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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
       E-mail:  corrections@appellate.courts.state.ak.us


         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).