Walsh v. State, A98A1920.

• Decision Date: 19 February 1999
• Docket Number: No. A98A1920.,A98A1920.
• Citation: 512 S.E.2d 408,236 Ga. App. 558
• Parties: WALSH v. The STATE.
• Court: Georgia Court of Appeals

512 S.E.2d 408

236 Ga. App. 558

WALSH v. The STATE.

No. A98A1920.

Court of Appeals of Georgia.

February 19, 1999.

Kennedy R. Packer, Athens, for appellant.

Harry N. Gordon, District Attorney, Kirk M. Thomas, Assistant District Attorney, for appellee. POPE, Presiding Judge.

William F. Walsh appeals from his conviction on three counts of child molestation. We affirm.

1. In his first enumeration, Walsh asserts that a search warrant issued for his home on November 8, 1996, lacked probable cause and that the trial court erred in denying his motion to suppress evidence seized pursuant to the warrant. Walsh also argues that three scraps of paper seized by police did not fall within the scope of the warrant.

(a) "On appeal of the denial of a motion to suppress, the evidence is to be construed most favorably to the upholding of the findings and judgments made. [Cit.] Moreover, when reviewing an affidavit for a search warrant, we look at the totality of the circumstances to determine if there was probable cause to issue the search warrant. [Cit.]" (Punctuation omitted.) Culver v. State, 230 Ga.App. 224, 227(1), 496 S.E.2d 292 (1998).

The search warrant was obtained by Sergeant Mike McHugh of the Walton County Sheriff's Office. McHugh's affidavit stated that on October 25, 1996, he was informed by the Walton County Department of Family & Children Services (DFCS) that several male students at Social Circle Elementary School had complained that they had been fondled by Walsh, a teacher at the school. McHugh said that he had interviewed a number of students and that they had given credible statements that Walsh had touched at least five students inappropriately in violation of OCGA § 16-6-4(a). He also represented that other witnesses corroborated the students' statements that they were photographed by and with Walsh, at Walsh's request. An adult told investigators that Walsh had shown her photos he had taken depicting some of his former students in a wooded area and that the pictures appeared to be computer-generated. McHugh also stated that he had learned from Gilmer County that similar charges had been asserted by students at a school in Gilmer County where Walsh once taught, that Walsh had admitted to taking pictures of the Gilmer County students involved, and that such pictures had been located at Walsh's residence. McHugh noted that his investigation had also revealed that Walsh had a thorough working knowledge of photographic equipment and development.

Based upon this affidavit, the Walton County magistrate issued a warrant allowing investigators to search for "photographs, negatives, computer disks, computer programs or computer equipment which contain images or pictures of children that were photographed by William `Bill' Walsh or photographed with Walsh."

At the suppression hearing, McHugh testified that he has had special training in the area of child molestation and abuse and has handled between 30 and 40 such cases. He confirmed the facts asserted in his affidavit, explaining that he had access to the entire Gilmer County file on Walsh and that he had seen photographs that Walsh had taken of the children in Gilmer County. While McHugh acknowledged that there was nothing on the face of any of the pictures referenced in his affidavit showing criminal activity, he said that the pictures established physical contact with some of the students who previously had made allegations against Walsh. He testified that in his experience, child molesters often keep a trophy or some token to remind themselves of their victims, and that trophy sometimes is a photograph of the victim. McHugh further explained that he obtained the warrant because he was seeking photographs showing physical contact between Walsh and the alleged Walton County victims.

We find that this evidence was sufficient to find probable cause to issue the warrant. "The totality of the circumstances and evidence collected was sufficient to find that there was a fair probability that a search of [Walsh's home] would result in evidence [relevant to] a crime, and therefore probable cause existed for the issuance of the warrant." Culver v. State, 230 Ga.App. at 228(1), 496 S.E.2d 292. See Bromley v. State, 259 Ga. 377, 379(3), 380 S.E.2d 694 (1989); Miller v. State, 219 Ga.App. 213, 216(2), 464 S.E.2d 621 (1995).

(b) McHugh, accompanied by officers from the GBI and the Oconee Sheriff's Office, executed the warrant at Walsh's home and seized six photo albums full of pictures and three small scraps of paper with Internet sites written in red ink. These scraps of paper were located in the lower right-hand drawer of the desk where the computer was kept. McHugh testified that they seized these papers because some of the Internet sites listed had obviously pornographic titles and further contained the suffix "JPG" or "GIF," which indicates that a picture is attached.

Walsh contends that these papers fell outside the scope of the search as they were not listed among the items in the warrant. However, the officers were entitled to seize this evidence, even if it was not specifically listed in the warrant. The search warrant allowed the officers to seize photographs, computer programs and computer equipment containing images or pictures of children photographed with or by Walsh. The three slips of paper contained a listing of Internet addresses, some of which had pornographic titles and which indicated that photographic images were attached. Because the officers did not have Internet access at the scene of the search, they could not determine whether the photographs referenced were of Walsh or of any of the children. But because the addresses indicated that they were, as McHugh phrased it, "pathways to pictures" the officers were entitled to seize the papers pending further investigation.

"The police officers were not compelled to overlook relevant evidence ... simply because it was not specifically [listed] in the search warrant. [Cit.] The fact that the police officers seized items not listed in the warrant did not render the search a general one or make it unlawful. [Cits.]" (Punctuation omitted.) McBee v. State, 228 Ga.App. 16, 21(3), 491 S.E.2d 97 (1997) (allowing the seizure of nude photographs even where photographs were not listed in the warrant).

(c) Walsh next contends that the three slips of paper were not subject to seizure because they were private papers within the meaning of OCGA § 17-5-21. The Supreme Court of Georgia has held, however, that the private papers referred to in that statute are restricted to those covered by an applicable privilege. Sears v. State, 262 Ga. 805, 807(3), 426 S.E.2d 553 (1993); Hale v. State, 220 Ga.App. 667, 670(2)(d), 469 S.E.2d 871 (1996). As no privilege applies to Walsh's papers, this argument is without merit.

2. Walsh also contends that the trial court erred in failing to suppress evidence collected during a warrantless search of his home on November 15, 1996. On that date, the Oconee County Sheriff called Walsh's wife and asked if he and a GBI agent working on the case could come over and take the computer. She agreed. When the officers arrived at the Walsh house, Walsh's wife let them in and told them that they could take the computer. She told the officers that she had purchased the computer for her husband, and their children also used it.

Walsh contends that his wife lacked authority to consent to a seizure of the computer because it contained records of his internet browsing, which were a record of his personal thoughts and associations. We disagree.

"The authority which justifies the third-party consent does not rest upon the law of property, ... [cits.] but rests rather on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of...