Chapter 2933: PEACE WARRANTS; SEARCH WARRANTS

2933.01 Peace and search warrant definitions.

The definition of "magistrate" set forth in section 2931.01 of the Revised Code applies to Chapter 2933 of the Revised Code.

Cite as R.C. § 2933.01

Effective Date: 10-01-1953

2933.02 Warrant to keep the peace.

When a complaint is made in writing and upon oath, filed with a municipal or county court or a mayor sitting as the judge of a mayor's court, and states that the complainant has just cause to fear and fears that another individual will commit an offense against the person or property of the complainant or his ward or child, a municipal or county court judge or mayor shall issue to the sheriff or to any other appropriate peace officer, as defined in section 2935.01 of the Revised Code, within the territorial jurisdiction of the court, a warrant in the name of the state that commands him forthwith to arrest and take the individual complained of before the court to answer the complaint.

Cite as R.C. § 2933.02

Effective Date: 03-17-1987

2933.03 Warrant to keep the peace - form.

Warrants issued under section 2933.02 of the Revised Code shall be substantially in the following form:

The state of Ohio,. . . . . . . County, ss:

To the sheriff or other appropriate peace officer, greeting:

Whereas, a complaint has been filed by one C. D., in writing and upon oath, stating that he has just cause to fear and does fear that one E. F. will (here state the threatened injury or violence according to the fact as sworn to).

These are therefore to command you to forthwith arrest E. F. and bring him before this court to show cause why he should not find surety to keep the peace and be of good behavior toward the citizens of the state generally, and C. D. especially, and for his appearance before the proper court.

Given under my hand, this . . . . . . . day of. . .

A. B., Judge,............................ County Court;

Judge, .................................. Municipal Court;

Mayor, .................................... Mayor's Court

Cite as R.C. § 2933.03

Effective Date: 03-17-1987

2933.04 Warrant to keep the peace - hearing.

When the accused in [is] brought before the municipal, county, or mayor's court pursuant to sections 2933.02 and 2933.03 of the Revised Code, he shall be heard in his defense. If it is necessary for just cause to adjourn the hearing, the municipal or county court judge or mayor involved may order such adjournment. The judge or mayor also may direct the sheriff or other peace officer having custody of the accused to detain him in the county jail or other appropriate detention facility until the cause of delay is removed, unless a bond in a sum fixed by the judge or mayor but not to exceed five hundred dollars, with sufficient surety, is given by the accused. A delay shall not exceed two days.

Cite as R.C. § 2933.04

Effective Date: 03-17-1987

2933.05 Warrant to keep the peace - disposition, bond, costs.

The municipal or county court judge or mayor sitting as the judge of a mayor's court, upon the appearance of the parties pursuant to sections 2933.02 to 2933.04 of the Revised Code, shall hear the witnesses under oath and do one of the following:

(A) Discharge the accused, render judgment against the complainant for costs, and award execution for the costs;

(B) Order the accused to enter into a bond of not less than fifty or more than five hundred dollars, with sufficient surety, to keep the peace and be of good behavior for such time as may be just, render judgment against him for costs, and award execution for the costs.

In default of such bond, the judge or mayor shall commit the accused to the county jail or other appropriate detention facility, until such order is complied with or he is discharged.

Cite as R.C. § 2933.05

Effective Date: 03-17-1987

2933.06 Warrant to keep the peace - appeal.

The accused under sections 2933.02 to 2933.05 of the Revised Code may appeal from the decision of a municipal or county court judge to the appropriate court of appeals or from the decision of a mayor sitting as the judge of a mayor's court to the appropriate municipal or county court. An appeal from the decision of a municipal or county court judge to the appropriate court of appeals shall be only as to questions of law and, to the extent that sections 2933.06 to 2933.09 of the Revised Code do not contain relevant provisions, shall be made and proceed in accordance with the Rules of Appellate Procedure. An appeal from the decision of a mayor sitting as the judge of a mayor's court to the appropriate municipal or county court shall be as to questions of law and fact, and shall be made and proceed in accordance with sections 2933.06 to 2933.09 of the Revised Code.

In connection with either type of appeal, the accused shall file with the clerk of the municipal, county, or mayor's court, within ten days after the decision is rendered, an appeal bond in a sum to be fixed by the judge or mayor at not less than fifty or more than five hundred dollars, with surety to be approved by the judge or mayor, conditioned that, pending the determination of the appeal, the accused will keep the peace and will be of good behavior generally and especially towards the person named in the complaint. Upon the filing of the appeal bond, the clerk of the municipal, county, or mayor's court forthwith shall make a certified transcript of the proceedings in the action, the appeal bond to be included. Upon the payment by the appellant of the fee for the transcript, the clerk immediately shall file the transcript and all the original papers in the action in the office of the clerk of the appellate court.

Cite as R.C. § 2933.06

Effective Date: 03-17-1987

2933.07 Warrant to keep the peace - failure to prosecute appeal.

In the case of an appeal from the decision of a mayor sitting as the judge of a mayor's court to the appropriate municipal or county court, no further pleadings shall be required. If the complainant fails to prosecute in such an appeal, the accused shall be discharged unless good cause to the contrary is shown, and the municipal or county court shall render judgment against the complainant for the costs of prosecution and award execution for the costs.

Cite as R.C. § 2933.07

Effective Date: 03-17-1987

2933.08 Warrant to keep the peace - hearing on appeal.

In the case of an appeal from the decision of a mayor sitting as the judge of a mayor's court to the appropriate municipal or county court, the municipal or county court shall set a time for the hearing of that appeal and, at that time, shall hear the witnesses under oath, and either discharge the accused, render judgment against the complainant for costs, and award execution for the costs, or order the accused to enter into a bond, for such time as may be just, to keep the peace and be of good behavior, render judgment against him for costs, and award execution for the costs.

Cite as R.C. § 2933.08

Effective Date: 03-17-1987

2933.09 Warrant to keep the peace - failure to enter into bond.

In the case of an appeal from the decision of a mayor sitting as the judge of a mayor's court to the appropriate municipal or county court, if the accused fails to enter into a bond ordered pursuant to section 2933.08 of the Revised Code, the municipal or county court shall commit the accused to jail until he enters into a bond or is discharged by law, and shall render judgment against him for costs and award execution for the costs. He shall not be imprisoned longer than one year.

After such a commitment following such an appeal, or after a commitment of not more than one year for not entering into a bond ordered pursuant to section 2933.05 of the Revised Code, if such an appeal was not taken, the court may at any time discharge the accused on his own recognizance.

Cite as R.C. § 2933.09

Effective Date: 03-17-1987

2933.10 Warrant to keep the peace - acts committed in presence of court.

Whoever, in the presence of a municipal or county court judge, or a mayor sitting as the judge of a mayor's court, makes an affray, threatens to beat or kill another or to commit an offense against the person or property of another, or contends with angry words to the disturbance of the peace, may be ordered without process or other proof to enter into a bond under section 2933.05 of the Revised Code. In default of such a bond, the person may be committed under that section.

Cite as R.C. § 2933.10

Effective Date: 04-19-1988

2933.16 [Repealed].

Cite as R.C. § 2933.16

Effective Date: 01-01-2004

2933.21 Issuance of search warrants.

A judge of a court of record may, within his jurisdiction, issue warrants to search a house or place:

(A) For property stolen, taken by robbers, embezzled, or obtained under false pretense;

(B) For weapons, implements, tools, instruments, articles or property used as a means of the commission of a crime, or when any of the objects or articles are in the possession of another person with the intent to use them as a means of committing crime;

(C) For forged or counterfeit coins, stamps, imprints, labels, trade-marks, bank bills, or other instruments of writing, and dies, plates, stamps, or brands for making them;

(D) For obscene materials and materials harmful to minors involved in a violation of section 2907.31 or 2907.32 of the Revised Code, but only so much of such materials shall be seized as are [is] necessary for evidence in a prosecution of the violation;

(E) For [any] gaming table, establishment, device, or apparatus kept or exhibited for unlawful gaming, or to win or gain money or other property, and for money or property won by unlawful gaming;

(F) For the existence of physical conditions which are or may become hazardous to the public health, safety, or welfare, when governmental inspections of property are authorized or required by law.

The enumeration of certain property and material in this section shall not affect or modify other laws for search and seizure.

Cite as R.C. § 2933.21

Effective Date: 06-13-1975

2933.22 Probable cause for search warrant.

(A) A warrant of search or seizure shall issue only upon probable cause, supported by oath or affirmation particularly describing the place to be searched and the property and things to be seized.

(B) A warrant of search to conduct an inspection of property shall issue only upon probable cause to believe that conditions exist upon such property which are or may become hazardous to the public health, safety, or welfare.

Cite as R.C. § 2933.22

Effective Date: 10-23-1972

2933.23 Search warrant affidavit.

A search warrant shall not be issued until there is filed with the judge or magistrate an affidavit that particularly describes the place to be searched, names or describes the person to be searched, and names or describes the property to be searched for and seized; that states substantially the offense in relation to the property and that the affiant believes and has good cause to believe that the property is concealed at the place or on the person; and that states the facts upon which the affiant's belief is based. The judge or magistrate may demand other and further evidence before issuing the warrant. If the judge or magistrate is satisfied that grounds for the issuance of the warrant exist or that there is probable cause to believe that they exist, he shall issue the warrant, identifying in it the property and naming or describing the person or place to be searched.

A search warrant issued pursuant to this chapter or Criminal Rule 41 also may contain a provision waiving the statutory precondition for nonconsensual entry, as described in division (C) of section 2933.231 of the Revised Code, if the requirements of that section are satisfied.

Cite as R.C. § 2933.23

Effective Date: 11-20-1990

2933.231 Waiving the statutory precondition for nonconsensual entry.

(A) As used in this section:

(1) "Law enforcement officer" has the same meaning as in section 2901.01 of the Revised Code and in Criminal Rule 2.

(2) "Prosecutor" has the same meaning as in section 2935.01 of the Revised Code, and includes any prosecuting attorney as defined in Criminal Rule 2.

(3) "Statutory precondition for nonconsensual entry" means the precondition specified in section 2935.12 of the Revised Code that requires a law enforcement officer or other authorized individual executing a search warrant to give notice of his intention to execute the warrant and then be refused admittance to a dwelling house or other building before he legally may break down a door or window to gain entry to execute the warrant.

(B) A law enforcement officer, prosecutor, or other authorized individual who files an affidavit for the issuance of a search warrant pursuant to this chapter or Criminal Rule 41 may include in the affidavit a request that the statutory precondition for nonconsensual entry be waived in relation to the search warrant. A request for that waiver shall contain all of the following:

(1) A statement that the affiant has good cause to believe that there is a risk of serious physical harm to the law enforcement officers or other authorized individuals who will execute the warrant if they are required to comply with the statutory precondition for nonconsensual entry;

(2) A statement setting forth the facts upon which the affiant's belief is based, including, but not limited to, the names of all known persons who the affiant believes pose the risk of serious physical harm to the law enforcement officers or other authorized individuals who will execute the warrant at the particular dwelling house or other building;

(3) A statement verifying the address of the dwelling house or other building proposed to be searched as the correct address in relation to the criminal offense or other violation of law underlying the request for the issuance of the search warrant;

(4) A request that, based on those facts, the judge or magistrate waive the statutory precondition for nonconsensual entry.

(C) If an affidavit for the issuance of a search warrant filed pursuant to this chapter or Criminal Rule 41 includes a request for a waiver of the statutory precondition for nonconsensual entry, if the request conforms with division (B) of this section, if division (E) of this section is satisfied, and if the judge or magistrate issues the warrant, the judge or magistrate shall include in it a provision that waives the statutory precondition for nonconsensual entry for purposes of the search and seizure authorized under the warrant only if he determines there is probable cause to believe that, if the law enforcement officers or other authorized individuals who execute the warrant are required to comply with the statutory precondition for nonconsensual entry, they will be subjected to a risk of serious physical harm and to believe that the address of the dwelling house or other building to be searched is the correct address in relation to the criminal offense or other violation of law underlying the issuance of the warrant.

(D)

(1) A waiver of the statutory precondition for nonconsensual entry by a judge or magistrate pursuant to division (C) of this section does not authorize, and shall not be construed as authorizing, a law enforcement officer or other authorized individual who executes a search warrant to enter a building other than a building described in the warrant.

(2) The state or any political subdivision associated with a law enforcement officer or other authorized officer who executes a search warrant that contains a provision waiving the statutory precondition for nonconsensual entry is liable in damages in a tort action for any injury, death, or loss to person or property that is proximately caused by the officer's execution of the warrant in accordance with the waiver at an address of a dwelling house or other building that is not described in the warrant.

(E) Any proceeding before a judge or magistrate that involves a request for a waiver of the statutory precondition for nonconsensual entry shall be recorded by shorthand, by stenotype, or by any other mechanical, electronic, or video recording device. The recording of and any transcript of the recording of such a proceeding shall not be a public record for purposes of section 149.43 of the Revised Code until the search warrant is returned by the law enforcement officer or other authorized officer who executes it. This division shall not be construed as requiring, authorizing, or permitting, and does not require, authorize, or permit, the making available for inspection, or the copying, under section 149.43 of the Revised Code of any confidential law enforcement investigatory record or trial preparation record, as defined in that section.

Cite as R.C. § 2933.231

Effective Date: 11-20-1990

2933.24 Contents of search warrant - report of physical conditions.

(A) A search warrant shall be directed to the proper law enforcement officer or other authorized individual and, by a copy of the affidavit inserted in it or annexed and referred to in it, shall show or recite all the material facts alleged in the affidavit, and particularly name or describe the property to be searched for and seized, the place to be searched, and the person to be searched. If a waiver of the statutory precondition for nonconsensual entry, as defined in division (A) of section 2933.231 of the Revised Code, has been granted pursuant to that section, the warrant also shall contain a provision as described in division (C) of that section.

The warrant shall command the officer or individual to search the place or person named or described for the property, and to bring them, together with the person, before the judge or magistrate. The command of the warrant shall be that the search be made in the daytime, unless there is urgent necessity for a search in the night, in which case a search in the night may be ordered.

The warrant shall be returned promptly by the officer or individual holding it . It shall designate the judge or magistrate to whom it shall be returned, if such judge or magistrate is available.

(B) When a search warrant commands a proper law enforcement officer or other authorized individual to inspect physical conditions relating to public health, safety, or welfare, such officer or individual, upon completion of the search, shall complete a report of the conditions and file a copy of such report with the officer's or individual's agency headquarters.

