about that, and Mr. Seem would not get the phone back until it was “dumped.” The detective explained that he “need[ed] to take it with [him] now” because of the chance of evidence being destroyed. He did not present Mr. Seem with a choice as to whether or not the phone would be seized.
The detective was going to take the phone regardless of whether Mr. Seem consented to its search:
Defense Counsel: [Y]our intention was to seize and take that phone into custody; wouldn’t you agree?
Defense Counsel: Alright. That was going to happen whether my client objected or not, correct?
Detective: At that point in time, yes.
The only choice the detective presented Mr. Seem was whether or not to consent to the “dump” of the phone:
(1) Mr. Seem could consent to the search of the phone, which the detective represented would be faster and “more convenient” for Mr. Seem; or
(2) Detective could take the phone and get a warrant to search its contents, “which [would] take longer.” The detective acknowledged at the suppression hearing that at the time Mr. Seem was presented with these choices, the phone had already been seized.
Defense Counsel: “But at this point in time the phone had already been seized by you, correct?”
Detective: “Correct.”) Mr. Seem acquiesced to the warrantless search of the phone because he believed based on Detective’s representations – that the detective was authorized to immediately seize it.
This is similar to State v. Samples, 11th Dist. Geauga No. 1994 WL 315710 (June 24, 1994), where the defendant consented to the search of his briefcase only after he was told that police would be taking his briefcase anyway and would not return it until it had been searched. Specifically, in Samples, officers arrested Mr. Samples for operating a motor vehicle while under the influence of alcohol. After he was cuffed, they asked him if there was anything in his car that he wanted before it was towed away. Mr. Samples said that he wanted to have his briefcase. The officers retrieved the briefcase from the vehicle and requested permission to open it. Mr. Samples refused. One of the officers then told him that he “was going to enter [the briefcase] into evidence for safekeeping, and [Samples] would not have it in his possession until [the officer] found out what was in it * * * or was ordered to return it to [appellee.]” Id. at *3. Mr. Sample responded, “Oh what the hell, go ahead and open it.” Id. at 1.
The appellate court concluded that the officer’s statement went “beyond candidly informing [Samples] of why a search is needed either with consent or with a search warrant. Instead it is subtly coercive.” The court emphasized that “[N]o matter how subtly the coercion was applied, the resulting ‘consent’ would be no more than a pretext for the unjustified police intrusion against which the Fourth Amendment is directed.” Id., quoting Shneckloth v. Bustamonte, 412 U.S. 218, 219 (1973).
Like the defendant in Samples, Mr. Seem was coerced into consenting to the “dump” of his phone after the detective asserted a claim of lawful authority to seize the phone. Mr. Seem merely acquiesced to the detective’s claim of lawful authority when he chose the faster, “more convenient” option for getting his phone back. Because acquiescence to a claim of lawful authority is not sufficient to constitute consent, the results of the eventual search of the phone must be suppressed.
The Probable Cause Plus Exigency Exception
“The exigent circumstances doctrine requires probable cause plus exigent circumstances in order to be lawful.” (Emphasis added.) State v. Runyon, 2016-Ohio-5730, ¶ 27. The trial court found that the detective’s interview and conversation with Mr. Seem supplied the detective with probable cause that the phone contained evidence of illegal activity. But the transcript of the suppression hearing is devoid of any evidence to support that conclusion. All the detective said on the subject was that messages had been “intercepted by ICAC,” and the department “[H]ad received information that [Mr. Seem] had been in a chat room … talking to another individual about inappropriate things, possibly putting pictures of his daughter on this website, sharing them, and some of the comments that were being made that there was possibly some sexual misconduct [sic].”
He conceded, however, that nothing he saw in scrolling through the phone corroborated that the phone had been used for illegal activity:
Defense Counsel: From the standpoint of generating probable cause to believe that the phone was used for illegal activity, nothing that you saw on that phone on July 23 of 2020 was discernible to you as evidence of illegal activity on that phone; would that be accurate?
Detective: It would be accurate that I did not see anything on the phone at that point in time. However, through my experience and doing these cases in the past, if there—if he was doing these things on that device, there is a very high likelihood that that might still be retained in some shape or form.
Defense Counsel: Understood, through, through –
Detective: But not that—I did not see anything that day.
The state does not specifically argue the probable cause plus exigency exception to the warrant requirement. However, it says in its brief that the detective testified that Mr. Seem admitted sending messages and suggested that there was possible illegal activity that was conducted on the phone through an app, apparently asserting that this constituted probable cause and justified the detective’s seizure of the phone. But this was never explored in any detail at the suppression hearing. There was no evidence elicited concerning the nature of the comments, photos, app, or illegal activity that led the detective to question Mr. Seem in the first place. And it was the state’s burden to prove that the warrantless search and seizure here fell into one of the exceptions to the warrant requirement.
