[Cite as State v. Wilkie, 2017-Ohio-1487.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

AUGLAIZE COUNTY 

 

STATE OF OHIO, 

 

 PLAINTIFF-APPELLEE, CASE NO. 2-17-01 

 v. 

ERIC WILKIE, O P I N I O N 

 DEFENDANT-APPELLANT 

 

Appeal from Auglaize County Common Pleas Court 

Trial Court No. 2015-CR-133 

Judgment Affirmed 

Date of Decision: April 24, 2017 

 

APPEARANCES: 

Nicole Rutter-Hirth for Appellant 

R. Andrew Augsburger for Appellee 

 
Case No. 2-17-01 

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SHAW, J.

{¶1} Defendant-appellant, Eric Wilkie (“Wilkie”), brings this appeal from 

the December 20, 2016, judgment of the Auglaize County Common Pleas Court 

sentencing Wilkie to an aggregate ten-year prison term after Wilkie pled no contest 

to, and was found guilty of, two counts of Pandering Obscenity Involving a Minor 

in violation of R.C. 2907.321(A)(2), both felonies of the second degree, three counts 

of Pandering Obscenity Involving a Minor in violation of R.C. 2907.321(A)(5), all 

felonies of the fourth degree, and sixteen counts of Pandering Sexually Oriented 

Material Involving a Minor in violation of R.C. 2907.322(A)(1), all felonies of the 

second degree. On appeal, Wilkie argues that the trial court erred by denying his 

motion to compel the government’s software that was used to find Wilkie sharing 

child pornography and he argues that the trial court erred by denying his amended 

suppression motion, particularly without an additional hearing. 

Relevant Facts and Procedural History

{¶2} On November 18, 2015, Wilkie was indicted in trial court case number 

2015-CR-0133 for two counts of Pandering Obscenity Involving a Minor in 

violation of R.C. 2907.321(A)(2), both felonies of the second degree (Counts 1 and 

3), and three counts of Pandering Obscenity Involving a Minor in violation of R.C. 

2907.321(A)(5), all felonies of the fourth degree (Counts 2, 4, 5). A second 

indictment was filed against Wilkie on February 25, 2016, alleging sixteen counts 
Case No. 2-17-01 

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of Pandering Sexually Oriented Material Involving a Minor in violation of R.C. 

2907.322(A)(1), all felonies of the second degree. The second indictment was 

originally assigned case number 2016-CR-0031; however, the two indictments 

against Wilkie were consolidated without objection and all filings were thereafter 

made in the 2015-CR-0133 file. Wilkie pled not guilty to the charges against him. 

{¶3} The charges against Wilkie stemmed from allegations that Wilkie was 

publicly sharing child pornography through an online peer-to-peer (“P2P”) file 

sharing program called Shareaza.1

 On multiple dates Detective Jeffrey Blackmore 

of the Van Wert Police Department was able to download suspected child 

pornography from an IP address linked to Wilkie and Detective Blackmore 

 

1

 A thorough discussion of P2P file sharing is contained in States v. Thomas, D. Vt, Nos. 5:12-cr-37, 5:12-

cr-44, 5:12-cr-97, 2013 WL 6000484, which was cited by the trial court in its entry denying Wilkie’s 

suppression motion. It provides a general overview of P2P file sharing, which reads, in pertinent part: 

Peer-to-peer file sharing is a popular means of obtaining and sharing files free of 

charge directly from other computer users who are connected to the Internet and who 

are also using peer-to-peer file sharing software. Peer-to-peer file sharing software is 

publicly available for download free of charge from the Internet and operates on a 

particular network which dictates to some extent how the file sharing will occur. * * 

* 

The file sharing software does not permit a user to access files that are not available 

for sharing. * * * 

File sharing occurs when one computer, identified by an Internet Protocol (“IP”) 

address, initiates a search for a responsive file by indicating the term or terms that it 

seeks to find in the file’s name. This is called a “query” and consists of key words such 

as “child,” “pornography,” or “child pornography.” Law enforcement has identified 

a number of search terms commonly associated with child pornography. Other 

computers that are using the same file sharing software and connected to the Internet 

at the time will respond to the query with a “query hit message.” A query hit message 

identifies the file or files available for sharing which have a word in the file name that 

matches the search word in the query. The query hit message will also contain 

additional information such as the IP addresses of the computers offering to share 

responsive files. * * * 
Case No. 2-17-01 

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confirmed that the files he downloaded from Wilkie’s IP address did, in fact, contain 

child pornography. Detective Blackmore passed this information onto Detective 

Douglas Burke of the Auglaize County Sheriff’s Office. Detective Burke used this 

information to obtain a search warrant to search Wilkie’s residence, where more 

child pornography was discovered on an external hard drive, leading to further 

charges against Wilkie. During the search of Wilkie’s residence, Wilkie spoke with 

Detective Blackmore and Wilkie admitted to possessing child pornography. 

