A Camp Dennison man's trial, set to begin Monday, raises important questions about what constitutes child pornography, how it gets into computers and who is legally liable for possessing it.
But Jesse Tuttle's trial could also call into question the competence — and more important the legality — of the way Internet crime is investigated and prosecuted.
A CityBeat investigation has found that the Hamilton County Sheriff's Office allowed a civilian employee without law enforcement training to execute a search warrant at Tuttle's home. Prosecutors told judges the man is a police officer, and defense attorneys apparently didn't check.
In addition to jeopardizing the case against Tuttle, legal deficiencies in the search of his home and computer could point to problems with other cases handled by the Regional Electronics and Computer Investigations Task Force (RECI), composed of investigators and analysts from the sheriff's office and the Cincinnati Police Department.
'He is not an officer'
On the morning of May 6, 2003, Tuttle heard a loud knock at the door. Officers with RECI told him he was under arrest and his home was searched. It wasn't the first time. Tuttle, known in cyberspace as "Hackah Jak," has had law enforcement show up on his porch multiple times. Typically, it's been the feds.
This time, however, the person who executed the warrant wasn't really a police officer at all. The warrant, the accompanying affidavit, the inventory of items seized and the warrant return were all signed by John Ruebusch, an electronic crimes analyst with RECI.
The Fourth Amendment to the U.S. Constitution protects us against unreasonable searches and seizures. If the police want to search your house without your consent, they need a warrant. Rule 41 of the Ohio Rules of Criminal Procedure state that only a judge or magistrate may issue a warrant "upon the request of a prosecuting attorney or a law enforcement officer."
Ruebusch is neither.
Hired as a computer programmer/analyst in May 1998, Ruebusch signed a document titled "Oath of Office," which states, "I accept my commission as deputy sheriff of the Hamilton County (Ohio) Sheriff's Department." He was issued badge 259.
But Ruebusch's file contains no certificate attesting to his completion of peace officer training. The "oath" he took doesn't make him a cop, according to James A. Conser, professor of criminal justice at Youngstown State University and former assistant executive director of the Ohio Peace Officers Training Commission from 1999-2002.
"That oath that he signed apparently is only documenting his affiliation with the Hamilton County Sheriff's Office," Conser says. "It is not indicating peace officer status."
That could be a problem in the Tuttle case.
"It is my understanding under Ohio Law that you needed to be a peace officer to execute a search warrant," Conser says.
CityBeat contacted the Ohio Attorney General's Office to clarify Ruebusch's status.
"John P. Ruebusch is a civilian employee in the Hamilton County Sheriff's Office," says Bob Beasley, spokesman for Attorney General Jim Petro. "He is not a peace officer and therefore does not have a certificate number."
The Rules of Criminal Procedure and state law only allow for law enforcement or a prosecuting attorney to execute a search warrant — not "civilian employees," according to William Mason, president of the Ohio Prosecuting Attorneys Association.
If Ruebusch isn't a police officer, his participation in searching suspects' homes raises constitutional issues, according to Cincinnati attorney Martin Pinales, first vice president of the National Association of Criminal Defense Lawyers.
"Clearly it's an unlawful search," he says. "The U.S. Constitution holds that a person's home is their castle. A civilian is not a governmental entity. I am sure it rises to a constitutional violation."
Steve Barnett, spokesman for Sheriff Simon Leis Jr., referred calls to Gail Wright, legal counsel for the sheriff's office. Wright said on April 1 that she would have a comment "as soon as possible."
Several deputy sheriffs were involved in the search of Tuttle's home. Ruebusch, however, was the person who executed the warrant.
In pretrial hearings, prosecutors described Ruebusch as a police officer. Assistant Prosecutor Kevin M. Hardman continually referred to Ruebusch as "Agent" throughout court proceedings last year. In one memorandum, for example, Hardman wrote, "As such, agents Ruebusch and (Rick) Sweeney were fully acting within their police authority and on good faith in executing the search warrants obtained by Judge Dinkelacker."
Common Pleas Judge Thomas Crush seemed confused as to Ruebusch's status, saying, "I think I'm going to permit Mr. Ruebusch or Officer Ruebusch, however it is addressed" to stay in the courtroom.
Asked to describe his qualifications, Ruebusch said he had been a computer consultant for various companies for about 10 years before joining the sheriff's office. Then he was asked about his educational background.
"Yes, I took some computer science, some college, but I did not complete it," he testified.
A review of Ruebusch's personnel records clashes with records from the University of Cincinnati. In his job application with the sheriff's office, Ruebusch stated he attended UC from 1990-1992. But the registrar's office at UC says Ruebusch attended UC from September 1990 through June 1991, or one academic year.
The case against Tuttle began when a freelance writer in Columbus tipped Ron Bien, the county's telecommunications director.
"That is how the case opened up and the investigation began, was based on that e-mail that was forwarded to me from Ron Bien," Ruebusch testified.
That e-mail was from freelance writer John Lasker, who tried to sell an article about Tuttle to CityBeat. The court record refers to Lasker as a CityBeat writer, but he actually sold the story to The Cincinnati Post.
Tuttle was originally charged with illegally accessing two public Hamilton County Web sites, www.hamilton-co.org and www.hcso.org. In June 2003 a grand jury handed up an indictment charging Tuttle with six counts of unauthorized use of property. Tuttle saw that coming. It was the additional 10 counts of pandering sexually oriented matter involving a minor that caught him off-guard.
The 25-year-old is facing 80 years in prison. While checking for evidence Tuttle had illegally hacked into county computers, investigators found child pornography, according to an affidavit by Det. Rick Sweeney, RECI's unit commander. The affidavit was in pursuit of a second search warrant, this time to search for child pornography.
"During a preview of one of the computers, detectives recovered an image of a female juvenile in a shower washing her hair," the affidavit said. "The female depicted appears to be less than 12 years of age."
Crush's reaction is telling.
"This is just a nude picture of a child doing nothing?" Crush said. "Just standing in a shower? That's pornography?"
Defense attorney Candace Crouse pressed Sweeney on the stand.
"So your testimony is that you don't know the definition of pornography, but you just thought that was pornography or what?" Crouse said. "How did you come to the conclusion so that you could represent to the judge that was pornography ... You don't know the definition of pornography?"
"Correct," Sweeney said.
But whatever images were found on Tuttle's computer could become irrelevant if the initial search warrant is thrown out, according to Richard Goldberg, president of the Greater Cincinnati Criminal Defense Lawyers Association.
"The warrant appears to be improper and any evidence obtained as a result of it should be suppressed both under the Ohio and U.S. Constitutions and the Bill of Rights," he says.
Goldberg would also like to see how many times this has been the practice of RECI.
"If I represented a client that had this same affiant (Ruebusch) in a case that was found guilty, I would be running down to the court house the next day with a motion to withdraw the plea and ask for a new trial," he says. ©