Opinion
No. 24999-9-III.
April 17, 2007.
Appeal from a judgment of the Superior Court for Benton County, No. 05-1-00711-1, Carrie L. Runge and Dennis D. Yule, JJ., entered January 24 and February 22, 2006.
Affirmed by unpublished opinion per Kato, J. Pro Tem., concurred in by Brown and Kulik, J J.
Allen Rexus was convicted of first degree rape of a child and three counts of first degree child molestation. Claiming the court erred by denying his motion to suppress evidence, he appeals. We affirm.
Adrian Rexus and two of his friends went to the Kennewick police station and told the officers they wanted to report a child molestation.
Officer Trevor Davis spoke with Adrian, who told him he had a digital camera showing pictures of a five-year-old girl being molested by his father, Allen. Officer James Canada was told the same thing by Adrian's friends, who said they distracted Mr. Rexus while Adrian got the camera.
Adrian handed Officer Davis the camera. The officer did not know how to operate it and gave it back without looking at the pictures. Adrian turned the camera on and displayed the photos for the officers. They saw pictures depicting sexually explicit images of a child. Adrian said the camera was the family camera.
The officers took possession of the camera and arrested Mr. Rexus. He waived his rights and admitted his actions to the police. The police then obtained and executed a search warrant for the Rexus home.
The State charged Mr. Rexus with first degree rape of a child and three counts of first degree child molestation. He moved to suppress the evidence, claiming the officers had no legal right to look at the pictures on the camera. The court denied the motion.
The case proceeded to a stipulated facts trial. The court found Mr. Rexus guilty and imposed a standard range sentence. This appeal follows.
Mr. Rexus claims the court erred by denying his motion to suppress. We review findings on a motion to suppress to determine whether they are supported by substantial evidence, and if so, whether the findings support the court's conclusions. State v. Ross, 106 Wn. App. 876, 880, 26 P.3d 298 (2001), review denied, 145 Wn.2d 1016 (2002).
The Fourth Amendment guarantees "`[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.'" State v. Gregory, 158 Wn.2d 759, 826, 147 P.3d 1201 (2006) (quoting U.S. Const. amend. IV). The Fourth Amendment applies if the person invoking its protection can claim a legitimate, objectively justifiable expectation of privacy that has been invaded by the State. Id.
Mr. Rexus contends the State invaded his reasonable expectation of privacy when the officers looked at the contents of the digital camera. The defendant has the burden of establishing a legitimate expectation of privacy. State v. Jones, 68 Wn. App. 843, 850, 845 P.2d 1358, review denied, 122 Wn.2d 1018 (1993). A legitimate expectation of privacy exists if the "`individual has manifested an actual, subjective expectation of privacy in the area searched or item seized and society recognizes the individual's expectation of privacy as reasonable.'" State v. Boot, 81 Wn. App. 546, 550, 915 P.2d 592 (1996) (quoting State v. Gocken, 71 Wn. App. 267, 279, 857 P.2d 1074 (1993), review denied, 123 Wn.2d 1024 (1994)).
No Washington case has addressed whether a reasonable expectation of privacy exists in a storage device for a digital camera. Other courts have found a reasonable expectation of privacy exists if an individual has control over the electronically stored information. United States v. Chan, 830 F. Supp. 531, 534 (N.D. Cal. 1993) (expectation of privacy in electronic repository for personal data is analogous to a personal address book or other repository for such information). These types of files have been found to have the same protections afforded closed containers. See United States v. Barth, 26 F. Supp. 2d 929, 936 (W.D.Tex. 1998) (the protection afforded to computer files and hard drives are not well-defined, but the protection of these is similar to the protection afforded closed containers and closed personal effects).
Here, however, whether Mr. Rexus had a reasonable expectation of privacy in the digital camera is really of no legal significance. The discovery of the pictures was the result of a private, not a government search. A private search conducted by a private citizen acting on his own initiative does not violate the right against unreasonable search and seizure. State v. Dold, 44 Wn. App. 519, 521-22, 722 P.2d 1353 (1986).
Mr. Rexus argues Adrian was acting as the State's agent when he looked at the pictures with the officers. A private individual acts as a governmental agent when the State has in some way "instigated, encouraged, counseled, directed, or controlled" the actions of that individual. State v. Wolken, 103 Wn.2d 823, 830, 700 P.2d 319 (1985).
The fact that the individual's private purpose was to aid the authorities is insufficient to change a private search into a government search. Dold, 44 Wn. App. at 522.
Adrian initiated the contact with police. He knew his father had taken sexually explicit photos of a child and the pictures were on the digital camera. He had seen the pictures before he went to the police. He handed the camera to the officer, who did not know how to turn it on. The officer gave the camera back to Adrian. He turned the camera on and showed the pictures to the officers. Adrian was not acting at the encouragement or instigation of the police. Even before speaking to them, he came to the officers to turn over information he already had. Adrian's initial search of the camera was a private one not subject to the Fourth Amendment. Furthermore, the search of the camera at the police station did not exceed the bounds of Adrian's initial private search and thus did not violate the Fourth Amendment. Dold, 44 Wn. App. at 522. The court did not err by denying the motion to suppress.
Adrian also consented to the search. Consent to search from someone with authority to do so is another exception to the warrant requirement. State v. Cantrell, 124 Wn.2d 183, 187, 875 P.2d 1208 (1994). A person has common authority to consent to search if there is mutual use of the property. Id. The police must have a reasonable belief in the authority of the person giving consent. Illinois v. Rodriguez, 497 U.S. 177, 188-89, 110 S. Ct. 2793, 111 L. Ed. 2d 148 (1990); State v. Ryland, 120 Wn.2d 325, 326, 840 P.2d 197 (1992) (per curiam order adopting dissent in State v. Ryland, 65 Wn. App. 806, 810, 829 P.2d 806 (1992)).
Adrian arrived at the police station with the digital camera. He knew where it was kept in the family home. He referred to it as the family camera. He knew what pictures were on it. This was sufficient for the police to reasonably believe Adrian had authority to consent to any search.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
BROWN, J. and KULIK, J., concur.