{¶4} On April 29, 2016, Wilkie filed an initial suppression motion, seeking 

to suppress the results of the search of his home on November 5, 2015, and the 

statements that he made on the day of the search. 

{¶5} On June 30, 2016, a suppression hearing was held. At the hearing, 

Detective Jeffrey Blackmore of the Van Wert Police Department testified that he 

received training on how to use P2P file sharing programs and how to investigate 

those file sharing programs for individuals sharing child pornography. Detective 

Blackmore testified that utilizing a law enforcement-specific version of Shareaza 

called Shareaza Law Enforcement (“ShareazaLE”), he identified an IP address in 

St. Marys that had “child notable files shown in their file sharing database.”2

 (June 

30, 2016, Tr. at 16). Detective Blackmore testified that he initiated a “browse of 

 

2

 Detective Blackmore explained that the “law enforcement version of the software” utilizes a database of 

known child pornography to search “the file sharing networks for any child sharing pornography” then it will 

identify the IP address where it is coming from. (June 30, 2016, Tr. at 14). He also testified that the law 

enforcement version will not allow file sharing; rather it only accepts downloads. (Id. at 31). 
Case No. 2-17-01 

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that person’s file[s]” and that he then attempted to download the suspected child 

pornography files. 

{¶6} Detective Blackmore testified that he downloaded five files of 

suspected child pornography between September 23rd and 24th of 2015 from the 

same IP address in St. Marys. Detective Blackmore testified that the five 

downloaded files did, in fact, contain child pornography. Detective Blackmore 

testified that he obtained a subpoena for Time Warner Cable to learn who was the 

subscriber attached to the IP address, and the address came back to 369 Northway 

Drive in St. Marys, Ohio, under a “nickname” shown as “Eric.” The subscriber was 

Wilkie and the address was Wilkie’s. 

{¶7} Detective Blackmore testified that on October 18, 2015, he downloaded 

thirteen more suspected child pornography files from Wilkie’s IP address. 

Detective Blackmore testified that the additional files he downloaded also contained 

child pornography. 

{¶8} Detective Blackmore testified that he took his information to the 

Auglaize County Police Department and was placed in contact with Detective 

Donald Burke.3

 Detective Blackmore testified that he explained to Detective Burke 

what he had learned in his investigation, and that Detective Burke then used the 

information to obtain a search warrant to search Wilkie’s residence. 

 

3

 As St. Marys was in Auglaize County, Detective Blackmore sought out officers who had proper jurisdiction 

over the matter. 
Case No. 2-17-01 

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{¶9} Detective Blackmore testified that he was present when the search 

warrant was executed and that while he was at Wilkie’s residence, he spoke with 

Wilkie. An audio recording of that conversation was played in open court. 

{¶10} On the recording, Wilkie was explicitly informed that he was not 

under arrest and that he could leave at any time. Wilkie then readily admitted to 

having child pornography on his computer and that he had been convicted for 

Pandering Obscenity Involving a Minor in the past. Wilkie stated that he had a 

problem, that he viewed child pornography, and that he was a “collector,” which is 

why he had all of the pornography. However, Wilkie stated that he had no desire to 

actually have sex with children. Nevertheless, Wilkie testified that he had viewed 

pornography with children as young as five or six. 

{¶11} Detective Blackmore did testify that Wilkie told him that Wilkie 

thought he had “the share button off” on his Shareaza software. (June 30, 2016, Tr. 

at 31). However, Detective Blackmore emphasized when questioned by the trial 

court that he would not have been able to access Wilkie’s files via ShareazaLE had 

Wilkie not been publicly file sharing them, or if Wilkie was not online. (Id. at 58). 

