C.B.D. v. State

90 So. 3d 227, 2011 WL 6278305, 2011 Ala. Crim. App. LEXIS 116
CourtCourt of Criminal Appeals of Alabama
DecidedDecember 16, 2011
DocketCR-10-0640
StatusPublished
Cited by27 cases

This text of 90 So. 3d 227 (C.B.D. v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
C.B.D. v. State, 90 So. 3d 227, 2011 WL 6278305, 2011 Ala. Crim. App. LEXIS 116 (Ala. Ct. App. 2011).

Opinion

On Application for Rehearing

KELLUM, Judge.

The opinion issued on September 30, 2011, is withdrawn, and the following opinion is substituted therefor.

C.B.D., a minor, was adjudicated delinquent on 11 counts of possession of obscene matter, violations of § 13A-12-192(b), Ala.Code 1975. He was placed on probation.1

The evidence presented at the delinquency hearing indicated the following. Bill Rafferty, a sergeant with the criminal-investigation unit of the Houston County Sheriffs Department, testified that on February 25, 2009, an investigation was launched regarding then 15-year-old C.B.D. On February 27, 2009, Sgt. Rafferty obtained a search warrant for the residence where C.B.D. lived with his mother, K.R., and his grandparents, and executed the search warrant later that same day. When he arrived at C.B.D.’s residence, Sgt. Rafferty presented either C.B.D.’s mother or grandmother with the warrant — the other was away from the residence, having taken C.B.D. to get his driver’s permit or driver’s license. As a result of the search, a total of 476 pieces of “computer media” were confiscated, including compact discs, digital versatile discs, three types of iPods, two computers, three memory drives, and an X-Box brand video-gaming device. (R. 92.) In addition, [233]*233three cellular telephones were also confiscated.

Sometime during the search of the residence, C.B.D. returned to the residence and, in the presence of both his mother and grandmother, Sgt. Rafferty advised C.B.D. of his juvenile Miranda2 rights, and, with the consent of his mother, C.B.D. waived his rights and agreed to speak with Sgt. Rafferty. While speaking with Sgt. Rafferty, C.B.D. admitted that he had looked at pornography on the Internet and that he had downloaded pornography from the Internet to a computer and had then emailed it to his cellular telephone. C.B.D. said that he had looked at pornography “quite often.” (R. 91.) C.B.D. also admitted that he “may have” looked at, and downloaded, child pornography. (R. 89.) C.B.D. said that he used one specific computer in the house — a Dell brand computer — to view pornography. An HP brand computer was also found in the house, but it was being used as the “media center” for the television and cable. (R. 103.) C.B.D. denied sending text messages through his cellular telephone to his stepbrother, B.E., asking B.E. to send him nude photographs of his stepsister and half sister. C.B.D. was not arrested at the time of the search but was left at the house with his family.

Reggie Yeomans, a computer-forensics investigator with the Houston County Sheriffs Department who was present at the time of the search, testified that he conducted a forensic examination of the confiscated items, including the Dell brand computer C.B.D. admitted using to view pornography. On the computer, Inv. Yeo-mans found numerous images and videos he believed constituted child pornography. Sgt. Rafferty subsequently signed 13 juvenile-delinquency petitions based on 13 different images and/or videos that were found on the computer. After hearing the evidence and viewing the images and/or videos, the juvenile court found C.B.D. delinquent on 11 of the 13 counts of possession of obscene matter as charged in the delinquency petitions. This appeal followed.

I.

C.B.D. contends that, for several reasons, the juvenile court erred in denying his motion to suppress the evidence seized from his residence as a result of the search warrant. (Issues I-V in C.B.D.’s brief.)

The records in this appeal and in the previous appeal in this case indicate that, on March 2, 2009, C.B.D. initially filed a motion to suppress all evidence and statements resulting from the execution of the search warrant. In that motion, C.B.D. made only general arguments that his statements and the evidence were obtained in violation of various constitutional provisions. The records do not indicate any ruling on this motion by the juvenile court. On May 4, 2009, C.B.D. filed a second motion to suppress the evidence and statements resulting from the search of his residence, specifically arguing that the State had failed to effectuate the return of the warrant after it had been executed, see Rules 3.10, 3.11, and 3.14, Ala. R.Crim. P., and §§ 15-5-12 and 15-5-13, Ala.Code 1975, and that, as of the date of the second motion, no return had been made, and the search warrant, affidavit, and inventory had not been produced by the State.

At a hearing on the motion, the State asserted that the affidavit and search warrant had been lost before a return could be made, but that it was planning to present [234]*234testimony at the delinquency hearing regarding the contents of the warrant and affidavit. A lengthy discussion ensued, during which C.B.D. argued that the State had failed to follow the proper procedures in obtaining, executing, and returning the warrant and that any testimony regarding the contents of the warrant and affidavit would be irrelevant because of the failure to follow the requisite procedures. C.B.D. also argued that he was prejudiced by the failure of the State to return the warrant and affidavit because, he said, without knowing what was in the warrant and affidavit, it was impossible for him to lodge any challenge to the contents of the warrant and affidavit. Finally, C.B.D. stated that even if the State could establish that it had followed the proper procedures, it would also be required to establish probable cause for issuance of the warrant.

The juvenile court initially granted the motion to suppress, finding that the State’s failure to effectuate a return of the warrant and the subsequent loss of the warrant and affidavit required suppression of the evidence. The State appealed the juvenile court’s order granting the motion to suppress, and this Court reversed, holding:

“In this case, the juvenile court held the State strictly accountable for its failure to effectuate a return of the search warrant, suppressed the evidence, and dismissed the case. We conclude that this was error. The juvenile court should have afforded the State the opportunity to offer evidence sufficient to demonstrate that the search warrant existed and that it was not lost through fault of the State and to establish the contents of the lost warrant through secondary evidence.”

State v. C.B.D., 71 So.3d 717, 720-21 (Ala.Crim.App.2009).

On remand, the juvenile court conducted another suppression hearing, at which the State presented the following testimony to establish the existence and contents of the search warrant and accompanying affidavit. Brad Mendheim, a circuit judge in Houston County, testified that he remembered Sgt. Rafferty requesting a search warrant in a child-pornography case involving a juvenile in February 2009. He said that, based on “conversations” with the prosecutor, the search warrant was “apparently” issued in C.B.D.’s case. (R. 16.) However, Judge Mendheim testified that he could not remember any specifics about the warrant in this case. He said that his general policy in issuing a search warrant was to place the officer requesting the warrant under oath and ask if everything in the affidavit submitted in support of the warrant was true and, if necessary, to obtain additional information not contained in the affidavit. He said that, in some cases, he would also add information to the warrant by handwriting it on the warrant.

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Bluebook (online)
90 So. 3d 227, 2011 WL 6278305, 2011 Ala. Crim. App. LEXIS 116, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cbd-v-state-alacrimapp-2011.