State v. Lacey
| Decision Date | 04 March 2009 |
| Docket Number | No. DA 07-0648.,DA 07-0648. |
| Citation | 349 Mont. 371,2009 MT 62,204 P.3d 1192 |
| Parties | STATE of Montana, Plaintiff and Appellee, v. Daniel LACEY, Defendant and Appellant. |
| Court | Montana Supreme Court |
Dennis Paxinos, Yellowstone County Attorney, Ann-Marie McKittrick, Deputy County Attorney, Billings, Montana.
¶ 1 Daniel Gerard Lacey (Lacey) appeals the denial of his motion to suppress and conviction on four counts of felony sexual intercourse without consent and two counts of felony sexual assault in the Thirteenth Judicial District Court. We affirm.
¶ 2 In February 2005, Lacey and his then-girlfriend Carla Dozier (Dozier) moved into a house on Rimrock Road in Billings, Montana. Dozier had three children from previous relationships who lived with her and Lacey. Only Dozier's name appeared on the lease agreement for the house. Lacey owned a laptop computer which was routinely kept in a makeshift office in the house. This office was also used to store children's books, movies, and various other items. The office was accessible to all members of the house. Although the children were not allowed to use the laptop, Dozier would occasionally access the laptop in order to send email, watch videos, and store personal photographs. On some occasions, the laptop was located on a desk in the office. At other times, Lacey would store the laptop in a closed case, or take the laptop with him while he was away on business.
¶ 3 On March 14, 2005, the laptop was on a desk in the office, plugged in and ready for use. Lacey was not in the house. Dozier accessed the laptop to search for evidence that Lacey was being unfaithful to her. During an extended file search of the computer, Dozier located sexually explicit images involving children. Among the images were pictures showing Lacey sexually abusing her six year-old daughter. Dozier testified that she was shocked and horrified to see these images. In reaction, she quickly deleted one of the images. After doing so, Dozier realized that she was deleting evidence that something had happened to her daughter, so she called Lacey to help her retrieve the image. Dozier did not tell Lacey what was contained in the image, telling him instead that the deleted image depicted the two of them together. With Lacey's verbal assistance, she was able to retrieve the deleted image. During this phone conversation, Lacey never instructed Dozier to stop using the laptop.
¶ 4 After the initial conversation, Dozier and Lacey spoke by phone again throughout the day. During one of these conversations, Dozier told Lacey about the exact nature of the images she found on the laptop. Sometime thereafter, Lacey came to the house, and Dozier confronted him again about the images and physically assaulted him. Lacey left the house in his car. After Lacey left the house, Dozier reported the evidence she discovered to the Billings Police Department. Officer Wanda Spaulding (Officer Spaulding) of the Billings Police Department responded to the dispatch at approximately 5:30 p.m. When she arrived at the house, Dozier told Officer Spaulding that she had discovered several images of Lacey sexually abusing her minor daughter. Dozier led Officer Spaulding to the laptop computer which was still located in the office. The laptop was sitting on the desk and was not locked or otherwise stored away.
¶ 5 Officer Spaulding took several photographs of the office and the laptop. Dozier told Officer Spaulding that the laptop belonged to Lacey; she also indicated that Lacey had never prevented or prohibited her from using it. Officer Spaulding then had Dozier fill out a consent-to-search form, listing the laptop computer as one of the items to be searched. After the form was completed and signed by Dozier and Officer Spaulding, Officer Spaulding seized the laptop. At no time prior to or after seizing the laptop did Officer Spaulding personally view or search the images on the laptop, relying instead on Dozier's statements. Officer Spaulding also did not search any other areas of the house at that time, but did seize some CDs, DVDs, and associated computer equipment which was also in the office.
¶ 6 While Officer Spaulding was still at the house with Dozier, Lacey called. Officer Spaulding spoke directly to Lacey, identifying herself and stating that he was not to return to the house or call. Lacey appeared to understand the gravity of the situation because he told Officer Spaulding that he knew what he did was wrong.
