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Paul v. State (10/25/2002) ap-1840
Paul v. State (10/25/2002) ap-1840
NOTICE
The text of this opinion can be corrected before the
opinion is published in the Pacific Reporter. Readers
are encouraged to bring typographical or other formal
errors to the attention of the Clerk of the Appellate
Courts.
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
ALFRED H. PAUL, )
) Court of Appeals
No. A-7773
Appellant, )
Trial Court No. 1SI-S99-0254 CR
)
v. ) O P I
N I O N
)
STATE OF ALASKA, )
)
Appellee. )
[No. 1840 - October 25, 2002]
)
Appeal from the Superior Court, First Judi
cial District, Sitka, Larry C. Zervos, Judge.
Appearances: Sharon Barr, Assistant Public
Defender, and Barbara K. Brink, Public
Defender, Anchorage, for Appellant. Kenneth
M. Rosenstein, Assistant Attorney General,
Office of Special Prosecutions and Appeals,
Anchorage, and Bruce M. Botelho, Attorney
General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
COATS, Chief Judge.
P.B. went to the Sitka Police Department and told an
officer that he had broken into his Uncle Alfred Pauls locked
bedroom and obtained a videotape which he watched. He said the
tape showed Alfred Paul having sex with C.P., P.B.s fifteen or
sixteen-year-old cousin. The officer watched the videotape and
saw the sexual act. The police used information obtained from
the videotape to obtain a warrant and ultimately charged Alfred
Paul with criminal offenses involving his sexual acts with C.P.
Paul moved to suppress the evidence which the police obtained
from observing the videotape. He argued that the police violated
his rights by observing the videotape without obtaining a search
warrant. Superior Court Judge Larry C. Zervos denied Pauls
suppression motion and Paul was ultimately convicted of several
charges. Paul appeals, arguing that Judge Zervos erred in
denying his suppression motion. We affirm.
Factual background
On the morning of September 12, 1999, nineteen-year-old
P.B. informed Sitka Police Officer Dawn Augustus that his uncle,
Larry Paul, had sexually assaulted him earlier that morning.
P.B. lived in his grandmothers household with his cousin, C.P.,
and his uncles, Larry Paul and Alfred Paul. After complaining of
the assault by Larry Paul, P.B. told Officer Augustus that he had
a videotape showing Alfred Paul having sex with P.B.s fifteen or
sixteen-year-old cousin, C.P.
P.B. stated that a few months prior to his conversation
with Officer Augustus, he and his cousin Charles had broken into
Pauls locked bedroom using a credit card. The bedroom had a Do
Not Enter sign posted on the door. A videotape was in the VCR,
and they turned it on. It showed Paul and C.P. engaging in
sexual relations. P.B. said he was disgusted by what he saw and
turned the player off. The boys broke into the room on other
occasions. Several days before his conversation with Officer
Augustus, P.B. broke into Pauls room for the last time. This
time he took a videotape labeled 10/28/98. P.B. said that he had
started watching this tape somewhere in the middle. He watched
it for a couple of minutes; it showed C.P. and Paul engaging in
sexual relations, but it was not the same tape he and his cousin
had watched before. P.B. was not specific about the sexual acts
depicted on the video, but he told Officer Augustus he was
shocked by what he saw. He kept this video by his bed until he
took it to the police station the morning he reported being
sexually assaulted.
After this conversation, Officer Augustus watched a
couple of minutes of the video without rewinding it. She saw a
native female performing fellatio on a man. Sitka Police
Detective Teague Widmier became involved in the case at this
point. Officer Augustus relayed to Detective Widmier what she
had seen on the video and P.B.s statements. After interviewing
P.B., Detective Widmier watched the entire eight-hour videotape
from near the beginning until the end. The tape contained
recordings of television commercials and shows in addition to
recordings of Paul and C.P. having sex in various ways.
Detective Widmier fast forwarded through everything but the
sexual acts; viewing the tape in this manner took thirty to forty
minutes. Prior to watching the video, he did not ask P.B. how
much of the tape P.B. had seen.
After watching the video, Detective Widmier obtained a
search warrant for Pauls bedroom and person based on Widmiers
assertion that the video depicted sexual acts and P.B.s hearsay
statements.
The police searched Pauls room and person. The search
turned up a number of pornographic magazines, videos, and
pictures; at least one other videotape taken from the bedroom
showed Paul and C.P. having sex. The following day, September
13, 1999, Detective Widmier spoke with C.P. regarding the sex
scenes recorded on the videos. That same day, the police
arrested Paul.