Cite as R.C. § 2933.24

Effective Date: 11-20-1990; 10-21-2005

2933.241 Return and inventory of property.

The officer taking property under a warrant for search shall give to the person from whom or from whose premises the property was taken a copy of the warrant and a receipt for the property taken or shall leave the copy and receipt at the place from which the property was taken. The return shall be made promptly and shall be accompanied by a written inventory of any property taken. The inventory shall be made in the presence of the applicant for the warrant and the person from whose possession or premises the property was taken, if they are present, or in the presence of at least one credible person other than the applicant for the warrant or the person from whose possession or premises the property was taken and shall be verified by the officer. The judge or magistrate shall upon request deliver a copy of the inventory to the person from whom or from whose premises the property was taken and to the applicant for the warrant.

Cite as R.C. § 2933.241

Effective Date: 10-14-1963

2933.25 Form of search warrant.

Warrants issued under section 2933.21 of the Revised Code shall be substantially in the following form:

State of Ohio, ....................... County, ss:

To the sheriff (or other officer) of said County, greeting:

Whereas there has been filed with me an affidavit, of which the following is a copy (here copy the affidavit).

These are, therefore, to command you in the name of the State of Ohio, with the necessary and proper assistance, to enter, in the daytime (or in the nighttime) into (here describe the house or place as in the affidavit) of the said .......... of the township of ........... in the County aforesaid, and there diligently search for the said goods and chattels, or articles, to wit: (here describe the articles as in the affidavit) and that you bring the same or any part thereof, found on such search, and also the body of E. F., forthwith before me, or some other judge or magistrate of the county having cognizance thereof to be disposed of and dealt with according to law.

Given under my hand, this ............. day of ...........................

A. B., Judge, County Court

Cite as R.C. § 2933.25

Effective Date: 01-01-1958

2933.26 Seized property to be kept by court.

When a warrant is executed by the seizure of property or things described therein, such property or things shall be kept by the judge, clerk, or magistrate to be used as evidence.

Cite as R.C. § 2933.26

Effective Date: 10-01-1953

2933.27 Keeping of seized property until trial.

If, upon examination, the judge or magistrate is satisfied that the offense charged with reference to the things seized under a search warrant has been committed, he shall keep such things or deliver them to the sheriff of the county, to be kept until the accused is tried or the claimant's right is otherwise ascertained.

Cite as R.C. § 2933.27

Effective Date: 10-01-1953

2933.28 [Repealed].

Cite as R.C. § 2933.28

Effective Date: 03-28-1985

2933.29 Gambling or gaming property seized liable for fines.

Upon conviction of a person for keeping a room or place to be used for gambling, or knowingly permitting gambling to be conducted therein, or permitting a game to be played for gain, or a gaming device for gain, money, or other property or for betting, or gambling, or permitting such device to be so used, or for being without a fixed residence and in the habit of gambling, if money or other property won in gaming is found in his possession, such money or other property is subject to seizure and payment of a judgment which may be rendered against him, growing out of such violation.

Cite as R.C. § 2933.29

Effective Date: 10-01-1953

2933.30 Search for dead human bodies.

When an affidavit is filed before a judge or magistrate, alleging that affiant has reason to believe and does believe that a dead human body, procured or obtained contrary to law, is secreted in a building or place in the county, therein particularly specified, such judge or magistrate, taking with him a judge of a county court, or if within a municipal corporation, two officers of such corporation, may enter, inspect, and search said building or place for such body. In making such search, they have the powers of officers executing warrants of search.

Cite as R.C. § 2933.30

Effective Date: 01-01-1958

2933.31 Search in case of animal law violations.

When complaint is made, on oath or affirmation to a judge or magistrate, that the complainant believes that the law relating to or affecting animals is being, or is about to be violated in a particular building or place, such judge or magistrate shall forthwith issue and deliver a warrant, directed to any sheriff, deputy sheriff, marshal, deputy marshal, watchman, police officer, or agent of a society for the prevention of cruelty to animals, authorizing him to enter and search such building or place and arrest all persons there violating, or attempting to violate, such law, and bring such persons before a judge or magistrate within the county within which such offense has been committed.

An attempt to violate such law relating to animals is a violation thereof.

Cite as R.C. § 2933.31

Effective Date: 10-01-1953

2933.32 Body cavity search, strip search - conducting unauthorized search - failure to prepare proper search report.

(A) As used in this section:

(1) "Body cavity search" means an inspection of the anal or vaginal cavity of a person that is conducted visually, manually, by means of any instrument, apparatus, or object, or in any other manner while the person is detained or arrested for the alleged commission of a misdemeanor or traffic offense.

(2) "Strip search" means an inspection of the genitalia, buttocks, breasts, or undergarments of a person that is preceded by the removal or rearrangement of some or all of the person's clothing that directly covers the person's genitalia, buttocks, breasts, or undergarments and that is conducted visually, manually, by means of any instrument, apparatus, or object, or in any other manner while the person is detained or arrested for the alleged commission of a misdemeanor or traffic offense. "Strip search" does not mean the visual observation of a person who was afforded a reasonable opportunity to secure release on bail or recognizance, who fails to secure such release, and who is to be integrated with the general population of any detention facility, while the person is changing into clothing that is required to be worn by inmates in the facility.

(B)

(1) Except as authorized by this division, no law enforcement officer, other employee of a law enforcement agency, physician, or registered nurse or licensed practical nurse shall conduct or cause to be conducted a body cavity search or a strip search.

(2) A body cavity search or strip search may be conducted if a law enforcement officer or employee of a law enforcement agency has probable cause to believe that the person is concealing evidence of the commission of a criminal offense, including fruits or tools of a crime, contraband, or a deadly weapon, as defined in section 2923.11 of the Revised Code, that could not otherwise be discovered. In determining probable cause for purposes of this section, a law enforcement officer or employee of a law enforcement agency shall consider the nature of the offense with which the person to be searched is charged, the circumstances of the person's arrest, and, if known, the prior conviction record of the person.

(3) A body cavity search or strip search may be conducted for any legitimate medical or hygienic reason.

(4) Unless there is a legitimate medical reason or medical emergency justifying a warrantless search, a body cavity search shall be conducted only after a search warrant is issued that authorizes the search. In any case, a body cavity search shall be conducted under sanitary conditions and only by a physician, or a registered nurse or licensed practical nurse, who is registered or licensed to practice in this state.

(5) Unless there is a legitimate medical reason or medical emergency that makes obtaining written authorization impracticable, a body cavity search or strip search shall be conducted only after a law enforcement officer or employee of a law enforcement agency obtains a written authorization for the search from the person in command of the law enforcement agency, or from a person specifically designated by the person in command to give a written authorization for either type of search.

(6) A body cavity search or strip search shall be conducted by a person or persons who are of the same sex as the person who is being searched and the search shall be conducted in a manner and in a location that permits only the person or persons who are physically conducting the search and the person who is being searched to observe the search.

(C)

(1) Upon completion of a body cavity search or strip search pursuant to this section, the person or persons who conducted the search shall prepare a written report concerning the search that shall include all of the following:

(a) The written authorization for the search obtained from the person in command of the law enforcement agency or his designee, if required by division (B)(5) of this section;

(b) The name of the person who was searched;

(c) The name of the person or persons who conducted the search, the time and date of the search, and the place at which the search was conducted;

(d) A list of the items, if any, recovered during the search;

(e) The facts upon which the law enforcement officer or employee of the law enforcement agency based his probable cause for the search, including, but not limited to, the officer or employee's review of the nature of the offense with which the searched person is charged, the circumstances of his arrest, and, if known, his prior conviction record;

(f) If the body cavity search was conducted before or without the issuance of a search warrant pursuant to division (B)(4) of this section, or if the body cavity or strip search was conducted before or without the granting of written authorization pursuant to division (B)(5) of this section, the legitimate medical reason or medical emergency that justified the warrantless search or made obtaining written authorization impracticable.

(2) A copy of the written report required by division (C)(1) of this section shall be kept on file in the law enforcement agency, and another copy of it shall be given to the person who was searched.

(D)

(1) This section does not preclude the prosecution of a law enforcement officer or employee of a law enforcement agency for the violation of any other section of the Revised Code.

(2) This section does not limit, and shall not be construed to limit, any statutory or common law rights of a person to obtain injunctive relief or to recover damages in a civil action.

(3) If a person is subjected to a body cavity search or strip search in violation of this section, any person may commence a civil action to recover compensatory damages for any injury, death, or loss to person or property or any indignity arising from the violation. In the civil action, the court may award punitive damages to the plaintiffs if they prevail in the action, and it may award reasonable attorney's fees to the parties who prevail in the action.

(4) This section does not apply to body cavity searches or strip searches of persons who have been sentenced to serve a term of imprisonment and who are serving that term in a detention facility, as defined in section 2921.01 of the Revised Code.

(E)

(1) Whoever violates division (B) of this section is guilty of conducting an unauthorized search, a misdemeanor of the first degree.

(2) Whoever violates division (C) of this section is guilty of failure to prepare a proper search report, a misdemeanor of the fourth degree.

Cite as R.C. § 2933.32

Effective Date: 04-04-1985

2933.33 Search of premises for illegal manufacture of methamphetamine.

(A) If a law enforcement officer has probable cause to believe that particular premises are used for the illegal manufacture of methamphetamine, for the purpose of conducting a search of the premises without a warrant, the risk of explosion or fire from the illegal manufacture of methamphetamine causing injury to the public constitutes exigent circumstances and reasonable grounds to believe that there is an immediate need to protect the lives, or property, of the officer and other individuals in the vicinity of the illegal manufacture.

(B) As used in this section, "methamphetamine" has the same meaning as in section 2925.01 of the Revised Code.

Cite as R.C. § 2933.33

Effective Date: 05-17-2006

2933.41 [Repealed].

Cite as R.C. § 2933.41

Effective Date: 07-01-2007

2933.42 [Repealed].

Cite as R.C. § 2933.42

Effective Date: 07-01-2007

2933.43 [Repealed].

Cite as R.C. § 2933.43

Effective Date: 07-01-2007

2933.44 [Repealed].

Cite as R.C. § 2933.44

Effective Date: 07-01-2007

2933.51 Wiretapping, electronic surveillance definitions.

As used in sections 2933.51 to 2933.66 of the Revised Code:

(A) "Wire communication" means an aural transfer that is made in whole or in part through the use of facilities for the transmission of communications by the aid of wires or similar methods of connecting the point of origin of the communication and the point of reception of the communication, including the use of a method of connecting the point of origin and the point of reception of the communication in a switching station, if the facilities are furnished or operated by a person engaged in providing or operating the facilities for the transmission of communications. "Wire communication" includes an electronic storage of a wire communication.

(B) "Oral communication" means an oral communication uttered by a person exhibiting an expectation that the communication is not subject to interception under circumstances justifying that expectation. "Oral communication" does not include an electronic communication.

(C) "Intercept" means the aural or other acquisition of the contents of any wire, oral, or electronic communication through the use of an interception device.

(D) "Interception device" means an electronic, mechanical, or other device or apparatus that can be used to intercept a wire, oral, or electronic communication. "Interception device" does not mean any of the following:

(1) A telephone or telegraph instrument, equipment, or facility, or any of its components, if the instrument, equipment, facility, or component is any of the following:

(a) Furnished to the subscriber or user by a provider of wire or electronic communication service in the ordinary course of its business and being used by the subscriber or user in the ordinary course of its business;

(b) Furnished by a subscriber or user for connection to the facilities of a provider of wire or electronic communication service and used in the ordinary course of that subscriber's or user's business;

(c) Being used by a provider of wire or electronic communication service in the ordinary course of its business or by an investigative or law enforcement officer in the ordinary course of the officer's duties that do not involve the interception of wire, oral, or electronic communications.

(2) A hearing aid or similar device being used to correct subnormal hearing to not better than normal.

(E) "Investigative officer" means any of the following:

(1) An officer of this state or a political subdivision of this state, who is empowered by law to conduct investigations or to make arrests for a designated offense;

(2) A person described in divisions (A)(11)(a) and (b) of section 2901.01 of the Revised Code;

(3) An attorney authorized by law to prosecute or participate in the prosecution of a designated offense;

(4) A secret service officer appointed pursuant to section 309.07 of the Revised Code;

(5) An officer of the United States, a state, or a political subdivision of a state who is authorized to conduct investigations pursuant to the "Electronic Communications Privacy Act of 1986," 100 Stat. 1848-1857, 18 U.S.C. 2510 - 2521(1986) , as amended.

(F) "Interception warrant" means a court order that authorizes the interception of wire, oral, or electronic communications and that is issued pursuant to sections 2933.53 to 2933.56 of the Revised Code.

(G) "Contents," when used with respect to a wire, oral, or electronic communication, includes any information concerning the substance, purport, or meaning of the communication.

(H) "Communications common carrier" means a person who is engaged as a common carrier for hire in intrastate, interstate, or foreign communications by wire, radio, or radio transmission of energy. "Communications common carrier" does not include, to the extent that the person is engaged in radio broadcasting, a person engaged in radio broadcasting.

(I) "Designated offense" means any of the following:

(1) A felony violation of section 1315.53 , 1315.55 , 2903.01 , 2903.02 , 2903.11 , 2905.01 , 2905.02 , 2905.11 , 2905.22 , 2905.32 , 2907.02 , 2907.21 , 2907.22 , 2909.02 , 2909.03 , 2909.04 , 2909.22 , 2909.23 , 2909.24 , 2909.26 , 2909.27 , 2909.28 , 2909.29 , 2911.01 , 2911.02 , 2911.11 , 2911.12 , 2913.02 , 2913.04 , 2913.42 , 2913.51 , 2915.02 , 2915.03 , 2917.01 , 2917.02 , 2921.02 , 2921.03 , 2921.04 , 2921.32 , 2921.34 , 2923.20 , 2923.32 , 2925.03 , 2925.04 , 2925.05 , or 2925.06 or of division (B) of section 2915.05 or of division (E) or (G) of section 3772.99 of the Revised Code;

(2) A violation of section 2919.23 of the Revised Code that, had it occurred prior to July 1, 1996, would have been a violation of section 2905.04 of the Revised Code as it existed prior to that date;

(3) A felony violation of section 2925.11 of the Revised Code that is not a minor drug possession offense, as defined in section 2925.01 of the Revised Code;

(4) Complicity in the commission of a felony violation of a section listed in division (I)(1), (2), or (3) of this section;

(5) An attempt to commit, or conspiracy in the commission of, a felony violation of a section listed in division (I)(1), (2), or (3) of this section, if the attempt or conspiracy is punishable by a term of imprisonment of more than one year.

(J) "Aggrieved person" means a person who was a party to an intercepted wire, oral, or electronic communication or a person against whom the interception of the communication was directed.

(K) "Person" means a person, as defined in section 1.59 of the Revised Code, or a governmental officer, employee, or entity.