¶ 7 At the time he called, Lacey was not under arrest, nor had a warrant for his arrest been issued. Concerned for his mental stability and knowing that Lacey was by himself in his car, Officer Spaulding asked Lacey if he needed to talk to somebody or wished to be taken to the emergency room at Deaconess Hospital in Billings. Lacey said that he did not need this assistance, and told Officer Spaulding that he had spoken to his father, who lived in California, as well as an attorney and would be talking to his father again soon. At no time during this conversation did Officer Spaulding ask for Lacey's consent to search or seize the laptop, and at no time did Lacey indicate that he objected to its search or seizure. Lacey later indicated that he believed this was a moot point at the time, since the laptop had already been seized, and he had been instructed not to return to the house and told that he could obtain his belongings with the assistance of the police at a later date. Officer Spaulding subsequently brought the laptop to the Billings Police Department, tagged it into evidence, and wrote a report of the incident which was turned over to detectives for further investigation.
¶ 8 During March 2005, Lieutenant Mark Cady (Lieutenant Cady) was a sergeant and supervisor of the investigations division at the Billings Police Department. Lacey was a close personal friend of Lieutenant Cady's adult daughter Brooke, and had been to Lieutenant Cady's house on numerous occasions over a five or six year period. Lacey himself later testified that he considered Lieutenant Cady to be like a father figure to him. On the morning of March 15, 2005, Lieutenant Cady read Officer Spaulding's report and recognized that Lacey was involved. Lieutenant Cady also realized that the report contained information which needed to be assigned to a detective for further investigation. Lieutenant Cady spoke to his supervisor about the matter, and the case was assigned to Detective Michael Beckers (Detective Beckers). At the time, Lieutenant Cady told his supervisor that Lacey was a personal friend of his and that he did not want to be involved in the investigation of the case. After the case was assigned to Detective Beckers, Lieutenant Cady called Agent Dan Vierthaler (Agent Vierthaler) of the Federal Bureau of Investigation (FBI), who served with a unit that specifically worked on sex crimes involving the use of computers, videos and the Internet, in order to inform him of the case. As it turned out, Agent Vierthaler had learned of the report about Lacey from other members of the Billings Police Department the night before, and had already made arrangements to interview Dozier and her minor daughter on the morning of March 15, 2005.
¶ 9 Agent Vierthaler and Detective Beckers went to Dozier's house on that morning as part of a joint investigation, and interviewed Dozier and her daughter. During the interview, Dozier indicated to the officers that she, Lacey, and her children had access to all areas of the house and that none of the areas were restricted solely to Lacey. She also indicated that while the seized laptop belonged to Lacey, Lacey did not place restrictions on her ability to use it. At the time of this interview, the laptop was in police custody and had not yet been searched by any of the officers. After the interview with Dozier, Agent Vierthaler and Detective Beckers had Dozier sign a consent-to-search form for the house. Pursuant to this consent, the officers searched the entire house, including an attached garage. At no point did they encounter locked doors or containers, or find any room which appeared to be restricted solely to Lacey. By the time the officers reached the garage, it was late in the day. Because Dozier and Lacey had recently moved into the house, the garage contained a number of boxes, containers, and other items scattered about. Dozier testified that all family members had access to the garage, and that none of the boxes were private only to Lacey. In his testimony, Lacey claimed that one side of the garage was strictly reserved for his belongings which were in boxes and containers that he believed were privately his. At any rate, the garage was filled with a large amount of boxes and containers, and in order to conduct a search of the material, Agent Vierthaler and Detective Beckers called three additional detectives to assist them in the search.
¶ 10 The detectives and Agent Vierthaler took numerous photographs of the materials they uncovered during the course of their search of the house and the garage, and the search turned up numerous items which were seized. These included a number of videotapes, and computer removable media such as floppy diskettes, CDs, and USB devices. The officers also discovered sex toys and sex devices. These latter items were of particular interest because Dozier had reported that some of these items were depicted in the pictures showing Lacey abusing her daughter. All of these materials were seized and reviewed by the detectives and Agent Vierthaler at a later time.
¶ 11 While the officers were conducting their search,...
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