State v. Munro

96 P.3d 348, 194 Or. App. 538, 2004 Ore. App. LEXIS 994

• Court: Court of Appeals of Oregon
• Decided: August 11, 2004
• Docket: 020243; A120381
• Status: Published

Opinions

SCHUMAN, J.

Defendant appeals his conviction for encouraging child sexual abuse in the second degree. He assigns error to the denial of his motion to dismiss that charge on statutory former jeopardy grounds and to the denial of his motions to suppress a videotape and its contents showing child pornography. We conclude that the court correctly denied his former jeopardy motion and his motion to suppress the videotape itself but that the court should have granted his motion to suppress the contents of the videotape. We consequently reverse and remand for a new trial.

In early June 2000, Clackamas County police officers received information that defendant was using marijuana with teenage boys in his apartment, selling them marijuana, and “grooming” the boys for sexual activity. After an investigation, Officer Andrews prepared an affidavit for a search warrant. The affidavit recited that he knew “from [his] training and experience” that “[p]ersons who possess and distribute marijuana and other controlled substances often keep records pertaining to their illegal narcotic activities. These include * * * video films[.]” It further recited that he had probable cause to believe that “evidence of the crimes of Possession of a Schedule I Controlled Substance, and Delivery of a Schedule I Controlled Substance,” including “business records such as * * * videotapes” were located in defendant’s apartment. Based on the affidavit, a judge issued a warrant authorizing the search of defendant’s apartment for, among other things, videotapes. The warrant also authorized seizure of “the aforesaid objects of the search.” The judge issued the warrant on June 9, 2000, and the officers executed it the same day. Although at the time that the officers applied for the warrant they had heard allegations of sexual activity involving defendant and a boy, the warrant application sought, and the judge granted, permission to search for evidence only of marijuana crimes, not sex crimes.

Pursuant to the warrant, officers searched defendant’s apartment and seized, among other things, a Beta videotape, a dozen VHS videotapes, and some marijuana. When they subsequently tried to play the Beta videotape, it appeared to be blank. They then returned it to the property room. Thereafter, in May 2001, defendant was charged with possession of a controlled substance. He was ultimately convicted on that charge in August 2001.

Meanwhile, on June 5, 2001, after defendant had been charged with the marijuana crime but before he was convicted, Sergeant Coates of the Clackamas County Sheriffs Department received information that the Beta videotape “probably [contained] child pornography.” Without obtaining a new warrant, he attempted to view the videotape again, but again it appeared to be blank. Coates then took it to technicians at KOIN-TV. They, too, were unable to see anything on it, but they referred Coates to a shop in Gresham that succeeded in copying the content of the Beta videotape into VHS format. Coates then viewed the videotape and saw “what appeared to be young boys involved in sexual activity.” The next month, police arrested defendant and he was charged with encouraging the sexual abuse of a child, ORS 163.686, on the theory that he possessed child pornography while knowing that its creation involved child abuse. He moved to dismiss the charge on statutory and constitutional former jeopardy grounds; the court denied that motion. He also moved to suppress the videotape and its contents; those motions, too, were denied. This appeal ensued.

Defendant argues first that the court should have granted his motion to dismiss under ORS 131.515(2), which provides:

“No person shall be separately prosecuted for two or more offenses based upon the same criminal episode, if the several offenses are reasonably known to the appropriate prosecutor at the time of commencement of the first prosecution and establish proper venue in a single court.”

To succeed under this statute,¹ defendant must establish three elements: (1) the separate prosecutions were for two or more offenses that were part of the same criminal episode; (2) the offenses were known to the prosecutor when the first prosecution was commenced; and (3) venue was proper in a single court. State v. Fore, 185 Or App 712, 715, 62 P3d 400 (2003). The trial court found as fact that the prosecutor did not know of the second offense when the marijuana prosecution began in May 2001. We are bound by that finding if any evidence in the record supports it. State v. Knowles, 289 Or 813, 823-24, 618 P2d 1245 (1980). Testimony indicates that the prosecutor did not learn of the child pornography on the videotape until late July 2001, over two months after prosecution of the marijuana charge commenced in early May. Even if we could impute the police officers’ knowledge to the prosecutor, they did not learn of the pornography until June 2001 — again, after the marijuana prosecution began. We therefore reject defendant’s first assignment of error.²

Defendant next assigns error to the trial court’s denial of his pretrial motion to suppress the Beta videotape. He argues that the affidavit in support of the warrant application to search defendant’s apartment did not establish probable cause that videotapes containing drug transaction records would be found there.

