Sparks v. State

• Citation: 100 N.E.3d 715
• Decision Date: 18 April 2018
• Docket Number: Court of Appeals Case No. 49A05–1710–CR–2218
• Parties: Daniel SPARKS, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff
• Court: Court of Appeals of Indiana

100 N.E.3d 715

Daniel SPARKS, Appellant–Defendant,

v.STATE of Indiana, Appellee–Plaintiff

Court of Appeals Case No. 49A05–1710–CR–2218

Court of Appeals of Indiana.

FILED April 18, 2018

Attorney for Appellant: Valerie K. Boots, Marion County Public Defender Agency, Indianapolis, Indiana

Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, Justin F. Roebel, Supervising Deputy Attorney General, Indianapolis, Indiana

Vaidik, Chief Judge.

Case Summary

[1] Lindsey Badanek's home was burglarized while she was at work and, among other things, her employer-issued iPad was taken. She suspected that her ex-boyfriend, Daniel Sparks, had something to do with it. She called the police, but no further action was taken at the time. Later that night, Lindsey logged into Sparks's Facebook account using a password that he had previously given her. She found an audio recording where Sparks was discussing an iPad owned by Eli Lilly that was going to get "pinged," yelling at a woman for her husband "veering" off the list, and threatening to "bang[ ] him on top" for doing so. Lindsey called the police again, and a video was made of her playing the recording from Sparks's Facebook account. A search warrant was issued, and the iPad was found at Sparks's home. Sparks was convicted of burglary, and he now appeals, arguing that the federal Wiretap Act was violated.

[2] Federal courts have uniformly concluded that the Wiretap Act covers only "contemporaneous" interceptions of wire, electronic, or oral communications, which are understood as the acquisition of communications in transit—rather than the acquisition of communications in storage. Here, it is undisputed that Lindsey discovered on Sparks's Facebook account a recording of a conversation that had already taken place. Finding no violation of the federal Wiretap Act or error in any of the other issues that Sparks raises, we affirm the trial court.

Facts and Procedural History

[3] Lindsey and Sparks started dating in 2012 and had three children together. They lived on Depot Drive in Indianapolis. In March 2016, Lindsey asked Sparks to move out of the house. She and the children stayed in the house.

[4] On April 20, Lindsey, who worked at a credit union inside Lilly Corporate Center, returned home from work around 5:30 p.m. Upon returning home, she noticed that her employer-issued iPad was not where she had left it that morning. When Lindsey went to her bedroom to look for it, she discovered that additional items were missing: her collection of Nike Air Max shoes, a laptop, a hard drive containing family pictures, a ring, and a North Face jacket. Lindsey thought it was "odd" that the items missing were "personal" to her. Tr. Vol. II p. 96. Lindsey noted that other electronics were not taken from her house, including another tablet that was right next to her iPad, televisions, and her daughter's hoverboard. Lindsey immediately suspected that Sparks "had something to do with it" and called 911. Id. at 97. Indianapolis Metropolitan Police Department Officer Michael Hodge responded. Lindsey told Officer Hodge that she suspected Sparks was involved. Officer Hodge made a report.

[5] Later that night, Lindsey logged into Sparks's Facebook account using a password that he had previously given her. She wanted to see if Sparks was "talking about breaking into [her] house."Id. at 100. Lindsey found an audio recording in his Facebook messages. See Ex. 2. Lindsey recognized Sparks's voice on the recording. Sparks was angrily yelling at a woman about her "husband":

Let me tell you something about that iPad. When you turn that bit** on, Eli Lilly owns that iPad. That iPad is going to get pinged off. Guess who is going to get popped with it. I told that stupid mother fu**er ... not to veer off the goddamn list. I told him if he veered off the list, he's going to get fu**ed up. When I catch your husband, I'm banging him on top for disrespecting me and for going against what the fu** I told him.... [G]o find him and tell him how serious this mother fu**ing situation is.

Id. Lindsey called the police again, and two officers responded, Officer Erik Stevenson and Sergeant Charles Wheeler. Lindsey played the recording for them. A video was then made of Lindsey playing the recording from Sparks's Facebook account. Lindsey looked "further into [Sparks's] Facebook account" and found a "message"¹ from Sparks to William Bingaman sent "right after that recording" indicating that Sparks was angry with Bingaman. Tr. Vol. II p. 103. Lindsey gave this information to Sergeant Wheeler. Also, Sergeant Wheeler learned that Sparks was on GPS monitoring through Marion County Community Corrections and was home when Lindsey's house was burglarized.

[6] Sergeant Wheeler prepared an affidavit in order to seek a search warrant for Sparks's home, and a magistrate issued a search warrant in the early-morning hours of April 21. See Suppression Ex. 2. During the execution of the search warrant, police found an iPad, which was later determined to be Lindsey's employer-issued iPad.