(L) "Special need" means a showing that a licensed physician, licensed practicing psychologist, attorney, practicing cleric, journalist, or either spouse is personally engaging in continuing criminal activity, was engaged in continuing criminal activity over a period of time, or is committing, has committed, or is about to commit, a designated offense, or a showing that specified public facilities are being regularly used by someone who is personally engaging in continuing criminal activity, was engaged in continuing criminal activity over a period of time, or is committing, has committed, or is about to commit, a designated offense.

(M) "Journalist" means a person engaged in, connected with, or employed by, any news media, including a newspaper, magazine, press association, news agency, or wire service, a radio or television station, or a similar media, for the purpose of gathering, processing, transmitting, compiling, editing, or disseminating news for the general public.

(N) "Electronic communication" means a transfer of a sign, signal, writing, image, sound, datum, or intelligence of any nature that is transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic, or photo-optical system. "Electronic communication" does not mean any of the following:

(1) A wire or oral communication;

(2) A communication made through a tone-only paging device;

(3) A communication from an electronic or mechanical tracking device that permits the tracking of the movement of a person or object.

(O) "User" means a person or entity that uses an electronic communication service and is duly authorized by the provider of the service to engage in the use of the electronic communication service.

(P) "Electronic communications system" means a wire, radio, electromagnetic, photoelectronic, or photo-optical facility for the transmission of electronic communications, and a computer facility or related electronic equipment for the electronic storage of electronic communications.

(Q) "Electronic communication service" means a service that provides to users of the service the ability to send or receive wire or electronic communications.

(R) "Readily accessible to the general public" means, with respect to a radio communication, that the communication is none of the following:

(1) Scrambled or encrypted;

(2) Transmitted using a modulation technique, the essential parameters of which have been withheld from the public with the intention of preserving the privacy of the communication;

(3) Carried on a subcarrier or other signal subsidiary to a radio transmission;

(4) Transmitted over a communications system provided by a communications common carrier, unless the communication is a tone-only paging system communication;

(5) Transmitted on a frequency allocated under part 25, subpart D, E, or F of part 74, or part 94 of the Rules of the Federal Communications Commission, as those provisions existed on July 1, 1996, unless, in the case of a communication transmitted on a frequency allocated under part 74 that is not exclusively allocated to broadcast auxiliary services, the communication is a two-way voice communication by radio.

(S) "Electronic storage" means a temporary, intermediate storage of a wire or electronic communication that is incidental to the electronic transmission of the communication, and a storage of a wire or electronic communication by an electronic communication service for the purpose of backup protection of the communication.

(T) "Aural transfer" means a transfer containing the human voice at a point between and including the point of origin and the point of reception.

(U) "Pen register" means a device that records or decodes electronic impulses that identify the numbers dialed, pulsed, or otherwise transmitted on telephone lines to which the device is attached.

(V) "Trap and trace device" means a device that captures the incoming electronic or other impulses that identify the originating number of an instrument or device from which a wire communication or electronic communication was transmitted but that does not intercept the contents of the wire communication or electronic communication.

(W) "Judge of a court of common pleas" means a judge of that court who is elected or appointed as a judge of general jurisdiction or as a judge who exercises both general jurisdiction and probate, domestic relations, or juvenile jurisdiction. "Judge of a court of common pleas" does not mean a judge of that court who is elected or appointed specifically as a probate, domestic relations, or juvenile judge.

Cite as R.C. § 2933.51

Amended by 129th General AssemblyFile No.126, HB 386, §1, eff. 6/11/2012.

Amended by 128th General AssemblyFile No.58, SB 235, §1, eff. 3/24/2011.

Effective Date: 05-15-2002; 04-14-2006

2933.52 Interception of wire, oral or electronic communications.

(A) No person purposely shall do any of the following:

(1) Intercept, attempt to intercept, or procure another person to intercept or attempt to intercept a wire, oral, or electronic communication;

(2) Use, attempt to use, or procure another person to use or attempt to use an interception device to intercept a wire, oral, or electronic communication, if either of the following applies:

(a) The interception device is affixed to, or otherwise transmits a signal through, a wire, cable, satellite, microwave, or other similar method of connection used in wire communications;

(b) The interception device transmits communications by radio, or interferes with the transmission of communications by radio.

(3) Use, or attempt to use, the contents of a wire, oral, or electronic communication, knowing or having reason to know that the contents were obtained through the interception of a wire, oral, or electronic communication in violation of sections 2933.51 to 2933.66 of the Revised Code.

(B) This section does not apply to any of the following:

(1) The interception, disclosure, or use of the contents, or evidence derived from the contents, of an oral, wire, or electronic communication that is obtained through the use of an interception warrant issued pursuant to sections 2933.53 to 2933.56 of the Revised Code, that is obtained pursuant to an oral approval for an interception granted pursuant to section 2933.57 of the Revised Code, or that is obtained pursuant to an order that is issued or an interception that is made in accordance with section 802 of the "Omnibus Crime Control and Safe Streets Act of 1968," 82 Stat. 237, 254, 18 U.S.C. 2510 to 2520(1968) , as amended, the "Electronic Communications Privacy Act of 1986," 100 Stat. 1848-1857, 18 U.S.C. 2510 - 2521 (1986 ), as amended, or the "Foreign Intelligence Surveillance Act," 92 Stat. 1783, 50 U.S.C. 1801.11(1978) , as amended;

(2) An operator of a switchboard, or an officer, employee, or agent of a provider of wire or electronic communication service, whose facilities are used in the transmission of a wire or electronic communication to intercept, disclose, or use that communication in the normal course of employment while engaged in an activity that is necessary to the rendition of service or to the protection of the rights or property of the provider of that service, except that a provider of wire or electronic communication service to the public shall not utilize service observing or random monitoring except for mechanical or service quality control checks;

(3) A law enforcement officer who intercepts a wire, oral, or electronic communication, if the officer is a party to the communication or if one of the parties to the communication has given prior consent to the interception by the officer;

(4) A person who is not a law enforcement officer and who intercepts a wire, oral, or electronic communication, if the person is a party to the communication or if one of the parties to the communication has given the person prior consent to the interception, and if the communication is not intercepted for the purpose of committing a criminal offense or tortious act in violation of the laws or Constitution of the United States or this state or for the purpose of committing any other injurious act;

(5) An officer, employee, or agent of a communications common carrier providing information, facilities, or technical assistance to an investigative officer who is authorized to intercept a wire, oral, or electronic communication pursuant to sections 2933.51 to 2933.66 of the Revised Code;

(6) The use of a pen register in accordance with federal or state law;

(7) The use of a trap and trace device in accordance with federal or state law;

(8) A police, fire, or emergency communications system to intercept wire communications coming into and going out of the communications system of a police department, fire department, or emergency center, if both of the following apply:

(a) The telephone, instrument, equipment, or facility is limited to the exclusive use of the communication system for administrative purposes;

(b) At least one telephone, instrument, equipment, or facility that is not subject to interception is made available for public use at each police department, fire department, or emergency center.

(9) The interception or accessing of an electronic communication made through an electronic communication system that is configured so that the electronic communication is readily accessible to the general public.

(10) The interception of a radio communication that is transmitted by any of the following:

(a) A station for the use of the general public;

(b) A governmental, law enforcement, civil defense, private land mobile, or public safety communications system, including a police or fire system, that is readily accessible to the general public;

(c) A station operating on an authorized frequency within the bands allocated to the amateur, citizens band, or general mobile radio services;

(d) A marine or aeronautical communications system.

(11) The interception of a radio communication that relates to a ship, aircraft, vehicle, or person in distress.

(12) The interception of a wire or electronic communication the transmission of which is causing harmful interference to a lawfully operating station or consumer electronic equipment, to the extent necessary to identify the source of that interference.

(13) Other users of the same frequency to intercept a radio communication made through a system that utilizes frequencies monitored by individuals engaged in the provision or the use of that system, if the communication is not scrambled or encrypted.

(C) Whoever violates this section is guilty of interception of wire, oral, or electronic communications, a felony of the fourth degree.

Cite as R.C. § 2933.52

Effective Date: 07-01-1996

2933.521 Divulging content of electronic communications service.

(A) Except as provided in division (B) of this section, no person or entity that provides electronic communication service to the public shall purposely divulge the content of a communication, while it is in transmission on that service, to a person or entity other than an addressee or intended recipient of the communication or an agent of an addressee or intended recipient of the communication.

(B)

(1) Division (A) of this section does not apply to a communication being transmitted to the person or entity providing the electronic communication service or to an agent of that person or entity.

(2) Notwithstanding division (A) of this section, a person or entity that provides electronic communication service to the public may divulge the content of a communication that is in transmission on that service in any of the following circumstances:

(a) The divulgence is authorized by division (B)(2) of section 2933.52 , by section 2933.581 , by division (C) of section 2933.55 , or by division (F) or (G) of section 2933.59 of the Revised Code or by a provision of the "Electronic Communications Privacy Act of 1986," 100 Stat. 1848-1857, 18 U.S.C. 2510 - 2521 (1986 ), as amended.

(b) The originator or an addressee or intended recipient of the communication has lawfully consented to the divulgence.

(c) The divulgence is made to a person who is employed or authorized, or whose facilities are used, to forward the communication to its destination.

(d) The content of the communication divulged was inadvertently obtained by the provider of the service, the content appears to pertain to the commission of a crime, and the divulgence is made to a law enforcement agency.

(C) Neither division (A) of this section nor any other provision of sections 2933.51 to 2933.66 of the Revised Code prohibits a provider of electronic communication service from recording the fact that a wire or electronic communication was initiated or completed, in order to protect the provider, another provider furnishing service toward the completion of the wire or electronic communication, or a user of the electronic communication service from fraudulent, unlawful, or abusive use of the electronic communication service.

Cite as R.C. § 2933.521

Effective Date: 06-13-1996

2933.522 Interception warrants.

A judge of a court of common pleas, in accordance with sections 2933.51 to 2933.66 of the Revised Code, may accept applications for interception warrants, may issue interception warrants, may accept applications for extensions of interception warrants, may order extensions of interception warrants, may accept applications for grants of oral orders for interceptions, may grant oral orders for interceptions, and may issue other orders, perform other functions, or engage in other activities authorized or required by sections 2933.51 to 2933.66 of the Revised Code.

Cite as R.C. § 2933.522

Effective Date: 06-13-1996

2933.53 Application for interception warrant.

(A) The prosecuting attorney of the county in which an interception is to take place or in which an interception device is to be installed, or an assistant to the prosecuting attorney of that county who is specifically designated by the prosecuting attorney to exercise authority under this section, may authorize an application for an interception warrant to a judge of the court of common pleas of the county in which the interception is to take place or in which the interception device is to be installed. If the prosecuting attorney of a county in which an interception is to take place or in which an interception device is to be installed is the subject of an investigation, a special prosecutor appointed by a judge of the court of common pleas of the county served by the prosecuting attorney, without the knowledge of the prosecuting attorney, may apply the procedures of this section. If the subject of an investigation is employed in the office of the prosecuting attorney of the county in which an interception is to take place or in which an interception device is to be installed or the prosecuting attorney of that county believes that the subject has a conflict of interest, the approval of the prosecuting attorney shall be obtained before a special prosecutor is appointed to authorize the application for an interception warrant.

(B) Each application for an interception warrant shall be made in writing upon oath or affirmation to a judge of the court of common pleas of the county in which the interception is to take place or in which the interception device is to be installed, by a person who has received training that satisfies the minimum standards established by the attorney general and the Ohio peace officer training commission under section 2933.64 of the Revised Code. Each application shall contain all of the following:

(1) The name and office of the applicant and the name and office of the prosecuting attorney or assistant prosecuting attorney authorizing the application;

(2) The identity of the investigative officers or law enforcement agency that will intercept the wire, oral, or electronic communications;

(3) A full and complete statement of the objective in seeking the warrant, and a full and complete statement of the facts and circumstances relied on by the applicant to justify the belief that the warrant should be issued, including, but not limited to the following:

(a) The details regarding the designated offense that has been, is being, or is about to be committed;

(b) The identity of the person, if known, who has committed, is committing, or is about to commit the designated offense and whose communications are to be intercepted and the location at which the communications are sought to be intercepted;

(c) Except as provided in division (G)(1) of this section, a particular description of the nature and location of the facilities from which, or the place at which, the communication is to be intercepted;

(d) A particular description of the type of communication sought to be intercepted, and the basis for believing that evidence relating to a designated offense will be obtained through the interception.

(4) A statement as to whether the applicant, or the prosecuting attorney or assistant prosecuting attorney authorizing the application for an interception warrant, knows or has reason to know that the communications sought to be intercepted are privileged under section 2317.02 of the Revised Code, the nature of any privilege that exists, and the basis of the knowledge of the applicant or authorizing prosecuting attorney or assistant prosecuting attorney of the privileged nature of the communications;

(5) A statement of the use to which the contents of an intercepted wire, oral, or electronic communication, or the evidence derived from the communication, will be put;

(6) A statement of the period of time for which the interception is required to be maintained, and, if the nature of the investigation requires that the authorization for interception not be terminated automatically when the described type of communication first has been intercepted, a particular description of the facts establishing probable cause to believe that additional communications of the same type will occur after the first intercepted communication;

(7) A full and complete statement indicating whether other investigative procedures have been tried and have failed to produce the required evidence or indicating the reason that other investigative procedures reasonably appear to be unlikely to succeed if tried or to be too dangerous to employ in order to obtain evidence;

(8) A full and complete statement of the particular facts concerning all previous applications known to the applicant or the prosecuting attorney or assistant prosecuting attorney authorizing the application for the interception warrant, that have been made to a judge for authorization to intercept wire, oral, or electronic communications involving any of the persons, facilities, or places specified in the application, and the action of the judge with respect to each previous application;

(9) Unless the attorney general is a subject of the investigation, a written statement, signed by the attorney general or an assistant attorney general designated by the attorney general, that the attorney general or assistant attorney general has reviewed the application and either agrees or disagrees with the submission of the application to a judge of the court of common pleas of the county in which the interception is to take place or in which the interception device is to be installed. A disagreement by the attorney general or assistant attorney general does not preclude the making or consideration of an application that otherwise complies with divisions (B)(1) to (8) of this section.

(C) If an application for an interception warrant is for an extension of a warrant, the application shall include, in addition to the information and statements specified in division (B) of this section, a statement setting forth the results thus far obtained from the interceptions of wire, oral, or electronic communications, or a reasonable explanation of the failure to obtain results from the interceptions.

