A Fairfield County man is challenging a search of his cellphone by asserting that his rights under the Fourth Amendment to the U.S. Constitution were violated. The Fourth Amendment prohibits unreasonable searches and seizures, and courts generally cannot allow evidence at trial if it was obtained in violation of the right. The man believes that text messages on his cellphone were seized illegally and should not have been presented to the jury.

The Supreme Court of Ohio will hear his appeal in State v. Hikec next week at oral arguments.

Jason Hikec was indicted after his ex-girlfriend reported to police that he had assaulted her. She and Hikec had lived together while in a romantic relationship. After they broke up, she went to Hikec’s apartment in April 2022 to pick up her mail. She said Hikec attacked her, head-butting her and punching her. She told police that Hikec had guns and drugs on the property.

Police obtained warrants to search Hikec’s property and his cellphone. The cellphone warrant allowed searches for “any present or historical data,” including text messages and call histories. About two weeks before the assault, a text message sent to Hikec from someone he knew stated, “I’ll give you a firearm.” Hikec responded, “Now that she’s out and I can safely have them at my place, can I still come by and get my guns tomorrow?”

Hikec was charged with felonious assault, aggravated drug possession, illegally having weapons, and firearm and forfeiture specifications.

Defendant Asks Court To Suppress Text Messages
Hikec asked the Fairfield County Common Pleas Court judge to exclude the text messages referencing guns as evidence at the trial. The court rejected the request. The jury was given an instruction stating that the texts couldn’t be considered as direct evidence that Hikec owned or possessed the firearms on the date of the alleged assault.

The jury convicted Hikec on all counts and specifications. On appeal, the Fifth District Court of Appeals determined that the cellphone search warrant was too broad, lacking specific direction on what law enforcement was to search for. However, the Fifth District upheld Hikec’s convictions, concluding that the jury instruction made any errors surrounding the warrant harmless.

Hikec appealed to the Supreme Court.

Cellphone Search Warrant Lacked Specifics, Offender Contends
Hikec rejects the arguments from the Fairfield County prosecutor that if the search warrant was too broad in scope, then an exception applies to allow the texts to be admitted at trial. The good faith exception is relevant when law enforcement relies on a valid warrant authorized by a court to conduct the search. However, Hikec notes, law enforcement cannot conduct a search based on a warrant that is clearly deficient. In his case, the warrant was plainly too broad, so the exception didn’t apply, he argues. When the exception isn’t applicable, the illegally obtained evidence cannot be considered at trial, he maintains.

Hikec contends that his view is supported by the Supreme Court of Ohio’s decision in State v. Castagnola (2015). The warrant in that case was too broad, allowing a search of “all records and documents” on the defendant’s computer. There was no good faith exception for law enforcement because the warrant lacked specificity, making it clearly invalid.

Hikec adds that a limiting instruction to the jury cannot overcome the violation of his constitutional rights.

The Ohio Association of Criminal Defense Lawyers submitted an amicus curiae brief supporting Hikec’s arguments.

Texts Admissible Because Officer Acted in Good Faith, State Argues
The prosecutor counters that the court relied on information in a law enforcement affidavit to evaluate whether to issue the warrant. The document noted that Hikec was on his cellphone when his ex-girlfriend arrived to pick up her mail; they had been in a relationship of more than a year, during which she said multiple physical assaults and threats occurred; and the cellphone could also access home surveillance footage of where the assault occurred. The prosecutor argues the texts were relevant to the allegations of felonious assault and domestic violence.

The text messages also fell within the search parameters allowed by the warrant, the prosecutor notes. The law enforcement officer had no reason to believe he wasn’t acting in line with a valid warrant, so the good faith exception applies and the jury was permitted to consider the texts, the prosecutor maintains.

The prosecutor also argues evidence to convict Hikec was overwhelming, even without the texts or the limiting instruction. And juries are presumed to follow the instructions they are given and were told not to consider the texts as direct evidence of his guilt on the weapons charges, the prosecutor notes. Any errors were harmless, the prosecutor concludes.

Watch Oral Arguments Online
The Supreme Court will hear seven cases during oral arguments next week. Three cases will be heard on Aug. 19. The Court will consider Hikec and three others on Aug. 20. Oral arguments begin at 9 a.m. They will be streamed live online at SupremeCourt.Ohio.gov and on the Ohio Channel, where they are archived.

Detailed case previews from the Office of Public Information are available by clicking on the case names throughout the article or in the list of cases in the sidebar.

Tuesday, Aug. 19

Death Penalty
State v. Brinkman was appealed automatically and directly to the Supreme Court because a sentence of death was imposed. The convictions stem from the 2017 murders of a woman and her two daughters in their North Royalton home. The offender’s brief identifies 22 legal arguments challenging his death sentence and the trial court proceedings. In one, he questions the way the trial court assessed the aggravating and mitigating circumstances in the case. He also disagrees with the court’s decision to give zero weight to the testimony of two Swedish expert witnesses who believe he had an elevated risk of impulsive behavior and aggression based on the combination of medications he was taking.

Disputed Sentence
In July 2012, a hired “hitman” was imprisoned for agreeing to intimidate a Delaware County property developer into dropping a lawsuit. The trial court issued an 11-year prison sentence, and as he neared completion, prison officials believed his sentence was actually 13 years. The inmate sought release from a trial court, and the judge agreed that he had completed his sentence and released him. The state challenged the release. In Maurent v. Folley, the Court will consider whether the case to reimprison the offender is moot because he was released from prison.

Expert Opinions
An expectant mother went to the hospital after her water broke and was given labor-inducing drugs. One of the two obstetricians who handled her care performed a caesarean section on her third day in the hospital. The infant had to be intubated after birth and was diagnosed with medical complications. In a lawsuit, an expert witness report for the mother raised concerns about which day the infant should have been delivered. The expert subsequently filed an affidavit. The trial court struck the affidavit, concluding that it and the first report were contradictory and designed to keep the obstetrician who delivered the child involved in the case. In Moore v. Mercy Medical Center, the mother argues the affidavit wasn’t a “sham” because factual issues are in dispute about her care on both the second and third days. The obstetrician who delivered the infant counters that the affidavit improperly made new claims that weren’t based on new information.

Wednesday, Aug. 20

Jury Verdicts
A Franklin County man tried to stop the thieves stealing his SUV by shooting at it while standing in the street. He was charged with unlawful discharge of a firearm. The jury convicted him of the felony-level of the crime, but the verdict form didn’t specify the level of the charge. The form only indicated it was the crime “as charged in the indictment.” An appeals court reduced the charge to a misdemeanor. In State v. Khalif, the Court considers whether the words “as charged in the indictment” could be used to convict the man of a felony if only the felony version of the crime was discussed at the trial.

Regulatory Taking
A brine water disposal facility in Trumbull County was shut down for several years after it caused minor earthquakes. An appeals court declared the state’s orders to close and the strict regulations required for reopening to be a partial taking of the property. The facility owners maintain that the shutdown led to more than $20 million in losses. The appeals court rejected the figure and agreed with the state’s assessment that the damages were about $360,000. In State ex rel. AWMS Water Solutions v. Mertz, the company urges that the matter be sent to a trial court for a full hearing on the damages owed. The state argues the property is a public nuisance, and it shouldn’t have to pay the company anything.