After he was convicted of “criminal damaging, vandalism,
criminal trespass, possession of criminal tools, two counts of retaliation” and
“ten counts of pandering sexually oriented matter involving a minor” in
violation of Ohio law, Nicholas Castagnola appealed. State
v. Castagnola, 2013 WL 1285963 (Ohio Court of Appeals 2013).
According to the opinion, the Twinsburg (Ohio) Police
Department targeted Castagnola
after more than 20 incidents of
criminal mischief had occurred. . . . [O]ne or more individuals had been egging
cars throughout the city. . . . The day after the law director appeared in
court to prosecute Castagnola for selling alcohol to underage persons, he awoke
. . . to find this car had been egged and one of its mirrors had been damaged.
Another incident involved the egging of a police car from the City of
Reminderville's Police Department.
The police became suspicious of
Castagnola when he and several friends were observed buying a large amount of
eggs from Giant Eagle. An officer . . . asked . . . about the eggs. Castagnola [said
they] were for a cake the group planned on baking. The officer confiscated the
eggs and released the group. The following day, a cake was sent to the officer
at the police department, courtesy of Castagnola and his friends. . . .
[A]n
informant . . . put [police] into contact with another informant who had information
about Castagnola's involvement in [these] incidents. The second informant showed
the police ten text messages he had received from Castagnola, all of which
pointed to his involvement in the crimes.
The informant agreed to wear a wire
and have a conversation with Castagnola at his home. During the conversation,
Castagnola freely discussed having perpetrated numerous incidents of criminal
mischief, including the incidents pertaining to the law director and the police
car from Reminderville.
State v. Castagnola, supra.
The text messages the police reviewed and the conversation
between Castagnola and
the informant led them to believe [he] found
the law director's personal address online. . . . [P]olice obtained a warrant
to search his home for any computers or other similar devices. [They] executed
the warrant and seized two computers. . . .
When a forensic specialist searched
one of the computers, she observed what appeared to be . . . child pornography.
The police obtained a second warrant to inspect the computer's hard drive. The
search uncovered . . . pornographic material as well as ten images and/or
videos of children engaging in sexual activity.
State v. Castagnola, supra.
Castagnola moved to suppress evidence in both cases, but the
judge denied the motion. State v.
Castagnola, supra. A jury
convicted him on the retaliation charges and, in a bench trial, the judge
convicted him on the pandering charges. State v.
Castagnola, supra. The
sentences the judge imposed for both convictions ran “consecutively to one
another for a total term of 30 months in prison.” State
v. Castagnola, supra.
Castagnola’s first argument on appeal was that the “affidavit submitted in support of the warrant
upon which the police relied to seize his computers lacked sufficient indicia
of probable cause.” State v. Castagnola, supra. As Wikipedia notes, for a search warrant to
be valid under the 4th Amendment, it must, among other things, be
based on probable cause. An officer
"has probable cause to
conduct a search when `the facts available to [him] would ‘warrant a [person]
of reasonable caution
in the belief’ that contraband or evidence of a crime is present.” Florida v. Harris, 133 S.Ct. 1050 (2013)
(quoting Texas v. Brown, 460 U.S. 730
(1983)).
In the affidavit Detective Mark Kreiger submitted to obtain
the warrant, he stated that “the following property was being concealed at Castagnola's
residence:”
`Records and documents either stored on
computers, ledgers, or any other electronic recording device to include hard
drives and external portable hard drives, cell phones, printers, storage
devices of any kind, printed out copies of text messages or emails, cameras,
video recorders or any photo imaging devices and their storage media to include
tapes, compact discs, or flash drives.’
State v. Castagnola, supra.
Kreiger also described the facts outlined above and noted
that during the informant’s recorded conversation with Castagnola, he admitted
he had damaged “several vehicles,” including the law director’s car, and also
said he “`found [the law director] online in the clerk of courts’ as well as
the location of the law director's law office.’” State v.
Castagnola, supra.
In his motion to suppress, Castagnola argued that “the fact
that one form of technology (i.e. a text message) contains evidence of an
individual's wrongdoing does not equate to the conclusion that another form of
technology (i.e. a computer) will contain similar evidence.” State v.
Castagnola, supra. The judge
disagreed, noting that Kreiger said
Castagnola had `found [the law
director] online’ and had gone `through [the law director's] mailbox to confirm
that [he] did live at the address [Castagnola] found for him online.’
Accordingly, Kreiger included averments . . . from which one could conclude
that Castagnola used the internet to locate the law director's personal
residence. . . .
[T]herefore, the affidavit established a causal link between Castagnola's
alleged criminal activities and the item seized. . . . [T]he issuing judge
could have determined Castagnola used a computer to conduct the online searches
such that the computer would contain evidence of his criminal activities.
State v. Castagnola, supra.
Castagnola also argued that “even assuming” he obtained “certain
information”
online, that fact alone would not give
rise to probable cause to seize his computer. According to Castagnola, it was
improper for the judge to infer that he owned a computer and used his computer
to access online information rather than some other . . . device with internet
capabilities.
The warrant . . . did not limit the
object of the search to a computer. [It] encompassed any device capable of
accessing the internet. It is a matter of common knowledge that a computer is
capable of accessing the internet. . . .