(D) An applicant may submit affidavits of persons other than the applicant in conjunction with the application if the affidavits support a fact or conclusion in the application. The accompanying affidavits shall be based on personal knowledge of the affiant or shall be based on information and belief and specify the source of the information and the reason for the belief. If the applicant or an affiant personally knows of the facts contained in the application or affidavit, the application or affidavit shall state the personal knowledge. If the application or affidavit states the facts based upon information and belief, the application or affidavit shall state that reliance upon information and belief and shall set forth fully the facts supporting the information and belief. If the facts contained in the application or affidavits are derived in whole or in part from the statement of a person other than the applicant or affiant, the application or affidavits shall disclose or describe the sources of the facts and shall contain facts establishing the existence and reliability of the other person or the reliability of the information supplied by the other person. The application also shall state, so far as possible, the basis of the other person's knowledge or belief. If the application or affidavit relies on hearsay to support a fact alleged on information and belief, the application or affidavit shall contain the underlying facts that establish the basis for the conclusions of the source of the hearsay and the factual basis upon which the applicant or the affiant concludes that the source of the hearsay is credible or reliable.

(E) A judge of a court of common pleas to whom an application is made under this section may require the applicant to furnish additional sworn testimony or documentary evidence in support of the application. All sworn testimony furnished shall be recorded and transcribed and shall be made part of the application.

(F) An interception warrant is not required for any of the following:

(1) A pen register used in accordance with federal or state law;

(2) The interception of a wire, oral, or electronic communication by a law enforcement officer if the officer is a party to the communication or if one of the parties to the communication has given prior consent to the interception by the officer;

(3) The interception of a wire, oral, or electronic communication by a person who is not a law enforcement officer if the person is a party to the communication or if one of the parties to the communication has given the person prior consent to the interception, and if the communication is not intercepted for the purpose of committing a criminal offense or tortious act in violation of the laws or constitution of the United States or this state or for the purpose of committing another injurious act.

(4) A trap and trace device used in accordance with federal or state law.

(G)

(1) The requirements of division (B)(3)(c) of this section and of division (A)(5) of section 2933.54 of the Revised Code that relate to the specification of facilities from which or the place at which the communication is to be intercepted do not apply if either of the following applies:

(a) In the case of an application with respect to the interception of an oral communication, the application contains a full and complete statement indicating the reason that the specification is not practical and identifies the person committing the designated offense and whose communications are to be intercepted, and the judge of a court of common pleas to whom the application is made finds that the specification is not practical.

(b) In the case of an application with respect to a wire or electronic communication, the application identifies the person believed to be committing the designated offense and whose communications are to be intercepted, the applicant makes a showing of purpose on the part of that person to thwart interception by changing facilities, and the judge of a court of common pleas to whom the application is made finds that that purpose adequately has been shown.

(2) An interception of a communication under an interception warrant with respect to which the requirements of division (B)(3)(c) of this section and division (A)(5) of section 2933.54 of the Revised Code do not apply, due to the application of division (G)(1) of this section, shall not begin until the facilities from which or the place at which the communication is to be intercepted is ascertained by the person implementing the interception warrant.

A provider of wire or electronic communication service that has received an interception warrant that does not specify the facilities from which or the place at which the communication is to be intercepted, due to the application of division (G)(1)(b) of this section, may file a motion with the court requesting the court to modify or quash the interception warrant on the ground that the provider's assistance with respect to the interception cannot be performed in a timely or reasonable manner. The court, upon notice to the applicant for the interception warrant, shall decide the motion expeditiously.

Cite as R.C. § 2933.53

Effective Date: 12-02-1996

2933.54 Findings for issuing interception warrant.

(A) A judge of a court of common pleas to whom an application for an interception warrant is made under section 2933.53 of the Revised Code may issue an interception warrant if the judge determines, on the basis of the facts submitted by the person who made the application and all affiants, that all of the following exist:

(1) The application and affidavits comply with section 2933.53 of the Revised Code.

(2) There is probable cause to believe that a particular person is committing, has committed, or is about to commit a designated offense.

(3) There is probable cause to believe that particular communications concerning the designated offense will be obtained through the interception of wire, oral, or electronic communications.

(4) Normal investigative procedures with respect to the designated offense have been tried and have failed or normal investigative procedures with respect to the designated offense reasonably appear to be unlikely to succeed if tried or to be too dangerous to employ in order to obtain evidence.

(5) Except as provided in division (G)(1) of section 2933.53 of the Revised Code, there is probable cause to believe that the communication facilities from which the communications are to be intercepted, or the place at which oral communications are to be intercepted, are being used or are about to be used in connection with the commission of the designated offense or are leased to, listed in the name of, or commonly used by a person who is the subject of the interception warrant.

(6) The investigative officer has received training that satisfies the minimum standards established by the attorney general and the Ohio peace officer training commission under section 2933.64 of the Revised Code in order to intercept the wire, oral, or electronic communication and is able to execute the interception sought.

(B) If the communication facilities from which a wire or electronic communication is to be intercepted are public facilities, the judge of the court of common pleas to whom the application for an interception warrant is made shall not issue an interception warrant unless the judge, in addition to the findings specified in division (A) of this section, determines that there is a special need to intercept wire or electronic communications made from the facilities.

(C) If the facilities from which, or the place at which, the wire, oral, or electronic communications are to be intercepted are being used by, are about to be used by, are leased to, are listed in the name of, or are commonly used by a licensed physician, a licensed practicing psychologist, an attorney, a practicing clergyman, or a journalist or are used primarily for habitation by a husband and wife, the judge of the court of common pleas to whom the application is made shall not issue an interception warrant unless the judge, in addition to the findings specified in divisions (A) and (B) of this section, determines that there is a special need to intercept wire, oral, or electronic communications over the facilities or in those places. No otherwise privileged wire, oral, or electronic communication shall lose its privileged character because it is intercepted in accordance with or in violation of sections 2933.51 to 2933.66 of the Revised Code.

(D) If an application for an interception warrant does not comply with section 2933.53 of the Revised Code, or if the judge of a court of common pleas with whom an application is filed is not satisfied that grounds exist for issuance of an interception warrant, the judge shall deny the application.

(E) An interception warrant shall terminate when the objective of the warrant has been achieved or upon the expiration of thirty days after the date of commencement of the warrant as specified in this division, whichever occurs first, unless an extension is granted as described in this division. The date of commencement of an interception warrant is the day on which an investigative or law enforcement officer first begins to conduct an interception under the warrant, or the day that is ten days after the warrant is issued, whichever is earlier. A judge of a court of common pleas may grant extensions of a warrant pursuant to section 2933.55 of the Revised Code.

(F) If a judge of a court of common pleas issues an interception warrant, the judge shall make a finding as to the objective of the warrant.

Cite as R.C. § 2933.54

Effective Date: 12-02-1996

2933.55 Application for extension of interception warrant.

(A) At any time prior to the expiration of an interception warrant, the person who made the application for the warrant may apply for an extension of the warrant. The person shall file the application for extension with a judge of the court of common pleas of the county in which the interception under the warrant was to take place. An application for extension shall comply with section 2933.53 of the Revised Code.

(B) A judge of a court of common pleas with whom an application for extension of an interception warrant is filed shall determine whether to order an extension of the interception warrant in accordance with section 2933.54 of the Revised Code and shall order an extension for a period no longer than the judge considers necessary to achieve the purposes of the extension. The extension shall terminate upon the attainment of the authorized objective or thirty days after it is granted, whichever occurs first. All provisions of sections 2933.51 to 2933.66 of the Revised Code that apply to original interception warrants apply to extensions of interception warrants.

(C)

(1) When an investigative officer, while intercepting communications pursuant to an interception warrant or pursuant to an oral order for an interception granted under section 2933.57 of the Revised Code, intercepts wire, oral, or electronic communications that pertain to a criminal offense that is other than the designated offense specified in the interception warrant or oral order and that is completely unrelated to the designated offense specified in the interception warrant or oral order, the prosecuting attorney, in order to permit the disclosure or use of the contents, or evidence derived from the contents, of the intercepted communications pursuant to division (G) of section 2933.59 of the Revised Code, may file a motion with the judge who issued the warrant or granted the oral order for an order approving the interception. The judge shall enter an order approving the interception if the judge finds that the communication otherwise was intercepted in accordance with sections 2933.53 to 2933.66 of the Revised Code.

A person may disclose or use the contents, and any evidence derived from the contents, of the intercepted communications dealing with the other, unrelated offense as set forth in division (F) of section 2933.59 of the Revised Code. The person may disclose or use those contents and the evidence derived from those contents as set forth in division (G) of section 2933.59 of the Revised Code only if the issuing judge issues an order approving the interception of the communications concerning the other, unrelated offense.

(2) When an investigative officer, while intercepting communications pursuant to an interception warrant or pursuant to an oral order for an interception granted under section 2933.57 of the Revised Code, intercepts wire, oral, or electronic communications that pertain to a criminal offense that is other than the designated offense specified in the interception warrant or oral order but that is not completely unrelated to the designated offense specified in the interception warrant or oral order, the wire, oral, or electronic communications intercepted shall be treated for all purposes and without the need for further action as if the offense to which they pertain was a designated offense specified in the interception warrant or oral order.

Cite as R.C. § 2933.55

Effective Date: 06-13-1996

2933.56 Contents - sealing application - disclosure - retention.

(A) Any interception warrant or extension of an interception warrant that is issued pursuant to sections 2933.53 to 2933.55 of the Revised Code shall contain all of the following:

(1) The name and court of the judge who issued the warrant and the jurisdiction of that court;

(2) If known, the identity of each person whose communications are to be intercepted or, if the identity is unascertainable, a detailed description of each known person whose communications are to be intercepted;

(3) The nature and location of the communications facilities from which or of the place at which the authority to intercept is granted and, in the case of telephone or telegraph communications, a designation of the particular lines involved;

(4) A statement of the objective of the warrant, as found by the issuing judge, and a statement of the designated offenses for which the authority to intercept is granted;

(5) A description of the particular type of communication sought to be intercepted;

(6) The identity of the investigative officer or law enforcement agency that is authorized to intercept communications pursuant to the interception warrant and the identity of the prosecuting attorney or assistant prosecuting attorney authorizing the application for the interception warrant;

(7) The period of time during which the interception is authorized, including a statement as to whether the interception shall terminate automatically when the described communication is first intercepted;

(8) A statement that the interception warrant shall be executed as soon as practicable;

(9) A statement that the interception shall be conducted in a way that minimizes the interception of communications that are not subject to the interception warrant, provided that if the intercepted communication is in a code or a foreign language and an expert in decoding or in that foreign language is not reasonably available during the interception period, minimization may be accomplished as soon as practicable after the interception;

(10) A statement that the interception shall terminate upon attainment of the authorized objective or upon the expiration of the thirty-day period described in division (E) of section 2933.54 of the Revised Code, whichever occurs first, unless an extension of the interception warrant is granted upon application by the judge who issued the original warrant;

(11) A statement that the person who made the application for the warrant or extension and the investigative officer or law enforcement agency authorized to intercept the communications shall provide oral or written progress reports at seven-day intervals to the judge who issued the warrant showing the progress made toward achievement of the authorized objective of the warrant and the need for continued interception;

(12) An authorization to enter private premises, other than the premises of a provider of wire or electronic communication service, for the sole purposes of installing, or of removing and permanently inactivating, interception devices and, if the entry is necessary to execute the interception warrant, a requirement that the time and date of the entry and name of the individual making the entry be reported to the court;

(13) If applicable, a statement directing a provider of wire or electronic communication service, landlord, custodian, or other person forthwith to furnish the applicant all information, facilities, and technical assistance necessary to accomplish the interception unobtrusively and with a minimum of interference with the services that the provider of wire or electronic communication service, landlord, custodian, or other person is providing to the person whose communications are to be intercepted. This assistance by a provider of wire or electronic communication service shall not include assistance in supplying, installing, or removing and permanently inactivating, interception devices. Any provider of wire or electronic communication service and any landlord, custodian, or other person furnishing the facilities or technical assistance shall be compensated for them at the prevailing rates.

(B) The judge of the court of common pleas to whom the application is made or who issued the warrant shall seal all applications for interception warrants that are made and all interception warrants that are issued pursuant to sections 2933.53 to 2933.55 of the Revised Code.

The judge of a court of common pleas who received the application or issued the warrant shall specify who shall have custody of the sealed application and interception warrant. Copies of the interception warrant, together with a copy of the application, shall be delivered to and retained by the person who made the application for the warrant or extension as authority for the interception authorized by the warrant.

Except as otherwise provided in sections 2933.51 to 2933.66 of the Revised Code, the application and interception warrants shall be disclosed only upon a showing of good cause before a judge who is authorized to issue interception warrants. Upon the termination of the authorized interception, the person who made the application for the warrant or extension shall return all applications made and interception warrants issued under sections 2933.53 to 2933.55 of the Revised Code that pertain to the interception to the issuing judge, and the applications and warrants shall be sealed under the issuing judge's direction.

The applications and warrants shall be kept for at least ten years. At the expiration of the ten-year period, the issuing or denying judge may order that the applications and warrants be destroyed.

(C) A violation of division (B) of this section may be punished as contempt of court.

Cite as R.C. § 2933.56

Effective Date: 06-13-1996

2933.57 Oral order for interception without warrant of wire, oral, or electronic communication.

(A) A judge of the court of common pleas may grant an oral order for an interception without a warrant of a wire, oral, or electronic communication. Upon receipt of an application under this division, the judge of the court of common pleas to whom the application is made may grant an oral order for an interception without a warrant, may include in the order a statement of the type described in division (A)(13) of section 2933.56 of the Revised Code, and shall condition the order upon the filing with the judge, within forty-eight hours, of an application for an interception warrant under section 2933.53 of the Revised Code and division (B) of this section, if the judge determines all of the following:

(1) There appear to be grounds upon which an interception warrant could be issued under section 2933.54 of the Revised Code.

(2) There is probable cause to believe that an emergency situation exists with respect to the investigation of a designated offense.

(3) There is probable cause to believe that the emergency situation involves an immediate danger of death or serious physical harm that justifies the authorization for immediate interception of a private wire, oral, or electronic communication before an application for an interception warrant could, with due diligence, be submitted to the judge and acted upon.

(B) No statement by the attorney general or the attorney general's designee pursuant to division (B)(9) of section 2933.53 is required prior to consideration of an application pursuant to this section.

(C) The judge of a court of common pleas to whom an application is made under division (A) of this section, the applicant, the prosecuting attorney or assistant prosecuting attorney who authorized the application, and any involved provider of wire or electronic communication service may tape record any telephone or other communications between any of them related to the application for, the approval of, and the implementation of an oral order for an interception. All of the provisions of sections 2933.51 to 2933.66 of the Revised Code concerning the sealing, distribution, use, and disclosure of an application for an interception warrant apply to any tape recording between the judge, the applicant, and the prosecuting attorney or the designated assistant concerning the application for and an oral order for an interception.

