C.B.D. v. State, CR-10-0640

• Decision Date: 04 October 2011
• Docket Number: CR-10-0640
• Parties: C.B.D. v. State of Alabama
• Court: Alabama Court of Criminal Appeals

C.B.D.

v.State of Alabama

CR-10-0640

ALABAMA COURT OF CRIMINAL APPEALS

OCTOBER TERM, 2010-2011

Dated: October 4, 2011

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter.

Appeal from Houston Juvenile Court

(JU-06-165.2 through JU-06-165.12)

KELLUM, Judge.

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 Sheriff's 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, three 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 e-mailed 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 notarrested 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 Sheriff's 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. Yeomans 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 testimony at the delinquency hearing regarding the contents of thewarrant 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 effectuatea 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., [Ms. CR-08-1245, October 9, 2009] ___ So. 3d ___,___(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 additionalinformation 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. Judge Mendheim said that, "for a computer pornography case," he would have generally required that the officer requesting the warrant state in the affidavit why he or she believed a particular computer contained child pornography and that he "wouldn't have issued the search warrant without that information." (R. 18-19.) Judge Mendheim also testified that he had signed numerous search warrants for Sgt. Rafferty and that Sgt. Rafferty "knows what he needs" in terms of probable cause before requesting a search warrant. (R. 19.)

Sgt. Rafferty testified that in February 2009, he was contacted by the Children's Advocacy Center ("CAC") regarding an interview, and he went to the CAC and spoke with a representative of the Houston County Department of Human Resources (" DHR"), as well as with C.B.D.'s father, B.D. Based on the information he received from the CAC³ and fromB.D., he prepared an affidavit and search warrant for the residence where C.B.D. was living, listing the specific address and lot number of C.B.D.'s residence and stating that he expected to find child pornography at the residence. Sgt. Rafferty specifically put in the affidavit the "[f]acts that we obtained in the investigation" (R. 37), including not only the information he had obtained from the CAC, but also information he had received from B.D. regarding B.D.'s interception of a text message on his stepson's, B.E.'s, cellular telephone from C.B.D. asking B.E. to take nude photographs of himself and his sisters. Although Sgt. Rafferty could not "remember word for word how the affidavit was typed up [,]" he testified that he remembered this case specifically because much of the information he received had come from C.B.D.'s father who had concerns about child-pornography issues with C.B.D. and, thus, he remembered "the basis of our grounds for the affidavit." (R. 34.)

Sgt. Rafferty said that in child-pornography cases, he generally lists in the affidavit and the search warrant the specific items to be searched for, including all electronic means of storing information, such as cellular telephones,computers, hard drives,...