[Cite as State v. Shaskus, 2016-Ohio-7942.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

State of Ohio, : 

 

 Plaintiff-Appellant, : No. 14AP-812 

 (C.P.C. No. 13CR-4970) 

v. : 

 (REGULAR CALENDAR) 

James F. Shaskus, : 

 

 Defendant-Appellee. : 

 

 

D E C I S I O N 

Rendered on November 29, 2016 

 

On brief: Ron O'Brien, Prosecuting Attorney, and Seth L. 

Gilbert, for appellant. Argued: Seth L. Gilbert. 

On brief: Dennis C. Belli, for appellee. Argued: Dennis C. 

Belli. 

 

APPEAL from the Franklin County Court of Common Pleas 

BROWN, J. 

{¶ 1} This is an appeal by plaintiff-appellant, State of Ohio, from a judgment of 

the Franklin County Court of Common Pleas granting a motion to suppress filed by 

defendant-appellee, James F. Shaskus. 

{¶ 2} On September 18, 2013, a Franklin County Grand Jury returned an 

indictment charging appellee with five counts of pandering sexually oriented matter 

involving a minor, in violation of R.C. 2907.322. On April 18, 2014, appellee filed a 

motion to suppress physical evidence and statements. Specifically, appellee sought an 

order from the court suppressing "the email messages under the account of 

jack.flash75@yahoo.com which were obtained by a detective of the Franklin County 

Sheriff's Department Internet Crimes Against Children Task Force from Yahoo, Inc. 

pursuant to a search warrant issued on October 21, 2011." Appellee also sought to 
No. 14AP-812 2 

suppress "the digital images, data, and emails stored on the hard drive of the Dell desktop 

computer which was seized by the same detective from [appellee's] residence pursuant to 

a search warrant issued on November 14, 2011." On May 23, 2014, the state filed a 

memorandum contra appellee's motion to suppress. (Def.['s] Mot. to Suppress at 1.) 

{¶ 3} On July 7, 2014, the trial court conducted a hearing on the motion to 

suppress. The state called as a witness David R. Hunt, formerly a detective with the 

Franklin County Sheriff's Department. During his employment with the sheriff's 

department, Detective Hunt's duties included performing investigations as part of the 

Franklin County Internet Crimes Against Children Task Force ("ICAC task force"). 

{¶ 4} At the suppression hearing, Detective Hunt provided testimony regarding a 

2011 police investigation into a Craigslist advertisement soliciting sexual encounters with 

minors. Detective Hunt became involved in the investigation leading to the indictment 

against appellee as a result of "a spinoff of an investigation from another case" in which 

investigators "were looking at different Craigslist predators." (July 7, 2014 Tr. at 8-9.) 

{¶ 5} In April 2011, a police investigator with the Franklin County Sheriff's 

Department became aware of an online advertisement indicating that an individual 

"might be seeking to have sexual encounters with minors." (July 7, 2014 Tr. at 9.) 

Specifically, the advertisement read: "Up to 500 younger the more u get – m4w 38. 

Younger the better let me take u shopping lol send pic, stats, and number! To text u." 

(State's Ex. A at 2.) 

{¶ 6} Investigators opened an investigation and "started issuing subpoenas to 

various internet service providers, tracking the postings." (July 7, 2014 Tr. at 9.) 

According to Detective Hunt, Craigslist maintains the anonymity of posters, requiring 

investigators to "notify [Craigslist] with a subpoena requesting identification information" 

such as the internet protocol address ("IP address") used to post the advertisement. 

(July 7, 2014 Tr. at 10.) 

{¶ 7} On September 20, 2011, Detective Hunt observed the following online 

Craigslist advertisement: 

[T]rade young 4 young (Columbus) I have a really young lover 

looking to find another guy who has the same to share. Mine 

is 4ft5in, 70lbs blonde, very little hair and has only been with 

me. If u are interested send pics, stats of yours and if I like we 
No. 14AP-812 3 

might do some trading. Or I can give benefits to u. No 

questions asked. I'm clean [white] and safe. 

(State's Ex. B at 3.) 

{¶ 8} After contacting Craigslist for information, Detective Hunt determined that 

an individual named Virgil Pennington had placed the advertisement linked to the email 

address leevp3@gmail.com, and that Pennington had an email account through America 

Online. Detective Hunt sought and obtained a search warrant to review other emails 

generated in response to Craigslist advertisements posted through Pennington's Gmail 

address. Specifically, on October 4, 2011, a judge from the Franklin County Municipal 

Court approved a warrant to Google, Inc., in California, seeking "evidence of the 

commission of the criminal offense of Importuning," in violation of R.C. 2907.07, to wit: 

"any and all emails including read, unread, and sent since September 21, 2011 and all 

indicia, documents, and records showing ownership or rights of possession of the email 

account of Virgil Pennington." (State's Ex. A at 1.) 

{¶ 9} Detective Hunt obtained approximately 500 email communications sent in 

response to the poster of the Craigslist advertisement, including a reply by an individual 

who identified himself online as "Jack Flash." One of the emails from the Jack Flash 

email account, dated in September 2011, "included a photograph of a young, white 

female." The female "was fully clothed, standing in * * * a kitchen area * * * next to a 

birthday cake with the number '13' on it." (July 7, 2014 Tr. at 12.) 

{¶ 10} In an email exchange between Flash and Pennington on September 27, 

2011, Flash wrote to Pennington at the email address leevp3@gmail.com, stating: "id love 

if you shared yours with me but i might be able to get one for you to have as well tell me 

about yours." A response from leevp3@gmail.com stated: "U first. I gave mine stats now 

u. She has only been with me and does what * * * daddy tells her." Flash responded as 

follows: "mine is 4'9 and she weighs about 80lbs shes a very good girl and very 

accommodating do you have a pic of yours i could see? and where in columbus are you? id 

love to play." Pennington then wrote: "Yes pic for pic. and there will be any trading. I 

take urs out for a so called lunch and if all goes well Ill let u take mine out for lunch. I'm 

very protective of her. She is a good girl. So I also have to know u are clean and safe." 

Flash responded: "[P]lease send yours as well." 
No. 14AP-812 4 

{¶ 11} Detective Hunt, out of concern "that there was a live victim" that he "needed 

to identify and locate," subpoenaed Yahoo!, Inc. ("Yahoo") to obtain the IP address 

information for Flash. (July 7, 2014 Tr. at 24.) The detective subsequently sought and 

obtained a warrant, issued by a municipal court judge on October 21, 2011, to search 

Yahoo for: 

[E]vidence of the commission of the criminal offenses of 

Compelling Prostitution, 2907.21 R.C., to wit: specifically, any 

and all emails including opened, unopened, sent, forwarded, 

deleted; any and all subscriber information including names, 

addresses, other email accounts; original IP address used and 

date the account was opened; any other information relating 

to the email account requested; and all indicia, documents, 

and records showing ownership or rights of possession of the 

email account of Jack Flash c/o Yahoo Inc. 

(State's Ex. B at 1.) 

{¶ 12} Approximately one week later, the detective received a CD from Yahoo 

containing "approximately 3,000 e-mails from the jack.flash75 account." (July 7, 2014 Tr. 

at 18.) The information included "some IP addresses as to when the account was opened," 

and Detective Hunt was able to determine that the Flash account was through Time 

Warner Cable. (July 7, 2014 Tr. at 18.) The detective sent a subpoena to Time Warner 

Cable, issued on November 1, 2011, "for the subscriber information for that specific IP 

address." (July 7, 2014 Tr. at 20.) Time Warner Cable sent Detective Hunt information 

that the IP address was associated with an address on Hunter Avenue, Columbus. 

{¶ 13} During his review of emails, Detective Hunt found photographs of an 

individual he was later able to identify as appellee. The detective determined that a 

second individual associated with the Hunter Avenue address did not match photographs 

from the emails. Appellee's name eventually appeared in a public records search as an 

individual who also resided at the Hunter Avenue address. Based on the information 

obtained, the detective believed that appellee "was jack.flash75." (July 7, 2014 Tr. at 26.) 