(D)

(1) As soon as possible after granting an oral order for an interception without a warrant, a judge shall place upon the journal of the court an entry nunc pro tunc to record the granting of the oral order. If an interception warrant is issued pursuant to the filing of an application following the granting of an oral order for an interception under this section, the judge shall issue the warrant in accordance with section 2933.54 of the Revised Code, and the warrant shall recite the granting of the oral order and shall be retroactive to the time of the oral order.

(2) Interception pursuant to an oral order under this section shall be made in accordance with section 2933.59 of the Revised Code, except that the interception shall terminate immediately when the communication sought is obtained or when the application for a warrant is denied, whichever is earlier.

(3) If no application for a warrant is made in accordance with this section within forty-eight hours following a grant of an oral order or if an application for a warrant is made in accordance with this section following the grant of an oral order but the application is denied, the content of any private wire, oral, or electronic communication intercepted under the oral order shall be treated as having been obtained in violation of this chapter, and an inventory shall be served in accordance with section 2933.61 of the Revised Code upon the person named in the application. However, a provider of wire or electronic communication service that relies in good faith on the oral order in accordance with division (B) of section 2933.65 of the Revised Code is immune from civil or criminal liability in accordance with that section.

(4) If no application for a warrant is made within forty-eight hours following a grant of an oral order under this section or if an application for a warrant is made but is denied, the judge of a court of common pleas who granted an oral order for the interception shall prepare a journal entry reciting the grant of the oral order that includes as much of the information required to be included in an interception warrant that is practical to include. All of the provisions of sections 2933.51 to 2933.63 of the Revised Code concerning the sealing, distribution, use, and disclosure of an interception warrant apply to the journal entry required by this division. The judge who granted the oral order also shall order the person who received the oral order under this section to prepare an inventory of the recordings and resumes compiled under the oral order and shall require the tape or other recording of the intercepted communication to be delivered to, and sealed by, the judge in accordance with division (B) of section 2933.59 of the Revised Code. The court served by that judge shall retain the evidence, and no person shall use or disclose the evidence in a legal proceeding, other than a civil action brought by an aggrieved person or as otherwise authorized by the order of a judge of the court of common pleas of the county in which the interception took place. In addition to other remedies or penalties provided by law, a failure to deliver a tape or other recording to the judge in accordance with this division shall be punishable as contempt by the judge directing the delivery.

Cite as R.C. § 2933.57

Effective Date: 06-13-1996

2933.58 Prosecutor's instructions to investigative officers.

(A) Upon the issuance of an interception warrant pursuant to section 2933.54 of the Revised Code and prior to the execution of the warrant or upon a grant of an oral order for an interception under section 2933.57 of the Revised Code, the prosecuting attorney or assistant prosecuting attorney who authorized the application for the warrant or the oral approval shall instruct the investigative officers who are authorized to intercept the communications regarding the application and interpretation of divisions (A), (B), and (C) of section 2317.02 of the Revised Code. The prosecuting attorney or assistant prosecuting attorney who authorized the application or the oral order also shall instruct the officers to minimize the interception of communications that are not subject to the warrant or oral order and shall inform the officers of the procedures to be followed if communications concerning another offense are intercepted. If individuals operating under a contract to provide interception services as described in section 2933.59 of the Revised Code are involved in the interception, the prosecuting attorney or assistant prosecuting attorney who authorized the application for the warrant or the oral order also shall give the instructions and information under this division to those individuals.

(B) Investigative officers who are authorized to intercept communications pursuant to an interception warrant or pursuant to an oral order for an interception granted under section 2933.57 of the Revised Code and individuals who are operating under a contract to provide interception services as described in section 2933.59 of the Revised Code shall monitor the receiver of the interception device at all times during the time period for which the interception is authorized. All communications shall be intercepted only in accordance with the warrant or the oral order.

(C) An interception warrant issued pursuant to sections 2933.53 to 2933.55 of the Revised Code or an oral order for an interception granted under section 2933.57 of the Revised Code authorizes the interception of wire, oral, or electronic communications or the installation of an interception device within the jurisdiction of the court of common pleas served by the judge who issued the warrant or granted the oral order. The warrant or oral order is valid at any place if the interception device is installed within the jurisdiction of the judge who issued the warrant or granted the oral order and is then moved to another place by persons other than the investigative officers.

Cite as R.C. § 2933.58

Effective Date: 06-13-1996

2933.581 Information, facilities or technical assistance to officer intercepting communications.

(A) Notwithstanding any other provision of law, a provider of wire or electronic communication service, an officer, employee, or agent of a provider of that type, and a landlord, custodian, or other person is authorized to provide information, facilities, or technical assistance to a person who is authorized by the law of this state or the United States to intercept wire, oral, or electronic communications if both of the following apply:

(1) The provider, officer, employee, agent, landlord, custodian, or person has been provided with either of the following:

(a) An interception warrant or extension of an interception warrant that contains a statement of the type described in division (A)(13) of section 2933.56 of the Revised Code;

(b) A written representation of a judge of a court of common pleas or of a prosecuting attorney or specifically designated assistant prosecuting attorney that an oral order for an interception has been granted pursuant to section 2933.57 of the Revised Code, that no interception warrant is required by law, that all applicable statutory requirements have been satisfied, and that the oral order contains a statement of the type described in division (A)(13) of section 2933.56 of the Revised Code that directs the provision of the specified information, facilities, or technical assistance.

(2) The warrant, extension, or representation sets forth the period of time during which the provision of the information, facilities, or technical assistance is authorized and specifies the information, facilities, or technical assistance required.

(B)

(1) Except as provided in division (B)(2) of this section, no provider of wire or electronic communication service, no officer, employee, or agent of a provider of that type, and no landlord, custodian, or other person who is authorized to provide information, facilities, or technical assistance under division (A) of this section shall disclose the existence of an interception or the device used to accomplish the interception with respect to which the person has been furnished an interception warrant, an extension of an interception warrant, or a written representation pursuant to that division. A person that makes a disclosure in violation of this division is liable for civil damages of the type described in section 2933.65 of the Revised Code.

(2) Division (B)(1) of this section does not prohibit the disclosure of the existence of an interception or the disclosure of a device used to accomplish an interception when the disclosure is required by legal process, provided the person making the disclosure gives prior notification of the disclosure to the prosecuting attorney of the county in which the interception takes place or in which the interception device is installed.

(C) Except as provided in this section, a provider of wire or electronic communication service, an officer, employee, or agent of a provider of that type, and a landlord, custodian, or other specified person is immune from civil or criminal liability in any action that arises out of its providing information, facilities, or technical assistance in accordance with division (A) of this section and the terms of the interception warrant, extension of an interception warrant, or written representation provided under that division.

Cite as R.C. § 2933.581

Effective Date: 06-13-1996

2933.59 Executing interception warrant or oral order.

(A) An investigative officer who is, or a member of the law enforcement agency that is, authorized by an interception warrant or a grant of an oral order for an interception pursuant to section 2933.57 of the Revised Code to intercept wire, oral, or electronic communications or an individual who is operating under a contract with that agency and is acting under the supervision of that officer or a member of that agency shall execute the interception warrant or the oral order in accordance with the terms of the warrant or oral order. The officer or member of the law enforcement agency who executes the warrant or oral order or who supervises the execution of the warrant or oral order shall have received training that satisfies the minimum standards established by the attorney general and the Ohio peace officer training commission under section 2933.64 of the Revised Code. The contents of a wire, oral, or electronic communication intercepted pursuant to an interception warrant or pursuant to a grant of an oral order for an interception, if possible, shall be recorded on tape or another similar device. If it is not possible to record the intercepted communication, a detailed resume of that communication immediately shall be reduced to writing. The recording or transcribing of the contents of any wire, oral, or electronic communication pursuant to sections 2933.51 to 2933.66 of the Revised Code shall be done in a way that will protect the recording or transcription from editing or any other alteration.

(B) Immediately upon the expiration of the period of time for which an interception warrant was authorized, or any extensions of that time period, all wire, oral, or electronic communications interceptions shall cease, and any interception device installed pursuant to the interception warrant shall be removed or permanently inactivated as soon as is reasonably practicable. Entry to remove or inactivate an interception device is authorized by the granting of an interception warrant.

Immediately upon the expiration of that period of time or the extension, the recordings or resumes of intercepted communications shall be made available to the issuing judge and shall be sealed under the judge's direction. The issuing judge shall specify who shall have custody of the sealed recordings and resumes. The recordings and resumes shall be kept for at least ten years. At the expiration of the ten-year period, the recordings and resumes may be destroyed upon the order of a judge of the court of common pleas of the county in which the interception took place. Duplicate recordings or resumes may be made for use or disclosure pursuant to divisions (F) and (G) of this section.

(C) No person, with intent to present the altered recording or resume in any judicial proceeding or proceeding under oath or affirmation, shall purposely edit, alter, or tamper with any recording or resume of any intercepted wire, oral, or electronic communications, shall attempt to edit, alter, or tamper with any recording or resume of any intercepted wire, oral, or electronic communications, or shall present or permit the presentation of any altered recording or resume in any judicial proceeding or proceeding under oath or affirmation, without fully indicating the nature of the changes made in the original state of the recording or resume.

(D)

(1) Any interception warrant, the existence of lawfully installed interception devices, the application, affidavits, and return prepared in connection with the warrant, and any information concerning the application for, the granting of, or the denial of an interception warrant shall remain secret until they have been disclosed in a criminal trial or in a proceeding that is open to the public or until they have been furnished to the defendant or unless otherwise provided in sections 2933.51 to 2933.66 of the Revised Code.

(2) Any person who violates division (D)(1) of this section may be punished for contempt of court.

(E) When an order for destruction of any documents dealing with an interception warrant is issued, the person directed in the order to destroy the applications, affidavits, interception warrants, any amendments or extensions of the warrants, or recordings or resumes made pursuant to the warrants shall do so in the presence of at least one witness who is not connected with a law enforcement agency. The person who destroys the documents and each witness shall execute affidavits setting forth the facts and circumstances of the destruction. The affidavits shall be filed with and approved by the court having custody of the original materials.

(F) An investigative officer who has obtained knowledge of the contents, or of evidence derived from the contents, of a wire, oral, or electronic communication pursuant to sections 2933.51 to 2933.66 of the Revised Code may disclose the contents or evidence to another investigative officer to the extent that the disclosure is appropriate to the proper performance of the official duties of the officer making or receiving the disclosure and may use the contents or evidence to the extent appropriate to the proper performance of official duties.

(G) A person who has received, pursuant to sections 2933.51 to 2933.66 of the Revised Code, information concerning, or evidence derived from, a wire, oral, or electronic communication intercepted pursuant to an interception warrant may disclose the contents of that communication, or the evidence derived from the contents, while giving testimony under oath or affirmation in a proceeding held under the authority of the United States, this state, another state, or a political subdivision of this state or another state, except that the presence of the seal provided for in division (B) of section 2933.56 of the Revised Code and in division (B) of this section, or a satisfactory explanation of the absence of the seal, shall be a prerequisite for the use or disclosure of the contents of any wire, oral, or electronic communication or evidence derived from the contents. The contents, or evidence derived from the contents, of a wire, oral, or electronic communication intercepted pursuant to an interception warrant and in accordance with sections 2933.51 to 2933.66 of the Revised Code otherwise may be disclosed only upon a showing of good cause before a judge authorized to issue interception warrants.

(H) Whoever violates division (C) of this section is guilty of a felony of the third degree.

Cite as R.C. § 2933.59

Effective Date: 12-02-1996

2933.591 Giving warning of possible surveillance.

(A) No person who knows that an application for an interception warrant has been authorized or made under section 2933.53 of the Revised Code, that an interception warrant has been issued under section 2933.54 of the Revised Code, that an application for an extension of an interception warrant has been filed under section 2933.53 of the Revised Code, that an extension of an interception warrant has been ordered under that section, that an application for a grant of an oral order for an interception has been made under section 2933.57 of the Revised Code, or that oral order for an interception has been granted under section 2933.57 of the Revised Code, with purpose to obstruct, impede, or prevent the interception in question, shall give notice or attempt to give notice of the possible interception to a person.

(B) Whoever violates division (A) of this section is guilty of giving warning of possible surveillance, a felony of the third degree.

Cite as R.C. § 2933.591

Effective Date: 06-13-1996

2933.60 Reports of interception warrants by judges and prosecutors,.

(A) Within thirty days after the expiration of an interception warrant, the expiration of an extension of an interception warrant, or the denial of an application for an interception warrant, the judge of a court of common pleas who issued the warrant or extension or denied the application shall report all of the following to the administrative office of the United States courts and to the attorney general of this state:

(1) The fact that an application was made for an interception warrant or extension of an interception warrant;

(2) The kind of interception warrant or extension for which application was made, including a statement of whether the warrant or extension was or was not one to which the requirements of division (B)(3)(c) of section 2933.53 and division (A)(5) of section 2933.54 of the Revised Code did not apply due to the application of division (G)(1) of section 2933.53 of the Revised Code;

(3) The fact that the interception warrant or extension was granted as applied for or was denied;

(4) The period of interception authorized by the interception warrant, and the number and duration of any extensions of the warrant;

(5) The designated offenses specified in the interception warrant, application, or extension;

(6) The identity of the person who made the application, any person who executed any accompanying affidavit to an application, and the prosecuting attorney or assistant prosecuting attorney who authorized the application;

(7) The nature of the facilities from which, or the place at which, communications are to be intercepted.

(B) In January of each year, the prosecuting attorney of each county shall report to the administrative office of the United States courts and to the attorney general of this state all information that is required to be reported by subsection (2) of section 2519 of the "Omnibus Crime Control and Safe Streets Act of 1968," 82 Stat. 197, 18 U.S.C. 2519(1968) , as amended.

Cite as R.C. § 2933.60

Effective Date: 06-13-1996

2933.61 Serving inventory of interception warrant.

(A) Within a reasonable time not later than ninety days after the filing of an application for an interception warrant that is denied or after the termination of the period of an interception warrant or any extensions of an interception warrant, the judge of a court of common pleas who issued the warrant or extension or denied the application shall cause to be served on the persons named in the application or the interception warrant, and on any other parties to intercepted wire, oral, or electronic communications that the judge determines in the judge's discretion should be notified in the interest of justice, an inventory that shall include notice of all of the following:

(1) The fact that an interception warrant was issued or that application for one was made;

(2) The date the interception warrant was issued and the period of authorized, approved, or disapproved interception or the date of the denial of the application;

(3) The fact that during the stated period wire, oral, or electronic communications were or were not intercepted.