The State indicted Paul on fifteen counts of unlawful
exploitation of a minor,1 twelve counts of incest,2 and twelve
counts of sexual abuse of a minor in the third degree.3 Paul
moved to suppress the fruits of the warrantless search of the
videotape. Judge Zervos held an evidentiary hearing, and he
denied the motion to suppress. Pursuant to stipulated facts,
Judge Zervos found Paul guilty of one count of unlawful
exploitation of a minor, one count of incest, and one count of
sexual abuse of a minor in the third degree.
Resolution of the legal issue
The issue before us is whether the police could view
the videotape which P.B. brought into the police station without
first obtaining a warrant in compliance with the Alaska and
United States Constitutions.4 The resolution of this case is
governed by two cases decided by the United States Supreme Court.
In a fragmented decision, Walter v. United States,5 the
United States Supreme Court overturned the admission of films of
obscene material where the government viewed the films without a
warrant.6 In Walter, a shipping company delivered twelve cartons
to an incorrect address.7 Employees of the recipient company
opened the packages and found film canisters, the labeling of
which indicated they depicted scenes of homosexual activity.8
The employees attempted to view the film by holding it up to the
light but were unsuccessful.9 They contacted the Federal Bureau
of Investigations (FBI), whose agents picked up the cartons and
viewed the approximately 900 films using a projector.10 Justice
Stevens, writing for the Court, with whom one other justice
concurred, held that the FBIs screening of the films violated
Walters Fourth Amendment rights by expanding the scope of the
private search:
[T]he Government may not exceed the scope of
the private search unless it has the right to
make an independent search. In these cases,
the private party had not actually viewed the
films. Prior to the Government screening one
could only draw inferences about what was on
the films. The projection of the films was a
significant expansion of the search that had
been conducted previously by a private party
and therefore must be characterized as a
separate search.
. . . .
The fact that the cartons were unexpectedly
opened by a third party before the shipment
was delivered to its intended consignee does
not alter the consignors legitimate
expectation of privacy. The private search
merely frustrated that expectation in part.
It did not simply strip the remaining
unfrustrated portion of that expectation of
all Fourth Amendment protection. Since the
additional search conducted by the FBI the
screening of the films was not supported by
any justification, it violated that
Amendment.11
These two justices suggested that the question remained open
whether the governments projection of the films would have
infringed on Walters Fourth Amendment rights if the recipient
employees had actually viewed the films before turning them over
to the government.12
A third justice concurred in the judgment without
joining the reasoning.13 Justice White, with one other
justice joining, concurred with the judgment but stated that even
if the private parties had projected the films before turning
them over to the FBI, the FBI could have only viewed them
pursuant to a warrant.14 He wrote that a subsequent police
search without a warrant would permit government agents to
conduct warrantless searches of personal property whenever
probable cause existed as a result of a prior private search
even where the police could not conduct such a warrantless search
when probable cause existed for any other reason.15 The
concurrence concluded that the opening of the packages by the
employees destroyed Walters expectation of privacy to the
contents because the contents were left in plain view.16
However, a private projection of the films would not so destroy
the privacy interest in the contents of the films.17
Justice Blackmun, with three justices joining,
dissented, concluding that Walter had no expectation of privacy
remaining in the films once the private employees had ascertained
the nature of the films from the depictions on their containers,
which were revealed when they opened the packages.18 Under the
dissenting opinion, the FBI did not need a warrant to view the
films because viewing the movies on a projector did not change
the nature of the private search.19
Although the majority opinion in Walter is fragmented,
because the majority concluded that the evidence should be
suppressed, Professor LaFave concludes that it is clear from
Walter that a private search does not permit a later government
[warrantless] search which is more intrusive or extensive than
the earlier private search.20
In United States v. Jacobsen,21 a majority of the
Supreme Court adopted Justice Stevenss scope of search standard,
holding that the Fourth Amendment is not implicated unless the
government expands the scope of the prior search and uses
information with respect to which the expectation of privacy has
not already been frustrated by the private search.22 The
additional invasions of respondents privacy by the government
agent must be tested by the degree to which they exceed[] the
scope of the private search.23 In Jacobsen, Federal Express
employees opened a damaged package and discovered a suspiciously
wrapped quantity of white powder.24 They resealed the package
and notified the Drug Enforcement Agency (DEA).25 When the DEA
agent arrived, he opened the package, conducted a field test on
the powder, and determined it to be cocaine.26
The Supreme Court held that the governments actions in
reopening the package did not infringe on Jacobsens Fourth
Amendment rights because the government confined its search to
the scope of the prior private search.27 The Federal Express
employees had destroyed any privacy interest Jacobsen had in the
package.28
[T]he removal of the plastic bags from the
tube and the agents visual inspection of
their contents enabled the agent to learn
nothing that had not previously been learned
during the private search. It infringed no
legitimate expectation of privacy and hence
was not a search within the meaning of the
Fourth Amendment.29
After Walter and Jacobsen, the test to determine the
validity of a warrantless government search following a private
search is the degree to which the governments invasion of the
privacy interest exceeds the scope of the private search.30
In the present case, P.B. had taken the tape from
Alfred Pauls bedroom and viewed it. He saw Paul engaging in
sexual relations with C.P. Without rewinding the tape, Officer
Augustus placed the tape in a VCR and saw C.P. performing
fellatio on Alfred Paul. Judge Zervos found that this activity
was the same activity that P.B. had previously observed.
