OH2: Part owner of a business didn’t have standing to challenge seizure of surveillance DVR with video of him committing assault

Defendant was a part owner of a business with computer access cards to get in doors. He still didn’t have a sufficient reasonable expectation of privacy in the computer storage system of a surveillance video system showing where he committed an assault. He claimed a search warrant was required for the video. The state also raised consent of another person with an interest, but that’s now moot [which they should have decided in case the first argument is challenged]. State v. Koch, 2019-Ohio-4099, 2019 Ohio App. LEXIS 4175 (2d Dist. Oct. 4, 2019):

[*P21] Izmir also argues that Mustafa and the Shakhmanov brothers have an extremely close familial bond with all of the Koch brothers. Izmir argues that, while they are technically cousins, the Kochs and Shakhmanovs are more akin to brothers. Izmir argues that this is highlighted by the fact that Mustafa provided all of the Koch brothers with a card and keys allowing them access to the Ameripro office and grounds. However, although Izmir argues that his possession of a swipe card and keys to the office demonstrated he had a privacy expectation in the room containing the video surveillance equipment, possession of such equipment, in and of itself, did not establish a reasonable expectation of privacy in the video room. See State v. Logel, 2d Dist. Montgomery No. 21912, 2008-Ohio-17, ¶ 28 (“although the defendant had a key to the apartment, he demonstrated no other indicia that would suggest he had a reasonable expectation of privacy in the apartment”).

[*P22] Simply put, notwithstanding the fact that Izmir had a swipe card and keys which granted him access to portions of the Ameripro office and grounds, we agree with the trial court that Izmir failed to adduce any evidence that he had an expectation of privacy in the room containing the video surveillance equipment. It is undisputed that, as cousins of Mustafa, Izmir and Baris were granted the same level of access to the office and grounds at Ameripro. Accordingly, it was reasonable to infer that, if Baris Koch did not have access to the video surveillance room per Mustafa’s testimony, then Izmir would not have had access to the room either. Izmir bore the burden to establish that he had a protected privacy right therein; he did not do so. Therefore, we find that the trial court did not err when it overruled Izmir’s motion to suppress, finding that he lacked standing to challenge the video’s seizure because he did not establish that he had a reasonable expectation of privacy in Ameripro’s business property and/or the particular office where the surveillance video was maintained.

Codefendant’s appeal: State v. Shakhmanov, 2019-Ohio-4598, 2019 Ohio App. LEXIS 4646 (2d Dist. Nov. 8, 2019).