The finding of probable may be based upon hearsay in whole or in part, provided there is a substantial basis for believing the source of hearsay to be credible and for believing that there is a factual basis for the information furnished.. [emphasis added]  Crim.R. 41(C)(2)


State v. Collins

2023 – Ohio – 646

Second District Appellate Court

Greene County, Ohio

March 3, 2023

On February 20, 2020, a worker in a dining area of the Wright State University (WSU) student union found an unattended cell phone (which was later confirmed to belong to Mr. Jeffrey Collins) on a lunch table and turned it into the manager of the Union Market, Justin Young.

An abandoned cell phone was turned in to the manager at the Wright State University Student Union, 3640 Colonel Glenn Highway, Fairborn, Ohio.  The cell phone was not locked and the manager looked at the photos to determine to whom the phone belonged.  Therein the manager discovered pornographic pictures of young females.  This discovery led to the investigation, indictment, conviction and appeal of the Illegal Use of Minor in Nudity-Oriented Material.

To discover who the phone belonged to, Mr. Young opened the home screen (the phone was not password protected) and went into the photos application to see if he recognized the owner. When he did so, Mr. Young discovered pictures of what appeared to be underage females in various stages of undress, with some engaged in sexual acts. He further reported that he saw labels with the titles of “preteen” and “Young girls.”

Mr. Young contacted WSU police, and Sergeant Stephen Powers responded to the student union. Once there, Mr. Young informed Sgt. Powers how he came into possession of the phone and what he saw on it, and he then turned possession of the phone over to the WSU police. There are conflicting accounts of what happened once Sgt. Powers took possession of the phone, but we do know that on February 27, 2020, he obtained a search warrant for it.

Based on the contents found on the phone, and after confirmation from medical professionals that the images were of girls younger than 18, Mr. Collins was indicted on four counts of illegal use of a minor or impaired person in a nudity-oriented material or performance, felonies of the fifth-degree. On February 19, 2021, Mr. Collins filed a motion to suppress, challenging evidence obtained as a result of the search warrant as well as statements made to police. Nearly eleven months later, the parties gathered for the suppression hearing, but instead of hearing testimony from witnesses, the parties agreed that the trial court would review three joint exhibits, including, pertinent to this case, a redacted version of Sgt. Powers’ search warrant affidavit. The court would determine probable cause based on the four corners of the affidavit.

Motion to Suppress and Plea

On March 18, 2022, the trial court denied Mr. Collins’ motion to suppress, and approximately a month later, he entered a no contest plea to O.R.C. §2907.323 Illegal Use of Minor in Nudity-Oriented Material. On July 21, 2022, Mr. Collins was sentenced to five years of community control and ordered to register as a Tier I sex offender.

Mr. Collins’ timely appeal raises two assignments of error.

Motion to Suppress

Mr. Collins argues that the trial court erred by denying his motion to suppress the evidence (in this case, pictures) found on his cell phone. His thesis, as we understand it, is that the judge who issued the search warrant lacked a substantial basis to conclude that there was probable cause. We disagree.

To make his argument that the affidavit given to the issuing judge lacked probable cause to believe that evidence of a crime would be on his cell phone, Mr. Collins argues that because Sgt. Powers did not personally see the images, the information on the affidavit was mostly second-hand or hearsay information that Sgt. Powers gleaned from Mr. Young – the person who saw the pornographic photos. In support of this, he cites the second paragraph from the affidavit which reads:

Mr. Young started to scroll through the pictures and saw several, disturbing and possibl[y] pornographic pictures. These pictures were of naked girls[,] and they appeared underage. Mr. Young saw labels, or titles, with words “preteen” and “Young girls.” Joint Exhibit 1.

The problem with Mr. Collins’ argument, however, is that hearsay evidence is permissible in search warrant affidavits.