{¶ 14} Detective Hunt testified that he initially reviewed the emails from the Flash 

account "that only had attachments, i.e., photographs." (July 7, 2014 Tr. at 24.) During 

his "review of the different attachments and the earlier e-mails," Detective Hunt "came 

across numerous images" of what he believed to be "child pornography." (July 7, 2014 Tr. 

at 26.) 
No. 14AP-812 5 

{¶ 15} Detective Hunt subsequently obtained a warrant to search appellee's 

residence on Hunter Avenue, Columbus, for evidence of pandering obscenity involving a 

minor, in violation of R.C. 2907.32, illegal use of a minor in nudity oriented material, in 

violation of R.C. 2907.323, disseminating matter harmful to juveniles, in violation of R.C. 

2907.31, and endangering children, in violation of R.C. 2919.22. Detective Hunt 

identified state's exhibit C as the search warrant, dated November 14, 2011. At the time 

Detective Hunt and other officers arrived at the Hunter Avenue residence, appellee was at 

his workplace; Detective Hunt and another law enforcement officer went to appellee's 

place of employment and advised him of the nature of the warrant and "asked him if he 

would return home with us voluntarily or give us a key so that we could gain entry into the 

residence." (July 7, 2014 Tr. at 28.) Appellee accompanied the officers back to his 

residence. 

{¶ 16} During the search, police officers recovered a computer from appellee's 

residence. Detective Hunt testified that a forensic examination of the computer revealed 

"over 900 images" of child pornography. (July 7, 2014 Tr. at 28.) 

{¶ 17} Appellee testified on his own behalf during the hearing, and stated he was at 

work on the date the officers sought to execute the search warrant. Detectives arrived at 

his workplace and told him "[t]hey were getting ready to kick down the door if I would not 

go with them." (July 7, 2014 Tr. at 42.) Appellee testified that detectives informed him 

"they were looking for something in conjunction with another case. They were looking for 

a live person." (July 7, 2014 Tr. at 43.) One of the detectives "showed me the picture that 

I had shared * * * with Virgil Pennington and said do I know this person. I said no." 

(July 7, 2014 Tr. at 44.) Appellee acknowledged that the computers inside the house 

belonged to him. 

{¶ 18} On July 14, 2014, the trial court conducted another hearing on the motion 

to suppress. At the conclusion of the hearing, the court requested the parties to brief the 

"specific issue of should there have been a limit on the subpoena that went to Yahoo! 

initially." (July 14, 2014 Tr. at 17.) 

{¶ 19} On July 30, 2014, the trial court conducted a third hearing on the motion to 

suppress. During the hearing, the court stated on the record that it would grant the 

motion to suppress the email messages obtained from appellee's Yahoo account because 

"the search in this case was overbroad. It could have been narrow and should have been 
No. 14AP-812 6 

narrow and * * * based upon that overbreadth * * * it violated Mr. Shaskus' right to his 

Fourth Amendment search and seizure." (July 30, 2014 Tr. at 24-25.) By decision and 

entry filed October 9, 2014, the trial court granted the motion to suppress. 

{¶ 20} On appeal, the state sets forth the following assignment of error for this 

court's review: 

The Trial Court Committed Reversible Error in Sustaining 

Shaskus's Motion to Suppress. 

{¶ 21} Under its single assignment of error, the state argues the trial court erred in 

granting the motion to suppress based on the court's determination that the warrant was 

overbroad in its authorization to search "any and all" emails without regard to date. The 

state maintains the warrant was based on probable cause, and that it was not overbroad. 

{¶ 22} This court's review of a trial court's ruling on a motion to suppress "presents 

a mixed question of law and fact. When considering a motion to suppress, the trial court 

assumes the role of trier of fact and is therefore in the best position to resolve factual 

questions and evaluate the credibility of witnesses." State v. Burnside, 100 Ohio St.3d 

152, 2003-Ohio-5372, ¶ 8, citing State v. Mills, 62 Ohio St.3d 357, 366 (1992). Thus, "an 

appellate court must accept the trial court's findings of fact if they are supported by 

competent, credible evidence." Id., citing State v. Fanning, 1 Ohio St.3d 19, 20 (1982). 

Further, "[a]ccepting these facts as true, the appellate court must then independently 

determine, without deference to the conclusion of the trial court, whether the facts satisfy 

the applicable legal standard." Id., citing State v. McNamara, 124 Ohio App.3d 706, 707 

(4th Dist.1997). If a reviewing court "determines that a warrant should not have been 

issued, it must then determine whether the good-faith exception applies, and that 

question is a question of law, subject to de novo review by the appellate court." State v. 

Castagnola, 145 Ohio St.3d 1, 2015-Ohio-1565, ¶ 32. 

{¶ 23} As noted, appellee's motion to suppress sought the suppression of evidence 

obtained under two search warrants, including the warrant issued by the trial court on 

October 21, 2011, authorizing a search of the contents of appellee's Yahoo email account. 

The search warrant affidavit prepared by Detective Hunt in support of that warrant 

application stated in part: 

Affiant, Det. David R. Hunt * * * has been with the Franklin 

County Sheriff's Office for over 30 years retiring in September 
No. 14AP-812 7 

2011. For the past 19 years, affiant was assigned to the Special 

Investigations Unit conducting vice, narcotic, and internet 

crimes against children (ICAC) investigations. 

In late September 2011, the affiant began an investigation into 

an individual for the internet sexual exploitation of children. 

This individual was posting various online ads on Craigslist 

looking for "young" females for sex for which he would pay 

for. 

On Tuesday, September 20, 2011, one posting in the 

personals-casuals encounters was entitled: 

"trade young 4 young (Columbus) I have a really young lover 

looking to find another guy who has the same to share. Mine 

is 4ft5in, 70lbs blonde, very little hair and has only been with 

me. If u are interested send pics, stats of yours and if I like we 

might do some trading. Or I can give benefits to u. No 

questions asked. I'm clean whaite [sic] and safe." 

The affiant contacted the Franklin County Coroner's Office 

and provided the above noted height and weight to Chief 

Investigator Jack Sudimack who then plotted them on growth 

charts * * *. The height/weight provided on the posting would 

equate to a boy between the ages of 8-13 years old or a girl, 7-

13 years old. 

It is the affiant's training and experience that the above noted 

ad is consistent with that of an online child sexual predator. 

On October 4, 2011, the affiant obtained a search warrant to 

obtain emails for the target of that investigation from Google 

based upon the above series of facts. 

On October 12, 2011, the affiant received the requested emails 

from Google for the target as well as subscriber information 

from AOL.com for the targets account. The affiant reviewed a 

total of 549 emails dating from 09/21/11 to 10/04/11. One of 

the replies to the target was on 9/27/11 @ 1:56 PM which was 

an email from jack.flash75@yahoo.com to the target 

expressing interest in sharing his 13 y.o. daughter with the 

subscriber. "Jack Flash" attached a photograph of a young 

white juvenile female standing next to a birthday cake with 

the number "13" on the cake. The affiant then sent a 

subpoena to Yahoo to identify jack.flash75@yahoo.com. 
No. 14AP-812 8 

"Jack Flash" and the target exchanged several follow-up 

emails between each other from 1:56 PM and 3:17 PM. One 

email from "Jack Flash" stated: 

"mine is 4'9 and she weighs about 80lbs. shes a very good girl 

and very accommodating. do you have a pic of yours I could 

see? and where in columbus are you? I'd love to play" 

This description matched that of the earlier noted photograph 

sent by "Jack Flash" to the target. 

The affiant has sent an email preservation letter to Yahoo for 

jack.flash75@yahoo.com to save any additional emails from 

this person including those to possibly other suspects. The 

investigation into the original target of this investigation is 

still on-going. 

(State's Ex. B at 2-3.) 

{¶ 24} Based on the facts set forth in the above affidavit, a municipal court judge 

approved a warrant allowing access to "the email account of Jack Flash c/o Yahoo Inc." 

for evidence of the commission of the criminal offense of "Compelling Prostitution, 

2907.21 R.C.," and authorizing the search of "any and all emails including opened, 

unopened, sent, forwarded, deleted; any and all subscriber information including names, 

addresses, other email accounts; original IP address used and date the account was 

opened; any other information relating to the email account requested." (State's Ex. B at 

1.) 

{¶ 25} The Supreme Court of Ohio has held that "[c]entral to the Fourth 

Amendment is the probable-cause requirement. While a probable-cause determination 

for an arrest warrant is similar in nature to that for a search warrant, a search-warrant 

inquiry is much more complex and presents special considerations." (Emphasis sic.) 

