Allen v. State, No. CR-07-1063 (Ala. Crim. App. 5/1/2009)

• Decision Date: 01 May 2009
• Docket Number: No. CR-07-1063.,CR-07-1063.
• Parties: Joseph Michael Allen v. State of Alabama
• Court: Alabama Court of Criminal Appeals

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Joseph Michael Allen v. State of Alabama

No. CR-07-1063.

Court of Criminal Appeals of Alabama.

Decided May 1, 2009.

Appeal from Sumter Circuit Court (CC-07-09).

KELLUM, Judge.¹

The appellant, Joseph Michael Allen, was convicted of one count of production of obscene matter containing a visual depiction of a person under 17 years of age, in violation of § 13A-12-197, Code of Alabama 1975. Allen was sentenced to 10 years' imprisonment. That sentence was split, and he was ordered to serve 24 months.

The evidence presented by the State established the following. On December 10, 2006, the minor daughter of Joseph Allen came across a video on her parents' computer, which was in their bedroom, showing her friend, B.M.,² who was 15 years old at the time, naked in her father's shower. The daughter telephoned B.M. to tell her about the discovery, at which time B.M. and her father came to the Allen house to view the video on the Allen's computer. Upon viewing the video, B.M.'s father telephoned the Sumter County Sheriff's Department to report the incident. Allen's daughter allowed Deputy Sammy Upchurch and Sgt. Tommy Lewis to come inside the house to view the video. After watching the video, the officers told the daughter to telephone her father and ask him to return home.

The officers waited at the Allen house until Allen and his wife returned. Deputy Upchurch explained to Allen what they had found. Allen informed the officers that the computer on which the video was found was his wife's computer, so they asked for her permission to search the residence and to seize any evidence they deemed appropriate. She complied, and the officers seized the computer and other accessories. On March 13, 2007, the Sumter County grand jury indicted Allen for one count of production of obscene matter containing a visual depiction of a person under 17 years of age, in violation of § 13A-12-197, Code of Alabama 1975.

On November 27, 2007, the day of Allen's trial, the trial court held a hearing to determine whether the evidence found in Allen's house should be suppressed. Deputy Upchurch testified that he responded to the dispatch but that he did not know why he was being sent to the Allen household. Upon arrival, Upchurch found the daughter, who was 17 years old at the time, waiting outside. Upchurch testified that "[the daughter] invited me into the residence, said there was something I needed to see." (R. 23.) Upchurch said that he did not threaten or coerce the daughter to be allowed to come inside. After inviting Deputy Upchurch and Sgt. Lewis inside, the daughter played for them the video file stored on her parents' computer. After watching the video, Sgt. Lewis asked the daughter to telephone her father. Sgt. Lewis spoke with Allen and informed him that he needed to return to his house because law-enforcement officers needed to speak with him about something they found on his computer.

When Allen returned home, Deputy Upchurch informed him that Allen might have something criminal on his computer and explained what the officers had found. Deputy Upchurch testified that Allen offered no explanation for the video. When asked about the computer, Allen stated that the computer was his wife's computer. Lewis then asked Mrs. Allen for consent to seize the computer and she consented. Mrs. Allen, Deputy Upchurch, and Sgt. Lewis all testified that the officers did not threaten Mrs. Allen and she freely consented to the search. The officers watched the video again before seizing the computer, monitor, keyboard, digital camera, and the digital-camera docking station along with several compact discs and albums of photographs.

The daughter also testified at the suppression hearing. She testified that she never invited the officers to come inside, but instead said that one of the deputies asked her if they could come inside the house to which she replied, "yes." She testified that the officers did not ask to go back into the bedroom, but once they were in the bedroom, one of the officers asked her to play the video for them. The daughter also testified that she was not threatened or coerced into giving her consent to enter the house but freely consented to the request.

Without explanation, the trial court denied Allen's motion to suppress. Allen proceeded to trial where he was convicted on the one count of production of obscene matter containing a visual depiction of a person under 17 years of age, as charged in the indictment. Allen appealed.

I.

Allen first challenges the trial court's denial of his motion to suppress on the grounds that his Fourth Amendment rights were violated when police conducted a warrantless search of his house. Allen argues that his 17-year-old daughter could not provide third-party consent to search his house. In support of this argument, Allen contends that his daughter did not consent to the search, that as a minor, she lacked the ability and capacity to consent to the search, and that, assuming she did consent and had the authority and capacity to provide third-party consent, she could not consent to a search of his bedroom specifically.

