State v. Howe
| Decision Date | 17 November 2009 |
| Docket Number | No. 2008–445.,2008–445. |
| Citation | 159 N.H. 366,986 A.2d 631 |
| Court | New Hampshire Supreme Court |
| Parties | The STATE of New Hampshire v. Christopher HOWE. |
Kelly A. Ayotte, attorney general (Thomas E. Bocian, assistant attorney general, on the brief and orally), for the State.
Pamela E. Phelan, public defender, of Manchester, on the brief and orally, for the defendant.
The defendant, Christopher Howe, was found guilty of six counts of possession of child pornography, see RSA 649–A:3, I(e) (2007) (amended 2009), following a jury trial in the Superior Court (Barry, J.). He appeals, arguing that the trial court erred by admitting certain evidence. We affirm.
The record supports the following. The defendant, Nathan and Jennifer Greenlaw, and Frank and Tammy Turner knew each other through the Granite State Dart League. In early June 2006, the Turners rented a bedroom in their apartment to the defendant for $50 a week. The defendant did not have access to the Turners' computer because it was password protected. When he wanted to use a computer, the defendant would visit the Greenlaws to use theirs. The Turners also had permission to use the Greenlaws' computer. Mr. Greenlaw acknowledged that he saw pop-up advertisements for pornographic websites when he used his computer, but denied ever visiting a pornographic website, printing material from a pornographic website, or downloading a pornographic image.
On June 23, 2006, Ms. Turner asked the defendant to leave because he had not paid any rent. She told him he had seven days to remove his belongings before she would throw them away. The defendant returned to the Turners' apartment twice between June 24, 2006, and June 26, 2006, to remove his belongings. He removed his clothing, television and a stereo, but left behind a bureau, bed and part of a computer stand. He then left for a vacation with the Greenlaws in Virginia. He did not contact the Turners again before leaving, and did not return to the Turners' apartment.
On July 4, 2006, Ms. Turner and her sister cleaned out the room the defendant had rented. In one of the bureaus the defendant left behind, they discovered CDs, memory cards, identification badges and a manila folder. The manila folder contained twenty-three images that appeared to have been generated by a computer printer. Two of the images depicted adult females, and the other twenty-one depicted female children in sexually provocative poses.
Ms. Turner called the police. The Manchester Police Department responded to the Turners' apartment and took the manila folder containing the pornography, the identification badges, some papers they found in the bureau and five CDs. Three of the CDs were not labeled, one was labeled "Babysitter" and another was labeled "PTCH Vicky." At the police station, Detective Richard Nanan inserted the CD entitled "PTCH Vicky" into his computer and found that it contained six video clips depicting children engaged in sexual activity.
On July 9, 2006, Detectives Nanan and Craig went to the Greenlaws' residence where the defendant had been staying and asked him to come to the police station to answer questions. He agreed. During the ensuing interview, the defendant admitted to police that he owned one CD titled "Babysitter" and another titled "Naughty America," but denied knowing anything about the pornographic images found in the manila folder. He told the officers he had used the Greenlaws' computer without their knowledge to download "Babysitter" and "Naughty America" from a file sharing website. The detectives returned to the Greenlaws' apartment and, with their permission, brought their computer back to the police station for analysis.
Detective Craig analyzed the Greenlaws' computer using a forensics tool kit, or FTK. This FTK report revealed that the Greenlaws' computer had been used to access child pornography websites such as "Exploited Teens." He also discovered several "graphic images" in temporary Internet files on the computer. Craig characterized some of the images as child erotica and others as child pornography. The images on the Greenlaws' computer contained the same type of images found in the manila folder and on the CDs from the Turners' apartment. He determined that all of the images and websites were accessed between June 2, 2006, and June 23, 2006.
The police also compared a fingerprint found on one of the images in the manila folder with those contained on a fingerprint card from the defendant's arrest in 2004. Two latent print examiners at the state forensics laboratory concluded that the print on the image matched the defendant's right index fingerprint from the fingerprint card. No fingerprints were found on the CDs.
At trial, a digital image expert testified that the images in the manila folder depicted real children. The State introduced more than thirty pages of the images found on the Greenlaws' computer.