Castagnola at ¶ 34, citing 2 LaFave, Search and Seizure, Section 3.1(b) (5th Ed.2012). In 

order for a search warrant to issue, "the evidence must be sufficient for the magistrate to 

conclude that there is a fair probability that evidence of a crime will be found in a 

particular place. The reviewing court then must ensure that the magistrate had a 

substantial basis for concluding that probable cause existed." Id. at ¶ 35. 

{¶ 26} Further, "[i]n reviewing the sufficiency of probable cause in an affidavit 

submitted in support of a search warrant issued by a magistrate, neither a trial court nor 
No. 14AP-812 9 

an appellate court should substitute its judgment for that of the magistrate by conducting 

a de novo determination as to whether the affidavit contains sufficient probable cause 

upon which that court would issue the search warrant." State v. George, 45 Ohio St.3d 

325 (1989), paragraph two of the syllabus. Rather, it is the duty of a reviewing court to 

simply "ensure that the magistrate had a substantial basis for concluding that probable 

cause existed." Id. Thus, "[i]n conducting any after-the-fact scrutiny of an affidavit 

submitted in support of a search warrant, trial and appellate courts should accord great 

deference to the magistrate's determination of probable cause, and doubtful or marginal 

cases in this area should be resolved in favor of upholding the warrant." Id. 

{¶ 27} In the instant case, with respect to facts relevant to the issue of probable 

cause, Detective Hunt averred in the affidavit cited above that members of the county's 

ICAC task force were investigating child exploitation on the internet; specifically, an 

individual had posted various online advertisements on Craigslist seeking " 'young' 

females for sex for which he would pay for." The poster placed a personal advertisement, 

dated September 20, 2011, seeking to "trade young 4 young." The poster stated he had a 

"really young lover," described as "4ft5in, 70lbs blond," and that he was "looking to find 

another guy who has the same to share." The investigating detective determined that the 

above description would "equate" to a girl between the ages of 7 and 13 years. Detective 

Hunt averred that, based on his training and experience, the advertisement at issue "is 

consistent with that of an online child sexual predator." 

{¶ 28} Detective Hunt further averred he had obtained a search warrant to obtain 

emails of the target of that investigation from Google. On October 12, 2011, the detective 

received from Google approximately 500 emails. One of the replies "was on 9/27/11 * * * 

which was an email from jack.flash75@yahoo.com to the target," in which the responder 

expressed interest in sharing his 13-year-old daughter with the subscriber. The 

individual, identified as "Jack Flash," had attached a photograph of a "young white 

juvenile female standing next to a birthday cake with the number '13' on the cake." 

Detective Hunt noted that Flash and the "target" had exchanged several follow-up emails, 

in which Flash represented that "mine is 4'9 and she weights about 80lbs." Flash further 

stated in the email that "shes a very good girl and very accommodating," and Flash 

indicated he would "love to play." 
No. 14AP-812 10 

{¶ 29} In reviewing the representations in the affidavit, and considering the totality 

of the circumstances, we find that the affidavit gave the magistrate grounds for 

determining there was a fair probability that the Yahoo account of Flash contained 

evidence of solicitation of a minor and/or minors for sexual activity. According deference 

to that determination, we conclude the magistrate had a substantial basis for finding 

probable cause to issue the warrant to search the email account at issue. 

{¶ 30} Such determination, however, does not end the inquiry into the legality of 

the search warrant. As noted, the focus of the trial court's analysis involved the issue of 

whether the warrant was overbroad. More specifically, during the suppression hearing, 

the court's primary inquiry was whether the absence of a temporal limitation rendered the 

warrant overbroad. 

{¶ 31} In addition to challenging whether an affidavit provides probable cause that 

evidence of a crime will be found, a criminal defendant can also challenge an affidavit on 

the basis that it is overbroad and/or not as particular as the Fourth Amendment requires. 

State v. Vu, 9th Dist. No. 11CA-0042-M, 2012-Ohio-746, ¶ 25 (In seeking to suppress 

evidence, a criminal defendant "may challenge the probable cause underlying the warrant, 

the particularity of the warrant itself, or both."). 

{¶ 32} In Castagnola, the Supreme Court recently considered "the application of 

the particularity requirement of the Fourth Amendment to the search of a computer." Id. 

at ¶ 1. Specifically, the court discussed two issues arising in the context of the particularity 

requirement: (1) "whether the warrant provides sufficient information to 'guide and 

control' the judgment of the executing officer in what to seize," and (2) "whether the 

category as specified is too broad in that it includes items that should not be seized." Id. 

at ¶ 79. The court further recognized, however, that "[a] search warrant that includes 

broad categories of items to be seized may nevertheless be valid when the description is 

' " 'as specific as the circumstances and the nature of the activity under investigation 

permit.' " ' " Id. at ¶ 80, quoting Guest v. Leis, 255 F.3d 325, 336 (6th Cir.2001), quoting 

United States v. Henson, 848 F.2d 1374, 1383 (6th Cir.1988), quoting United States v. 

Blum, 753 F.2d 999, 1001 (11th Cir.1985). 

{¶ 33} Under the facts of Castagnola, the defendant, Castagnola, admitted to a law 

enforcement official that he had damaged a prosecutor's vehicle after having looked up 

the address of the prosecutor on court records. A detective subsequently sought an arrest 
No. 14AP-812 11 

warrant for Castagnola, as well as a warrant to search his residence. The affidavit 

requested a warrant to search the premises for records and documents, including those 

stored on computers and electronic recording devices, and further stated that any items 

found would be seized and used as evidence in prosecuting the crimes of "retaliation, 

criminal trespassing, criminal damaging, and possession of criminal tools." Id. at ¶ 5. A 

warrant was issued, leading to the seizure of numerous items, including two computers. A 

forensic cyber-crimes analyst, employed by the Ohio Bureau of Criminal Investigation, 

examined the computers through the use of a forensic software program and found a 

screen filled with images that she thought might be child pornography. A detective then 

sought a second warrant to search the contents of the computers for evidence relating to 

child pornography. Castagnola was subsequently indicted for ten counts of pandering 

sexually oriented material. 

{¶ 34} Castagnola moved to suppress the evidence from the search, but the trial 

court denied the motion and the reviewing court affirmed. The Supreme Court accepted 

jurisdiction on two propositions of law, including the issue of whether a general 

exploratory search for evidence on a computer meets the particularity requirement of the 

Fourth Amendment. 

{¶ 35} The Supreme Court noted under the facts of the case that the detective 

believed Castagnola "had found [the prosecutor's] address online and that evidence of the 

online search would be useful in the prosecution of the alleged offenses." Id. at ¶ 86. The 

detective testified at the suppression hearing that, in addition to a general Google or 

online white pages search for the prosecutor's name, he believed Castagnola may have 

searched a clerk of courts' website for information about the prosecutor because 

Castagnola mentioned in his conversation with a source that he discovered the prosecutor 

had received a parking ticket years earlier. The detective further testified that, "from his 

previous experience, he knew that an online search would create 'a cookie, which will tell 

you where [the persons who have used the computer] have been, what searches they have 

done, things of that nature.' " Id. 

{¶ 36} The Supreme Court determined that the search warrant lacked particularity, 

and held that the above "details regarding the records or documents stored on the 

computer should have been included in the search warrant to guide and control the 

searcher and to sufficiently narrow the category of records or documents subject to 
No. 14AP-812 12 

seizure." Id. at ¶ 87. The court held that "this degree of specificity was required, since the 

circumstances and the nature of the activity under investigation permitted the affiant to 

be this specific." Id. 

{¶ 37} The Castagnola court also addressed the state's argument challenging "the 

notion that a search warrant must contain a restrictive protocol, methodology, or other 

strategy for conducting the search in order to satisfy the Fourth Amendment." Id. at ¶ 88. 

The Supreme Court "agree[d] that the Fourth Amendment does not require a search 

warrant to specify restrictive search protocols," but further "recognize[d] that the Fourth 

Amendment does prohibit a 'sweeping comprehensive search of a computer's hard 

drive.' " Id., quoting United States v. Walser, 275 F.3d 981, 986 (10th Cir.2001). The 

court thus held that "[t]he logical balance of these principles leads to the conclusion that 

officers must describe what they believe will be found on a computer with as much 

specificity as possible under the circumstances," thus enabling the searcher "to narrow his 

or her search to only the items to be seized." Id. The court found this requirement 

"especially important when * * * the person conducting the search is not the affiant." Id. 