(B) A judge of the court of common pleas of the county, upon the filing of a motion for inspection, in the judge's discretion, may make available for inspection to the person filing the motion or the person's counsel any portions of intercepted wire, oral, or electronic communications, applications for interception warrants, or interception warrants that the judge determines to be in the interest of justice. Upon an ex parte showing of good cause to a judge of a court of common pleas who denied the issuance of or issued an interception warrant, the judge may postpone the serving of the inventory required by this section for a specified period of time.

Cite as R.C. § 2933.61

Effective Date: 06-13-1996

2933.62 Receiving evidence from intercepted wire, oral, or electronic communication.

(A) No part of the contents, and no evidence derived from the contents, of any intercepted wire, oral, or electronic communication shall be received in evidence in any trial, hearing, or other proceedings in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of this state or of a political subdivision of this state, if the disclosure of that information is in violation of sections 2933.51 to 2933.66 of the Revised Code.

(B) The contents, or any evidence derived from the contents, of any wire, oral, or electronic communication intercepted pursuant to sections 2933.51 to 2933.66 of the Revised Code shall not be received in evidence or otherwise disclosed in any trial, hearing, or other proceeding held under the authority of this state, other than a proceeding or session of the grand jury, unless each party has been furnished not less than ten days before the trial, hearing, or proceeding, with a copy of the interception warrant and the related application, or a written representation of a judge of a court of common pleas or of a prosecuting attorney or specifically designated assistant prosecuting attorney that an oral order for an interception has been granted pursuant to section 2933.57 of the Revised Code, under which the interception was authorized or approved. The judge or other officer conducting the trial, hearing, or other proceeding may waive the ten-day period if the judge or officer finds that it was not possible to furnish the party with the above information at least ten days before the trial, hearing, or proceeding, and that the party will not be prejudiced by the delay in receiving the information.

Cite as R.C. § 2933.62

Effective Date: 06-13-1996

2933.63 Motion to suppress evidence from intercepted wire, oral, or electronic communication.

(A) Any aggrieved person in any trial, hearing, or proceeding in or before any court, department, officer, agency, regulatory body, or other authority of this state or of a political subdivision of this state, other than a grand jury, may request the involved court, department, officer, agency, body, or authority, by motion, to suppress the contents, or evidence derived from the contents, of a wire, oral, or electronic communication intercepted pursuant to sections 2933.51 to 2933.66 of the Revised Code for any of the following reasons:

(1) The communication was unlawfully intercepted.

(2) The interception warrant under which the communication was intercepted is insufficient on its face.

(3) The interception was not made in conformity with the interception warrant or an oral order for an interception granted under section 2933.57 of the Revised Code.

(4) The communications are of a privileged character and a special need for their interception is not shown or is inadequate as shown.

(B) Any motion filed pursuant to division (A) of this section shall be made before the trial, hearing, or proceeding at which the contents, or evidence derived from the contents, is to be used, unless there was no opportunity to make the motion or the aggrieved person was not aware of the intercepted communications or the grounds of the motion. Upon the filing of the motion by the aggrieved person, the judge or other officer conducting the trial, hearing, or proceeding may make available to the aggrieved person or the person's counsel for inspection any portions of the intercepted communication or evidence derived from the intercepted communication as the judge or other officer determines to be in the interest of justice. If the judge or other officer grants the motion to suppress evidence pursuant to this section, the contents, or the evidence derived from the contents, of the intercepted wire, oral, or electronic communications shall be treated as having been obtained in violation of the law, and the contents and evidence derived from the contents shall not be received in evidence in any trial, hearing, or proceeding.

(C) In addition to any other right to appeal, the state shall have an appeal as of right from an order granting a motion to suppress the contents, or evidence derived from the contents, of a wire, oral, or electronic communication that was intercepted pursuant to an interception warrant or an oral order for an interception granted under section 2933.57 of the Revised Code, or the denial of an application for an interception warrant, if the state's representative certifies to the judge or other official who granted the motion or denied the application that the appeal is not taken for purposes of delay. Any appeal shall be taken within thirty days after the date the order was entered and shall be diligently prosecuted.

Cite as R.C. § 2933.63

Effective Date: 06-13-1996

2933.64 Training in legal and technical aspects of wiretapping and electronic surveillance.

The attorney general and the Ohio peace officer training commission, pursuant to Chapter 109. of the Revised Code, shall establish a course of training in the legal and technical aspects of wiretapping and electronic surveillance, shall establish regulations that they find necessary and proper for the training program, and shall establish minimum standards for certification and periodic recertification for investigative officers to be eligible to conduct wiretapping or electronic surveillance under sections 2933.51 to 2933.66 of the Revised Code. The commission shall charge each investigative officer who enrolls in this training a reasonable enrollment fee to offset the cost of the training.

Cite as R.C. § 2933.64

Effective Date: 12-02-1996

2933.65 Civil and criminal actions for wiretapping and electronic surveillance violations.

(A) A person whose wire, oral, or electronic communications are intercepted, disclosed, or intentionally used in violation of sections 2933.51 to 2933.66 of the Revised Code may bring a civil action to recover from the person or entity that engaged in the violation any relief that may be appropriate and that includes, but is not limited to, the following:

(1) The preliminary and other equitable or declaratory relief that is appropriate;

(2) Whichever of the following is greater:

(a) Liquidated damages computed at a rate of two hundred dollars per day for each day of violation or liquidated damages of ten thousand dollars, whichever is greater;

(b) The sum of actual damages suffered by the plaintiff and the profits, if any, made as a result of the violation by the person or entity that engaged in the violation.

(3) Punitive damages, if appropriate;

(4) Reasonable attorney's fees and other litigation expenses that are reasonably incurred in bringing the civil action.

(B) Good faith reliance on an interception warrant, extension of an interception warrant, other court order, a grant of an oral order for an interception, a grand jury subpoena, a legislative or statutory authorization, or a good faith determination that divisions (A) and (B) of section 2933.521 of the Revised Code permitted the conduct that is the subject of a complaint is a complete defense to a civil action or criminal action that is brought under the laws of this state and that arises out of the execution of the warrant or the oral order.

(C) A claimant who brings a civil action under division (A) of this section shall commence the civil action within two years after the date on which the claimant first has a reasonable opportunity to discover the violation.

(D) The remedies and sanctions described in sections 2933.51 to 2933.66 of the Revised Code with respect to the interception of wire, oral, or electronic communications are the only judicial remedies and sanctions for violations of those sections involving those types of communications that are not violations of the constitution of the United States or of this state.

Cite as R.C. § 2933.65

Effective Date: 06-13-1996

2933.66 Conform proceedings or issuance of order to federal and state constitutions.

Notwithstanding any provision of sections 2933.51 to 2933.65 of the Revised Code, a judge of a court of common pleas to whom an application for an interception warrant, an extension of an interception warrant, an oral order for an interception, or another purpose is made pursuant to sections 2933.51 to 2933.65 of the Revised Code may take evidence, make a finding, or issue an order to conform the proceedings or the issuance of an order to the constitution of the United States or of this state.

Cite as R.C. § 2933.66

Effective Date: 06-13-1996

2933.71 [Repealed].

Cite as R.C. § 2933.71

Effective Date: 07-01-2007

2933.72 [Repealed].

Cite as R.C. § 2933.72

Effective Date: 07-01-2007

2933.73 [Repealed].

Cite as R.C. § 2933.73

Effective Date: 07-01-2007

2933.74 [Repealed].

Cite as R.C. § 2933.74

Effective Date: 07-01-2007

2933.75 Medicaid fraud lien notice.

(A) Upon the institution of any criminal proceeding charging a medicaid fraud offense, the state, at any time during the pendency of the proceeding, may file a medicaid fraud lien notice with the county recorder of any county in which forfeitable property subject to forfeiture may be located. No fee shall be required for filing the notice. The recorder immediately shall record the notice pursuant to section 317.08 of the Revised Code.

(B) A medicaid fraud lien notice shall be signed by the prosecuting attorney or attorney general who will prosecute the case and who files the lien. The notice shall set forth all of the following information:

(1) The name of the person against whom the proceeding has been brought. The prosecuting attorney or attorney general who will prosecute the case may specify in the notice any aliases, names, or fictitious names under which the person may be known.

(2) If known to the prosecuting attorney or attorney general who will prosecute the case, the present residence and business addresses of the person or names set forth in the notice;

(3) A statement that a criminal proceeding for a medicaid fraud offense has been brought against the person named in the notice, the name of the county in which the proceeding has been brought, and the case number of the proceeding;

(4) A statement that the notice is being filed pursuant to this section;

(5) The name and address of the prosecuting attorney or attorney general filing the notice;

(6) A description of the real or personal property subject to the notice and of the interest in that property of the person named in the notice, to the extent the property and the interest of the person in it reasonably is known at the time the proceeding is instituted or at the time the notice is filed.

(C) A medicaid fraud lien notice shall apply only to one person and, to the extent applicable, any aliases, fictitious names, or other names, including names of corporations, partnerships, or other entities, to the extent permitted in this section. A separate medicaid fraud lien notice is required to be filed for any other person.

(D) Within seven days after the filing of each medicaid fraud lien notice, the prosecuting attorney or attorney general who files the notice shall furnish to the person named in the notice by certified mail, return receipt requested, to the last known business or residential address of the person, a copy of the recorded notice with a notation on it of any county in which the notice has been recorded. The failure of the prosecuting attorney or attorney general to furnish a copy of the notice under this section shall not invalidate or otherwise affect the medicaid fraud lien notice when the prosecuting attorney or attorney general did not know and could not reasonably ascertain the address of the person entitled to notice.

After receipt of a copy of the notice under this division, the person named in the notice may petition the court to authorize the person to post a surety bond in lieu of the lien or to otherwise modify the lien as the interests of justice may require. The bond shall be in an amount equal to the value of the property reasonably known to be subject to the notice and conditioned on the payment of any judgment and costs ordered in an action pursuant to Chapter 2981. of the Revised Code up to the value of the bond.

(E) From the date of filing of a medicaid fraud lien notice, the notice creates a lien in favor of the state on any personal or real property or any beneficial interest in the property located in the county in which the notice is filed that then or subsequently is owned by the person named in the notice or under any of the names set forth in the notice.

The lien created in favor of the state is superior and prior to the interest of any other person in the personal or real property or beneficial interest in the property, if the interest is acquired subsequent to the filing of the notice.

(F) If a medicaid fraud lien notice has been filed, and if a forfeiture order is entered subsequent to a conviction or guilty plea in the criminal proceeding pursuant to Chapter 2981. of the Revised Code in favor of the state, the interest of any person in the property that was acquired subsequent to the filing of the notice shall be subject to the notice and order of forfeiture.

(G) Upon the issuance of an order of forfeiture in favor of the state pursuant to Chapter 2981. of the Revised Code, title of the state to the forfeited property shall do either of the following:

(1) In the case of real property, or a beneficial interest in it, relate back to the date of filing of the medicaid fraud lien notice in the county where the property or interest is located. If no medicaid fraud lien notice was filed, title of the state relates back to the date of the recording of the order of forfeiture in the records of the county recorder of the county in which the real property or beneficial interest is located.

(2) In the case of personal property or a beneficial interest in it, relate back to the date on which the property or interest was seized by the state, or the date of filing of a medicaid fraud lien notice in the county in which the property or beneficial interest is located. If the property was not seized and no medicaid fraud lien notice was filed, title of the state relates back to the date of the recording of the order of forfeiture in the county in which the personal property or beneficial interest is located.

(H) If personal or real property, or a beneficial interest in it, that is forfeitable property and is subject to forfeiture pursuant to Chapter 2981. of the Revised Code is conveyed, alienated, disposed of, or otherwise rendered unavailable for forfeiture after the filing of either a medicaid fraud lien notice, or a criminal proceeding for a medicaid fraud offense, whichever is earlier, the state may bring an action in any court of common pleas against the person named in the medicaid fraud lien notice or the defendant in the criminal proceeding to recover the value of the property or interest. The court shall enter final judgment against the person named in the notice or the defendant for an amount equal to the value of the property or interest together with investigative costs and attorney's fees incurred by the state in the action.

(I) If personal or real property, or a beneficial interest in it, that is forfeitable property and is subject to forfeiture pursuant to Chapter 2981. of the Revised Code is alienated or otherwise transferred or disposed of after either the filing of a medicaid fraud lien notice, or the filing of a criminal proceeding for a medicaid fraud offense, whichever is earlier, the transfer or disposal is fraudulent as to the state and the state shall have all the rights granted a creditor under Chapter 1336. of the Revised Code.

(J) No trustee, who acquires actual knowledge that a medicaid fraud lien notice or a criminal proceeding for a medicaid fraud offense has been filed against any person for whom the trustee holds legal or record title to personal or real property, shall recklessly fail to furnish promptly to the prosecuting attorney or attorney general who is prosecuting the case all of the following:

(1) The name and address of the person, as known to the trustee;

(2) The name and address, as known to the trustee, of all other persons for whose benefit the trustee holds title to the property;

(3) If requested by the prosecuting attorney or attorney general who is prosecuting the case, a copy of the trust agreement or other instrument under which the trustee holds title to the property.

Any trustee who fails to comply with division (J) of this section is guilty of failure to provide medicaid fraud lien information, a misdemeanor of the first degree.

(K) If a trustee transfers title to personal or real property after a medicaid fraud lien notice is filed against the property, the lien is filed in the county in which the property is located, and the lien names a person who holds a beneficial interest in the property, the trustee, if the trustee has actual notice of the notice, shall be liable to the state for the greater of the following:

(1) The proceeds received directly by the person named in the notice as a result of the transfer;

(2) The proceeds received by the trustee as a result of the transfer and distributed to the person named in the notice;

(3) The fair market value of the interest of the person named in the notice in the property transferred.

However, if the trustee transfers property for at least its fair market value and holds the proceeds that otherwise would be paid or distributed to the beneficiary, or at the direction of the beneficiary or the beneficiary's designee, the liability of the trustee shall not exceed the amount of the proceeds held by the trustee.

(L) The filing of a medicaid fraud lien notice does not constitute a lien on the record title to personal or real property owned by the trustee, except to the extent the trustee is named in the notice.

The prosecuting attorney for the county or the attorney general may bring a civil action in any court of common pleas to recover from the trustee the amounts set forth in division (H) of this section. The county or state may recover investigative costs and attorney's fees incurred by the prosecuting attorney or the attorney general.

(M)

(1) This section does not apply to any transfer by a trustee under a court order, unless the order is entered in an action between the trustee and the beneficiary.

(2) Unless the trustee has actual knowledge that a person owning a beneficial interest in the trust is named in a medicaid fraud lien notice, this section does not apply to either of the following:

(a) Any transfer by a trustee required under the terms of any trust agreement, if the agreement is a matter of public record before the filing of any medicaid fraud lien notice;

(b) Any transfer by a trustee to all of the persons who own a beneficial interest in the trust.