This court’s inquiry into the sufficiency of an affidavit supporting a search warrant involves two questions: “(1) whether there is reason to believe that the facts stated are true, and (2) whether the facts and circumstances disclosed by the affidavit, if true, are sufficient to establish probable cause to justify the search requested.” State v. Villagran, 294 Or 404, 408, 657 P2d 1223 (1983). Here, there is no dispute about the first question; defendant withdrew his motion to controvert any of the statements in the affidavit. Accordingly, our inquiry is limited to whether the uncontroverted facts in the affidavit establish probable cause to search defendant’s apartment. State v. Goodman, 328 Or 318, 325, 975 P2d 458 (1999).

“The probable cause requirement means that the facts upon which the warrant is premised must lead a reasonable person to believe that seizable things will probably be found in the location to be searched.” State v. Anspach, 298 , 692 P2d 602 (1984). “When addressing probable cause issues in cases where a warrant was issued, we confine our analysis to a ‘common-sense view of the affidavit’ filed by the police officer.” State v. Moylett, 313 Or 540, 552, 836 P2d 1329 (1992) (quoting State v. Coffey, 309 Or 342, 346, 788 P2d 424 (1990)).

Lieutenant Andrews of the Clackamas County Sheriffs Department prepared the affidavit in support of the search warrant. That affidavit contained substantial information about the sale of marijuana in defendant’s apartment and included the following references to videotapes:

“I know from my training and experience the facts, practices and circumstances [that] are common to the delivery and possession of marijuana.

"*****

“Persons who possess and distribute marijuana and other controlled substances often keep records pertaining to their illegal narcotic activities. * * * These records include written and electronically stored business documents, ledgers, address books, computer files and software, telephone toll records, notes, messages, photographs and video films, and encrypted memoranda indicating drug debts/sales.”

(Emphasis added.) Because defendant withdrew his motion to controvert the affidavit, Andrews’s assertions are uncontradicted and must therefore be accepted. Further, as the state points out, the statements have a reasonable basis in fact:

“It is far from unusual for defendants to have taken photographs of their drugs and/or their drug operations which serve as records of their criminal operations just as much as a ledger book does. For example, in State v. Forseth, the police found during a search of a house ‘a photograph depicting defendant holding a small piece of glass with five rows of white powder on it. In the picture, defendant had a straw up to his nose, the other end of which touched the white powder.’ 302 Or [233,] 235[, 729 P2d 545 (1986)]. In State v. Maxfield, 133 Or App 371, 373, 891 P2d 1342, modified on recon[,] 134 Or App 542, 896 P2d 581 (1995), the police were called by a photo store employee regarding two rolls of film the defendant had brought to be developed that ‘depicted high-quality marijuana in a growing state,’ pictures of buildings and persons, two pictures of [the] defendant, and a picture of someone standing next to a U.S. Forest Service water-pumper truck. In State v. Saude, 95 Or App 428, 430, 769 P2d 784 (1989), the police found photographs during a search of the defendant with three others inside the garage containing a methamphetamine laboratory and defendant ‘standing in front of the locked cabinets containing the methamphetamine production material.’ It is not unusual at all for photographic records of drug crimes to be found at a defendant’s residence.”

Read in context and in a commonsense manner, the statements in the affidavit were sufficient to allow a reasonable person to infer that videotaped evidence of the crime of possession of a controlled substance would be found in defendant’s apartment. Defendant’s second assignment of error, therefore, lacks merit.

Finally, defendant argues that, even if police lawfully seized the videotape when they searched defendant’s apartment, they performed an analytically separate act when they viewed the videotape; that act, according to defendant, constituted a search, and it violated Article I, section 9,³ of the Oregon Constitution because no warrant authorized it and it did not fit within any exception to the warrant requirement. We agree.

Initially, the state contends that, because officials lawfully seized the videotape pursuant to a warrant and lawfully retained custody of it, defendant no longer had any privacy right to its contents. That argument conflates two separate interests protected by Article I, section 9. That provision protects both possessory interests and privacy interests. State v. Owens, 302 Or 196, 206, 729 P2d 524 (1986). Once the videotape was lawfully seized, defendant’s “possessory interest in that property has been substantially reduced. The additional retention of the item, for the limited purpose of * * * testing, is not a substantial interference with that possessory interest.” Id. at 207 (emphasis added). However, “a ‘search’ occurs when a person’s privacy interests are invaded,” id. at 206 (emphasis added), that is, when the state deprives the person of freedom from unwanted scrutiny, State v. Campbell, 306 Or 157, 171, 759 P2d 1040 (1988). A defendant can lose his or her possessory interest in property without necessarily losing the accompanying right to freedom from unwanted scrutiny. In State v. Binner, 131 Or App 677, 683, 886 P2d 1056 (1994), for example, we held that the defendant retained his right to freedom from unwanted scrutiny of a blood sample in regard to which he had waived his possessory interest. Thus, the fact that officers lawfully seized the videotape does not imply that their subsequent viewing of it invaded no interest; if it was a search, it implicated defendant’s privacy interest.

