State v. Miller

• Decision Date: 26 November 2004
• Docket Number: No. 20030680-CA.,20030680-CA.
• Citation: 104 P.3d 1272,2004 UT App 445
• Parties: STATE of Utah, Plaintiff and Appellee, v. Romie Henry MILLER III, Defendant and Appellant.
• Court: Utah Court of Appeals

104 P.3d 1272

2004 UT App 445

STATE of Utah, Plaintiff and Appellee, v. Romie Henry MILLER III, Defendant and Appellant.

No. 20030680-CA.

Court of Appeals of Utah.

November 26, 2004.

Rehearing Denied February 4, 2005.

Stephen D. Spencer, Day Shell & Liljenquist, Murray, for Appellant.

Mark L. Shurtleff, atty. gen., and Jeffrey S. Gray, asst. atty. gen., Salt Lake City, for Appellee.

Before Judges DAVIS, GREENWOOD, and JACKSON.

OPINION

GREENWOOD, Judge:

¶ 1 Defendant Romie Miller appeals his conviction on ten counts of sexual exploitation of a minor, second degree felony, in violation of Utah Code section 76-5a-3. See Utah Code Ann. § 76-5a-3 (2003).¹ Specifically, Defendant argues that (1) the trial court erred in finding that Defendant abandoned his briefcase and any expectation of privacy he may have had in it; (2) even if he abandoned the briefcase, the trial court erred in finding that Officer Smith's subsequent search of the briefcase did not exceed the scope of the search conducted by private persons and thus he did not have to first obtain a search warrant; and (3) the trial court abused its discretion in admitting evidence of Defendant's possession of adult pornography under rule 404(b) of the Utah Rules of Evidence. We affirm.

BACKGROUND

¶ 2 Defendant was a contract truck driver for C.R. England Trucking Company. On or about September 18, 2002, Defendant returned the truck he had been leasing from C.R. England and signed a lease on a new truck. On September 20, 2002, Brandon Harris, a C.R. England employee, retrieved a spare set of keys from the parts department and moved Defendant's returned truck to the garage to inspect it for mechanical and body damage, a normal procedure for returned lease trucks. While the truck was in the garage, Harris observed Defendant return to the truck and retrieve personal items from inside the truck. After returning from a fifteen-minute break and seeing that Defendant had left, Harris inspected the interior of the truck. Harris found a briefcase in front of the bed inside the sleeper portion of the truck. On the outside of the briefcase was a note which read "old bills." The briefcase also had latches with combination locks and tape wrapped around it. Harris opened the briefcase, trying to find some kind of identifying information.² Inside the briefcase, he discovered what he believed to be child pornography. Harris took the briefcase to his supervisor, Bob Batt, who thumbed through about one-third of the pictures. While reviewing the pictures, both Harris and Batt saw additional photos of what they believed was child pornography. Thereafter, they contacted Cari Johanson, a human resources manager. Johanson opened the briefcase and found a manila envelope with Defendant's name on it and a photo of Defendant inside. Johanson also reviewed some of the pictures inside the briefcase. After viewing what she believed to be child pornography, she closed the briefcase and called the police.³

¶ 3 Officer Christopher Smith of the West Valley City Police Department responded to the call from Johanson. Upon arrival, Officer Smith was given the briefcase and was told it contained child pornography. Officer Smith opened the briefcase and reviewed approximately one-quarter of the photographs. After viewing the materials in the briefcase, Officer Smith, with the help of C.R. England's satellite tracking system, located and arrested Defendant in his truck, not far from the company's offices. After arresting Defendant, Officer Smith told him they had his briefcase. Defendant acknowledged that the briefcase was his, but claimed it contained only adult pornography. At this point, Officer Smith read Defendant his Miranda rights. After the arrest, police conducted a search of Defendant's new truck and discovered additional pornographic materials.

¶ 4 Defendant was charged with ten counts of sexual exploitation of a minor. He was bound over for trial on all ten counts. On April 20, 2003, Defendant moved to suppress all evidence found inside the briefcase, as well as any evidence found during the search incident to his arrest. The trial court denied Defendant's motion. After a two-day trial, Defendant was convicted on all counts. He timely filed this appeal.

ISSUES AND STANDARDS OF REVIEW⁴

¶ 5 Defendant argues that the trial court erred by ruling that the search of Defendant's briefcase by Officer Smith did not exceed the scope of the private search conducted by C.R. England's employees. "We review the factual findings underlying the trial court's decision to grant or deny a motion to suppress evidence using a clearly erroneous standard." State v. Veteto, 2000 UT 62, ¶ 8, 6 P.3d 1133 (quotations and citations omitted). We review "conclusions of law based on these findings for correctness." Id.