(N) The filing of a medicaid fraud lien notice does not affect the use to which personal or real property, or a beneficial interest in it, that is owned by the person named in the notice may be put or the right of the person to receive any proceeds resulting from the use and ownership, but not the sale, of the property, until a judgment of forfeiture is entered.

(O) The term of a medicaid fraud lien notice is five years from the date the notice is filed, unless a renewal notice has been filed by the prosecuting attorney of the county in which the property or interest is located or by the attorney general. The term of any renewal of a medicaid fraud lien notice granted by the court is five years from the date of its filing. A medicaid fraud lien notice may be renewed any number of times while a criminal proceeding for a medicaid fraud offense, or an appeal from such a proceeding, is pending.

(P) The prosecuting attorney or attorney general who files the medicaid fraud lien notice may terminate, in whole or part, the notice or release any personal or real property or beneficial interest in the property upon any terms that the prosecuting attorney or attorney general determines are appropriate. Any termination or release shall be filed by the prosecuting attorney or attorney general with each county recorder with whom the notice was filed. No fee shall be imposed for the filing.

(Q) The acquittal in a criminal proceeding for a medicaid fraud offense of the person named in the medicaid fraud lien notice or the dismissal of a criminal proceeding for such an offense against the person named in the notice terminates the notice. In such a case, the filing of the notice has no effect.

A person named in a medicaid fraud lien notice may bring an action against the prosecuting attorney or attorney general who filed the notice, in the county where it was filed, seeking a release of the property subject to the notice or termination of the notice. In such a case, the court of common pleas promptly shall set a date for hearing, which shall be not less than five nor more than ten days after the action is filed. The order and a copy of the complaint shall be served on the prosecuting attorney or attorney general within three days after the action is filed. At the hearing, the court shall take evidence as to whether any personal or real property, or beneficial interest in it, that is owned by the person bringing the action is covered by the notice or otherwise is subject to forfeiture. If the person bringing the action shows by a preponderance of the evidence that the notice does not apply to the person or that any personal or real property, or beneficial interest in it, that is owned by the person is not subject to forfeiture, the court shall enter a judgment terminating the notice or releasing the personal or real property or beneficial interest from the notice.

At a hearing, the court may release from the notice any property or beneficial interest upon the posting of security, by the person against whom the notice was filed, in an amount equal to the value of the property or beneficial interest owned by the person.

The court promptly shall enter an order terminating a medicaid fraud lien notice or releasing any personal or real property or beneficial interest in the property, if a sale of the property or beneficial interest is pending and the filing of the notice prevents the sale. However, the proceeds of the sale shall be deposited with the clerk of the court, subject to the further order of the court.

(R) Notwithstanding any provision of this section, any person who has perfected a security interest in personal or real property or a beneficial interest in the property for the payment of an enforceable debt or other similar obligation prior to the filing of a medicaid fraud lien notice in reference to the property or interest may foreclose on the property or interest as otherwise provided by law. The foreclosure, insofar as practical, shall be made so that it otherwise will not interfere with a forfeiture under Chapter 2981. of the Revised Code.

Cite as R.C. § 2933.75

Effective Date: 07-22-1994; 07-01-2007

2933.76 Application for pen register or trap and trace device to obtain information in connection with criminal investigation.

(A) As used in this section and section 2933.77 of the Revised Code, "electronic communication," "electronic communication service," "investigative officer," "judge of a court of common pleas," "pen register," "trap and trace device," and "wire communication" have the same meanings as in section 2933.51 of the Revised Code.

(B) A judge of a court of common pleas, in accordance with this section, may issue an order authorizing or approving the installation and use, within the jurisdiction of the court, of a pen register or a trap and trace device to obtain information in connection with a criminal investigation.

(C) A law enforcement officer or investigative officer may make an application to a judge of a court of common pleas for an order authorizing the installation and use, within the jurisdiction of the court, of a pen register or a trap and trace device to obtain information in connection with a criminal investigation. The application shall be in writing and shall be under oath or affirmation. Each application shall contain all of the following:

(1) The name of the law enforcement officer or investigative officer making the application and the name of the investigative or law enforcement agency conducting the criminal investigation to which the application relates;

(2) The name, if known, of the person to whom the telephone or other line to which the pen register or trap and trace device is to be attached is leased or in whose name that telephone or other line is listed;

(3) The name, if known, of the person who is the subject of the criminal investigation to which the application relates;

(4) The number and, if known, the physical location of the telephone or other line to which the pen register or the trap and trace device is to be attached;

(5) A statement of the offense to which the information that is likely to be obtained by the installation and use of the pen register or trap and trace device relates;

(6) A certification by the law enforcement officer or investigative officer making the application that the information that is likely to be obtained by the installation and use of the pen register or trap and trace device is relevant to an ongoing criminal investigation being conducted by the investigative or law enforcement agency identified under division (C)(1) of this section.

(D)

(1) The judge to whom an application is made under division (C) of this section shall issue and enter an order authorizing the installation and use of a pen register or a trap and trace device if the judge finds that the information relating to an offense that is likely to be obtained by the installation and use of the pen register or trap and trace device is relevant to an ongoing criminal investigation being conducted by the investigative or law enforcement agency identified under division (C)(1) of this section. In the order, the judge shall specify a finding with respect to each of the items required by divisions (C)(1) to (6) of this section to be included in the application.

(2) If the law enforcement officer or investigative officer so requests, the order shall direct the appropriate provider of wire or electronic communication service, landlord, custodian, or other person to furnish the law enforcement officer or investigative officer with all information, facilities, and technical assistance necessary to accomplish the installation and operation of a pen register or trap and trace device unobtrusively and with a minimum of interference of service to the person with respect to whom the installation and operation are to take place. The order further shall direct the person who owns or leases the telephone or other line to which the pen register or trap and trace device is to be attached, or the provider of wire or electronic communication service, landlord, custodian, or other person who is ordered under division (D)(2) of this section to provide information, facilities, or technical assistance, not to disclose the existence of the criminal investigation or of the installation and use of the pen register or trap and trace device to the listed subscriber of the telephone or other line or to another person unless or until otherwise ordered by the court. If the order pertains to a trap and trace device, the order may require the appropriate provider of wire or electronic communication service to install and operate the device. The order shall be sealed until otherwise ordered by the court.

(E) An order issued pursuant to division (D) of this section shall authorize the installation and use of a pen register or a trap and trace device for a period not to exceed sixty days. The court may grant an extension of the sixty-day period upon application for an order in accordance with division (C) of this section and upon the judicial findings required by division (D)(1) of this section. An extension of an order issued under this division shall be in effect for a period not to exceed sixty days. The court may order further extensions of the sixty-day extended period upon compliance with this division.

(F) A good faith reliance on a court order issued under this section, a legislative authorization, or a statutory authorization is a complete defense against any claim in a civil action or any charge in a criminal action alleging a violation of the requirements of this section or section 2933.77 of the Revised Code.

Cite as R.C. § 2933.76

Effective Date: 03-30-1999

2933.77 Information, facilities or technical assistance to officer as to installation and use of a pen register or a trap and trace device.

(A) If an order issued under section 2933.76 of the Revised Code authorizing the installation and use of a pen register or a trap and trace device directs a provider of wire or electronic communication service, landlord, custodian, or other person to furnish information, facilities, and technical assistance to accomplish the installation and operation of the pen register or trap and trace device, that provider, landlord, custodian, or other person, in accordance with the order, shall furnish the law enforcement officer or investigative officer with all information, facilities, and technical assistance necessary to accomplish the installation and operation of the pen register or trap and trace device unobtrusively and with a minimum of interference with the service accorded by the provider, landlord, custodian, or other person to the person with respect to whom the installation and operation are to take place. If an order issued under that section requires a provider of wire or electronic communication service to install and operate a trap and trace device, the provider, in accordance with the order, shall install and operate the device.

(B) The investigative or law enforcement agency conducting the criminal investigation to which the order issued under section 2933.76 of the Revised Code for the installation and use of a pen register or a trap and trace device relates shall provide reasonable compensation to a provider of wire or electronic communication service, landlord, custodian, or other person who furnishes facilities or technical assistance in accordance with the order for any reasonable expenses the provider, landlord, custodian, or other person incurs in furnishing the facilities or technical assistance.

(C) A provider of wire or electronic communication service, an officer, employee, or agent of that provider, or a landlord, custodian, or other specified person is immune from civil or criminal liability in any action that arises from the provision of information, facilities, or technical assistance in accordance with the terms of an order of a court issued under section 2933.76 of the Revised Code.

Cite as R.C. § 2933.77

Effective Date: 03-30-1999

2933.81 Electronic recording during custodial interrogation.

(A) As used in this section:

(1) "Custodial interrogation" means any interrogation involving a law enforcement officer's questioning that is reasonably likely to elicit incriminating responses and in which a reasonable person in the subject's position would consider self to be in custody, beginning when a person should have been advised of the person's right to counsel and right to remain silent and of the fact that anything the person says could be used against the person, as specified by the United States supreme court in Miranda v. Arizona (1966), 384 U.S. 436, and subsequent decisions, and ending when the questioning has completely finished.

(2) "Detention facility" has the same meaning as in section 2921.01 of the Revised Code.

(3) "Electronic recording" or "electronically recorded" means an audio and visual recording that is an authentic, accurate, unaltered record of a custodial interrogation.

(4) "Law enforcement agency" has the same meaning as in section 109.573 of the Revised Code.

(5) "Law enforcement vehicle" means a vehicle primarily used by a law enforcement agency or by an employee of a law enforcement agency for official law enforcement purposes.

(6) "Local correctional facility" has the same meaning as in section 2903.13 of the Revised Code.

(7) "Place of detention" means a jail, police or sheriff's station, holding cell, state correctional institution, local correctional facility, detention facility, or department of youth services facility. "Place of detention" does not include a law enforcement vehicle.

(8) "State correctional institution" has the same meaning as in section 2967.01 of the Revised Code.

(9) "Statement" means an oral, written, sign language, or nonverbal communication.

(B) All statements made by a person who is the suspect of a violation of or possible violation of section 2903.01 , 2903.02 , or 2903.03 , a violation of section 2903.04 or 2903.06 that is a felony of the first or second degree, a violation of section 2907.02 or 2907.03 , or an attempt to commit a violation of section 2907.02 of the Revised Code during a custodial interrogation in a place of detention are presumed to be voluntary if the statements made by the person are electronically recorded. The person making the statements during the electronic recording of the custodial interrogation has the burden of proving that the statements made during the custodial interrogation were not voluntary. There shall be no penalty against the law enforcement agency that employs a law enforcement officer if the law enforcement officer fails to electronically record as required by this division a custodial interrogation. A law enforcement officer's failure to electronically record a custodial interrogation does not create a private cause of action against that law enforcement officer.

(C) A failure to electronically record a statement as required by this section shall not provide the basis to exclude or suppress the statement in any criminal proceeding, delinquent child proceeding, or other legal proceeding.

(D)

(1) Law enforcement personnel shall clearly identify and catalog every electronic recording of a custodial interrogation that is recorded pursuant to this section.

(2) If a criminal or delinquent child proceeding is brought against a person who was the subject of a custodial interrogation that was electronically recorded, law enforcement personnel shall preserve the recording until the later of when all appeals, post-conviction relief proceedings, and habeas corpus proceedings are final and concluded or the expiration of the period of time within which such appeals and proceedings must be brought.

(3) Upon motion by the defendant in a criminal proceeding or the alleged delinquent child in a delinquent child proceeding, the court may order that a copy of an electronic recording of a custodial interrogation of the person be preserved for any period beyond the expiration of all appeals, post-conviction relief proceedings, and habeas corpus proceedings.

(4) If no criminal or delinquent child proceeding is brought against a person who was the subject of a custodial interrogation that was electronically recorded pursuant to this section, law enforcement personnel are not required to preserve the related recording.

Cite as R.C. § 2933.81

Added by 128th General AssemblyFile No.30, SB 77, §1, eff. 7/6/2010.

2933.82 Retention of biological evidence.

(A) As used in this section:

(1)

(a) "Biological evidence" means any of the following:

(i) The contents of a sexual assault examination kit;

(ii) Any item that contains blood, semen, hair, saliva, skin tissue, fingernail scrapings, bone, bodily fluids, or any other identifiable biological material that was collected as part of a criminal investigation or delinquent child investigation and that reasonably may be used to incriminate or exculpate any person for an offense or delinquent act.

(b) The definition of "biological evidence" set forth in division (A)(1)(a) of this section applies whether the material in question is cataloged separately, such as on a slide or swab or in a test tube, or is present on other evidence, including, but not limited to, clothing, ligatures, bedding or other household material, drinking cups or containers, or cigarettes.

(2) "Biological material" has the same meaning as in section 2953.71 of the Revised Code.

(3) "DNA" has the same meaning as in section 109.573 of the Revised Code.

(4) "Profile" means a unique identifier of an individual, derived from DNA.

(5) "Prosecutor" has the same meaning as in section 2935.01 of the Revised Code.

(6) "Governmental evidence-retention entity" means all of the following:

(a) Any law enforcement agency, prosecutor's office, court, public hospital, crime laboratory, or other governmental or public entity or individual within this state that is charged with the collection, storage, or retrieval of biological evidence;

(b) Any official or employee of any entity or individual described in division (A)(6)(a) of this section.

(B)

(1) Each governmental evidence-retention entity that secures any biological evidence in relation to an investigation or prosecution of a criminal offense or delinquent act that is a violation of section 2903.01 , 2903.02 , or 2903.03 , a violation of section 2903.04 or 2903.06 that is a felony of the first or second degree, a violation of section 2907.02 or 2907.03 or division (A)(4) or (B) of section 2907.05 of the Revised Code, or an attempt to commit a violation of section 2907.02 of the Revised Code shall secure the biological evidence for whichever of the following periods of time is applicable:

(a) For a violation of section 2903.01 or 2903.02 of the Revised Code, for the period of time that the offense or act remains unsolved;

(b) For a violation of section 2903.03 , a violation of section 2903.04 or 2903.06 that is a felony of the first or second degree, a violation of section 2907.02 or 2907.03 or of division (A)(4) or (B) of section 2907.05 of the Revised Code, or an attempt to commit a violation of section 2907.02 of the Revised Code, for a period of thirty years if the offense or act remains unsolved;

(c) If any person is convicted of or pleads guilty to the offense, or is adjudicated a delinquent child for committing the delinquent act, for the earlier of the following: (i) the expiration of the latest of the following periods of time that apply to the person: the period of time that the person is incarcerated, is in a department of youth services institution or other juvenile facility, is under a community control sanction for that offense, is under any order of disposition for that act, is on probation or parole for that offense, is under judicial release or supervised release for that act, is under post-release control for that offense, is involved in civil litigation in connection with that offense or act, or is subject to registration and other duties imposed for that offense or act under sections 2950.04 , 2950.041 , 2950.05 , and 2950.06 of the Revised Code or (ii) thirty years. If after the period of thirty years the person remains incarcerated, then the governmental evidence-retention entity shall secure the biological evidence until the person is released from incarceration or dies.

