State v. Oliver

• Decision Date: 04 August 2009
• Docket Number: No. SC 89888.,SC 89888.
• Citation: 293 S.W.3d 437
• Parties: STATE of Missouri, Respondent, v. Robert M. OLIVER, Appellant.
• Court: Missouri Supreme Court

293 S.W.3d 437

STATE of Missouri, Respondent, v. Robert M. OLIVER, Appellant.

No. SC 89888.

Supreme Court of Missouri, En Banc.

August 4, 2009.

Nancy A. McKerrow, Office of Public Defender, Columbia, MO, for Appellant.

Chris Koster, Attorney General, Jamie P. Rasmussen, Assistant Attorney General, Jefferson City, MO, for Respondent.

WILLIAM RAY PRICE, JR., Judge.

A mother of two children, ages five and eight, filed a child abuse report, alleging that Robert Oliver had taken photographs of her children without their clothes and had displayed these photographs to the children on a computer. In response to this report, the police and a division of family services (DFS) investigator went to Oliver's home. Oliver let the officers inside his home, but refused to allow them to take the computer and digital camera. After Oliver left the residence, the police obtained his wife's consent to search the office and seized the computer, digital camera and camera card, and several disks. A warrant was obtained two weeks later to search these items, which recovered several photographs of the children and files downloaded from the internet containing adult and child pornography. Oliver was charged with sexual exploitation of a minor and promoting child pornography, and the photographs and internet images were admitted as evidence at trial. The jury convicted Oliver of two counts of sexual exploitation of a minor pursuant to section 573.023¹ and two counts of promoting child pornography in the first degree pursuant to section 573.025.²

Oliver appeals, arguing the trial court erred in overruling the motion to suppress the computer, camera, and camera card and the information retrieved from these items. Oliver claims that his wife's consent to search the office and seize the items was invalid because of his prior objection; therefore, the seizure of the items violated his rights under the 4th and 14th Amendment and article I, section 15 of the Missouri Constitution. Further, he argues that any information recovered from these items was also inadmissible because the warrant application relied on information obtained from the prior illegal seizure. He also argues that there was insufficient evidence to support the convictions of sexual exploitation of a minor and promoting child pornography in the first degree. This Court granted transfer. Mo. Const. art. V, sec. 10.

The judgment is affirmed. The trial court did not err in overruling the motion to suppress because, even assuming the search was constitutionally invalid,³ these items were admissible evidence pursuant to the inevitable discovery doctrine. The photographs and images recovered from these items were also admissible because the items were searched pursuant to a valid warrant. Lastly, there was sufficient evidence to support the convictions.

I. Facts

In the afternoon of November 6, 2005, brothers K.K., eight years old, and C.M., five years old, went over to play with Oliver's eight-year-old son. Later that evening, C.M. told his mother that "they had taken naked pictures" while at Oliver's house. K.K. confirmed his brother's story, stating that Oliver had "taken pictures of them with their clothes off." Their mother reported the incident to the police, who were dispatched to her home to talk with the children.

After speaking with the children, Detective Hill, two deputies, and an investigator with DFS went to Oliver's residence. Oliver answered the door, and the detective explained the allegations. Oliver stated that he took pictures of the children previously in the afternoon, but "it was just of their bellies." The detective asked Oliver if he owned a digital camera, and Oliver said that he did. Oliver began walking out of the living room, and the detective followed behind him.

Oliver went into the office and picked up a digital camera. The detective asked for consent to search the digital camera and computer tower he saw in the room. Oliver became upset and told the detective that he needed to obtain a search warrant. The detective called Detective Bailey and instructed him to initiate the process to obtain a warrant for the digital camera and the computer tower. During this time, the DFS investigator was speaking to Oliver's wife in a bedroom. Oliver's two children, ages eight and eleven, remained in their bedrooms.

After Oliver was finished speaking with the officers, the DFS investigator addressed both Oliver and his wife. She advised them that, based on the allegations, they had three options: Oliver's wife and children could leave the home, Oliver could leave the home, or the children could be taken into custody. Oliver stated that he would leave the home and departed the residence.

