Opinion
NO. 2016-CA-001513-MR
12-21-2018
ANDREW IREDALE APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS AND ORAL ARGUMENT FOR APPELLANT: J. Vincent Aprile, II Louisville, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Emily Bedelle Lucas Assistant Attorney General Frankfort, Kentucky ORAL ARGUMENT FOR APPELLEE: Emily Bedelle Lucas Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE SUSAN SCHULTZ GIBSON, JUDGE
ACTION NO. 14-CR-002152 OPINION
AFFIRMING
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BEFORE: DIXON, D. LAMBERT, AND SMALLWOOD, JUDGES. LAMBERT, D., JUDGE: Andrew Iredale appeals the Jefferson Circuit Court's adverse rulings on five pretrial motions. Iredale argues that his cell phone was unconstitutionally seized, that the warrant allowing the search of his cell phone was defective, that the trial judge should have recused, that his due process rights were violated by pre-indictment delay, and that he was denied a speedy trial. We find no error and affirm.
Judge Gene Smallwood concurred in this opinion prior to the expiration of his term of office. Release of the opinion was delayed by administrative handling.
On August 31, 2012, Iredale, who was 23 years old at the time, was arrested for participating in a burglary with a 15-year-old co-conspirator, with whom he was having a sexual relationship. The home burglarized was that of the minor child and her mother. While searching for evidence to help police solve the burglary, the minor child's mother searched the child's cell phone. On the phone, the mother discovered evidence showing the child and Iredale planned the burglary together and that the child had texted Iredale to let him know when the house would be empty. The mother also found videos showing the child and Iredale engaging in sexual activity. Upon his arrest, Iredale's cell phone was seized by the police because it was believed it would contain evidence of the burglary and sexual crimes. The phone was then turned over to the Louisville Police Department's Crimes Against Children Unit because it likely contained evidence of sexual crimes involving a minor child.
In a forensic interview, the minor child revealed that Iredale had asked her for sexual videos and photographs and that he had taken the video of them engaged in sexual acts. On November 13, 2012, Officer Jessica Crick obtained a search warrant to search Iredale's cell phone. The search revealed videos and pictures of Iredale and the child engaged in sexual activity.
Iredale's cell phone was already in the possession of the police because it was seized during his arrest for the burglary. --------
On August 19, 2014, Iredale was indicted for various sex crimes. On July 20, 2016, Iredale entered a conditional guilty plea to the charges, but reserved the right to appeal the trial court's decisions on certain pretrial motions. This appeal followed.
The first argument for our consideration on appeal is whether the trial court erred in not suppressing the evidence found on Iredale's cell phone. Iredale claims the phone was illegally seized because it was taken from him without a warrant; therefore, any evidence on it should have been suppressed.
Our standard of review of a circuit court's decision on a suppression motion following a hearing is twofold. First, the factual findings of the court are conclusive if they are supported by substantial evidence. The second prong involves a de novo review to determine whether the court's decision is correct as a matter of law.Stewart v. Commonwealth, 44 S.W.3d 376, 380 (Ky. App. 2000) (footnotes and citations omitted). We find that the seizure of the phone was proper because it was seized pursuant to Iredale's arrest. Williams v. Commonwealth, 147 S.W.3d 1, 8 (Ky. 2004).
Detective Dave Dahl was the officer who investigated the burglary and arrested Iredale. During the suppression hearing, Dahl could not remember many details surrounding Iredale's arrest, however, he did remember seizing the phone because he believed there would be pertinent evidence within it. He also could not remember if he seized the phone before or after he arrested Iredale, but knew it occurred the same night as the arrest. Whether or not the phone was seized before or after Iredale's arrest is irrelevant in this case.
A warrantless search preceding arrest is reasonable under the Fourth Amendment so long as probable cause to arrest existed before the search, and the arrest and search were substantially contemporaneous. Once an officer has probable or reasonable cause, the officer may arrest the person without a warrant, and in such situations it is immaterial that a search of the person without a search warrant may precede his arrest.Id. (citations omitted).
By the time Detective Dahl made contact with Iredale, the minor child had already confessed that she and Iredale planned the robbery together and had communicated by text message. Also, when Detective Dahl spoke with Iredale, Iredale did not refute the accusations against him and relinquished to police the money stolen from the house. By the time the Iredale's phone was seized, Detective Dahl had probable cause to arrest Iredale; therefore, the search of Iredale and the seizure of his cell phone were legitimate.
Iredale also claims that the evidence seized from his cell phone should have been suppressed because the search warrant was defective. First, Iredale claims that Officer Crick, who obtained the search warrant, misled the issuing judge by making false statements in the affidavit seeking the warrant. Specifically, the affidavit stated that the phone was in the possession of the Kentucky Regional Computer Forensic Laboratory, but was actually in the property room of the Louisville Metro Police. The affidavit also indicated that the phone would then be logged into the Louisville Metro Police Department's property room, even though it was already there. In addition, the affidavit stated that the phone would be examined at a specialized law enforcement forensic facility, but Iredale argues Officer Crick should have stated it would be examined by Kentucky Regional Computer Forensic Laboratory since she knew that is where the phone would go. Finally, the affidavit did not indicate who the examiner would be, even though Officer Crick knew it would be her. Iredale claims all of this was misleading or false information and invalidates the warrant. We disagree.
