Top Ohio court mulls child-porn evidence dispute

Dennis Gould of Lansing appears in Lucas County Common Pleas Court September, 2008. THE BLADE Enlarge | Photo Reprints

COLUMBUS -- How long can a computer hard drive be left behind before it is considered abandoned and subject to search by police without a warrant?

That was the question before the Ohio Supreme Court Wednesday as it weighed the child rape, child pornography, and other convictions of Dennis Gould, 47, that were the direct result of images police found on a hard drive he left in his mother's protection before fleeing Toledo in a stolen truck. He was gone for months.

His mother took the computer hard drive, along with her suspicions and those of Gould's brother, to Toledo Detective Regina Lester.

Gould's convictions, however, were overturned by the 6th District Court of Appeals after his mother, Sharon Easterwood, provided additional information after police conducted a warrantless search of the hard drive. That information at least temporarily placed the computer's hard drive back in the possession of Gould, undermining the contention that it had been abandoned.

Lucas County Assistant Prosecutor Evy M. Jarrett argued that there was no negligence on the part of police in relying on Ms. Easterwood's information. Even if there were, Ms. Jarrett contended that the negligence didn't rise to the level of necessitating the reversal of a conviction for raping a 7-year-old girl.

But Gould's attorney, Jeremy J. Masters, countered that there was an illegal search of a hard drive that his client never abandoned and that the police negligence in searching it without a warrant was sufficient to exclude the evidence it contained from trial.

"If [Ms. Easterwood] couples one son's fear that anybody is going to see this hard drive with the other son's revelation that Mr. Gould is involved in child pornography, it's not a quantum leap for her to figure that there's probably child pornography on that disk," Chief Justice Maureen O'Connor told Mr. Masters.

"For her to make good-faith representation and the officer to rely on that based on history that was given by the mother, I don't see where you think that there's a disconnect in objectivity and good faith,'' she said.

Mr. Masters countered, "The question isn't what's on the hard drive. The question is what is the status of the hard drive."

After Ms. Easterwood originally delivered the disconnected hard drive, Toledo police checked it into their property room and did nothing with it for months.

Using a cell-phone number provided by Ms. Easterwood, police attempted to contact Gould.

Eventually, they determined that the drive had been abandoned, received consent from Ms. Easterwood, and conducted the search without a warrant. If there were negligence, it was on the part of Ms. Easterwood, not city police, Ms. Jarrett said.

"It was at most a failure to ask more questions, and that doesn't rise to the level of systemic recurring negligence'' necessary to overturn a child rape conviction, she said.

Justice Yvette McGee Brown noted that the court won't have to reach the point of weighing the seriousness of negligence on the part of the state if it doesn't find negligence in the first place.

"Detective Lester received the hard drive. There was no state action ... " she said. "She held it in her property room. I can't find a state action here."

Gould was convicted after a three-day trial of possessing images of child pornography on the hard drive. Also found on the hard drive were photos of Gould engaging in sex acts with the 7-year-old victim.

Gould, who was sentenced in October, 2008, to two life sentences for rape and an additional 13 1/4 years for child pornography, remained in the Toledo Correctional Institution pending this appeal.

The high court did not immediately issue a ruling.

Contact Jim Provance at: jprovance@theblade.com or 614-221-0496.