State Of Idaho v. Aschinger

• Decision Date: 11 May 2010
• Docket Number: No. 35677,35684.,35677
• Citation: 149 Idaho 53,232 P.3d 831
• Court: Idaho Court of Appeals
• Parties: STATE of Idaho, Plaintiff-Respondent,v.Vincent ASCHINGER, Defendant-Appellant.

149 Idaho 53

232 P.3d 831

STATE of Idaho, Plaintiff-Respondent,v.Vincent ASCHINGER, Defendant-Appellant.

Nos. 35677, 35684.

Court of Appeals of Idaho.

Dec. 28, 2009.

Review Denied May 11, 2010.

Molly J. Huskey, State Appellate Public Defender; Sarah E. Tompkins, Deputy Appellate Public Defender, Boise, for appellant.

Hon. Lawrence G. Wasden, Attorney General; Jessica M. Lorello, Deputy Attorney General, Boise, for respondent.

GRATTON, Judge.

Vincent Patrick Aschinger, in these consolidated appeals, claims that the district court erred in denying his motion to suppress information obtained from a computer search and that his sentences are excessive. We affirm.

I.FACTS AND PROCEDURAL BACKGROUND

Aschinger was charged with lewd conduct with a minor, Idaho Code § 18-1508, and ultimately entered an Alford ¹ plea to an amended charge of felony injury to child, I.C. § 18-1501(1). The district court imposed a unified sentence of ten years with five years determinate. Aschinger was separately charged with video voyeurism, I.C. § 18-6609. The following facts are drawn from the evidence presented at the suppression hearing.

Aschinger and his former wife (Ms. Aschinger) owned a laptop computer during the time that Aschinger was being investigated on charges of lewd conduct. Aschinger purchased the computer for school while he and Ms. Aschinger were still married. Aschinger used the computer to store digital pictures taken of his and Ms. Aschinger's children. Aschinger downloaded the pictures through his user account. There were three user accounts on the computer, KID, KNA, and VPA. Ms. Aschinger testified that she had “free access” to the files on the computer. The Aschinger's children also had access to the computer as well as guests.

Approximately four months after Aschinger was charged with lewd conduct, and while he was incarcerated on that charge, Ms. Aschinger, while looking for pictures of their children on the computer, discovered several inappropriate pictures, including pictures of S.P. in her bathing suit as well as pornographic pictures of individuals she did not recognize. This discovery prompted her to take the computer to the police. Ms. Aschinger told Detective Dave Beck, one of the investigating officers, that the computer was her computer, but that both she and Aschinger had access to it. While at the police station, Ms. Aschinger turned on the computer and showed Detective Beck the pictures she had discovered of S.P. in her bathing suit with the focal point being on her genital area, breasts, and buttocks. Ms. Aschinger left the computer with Detective Beck and gave him permission to search it. Officer Mark Brantl conducted a search of the computer and, in addition to pornographic pictures and the pictures of S.P. in her bathing suit, found a movie file that depicted S.P. unclothed, changing into the same bathing suit. There were also still images made from the movie file. All of these files were located within the VPA user account. Based upon the evidence gathered during the search, Aschinger was charged with video voyeurism.

Aschinger filed a motion to suppress, which was denied. Aschinger entered a conditional guilty plea, reserving his right to appeal the denial of the motion to suppress. The district court imposed a determinate sentence of three years and ordered that it be served concurrently with the sentence in the consolidated lewd conduct case. Both sentences were ordered to run consecutively with a sentence imposed in an unrelated Latah County case. Aschinger now appeals.

II.ANALYSIS

Aschinger contends that the district court erred in denying the motion to suppress. Aschinger argues that the files obtained from the computer were his personal files and that Ms. Aschinger did not have actual or apparent authority to consent to a police search of such files. He further asserts that the police search exceeded the scope of Ms. Aschinger's private search. In addition, Aschinger claims that the district court abused its discretion by imposing excessive sentences.

The standard of review of a suppression motion is bifurcated. When a decision on a motion to suppress is challenged, we accept the trial court's findings of fact that are supported by substantial evidence, but we freely review the application of constitutional principles to the facts as found. State v. Atkinson, 128 Idaho 559, 561, 916 P.2d 1284, 1286 (Ct.App.1996). At a suppression hearing, the power to assess the credibility of witnesses, resolve factual conflicts, weigh evidence, and draw factual inferences is vested in the trial court. State v. Valdez-Molina, 127 Idaho 102, 106, 897 P.2d 993, 997 (1995); State v. Schevers, 132 Idaho 786, 789, 979 P.2d 659, 662 (Ct.App.1999).

