Opinion
AUGSC-CR-2012-602
09-07-2021
STATE OF MAINE v. ERIC BARD, Defendant.
ORDER ON DEFENDANT'S MOTION TO SUPPRESS
Pending before the court is the Defendant's Motion to Suppress the evidence found on a micro S.D. card seized from his bedroom and the ultimate search of the micro S.D. card after a warrant was obtained. For the reasons stated below, the motion is denied.
The first argument advanced by the Defendant is that the search of his bedroom that found the micro S.D. card was unreasonable. There is no dispute that law enforcement did not have a warrant for the search and there is no dispute that the Defendant consented to the search of his bedroom for computers. The dispute centers around the scope of that search.
Though consent was given by other residents of the home to search other parts of the home for computers and to seize those computers, the parties agree that the Defendant's consent was necessary for the search of his separate bedroom.
For the search to be justified based on consent, the State must prove "by a preponderance of the evidence 'that an objective manifestation of consent was given by word or gesture.'" State v. Nadeau, 2010 ME 71, ¶ 17, 1 A.3d 445 (citing State v. Seamen's Club, 1997 ME 70, ¶7, 691 A.2d 1248.) That consent must be "given freely and voluntarily." Id. The scope of the consent is determined by "what would the typical reasonable person have understood by the exchange between the officer and the suspect?" State v. Bailey, 2010 ME 15, ¶ 26, 989 A, 2d 716.
The Defendant argues that though he consented to the search of his bedroom for computers, the scope of that consent was not so broad that it allowed the search of the camera case where the micro S.D. card was found. However, it is obvious from the recorded conversation between the Defendant and law enforcement that the search was for devices that could contain child pornography. This was not, for example, an investigation looking for stolen computers. A reasonable person would know that the focus of the search was for computer devices that could contain child pornography.
During the interview, the Defendant was asked in detail about his viewing of child pornography and he admitted that it may be found on multiple computers within the home. He also admitted to viewing child pornography on the computer that he recently sold. During the conversation, the investigator talked about looking for paperwork concerning the recently sold laptop and about photographs or videos that the Defendant possessed. Though the term primarily used by the investigator was computers, the discussion with the Defendant made clear that the purpose of the search was to find devices that might contain child pornography. The Defendant knew what law enforcement was looking for and why and freely consented to the search continuing. After a conversation of nearly a half hour where the focus was the Defendant's viewing of child pornography, the Defendant agreed to one final look through his room before the officers left. It was then that the micro S.D. card was found in a camera case.
Based on the record established at the suppression hearing, the court finds that the Defendant's consent was not limited to computers and included devices that could contain child pornography, such as the micro S.D. card. However, even if the consent was limited to computers, even in 2012 there existed hand held computers that could have been located in the camera case where the micro S.D. card was found. As a result, under either scenario, the search was within the scope of the consent.
The Defendant next challenges the seizure of the micro S.D. card. There is no dispute that the Defendant objected to the seizure of the micro S.D. card once it was found and did not consent to it being seized. The State argues that the seizure was supported by probable cause and exigent circumstances.
Searches and seizures typically require a warrant. State v. Michael M,, 2001 ME 92, ¶ 6, 772 A.2d 1179. Nevertheless, officers may seize property without a warrant under the exigent circumstances exception to this general rule. State v. Dreiory, 2008 ME 76, ¶ 20, 946 A.2d 981. Exigent circumstances require probable cause and a "compelling need to conduct a seizure and insufficient time to secure a warrant." Id. A digital device that could easily be destroyed falls under the exigent circumstances exception if the officer had probable cause that it "had evidentiary value in the investigation of the suspected crimes." United States v. Henry, 827 F.3d 16, 28 (1st Cir. 2016).
"Probable cause" is synonymous with "reasonable grounds". State v. MacKenzie, 161 Me. 123, 138, 210 A.2d 24, 33 (1965). Probable cause has been defined as the evidence required to persuade a man of reasonable caution to believe that a crime is being committed or that it has been committed. Carroll v. United States, 267 U.S. 132, 162 (1925); Henry V. United States, 361 U.S. 98, 102 (1959). "In dealing with probable cause . . . as the very name implies we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act." Brinegar v. United States, 338 U.S. 160, 175 (1949).
