Burnett v. State

• Decision Date: 16 May 2003
• Docket Number: No. 2D01-5527.,2D01-5527.
• Parties: Jon Paul BURNETT, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

848 So.2d 1170

Jon Paul BURNETT, Appellant, v. STATE of Florida, Appellee.

No. 2D01-5527.

District Court of Appeal of Florida, Second District.

May 16, 2003.

Rehearing Denied July 2, 2003.

Michael P. McDaniel of C. Ray McDaniel, P.A., Bartow, for appellant.

Charles J. Crist, Jr., Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for appellee.

CASANUEVA, Judge.

Jon Paul Burnett was convicted of two counts of lewd or lascivious conduct¹ and over one hundred counts of possession of child pornography.² The child pornography charges stemmed from law enforcement's seizure of his computer and numerous diskettes in his bedroom. We affirm his convictions for lewd or lascivious conduct, but because the affidavit in support of the search warrant was fatally defective, we reverse the convictions for possession of child pornography and remand for resentencing.

Facts

This case began when the father of two boys, ages nine and twelve, contacted a Polk County Sheriff's Office detective with his concern that Mr. Burnett had engaged in inappropriate behavior with his children. The father related his suspicion that Mr. Burnett videotaped his children while they were not wearing any clothing. In a subsequent interview the children told the detective that Mr. Burnett had asked them to remove their clothes and wrap themselves in clear plastic wrap so that he could videotape a temporary tattoo on their buttocks. Additionally, he asked them to place clear plastic wrap on the toilet, then to use the toilet and deliver the plastic wrap to him, and to place quarters in their rectums and shake them out. The children denied that any videotaping actually occurred.

Armed with this information, detectives then contacted Mr. Burnett, who drove to a sheriff's office substation for an interview. There he advised the deputies that he had videotaped the boys but that he had either discarded or recorded over the tape. Upon discovering that Mr. Burnett rented a bedroom from his parents at their residence, the detectives obtained his consent to search his room. Among the targets of their search were the video camera and any videotape of the boys. During the search, Mr. Burnett showed the deputies the camera, demonstrated how it worked, but stated that the tape was not in the camera. Noticing that the camera had no power, a deputy plugged it in, hit the play mode, and watched a videotape that matched the father's allegations. Both the video camera and tape were seized as evidence and the room was searched. Nothing else was seized.

The following day one of the detectives applied for a warrant to search the entire residence. Among the matters set out in the affidavit were the following:

(1) Your affiant is a duly appointed law enforcement official employed by the Polk County Sheriff's Office. Your affiant is currently a detective assigned to the Bureau of Criminal Investigations in the Sexual Abuse And Family Exploitation Unit. Your affiant has been employed for over three years at the Polk County Sheriff's Office. I have been assigned to the S.A.F.E. Unit for approximately one year. My duties are to investigate any activity involving sex crimes, child abuse, and family exploitation in Polk County, Florida. Your affiant has received specialized training in investigating sex crimes, specifically the Institute of Police Technology and Management course focusing on sexually exploited children and juvenile victims of sexual abuse. This affiant attended the Polk County conference on Sexual Abuse that specialized in recognizing victims of sexual abuse and interviewing them. Your affiant has received specialized training in child injury and death investigations as well as a course on interview and interrogations and search warrant preparations. Your affiant has conducted over two hundred investigations involving crimes against children and has made over thirty arrests as a direct result of these investigations. Your affiant has previously either written or assisted in the execution of four search warrants.

* * * *

(7) Based on my expertise and training, people involved in child pornography (as in this case video taping a juvenile's genitals and buttocks) commonly are involved with receiving or transmitting like images of children engaged in sexual performances on their computer. It is not unusual for a suspect to retain images on their computer even when they are under suspicion of committing crimes against children. Furthermore, the majority of people utilizing computers are unable to erase these images from their hard drive. These images can be retrieved during forensic analysis even after an attempt has been made to erase the images. Consequently, I believe there are images related to children involved in sexual performances and/or child pornography as defined in F.S.S. 827.071 still contained on the computer located at the place to be searched. Your affiant also believes due to the suspect's untruthful statements on whether he kept pornographic images on tape (which I viewed), it is believed other child pornographic images may be stored on numerous video tapes located in the suspect's bedroom, the place to be searched.

Based upon this affidavit a judge issued the warrant, and deputies seized Mr. Burnett's computer and numerous diskettes. Mr. Burnett's motion to suppress based upon lack of probable cause in the warrant was denied.

Among the evidence introduced at trial was the testimony of a computer forensics expert, Mr. Gates, who testified that, upon his technical examination using specialized software, the seized diskettes revealed that they at one time had held images, but all of the pictures had been deleted or erased. Mr. Gates's examination could not ascertain when or by whom the images had been deleted. Furthermore, Mr. Gates recovered no images—deleted or otherwise—from the hard drive of Mr. Burnett's computer. However, Mr. Burnett possessed a computer diskette for a program called Paint Shop Pro that can be used to view and manipulate images, and Mr. Gates discovered that someone at some unspecified time had used this program to view at least two pornographic images on Mr. Burnett's computer.

To counter this circumstantial evidence that he possessed child pornography, Mr. Burnett adduced testimony from a friend who was present when Mr. Burnett received a package through an e-Bay auction containing diskettes that he had not specifically ordered. Mr. Burnett's theory of innocence was that he did not know what was on the diskettes when they arrived, that he had never viewed the images on them, and that someone else could have deleted the images before the diskettes ever came into his possession. Similarly, Mr. Burnett attacked the charges stemming from the images viewed through the Paint Shop Pro program on the ground that there was no evidence demonstrating that he actually viewed or manipulated the recovered images.

Although we have misgivings about the sufficiency of the evidence to sustain the possession of child pornography charges, we do not need to reach that issue. On this appeal we reverse the finding that the detectives had probable cause to search for and to seize Mr. Burnett's computer and the diskettes. Consequently, we reverse the convictions on 136 counts of possession of child pornography that flowed from the illegal seizure of those items.

Analysis

The Fourth Amendment to the United States Constitution recognizes the right of the people to be protected from the government's unreasonable searches and seizures and mandates that no search warrant shall issue "but upon probable cause, supported by oath or affirmation...." U.S. Const. amend. IV. The Constitution of the State of Florida similarly protects against unreasonable searches and seizures by the government: "No warrant shall be issued except upon probable cause, supported by affidavit...." Art. I, § 12, Fla. Const. To further these constitutional imperatives, our legislature has decreed:

No warrant shall be issued for the search of any private dwelling under any of the conditions hereinabove mentioned except on sworn proof by affidavit of some creditable witness that he or she has reason to believe that one of said conditions exists, which affidavit shall set forth the facts on which such reason for belief is based.

§ 933.18(10), Fla. Stat. (1999). In implementing these constitutional mandates,

[t]he task of the issuing magistrate is simply to make a practical, commonsense decision whether given all the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.

Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). Thus, the affidavit in the warrant application must satisfy two elements: first, that a particular person has committed a crime— the commission element, and, second, that evidence relevant to the probable criminality is likely located at the place to be searched—the nexus element. United States v. Vigeant, 176 F.3d 565, 569 (1st Cir.1999). As stated in Gates, wholly conclusory statements fail to meet the probable cause requirement; the reviewing magistrate cannot abdicate his or her duty and become a mere ratifier of the bare...