OH: Defendant abandoned hard drive in leaving it with others and never seeking to recover it

Defendant removed a hard drive from a computer and gave it to his mother while still living with her. He moved out about six months later, not taking the hard drive with him. His twin brother told mom to get rid of it because it probably had child pornography on it. She gave it back to defendant. Defendant moved in with his older brother, and ultimately stole his truck and took off. He left the hard drive and other stuff behind. The older brother sold his stuff at a garage sale, but mom retrieved the hard drive. Ultimately she gave it to the police who locked it away and looked for defendant, not finding him. Finally, mom consented to a search of the hard drive, and child porn was found. The court of appeals found the computer was not abandoned, State v. Gould, 131 Ohio St. 3d 179, 2012 Ohio 71, 963 N.E.2d 136 (6th Dist. 2010) (posted here), but the Ohio Supreme Court reversed finding that it was. Forensic analysis of the hard drive showed him sexually assaulting a seven year old, and he was charged with rape and possession of child porn. The state argued that Herring should dictate the exclusionary rule should not apply because the police were not negligent or reckless. The court declined and went right to abandonment. State v. Gould, 2012 Ohio 71, 131 Ohio St. 3d 179 (January 17, 2012):

{¶ 34} As in Hershenow, Freeman, Chandler, and Davis, here the evidence similarly weighs against a finding that Gould had an objectively reasonable expectation of privacy in the hard drive. He left the hard drive in his apartment with his other belongings when he stole his brother’s truck and left Toledo sometime in August 2006. From the time he left Toledo until his arrest by federal marshals sometime before June 3, 2007, Gould never inquired about the hard drive or attempted to assert control over it or its location, he concealed his whereabouts, and he never knew the hard drive had been removed from his apartment when his brother sold his other belongings.

{¶ 35} And even if we consider the period of time from when Gould left Toledo until Detective Dec searched the hard drive in December 2006, the facts reveal that Gould had not made any inquiry about the hard drive or asserted control over it for almost four months. Hence, the police could have reasonably concluded that Gould had abandoned it.

[Note: One cannot disagree with this outcome under the facts and prior authority. The state hedged its bets by going with its Herring argument when the abandonment issue was pretty clear.]