{¶ 38} In general, the Warrants Clause of the Fourth Amendment "requires 

particularity and forbids overbreadth." United States v. Cioffi, 668 F.Supp.2d 385, 390 

(E.D.N.Y.2009). As noted by one court, the term "overbreadth" is primarily used to refer 

to "authorizing seizures in excess of probable cause." United States v. Costin, D.C.Conn. 

No. 3:05-cr-38 (July 31, 2006). Some courts, however, use this term "more generally, to 

describe a lack of particularity." Id. 

{¶ 39} The Supreme Court in Castagnola noted an overlap and interplay between 

"the probable-cause and particularity requirements." Id. at ¶ 70. Federal courts have 

recognized that challenges to a warrant on the grounds they are overbroad and lack 

sufficient particularity, while "somewhat similar in focus," involve "two distinct legal 

issues: (1) whether the items listed as 'to be seized' in the warrant were overbroad because 

they lacked probable cause and (2) whether the warrant was sufficiently particularized on 

its face to provide the necessary guidelines for the search by the executing officers." 

United States v. Hernandez, S.D.N.Y. No. 09-CR-625 (Jan. 6, 2010), citing United States 

v. Cohan, 628 F.Supp.2d 355, 359 (E.D.N.Y.2009) ("A warrant * * * can be 

unconstitutionally infirm in two conceptually distinct but related ways: either by seeking 

specific material as to which no probable cause exists, or by giving so vague a description 
No. 14AP-812 13 

of the material sought as to impose no meaningful boundaries."). See also In re Grand 

Jury Subpoenas, 926 F.2d 847, 856-57 (9th Cir.1991) (noting that particularity and 

breadth are two aspects of specificity, particularity being "the requirement that the 

warrant must clearly state what is sought," while breadth "deals with the requirement that 

the scope of the warrant be limited by the probable cause on which the warrant is based"). 

{¶ 40} In the instant case, appellee argued in his motion to suppress before the 

trial court that the search warrant was overbroad because it "authorized the sheriff to 

seize 'any and all emails' in the jack.flash75@yahoo.com account," and because the 

warrant "did not limit the production of the emails to the particular time frame of the 

investigation of the September 20, 2011 Craigslist advertisement." (Appellee's Mot. to 

Suppress at 6.) As to the latter point, appellee argued that the detective exceeded the 

scope of the warrant by examining emails prior to September 2011, including a review of 

emails as far back as March 2009. 

{¶ 41} The trial court, in granting the motion to suppress, agreed with appellee's 

claim that the warrant was overbroad in that it permitted the search of emails in 

appellee's Yahoo account without any temporal limitations. The trial court noted that 

investigators had "requested information from Pennington that was very limited," while 

"the requested information from Jack Flash was very broad." (July 30, 2014 Tr. at 25.) 

The court found that Yahoo "could have complied with a narrow request." (July 30, 2014 

Tr. at 25.) 

{¶ 42} A number of federal courts have addressed claims that the use of "any and 

all" language in a warrant pertaining to the search of electronic data grants the searching 

officer too much discretion and converts the warrant into a general warrant. The Sixth 

Circuit approach involves "determining reasonableness on a case-by-case basis." United 

States v. Neuhard, E.D.Mich. No. 2:15-cr-20425 (Feb. 25, 2016). See also United States 

v. Richards, 659 F.3d 527, 538 (6th Cir.2011) (noting that "the majority of federal courts 

have eschewed the use of a specific search protocol and, instead, have employed the 

Fourth Amendment's bedrock principle of reasonableness on a case-by-case basis"). 

{¶ 43} In this respect, federal courts have approved search warrants allowing 

access to the entire contents of an email account "in order to conduct a search for emails 

within the limited categories contained in the warrant." In re A Warrant for All Content 

& Other Information Associated with the Email Account xxxxxxx@Gmail.com 
No. 14AP-812 14 

Maintained at Premises Controlled by Google, Inc., 33 F.Supp.3d 386, 394 (S.D.N.Y. 

2014) (hereafter "In re Gmail Warrant") (noting that "every case of which we are aware 

that has entertained a suppression motion relating to the search of an email account has 

upheld the Government's ability to obtain the entire contents of the email account to 

determine which particular emails come within the search warrant"). See also United 

States v. McDarrah, S.D.N.Y. No. 05-CR-1182 (July 17, 2006), aff'd 351 Fed.Appx. 558 

(2d Cir.2009) (upholding search warrant seeking "[a]ll stored electronic mail and other 

stored content" from AOL email account against overbreadth challenge); United States v. 

Upham, 168 F.3d 532, 535 (1st Cir.1999) (court finding, in case involving search of 

computer for images of child pornography on computer, that affidavit requesting "[a]ny 

and all" computer disks and disk drives "was about the narrowest definable search and 

seizure reasonably likely to obtain the images"); United States v. Deppish, 994 F.Supp.2d 

1211, 1215 (D.C.Kan.2014) (upholding warrant requiring "all contents" of Yahoo account 

for evidence of crimes of sexual exploitation of minors); Richards at 539 (upholding 

search of defendant's entire internet server and noting that, in "[a]pplying a 

reasonableness analysis on a case-by-case basis, the federal courts have rejected most 

particularity challenges to warrants authorizing seizure and search of entire personal or 

business computers"). 

{¶ 44} Regarding search warrant challenges based on the lack of temporal 

limitations, the absence of a date limitation may render a warrant overbroad or 

insufficiently particular. See United States v. Ford, 184 F.3d 566, 576 (6th Cir.1999) 

("Failure to limit broad descriptive terms by relevant dates, when such dates are available 

to the police, will render a warrant overbroad."). Federal courts, however, appear to 

generally agree that temporal restrictions are not mandatory. See United States v. DSD 

Shipping, A.S., S.D.Ala. No. 15-00102-CG-B (Sept. 2, 2015) ("Defendants cite no binding 

precedent to support the assertion that temporal restrictions are a mandatory 

requirement of a digital search. Rather, * * * courts consider the totality of the 

circumstances and in some cases, find that a temporal restriction is part of a series of 

factors considered rather than a threshold requirement."); United States v. Triumph 

Capital Group, 211 F.R.D. 31, 58 (D.C.Conn.2002) ("A temporal limitation in a warrant is 

not an absolute necessity, but is only one indicia of particularity," and therefore "the 
No. 14AP-812 15 

absence of a temporal limitation does not render the warrant a prohibited general 

warrant."). 

{¶ 45} Cases in which federal courts have upheld search warrants in the absence of 

temporal limitations typically look to the nature and circumstances of the criminal 

activity, as well as a consideration of whether the warrant was "already adequately 

particularized." United States v. Capote, N.D.Ga. No. 1:15-CR-00338-MHC-CMS (May 5, 

2016) ("Because the warrant in this case was already sufficiently particularized based on 

the subject matter limitation—i.e., evidence relating to the criminal activity under 

investigation—the lack of an additional time period limitation in the warrant does not 

render the search unconstitutional."); United States v. Ali El Khateeb, M.D.Fla. No. 8:14-

cr-00185-T-23MAP (Aug. 4, 2015), quoting United States v. Smith, 918 F.2d 1501, 1507-

08 (11th Cir.1990) (rejecting claim that warrant's failure to specify a date range rendered 

it fatally overbroad and defective for the seizure of any emails; rather, because the warrant 

"limits the seizure of electronic information to that connected with the possession, receipt, 

and distribution of controlled substances," such " 'nexus' satisfies the practical realities 

'that enable the searcher to ascertain and identify things authorized to be seized' "); 

United States v. Lee, N.D.Ga. No. 1:14-CR-00227-TCB-RGV (July 6, 2015) (rejecting 

argument that issuance of a search warrant requiring Google to disclose the contents of 

any electronic communications or files belonging to the relevant account did not satisfy 

Fourth Amendment's particularity requirement; investigative agents "had 'good reason 

not to include a temporal limitation in the warrants,' since they did not know, when they 

obtained the warrants, whether [an internet website] existed in some other form at the 

time the accounts were first opened in 2004"). 