Aschinger first challenges the district court's determination that Aschinger did not have a reasonable expectation of privacy in the computer, which determination he argues was based upon an erroneous factual finding that the computer was in a “public space” and a misplaced reliance on United States v. Barrows, 481 F.3d 1246 (10th Cir.2007). Barrows, as the district court recognized, addressed whether an employee had a reasonable expectation of privacy in a personal computer that was brought to work for work-related use and left in a public area without any password protection. Id. at 1248-49. Aschinger contends that the district court made an erroneous factual finding in stating:

In this case, the defendant voluntarily moved his personal computer into a public space and took no measures to protect its contents from public inspection. Consequently, he did not enjoy a reasonable expectation of privacy, and in the officers' search there were no Fourth Amendment violations.

A careful reading of the context surrounding this statement, however, reveals that the district court was still referring to the facts in Barrows, not the facts in Aschinger's case. The district court prefaced its remarks by noting that Barrows was not “specifically on point,” as it dealt with “the expectation of privacy question.” The court then gave a brief recitation of the facts of the case, including the above-quoted reference, and stated:

Now, I realize that's not exactly on point, but I think it does make reference to some of the facts that have been provided here in terms of this computer, which, again, was part of the household and does not appear that there was any really substantial effort that had been undertaken to somehow necessarily preserve the privacy of any particular user account.

Therefore, Aschinger's contention that the district court made a factual finding that the computer was in a “public space” to support a determination that Aschinger did not have a reasonable expectation of privacy in the computer is belied by the record.

A. Third Party Consent and Authority

Aschinger's primary contention on appeal is that Ms. Aschinger did not have actual or apparent authority to consent to a search of Aschinger's private computer files and documents contained within his personal user account. While Aschinger acknowledges that Ms. Aschinger had overall access to the computer's hard drive, he argues that she did not have joint access to or control over personal information stored exclusively on Mr. Aschinger's user account. Thus, Aschinger contends that the search of the computer exceeded the scope of Ms. Aschinger's authority in violation of the Fourth Amendment of the United States Constitution.

The Fourth Amendment protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Fourth Amendment rights are implicated when police search things or places in which the defendant has a reasonable expectation of privacy. Minnesota v. Olson, 495 U.S. 91, 95-96, 110 S.Ct. 1684, 1687-88, 109 L.Ed.2d 85, 92-93 (1990); Oliver v. United States, 466 U.S. 170, 177, 104 S.Ct. 1735, 1740-41, 80 L.Ed.2d 214, 223 (1984); State v. Dominguez, 137 Idaho 681, 683, 52 P.3d 325, 327 (Ct.App.2002). Warrantless searches are per se unreasonable unless they come within one of the well-delineated exceptions to the warrant requirement. Coolidge v. New Hampshire, 403 U.S. 443, 454-455, 91 S.Ct. 2022, 2031-32, 29 L.Ed.2d 564, 575-76 (1971); Dominguez, 137 Idaho at 683, 52 P.3d at 327. The State has the burden of showing that a warrantless search fell within one of these recognized exceptions to the warrant requirement or was otherwise reasonable under the circumstances. State v. Reynolds, 146 Idaho 466, 470, 197 P.3d 327, 331 (Ct.App.2008). One such exception is voluntary consent to the search. Schneckloth v. Bustamonte, 412 U.S. 218, 222, 93 S.Ct. 2041, 2045, 36 L.Ed.2d 854, 859-60 (1973); State v. Stewart, 145 Idaho 641, 644, 181 P.3d 1249, 1252 (Ct.App.2008). The burden of proving that consent was voluntarily given rather than the result of duress or coercion, direct or implied, is on the State. Schneckloth, 412 U.S. at 222, 93 S.Ct. at 2045, 36 L.Ed.2d at 859-60; Bumper v. North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 1791-92, 20 L.Ed.2d 797, 802 (1968). The voluntariness of consent is evaluated in light of all the circumstances. Schneckloth, 412 U.S. at 227, 93 S.Ct. at 2047-48, 36 L.Ed.2d at 862-63; State v. Huskey, 106 Idaho 91, 94, 675 P.2d 351, 354 (Ct.App.1984). Consent may be expressed through words, gestures, or other conduct. State v. Fleenor, 133 Idaho 552, 555, 989 P.2d 784, 787 (Ct.App.1999). The consent need not be obtained from the defendant; it may be acquired from a third party with sufficient authority over the premises or item searched. United States v. Matlock, 415 U.S. 164, 171, 94 S.Ct. 988, 993, 39 L.Ed.2d 242, 249-50 (1974); Dominguez, 137 Idaho at 683, 52 P.3d at 327.

As an initial matter, we note that Aschinger does not argue that Ms. Aschinger's consent was not voluntarily given. Indeed, the record is devoid of any evidence of duress or coercion. Ms. Aschinger, upon discovering inappropriate pictures on the...