¶ 6 Defendant also claims that the trial court erred by admitting evidence of adult pornography possessed by Defendant under rule 404(b) of the Utah Rules of Evidence. A trial court's decision to admit evidence of other crimes, wrongs, or bad acts under rule 404(b) will be reviewed under an abuse of discretion standard. See State v. Decorso, 1999 UT 57, ¶ 18, 993 P.2d 837

.

ANALYSIS

I. Police Search of the Briefcase

¶ 7 Defendant argues that while Officer Smith may have had reasonable suspicion to seize the briefcase, Officer Smith should have obtained a search warrant before opening and examining the contents of the briefcase. We disagree.

¶ 8 This case is factually similar to and governed by United States v. Jacobsen, 466 U.S. 109, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984). In Jacobsen, federal agents were called after Federal Express employees discovered what appeared to be cocaine during their examination of a damaged package. See id. at 111, 104 S.Ct. 1652. After calling law enforcement, the employees replaced the items in the package, but left the box unsealed. See id. When the first federal agent arrived, he saw that one end of the tube inside the package had been split open. He removed four plastic bags, and after testing the substance in the bags, confirmed that it was cocaine. See id. at 111-12, 104 S.Ct. 1652.

¶ 9 In upholding the agent's search, the Jacobsen Court first reaffirmed that the Fourth Amendment "is wholly inapplicable `to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the Government or with the participation or knowledge of any governmental official.'" Id. at 113, 104 S.Ct. 1652 (citation omitted). Also, the Court held that when the Federal Express employees opened and searched the package, the defendant's expectation of privacy was extinguished as to the contents discovered by the private actors. See id. at 115, 120, 104 S.Ct. 1652. Nonetheless, the Court still examined the search by the federal agents because "the Government may not exceed the scope of the private search unless it has the right to make an independent search." Id. at 116, 104 S.Ct. 1652. Ultimately, the Court concluded that the agents did not learn anything through their search that "had not previously been learned during the private search" and therefore, the agents did not infringe any legitimate expectation of privacy by searching the package. Id. at 120, 104 S.Ct. 1652.

¶ 10 In this case, as in Jacobsen, the C.R. England employees were private actors, and by opening the briefcase and viewing the materials inside, Defendant's expectation of privacy in the viewed materials was extinguished. See id. at 115, 120, 104 S.Ct. 1652. "Once frustration of the original expectation of privacy occurs, the Fourth Amendment does not prohibit governmental use of the now nonprivate information[.]" Id. at 117, 104 S.Ct. 1652. Therefore, we need to examine only whether Officer Smith's search of the briefcase exceeded the scope of the employees' search.

¶ 11 In arguing that Officer Smith exceeded the scope of the employees' search, Defendant attempts to distinguish the facts of this case from those in Jacobsen. Defendant first claims that in Jacobsen, the package was left open for all to see the contents and therefore, there was no danger that the agents would discover anything new by searching the package. In contrast, Defendant contends that in this case, because the employees did not search through all the materials in the briefcase, and did not leave it open for all to see inside, there was a greater risk that a police search would reveal contents beyond what was discovered in the employees' search. This argument is unpersuasive.

¶ 12 First, the Jacobsen Court specifically noted that "[i]t is not entirely clear that the powder was visible to [the agent] before he removed the tube from the box." Id. at 118, 104 S.Ct. 1652. Nonetheless, the Court made it clear that, in that case, it was irrelevant whether the contents of the package were visible. The Court stated:

Even if the white powder was not itself in "plain view" because it was still enclosed in so many containers and covered with papers, there was a virtual certainty that nothing else of significance was in the package and that a manual inspection of the tube and its contents would not tell him anything more than he already had been told.

Id. at 118-19, 104 S.Ct. 1652.

¶ 13 Here, at least three different employees opened and examined the contents of Defendant's briefcase. After concluding that the briefcase contained, among other things, child pornography, they closed the briefcase, but left it unsecured while waiting for police to arrive. Like in Jacobsen, there was little chance that the briefcase contained anything else of legal significance besides the illicit pornographic materials.

¶ 14 Defendant's argument that Officer Smith's search exceeded the scope of the employees' search also fails because it is factually unsupported in the record. Based on the testimony at the evidentiary hearing on Defendant's motion, the employees reviewed approximately one-third of the photos and...