{¶ 46} Federal courts have rejected the necessity for temporal limitations in cases 

involving the search of computers for child pornography, noting the particular difficulties 

posed in such cases. See, e.g., Deppish at 1220 (finding that "[a] temporal limitation was 

not reasonable because child pornography collectors tend to hoard their pictures for long 

periods of time," and further noting "the dynamic nature of email accounts makes it more 

difficult to limit the scope of emails to particular dates"); United States v. Adams,

D.C.Ver. No. 2:14-cr-79 (Aug. 25, 2015) (rejecting claim, in child pornography case, that 

warrant was overbroad because it did not constrain the search to a particular time frame, 

and distinguishing between cases involving business records and electronically stored 
No. 14AP-812 16 

child pornography; "there is often no way around the fact that many image files will have 

to be viewed to ensure that no relevant evidence has been missed"). 

{¶ 47} Ohio courts have also considered the issue of temporal limitations in the 

context of the search of electronic devices. In State v. McCrory, 6th Dist. No. WD-09-

074, 2011-Ohio-546, ¶ 38, the court noted the general rule adopted by federal courts that 

"[t]he absence of a temporal limitation will not automatically render the warrant a 

prohibited general warrant." Rather, "[a] temporal limitation in a warrant is merely one 

indicium of particularity." Id. (Collecting federal authorities; citations omitted.) 

{¶ 48} Under the facts of McCrory, a detective investigated allegations by a woman 

that the appellant had sexually assaulted her at his residence after she responded to an 

advertisement on "craigslist.org for a topless maid." Id. at ¶ 2. A municipal judge issued 

three search warrants based on facts in the detective's affidavit indicating that evidence of 

rape would be found on the appellant's home computers and peripheral devices. The 

appellant, who was subsequently charged with gross sexual imposition and pandering 

sexually oriented material involving a minor, filed a motion to suppress evidence seized 

from his home computer. 

{¶ 49} One of the warrants issued in that case authorized the police "to analyze the 

seized devices and 'recover any emails, documents, photos, or any other documentation 

pertaining to Craigslist.org, the victim from 08-6911, any phone calls, text messages 

received or made to the victim of 08-6911 * * * which is in violation of 2907.02 ORC 

Rape.' " Id. at ¶ 9. The trial court denied the motion to suppress and, on appeal, the 

appellant raised a challenge that the warrants were insufficiently particular and overbroad 

because "they described the items to be seized in broad terms without imposing a 

temporal limitation." Id. at ¶ 32. More specifically, the appellant argued that "a 'narrower 

description was available to the police, namely a limitation to the time between the 

[Craigslist] ad placement (June 14, 2008) and the complaint (June 28, 2008).' " Id. at 

¶ 33. 

{¶ 50} The reviewing court in McCrory rejected the appellant's argument, finding 

that the lack of temporal limitations did not render the warrants overbroad because the 

warrants "contained sufficient subject-matter limitations to satisfy the particularity 

requirement." Id. at ¶ 34. The court noted that "[s]ubject-matter limitations sufficient to 
No. 14AP-812 17 

satisfy the particularity requirement include references to the crime or criminal activity at 

hand, specific persons, or specific types of materials." Id. at ¶ 43. 

{¶ 51} In the present case, based on this court's review of the record and applicable 

law, we conclude that the warrant authorizing the search of appellee's Yahoo email 

account was not overbroad or insufficiently particular. We have previously determined 

that the magistrate had a substantial basis for finding probable cause to permit the search 

of the account for evidence of solicitation of a minor and/or minors for sexual activity. 

The warrant at issue specifically identified the email account to be searched and limited 

the scope of the search to evidence of a particular crime, i.e., "evidence of the commission 

of the criminal offense of Compelling Prostitution, [R.C.] 2907.21." See Deppish at 1220 

(while affidavit sought disclosure of entire Yahoo email account, it "limited seizure to 

instrumentalities and evidence tending to show and identify persons engaged in" a 

specific offense, i.e., "sexual exploitation of children in violation of 18 U.S.C. § 2252(a)"). 

See also United States v. Tsarnaev, 53 F.Supp.3d 450, 457 (D.C.Mass.2014) (the scope of 

the warrant was properly limited by "restricting the search to evidence of specified 

crimes"); State v. Enyart, 10th Dist. No. 08AP-184, 2010-Ohio-5623 ¶ 40 (search warrant 

not overbroad where it "named the items to be seized in reference to the crimes of 

voyeurism and pandering, thus limiting the search to items related to the offense"). 

{¶ 52} The fact that the warrant in this case authorized the search of "any and all" 

emails in the account did not render it impermissibly overbroad or facially invalid. As 

noted, federal courts have in general upheld the government's ability to "obtain the entire 

contents" of an email account in order to determine "which particular emails come within 

the search warrant." In re Gmail Warrant at 394 (collecting cases; citations omitted.) 

See also United States v. Grimmett, 439 F.3d 1263, 1271 (10th Cir.2006) (warrant 

authorizing agents to search "any and all" computer equipment was not overbroad 

because it contained "sufficiently particularized language requiring a nexus with child 

pornography"). 

{¶ 53} Nor do we find the lack of a temporal limitation to be dispositive under the 

circumstances. As cited above, courts have generally determined there is no blanket 

requirement that warrants have a date restriction. During the suppression hearing in this 

case, Detective Hunt testified that he was concerned there was "a live victim that was 

being molested in real time" (i.e., a minor being traded for sex) that he needed to identify 
No. 14AP-812 18 

and locate. (July 7, 2014 Tr. at 13.) As noted by the state, one of the emails from Flash, 

and identified in the affidavit, stated that the girl he was offering to trade for sex was "a 

very good girl and very accommodating," suggesting that Flash had traded the minor for 

sex in the past. The detective also averred in the affidavit that he sent Yahoo a 

preservation letter to save additional emails from this individual, including those to 

"possibly other suspects," and that the investigation was "still on-going." 

{¶ 54} Thus, at the time of the affidavit, investigators knew that an individual using 

a Yahoo email account and the moniker "Jack Flash" had responded to an advertisement 

by a poster seeking to "trade young 4 young," and that Flash in turn had offered to trade a 

minor for sex; the ICAC task force, however, did not have information regarding the 

identity of Flash or the girl, and whether Flash had previously arranged through emails to 

trade the girl for sex. The state argues that, based on the information available at the 

time, including language in the emails suggesting Flash had traded an "accommodating" 

minor in the past, Detective Hunt had a valid reason not to include a temporal limitation. 

We agree and find it was reasonable for the magistrate reviewing the affidavit to conclude 

that emails in the Yahoo account predating the exchanges between Flash and Pennington 

might contain evidence relating to solicitation of a minor. See United States v. McDarrah, 

351 Fed.Appx. 558, 561 (2d Cir.2009) (rejecting claim that warrant to search entire 

contents of AOL account was overbroad as not limited to email messages between 

defendant and "Julie" or "David Smith"; magistrate "could have determined there was 

ample evidence that a crime was committed and strong indication that further evidence of 

criminal activity could be found in e-mails between McDarrah and people other than 

'Julie' and 'David Smith' "); Richards at 541 ("In light of the information known at the 

time the search warrant was issued," warrant authorizing search of entire server was not 

overbroad.); Lee (even though certain emails may have "predated the alleged onset" of 

criminal activity, such emails "might nevertheless prove relevant" in determining the 

identity of the defendants involved, and could be important for "authenticating the 

evidence and laying a proper foundation"). Based on the record presented, we conclude 

that the warrant in this case was " ' "as specific as the circumstances and the nature of the 

activity under investigation permit[ted]." ' " Castagnola at ¶ 80, quoting Leis at 336, 

quoting United States v. Henson, 848 F.2d 1374, 1383 (6th Cir.1988), quoting United 

States v. Blum, 753 F.2d 999, 1001 (11th Cir.1985). 
No. 14AP-812 19 

{¶ 55} Additionally, we note that Detective Hunt testified that he conducted the 

search of the email account employing a limiting methodology. Specifically, the detective 

performed a filtering procedure by restricting his review of the emails to those with 

attachments, hoping to discover the identity of the 13-year-old girl depicted in the 

photograph in the email sent by appellee. See, e.g., Deppish at 1220 (although warrant 

did not identify a particularized search strategy, agent employed such a strategy; "[h]e did 

not search or view the entirety of the emails in the YAHOO account," but, rather, he 

"performed a keyword, filtered search, to focus on those emails that would probably 

contain instrumentalities and evidence * * * tending to show and identify persons engaged 

in sexual exploitation of children"). See also Grimmett at 1270 (even though warrant 

authorized search of "any and all computer software," there was no evidence of 

"exploratory rummaging" as agent "testified that he specially searched for files with 

images," and thus "[n]o wholesale searching occurred here, despite the broad authority 

the warrant may have granted"). Similarly, the facts of this case do not suggest evidence 

of such "exploratory rummaging," nor does the record indicate the search method 

employed by the detective was unreasonable. 