(2) This section applies to evidence likely to contain biological material that was in the possession of any governmental evidence-retention entity during the investigation and prosecution of a criminal case or delinquent child case involving a violation of section 2903.01 , 2903.02 , or 2903.03 , a violation of section 2903.04 or 2903.06 that is a felony of the first or second degree, a violation of section 2907.02 or 2907.03 or of division (A)(4) or (B) of section 2907.05 of the Revised Code, or an attempt to commit a violation of section 2907.02 of the Revised Code.

(3) A governmental evidence-retention entity that possesses biological evidence shall retain the biological evidence in the amount and manner sufficient to develop a DNA profile from the biological material contained in or included on the evidence.

(4) Upon written request by the defendant in a criminal case or the alleged delinquent child in a delinquent child case involving a violation of section 2903.01 , 2903.02 , or 2903.03 , a violation of section 2903.04 or 2903.06 that is a felony of the first or second degree, a violation of section 2907.02 or 2907.03 or of division (A)(4) or (B) of section 2907.05 of the Revised Code, or an attempt to commit a violation of section 2907.02 of the Revised Code, a governmental evidence-retention entity that possesses biological evidence shall prepare an inventory of the biological evidence that has been preserved in connection with the defendant's criminal case or the alleged delinquent child's delinquent child case.

(5) Except as otherwise provided in division (B)(7) of this section, a governmental evidence-retention entity that possesses biological evidence that includes biological material may destroy the evidence before the expiration of the applicable period of time specified in division (B)(1) of this section if all of the following apply:

(a) No other provision of federal or state law requires the state to preserve the evidence.

(b) The governmental evidence-retention entity, by certified mail, return receipt requested, provides notice of intent to destroy the evidence to all of the following:

(i) All persons who remain in custody, incarcerated, in a department of youth services institution or other juvenile facility, under a community control sanction, under any order of disposition, on probation or parole, under judicial release or supervised release, under post-release control, involved in civil litigation, or subject to registration and other duties imposed for that offense or act under sections 2950.04 , 2950.041 , 2950.05 , and 2950.06 of the Revised Code as a result of a criminal conviction, delinquency adjudication, or commitment related to the evidence in question;

(ii) The attorney of record for each person who is in custody in any circumstance described in division (B)(5)(b)(i) of this section if the attorney of record can be located;

(iii) The state public defender;

(iv) The office of the prosecutor of record in the case that resulted in the custody of the person in custody in any circumstance described in division (B)(5)(b)(i) of this section;

(v) The attorney general.

(c) No person who is notified under division (B)(5)(b) of this section does either of the following within one year after the date on which the person receives the notice:

(i) Files a motion for testing of evidence under sections 2953.71 to 2953.81 or section 2953.82 of the Revised Code;

(ii) Submits a written request for retention of evidence to the governmental evidence-retention entity that provided notice of its intent to destroy evidence under division (B)(5)(b) of this section.

(6) Except as otherwise provided in division (B)(7) of this section, if, after providing notice under division (B)(5)(b) of this section of its intent to destroy evidence, a governmental evidence-retention entity receives a written request for retention of the evidence from any person to whom the notice is provided, the governmental evidence-retention entity shall retain the evidence while the person referred to in division (B)(5)(b)(i) of this section remains in custody, incarcerated, in a department of youth services institution or other juvenile facility, under a community control sanction, under any order of disposition, on probation or parole, under judicial release or supervised release, under post-release control, involved in civil litigation, or subject to registration and other duties imposed for that offense or act under sections 2950.04 , 2950.041 , 2950.05 , and 2950.06 of the Revised Code as a result of a criminal conviction, delinquency adjudication, or commitment related to the evidence in question.

(7) A governmental evidence-retention entity that possesses biological evidence that includes biological material may destroy the evidence five years after a person pleads guilty or no contest to a violation of section 2903.01 , 2903.02 , or 2903.03 , a violation of 2903.04 or 2903.06 that is a felony of the first or second degree, a violation of section 2907.02 , 2907.03 , division (A)(4) or (B) of section 2907.05 , or an attempt to commit a violation of section 2907.02 of the Revised Code and all appeals have been exhausted unless, upon a motion to the court by the person who pleaded guilty or no contest or the person's attorney and notice to those persons described in division (B)(5)(b) of this section requesting that the evidence not be destroyed, the court finds good cause as to why that evidence must be retained.

(8) A governmental evidence-retention entity shall not be required to preserve physical evidence pursuant to this section that is of such a size, bulk, or physical character as to render retention impracticable. When retention of physical evidence that otherwise would be required to be retained pursuant to this section is impracticable as described in this division, the governmental evidence-retention entity that otherwise would be required to retain the physical evidence shall remove and preserve portions of the material evidence likely to contain biological evidence related to the offense, in a quantity sufficient to permit future DNA testing before returning or disposing of that physical evidence.

(C)

(1) The preservation of biological evidence task force established within the bureau of criminal identification and investigation under section 109.561 of the Revised Code shall establish a system regarding the proper preservation of biological evidence in this state. In establishing the system, the task force shall do all of the following:

(a) Devise standards regarding the proper collection, retention, and cataloguing of biological evidence for ongoing investigations and prosecutions;

(b) Recommend practices, protocols, models, and resources for the cataloging and accessibility of preserved biological evidence already in the possession of governmental evidence-retention entities.

(2) In consultation with the preservation of biological evidence task force described in division (C)(1) of this section, the office of the attorney general shall administer and conduct training programs for law enforcement officers and other relevant employees who are charged with preserving and cataloging biological evidence regarding the methods and procedures referenced in this section.

Cite as R.C. § 2933.82

Amended by 128th General AssemblyFile No.50, SB 58, §1, eff. 9/17/2010.

Added by 128th General AssemblyFile No.30, SB 77, §1, eff. 7/6/2010.

2933.83 Administration of photo or live lineups.

(A) As used in this section:

(1) "Administrator" means the person conducting a photo lineup or live lineup.

(2) "Blind administrator" means the administrator does not know the identity of the suspect. "Blind administrator" includes an administrator who conducts a photo lineup through the use of a folder system or a substantially similar system.

(3) "Blinded administrator" means the administrator may know who the suspect is, but does not know which lineup member is being viewed by the eyewitness. "Blinded administrator" includes an administrator who conducts a photo lineup through the use of a folder system or a substantially similar system.

(4) "Eyewitness" means a person who observes another person at or near the scene of an offense.

(5) "Filler" means either a person or a photograph of a person who is not suspected of an offense and is included in an identification procedure.

(6) "Folder system" means a system for conducting a photo lineup that satisfies all of the following:

(a) The investigating officer uses one "suspect photograph" that resembles the description of the suspected perpetrator of the offense provided by the eyewitness, five "filler photographs" of persons not suspected of the offense that match the description of the suspected perpetrator but do not cause the suspect photograph to unduly stand out, four "blank photographs" that contain no images of any person, and ten empty folders.

(b) The investigating officer places one "filler photograph" into one of the empty folders and numbers it as folder 1.

(c) The administrator places the "suspect photograph" and the other four "filler photographs" into five other empty folders, shuffles the five folders so that the administrator is unaware of which folder contains the "suspect photograph," and numbers the five shuffled folders as folders 2 through 6.

(d) The administrator places the four "blank photographs" in the four remaining empty folders and numbers these folders as folders 7 through 10, and these folders serve as "dummy folders."

(e) The administrator provides instructions to the eyewitness as to the lineup procedure and informs the eyewitness that a photograph of the alleged perpetrator of the offense may or may not be included in the photographs the eyewitness is about to see and that the administrator does not know which, if any, of the folders contains the photograph of the alleged perpetrator. The administrator also shall instruct the eyewitness that the administrator does not want to view any of the photographs and will not view any of the photographs and that the eyewitness may not show the administrator any of the photographs. The administrator shall inform the eyewitness that if the eyewitness identifies a photograph as being the person the eyewitness saw the eyewitness shall identify the photograph only by the number of the photograph's corresponding folder.

(f) The administrator hands each of the ten folders to the eyewitness individually without looking at the photograph in the folder. Each time the eyewitness has viewed a folder, the eyewitness indicates whether the photograph is of the person the eyewitness saw, indicates the degree of the eyewitness's confidence in this identification, and returns the folder and the photograph it contains to the administrator.

(g) The administrator follows the procedures specified in this division for a second viewing if the eyewitness requests to view each of the folders a second time, handing them to the eyewitness in the same order as during the first viewing; the eyewitness is not permitted to have more than two viewings of the folders; and the administrator preserves the order of the folders and the photographs they contain in a facedown position in order to document the steps specified in division (A)(6)(h) of this section.

(h) The administrator documents and records the results of the procedure described in divisions (A)(6)(a) to (f) of this section before the eyewitness views each of the folders a second time and before the administrator views any photograph that the eyewitness identifies as being of the person the eyewitness saw. The documentation and record includes the date, time, and location of the lineup procedure; the name of the administrator; the names of all of the individuals present during the lineup; the number of photographs shown to the eyewitness; copies of each photograph shown to the eyewitness; the order in which the folders were presented to the witness; the source of each photograph that was used in the procedure; a statement of the eyewitness's confidence in the eyewitness's own words as to the certainty of the eyewitness's identification of the photographs as being of the person the eyewitness saw that is taken immediately upon the reaction of the eyewitness to viewing the photograph; and any additional information the administrator considers pertinent to the lineup procedure. If the eyewitness views each of the folders a second time, the administrator shall document and record the statement of the eyewitness's confidence in the eyewitness's own words as to the certainty of the eyewitness's identification of a photograph as being of the person the eyewitness saw and document that the identification was made during a second viewing of each of the folders by the eyewitness.

(i) The administrator shall not say anything to the eyewitness or give any oral or nonverbal cues as to whether or not the eyewitness identified the "suspect photograph" until the administrator documents and records the results of the procedure described in divisions (A)(6)(a) to (g) of this section and the photo lineup has concluded.

(7) "Live lineup" means an identification procedure in which a group of persons, including the suspected perpetrator of an offense and other persons not suspected of the offense, is displayed to an eyewitness for the purpose of determining whether the eyewitness identifies the suspect as the perpetrator of the offense.

(8) "Photo lineup" means an identification procedure in which an array of photographs, including a photograph of the suspected perpetrator of an offense and additional photographs of other persons not suspected of the offense, is displayed to an eyewitness for the purpose of determining whether the eyewitness identifies the suspect as the perpetrator of the offense.

(9) "Perpetrator" means the person who committed the offense.

(10) "Suspect" means the person believed by law enforcement to be the possible perpetrator of the offense.

(B) Prior to conducting any live lineup or photo lineup on or after the effective date of this section, any law enforcement agency or criminal justice entity in this state that conducts live lineups or photo lineups shall adopt specific procedures for conducting the lineups. The procedures, at a minimum, shall impose the following requirements:

(1) Unless impracticable, a blind or blinded administrator shall conduct the live lineup or photo lineup.

(2) When it is impracticable for a blind administrator to conduct the live lineup or photo lineup, the administrator shall state in writing the reason for that impracticability.

(3) When it is impracticable for either a blind or blinded administrator to conduct the live lineup or photo lineup, the administrator shall state in writing the reason for that impracticability.

(4) The administrator conducting the lineup shall make a written record that includes all of the following information:

(a) All identification and nonidentification results obtained during the lineup, signed by the eyewitnesses, including the eyewitnesses' confidence statements made immediately at the time of the identification;

(b) The names of all persons present at the lineup;

(c) The date and time of the lineup;

(d) Any eyewitness identification of one or more fillers in the lineup;

(e) The names of the lineup members and other relevant identifying information, and the sources of all photographs or persons used in the lineup.

(5) If a blind administrator is conducting the live lineup or the photo lineup, the administrator shall inform the eyewitness that the suspect may or may not be in the lineup and that the administrator does not know who the suspect is.

(C) For any photo lineup or live lineup that is administered on or after the effective date of this section, all of the following apply:

(1) Evidence of a failure to comply with any of the provisions of this section or with any procedure for conducting lineups that has been adopted by a law enforcement agency or criminal justice agency pursuant to division (B) of this section and that conforms to any provision of divisions (B)(1) to (5) of this section shall be considered by trial courts in adjudicating motions to suppress eyewitness identification resulting from or related to the lineup.

(2) Evidence of a failure to comply with any of the provisions of this section or with any procedure for conducting lineups that has been adopted by a law enforcement agency or criminal justice agency pursuant to division (B) of this section and that conforms to any provision of divisions (B)(1) to (5) of this section shall be admissible in support of any claim of eyewitness misidentification resulting from or related to the lineup as long as that evidence otherwise is admissible.

(3) When evidence of a failure to comply with any of the provisions of this section, or with any procedure for conducting lineups that has been adopted by a law enforcement agency or criminal justice agency pursuant to division (B) of this section and that conforms to any provision of divisions (B)(1) to (5) of this section, is presented at trial, the jury shall be instructed that it may consider credible evidence of noncompliance in determining the reliability of any eyewitness identification resulting from or related to the lineup.

(D) The requirements in this section regarding the procedures for live lineups or photo lineups conducted by a law enforcement agency or criminal justice entity do not prohibit a law enforcement agency or criminal justice entity from adopting other scientifically accepted procedures for conducting live lineups or photo lineups that the scientific community considers more effective.

Cite as R.C. § 2933.83

Added by 128th General AssemblyFile No.30, SB 77, §1, eff. 7/6/2010.

2933.831 Rules and regulations regarding lineups and showups; jury instructions.

(A) The General Assembly hereby requests the Attorney General to adopt rules pursuant to Chapter 119. of the Revised Code prescribing specific procedures to be followed for the administration by law enforcement agencies and criminal justice entities in this state of photo lineups, live lineups, and showups. The General Assembly also requests that any rules adopted by the Attorney General be consistent with the requirements of divisions (B) and (C) of section 2933.83 of the Revised Code. If the Attorney General adopts rules of the type described in this division, on and after the date on which the rules take effect, law enforcement agencies and criminal justice entities in this state shall comply with the rules in conducting live lineups, photo lineups, and showups.

(B) The General Assembly hereby requests the Ohio Judicial Conference to review existing jury instructions regarding eyewitness identification for compliance with this act.

Cite as R.C. § 2933.831

Added by 128th General AssemblyFile No.30, SB 77, §3, eff. 7/6/2010.