In this case, ample probable cause existed for the officers to believe the micro S.D. card contained contraband. Law enforcement came to the Defendant's home to investigate a troubling Craig's List ad that sought pictures of children and expressed an interest in bathing children and putting children to bed for free. When questioned, the Defendant admitted to placing the ad under a false name. During further questioning, he admitted to looking at child pornography when he was 14 and that he had started to look at it again recently. He admitted that he had installed a peer to peer program like Lime Wire and/or Frosty Wire, which are commonly used by individuals looking for child pornography. He admitted to using or seeing terms like PTCH, preteen, and Pedo, terms that investigators knew were commonly used to search for child pornography. He admitted that he had 4 computers, had recently sold a fifth, and has access to 2 other computers in the home. He agreed that any of the 6 computers in the home could contain child pornography. A preview of computers found in the home, done by consent, found child pornography. The investigators knew from experience that people interested in child pornography often collect and store the material.
The Defendant next argues that even if probable cause existed that the micro S.D. card contained contraband, there were not exigent circumstances justifying removing the micro S.D. card from the home because law enforcement had the resources to obtain a warrant that day before taking the micro S.D. card from the home.
This argument is resolved by application of the First Circuit's decision in Henry. The micro S.D. card is a digital device that could easily be destroyed and the officers, as described above, had probable cause that it "had evidentiary value in the investigation of the suspected crimes." Henry, 827 F.3d at 28. As a result, exigent circumstances existed to justify seizing the micro S.D. card and removing it from the home while a warrant was obtained.
The next question is whether the ten-day delay between the lawful seizure of the micro S.D. card and the acquisition of a warrant makes the search of the micro S.D. card unreasonable under the Fourth Amendment.
"A seizure lawful at its inception can nevertheless violate the Fourth Amendment because its manner of execution unreasonably infringes possessory interests." United States v. Jacobsen, 466 U.S. 109, 124 (1984). Therefore, "a seizure based on probable cause is unconstitutional if the police act with unreasonable delay in securing a warrant." United States v. Mitchell, 565 F.3d 1347, 1350 (11th Cir. 2009). This analysis is done on a case-by-case basis. Id. at 1351. In Mitchell, a 21-day delay between seizure of a hard drive and acquisition of a warrant was determined to be unreasonable. Id. at 1352.
Courts consider a number of factors when evaluating a defendant's possessory interest in seized property. Computers and their storage devices seem to heighten the defendant's possessory interest somewhat, as they often contain "personal letters, e-mails, financial information, passwords, family photos, and countless other items of a personal nature." Mitchell, 565 F.3d at 1351. A failure to seek the return of the property or object to its taking may support an inference that the defendant's possessory interest is diminished, United States v. Johns, 469 U.S. 478, 487 (1985). The duration of the delay is also an important factor in measuring the intrusion into the possessory interest. See Place, 462 U.S. at 709.
On the State's side, a backlog of cases may sometimes be a reasonable justification for a longer delay. Mitchell, 565 F.3d at 1353; United States v. Butler, 2020 U.S. Dist. LEXIS 51782 at **23-24 (Fla. M.D. 2020). However, where the delay is due to the officers simply feeling that there was "no rush," it is far less likely to be reasonable in the eyes of a court. Mitchell, 565 F.3d at 1353. In United States v. Fulton, 914 F.3d 390 (5th Cir, 2019), the court found that a nine-day delay in obtaining a warrant after seizing a cell phone was reasonable and noted that the length of time showed "some attentiveness but not zeal by police."
In this case, the Defendant's possessory interest in a micro S.D. card that he asserted had "some personal things on it" is significant, In his testimony, the officer responsible for obtaining the warrant offers no explanation for the delay beyond a day or two to obtain the restilts of the preliminary review of the computers seized by consent.
Ultimately, in this case, the court's decision turns on whether a ten-day delay in obtaining a warrant is unreasonable when the Defendant's possessory interest is significant and no justification for the delay is offered. In Fulton, 914 F.3d 390, the court found that a nine-day delay in obtaining a warrant after seizing a cell phone was reasonable and noted that the length of time showed "some attentiveness but not zeal by police." The same is true here. While best practice would have been to obtain a warrant in a more timely manner, the ten-day delay does not rise to the level of a constitutional violation when the initial seizure was lawful.
The State argues that the doctrine of inevitable discovery applies to this situation. By its plain terms, it does not.
Though the length of the delay alone does not decide the issue, the delay has been longer in cases where courts have determined that a delay in obtaining a warrant makes the resulting search unreasonable.
Finally, the Defendant argues that the affidavit submitted to obtain the warrant to search the micro S.D. card did not establish probable cause necessary to allow the search of the micro S.D. card. When reviewing the applicable affidavit and warrant with the deference required, this court finds that the warrant in question was supported by an affidavit showing sufficient evidence for the magistrate to make a finding of probable cause to allow the search of the micro S.D. card.
For these reasons, the Defendant's Motion to Suppress is DENIED.