Lee v. State

• Decision Date: 29 June 2006
• Docket Number: No. 45S05-0510-CR-454.,45S05-0510-CR-454.
• Citation: 849 N.E.2d 602
• Parties: David Jeffrey LEE Appellant (Defendant below), v. STATE of Indiana Appellee (Plaintiff below).
• Court: Indiana Supreme Court

Page 602

849 N.E.2d 602

David Jeffrey LEE Appellant (Defendant below), v. STATE of Indiana Appellee (Plaintiff below).

No. 45S05-0510-CR-454.

Supreme Court of Indiana.

June 29, 2006.

Benjamen W. Murphy, Merrillville, for Appellant.

Steve Carter, Attorney General, Cynthia L. Ploughe, Joby Jerrells, Deputy Attorney Generals, Indianapolis, for Appellee.

On Petition To Transfer from the Indiana Court of Appeals, No. 45A05-0405-CR-267

BOEHM, Justice.

Facts and Procedural History

In the spring of 2003, David Lee and his fiancée, Melissa Koczur, lived in a house in Highland, Indiana, owned by David's mother, Margaret Lee. David operated a photography studio in the basement of their home. On May 10, 2003, Melissa went to the basement to get some fertilizer and noticed five videocassette recorders in an open Gateway shipping box. Several unlabeled VHS tapes were in or near the box. Melissa viewed two or three of the tapes on a tele-television next to the box and found that they all showed the same woman changing clothing from different camera angles. She then realized the tapes had been recorded in the photography studio's changing room and on investigation found two hidden cameras in the room.

Melissa took sixteen tapes, including those she had viewed, to the Highland police station. She told Sergeant Michael O'Donnell and Detective Tim Towasnicki that she and David lived in the house, that David operated a photography studio from the home, and that she had found videotapes in the basement of the home that David had secretly recorded of women undressing in his studio's changing room. O'Donnell and Towasnicki viewed several tapes randomly selected from the sixteen. They ran a check of David's driver's license which revealed an outstanding arrest warrant in another county.

Melissa agreed to accompany Towasnicki, O'Donnell, and two other officers to the residence where David was arrested on the outstanding warrant. After David was taken to the police station, Melissa executed a written consent to a warrantless search of the residence for "video equipment and electronic devices/computer disks located at basement studio and surrounding area(s) to include main floor area(s)."¹ Melissa then took O'Donnell and Towasnicki to the basement and showed them the Gateway box, the VCRs, the television, and the two hidden cameras she found in the changing room. At that point, she told them that David's mother owned the house. The officers immediately stopped the search, contacted Margaret, and waited for Margaret to arrive. The search was resumed after they secured Margaret's consent.

After three additional hidden cameras were found in the changing room, the officers seized all five cameras, as well as the five recorders, and 369 VHS tapes found in three ground floor bedrooms. These included both unlabeled tapes and commercially produced tapes labeled with titles such as "Girls Gone Wild." While the officers conducted their search, Melissa burned CD copies of files from David's computer consisting of still photographs of his clients. These were also given to the officers.

David was charged with thirty-six counts of Class D felony voyeurism. The trial court denied his motion to suppress the sixteen videotapes Melissa brought to the police station and the 369 tapes the officers subsequently retrieved from the home. On interlocutory appeal, the Court of Appeals affirmed as to the tapes brought to the station and reversed as to the tapes taken from the home. Lee v. State, 826 N.E.2d 131, 136 (Ind.Ct.App. 2005). We granted transfer. Lee v. State, 841 N.E.2d 186 (Ind.2005).

I. Fourth Amendment Challenge

David concedes that the police could lawfully seize the sixteen tapes Melissa brought to the police station. He nonetheless argues that the Federal Constitution required police to secure a search warrant before viewing tapes other than the two or three tapes Melissa had previously watched. David raises a separate challenge to the seizure and viewing of the 369 tapes the police found in their search of the residence.

A. Viewing of Tapes Supplied by Melissa

David claims that he had a protected privacy interest in the content of the sixteen tapes that Melissa delivered to the police, that the screening of the tapes constituted a government search, and that none of the exceptions to the warrant requirement are applicable. David cites the Supreme Court's decisions in Walter v. United States, 447 U.S. 649, 100 S.Ct. 2395, 65 L.Ed.2d 410 (1980) and United States v. Jacobsen, 466 U.S. 109, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984) which make clear that the Fourth Amendment is violated by a government inspection that exceeds the scope of a prior search by a private individual who discovers evidence.

