Because Detective McCloud had probable cause to temporarily seize Mr. Flack’s cell phone for the purpose of securing a warrant, the seizure he conducted was justified.
State v Flack
2022 – Ohio – 3861
Ninth District Appellate Court
Wayne County, Ohio
October 31, 2022
Mr. Flack’s ex-girlfriend’s mother called the Wooster Police Department to report that Mr. Flack had violently raped her daughter and had used his cell phone to record the incident. Detective Juan McCloud interviewed Mr. Flack, and Mr. Flack indicated that he and his ex – girlfriend had engaged in consensual sexual conduct. Though Mr. Flack admitted that he had recorded some of the incident on his cell phone, he claimed he had since deleted the recording.
Detective McCloud later interviewed Mr. Flack’s current girlfriend. During her interview, the girlfriend said Mr. Flack had “video proof” to support his version of the events. The detective understood her statement to mean that Mr. Flack had not, in fact, deleted the recording of the incident from his cell phone. The detective then asked the current girlfriend to call Mr. Flack on speakerphone so they could discuss the recording.
Mr. Flack was at work when his girlfriend and Detective McCloud called. When Detective McCloud asked Mr. Flack about the recording, Mr. Flack indicated that he had chosen not to share it because it made him “look bad”. He informed the detective that he had not filmed his ex-girlfriend’s consent, so the recording “looked very violent” and “more like hate sex” than a consensual act. After Detective McCloud explained that the recording was evidence in his investigation, he told Mr. Flack he was coming to collect Mr. Flack’s phone.
Mr. Flack invoked his right to counsel when Detective McCloud arrived. The detective then seized his cell phone and brought it back to the police station. While drafting a request for a warrant to search the contents of the phone, Detective McCloud activated the phone to obtain its phone number and serial number. He discovered that the phone was “in setup mode” meaning that it appeared to have been restored to its factory settings.
Once Detective McCloud obtained a search warrant for the contents of the phone, he submitted it to the Bureau of Criminal Investigation (“BCI”) for analysis. BCI confirmed that the phone had “been wiped clean” around the time Detective McCloud was traveling to Mr. Flack’s workplace to retrieve it. Following BCI’s analysis, Mr. Flack was charged with one count of tampering with evidence.
Mr. Flack filed a motion to suppress. Relevant to this appeal, he challenged the warrantless seizure of his cell phone and further alleged that Detective McCloud had performed a warrantless search when he activated the phone at the police station. The trial court held a suppression hearing and heard arguments from both parties. At the conclusion of the hearing, the court found that Detective McCloud violated Mr. Flack’s constitutional rights when he seized his cell phone. The court found that the detective did not have a warrant for the seizure and no exceptions to the warrant requirement applied. Thus, the court granted Mr. Flack’s motion to suppress.
Analysis
THE TRIAL COURT ERRED IN GRANTING MR. FLACK’S MOTION TO SUPPRESS ON THE BASIS THAT THE SEIZURE OF MR. FLACK’S PHONE VIOLATED THE CONSTITUTIONAL PROTECTIONS REGARDING SEARCH AND SEIZURE.
The trial court found that Detective McCloud began investigating Mr. Flack regarding a report of sexual assault. Although Mr. Flack initially denied that he had a recording of the alleged sexual assault on his cell phone, the court found, further investigation revealed that Mr. Flack “might have lied.” The court found that Detective McCloud contacted Mr. Flack, told him he wanted his cell phone, and drove to Mr. Flack’s workplace to collect it. The detective then seized the phone. The trial court found that “[T]he seizure of the phone from [Mr. Flack] at his worksite without a warrant violated the constitutional protections regarding search and seizure. And, furthermore, that none of the exceptions to the warrant requirement apply.” Based on those findings, the court granted Mr. Flack’s motion to suppress. Because Detective McCloud had probable cause to believe the phone contained evidence of a crime and the State had a legitimate interest in preserving that evidence until a warrant could be obtained, the State argues, Detective McCloud was justified in seizing the phone until he could secure a warrant to search its contents.
The record does not support the trial court’s conclusion that Detective McCloud violated Mr. Flack’s rights by engaging in an unconstitutional seizure. As previously noted, “[I]t is not unreasonable [for police] to seize property on the basis of probable cause for the time necessary to secure a warrant.” State v. Swartz, 1990 WL 131733, citing Segura v. United States, 468 U.S. 796 at 806 (1984).
Detective McCloud had probable cause to believe Mr. Flack’s cell phone contained evidence relevant to his investigation based on his interview with Mr. Flack’s current girlfriend and his telephone conversation with her and Mr. Flack. He also had probable cause to believe Mr. Flack had already lied about the existence of the recording on his phone, as he initially claimed to have deleted it. While Mr. Flack had a possessory interest in his phone, “[S]ociety’s interest in the discovery and protection of incriminating evidence from removal or destruction can supersede, at least for a limited time, a person’s possessory interest in property, provided that there is probable cause to believe that the property is associated with criminal activity.” Swartz at 1, citing Segura at 808.
Holding
Because Detective McCloud had probable cause to temporarily seize Mr. Flack’s cell phone for the purpose of securing a warrant, the seizure he conducted was justified.
Information for this article was obtained from State v. Flack, 2022 – Ohio – 3861.
This case was issued by the Ninth District Appellate Court which is binding in the following Ohio Counties: Lorain, Medina, Summit and Wayne.
Lessons Learned:
- The trial court determined that Det. McCloud did not have probable cause and therefore the cell phone was suppressed. However, the state appealed, and the probable cause analysis was re-evaluated. The probable cause standard is always based on the facts of the case. Here, the trial court incorrectly concluded that the detective required a search warrant prior to seizing the cell phone. Dating back to 1984, the U.S. Supreme Court opined “[I]t is not unreasonable [for police] to seize property on the basis of probable cause for the time necessary to secure a warrant.” State v. Swartz, 1990 WL 131733, citing Segura v. United States, 468 U.S. 796 at 806 (1984).
- Law enforcement does not have to be right when they make a decision, rather the officer only needs to be reasonable. In 1990 the U.S. Supreme Court held “[P]olice officers conducting a search or seizure under one of the exceptions to the warrant requirement – is not that they always be correct, but that they always be reasonable.” Illinois v. Rodriguez, 497 U.S. 177 (1990). Here, Det. McCloud had gathered enough evidence that he established probable cause – something more likely than not occurred. Consequently, his actions were Objectively Reasonable.
- Flack believed that he could destroy the video, along with everything else on his phone to avoid prosecution. Even though the potentially incriminating video was destroyed, he will be successfully prosecuted for Tampering with Evidence. Well done Det. Juan McCloud!
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