Hearsay Information on a Search Warrant Affidavit

While it is desirable to have the affiant provide as much detail as possible from his or her own knowledge, practical considerations will often require that the affiant rely on information provided by other sources. Since the purpose of the affidavit is not to prove guilt, but only to establish probable cause to search, the affiant may rely on hearsay information.” Franks v. Delaware, 438 U.S. 154, 167 (1978)

While both parties agree that Sgt. Powers did not see the pictures himself, there is reason to believe that the information he put in the affidavit was reliable. Mr. Young, who had recently opened the phone and looked at the images, informed the officer (soon after seeing the images) that there were multiple pictures of naked girls appearing to be underage. He also told Sgt. Powers that there were albums entitled “preteen” and “Young girls” found in the camera roll. The quick turnaround from originally viewing the pictures to informing Sgt. Powers about them increased the reliability of the description. In addition, we have recognized that “an identified citizen informant is typically accorded a greater degree of reliability.” State v. Smith, 2019-Ohio- 4370

Finally, we can find no reason for Mr. Young to lie or exaggerate about what he found on the phone. There is no evidence that he knew who Mr. Collins was or that he had a reason to fabricate what he had just seen.

Nevertheless, Mr. Collins argues that Mr. Young did not “unequivocally” tell Sgt. Powers that the images were pornographic and that he merely stated it was “possible” the photographs were pornography. While it appears that Mr. Young did not tell Sgt. Powers that the images were definitely pornographic, that type of certainty is not needed for a search warrant. An affidavit only requires “the probability, and not a prima facie showing, of criminal activity.” Illinois v. Gates, 642 U.S. 213, 235 (1983). Mr. Young’s description that the pictures were of naked girls who appeared to be underage, coupled with the folders labeled “preteen” and “Young girls,” established the probability that illicit photographs would be found on Mr. Collins’ phone. And as the State argues, Mr. Young was “neither a law enforcement officer nor a medical doctor. He could hardly be expected to flip through the photos one by one, write a description of the activity depicted, and estimate the age of the participants.”.

The information found in the affidavit, in its totality, established probable cause to believe that evidence of the crime of illegal use of a minor or impaired person in a nudity-oriented material or performance would be found on Mr. Collins’ phone. The trial court did not err in denying the motion to suppress, and the first assignment of error is overruled.

Information for this article was obtained from State v. Collins, 2023 – Ohio – 646.

This case was issued by the Second District Appellate Court and is binding in the following Ohio Counties: Champaign, Clark, Darke, Greene, Miami and Montgomery.

Lessons Learned:

  1. Mr. Collins’ appeal is based in large part on the perceived missteps by Sgt. Powers, specifically that he used hearsay in the search warrant affidavit. This does provide the question whether hearsay can be used on search warrant affidavits? The answer can be found in Ohio Criminal Rule #41 which states in pertinent part “The finding of probable cause may be based upon hearsay in whole or in part, provided there is a substantial basis for believing the source of hearsay to be credible and for believing that there is a factual basis for the information furnished.”. [emphasis added]  Crim.R. 41(C)(2) In this case Sgt. Powers relied on the statements of Mr. Justin Young who had observed the child pornography or what he reasonably believed to be child pornography on Mr. Collins’ phone and thus was objectively reasonable.
  2. Every search warrant affidavit must establish probable to search. The Good Faith Doctrine established by the U.S. Supreme Court in 1984 held that if a search warrant is later found to be based on something less than probable cause the officer would have acted in ‘good faith’ and the search warrant will be upheld.  There are, however, four exceptions to the Good Faith Doctrine: 1) The issuing magistrate was misled by information in the affiant [law enforcement officer] knew was false or would have known was false except for his reckless disregard for the truth. 2) Where the issuing magistrate wholly abandoned his judicial role and failed to act in a neutral and detached fashion, serving merely as a rubber stamp for the police.  3) Where the affidavit was nothing more than a ‘bare bones’ affidavit that did not provide the magistrate with a substantial basis for determining the existence of probable cause.  4) Where the officer’s reliance on the warrant was not in good faith or objectively reasonable, such as where the warrant was facially deficientUnited States v. Leon, 468 U.S. 897 (1984) In this case Sgt. Powers did not require to utilize the Good Faith Doctrine because his search warrant affidavit was objectively reasonable.
  3. Powers, the Greene County Prosecution team and the Greene County Appellate team should all be highly commended for their respective work on this case. Well done!

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