State v. Kimes

In State v. Kimes, 2021 Ohio 650, an officer with the Delaware City Police Department was on patrol when dispatch reported that a warrant had been issued for a person believed to be riding in a Honda Odyssey. Dispatch provided a description of the person and the vehicle. Officer Chris Bates soon saw a matching van leaving a gas station and observed a passenger who appeared to match the description from dispatch. The officer had to turn around and briefly lost sight of the van.

Officer Bates then found the van legally parked on a side street. He activated his overhead lights and approached, but the van was empty. Near the driver’s door, he saw a cellphone lying on the ground. The phone was still attached to a charging cord that ran back into the van through the closed driver’s door. The officer waited for the occupants to return, but no one came back.

After waiting several minutes, Officer Bates picked up the phone and pressed the home button to try to determine who owned it. When the phone activated, thumbnail images appeared on the screen that appeared to show child pornography. The officer turned the phone off and contacted a supervisor. Police secured the phone and later obtained a warrant before conducting a forensic examination of its contents.

Detectives examined the phone and connected it to David Kimes II through contacts, accounts, messages, and photographs. The phone contained contacts for Kimes’s father, brother, and the mother of his child. It also contained social media and email accounts belonging to Kimes, along with selfie-style photographs of him and images of family members. Investigators found five images of child pornography downloaded to the phone during a time period when the phone was also being used to text Kimes’s child’s mother and brother. The forensic report also showed a search shortly before the downloads for “what does a toddler’s vagina look like.”

Kimes was charged with five counts of pandering sexually oriented matter involving a minor. He moved to suppress the evidence found on the phone, arguing that the officer violated the Fourth Amendment by activating the phone without a warrant. The trial court denied the motion. A jury convicted him, and he appealed.

The main issue in plain English was whether the officer unlawfully searched Kimes’s phone when he pressed the home button before getting a warrant.

Kimes argued that he had not abandoned the phone and still had a privacy interest in it. Because cellphones contain highly private information, he claimed the officer needed a warrant before interacting with the phone at all. The State argued that the phone was found unattended or lost next to the vehicle and that the officer’s limited action was reasonable because he was trying to identify the owner.

The appellate court also reviewed whether the evidence was legally sufficient to prove Kimes knowingly downloaded the illegal images, whether the convictions were against the manifest weight of the evidence, and whether his indefinite sentence under Ohio’s Reagan Tokes Act was unconstitutional.

The Ohio Court of Appeals affirmed the trial court.

On the suppression issue, the court did not agree that the cellphone had been abandoned. The facts did not show that the owner intentionally discarded it or gave up any privacy interest in it. The phone was lying on the ground next to the driver’s door, still connected to a charging cord running into the van. The more accurate description, the court said, was that the phone was unattended, mislaid, or lost.

That distinction mattered. A person generally keeps a reasonable expectation of privacy in a lost or mislaid item. But that privacy interest is reduced to the extent necessary for the finder, including an officer, to examine the item in a reasonable way to determine the rightful owner.

Applying that rule, the court held that Officer Bates acted reasonably. He waited for someone to return. When no one did, he picked up the phone and pressed the home button for the limited purpose of identifying the owner. When apparent child pornography thumbnails appeared, he stopped, turned off the phone, contacted a supervisor, and the department obtained a warrant before conducting a forensic search. Under those circumstances, the court held that the officer did not violate the Fourth Amendment.

The court also found the evidence sufficient to support the convictions. Although the State did not have direct evidence of Kimes personally downloading the images, circumstantial evidence connected him to the phone and to the downloads. The phone contained his accounts, his contacts, his photographs, and text activity involving his family during the same time period the images were downloaded. The forensic evidence also showed a relevant search shortly before the first download. The court held that a rational jury could find that Kimes owned and used the phone, knowingly searched for the material, and downloaded the illegal images.

The court rejected Kimes’s manifest-weight argument as well. His suggestion that some unidentified third party might have accessed the phone did not outweigh the State’s forensic evidence. Finally, the court rejected his Reagan Tokes Act sentencing challenge as not ripe for review because he had not yet been held beyond his minimum term.

The practical rule from State v. Kimes is that an officer who finds a lost or unattended cellphone may, in limited circumstances, take reasonable steps to identify the owner. But the court’s approval was tied closely to the facts: the officer’s purpose was owner identification, the action was limited, the incriminating thumbnails appeared immediately, and police obtained a warrant before conducting a deeper forensic search.

State v. Kimes is useful for officers because it recognizes a narrow difference between rummaging through a phone and taking a limited step to identify the owner of a lost or unattended device. The court did not say that officers may freely search a found phone. It said that when a phone is mislaid or unattended, the owner’s privacy interest is diminished only to the extent needed to determine ownership.

For patrol officers, the sequence of actions in this case matters. Officer Bates found the phone outside the van, still connected to the vehicle by a charging cord. He waited to see if the occupants returned. He then pressed the home button for the stated purpose of identifying the owner. When apparent contraband appeared, he stopped and escalated the matter. That restraint helped preserve the evidence.

For detectives and supervisors, the case reinforces the importance of getting a warrant before conducting a forensic examination of a cellphone. The court’s decision did not authorize a full device search based only on the phone being found near a vehicle. The later detailed review of contacts, accounts, photographs, messages, searches, and downloads was conducted pursuant to a warrant.

The case also shows the evidentiary value of forensic timelines. The State connected Kimes to the device through contacts, user accounts, photographs, and text messages. Investigators then compared the timing of ordinary phone use with the timing of the illegal downloads and the prior search query. That circumstantial evidence was enough to support the convictions.

Officers should not overread State v. Kimes. The case does not create a general rule that pressing buttons, opening apps, scrolling, or browsing through a found cellphone is always lawful. The safer reading is that a very limited owner-identification step may be reasonable when the phone appears lost or unattended, but any investigative search of the phone’s contents should be supported by a warrant or another clearly recognized exception.