While only some of these statements may be false, they are about immaterial issues. The phone was described with specificity, going so far as to list the color, brand name, and serial number. Further, the phone was already in police custody. Finally, the general statements regarding the location of the examination and the examiner are immaterial. Even if Officer Crick intentionally made false statements in the affidavit, the removal of these statements would not affect the probable cause that existed to procure the warrant. False statements can be removed from an affidavit and if the affidavit's remaining content still shows probable cause to issue the warrant, the warrant will not be voided. Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 2676, 57 L.Ed.2d 667 (1978).
Iredale also claims the warrant should be voided because the affidavit did not specify the crimes he allegedly committed. This argument is without merit. The affidavit described in detail allegations of sexual activity with a minor.
Iredale also claims the warrant should be voided because there was a delay in seeking it. The phone was seized on August 31, 2012, and the warrant was issued on November 13, 2012. Iredale is correct that a search warrant should be obtained within a reasonable period of time. United States v. Burgard, 675 F.3d 1029, 1032 (7th Cir. 2012). Here, it took over two months for the police to obtain a search warrant for Iredale's phone.
There is unfortunately no bright line past which a delay becomes unreasonable. Instead, the Supreme Court has dictated that courts must assess the reasonableness of a seizure by weighing "the nature and quality of the intrusion on the individual's Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion."
On the individual person's side of this balance, the critical question relates to any possessory interest in the seized object, not to privacy or liberty interests. "A seizure affects only the person's possessory interests; a
search affects a person's privacy interests." The longer the police take to seek a warrant, the greater the infringement on the person's possessory interest will be, for the obvious reason that a longer seizure is a greater infringement on possession than a shorter one. But unnecessary delays also undermine the criminal justice process in a more general way: they prevent the judiciary from promptly evaluating and correcting improper seizures. Thus the "brevity" of the seizure is "an important factor" for us to weigh. In addition, it can be revealing to see whether the person from whom the item was taken ever asserted a possessory claim to it-perhaps by checking on the status of the seizure or looking for assurances that the item would be returned. If so, this would be some evidence (helpful, though not essential) that the seizure in fact affected her possessory interests.Id. at 1033-34 (citations omitted).
Turning to the state's side, a key factor in our analysis is the strength of the state's basis for the seizure. The state has a stronger interest in seizures made on the basis of probable cause than in those resting only on reasonable suspicion. All else being equal, the Fourth Amendment will tolerate greater delays after probable-cause seizures.
Finally, when we balance these competing interests we must "take into account whether the police diligently pursue[d] their investigation." When police act with diligence, courts can have greater confidence that the police interest is legitimate and that the intrusion is no greater than reasonably necessary. When police neglect to seek a warrant without any good explanation for that delay, it appears that the state is indifferent to searching the item and the intrusion on an individual's possessory interest is less likely to be justifiable.
Based on the totality of circumstances in this case, we do not believe the two-month delay was unreasonable. Officer Crick testified that she did not become aware of the contents of Iredale's phone until after the minor child's forensic interview in October 2012. She then testified that she had to examine the child's phone and requested consent to do so. She obtained consent on November 5, 2012, and soon thereafter examined the child's phone. Based on the information obtained from the child and her cell phone, Officer Crick then requested the search warrant for Iredale's phone. In addition, the police had already viewed the video and images of Iredale and the child on the child's phone and had been informed there would be text messages on Iredale's phone regarding the burglary; therefore, there was probable cause to seize and search the phone. Finally, Iredale never inquired about the return of his phone, although it is unlikely it would have been returned considering it contained evidence of the burglary and illegal sex acts.
Iredale also claims that the warrant was invalid because it was too broad. He claims the warrant did not limit the types of files that could be searched on the phone. This argument is without merit. The affidavit stated that the police were looking for images and videos and that Iredale and the child had communicated via cell phone, email, and Facebook. The affidavit indicated it was common for people to transmit images and video via email, social media, and text messages through their cell phones. This indicated what officers were looking for and where they hoped to find it. See Hedgepath v. Commonwealth, 441 S.W.3d 119, 131 (Ky. 2014).
Based on the foregoing, we find that the seizure of the phone and the search of it pursuant to a warrant were proper. The trial court did not err in denying Iredale's motion to suppress. It is also worth noting that pursuant to Iredale's guilty plea on the burglary charge, he agreed to forfeit all items seized, which would include his cell phone. By forfeiting his rights to the cell phone, we believe he has waived all arguments relating to its seizure and search; however, out of an abundance of caution, we entered into the above analysis to ensure Iredale's rights were not violated.