If it was relying on the exigency exception to the warrant requirement, it was incumbent on the state to demonstrate that it had probable cause to seize the phone. See, e.g., United States v. Babcock, 924 F.3d 1180, 1196 (11th Cir.) (explaining that warrantless seizure of cell phone required probable cause to believe both that evidence of a crime would be found on it and that the evidence would be destroyed before they could obtain a warrant). In Babcock, police were dispatched to defendant’s camper on a domestic violence call. They arrived to hear a female at the residence yelling “stop, stop.” Id. at 1193. The female, a teenage girl, emerged with cuts on her legs and appeared to be suffering an overdose. The defendant showed officers a video on his cell phone of the girl “sitting on a bed, holding a knife to her own throat and saying that she wanted to die.” Id. at 1185. In the video the defendant could be heard “berating the girl, telling her, ‘you’re dumb as f***’ and complaining, ‘this is what I deal with right here … you gotta do drama and fighting me all over the place.’” Id. The court concluded that these circumstances gave the officers probable cause to believe that the defendant had committed a crime against the victim. It found that “it required no leap for the officers to deduce that evidence of a crime would likely be found on [defendant’s] phone given that they “already knew that the phone contained one eyebrow-raising video suggesting an ongoing relationship between a grown man and a teenage girl,” and “[i]t was eminently reasonable for them to believe that additional evidence of that relationship—messages, texts, pictures, videos, etc.—would be found in the same place.” Id. at 1193.
Unlike Babcock, the detective clearly testified that when he reviewed the contents of the phone in Mr. Seem’s garage, nothing he saw on the phone provided him with probable cause to believe that a crime had been committed. Without a warrant and without evidence that the detective possessed probable cause plus exigency, the detective could not lawfully seize the phone.
The state failed to demonstrate that either the consent or exigency exceptions to the warrant requirement justified its warrantless seizure of Mr. Seem’s cell phone. Accordingly, we find Mr. Seem’s first assignment of error well-taken. Given our resolution of his first assignment of error, we dismiss his second assignment of error as moot.
The state failed in its burden to show that an exception to the warrant requirement justified its warrantless seizure of Mr. Seem’s cellphone. Mr. Seem’s consent to the search of his phone was premised on his acquiescence to the detective’s claim of lawful authority to immediately seize the phone. And while the detective explained that he believed that evidence would be destroyed if he left it with Mr. Seem, he failed to articulate probable cause for seizing the phone in the first place. Accordingly, we conclude that the trial court erred in denying Mr. Seem’s motion to suppress evidence, and we find his first assignment of error well-taken. We dismiss as moot Mr. Seem’s second assignment of error.
We reverse the August 26, 2021, judgment of the Sandusky County Court of Common Pleas and remand this matter to the trial court for proceedings consistent with this decision.
Information for this article was obtained from State v. Seems, 2022 – Ohio – 3507.
This case was issued by Sixth District Appellate Court which is only binding in the following Ohio Counties: Erie, Fulton, Huron, Lucas, Ottawa, Sandusky, Williams and Wood.
- The U.S. Supreme Court issued Bumper v. North Carolina, 391 U.S. 543 (1968) on June 3, 1968. In that case the Forsyth County Sheriff’s Office told the suspect’s grandmother, Ms. Hattie Leath, that they had a search warrant to come into the home and they did not have any warrant. In response to the deputy stating that they had a search warrant, the suspect’s grandmother said “go ahead” to the request to enter her home. The search resulted in the discovery of a .22 caliber rifle that Mr. Bumper used to violently rape a female. Because the deputy’s attempted, what I call a ‘cop trick’, the U.S. Supreme Court determined that Ms. Leath was coerced. Because she was coerced the rifle and ultimately Rapist Bumper’s convictions was overturned. Specifically, the U.S. Supreme Court held “Where there is coercion there cannot be consent.” Id at 550. In this case the analysis is commensurate to Bumper, as the Sixth District Appellate Court held that Mr. Seem was coerced in giving the detective his phone.
- How could the detective had improved his legal tactics? Had the detective obtained a search warrant prior to the interview of Mr. Seem then he would have been able to obtain the cell phone with much more limited legal challenges. If there was not enough probable cause for to obtain a search warrant prior to the interview, then the detective should not have coerced Mr. Seem by stating that he could get a search warrant but that would take longer. Specifically, the Sixth District Appellate Court identified this statement by the detective as coercive “If not, like I said, I’ll just have to take the phone. And then I’ll have to probably next week get a search warrant, get it signed, and I’ll try to get it back to you sometime next week.”. Had the detective simply have asked Mr. Seem to consent to a search of his phone without any further explanation/threat to obtain a search warrant then it likely would not have been coercive. Of course, without that search warrant threat, Mr. Seem may not have consented. This is but one more example as to why law enforcement is THE hardest job in America.
- The detective in this case performed in much the same way many officers do when confronting a child-offending felon. However, officers and detectives must be cautious at the inception of encounters as the early interactions can have negative consequences in the weeks and months to follow.
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