After Oliver left, the detective asked Oliver's wife if they could search the office and take the computer tower and digital camera. She agreed and signed a permission to search form. Oliver's wife, the detective, and two deputies went into the office. The officers took the digital camera and computer tower, as well as thirteen floppy disks and one CD-rewritable from a desk drawer opened by Oliver's wife.

On November 21, 2005, Detective Bailey filed an application and affidavit for a search warrant to search the computer, the digital camera with flash memory card, the CD-RW, and the disks. A warrant was issued to search the items the same day.

Oliver was charged with sexual exploitation of a minor pursuant to section 573.023 and promoting child pornography in the first degree pursuant to section 573.025. Prior to trial, Oliver filed a motion to suppress the computer, camera and memory card, disks and CD-RW, arguing that the seizure of the items violated his 4th amendment rights. A preliminary hearing was held at which Detective Hill and Oliver's wife testified. The trial court overruled the motion.

A jury trial was held in July 2007. C.M., then seven years old, testified that Oliver had taken pictures of his brother and Oliver's son with their clothes off. He also stated that he viewed the pictures on the computer screen. K.K., then ten years old, testified that Oliver took pictures of the boys with a digital camera and "put them on the computer." Oliver's son testified that his father had taken pictures of himself, K.K., and C.M. in the office but could not remember if they had their clothes on or not. Oliver did not testify at trial.

The detective who performed the search of the camera card, hard drive and disks testified that there were 27 photographs on the camera card created on November 6, 2005, and deleted the same day. Ten of the photographs were able to be retrieved. The detective also found a folder on the hard drive containing child and adult pornography images from various internet sites. From the data attached to the images, the detective concluded that most of the images had been viewed at least twice.

Ten pictures from the camera card were admitted into evidence as well as the numerous pornographic images recovered from the hard drive. Several of the photographs showed the boys with their pants pulled down and genitals exposed. One picture showed a boy bending over and using his hands to manually separate his buttocks, exposing his anus to the camera. A second picture showed a different boy bending over and attempting to manually separate his buttocks to expose his anus to the camera.

Oliver objected to the admission of the camera, computer, and disks, the information recovered from these items, and the testimony from the detective. He argued that this evidence was inadmissible because the items were seized without a warrant and without proper consent. The trial court overruled the objections. At the close of both the state's evidence and all evidence, Oliver filed a motion for judgment of acquittal based on insufficient evidence; both were overruled.

Oliver was charged with two counts of sexual exploitation of a minor for creating child pornography with a minor and two counts of promoting child pornography in the first degree for possessing with the intent to exhibit the photographs and internet images. The jury found Oliver guilty for all counts, and Oliver was sentenced to concurrent terms of fifteen years for sexual exploitation of a minor and ten years for promoting child pornography. Oliver filed a motion for new trial, which was overruled. Oliver appeals.

II. Analysis

A.

This Court reviews a trial court's ruling on a motion to suppress in the light most favorable to the ruling and defers to the trial court's determinations of credibility. State v. Edwards, 116 S.W.3d 511, 530 (Mo.banc 2003). The inquiry is limited to whether the decision is supported by substantial evidence, and it will be reversed only if clearly erroneous. Id. The Court will consider evidence presented at a pre-trial hearing as well as any additional evidence presented at trial. Id.

Oliver challenges the trial court's ruling on the motion to suppress on two grounds. First, he argues the computer, camera, and camera card were inadmissible because the seizure of the items was in violation of his constitutional rights. Second, he argues the information recovered from these items was inadmissible because the warrant was invalid.

i.

The 4th amendment to the United States Constitution guarantees citizens the right to be free from "unreasonable searches and seizures." Article I, section 15 of the Missouri Constitution provides the same guarantees against unreasonable search and seizures; thus, the same analysis applies to cases under the Missouri Constitution as under the United States Constitution.

As a general rule, warrantless searches and seizures inside a home are presumptively unreasonable and unconstitutional. State v. Rutter, 93 S.W.3d 714, 723 (Mo.banc 2002). "Evidence discovered and later found to be derivative of a Fourth Amendment violation must be excluded as fruit of the poisonous tree." State v. Miller, 894 S.W.2d 649, 654 (Mo. banc 1995).

The inevitable...