State v. Bailey

• Citation: 2010 ME 15,989 A.2d 716
• Decision Date: 04 March 2010
• Docket Number: Docket: Pen-09-152
• Parties: STATE of Maine v. Jack D. BAILEY II.
• Court: Supreme Judicial Court of Maine (US)

989 A.2d 716

2010 ME 15

STATE of Maine v. Jack D. BAILEY II.

Docket: Pen-09-152

Supreme Judicial Court of Maine.

Argued: November 10, 2009.

Decided: March 4, 2010.

F. David Walker IV, Esq. (orally), Rudman & Winchell, Bangor, ME, for Jack D. Bailey, II.

R. Christopher Almy, District Attorney, Susan J. Pope, Asst. Dist. Atty. (orally), Bangor, ME, for the State.

Panel: SAUFLEY, C.J., and ALEXANDER, LEVY, SILVER, MEAD, GORMAN, and JABAR, JJ.

GORMAN, J.

[¶ 1] Jack D. Bailey II appeals from a judgment of conviction of ten counts of gross sexual assault (Class A), 17-A M.R.S. § 253(1)(B) (2009); one count of sexual exploitation of a minor (Class B), 17 M.R.S.A. § 2922(1)(A) (Supp. 2003); and two counts of unlawful sexual contact (Class C), 17-A M.R.S. § 255-A(1)(E) (2009), 17-A M.R.S.A. § 255(1)(C) (Supp. 2002), entered in the Superior Court (Penobscot County, Anderson, J.) following a bench trial.¹ Bailey argues that the court erred in denying his motion to suppress the evidence obtained from his home because: (1) he did not affirmatively consent to the search of his computer; (2) to the extent he did consent to any search, his consent was the result of deception and is therefore void; and (3) the officer exceeded the scope of any consent given in violation of the Fourth Amendment.

[¶ 2] Because we conclude that the search of Bailey's computer violated the Fourth Amendment, we vacate the judgment of conviction and remand for further proceedings to determine whether the evidence obtained as a result of that search must be suppressed as fruits of the illegal search.

I. BACKGROUND

[¶ 3] Viewing the evidence in the light most favorable to the court's judgment, see State v. Connor, 2009 ME 91, ¶ 9, 977 A.2d 1003, 1005, the record supports the following facts.

[¶ 4] On January 18, 2008, the Maine State Police Computer Crimes Unit contacted Detective Brent Beaulieu at the Bangor Police Department regarding the dissemination of child pornography via a peer-to-peer networking program² from an internet protocol (IP) address in Maine. This IP address had connected to a peer-to-peer network on both July 12, 2007, and December 12, 2007, and shared at least one video file authorities knew contained child pornography because of its unique hash value.³ On both dates, the connections were identified by the same globally unique identifier (GUID), meaning that the same target computer used the same internet access point on both dates. The State Police ascertained through a subpoena of Time Warner RoadRunner that the IP address in question was assigned to a residential internet service subscriber in a Bangor neighborhood.

[¶ 5] Beaulieu obtained a search warrant for the residence and executed it on January 30, 2008. The officers did not discover either the target computer or any child pornography during the execution of the warrant; instead, they determined that the IP address sharing the files was associated with an unsecured wireless router located at that residence. In other words, someone within range of the router was using it to access a peer-to-peer network and disseminate the files in question. After the search, Beaulieu turned off the wireless router at the residence.

[¶ 6] On February 1, 2008, Beaulieu began canvassing neighborhood homes in range of the router in order to discover the target computer. In the course of his investigation, the detective knocked on Bailey's door. Beaulieu was in plain clothes and arrived in an unmarked car, but identified himself as a member of the police department. Beaulieu recorded the exchange with Bailey with a digital recording device in his pocket, without Bailey's knowledge.

[¶ 7] After Bailey allowed him into the apartment, Beaulieu stated that he was "checking the neighborhood, [because] there's been a problem in the neighborhood with people gaining access to someone else's computer and [he] just want[ed] to make sure that [Bailey didn't] have the same issue." Beaulieu asked if he could "look at [Bailey's computer] real quick just to make sure [Bailey didn't] have the same issue." Bailey led him to the computer and manipulated the keyboard to "wake up" the computer. Beaulieu then sat in front of the computer while Bailey stood behind him, observing what he was doing. Bailey asked several questions about what Beaulieu was looking for on his computer. Each time, Beaulieu responded that he was searching for a file that would indicate Bailey had an "issue," and explained that the "issue" was whether anyone had accessed Bailey's computer.