{¶12} Detective Burke was the next witness to testify at the suppression 

hearing. He testified that Detective Blackmore came to him with the information 

he had and Detective Burke used it to obtain a search warrant. The search warrant 

itself was introduced into evidence, and it contained brief descriptions of five of the 
Case No. 2-17-01 

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files that had been downloaded from Wilkie’s IP address. The warrant briefly 

explained how Detective Blackmore’s investigation had proceeded and how it had 

led to Wilkie. The State rested after Detective Burke testified. 

{¶13} Wilkie then testified on his own behalf. Wilkie testified that despite 

what was played on the audio of his interview he did not feel he was free to leave 

on the day of the search when he spoke with Detective Blackmore; however, Wilkie 

did admit that he was told he was free to leave. The hearing then concluded and the 

matter was submitted to the trial court. 

{¶14} On July 12, 2016, another hearing was held wherein Wilkie notified 

the trial court that he had hired private counsel and wanted to replace his current 

court-appointed counsel. The trial court allowed Wilkie to substitute his counsel. 

Wilkie’s new counsel then indicated that he wanted to supplement the original 

suppression motion. Specifically, Wilkie’s new counsel indicated that he wanted to 

obtain an expert to show how the software the government was using to detect 

Wilkie purportedly sharing child pornography operated differently than it was 

portrayed by the government at the prior suppression hearing. Wilkie’s new counsel 

also indicated that he may make an argument challenging the warrant itself under 

Franks v. Delaware, 438 U.S. 154, 155-156 (1978) (if a “substantial preliminary 

showing that a false statement knowingly and intentionally, or with reckless 

disregard for the truth, was included by the affiant in the warrant affidavit, and if 
Case No. 2-17-01 

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the allegedly false statement is necessary to the finding of probable cause, the Fourth 

Amendment requires that a hearing be held at the defendant’s request.”). The trial 

court gave Wilkie time to secure an expert and set the matter for further hearing. 

{¶15} On July 29, 2016, the trial court held further hearing on the 

suppression motion. At the hearing, the trial court heard arguments from the parties, 

but took no new evidence. The defense indicated that it had secured an expert but 

it needed access to a “mirror image” of Wilkie’s computer for its expert to analyze 

in order to attempt to show that the government’s software initially searched beyond 

what Wilkie had shared publicly in Shareaza. The defense indicated that if the 

government had searched Wilkie’s private files, the initial search locating Wilkie 

would be illegal. The defense also indicated that it wanted to challenge the affidavit 

for the search warrant pursuant to Franks v. Delaware. 

{¶16} The trial court ordered the State to provide the defense with a mirror 

image of Wilkie’s computer for the defense’s expert to analyze, and the trial court 

also ordered Wilkie’s counsel to amend his motion to suppress to reflect the new 

suppression arguments that were being raised, particularly once his expert had 

analyzed Wilkie’s mirrored computer. 

{¶17} Consistent with the trial court’s order, on September 12, 2016, Wilkie 

filed his supplemental motion to suppress and a motion for access to the 

government’s ShareazaLE software. In his motion, which was filed after his expert 
Case No. 2-17-01 

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had analyzed the mirror image of Wilkie’s computer, Wilkie argued that he now 

needed access to the ShareazaLE software program to establish that the government 

searched the non-shared files on his computer and that the government thus 

conducted an illegal search of his computer. Wilkie argued that while the State’s 

officers had testified that the ShareazaLE software only searched his publicly shared 

files, the officers were not qualified to render such opinions. 

{¶18} Further, Wilkie argued that the affidavit for the search warrant was 

insufficient because it did not contain a sufficient explanation of the software the 

government used to detect Wilkie, and that because law enforcement did not own 

the software, the State could not meet its burden to demonstrate that the files 

obtained from Wilkie’s IP address were in a shared space. As a separate argument, 

Wilkie argued that the affidavit did not specify what software was used by law 

enforcement. 

{¶19} Attached to Wilkie’s supplemental suppression motion, and what was 

essentially a motion to compel access to the government’s software, was a copy of 

Wilkie’s expert’s report. The report, from Tami Loehrs, indicated that Loehrs had 

analyzed the mirrored copy of Wilkie’s computer, but not the external hard drive 

due to time constraints. The report contained the following executive summary. 

None of the files identified during the undercover investigation 

were found on the computer. Although text fragments were 

recovered from unallocated space indicating the files or portions 

of the files existed at one time, I am unable to determine the 
Case No. 2-17-01 

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content of the files, the state the files were in (completed, partial, 

corrupted) or whether the files were publicly available. As such, 

I am unable to corroborate the details set forth in Det. 