{¶ 56} On review, we do not find that the search warrant at issue was 

impermissibly overbroad or that it was particularly insufficient. Accordingly, we conclude 

that the trial court erred in granting appellee's motion to suppress evidence with respect 

to the search of appellee's Yahoo email account. 

{¶ 57} Appellee has submitted, as supplemental authority, the Supreme Court's 

recent decision in Castagnola. We find, however, the facts of that case, as well as the 

particularity concerns addressed therein, are distinguishable and do not compel a 

determination that the search warrant at issue in this case was invalid. 

{¶ 58} In general, Castagnola stands for the proposition that "[t]he particularity 

demanded from a search warrant is contingent upon the government's knowledge and the 

particular circumstances of the case." State v. Knoefel, 11th Dist. No. 2014-L-088, 2015-

Ohio-5207, ¶ 129, citing Castagnola at ¶ 80. As noted in our earlier discussion of 

Castagnola, the Supreme Court, in finding that the language of the search warrant did not 

"guide and control" the judgment of the forensic examiner, cited testimony by the 

examiner that "Castagnola's computer was brought in for a case involving 'menacing, 

threatening, and intimidation,' " and that the "analyst read the case synopsis and the 
No. 14AP-812 20 

search-warrant affidavit and then looked at all the information on the hard drive 'looking 

for any evidence of intimidation of David * * * and anything associated with that.' " Id. at 

¶ 83. The court found "the determination on what to seize was within [the forensic 

examiner's] discretion." Id. Further, the broad language of the warrant permitted the 

forensic examiner "to examine every record or document on Castagnola's computer in 

order to find any evidence of the alleged crimes." Id. at ¶ 84. Noting testimony by the 

detective as to his knowledge of Castagnola's online activities in seeking information 

about the law director, as well as the detective's general knowledge about an online search 

creating a "cookie," the Supreme Court found "those details regarding the records or 

documents stored on the computer should have been included" in the search warrant to 

guide and control the searcher because "the circumstances and the nature of the activity 

under investigation permitted the affiant to be this specific." Id. at ¶ 86, 87. 

{¶ 59} By contrast, the investigators in the present case did not possess that type of 

knowledge and information. Stated otherwise, under the facts of Castagnola, the police 

were "capable of providing greater particularity" based on the amount of knowledge they 

possessed regarding the object of the search. Knoefel at ¶ 129 (distinguishing the facts of 

Castagnola). Additionally, the concerns raised by the scope of the search conducted 

under the facts of Castagnola (permitting the forensic examiner "to examine every record 

or document on Castagnola's computer in order to find any evidence of the alleged 

crimes") are not present in the instant case. Castagnola at ¶ 84. As previously noted, the 

warrant at issue in this case authorized police to search for evidence related to a specific 

offense, and Detective Hunt limited his review of the emails to those with attachments, 

hoping to discover the identity of the 13-year-old girl described by appellee in the email he 

sent to Pennington.1

 

1 We note that the facts of the instant case, in which the detective who submitted the affidavit was involved 

in the investigation and search, do not raise an additional concern noted by the Supreme Court in 

Castagnola regarding scenarios in which a mistaken search can occur where "the person conducting the 

search [i.e., the forensic analyst] is not the affiant." Castagnola at ¶ 88. 
No. 14AP-812 21 

{¶ 60} Based on the foregoing, we conclude that the trial court erred in granting 

appellee's motion to suppress evidence seized from his Yahoo email account.2 We 

therefore sustain the state's single assignment of error. 

{¶ 61} Accordingly, having sustained the state's assignment of error, the judgment 

of the Franklin County Court of Common Pleas is reversed, and this matter is remanded 

to that court for further proceedings in accordance with law, consistent with this decision. 

Judgment reversed and cause remanded. 

DORRIAN, P.J., concurs. 

BRUNNER, J., dissents. 

BRUNNER, J., dissenting. 

{¶ 62} I respectfully dissent from the decision of the majority. I would overrule the 

State's sole assignment of error and affirm the judgment of the trial court. I would hold 

that a search warrant based on a single suspicious e-mail conversation that purported to 

authorize the search of any and all e-mails regardless of sender, recipient, subject, date, or 

status (opened, unopened, deleted, sent, or forwarded) or duration of e-mail account was 

unconstitutionally overbroad. The executing officer (who was also the affiant for the 

search warrant) was not justified in relying on it. I would hold that the fruits of that 

search and other derivative searches traceable to such a warrant were properly excluded. 

{¶ 63} In considering whether a warrant is unconstitutionally overbroad, reviewing 

courts must conduct a de novo review. State v. Dingess, 10th Dist. No. 10AP-848, 2011-

Ohio-5659, ¶ 32, citing State v. Enyart, 10th Dist. No. 08AP-184, 2010-Ohio-5623, ¶ 38; 

State v. Gritten, 11th Dist. No. 2004-P-0066, 2005-Ohio-2082, ¶ 11; United States v. 

Ford, 184 F.3d 566, 575 (6th Cir.1999). 

{¶ 64} The authority for finding a warrant overbroad finds its origins in the plain 

text of the Fourth Amendment. 

The right of the people to be secure in their persons, houses, 

papers, and effects, against unreasonable searches and 

seizures, shall not be violated, and no Warrants shall issue, 

but upon probable cause, supported by Oath or affirmation, 

 

2 The trial court did not reach the merits of appellee's constitutional challenge to the second warrant, 

authorizing the search of the Hunter Avenue residence. We leave it to the trial court to decide in the first 

instance, on remand, that issue. 
No. 14AP-812 22 

and particularly describing the place to be searched, and the 

persons or things to be seized. 

(Emphasis added.) "It is familiar history that indiscriminate searches and seizures 

conducted under the authority of 'general warrants' were the immediate evils that 

motivated the framing and adoption of the Fourth Amendment." Payton v. New York, 

445 U.S. 573, 583 (1980); see also id. at 583-85, fn. 21, quoting Stanford v. Texas, 379 

U.S. 476, 481-82 (1965); Boyd v. United States, 116 U.S. 616, 625 (1886). "[S]earches 

deemed necessary should be as limited as possible. [T]he problem is not that of intrusion 

per se, but of a general, exploratory rummaging in a person's belongings." (Emphasis 

sic.) Coolidge v. New Hampshire, 403 U.S. 443, 467 (1971). This Court has observed, " 

'[t]o search for evidence of a crime there must "be a nexus * * * between the item to be 

seized and criminal behavior" as well as "cause to believe that the evidence sought will aid 

in a particular apprehension or conviction." ' " Dingess at ¶ 33, quoting Enyart at ¶ 32, 

quoting Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294, 307 (1967). 

{¶ 65} The majority decision spends significant effort in discussing and 

distinguishing the recent Supreme Court of Ohio decision finding that a warrant that 

purported to authorize a search of a computer was insufficiently particular where it failed 

to limit the search within the computer to particular subjects and sought instead merely 

"[r]ecords and documents stored on the computer." State v. Castagnola, 145 Ohio St.3d 

1, 2015-Ohio-1565, ¶ 77. In reaching this finding, the Supreme Court explained: 

Courts addressing the particularity requirement of the Fourth 

Amendment are concerned with two issues. The first issue is 

whether the warrant provides sufficient information to "guide 

and control" the judgment of the executing officer in what to 

seize. United States v. Upham, 168 F.3d 532, 535 (1st 

Cir.1999). The second issue is whether the category as 

specified is too broad in that it includes items that should not 

be seized. See United States v. Kow, 58 F.3d 423, 427 (9th 

Cir.1995). 

A search warrant that includes broad categories of items to be 

seized may nevertheless be valid when the description is " ' "as 

specific as the circumstances and the nature of the activity 

under investigation permit." ' " Guest v. Leis, 255 F.3d 325, 

336 (6th Cir.2001), quoting United States v. Henson, 848 

F.2d 1374, 1383 (6th Cir.1988), quoting United States v. 

Blum, 753 F.2d 999, 1001 (11th Cir.1985). Warrants that fail to 
No. 14AP-812 23 

describe the items to be seized with as much specificity as the 

government's knowledge and the circumstances allow are 

"invalidated by their substantial failure to specify as nearly as 

possible the distinguishing characteristics of the goods to be 

seized." United States v. Fuccillo, 808 F.2d 173, 176 (1st Cir.). 