[¶ 8] The detective saw a LimeWire icon on the desktop of the computer, but was unable to match the GUID number on Bailey's computer to the GUID number of the target computer. Because he knew that a reinstallation would account for a different GUID number, Beaulieu asked Bailey if he had ever reinstalled the LimeWire software; Bailey said he had done so one or two months earlier. Bailey also told Beaulieu that he had been accessing the Internet through a wireless connection, and that the connection had stopped working two days earlier.

[¶ 9] Without further discussion, Beaulieu then searched the computer for video files containing child pornography by running a general search for a type of file called audiovisual interleave (AVI).⁴ Beaulieu accomplished this by typing the file extension ".avi" into the computer's search function. The search revealed four AVI files that appeared to contain child pornography; Beaulieu recognized them by the thumbnail screenshots and file names. Beaulieu did not open the files, or search the computer any further.⁵

[¶ 10] Beaulieu started to question Bailey about the AVI files. In response to those questions, Bailey acknowledged that he had a "problem" involving child pornography and then, at Beaulieu's request, orally consented to a search of his apartment; Bailey later signed a consent-to-search form. During the search, Beaulieu found seven eight-millimeter tapes, which Bailey allowed the detective to take. Bailey was not arrested at the end of the encounter.

[¶ 11] After reviewing the tapes, Beaulieu discovered that one of them contained a homemade video depicting two young girls talking to the camera operator named Jack; one of the girls repeatedly exposed herself to the camera. Beaulieu was later able to identify the two girls and determine that the video had been created in the attic of Bailey's former residence. One of the girls told Beaulieu that she had spent the night at Bailey's residence every other weekend for over a year, and that Bailey had sexual intercourse with her at each of those times. The other girl reported that Bailey had also touched her in a sexual manner. Both girls were under the age of fourteen at the time of these events.

[¶ 12] Bailey was arrested and a grand jury returned an indictment that charged him with ten counts of gross sexual assault (Class A), 17-A M.R.S. § 253(1)(B); one count of sexual exploitation of a minor (Class B), 17-A M.R.S. § 282(1)(A) (2009); and two counts of unlawful sexual contact (Class C), 17-A M.R.S. § 255-A(1)(E).

[¶ 13] Bailey moved to suppress all the evidence obtained as a result of the February 1, 2008, search of his computer and apartment on the same grounds as presented in this appeal. After a hearing, the court denied Bailey's motion. The court found that Bailey consented to the search of his computer through nonverbal conduct when he led Beaulieu to his computer and manipulated the keyboard to illuminate the screen. In determining whether Bailey's consent to search his computer was the result of deceit or trickery and therefore void, the court focused on the officer's initial representation and on the meaning of the word "issue." The court found that Beaulieu was intentionally ambiguous in his use of the word "issue,"⁶ and applied a subjective and objective analysis to determine the effect of the ambiguity:

[I]t is more likely than not that [Bailey] reasonably interpreted the detective's comments to mean he was checking to see if [Bailey] was accessing another person's wireless router. Subjectively, [Bailey] knew that he had been accessing his neighbor's wireless without permission, which makes it likely that he construed the detective's comments as referring to such activity. Objectively, anyone such as [Bailey], who did not have a wireless router and who was confronted by the "issue" of someone accessing another's computer, could only reasonably conclude that he was the one doing the accessing.

The court concluded that Bailey's consent to search his computer was valid because Bailey "knew it was probable he was being investigated for accessing his neighbor's wireless router without permission" when he consented, and therefore Beaulieu did not affirmatively misrepresent his purpose prior to procuring Bailey's consent.

[¶ 14] The suppression court did not make a specific finding as to the scope of Bailey's consent, but relied on its deception analysis to conclude that the detective's search of the computer did not exceed the scope of the consent that Bailey gave. Because the court found that the scope of his consent was not exceeded, it did not reach Bailey's fruits of the poisonous tree argument or his argument concerning the consensual search conducted after the alleged Fourth Amendment violation.

[¶ 15] During a jury-waived trial, the parties entered stipulations to the content but not the truth of the testimony of the two minors.⁷ In addition, a copy of the eight-millimeter film was admitted over Bailey's objection. After considering this evidence, as well as testimony from Beaulieu, the court found Bailey guilty on all thirteen counts. The court sentenced Bailey to twenty years in prison, suspended all but ten years, and imposed six years of probation. Bailey timely appealed pursuant to 15 M.R.S. § 2115 (2009) and M.R.App. P. 2.

II. DISCUSSION

A. Standard of Review

[¶ 16] "[W]e review the factual findings of the motion court...