In Walter, a securely sealed package shipped to a fictitious addressee was mistakenly delivered to another party whose employees opened the package and found individual 8mm film boxes covered with suggestive drawings and explicit descriptions of the films. 477 U.S. at 651-52, 106 S.Ct. 2734. An employee opened one or two of the boxes and unsuccessfully attempted to view portions of the film by holding it up to light. Id. at 652, 106 S.Ct. 2734. The films were subsequently viewed by FBI agents on a projector, leading to the indictment of a husband and wife on federal obscenity charges. Id. A plurality of the Court held that the agents' unauthorized screening of the films was an unlawful search. Id. at 654, 660, 106 S.Ct. 2734. Justice Stevens, joined by Justice Stewart, held that the private party's actions had only partially frustrated the sender's expectation of privacy, that the FBI's unauthorized screening of the films constituted an additional search that went beyond the scope of the private search, and that the Fourth Amendment had been violated by the warrantless search in the absence of exigent circumstances or prior consent. Id. at 657-59, 106 S.Ct. 2734.

In Jacobsen, a Federal Express employee opened a damaged package and found several plastic bags the innermost containing white powder inside a closed 10-inch tube wrapped in several pieces of crumpled newspaper. 466 U.S. at 111, 104 S.Ct. 1652. A federal drug agent was summoned, but before his arrival the bags had been put back into the tube and the tube and newspapers back into the box. Apparently, when the agent examined the box, the powder was not visible until he removed the tube from the box. Id. After the agent reopened the package, he subjected a small quantity of the white powder to a field test that identified it as cocaine. Id. at 111-12, 104 S.Ct. 1652. The removal of the plastic bags from the tube and the agent's visual inspection of their contents did not exceed the scope of the earlier private search and enabled the agent to learn nothing that the Federal Express employee had not previously learned. The Court held that the government therefore infringed no legitimate expectation of privacy, and the inspection did not violate the Fourth Amendment. Id. at 120, 104 S.Ct. 1652. The Court further held that the chemical test, which merely established that the already revealed white substance was cocaine, did not compromise any legitimate privacy interest. Id. at 123, 104 S.Ct. 1652.

David argues that the Walter-Jacobsen line of authority required the officers to obtain a search warrant before playing the tapes Melissa had not already viewed. Specifically, he contends that Melissa viewed only two or three videotapes in the basement of the couple's home and therefore the officers' viewing of other tapes at the station exceeded the scope of Melissa's private search. Warrantless searches based on lawful consent are not unreasonable. Illinois v. Rodriguez, 497 U.S. 177, 179, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990); Schneckloth v. Bustamonte, 412 U.S. 218, 222, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). The private parties in Walter and Jacobsen—recipients of misdirected packages and a common carrier— had no authority to consent to the searches undertaken by government officials. Therefore, the police could go as far, but no further than those private parties had gone. Walter and Jacobsen cast no doubt upon the proposition that police, without first securing a warrant, may examine materials received from a private party well beyond any examination the private party may have undertaken when the private party has lawfully consented to the examination. See 1 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 1.8(b), p. 236 (3d ed.1995).

Applying this principle here, we conclude that Walter and Jacobsen are unavailing. In those cases police conducted a search of personal property under circumstances where no consent was applicable. In Walter, the sender had a reasonable expectation that the contents of the package would remain hidden from view from all but the intended recipient. The employees of the party who received the misdirected package in error were not the intended recipient, and therefore had no actual or apparent authority over the package. In Jacobsen, the sender likewise had a recognized privacy interest in the package and had entrusted it to a common carrier for the limited purpose of shipping the package to its intended recipient. Although the common carrier had authority over the package for the limited purpose of shipping it, the common carrier did not have access to the contents of the package. Because neither consent nor any other exception to the warrant requirement was applicable, the Court in Walter and Jacobsen determined that police examination of property previously examined by the private parties was limited to the scope of the private examination.

By contrast, in the present case, an exception to the warrant requirement—consent—is applicable. David had a cognizable privacy interest in the tapes because they were his personal effects contained in his home, where expectations of privacy are greatest. However, unlike the third parties in W...