Two of the six indictments with which the defendant was charged alleged possession of the photographs found in the manila folder. The remaining four indictments alleged possession of video files found on the CD labeled "PTCH Vicky." The defendant was convicted of all six counts of possession of child pornography. On appeal, he argues the trial court erred when it admitted: (1) the fruits of the search of the CDs; (2) the 2004 fingerprint card; and (3) the pornographic material obtained from the Greenlaws' computer.
Before trial, the defendant moved to suppress the CD labeled "PTCH Vicky," arguing it was obtained by an unreasonable search and seizure in violation of his right to privacy under Part I, Article 19 of the New Hampshire Constitution and the Fourth Amendment to the United States Constitution. Specifically, he argued that because he did not abandon his interest in the contents of the bureau, the police should have obtained a search warrant before viewing the contents of the CD. The State contended that the property had been abandoned because the defendant was given ample opportunity to remove his belongings and he did not do so. The trial court denied the motion to suppress because the defendant had no expectation of privacy in the bureau or its contents because he voluntarily abandoned the property.
We first address the defendant's claim under the State Constitution, and cite federal opinions for guidance only. State v. Ball, 124 N.H. 226, 231–33, 471 A.2d 347 (1983). Under Part I, Article 19 of the New Hampshire Constitution, a person has the "right to be secure from all unreasonable searches and seizures of his person, his houses, his papers, and all his possessions." State v. Westover, 140 N.H. 375, 379, 666 A.2d 1344 (1995) ; see also N.H. CONST. pt. I, art. 19. In determining whether a search or seizure was reasonable, we will analyze whether the person had a reasonable expectation of privacy in the evidence seized. See Katz v. United States, 389 U.S. 347, 353, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) ; State v. Goss, 150 N.H. 46, 48–49, 834 A.2d 316 (2003). In Goss, we adopted a two-part reasonable expectation of privacy analysis under Part I, Article 19. Goss, 150 N.H. at 49, 834 A.2d 316. First, a person must "have exhibited an actual (subjective) expectation of privacy," and, second, that expectation must "be one that society is prepared to recognize as ‘reasonable.’ " Id. Absent an invasion of the defendant's reasonable expectation of privacy, there has been no constitutional violation. Id.
"When a person abandons a possession ... he or she gives up the right to be secure from unreasonable searches of that possession." Westover, 140 N.H. at 380, 666 A.2d 1344; see also Abel v. United States, 362 U.S. 217, 241, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960). Abandonment is determined "based upon evidence of a combination of act and intent." Westover, 140 N.H. at 380, 666 A.2d 1344. Intent "is to be ascertained from what the actor said and did since intent, although subjective, is determined from objective facts at hand." Id. Also relevant are "where and for what length of time the property is relinquished and [its] condition." Id.
Whether property has been abandoned is generally a question of fact. Id. Therefore, we will uphold the fact finder's determination regarding abandonment unless it is clearly erroneous. Id. Our review of the trial court's legal conclusions, however, is de novo. State v. Sullivan, 157 N.H. 124, 129, 949 A.2d 140 (2008).
We cannot say the trial court's conclusion that the defendant abandoned the room and its contents was clearly erroneous. Ms. Turner told the defendant that he needed to move out and gave him one week to remove his belongings. He returned to the apartment twice within one week to remove his clothing, and several larger items such as a television and stereo. This demonstrates that the defendant knew he had only one week to remove his property and he was complying with Ms. Turner's order.
In addition, at no point during his second visit did he indicate to the Turners that he would be returning to take the remaining property. After returning to the Turners' apartment for the second time, the defendant had no further contact with them. He neither requested more time nor left a forwarding address at which the Turners could contact him regarding the rest of his belongings. Ms. Turner waited an additional five days beyond her original seven-day deadline before she began going through his things. The fact the defendant appeared to have lived elsewhere for approximately two weeks without them indicated that he did not need these items. The defendant's actions demonstrate a clear intent to abandon the bedroom, including the bureau and the CDs therein.
The defendant argues that he only temporarily abandoned his property, including the CD. See Westover, 140 N.H. at 380–81, 666 A.2d 1344. We disagree. The defendant left his belongings in the apartment for five days after the expiration of Ms. Turner's deadline; twelve days...
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