People v. Prinzing

• Decision Date: 21 April 2009
• Docket Number: No. 2-07-0724.,2-07-0724.
• Citation: 907 N.E.2d 87
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Robert S. PRINZING, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

907 N.E.2d 87

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v.Robert S. PRINZING, Defendant-Appellant.

No. 2-07-0724.

Appellate Court of Illinois, Second District.

April 21, 2009.

Larry Wechter, Law Office of Larry Wechter, Geneva, IL, for Appellant.

John A. Barsanti, Kane County State's Atty., St. Charles, IL, Robert J. Biderman, David E. Mannchen, State's Attorneys Appellate Prosecutor, Springfield, IL, for Appellee.

Justice BOWMANdelivered the opinion of the court:

After a bench trial, defendant, Robert S. Prinzing, was convicted of possessing child pornography (720 ILCS 5/11-20.1(a)(6)(West 2004)) and sentenced to 30 months' probation.On appeal, he argues that the circuit court erred in denying his motion to suppress evidence, which maintained that the police illegally obtained his consent to search, through the use of trickery, deceit, or subterfuge.Defendant alternatively argues that, even if his consent was valid, the evidence should have been suppressed because the police exceeded the scope of his consent.We agree that the police exceeded the scope of the consent, and we reverse and remand.

I.BACKGROUND

On February 18, 2005, defendant was indicted for nine counts of possession of child pornography.The indictment alleged that on or about May 25, 2004, defendant knowingly possessed pornographic computer images of children whom he knew or reasonably should have known to be under the age of 18.

On February 4, 2005, defendant moved to quash the search and to suppress evidence that was obtained.In his motion, he stated that on October 29, 2003, Detective Keith Smith of the Kane County sheriff's department received information from a federal agent, Ronald Wolfick, regarding Kane County residents who had possibly purchased child pornography over the Internet.On November 18, 2003, Detective Smith was informed that defendant was one of those residents.On February 4, 2004, Detective Smith spoke to defendant's credit card company and was informed that there had been a disputed charge for his account number and that the account was closed and a new card was issued.He then obtained defendant's new credit card number and computer screen name.On May 25, 2004, Detective Smith and Detective Grimes¹ went to defendant's residence under the guise of interviewing him about "possible fraudulent charges made on his credit card."Defendant agreed to discuss that matter and provided his credit card number to Detective Smith.Detective Smith knew that the number matched one reported to have been used to subscribe to a particular Web site, and he asked defendant for permission to search his computer in regard to the fraudulent credit card charges.Defendant consented, and the officers inserted a forensic preview program into the computer and began searching for photographic images, not fraudulent credit card charges.Detective Smith then obtained oral and written statements from defendant and took the computer, which belonged to defendant's wife.

Defendant's motion further alleged that on May 26, 2004, Detective Smith asked defendant to pick up his wife's computer from the sheriff's office and conducted another interview with defendant, which was audiotaped.After the interview, Detective Smith turned over the computer to defendant.Defendant argued that his consent to the search was involuntary because of the officers' trickery, deceit, or subterfuge.He argued further that the officers illegally obtained oral and written statements from defendant and illegally seized defendant's computers, digital cameras, and compact discs.Defendant argued that, because the search of the computer violated defendant's fourth amendment rights, the physical evidence and the statements subsequently obtained should have been suppressed.