"`This Court reviews de novo a circuit court's decision on a motion to suppress evidence when the facts are not in dispute.'³ See, State v. Hill, 690 So. 2d 1201, 1203 (Ala. 1996); State v. Otwell, 733 So. 3d 950, 952 (Ala. Crim. App. 1999)." State v. Davis, [Ms. CR-06-2073 September 26, 2008] ___ So. 3d ___, ___ (Ala. Crim. App. 2008). This court "must make all reasonable inferences and credibility choices in support of the trial court's ruling." Allen v. State, 689 So. 2d 212, 216 (Ala. Crim. App. 1995). The trial court's decision concerning conflicting evidence given at a suppression hearing is binding upon this Court and will not be disturbed "unless it is palpably contrary to the weight of the evidence." State v. Smith, 715 So. 2d 925, 927-28 (Ala. Crim App. 1998). "In reviewing a trial court's ruling on a motion to suppress, this Court may consider the evidence adduced both at the suppression hearing and at the trial." Smith v. State, 797 So. 2d 503, 526 (Ala. Crim. App. 2000), quoting Henry v. State, 468 So. 2d 896, 899 (Ala. Crim. App. 1984), cert. denied, 468 So. 2d 902 (Ala. 1985).

"All evidence obtained by a search that is conducted in violation of the Constitution of the United States is inadmissible in a state court. Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961); Loyd v. State, 279 Ala, 447, 186 So. 2d 731 (1966). The Fourth Amendment to the Constitution of the United States bans all unreasonable searches. Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). Whether a search is unreasonable depends upon the facts and circumstances of the particular case. Sibron v. New York, 392 U.S. 40, 88 S. Ct. 1889, 20 L. Ed. 2d 917 (1968). Warrantless searches are per se unreasonable unless they fall within a recognized exception. Ex parte Hilley, 484 So. 2d 485 (Ala. 1985). Those exceptions include: objects in plain view, consensual searches, a search incident to a lawful arrest, hot pursuit or emergency situations, probable cause coupled with exigent circumstances, and a Terry `stop and frisk' situation. Daniels v. State, 290 Ala. 316, 276 So. 2d 441 (1973). Where a search is executed without a warrant, the burden falls upon the State to show that the search falls within an exception. Kinard v. State, 335 So. 2d 924 (Ala. 1976)."

Ex parte Tucker, 667 So. 2d 1339, 1343 (Ala. 1995).

It is well settled that "consent to search may be given by a third party who possesses common authority over the premises or personal effects sought to be searched." Maples v. State, 758 So. 2d 1, 25 (Ala. Crim. App.), aff'd, 758 So. 2d 81 (Ala. 1999). "The authority which justifies the third-party consent rests on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched." United States v. Matlock, 415 U.S. 164, 171 n.7 (1974). "`The burden of establishing th[e] common authority [necessary for a valid consent] rests upon the State' and may be met by proof of either actual or apparent authority." Smiley v. State, 606 So. 2d 213, 215 (Ala. Crim. App. 1992), quoting Illinois v. Rodriguez, 497 U.S. 177, 181 (1990).

The record indicates that the trial court did not offer any explanation for its decision to deny Allen's motion to suppress. Thus, we do not know whether the trial court based its decision upon its belief that the officers were invited into the house by the daughter or whether it believed she properly consented to the officer's request to enter the house to see the video. Although we recognize that the trial court is in a better position than is this Court to determine the credibility of witnesses testifying at a suppression hearing, see, Atwell v. State, 594 So. 2d 202, 212 (Ala. Crim. App. 1991), cert. denied, 594 So. 2d 214 (Ala. 1992), we deem it prudent to address the question of whether the daughter, a minor in this State, had the capacity and ability to provide valid third-party consent to a warrantless search of her parents' house.

The issue whether a minor child can provide valid third-party consent to a police request to search the house of the minor child's parents when no parent is present is an issue of first impression in this State.⁴ After surveying the caselaw in this country regarding this issue, we conclude that Alabama should join those states that hold that a minor can provide valid third-party consent to a request to conduct a warrantless search of a parent's house.⁵

In determining which factors a trial court must consider when deciding whether a minor could have provided valid third-party consent to a request to conduct a warrantless...