Blackmore’s Affidavit with the forensic evidence from Mr. 

Wilkie’s computer and the issues regarding law enforcement’s 

proprietary software remain unanswered. 

(Doc. No. 96, Ex. 1, p. 3). 

{¶20} The defense also filed a document titled “Affidavit of Tami Loehrs,” 

in an attempt to support its motion to compel, though the “affidavit” was unsworn. 

The “affidavit” indicated that by the time Wilkie’s computer had been seized from 

his residence, the operating system had been reinstalled and the files of child 

pornography identified during the undercover investigation were not found. (Doc. 

No. 100). Loehrs’ “affidavit” indicated that she wanted to recreate Wilkie’s 

computer as closely as possible to what it would have been at the time of Detective 

Blackmore’s undercover investigation, and then use the government’s software to 

see if it was searching beyond what Wilkie was publicly sharing—or at least had 

the capability to do so. 

{¶21} The State opposed Wilkie’s supplemental suppression motion and his 

motion to compel the government’s software, arguing that the trial court had already 

heard evidence that Detective Blackmore used the law enforcement software to 

download child pornography files from Wilkie’s shared space on Shareaza and that 

Wilkie’s expert indicated in her own report that she could not contradict that 

testimony. Further, the State argued that Wilkie was attempting a “fishing 
Case No. 2-17-01 

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expedition,” and that under United States v. Pirosko, 787 F.3d 358 (6th Cir.2015), 

it was not an abuse of discretion to deny such a request. Pirosko at 367 (“allowing 

Pirosko access [to the government’s software] without any evidence of error would 

needlessly expose the government’s enforcement tools to examination and 

pointlessly drag out the course of litigation.”). 

{¶22} In his reply, Wilkie argued it was the government’s burden to show 

that the child pornography files were downloaded from his shared space, and the 

government had not met that burden simply through the testimony of Detective 

Blackmore. Wilkie maintained that Detective Blackmore was not even qualified to 

render an opinion that the software only searched Wilkie’s shared space, despite his 

training. 

{¶23} On October 26, 2016, the trial court filed its entry on the matter. The 

trial court denied Wilkie’s original suppression motion, his renewed suppression 

motion, and his request to compel the government’s software. The trial court made 

findings of fact, including that the defense expert’s statement was unsworn and it 

did not qualify as an affidavit. Nevertheless, the trial court stated that there was 

sufficient evidence before it to determine the issues without allowing the defense 

expert to have access to the government’s software program or have a further 

hearing on the matter. 
Case No. 2-17-01 

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{¶24} Based on the evidence presented at the suppression hearing, the trial 

court found that the search warrant was supported by probable cause and that there 

was no intentional or reckless misstatement in it that was false or misleading 

pursuant to Franks. Thus the trial court found that the search warrant was valid; 

however, the trial court added that even if the warrant was not valid the police 

conduct was still supported under the good-faith exception to the exclusionary rule 

pursuant to United States v. Leon, 468 U.S. 897, which held that, “The Fourth 

Amendment exclusionary rule should not be applied so as to bar the use * * * of 

evidence obtained by officers acting in reasonable reliance on a search warrant 

issued by a detached and neutral magistrate but ultimately found to be invalid.” 

Leon at syllabus. The trial court further found that additional discovery would not 

change the existence of good-faith in this case or the applicability of the good-faith 

exception. 

{¶25} Following the trial court’s denial of Wilkie’s motion to compel and his 

suppression motion, Wilkie entered no contest pleas to all counts against him. After 

a factual narrative related to the charges was presented to the trial court, Wilkie was 

found guilty of all counts against him and he was sentenced to aggregate ten-year 

prison term. A judgment entry memorializing Wilkie’s sentence was filed on 

December 20, 2016. It is from this judgment that Wilkie appeals, asserting the 

following assignments of error for our review. 
Case No. 2-17-01 

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Assignment of Error No. 1 

The trial court erred in denying the Motions to Suppress. 

Assignment of Error No. 2 

The trial court erred in denying the request for access to the 

government software. 

{¶26} For ease of discussion, we elect to address the assignments of error out 

of the order in which they were raised. 

Second Assignment of Error

{¶27} In Wilkie’s second assignment of error, he argues that the trial court 

erred in denying his motion to compel access to the government’s ShareazaLE 

software. Specifically, Wilkie argues that an analysis of the software was relevant 

to the motion to suppress and to the trial, that defense had shown good cause to 

request access to the software as the software could potentially show that an illegal 

search occurred, and that the trial court improperly found that Detective 

Blackmore’s testimony and the defense expert’s report were consistent. 