On March 3, 2005, the trial court held an evidentiary hearing on defendant's motion to suppress.Detective Smith testified as follows.He was employed with the Kane County sheriff's department and assigned to computer crimes and forensics.On October 29, 2003, he spoke with Ronald Wolfick, a special agent with Immigration and Customs Enforcement.Wolfick provided Detective Smith with information regarding online credit card purchases of child pornography and provided the credit card number used, which belonged to defendant.Detective Smith obtained a subpoena and contacted the bank that issued the credit card.The bank told Detective Smith that a fraudulent charge had been reported around the time that the card was used to purchase child pornography.The bank relayed that a new account number had been issued.On May 25, 2004, Detective Smith, along with Detective Grimes, went to defendant's residence at approximately 5 p.m. in an unmarked car.Detective Smith identified himself and stated that he was investigating fraud involving defendant's credit card.Detective Smith inquired "as to his card usage, the geographical area [in which]he might have used it, also if it was ever out of his control and through the course of the conversation trying to determine if he had lost control of that card where someone else could have acquired his credit card numbers."Defendant retrieved his credit card and gave it to Detective Smith.Detective Smith recognized the number as the one that had been used to purchase child pornography.Defendant told Detective Smith that he owned the credit card and maintained exclusive control over the card.Defendant stated that he used the card in the local area, when he went on trips, and occasionally for Internet purchases.Detective Smith asked defendant whether there had been any fraud reported on his credit card.Defendant stated that there had been an incident of fraud, his money was refunded, and he was issued a replacement card.

Detective Smith told defendant that if he used the card on the Internet, there was opportunity for others to steal his information.Detective Smith asked defendant if he still possessed the computer that he used to make Internet purchases.If there was any evidence of his system being compromised by unsafe Internet Web sites or a virus, it would likely be on the computer used to make Internet purchases.Defendant denied noticing any suspicious activity on his credit card.Defendant worked for Comcast and was very knowledgeable about computers, impressing Detective Smith.Defendant denied having any suspicion that the security on his computer had been compromised.Detective Smith testified that a virus could infect a computer when a person received a spam e-mail or visited a particular Web site embedded with the virus.He had an investigatory tool that allowed him to check for such viruses.

Detective Smith asked defendant if he could search his computer by using a special program, with the intent of trying to determine how his credit card information might have been stolen.Defendant consented.Defendant was present in the room when Detective Smith began the program, but he left the room several times.According to Detective Smith, he initially used a noninvasive tool to perform a "preview," which prevents any changes from happening to the computer when the system is turned off and on.The "preview" allows detectives to view the hard drive but prevents them from making any changes to any of its files.Normally, after the "preview" program, Detective Smith would use a program called "Image scan."The image scan looks for images related to Web pages to get a history of pages that the user has visited.The program brings up thumbnail images from Web pages.Depending upon what is found, he then would use a tool that would look for viruses or any key stroke loggers, which capture key strokes and send the information to a remote location.Detective Smith began the search of defendant's computer by using the image scan program.He was looking for thumbnails with the Visa logo, not for child pornography.Detective Smith testified that he did not inform defendant that he believed that his credit card information had been used to access child pornography Web sites, because "at this point [he] didn't feel that [defendant] still had been—was the offender.[Detective Smith] was curious as to how his information could have been compromised."He was concerned that defendant's credit card may have been compromised not once, but twice.Detective Smith explained that "when you visit a web site, if you go to make a purchase, you will see a Visa logo.That will be captured.Whatever the merchandise is being offered on that particular web page, it will have graphics that will show that."A Visa credit card number will not be captured.Detective Smith would have to click on the image to get to the vendor's Web site.

Detective Smith found several images that he suspected were child pornography.He found the images within 10 to 15 minutes after he began the scan.He denied that he was specifically looking for child pornography.Rather, he was looking for information related to defendant's credit card.He considered his investigation up to this point to be related to credit card fraud because there was evidence of only a few attempts to access the pornographic Web sites, whereas other investigations involved numerous attempts.He stopped the search and asked "for consent, asked [defendant] to grant another interview regarding the images that [he] had seen."Defendant agreed to speak to him again.Detective Smith testified:

"I explained to him that based on what he had told me that he had physical control of his credit card all the time and he had no reported compromises of his Internet service, was he familiar—I had some concern over the images and was he familiar with two particular web sites which I named for him."

Defendant believed that one of the named sites was one that he had previously subscribed to.The disputed charge on his credit card involved one of the sites.Defendant stated that he was relieved that this was "out" so that he...