Moyer v. Com., Record No. 2959-97-2.
| Citation | 30 Va. App. 744,520 S.E.2d 371 |
| Decision Date | 26 October 1999 |
| Docket Number | Record No. 2959-97-2. |
| Court | Court of Appeals of Virginia |
| Parties | Gregory Allen MOYER v. COMMONWEALTH of Virginia. |
W. Reilly Marchant (Thorsen, Marchant & Scher L.L.P., on briefs), Richmond, for appellant.
Donald E. Jeffrey, III, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.
Present: BENTON, COLEMAN and ELDER, JJ.
Gregory A. Moyer was convicted on fourteen counts of taking indecent liberties with a minor. See Code § 18.2-370.1. On appeal, Moyer claims the police seized his personal journals in violation of the Fourth Amendment of the Constitution of the United States and that the trial judge entered into evidence excerpts of those journals in violation of the Fourth and Fifth Amendments. He also argues that the trial judge erred in finding that buttocks are "sexual parts" as that term is used in Code § 18.2-370.1 and that the evidence was insufficient to support the convictions. We agree that Moyer's Fourth and Fifth Amendment rights were violated, and we reverse his convictions and remand to the circuit court for retrial.
Gregory A. Moyer was an eighth grade physical science teacher at the Fork Union Military Academy. He also was a barracks supervisor, which required him to live in an apartment located within a barracks where a number of middle school cadets resided. Moyer was the Academy's sponsor of the Boy Scouts chapter and of the extracurricular paintball organization — "a group of boys who go out into the woods and shoot each other with paintballs."
In 1997, local and state police were advised by Academy officials that several of the school's cadets may have been sexually abused by Moyer. Specifically, school officials told the police that they had observed in Moyer's apartment a number of photographs showing cadets wearing no clothing. The police were also told that Moyer had an unusually close relationship with several current cadets and one former cadet and that these relationships were "unusual." Based on this information, the police conducted an investigation and obtained a warrant to search Moyer's apartment. The warrant authorized the police to search for the following:
Deputy Hogsten and Trooper Watson executed the search warrant while Moyer was being interviewed elsewhere by police in conjunction with the investigation. After Academy officials admitted the officers into Moyer's apartment, Hogsten saw a number of Moyer's diaries and scanned through each diary, looking for "something either involving sexual preferences or acts with certain people." Each diary had numerous entries written by hand and some contained photographs of naked cadets. If a diary contained an "explicit" photograph, Hogsten marked the diary and handed it to Watson. If no photograph was immediately apparent in a diary, Hogsten "would just go through the book and ... scan some of the photographs [to] see if [he] could find anything that was in the warrant [they] were looking for." After reviewing all of the diaries, the officers seized fourteen of them, leaving behind only two or three.
The seized diaries were taken to the police station and delivered to Deputy Craig, who, over the next two to three weeks, read every page of the fourteen diaries, photocopied pages he believed to be pertinent, and decided which pages were to be used as evidence. Craig also delivered a number of the diaries to the local Department of Social Services, where employees read them seeking information of possible child abuse.
A grand jury indicted Moyer on sixteen counts of taking indecent liberties with two minors. Prior to trial, Moyer moved to suppress the excerpts taken from his diaries, arguing that his diaries were seized in violation of the Fourth Amendment's prohibition against general warrants. He further argued that admission of the excerpts would violate his Fourth and Fifth Amendment right against self-incrimination. The trial judge denied the motion and permitted the Commonwealth to enter into evidence excerpts from the diaries. At the conclusion of the trial, the trial judge convicted Moyer of fourteen of the charges. This appeal followed.