[7] The State charged Sparks with Class A misdemeanor theft and Level 4 felony burglary. Before trial, Sparks filed a motion to suppress the video of Lindsey playing the recording from Sparks's Facebook account and the iPad found in his home. After a hearing, the trial court denied Sparks's motion. A jury trial was then held. At trial, Bingaman testified that he broke into Lindsey's house and took the items at Sparks's direction.² Sparks told Bingaman to take Lindsey's shoes and clothing but not to take anything that belonged to the children. Sparks said that he wanted to get back at Lindsey because she had kicked him out and thrown away his things. Bingaman agreed to help Sparks because he needed money to buy drugs. According to Bingaman, he gave the iPad to Sparks and sold the other items. The jury found Sparks guilty as charged. The trial court entered judgment of conviction for burglary only and sentenced him to six years with two years suspended.

[8] Sparks now appeals.

Discussion and Decision

I. Facebook Recording

[9] Sparks first contends that the trial court erred in admitting Exhibit 2—the video of Lindsey playing the recording from Sparks's Facebook account. Sparks argues that "[Lindsey] and/or the police" violated the federal Wiretap Act, 18 U.S.C. § 2511, and the Indiana Wiretap Act, Ind. Code art. 35–33.5, "by intercepting part of a telephone call made by Sparks without authorization." Appellant's Br. p. 13. But Sparks did not make claims under these statutes in the trial court. Rather, in his motion to suppress, in his supporting brief, and at the hearing, Sparks claimed only that his rights pursuant to the Fourth Amendment of the United States Constitution and Article 1, Section 11 of the Indiana Constitution were violated because Lindsey was a "government actor." See Appellant's App. Vol. II pp. 91, 95–100; Tr. Vol. II p. 5. Objecting at trial on one ground and raising another ground on appeal usually results in waiver of the issue. See Houser v. State , 823 N.E.2d 693, 698 (Ind. 2005). Here, however, the State points out waiver only with regard to Sparks's claim under the Indiana Wiretap Act.³ Therefore, we will address Sparks's challenge to Exhibit 2 under the federal Wiretap Act.

[10] The federal Wiretap Act makes it unlawful to "intentionally intercept[ ], endeavor[ ] to intercept, or procure[ ] any other person to intercept or endeavor to intercept[ ] any wire, oral, or electronic communication." 18 U.S.C. § 2511(1)(a). The federal Wiretap Act also prohibits the intentional "disclos[ure]" or "use[ ]" of the contents of an unlawfully intercepted wire, oral, or electronic communication. Id. § 2511(1)(c), (d). "[I]ntercept" is defined as "the aural or other acquisition of the contents of any wire, electronic, or oral communication." Id. § 2510(4). "Whenever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial ...." Id. § 2515.⁴

[11] The State argues that the federal Wiretap Act does not apply here. It asserts that the Act only applies to "contemporaneous" interceptions of communications and highlights that here, Lindsey discovered on Sparks's Facebook page a recording of a conversation that had already taken place. The federal Wiretap Act does not explicitly require that the acquisition of a communication occur contemporaneously with its transmission. 2 Wayne R. LaFave et al., Criminal Procedure , § 4.6(b) (4th ed. 2017). Nonetheless, federal courts have uniformly concluded that the Wiretap Act covers only "contemporaneous" interceptions of communications, which are understood as the acquisition of communications in transit—rather than the acquisition of communications in storage, which are addressed by the Stored Communications Act.⁵ See Epstein v. Epstein , 843 F.3d 1147, 1149–50 (7th Cir. 2016) (collecting cases but not reaching issue), reh'g denied , cert. denied ; Luis v. Zang , 833 F.3d 619, 628 (6th Cir. 2016) ("All of the circuit courts that have considered the issue ... have concluded ... that the acquisition of a communication must be contemporaneous with its transmission in order for an ‘intercept’ to occur."), reh'g denied ; Theofel v. Farey–Jones , 359 F.3d 1066, 1077–78 (9th Cir. 2004) ("[T]he Act applies only to acquisition contemporaneous with transmission." (quotation omitted) ); Fraser v. Nationwide Mut. Ins. Co. , 352 F.3d 107, 113–14 (3d Cir. 2003) (adopting "the reasoning of our sister circuits" who have held that interception can only occur contemporaneously with transmission); United States v. Steiger , 318 F.3d 1039, 1048–49 (11th Cir. 2003) ("[A] contemporaneous interception—i.e., an acquisition during ‘flight’—is required to implicate the Wiretap Act with respect to electronic communications."); see also LaFave, § 4(b) (explaining that courts have concluded that the acquisition of a...