Paul argues that the Sitka Police violated his rights
because Detective Widmier watched the entire tape and, therefore,
expanded P.B.s original search. Judge Zervos concluded that
Detective Widmiers viewing of the videotape exceeded P.B.s
viewing in only the most technical sense. He concluded that
Detective Widmiers viewing of the same people doing the same sort
of acts on the same videotape that had already been viewed by
private parties does not compromise any privacy interest that had
not already been compromised. This view seems sound and appears
consistent with Jacobsen.
In Jacobsen, the court allowed the police to search all
of the bags which contained cocaine in the packages and to test
it.31 The court did not require the police to show that they had
only opened the same cocaine bag that the private parties had
previously opened. But even if we were to conclude that
Detective Widmiers viewing of the entire tape was improper, it
would still not lead to suppression of the evidence against Paul.
Judge Zervos found that the police would have obtained a warrant
based solely on the information available to them before
Detective Widmier viewed the tape. This finding is fully
supported by the record.
Paul points out that P.B. told the police that he had
broken into his bedroom and had stolen the videotape in order to
view it and give it to the police. He argues that the police
viewing of the videotape was unconstitutional because of P.B.s
illegal actions. He relies on Erickson v. State,32 a case
decided by the Alaska Supreme Court. In Erickson, a police
informant had seen the defendant place drugs in a suitcase.33
The informant recovered the suitcase from its hiding place
outside and brought it to the police station.34 The suitcase was
locked.35 The informant told the police that he had seen the
defendant place the drugs in the suitcase, but he had not
searched the suitcase before turning it over to the police.36
The police opened the suitcase without getting a warrant.37 The
Alaska Supreme Court held that the police needed a warrant to
search the locked suitcase.38 The Erickson decision appears to
be consistent with Jacobsen. Because the informant had not
previously searched the suitcase, the police substantially
exceeded the earlier intrusion, i.e., the seizure of the
suitcase. The defendant in Erickson retained a reasonable
expectation of privacy in the contents of the suitcase. But in
Erickson, the Supreme Court never addressed the issue of whether
the informants seizure of the suitcase was unlawful.39
Therefore, Erickson does not support Pauls argument.
Paul also relies on State v. Miggler.40 In Miggler,
the Minnesota Court of Appeals distinguished Jacobsen because:
the private search of a locked footlocker was conducted in the
defendants home; Miggler had not entrusted the locked footlocker
to anyone; the private searchers had broken into the footlocker;
the police exceeded the scope of the private search; and, Miggler
retained a privacy expectation in the non-contraband items in the
footlocker.41 The court held that the fruits of the search were
inadmissible because the private searchers had no authority to
admit the police into the residence, and the contraband was not
discovered inadvertently or in plain view.42 Miggler therefore
turns on the fact that the police directly participated in an
illegal search of the defendants residence. No such intrusion
occurred in the present case, and, therefore, Miggler is
distinguishable.