Because computers can store a large amount of information 

"there is a greater potential for the 'intermingling' of 

documents and a consequent invasion of privacy when police 

execute a search for evidence on a computer. * * * Officers 

must be clear as to what it is they are seeking on the computer 

and conduct the search in a way that avoids searching files of 

types not identified in the warrant." United States v. Walser, 

275 F.3d 981, 986 (10th Cir.2001). "[P]ractical accuracy 

rather than technical precision" is the operative consideration. 

United States v. Dorrough, 927 F.2d 498, 500 (10th Cir.1991). 

Castagnola at ¶ 79-81. The Supreme Court also explained the fact that the records "would 

be used to prosecute Castagnola for the crimes of retaliation, criminal trespassing, 

criminal damaging, and possession of criminal tools, added nothing to narrow the 

search." Id. at ¶ 82. "As written," the Court concluded, "this search warrant failed to 

address both concerns that courts consider when determining whether a warrant satisfies 

the particularity requirement of the Fourth Amendment." Id. 

{¶ 66} In judging the validity of a warrant we are limited to the information that 

was presented to the magistrate which, in cases without a hearing, confines our analysis to 

the four corners of the warrant affidavit. Castagnola at ¶ 39; State v. Bean, 13 Ohio 

App.3d 69, 71 (6th Dist.1983). Here the warrant affidavit set forth the facts known to the 

police that justified the suspicion that evidence of a crime might be found at Yahoo!, Inc. 

("Yahoo") as follows: 

[The target of another investigation, on] Tuesday, 

September 20, 2011, [posted an advertisement on Craigslist:] 

"trade young 4 young (Columbus) I have a really young lover 

looking to find another guy who has the same to share. Mine 

is 4ft5in, 70lbs blonde, very little hair and has only been with 

me. If u are interested send pics, stats of yours and if I like we 

might do some trading. Or I can give benefits to u.No 

questions asked. I'm clean whaite and safe." 

* * * 
No. 14AP-812 24 

One of the replies to the target was on 9/27/11 @ 1:56 PM 

which was an email from jackflash75@yahoo.com to the 

target expressing interest in sharing his 13 y.0. daughter with 

the [target]. "Jack Flash" attached a photograph of a young 

white juvenile female standing next to a birthday cake with 

the number "13" on the cake. 

"Jack Flash" and the target exchanged several follow-up 

emails between each other from 1:56 PM and 3:17 PM. One 

email from "Jack Flash" stated: 

"mine is 4'9 and she weighs about 80lbs. shes a very good girl 

and very accommodating. do you have a pic of yours i could 

see? and where in columbus are you? id love to play" 

This description matched that of the earlier noted photograph 

sent by "Jack Flash" to the target. 

(Sic passim.) (State's Ex. B at 2-3.) Based on this information, Detective Hunt sought and 

obtained a warrant to search Yahoo and seize, "any and all emails including opened, 

unopened, sent, forwarded, deleted [as to] the email account of Jack Flash," as well as 

information regarding "other email accounts." Id. at 2. 

{¶ 67} Like computers, e-mail accounts "can store a large amount of information" 

and thus, as is true of computer searches, " 'there is a greater potential for the 

"intermingling" of documents and a consequent invasion of privacy when police' " seek to 

search through a person's e-mails. Castagnola at ¶ 81, quoting United States v. Walser, 

275 F.3d 981, 986 (10th Cir.2001). Consequently, "[o]fficers must be clear as to what it is 

they are seeking" and avoid seizing or searching "types [of e-mails] not identified in the 

warrant." Id. Applying the reasoning set forth by Castagnola to this case, the warrant 

sought and obtained by Detective Hunt was insufficiently particular to satisfy 

constitutional requirements. The warrant affidavit presented evidence that "Jack Flash" 

had responded to an advertisement one afternoon in September 2011 that appeared to 

propose the exchange of juvenile children for sexual purposes. The affidavit presented no 

evidence to suggest that "Jack Flash" had followed through on the trade or that the wouldbe crime actually materialized past the planning stages, nor did it present any evidence 
No. 14AP-812 25 

that "Jack Flash" had ever attempted such a trade before.3 "Jack Flash's" description of a 

girl as "very accommodating" implied that he had some experience with her willingness to 

engage in sexual behavior. (State's Ex. A at 6.) But the affidavit did not explain why 

evidence of "Jack Flash's" sexual activities with this girl would be contained in e-mails, let 

alone explain the need to seize every e-mail "opened, unopened, sent, forwarded, [or] 

deleted" from "Jack Flash's" e-mail account regardless of subject, sender, or recipient for 

the entire history of the account's existence or why information about "other email 

accounts" would be pertinent. (State's Ex. B at 2.) 

{¶ 68} In short, like the warrant in Castagnola, the warrant here does not "guide 

and control" the judgment of the executing officer in what to seize (because it essentially 

commands the officer to seize everything), and the category as specified is too broad in 

that it includes items that should not be seized (thousands of unrelated and irrelevant 

private communications). Castagnola at ¶ 79, citing United States v. Upham, 168 F.3d 

532, 535 (1st Cir.1999); United States v. Kow, 58 F.3d 423, 427 (9th Cir.1995). This 

warrant, which purported to authorize the seizure of literally every e-mail to pass through 

the jack.flash75 account for the entire duration of the account's existence, irrespective of 

sender, recipient, or subject, was the quintessential "general, exploratory rummaging in a 

person's belongings." Coolidge at 467. 

{¶ 69} The State argues that the broad scope of the warrant was justified by the 

need to determine "whether, when, how often, and with whom 'Jack Flash' had offered up 

the girl for sex in the past, and any other children involved." (State's Brief at 9.) 

However, the concept that "Jack Flash" had ever "offered up [this] girl for sex in the past, 

and any other children," is post hoc speculation unsupported at its inception by an 

evidentiary basis. Id. at 9. The affidavit contains no factual information that "Jack Flash" 

had used e-mail to offer this girl or any other children for sex before, and the affiant did 

not offer an opinion based on a factual reason to suspect that he had. (State's Ex. B at 2.) 

{¶ 70} Warrants issue upon probable cause, and the basis for probable cause is 

fact, not speculation. Miller v. Sanilac Cty., 606 F.3d 240, 248 (6th Cir.2010), quoting 

Henry v. United States, 361 U.S. 98, 102 (1959) (defining probable cause as "when 'the 

facts and circumstances * * * warrant a prudent [person] in believing that an offense has 

 

3 Shaskus apparently did not actually have a daughter and stated he had no idea who the girl was in the 
No. 14AP-812 26 

been committed.' "). The speculation that the State proposes to indulge is little different 

from arguing that there is probable cause to search the house of a suspected burglar for 

the loot of other, different burglaries on the theory that if a burglar has committed one 

burglary, he must have committed others. 

{¶ 71} The reasons supporting probable cause must be contained in the warrant 

affidavit. It is not sufficient to offer them for the first time (such as in a suppression 

hearing or an appellate brief) long after the warrant has been executed. Castagnola at 

¶ 39; Bean at 71. Only by post hoc speculation could one conclude from the warrant 

affidavit that "Jack Flash's" e-mails (other than e-mails related by time, senders, or 

subjects, to the conversation that justified the search warrant) would show evidence of 

other crimes. (State's Ex. B at 2-3.) 

{¶ 72} The State argues that the warrant was justified by the need to determine the 

identity of the girl in the photograph and the need to determine "Jack Flash's" identity. I 

acknowledge that it was important to the investigation to attempt to discern the identity 

of "Jack Flash" and his purported "daughter." However, "Jack Flash's" identity (and the 

identity of his "daughter") could have been readily ascertained by requesting records from 

Yahoo regarding the IP address and identity of the owner of the e-mail account. In fact, in 

addition to the request for "all emails," the warrant specifically sought exactly those 

records from Yahoo. It was through "Jack Flash's" IP address, not his e-mails, that the 

residence was located. Courts have discouraged the practice of using the search for 

background investigative facts as a justification for searches beyond the scope of probable 

cause. Ford at 576; United States v. Srivastava, 476 F. Supp.2d 509, 514 (D.Md.2007). 