The next issue on appeal is Iredale's argument that the trial judge should have recused from the case. On June 1, 2016, a hearing was held on a motion to continue filed by Iredale's counsel. During the hearing, the trial judge stated that defense counsel had alluded to his case load in arguing for the continuance, but that CourtNet did not support this conclusion. The judge was indicating that she looked up defense counsel's cases on CourtNet to see if he was overloaded. Iredale claims this was an impermissible investigation into facts of the case and an ex parte communication. Iredale moved to recuse the judge, but the motion was denied.
[Kentucky Revised Statute (KRS)] 26A.015(2) requires recusal when a judge has "personal bias or
prejudice concerning a party . . . [,]" or "has knowledge of any other circumstances in which his impartiality might reasonably be questioned." The burden of proof required for recusal of a trial judge is an onerous one. There must be a showing of facts "of a character calculated seriously to impair the judge's impartiality and sway his judgment." The mere belief that the judge will not afford a fair and impartial trial is not sufficient grounds for recusal.Stopher v. Commonwealth, 57 S.W.3d 787, 794 (Ky. 2001) (citations omitted). "We review a trial judge's denial of a motion to recuse for abuse of discretion. 'The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.'" Dunlap v. Commonwealth, 435 S.W.3d 537, 587 (Ky. 2014) (citations omitted).
Here, there was no abuse of discretion. Iredale makes no argument that the trial judge's impartiality was in question and we find such was not the case. Furthermore, the trial judge granted Iredale's motion for a continuance. We find no error.
The next issue for our consideration is Iredale's argument that the trial court erred in not dismissing the case against him due to pre-indictment delay. Iredale was arrested on August 31, 2012, and indicted on the sex charges on August 19, 2014, a period of almost two years. He claims this violated his due process rights.
[U]njustified and prejudicial preindictment delay may constitute a violation of due process and require
dismissal. Prejudice alone will not suffice. "[T]he due process inquiry must consider the reasons for the delay as well as the prejudice to the accused." Thus, dismissal is required only where there is both substantial prejudice and an intentional delay to gain tactical advantage.Kirk v. Commonwealth, 6 S.W.3d 823, 826 (Ky. 1999) (citation omitted). "[T]he mere passage of time does not give rise to a constitutional violation per se." Id. at 827.
Here, Iredale claims that the two-year delay was prejudicial to him because there was a loss of evidence. The evidence Iredale refers to is Detective Dahl's memory surrounding the circumstances of Iredale's arrest and the seizure of his phone. Iredale claims that the seizure of the phone was illegal and if Detective Dahl could remember more details, the evidence found on the phone would have been suppressed. In addition, he claims that the delay resulted in his inability to accurately recall events, especially in light of the fact that he has mental issues and previous brain trauma. Iredale also claims that the prosecution delayed indicting him for the sex crimes in order to gain a tactical advantage. This advantage was that in pleading guilty, Iredale forfeited possession of his cell phone which contained evidence of the sex crimes.
We find that the preindictment delay in this case was not violative of due process. While Detective Dahl could not remember much about the events surrounding Iredale's arrest, it did not affect the seizure and search of the cell phone. As we have previously stated, the seizure and search of the phone were both proper. In addition, while Iredale claims the delay was detrimental to his memory, he does not actually indicate that he has forgotten details of the events surrounding his arrest and prosecution. Furthermore, there was a plethora of evidence against Iredale making a finding of prejudice unlikely. The minor child stated that she and Iredale had a sexual relationship and that he knew she was underage. The police also found evidence of this relationship on the child's cell phone and Iredale's cell phone. Finally, we do not believe the prosecution used the preindictment delay to gain a tactical advantage over the cell phone. The phone was properly seized and searched pursuant to a valid warrant. The Commonwealth did not need Iredale to forfeit his rights to the phone in order to use the evidence found on it against him.
Iredale's last argument on appeal is that the case should have been dismissed due to the denial of his right to a speedy trial. He argues that the two-year delay from his arrest on the burglary charge to the indictment on the sex crimes violated his right to a speedy trial. This argument is without merit.
The right to a speedy trial only attaches once an indictment has been issued or an arrest has been made. Berry v. Commonwealth, 84 S.W.3d 82, 85 (Ky. App. 2001). Here, Iredale was indicted for the sex crimes on August 19, 2014, and arrested on August 27, 2014. Iredale claims that the clock should have started to run on the speedy trial issue when he was arrested for the burglary charge in August of 2012. We disagree. "[A]n individual is not entitled to the speedy trial protections of the Sixth Amendment until formal proceedings are instituted." Reed v. Commonwealth, 738 S.W.2d 818, 820 (Ky. 1987) (citing United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971)). Iredale's indictment for the sex crimes was when the speedy trial issue became ripe, not his arrest for burglary.
Based on the foregoing, we affirm the judgment of the trial court.
ALL CONCUR. BRIEFS AND ORAL ARGUMENT
FOR APPELLANT: J. Vincent Aprile, II
Louisville, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Emily Bedelle Lucas
Assistant Attorney General
Frankfort, Kentucky ORAL ARGUMENT FOR
APPELLEE: Emily Bedelle Lucas
Frankfort, Kentucky