We must therefore determine whether viewing the videotape constituted a search. Government action amounts to a search if “the practice, if engaged in wholly at the discretion of the government, will significantly impair ‘the people’s’ freedom from scrutiny, for the protection of that freedom is the principle that underlies the prohibition on ‘unreasonable searches’ set forth in Article I, section 9.” Campbell, 306 Or at 171; accord State v. Wacker, 317 Or 419, 425, 856 P2d 1029 (1993) (quoting State v. Dixson / Digby, 307 Or 195, 211, 766 P2d 1015 (1988)). “One indication of whether a government action intrudes on a person’s privacy right is whether a private individual would offend social and legal norms of behavior by engaging in the same kind of intrusion.” State v. Portrey, 134 Or App 460, 464, 896 P2d 7 (1995).

Defendant argues that, because the transfer of the videotape’s content from Beta format to VHS format “disclosed to observation what was unobservable,” Coates’s actions constituted a search. We agree. If a private person had lawfully entered defendant’s home and taken affirmative steps to view an unlabeled videotape without the owner’s permission or knowledge, that conduct would obviously offend reasonable social norms. If state officials could do that whenever they wanted, we “the people” would lose a significant amount of our freedom from unwanted scrutiny. See, e.g., State v. Barnum, 136 Or App 167, 173, 902 P2d 95 (1995), rev den, 323 Or 336 (1996) (examination of a person’s private papers constitutes a search).⁴

Further, the videotape was not the kind of closed container that so “announces its contents” that opening it does not invade a protected privacy right and thus does not constitute a search. Owens, 302 Or at 206; State v. Kruchek, 156 Or App 617, 621-22, 969 P2d 386 (1998), aff'd, 331 Or 664, 20 P3d 180 (2001) (discussing “announced contents” principle). The Beta videotape did not announce its contents to Coates; there is no evidence that the videotape was marked or labeled in a way that indicated that it contained child pornography. Compare State v. Ready, 148 Or App 149, 156, 939 P2d 117, rev den, 326 Or 68 (1997) (videotape labeled “kid pom from Larry — movies then stills”).

The question before us, then, becomes whether viewing the videotape was an unlawful search, that is, one that was neither authorized by warrant nor justified under one of the exceptions to the warrant requirement. The only warrant in this case authorized police to search defendant’s apartment for evidence related to the marijuana crimes; police did not seek permission to search for evidence of child sex abuse, nor did the judge authorize a search for such evidence. The state concedes that, when the police viewed the videotape, that is the evidence for which they were looking. The search, then, exceeded the scope of the warrant. Again, Binner is instructive. In that case, defendant consented to have his blood tested for alcohol but not for other substances. Binner, 131 Or App at 679. The sample revealed no alcohol. Around two weeks later, however, a second test revealed the presence of THC. Id. We affirmed the trial court’s decision to suppress the results of the test for THC on the ground that, when he consented to the alcohol test, defendant did not necessarily also consent to the additional test, so a warrant or exception was necessary to justify it. Id. at 683. The same principle applies here. Just as consent carves away a limited portion of a person’s privacy right, so too does a warrant, and in both cases, the part of that right not voluntarily relinquished or involuntarily taken remains inviolate. As Judge Edmonds has observed,

“[a] lawful seizure does not necessarily authorize a search of the seized article for all purposes. The reason for the seizure may circumscribe the scope of the search, whether the seizure is based on probable cause to search, a search warrant or the consent of the possessor.”

Barnum, 136 Or App at 182 (Edmonds, J., concurring) (emphasis added). The warrant that police obtained in this case did not authorize viewing the videotape for the purpose of discovering child pornography.

Nor does any other exception to the warrant requirement apply. Although it is certainly arguable that the information Coates obtained on June 5, 2001, gave him probable cause to search the videotape, no exigent circumstances required the police to act quickly to forestall the destruction, disappearance, or dissipation of evidence, State v. Nagel, 320 Or 24, 33, 880 P2d 451 (1994), because the videotape was lawfully in police custody. Nor was the content of the videotape in plain view. We conclude that the trial court erred in denying defendant’s motion to suppress the content of the Beta videotape.

Reversed and remanded.

1 Defendant abandons his constitutional argument on appeal.

2 We need not decide whether the two offenses — possession of marijuana and encouraging child sexual abuse — even though contemporaneous, were part of the “same criminal episode.” See State v. Boyd, 271 Or 558, 565-66, 533 P2d 795 (1975) (charges arise out of same criminal episode if a complete account of one cannot be related without relating details of the other); Fore, 185 Or App at 715 (same).

3 Article I, section 9, provides:

“No law shall violate the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure; and no warrant shall issue but upon probable cause, supported by oath, or affirmation, and particularly describing the place to be searched, and the person or thing to be seized.”

4 Our conclusion does not imply that opening other data-containing items in different situations would necessarily be a search. A different social norm might apply to opening, for example, an unmarked notebook or photo album lying on a person’s coffee table.