{¶28} We review a trial court’s decision on a motion to compel discovery 

under an abuse of discretion standard. See State v. Victor, 6th Dist. Sandusky No. 

S-12-009, 2013-Ohio-2255, ¶ 5; see also State ex rel. The V Companies et al., v. 

Marshall, 81 Ohio St.3d 467, 469, 1998-Ohio-329. An abuse of discretion 

constitutes a decision that is arbitrary, unreasonable, or unconscionable. Blakemore 

v. Blakemore, 5 Ohio St.3d 217, 219 (1983). 
Case No. 2-17-01 

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{¶29} In this case, Wilkie’s original counsel filed a suppression motion and 

a full hearing was held on it. At that hearing, Detective Blackmore testified that he 

used a law enforcement specific version of Shareaza, called ShareazaLE, to identify 

users sharing suspected child pornography. Detective Blackmore clearly testified 

as to how the ShareazaLE software worked, how it identified Wilkie’s IP address as 

having possible child pornography that was publicly shared, and how Detective 

Blackmore downloaded the suspected child pornography from what he later learned 

was Wilkie’s IP address. Detective Blackmore testified that the ShareazaLE 

software did not search the private spaces of Wilkie’s computer, only the publicly 

shared files. 

{¶30} After the hearing, Wilkie obtained new counsel and his new attorney 

indicated that he wanted to obtain an expert to dispute Detective Blackmore’s claims 

that ShareazaLE only searched Wilkie’s publicly shared files. To do this, the expert 

initially needed access to a mirrored copy of Wilkie’s computer to analyze it. The 

trial court granted Wilkie’s request for access to the mirrored copy of Wilkie’s 

computer for analysis and when the analysis of Wilkie’s computer was not able to 

corroborate or discount Detective Blackmore’s testimony, Wilkie requested access 

to the ShareazaLE software in an attempt to show that it did not operate as Detective 

Blackmore claimed at the suppression hearing. The trial court denied Wilkie’s 

request. 
Case No. 2-17-01 

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{¶31} In our review of the trial court’s decision, we note at the outset that 

Wilkie has never produced any evidence at all that the ShareazaLE software used to 

detect Wilkie sharing suspected child pornography operated in any fashion other 

than what Detective Blackmore testified to. The best Wilkie could suggest to 

undermine Detective Blackmore’s testimony was that Wilkie “thought” he had 

turned sharing off on his computer. Otherwise, Wilkie is only able to offer the 

unsworn statement of his expert that it was possible that if she examined the 

government’s software it may operate differently than Detective Blackmore’s 

testimony. 

{¶32} An argument similar to Wilkie’s was made to the Sixth Circuit Court 

of Appeals in United States v. Pirosko, 787 F.3d 358 (6th Cir.2015). Pirosko was 

another case that dealt with child pornography being shared via P2P software, and 

the Sixth Circuit affirmed a trial court’s decision denying a defendant’s motion to 

compel access to the government’s software, ShareazaLE. The Pirosko court 

reasoned, inter alia, that although the government should not be given “a blank 

check to operate its file-sharing detection software sans scrutiny,” it was “important 

for the defendant to produce some evidence of government wrongdoing” before 

going to the lengths to turn over the software. Pirosko at 366. The Pirosko court 

reasoned that “allowing [a defendant] access without any evidence of error would 

needlessly expose the government’s enforcement tools to examination and 
Case No. 2-17-01 

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pointlessly drag out the course of litigation.”4

 Id. at 367. But see U.S. v. Budziak, 

697 F.3d 1105 (9th Cir.2012) (remanding a case to the trial court, under 

distinguishable facts, to determine whether disclosure of the government’s software 

would have led to a different outcome in the case). 

{¶33} Here, Wilkie produced no actual evidence that the government’s 

software operated in any manner other than what was testified to by Detective 

Blackmore. The trial court granted Wilkie some leeway in an attempt to establish a 

defense by allowing him to have an expert analyze the mirrored copy of his 

computer. Wilkie’s expert was ultimately unable to dispute Detective Blackmore’s 

claims, and we cannot find that the trial court abused its discretion in denying a 

motion to compel further discovery on the matter. Therefore, Wilkie’s second 

assignment of error is overruled. 