This Court will not hold,
in the absence of any applicable authority, that the police were required to
uncover the exact device Castagnola used to search for information online
before they could secure a warrant.
State v. Castagnola, supra (emphasis in the
original).
The Court of Appeals therefore upheld the trial judge’s denial
of the motion to suppress. State v.
Castagnola, supra.
Castagnola’s second argument was that “there was no direct
evidence he possessed or controlled the pornographic images and videos at
issue.” State v. Castagnola, supra. He did not deny that the computer the police
seized from his home contained
images and videos that displayed minors
engaging in sexual activity. Instead, he argues that the State failed to prove
he either had possession of or control over those items. Because . . .
individuals used the computer in his home, Castagnola argues, there was no
evidence that he even knew the images and videos were saved on the computer.
State v. Castagnola, supra.
The opinion explains that when the police executed their
warrant, Castagnola lived at
his mother's home with his younger
brother and his grandfather. Officer Michael Krejci testified that the computer
. . . was seized from an alcove in the home's family room. Natasha Branam, a
forensic scientist from the Bureau of Criminal Identification and
Investigation's Cyber Crime Unit, analyzed the hard drive of the computer.
Branam testified that the computer had three different user profiles: Debbie,
Nick, and Nick C.
All three profiles were password protected. With the aid of
her forensic software, Branam was able to decipher the password for the Debbie
profile within approximately half an hour. She also used forensic software to
attempt to decipher the passwords for the Nick and Nick C. profiles.
After five
days and more than six trillion attempts by her computers, . . . Branam
abandoned the search. She . . . was never able to decipher the extremely strong
passwords for either the Nick or Nick C. profiles.
State v. Castagnola, supra.
Although she did not have the Nick and Nick. C passwords,
Branam used her forensic software to examine the “entire contents” of the hard
drive. State v. Castagnola, supra.
Once she found any item of interest,
she was able to determine where the item was stored; that is, under which user
profile. Branam testified that: (1) the Debbie profile was created August 4,
2008, and had been accessed 900 times between its creation date and June 29,
2010, the date of the seizure; (2) the Nick C. profile was created May 10,
2009, and had been accessed 26 times between its creation date and the date of
the seizure; and (3) the Nick profile was created August 2, 2008, and had been
accessed 2,192 times between its creation date and June 17, 2010, the last date
the profile was accessed. Branam did not find any pornography within the Nick
C. profile.
Within the Debbie and Nick profiles,
Branam . . . found 629 videos and 395 images of potential child pornography. .
. . [T]he majority of all the videos and images were within the Nick profile
and all the images and videos associated with Castagnola's pandering charges
were within the Nick profile.
Further, . . . the images and videos linked to
[the] pandering charges had all been downloaded to the computer. She specified
that those images and videos were not the result of accidental pop-ups, but
required affirmative steps on the part of a user to accept the items for
download. Branam testified that more than one-third of the storage space on the
computer's hard drive was allocated to pornographic material.
State v. Castagnola, supra. Within the Nick profile, Branam also
found “several other items”, one of
which “appeared to be a school paper. . . . captioned: `Nick Castagnola, * * *
Poetry Writing II, April 8th, 2010.’” State v.
Castagnola, supra.
Deborah Castagnola, Nicholas’ mother, testified that she
knew the passwords for all the profiles on the computer, which she used. State
v. Castagnola, supra. “Ms. Castagnola testified that she accessed
the other user profiles from time to time, but never saw any pornographic
material on the computer.” State v. Castagnola, supra.
In ruling on Castagnola’s argument, the court noted that
under Ohio law, possession is “`a voluntary act if the possessor knowingly
procured or received the thing possessed, or was aware of [his] control of the
thing possessed for a sufficient time to have ended possession.’” State v.
Castagnola, supra (quoting Ohio Revised Code § 2901.21(D)(1)).
The Court of Appeals then found that a “rational trier of
fact,” i.e., a jury or a judge, could
have found the State proved beyond a
reasonable doubt that Castagnola possessed or controlled the material that
formed the basis for the ten pandering counts. All of the images and videos . .
. were found within the Nick user profile and had been downloaded by a user of
that profile. . . . [which] also contained other documents associated with
Castagnola. . . .
Moreover, the password for the Nick
profile was extremely strong. Six trillion attempts to decipher it through the
use of forensic software failed. It, therefore, would have been difficult if
not impossible for anyone to use the Nick profile without already knowing the
password.
Castagnola's mother testified that he
provided her with the password for the Nick profile. Castagnola admitted at
trial that he knew the password. Further, even if some other individual knew
all of the passwords for the computer, there was evidence that one-third of the
storage space on the computer's hard drive was allocated to pornographic
material and two of its profiles contained 629 videos and 395 images of
potential child pornography.
None of the profiles on the computer existed for
more than two years, and the computer was located in the family room of
Castagnola's home. The evidence, therefore, pointed to the conclusion that the
individual who downloaded the pornographic material onto the computer resided
at the Castagnola home.
State v. Castagnola, supra.
The Court of Appeals therefore found that the pandering
convictions were based on sufficient evidence.
State v. Castagnola, supra. It affirmed his convictions, in part, and
remanded the case for the trial judge to address another issue. State
v. Castagnola, supra.
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