It is true that the Jacobson decision did point out
that the private parties lawfully possessed the searched
package.43 But the case did not rely on the lawful possession of
the package.44 Cases applying the prior private search exception
to the warrant requirement do not limit the doctrine to private
searches of legally possessed items.45 As the Supreme Court
explained in Walter, [i]t has, of course, been settled since
Burdeau v. McDowell, that a wrongful search or seizure conducted
by a private party does not violate the Fourth Amendment and that
such private wrongdoing does not deprive the government of the
right to use evidence that it has acquired lawfully.46
Therefore, Pauls argument that the videotape should be suppressed
because P.B. had unlawfully seized it fails.
Conclusion
We conclude that Judge Zervos did not err in refusing
to suppress evidence which the police obtained from viewing the
videotape. We accordingly AFFIRM Pauls convictions.
_______________________________
1 AS 11.41.455(a).
2 AS 11.41.450(a).
3 AS 11.41.438(a).
4 See U.S. Const. amend. IV; Alaska Const. art. I, 14.
5 447 U.S. 649, 100 S.Ct. 2395, 65 L.Ed.2d 410 (1980).
6 Id. at 652, 100 S.Ct. at 2399.
7 Id. at 651, 100 S.Ct. at 2399.
8 Id. at 652, 100 S.Ct. 2399.
9 Id.
10 Id.
11 Id. at 657-59, 100 S.Ct. at 2402-03 (footnotes and
citations omitted).
12 Id. at 658 n.9, 100 S.Ct. at 2402 n.9.
13 Id. at 660, 100 S.Ct. at 2403 (Marshall, J.,
concurring).
14 Id. at 661-62, 100 S.Ct. at 2404 (White, J.,
concurring).
15 Id. at 660-61, 100 S.Ct. at 2403-04 (White, J.,
concurring).
16 Id. at 661, 100 S.Ct. at 2404 (White, J.,
concurring).
17 Id. at 660-61, 100 S.Ct. at 2403-04 (White, J.,
concurring).
18 Id. at 663-66, 100 S.Ct. at 2404-06 (Blackmun, J.,
dissenting).
19 Id. at 663-66, 100 S.Ct. at 2404-06 (Blackmun, J.,
dissenting).
20 1 Wayne R. LaFave, Search and Seizure 1.8(b), at 230
(3d ed. 1996).
21 466 U.S. 109, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984).
22 Id. at 117, 104 S.Ct. at 1658-59.
23 Id. at 115, 104 S.Ct. at 1657.
24 Id. at 111, 104 S.Ct. at 1655.
25 Id.
26 Id. at 111-12, 104 S.Ct. at 1655.
27 See id. at 118-22, 104 S.Ct. at 1659-61.
28 See id. at 119, 104 S.Ct. at 1659-60.
29 Id. at 120, 104 S.Ct. at 1660 (footnote omitted).
30 Id. at 115, 104 S.Ct. at 1657; Staats v. State, 717
P.2d 413, 421 (Alaska App. 1986); see also Stange v. State, 559
P.2d 650, 655 (Alaska 1977) (reaching similar holding under plain
view doctrine); State v. Stump, 547 P.2d 305, 307-08 (Alaska
1976) (same).
31 Jacobsen, 466 U.S. at 112, 104 S.Ct. at 1655.
32 507 P.2d 508 (Alaska 1973).
33 Id. at 511.
34 Id. at 512.
35 Id.
36 See id. at 511-12.
37 Id. at 512.
38 Id. at 513.
39 See id. at 513.
40 419 N.W.2d 81 (Minn. App. 1988).
41 See id. at 83-85.
42 Id. at 85-86; see also State v. Miller, 877 P.2d
1044, 1049-51 (Nev. 1994) (Young, J., dissenting) (citing Miggler
as distinguishing Jacobsen on grounds that police entered the
home of a suspect to reenact a search conducted by a private
individual).
43 Jacobsen, 466 U.S. at 120 n.17, 104 S.Ct. at 1660
n.17.
44 Id.
45 See, e.g., Walter v. United States, 447 U.S. 649,
656, 100 S.Ct. 2395, 2401, 65 L.Ed.2d 410 (1980); United States
v. Snowadzki, 723 F.2d 1427, 1429-30 (9th Cir. 1984) (government
did not search stolen documents when it read documents because
informant had privately searched the documents and turned them
over to the police); State v. Christensen, 797 P.2d 893, 895-97
(Mont. 1990) (evidence admissible even though given to police by
burglars who had stolen it from defendant).
46 Walter, 447 U.S. at 656, 100 S.Ct. at 2401 (citations
omitted).