First Assignment of Error

{¶34} In Wilkie’s first assignment of error, he argues that the trial court erred 

in denying his motion for a Franks hearing, and that the trial court erred in denying 

his motion to suppress, particularly without holding an additional hearing on the 

matter. We will address each issue in turn. 

 

4

 In Pirosoko, the government argued strongly for “privilege” and the Sixth Circuit applied a “balancing 

approach, weighing the government’s concerns against the needs articulated by Pirosko.” Pirosko at 365. 
Case No. 2-17-01 

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Franks Hearing 

{¶35} Wilkie first argues that the trial court erred by failing to hold a hearing 

pursuant to Franks v. Delaware, 438 U.S. 154 (1978), after he alleged in his 

supplemental suppression motion that the affidavit used to secure a search warrant 

was insufficient and that the affidavit contained at least one misstatement. 

{¶36} In order to secure a Franks hearing, courts have held that a defendant 

must make a “ ‘substantial preliminary showing’ that a deliberate falsehood or 

statement made with reckless disregard for the truth was included in the warrant 

affidavit and the statement was necessary to the judge’s finding of probable cause.” 

United States v. Falso, 544 F.3d 110, 125 (2d Cir.2008), quoting Franks, 438 U.S. 

154, 155–56, 170–71. A search warrant affiant “does not necessarily act with 

‘reckless disregard for the truth’ simply because he or she omits certain evidence 

that a reviewing court, in its judgment, considers to be ‘clearly critical.’ ” (Emphasis 

sic) United States v. Rajaratnam, 719 F.3d 139, 154 (2d Cir.2013). “Rather, the 

reviewing court must be presented with credible and probative evidence that the 

omission of information” in a search warrant application “was ‘designed to mislead’ 

or was ‘made in reckless disregard of whether [it] would mislead.’ ” Id. quoting 

United States v. Awadallah, 349 F.3d 42, 68-69 (2d Cir.2003). 

{¶37} To prove reckless disregard for the truth, a defendant must show that 

the affiant entertained serious doubts as to the truth of his allegations. Because 
Case No. 2-17-01 

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states of mind must be proved circumstantially, a factfinder may infer reckless 

disregard from circumstances evincing obvious reasons to doubt the veracity of the 

allegations. United States v. Whitley, 249 F.3d 614, 621 (7th Cir.2001); States v. 

Thomas, D. Vermont, Nos. 5:12-cr-37, 5:12-cr-44, 5:12-cr-97, 2013 WL 6000484. 

{¶38} In this case, the affidavit presented to obtain the search warrant stated, 

in pertinent part, as follows. 

Affiant states he is a Detective with the Auglaize County Sheriff’s 

Office * * *[.] Affiant states he has become familiar with the 

investigation of Det. Jeffrey Blackmore of the Van Wert Police 

Department. 

Det. Blackmore states that he is part of [a] task force that 

is involved in the [sic] investigating the trading and file sharing of 

child porn. During one investigation Det. Blackmore was 

contacted by an individual out of St. Marys, Auglaize County, 

Ohio. The first occurrence occurred on September 24, 2015. At 

that time, Det. Blackmore received five video files. The file name 

[sic] has a name “Webcam Omegle PTHC 2015 Sister Brother lick 

suck + dog GREAT!!!.avi.” Within this the [sic] first video shows 

a pre-pubescent girl who removes her pants and is naked from the 

waist down, and an adult male who is wearing a mask. The girl 

then removes the male’s pants. The male has an erection and 

attempts to penetrate the girl’s vagina from behind and then from 

the front. 

* * * [The affidavit then similarly describes four of the other 

downloaded videos containing “pre-pubescent” or “young” girls 

engaging in sexual acts.] * * * 

On October 14, 2015, Det. Blackmore prepared a subpoena 

for Time Warner Cable requesting subscriber information for the 

IP address associated with the files that were sent to him on 

September 24, 2015. The IP address 184.58.67.84 came back to 

Eric Wilkie who resides at 369 Northway Dr., St. Marys, Auglaize 
Case No. 2-17-01 

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County, Ohio[.] * * * Affiant states Eric Wilkie was convicted of 

Pandering Obscenity Involving a Minor in 1993. 