{¶ 73} Even assuming the validity of the State's basis for a warrant authorizing a 

broader search of the e-mails, the scope of the warrant was still too broad. In United 

States v. Abboud, 438 F.3d 554, 575-76 (6th Cir.2006), the United States Sixth Circuit 

Court of Appeals found a warrant was overbroad where it sought records from a six-year 

time span when the facts in the affidavit only evidenced a check-kiting scheme spanning 

three months. Id. (ultimately finding the error was harmless). The Sixth Circuit has 

moreover explained, "[f]ailure to limit broad descriptive terms by relevant dates, when 

such dates are available to the police, will render a warrant overbroad." Ford at 576. 

 picture with the cake and "13" candle. (State's Ex. A at 7.) 
No. 14AP-812 27 

{¶ 74} In this case the evidence for the search warrant consisted of one 

conversation related to a Craigslist advertisement between two persons on the afternoon 

of September 27, 2011. Yet, the warrant authorized the search and seizure of "all emails" 

regardless of date, subject, sender, or recipient, "opened, unopened, sent, forwarded, [or] 

deleted," and it even authorized the collection of records relating to "other email 

accounts." (State's Ex. B at 2.) Depending on the age of the jack.flash75 account, the 

warrant could have authorized the seizure of decades of e-mail. The record does not 

reflect how old the jack.flash75@yahoo.com address was, but it is undisputed that "well 

over 3,000 emails" were seized. (State's Ex. C at 5.) In the "well over 3,000 emails" the 

police found just one culpable conversation involving child pornography in March 2009—

two and one-half years before the Craigslist conversation that purported to justify the 

search. Id. 

{¶ 75} The majority notes that the officer somewhat limited his examination of the 

e-mails by examining only those that had attachments. (Majority decision at ¶ 14.) The 

majority also states that, "federal courts have approved search warrants allowing access to 

the entire contents of an email account 'in order to conduct a search for emails within 

the limited categories contained in the warrant.' " (Emphasis added.) (Majority decision 

at ¶ 43, quoting In re A Warrant for All Content & Other Info. Associated with the Email 

Account xxxxxxx@Gmail.com Maintained at Premises Controlled by Google, Inc., 33 

F.Supp.3d 386, 394 (S.D.N.Y.2014)). However, I would respectfully view those 

observations as a whole as a proverbial red herring, because Shaskus' case does not 

involve a large volume of e-mails that were copied and then reviewed according to 

limitations set forth in a warrant, but rather, a large volume of e-mails seized with no such 

limitations in the warrant. 

{¶ 76} I acknowledge that in the context of electronic records, the police may 

sometimes end up with a copy of an account because perhaps a third-party custodian (like 

Yahoo) will not wish to search through the e-mail account itself in order to identify 

materials implicated by a limited warrant even though authorized to do so. But regardless 

of whether Yahoo or any other similarly situated custodian makes a copy of the entire 

account, makes a copy of part of the account, or invites the police on-site to inspect 

material in its data center, in order to be constitutionally valid, the warrant must still 

direct the police as to what material to search and seize as evidence. The mere fact that 
No. 14AP-812 28 

the nature of electronic records dictates that they reside with a third party and that it is 

sometimes more practical to search a copy in the police station rather than search the 

original at the data center, does not mean that the warrant authorizing and limiting the 

search is relieved of the particularity requirements of the Fourth Amendment. As the 

Sixth Circuit Court of Appeals in Ford, put it, "[f]ailure to limit broad descriptive terms by 

relevant dates, when such dates are available to the police, will render a warrant 

overbroad." Id. at 576. In other words, where, as here, the police know what time-frame 

is involved, they cannot constitutionally ignore the limits of probable cause and instead 

seek and act on a warrant with unlimited broad descriptive terms. Because if a warrant is 

based on probable cause as to a limited time frame but authorizes unlimited search and 

seizure, it is overbroad. 

{¶ 77} The evidence seized (e-mails and attachments) during the search of Yahoo 

was appropriately suppressed. See United States v. Wong Sun, 371 U.S. 471, 487-88 

(1963). The trial court was also justified in suppressing the evidence found on Shaskus' 

computer during the search of his residence. The warrant to search Shaskus' residence 

authorized a search of "a computerized information system" to discover "evidence of the 

commission of the criminal offenses of Pandering Obscenity Involving a Minor, 2907.32 

R.C.; Illegal Use of a Minor in Nudity Oriented Material, 2907.323 R.C.; Disseminating 

Matter Harmful to Juveniles, 2907.31 R.C.; [and] Endangering Children, 2991.22 R.C. " 

(State's Ex. C at 1.) 

{¶ 78} The motivator for the search of Shaskus' house and computer was finding 

child pornography, extended from the original suspicion that Shaskus had a daughter 

whom he was attempting to trade for sex. The pornography found on Shaskus' computer 

was "fruit of the poisonous tree." It was found during a search of computer equipment 

and supported by the child pornography evidence obtained in the unconstitutionally 

overbroad search of Yahoo. Id. at 487-88. As the Supreme Court of Ohio held: 

The exclusionary rule reaches not only primary evidence 

obtained as a direct result of an illegal search or seizure, but 

also evidence later discovered and found to be derivative of an 

illegality, or "fruit of the poisonous tree." Nardone v. United 

States (1939), 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307. The 

reason for the rule is the concern that if derivative evidence 

were not suppressed, police would have an incentive to violate 

constitutional rights in order to secure admissible derivative 
No. 14AP-812 29 

evidence even though the primary evidence secured as a result 

of the constitutional violation would be inadmissible. See 

Katz, Ohio Arrest, Search and Seizure (3 Ed.1992), Section 

2.07. Justice Frankfurter explained in Nardone, "To forbid 

the direct use of methods thus characterized but to put no 

curb on their full indirect use would only invite the very 

methods deemed 'inconsistent with ethical standards and 

destructive of personal liberty.'" Nardone, supra, at 340, 60 

S.Ct. at 267, 84 L.Ed. at 311. 

State v. Carter, 69 Ohio St.3d 57, 67 (1994). 

{¶ 79} The majority decision does not reach the State's good-faith argument, 

because it reverses the trial court's decision. That argument should be addressed, because 

of its tendency to be used incorrectly to excuse an unconstitutional search and seizure in 

violation of the Fourth Amendment. The State argues that the police relied in good faith 

on warrants to search both Yahoo and Shaskus' home and computer. That is, the State 

contends that an exception to the exclusionary rule arises because the officers relied in 

good faith on the warrants, and the evidence therefore should not have been excluded. 

Id.; United States v. Leon, 468 U.S. 897 (1984). 

{¶ 80} However, the "good faith" exception to the exclusionary rule set forth in 

Leon does not operate where "a warrant [is] so facially deficient -- i.e., in failing to 

particularize the place to be searched or the things to be seized -- that the executing 

officers cannot reasonably presume it to be valid." Id. at 923; see also, e.g., Gritten at 

¶ 20. Here, the Yahoo warrant purported to authorize the seizure of "any and all emails" 

for the entire account history irrespective of sender, recipient, or subject and whether the 

e-mails were "opened, unopened, sent, forwarded, [or] deleted," and it even extended to 

the collection of records relating to "other email accounts." (State's Ex. B at 2.) Absent 

evidence of pervasive, continuous, and long-standing use of this and other e-mail 

accounts for criminal activity, this warrant was facially overbroad; it was so much so that 

Detective Hunt (who was the affiant and thus knew that the evidence justifying the 

warrant consisted of a single suspicious conversation on a single afternoon between just 

two persons) could not have reasonably presumed it to be valid. 

{¶ 81} With respect to the warrant to search Shaskus' computer and home, the 

Supreme Court has held, "[t]he good-faith exception does not apply where a search 

warrant is issued on the basis of evidence obtained as a result of an illegal search." Carter 
No. 14AP-812 30 

at 68. Were the rule otherwise, an officer could violate the United States Constitution to 

obtain incriminating evidence, "launder" that evidence by presenting it to a magistrate in 

order to obtain a warrant for a further search, and then rely on the good faith of officers 

executing the warrant to avoid the exclusion of incriminating evidence found pursuant to 

the warrant search. See Nardone v. United States, 308 U.S. 338, 340-41 (1939); see also, 

e.g., Murray v. United States, 487 U.S. 533, 540 (1988); Carter at 67. 

{¶ 82} For the reasons set forth in this dissent, I would overrule the State's sole 

assignment of error and affirm the judgment of the trial court. 

_____________________