Objectionably Reasonable: A Passionate and Dedicated Detective Skipped Some Statutory Requirements on Investigative Subpoenas … Did these Errors Require Suppression of the Evidence?

Jun 26

State v. Diaw
No. 22AP-614
Tenth District Appellate Court
Franklin County, Ohio
June 11, 2024

On January 28, 2021, Mr. Diaw was indicted by a Franklin County grand jury on one count of aggravated robbery, in violation of O.R.C. §2911.01, a felony of the first degree (Count One); one count of robbery in violation of O.R.C. §2911.02, a felony of the second degree (Count Two); and one count of robbery in violation of O.R.C. §2911.02, a felony of the third degree (Count Three). All three counts included a three-year firearm specification in violation of O.R.C. §2941.145(A). Mr. Diaw entered a plea of not guilty on February 2, 2021.


Motion to Suppress
On June 14, 2021, Mr. Diaw filed a combined motion to dismiss the January 28, 2021 indictment or, alternatively, motion to suppress evidence resulting from the illegal search of Mr. Diaw’s “GPS/location date, digital data, and account information.” In the filing, Mr. Diaw argued that law enforcement’s use of various O.R.C. §2935.23 investigative subpoenas, rather than search warrants, violated his constitutional rights as he had a reasonable expectation of privacy over the online information. Mr. Diaw also alleged that the subpoenas at issue were overly broad in their terms to be regarded as reasonable. On June 28, 2021, the state filed a memorandum in opposition arguing that O.R.C. §2935.23 authorized law enforcement to gather information through both witness testimony and other sources of information such as data and documents. The state posited that the investigative subpoenas were reasonably tailored in scope, and Mr. Diaw had no genuine privacy interests in the online accounts and information contained therein. After a series of continuances, this matter was set for an evidentiary hearing on February 24, 2022. The following evidence was adduced at the hearing.

Facts
Detective testified that he has worked at the Police Department for approximately 24 years. [Note: Both the detective and the agency are identified in the case. I have redacted each in this article.] In February 2020, Detective became involved in the investigation of an aggravated robbery case that occurred at a Kroger parking lot located on Groveport Road.

According to Detective, the victim in this case, K.W., had arranged for the purchase of a MacBook laptop at the parking lot through the company, Letgo. Detective described Letgo as “similar to Craigslist … you can take your property and sell it on there.” Upon arrival at the parking lot, K.W. met with two individuals, one later identified as Mr. Diaw, regarding the purchase of the laptop. According to the grand jury summary, “Mr. Diaw and the accomplice took an i[P]hone and $360.00 cash from the victim for the sale / trade of the computer but Mr. Diaw then pulled the computer away from the victim and began punching the victim in his head and face.” The individuals then fled the scene.
Detective testified that K.W. was able to provide law enforcement (1) Descriptions of the individuals involved in the robbery, (2) A description of the vehicle—a red Honda Accord with tinted windows—, (3) Account information from the Letgo website, which included the username “John Malick” and the original posting for the computer, (4) The last four digits of the vehicle’s license plate; and (5) The telephone number that the individual used to communicate with the victim. Detective attempted to search the Ohio Law Enforcement Gateway (“OHLEG”) system using the description of the vehicle and the partial license plate number but was unsuccessful. Detective then conducted a Google search of the telephone number provided by the victim. The search revealed that the cellphone carrier was Boost Mobile, which, according to Detective, used Sprint cellphone towers.

Investigative Subpoenas
During the course of the investigation, Detective issued several investigative subpoenas to various digital account providers. On February 19, 2020, Detective requested an investigative subpoena to Letgo through the Franklin County Municipal Court. The subpoena represented that O.R.C. §2934.23 authorized the Franklin County Municipal Court to issue subpoenas in aid of felony investigations. The subpoena also identified the felony investigation at issue, aggravated robbery/20-000339, and ordered the Letgo representative “to appear before this Court at the time, date, and location set forth” to offer the following information:
Please provide any and all records including all names, addresses, phone numbers, I.P. addresses and email addresses associated with the customer using the name of John Malick (possibly utilizing the phone number of 720-203-7022) and posting for sale a Mackbook Pro 2017 13 inch lap top computer for sale through Letgo posted in Columbus Ohio between the dates of 02-16-2020 through 02-18-2020.

The subpoena directed that “[Letgo] can comply with this Investigative Subpoena without the court appearance scheduled below by providing the requested information to the law enforcement officer who requested this subpoena, and whose contact information is set forth below, prior to the date scheduled for the appearance.”