Det. Blackmore than [sic] used software available to law 

enforcement to track “Child Notable” computer files. These 

Child Notable computer files include known files that have been 

traded or shared on the internet that involve cases of child 

pornography. In searching the IP address for Eric Wilkie there 

are at least 67 incidents of that IP address accessing Child Notable 

files. He also accessed 3 child erotic files, 6 age difficult files, and 

3 beastiality. These Child Notable files all have unique filed [sic] 

numbers that are unique just to that file. The files being shared 

with Det. Blackmore have the individual’s nickname as “Eric”. 

On October 18, 2015, Det. Blackmore received 13 more 

files from “Eric” from the IP address that is associated with * * * 

[Wilkie’s residence]. All 13 videos show either pre-pubescent 

girls or girls between the age of 12 to 14 years of age in different 

states of nudity and having different forms of sexual contact or 

conduct. 

(June 30, 2016, Suppression Hrg., State’s Ex. 1). 

{¶39} On appeal Wilkie argues that the affidavit contained materially false 

statements and that it was insufficient. In support of his position, Wilkie contends 

that his expert, Tami Loehrs, presented an “affidavit” that stated that the law 

enforcement software actually searched the private areas of Wilkie’s computer 

rather than the public areas, that Wilkie never “contacted” Detective Blackmore as 

the warrant affidavit stated, making the word “contacted” a material misstatement, 

and that the affidavit did not adequately describe the software used by the 

government. 
Case No. 2-17-01 

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{¶40} First, Wilkie’s expert’s unsworn affidavit does not go so far as to claim 

that the law enforcement software actually searched the private areas of Wilkie’s 

computer to download the suspected child pornography in this case. Rather, the 

expert merely stated that it was theoretically possible that upon examining the 

government’s software she could find that the government’s software had such a 

capability. This is far from the definite statement Wilkie claims exists in the 

unsworn affidavit of his expert. To the contrary, the only evidence in the record, 

presented by Detective Blackmore, was that Wilkie’s public files were searched 

using ShareazaLE. 

{¶41} Second, as to Wilkie’s claims that there was misleading information 

in the search warrant affidavit, we note that while the word “contacted” in the 

affidavit is perhaps inexact, it is not wholly inaccurate given that the law 

enforcement software searches for people who are actively sharing “child notable” 

files and the software informs the police officer when a user has been identified as 

sharing those files. Thus it may be inexact to state that Wilkie “contacted” Detective 

Blackmore when really the software was notifying Detective Blackmore that 

Wilkie’s IP address was sharing suspect files, but being inexact does not remotely 

rise to the level of a Franks issue, and it would not defeat probable cause here. 

{¶42} Third, although Wilkie argues that the affidavit was insufficient 

because it did not thoroughly describe the software used in this case, Wilkie ignores 
Case No. 2-17-01 

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the fact that a search warrant only needs to establish probable cause. The Sixth 

Circuit Court of Appeals considered essentially the exact same issue raised by 

Wilkie in this assignment of error and rejected it in United States v. Schumacher, 

611 Fed.Appx. 337, 341 (2015), cert. denied, 136 S.Ct. 434 (2015). In Schumacher, 

the Sixth Circuit cited language that “probable cause [for a warrant] does not require 

scientific certainty.” Schumacher quoting United States v. Chiaradio, 684 F.3d 265, 

278-79 (1st Cir.2012). The Sixth Circuit was persuaded by the argument that the 

defendant “provide[d] no precedent holding that a court must assess the reliability 

of investigative software used to support a search warrant’s affidavit before finding 

that probable cause for the warrant exists.” Id. at 341. Ultimately the Sixth Circuit 

affirmed the trial court’s refusal to hold a Franks hearing where the defendant was 

claiming that the warrant lacked probable cause because it failed to establish the 

scientific reliability of the government’s software. We find Schumacher persuasive 

here. 

{¶43} In sum, Wilkie has shown no indication that the officers provided 

material false statements or that they were reckless in that regard. Based on the 

record before us we cannot find that the trial court erred in declining to hold a Franks 

hearing. Wilkie’s arguments related to Franks are thus not well-taken. 
Case No. 2-17-01 

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Suppression 

{¶44} Appellate review of a motion to suppress presents a mixed question of 

law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8 (2003). 

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. Id. citing State v. Mills, 62 Ohio St.3d 357, 366 (1992). 

Consequently, an appellate court must accept the trial court’s findings of fact if they 

are supported by competent, credible evidence. Burnside at ¶ 8 citing State v. 

Fanning, 1 Ohio St.3d 19 (1982). Accepting 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. Burnside at ¶ 8. 