In relevant part, the Fifth Amendment provides that "[n]o person . . . shall be compelled in any criminal case to be a witness against himself." In Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886), the United States Supreme Court held unconstitutional, under the Fourth and Fifth Amendments, a subpoena duces tecum ordering Boyd to produce an invoice which established his guilt for nonpayment of a duty tax. The Court explained that it was "unable to perceive that the seizure of a man's private books and papers to be used in evidence against him is substantially different from compelling him to be a witness against himself." Id. at 633, 6 S.Ct. 524. Thus, the Court held "that a compulsory production of the private books and papers of the [accused] ... is compelling him to be a witness against himself, within the meaning of the Fifth Amendment to the Constitution, and is the equivalent of a search and seizure — and an unreasonable search and seizure — within the meaning of the Fourth Amendment." Id. at 634-35, 6 S.Ct. 524 Not even a warrant supported by probable cause could mask the "`unreasonable' character of such seizures" and legitimize the use of those seized documents at trial. Id. at 633, 6 S.Ct. 524.
Following this landmark decision, the Court has refined the scope of Boyd's Fifth Amendment holding. In Couch v. United States, 409 U.S. 322, 324, 93 S.Ct. 611, 34 L.Ed.2d 548 (1973), the Court decided the "question ... whether the taxpayer may invoke her Fifth Amendment privilege against compulsory self-incrimination to prevent the production of her business and tax records in the possession of her accountant." The Court held that when an individual surrenders his or her business records to the possession of a third party, and the government subpoenas the third party to produce the records, the individual has no expectation of privacy in the records and the Fifth Amendment does not bar their production. See id. at 329-30, 93 S.Ct. 611. Significantly, the Court noted that Boyd concerned an accused who possessed his own private papers and "did not address or contemplate the divergence of ownership and possession." Id. at 330, 93 S.Ct. 611.
96 S.Ct. 1569. See also Shapiro v. United States, 335 U.S. 1, 16-18, 68 S.Ct. 1375, 92 L.Ed. 1787 (1948) ().
As in Couch, the taxpayer in Fisher did not possess the documents — a third party, the taxpayer's attorney, did. Thus, the Court's "holding is that compelled production of documents from an attorney does not implicate whatever Fifth Amendment privilege the taxpayer might have enjoyed from being compelled to produce them himself." Fisher, 425 U.S. at 402, 96 S.Ct. 1569. Furthermore, the documents that were subpoenaed in Fisher were documents prepared by the taxpayer's accountant, not the taxpayer. Accordingly, the Court said, "Nile do hold that compliance with a summons directing the taxpayer to produce the accountant's documents involved in these cases would involve no incriminating testimony within the protection of the Fifth Amendment." 425 U.S. at 414, 96 S.Ct. 1569 (emphasis added).
After its decision in Fisher, the Court held "that the search of an individual's office for business records, their seizure, and subsequent introduction into evidence do[es] not offend the Fifth Amendment's proscription." Andresen v. Maryland, 427 U.S. 463, 477, 96 S.Ct. 2737, 49 L.Ed.2d 627 (1976). In so holding, the Court specifically noted "that permitting the introduction into evidence of a person's business records seized during an otherwise lawful search would [not] offend or undermine any of the policies undergirding the privilege." Id. at 475-76, 96 S.Ct. 2737. Significantly, however, the Court "recognize[d], of course, that the Fifth Amendment protects privacy to some extent." Id. at 477, 96 S.Ct. 2737. Indeed, the Court noted that the Fifth Amendment promotes the following societal values:
"The privilege against self-incrimination... reflects many of our fundamental values and most noble aspirations: our unwillingness to subject those suspected of crime to the cruel trilemma of self-accusation, perjury or contempt; our preference for an accusatorial rather than an inquisitorial system of criminal justice; our fear that self-incriminating statements will be elicited by inhumane treatment and abuses; our sense of fair play which dictates `a fair...
To continue reading
Request your trial
-
Moyer v. Com.
...violated appellant's Fourth and Fifth Amendment rights, reversed his convictions, and remanded for retrial. See Moyer v. Commonwealth, 30 Va. App. 744, 520 S.E.2d 371 (1999). We granted the Commonwealth's petition for rehearing en banc and stayed the mandate of that decision. Upon rehearing......