{¶45} Wilkie next argues that the trial court erred in failing to suppress the 

evidence against him and, at the very least, that the trial court erred by failing to 

hold an additional hearing on his supplemental suppression motion. More 

specifically, Wilkie argues that a warrantless search took place when Detective 

Blackmore downloaded the suspected child pornography from Wilkie. He contends 

that the government did not establish that the files were downloaded from the shared 

 
Case No. 2-17-01 

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space on his computer.5

{¶46} Contrary to Wilkie’s arguments, Detective Blackmore testified that the 

software he used only searched shared files and that Wilkie was, in fact, sharing 

suspected child pornography. The trial court found that Detective Blackmore’s 

testimony was not disputed as Wilkie’s expert could not actually discount Detective 

Blackmore’s testimony; rather, she could only state that text fragments of the files 

that Detective Blackmore downloaded from Wilkie were recovered on Wilkie’s 

computer, but she could not determine whether they were in a shared space. The 

trial court’s conclusion that the only actual evidence in the record was that Detective 

Blackmore downloaded the files from Wilkie’s shared space was correct, and thus 

we cannot find that the trial court erred in denying Wilkie’s suppression motion. 

{¶47} Finally, we note that Wilkie seems to place a lot of emphasis on the 

fact that when his computer was searched in November of 2015, the files Detective 

Blackmore downloaded from it in September and October of 2015 were no longer 

 

5

 It is fairly well-settled that there is no expectation of privacy in files shared over a P2P network. Various 

state and federal courts have held that “a defendant’s utilization of a peer-to-peer file-sharing program [such 

as Shareaza] that allows other public users of such software to access the shared files on that defendant’s 

computer negates any reasonable expectation of privacy in those shared files.” United States v. Dennis, N.D. 

Georgia No. 3:13-cr-10-TCB, 2014 WL 1908734, *7, citing United States v. Norman, 448 F. App’x 895, 897 

(11th Cir.2011); see also Louisiana v. Daigle, 93 So.3d 657, 665 (La. App.2012) citing, inter alia, United 

States v. Gabel, 2010 WL 3927697 (S.D.Fla.2010); Oregon v. Holland, 355 P.3d 194 (Or.App.2015). “This 

is equally true if the investigating law enforcement officer uses software specially modified to screen for 

child pornography, such as ShareazaLE * * * provided that the software has no greater access to the 

defendants’ computer files than that available to any other Gnutella client.” Daigle, citing Gabel and United 

States v. Borowy, 595 F.3d 1045 (9th Cir.2010). 

Notably, some courts have extended this to “situations where a defendant may not have knowingly 

enabled the sharing feature, or even where he affirmatively attempted to opt out.” Dennis, supra, citing 

United States v. Borowy, 595 F.3d 1045, 1048 (9th Cir.2010). 
Case No. 2-17-01 

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on the computer. However, it was weeks after Detective Blackmore’s initial 

download from Wilkie’s computer that Wilkie’s computer was searched, so the files 

simply could have been deleted. This seems particularly true given that Wilkie 

recorded most of his pornography onto the external hard drive—an external hard 

drive that his expert did not analyze according to her report. Notwithstanding that 

point, Wilkie’s expert indicated that Wilkie’s operating system had been reinstalled 

on his computer and the prior files were essentially gone, but even with the entire 

operating system reinstalled, Wilkie’s expert was still able to find traces of some of 

the files Detective Blackmore purportedly downloaded from Wilkie, meaning that 

they likely had been present, at least in some capacity.6

 

{¶48} Based on the evidence presented, we cannot find that the trial court 

erred in denying Wilkie’s suppression motion. Similarly, we cannot find that there 

was any necessity for an additional hearing, particularly given that we previously 

determined that the trial court did not abuse its discretion in denying Wilkie’s 

motion to compel. Therefore, Wilkie’s first assignment of error is overruled. 

 

6

 Many of Wilkie’s arguments in his brief to this court and at the trial court level seem to focus more on the 

weight and credibility that should be given to the officers and the evidence against Wilkie, not the 

admissibility. 
Case No. 2-17-01 

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Conclusion 

{¶49} For the foregoing reasons Wilkie’s assignments of error are overruled 

and the judgment of the Auglaize County Common Pleas Court is affirmed. 

Judgment Affirmed 

PRESTON, P.J. and ZIMMERMAN, J., concur. 

/jlr