Summary
upholding denial of motion to suppress when appellant did not present evidence that the computer repairmen acted as instruments or agents of the State, that the State knew of or acquiesced in the conduct resulting in the initial discovery of child pornography, or that the repairmen intended to assist law enforcement when they first viewed the images
Summary of this case from Owens v. StateOpinion
No. 05-05-00110-CR
Opinion Filed February 16, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 195th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F03-26092-VN. Affirmed.
Before Justices FITZGERALD, LANG-MIERS and MAZZANT.
OPINION
Appellant pleaded guilty to possession of child pornography. The trial court found that the evidence substantiated appellant's guilt but deferred an adjudication of guilt and placed him on community supervision for ten years. The court also imposed a non-probated fine of $1000. On appeal, appellant argues that the trial court erred by denying his motion to suppress. He argues that police based their search warrant on an illegal search of appellant's computer by computer repairmen. He contends that the search violated his constitutionally-protected expectation of privacy and Texas Penal Code section 33.02(a). We affirm. MOTION TO SUPPRESS Standard of Review We review a trial court's ruling on a motion to suppress under a bifurcated standard of review. Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App. 2000); Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997). In reviewing the trial court's decision, we do not engage in our own factual review. Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App. 1990). At a suppression hearing, the trial judge is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given their testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App. 2000). We give almost total deference to the trial court's rulings on (1) questions of historical fact and (2) application-of-law-to-fact questions that turn on an evaluation of credibility and demeanor. Johnson v. State, 68 S.W.3d 644, 652-53 (Tex.Crim.App. 2002). But we review de novo a trial court's rulings on mixed questions of law and fact if they do not turn on the credibility and demeanor of witnesses. Id. Because the trial court did not make explicit findings of historical facts, we review the evidence in a light most favorable to the trial court's ruling and assume that the trial court made implicit findings of fact that the record supports. Carmouche, 10 S.W.3d at 327-28 (citations omitted). Pertinent Facts Before pleading guilty, appellant filed a motion to suppress the images of child pornography recovered from his computer. The trial court conducted a hearing. The State submitted a copy of the search warrant and the underlying affidavit as exhibits. The defense presented testimony from appellant and computer expert, Jeff Green. Appellant testified that in January of 2003, he was unable to turn on his computer and took it for repair and upgrades. Because appellant did not know why his computer was not functioning, he "just asked them to fix the computer." The defense submitted the "service checkin sheet" describing the problem as "DIAG;24-48HRS TO BENCH; $75; DOES NOT GET POWER" as an exhibit. Appellant further testified that to access the images of child pornography he had saved to his computer, a user must log-on and enter two folders, a three- to four-step process. Green testified that to repair a power supply problem, a technician would open the power supply case and unplug the cables connecting the power supply to the computer. To determine whether he had repaired the power supply, the technician could then test the computer without accessing any of the files within the computer. No testimony was presented concerning the upgrades appellant requested or the procedure that would be used to install upgrades. And no testimony was submitted about what the repairmen actually did or how they located the pictures. Consequently, although the repairmen located the pictures and called the police, we do not know how or why. The trial court denied the motion to suppress without making any findings of fact or conclusions of law on the record. Claimed Violation of Constitutional Rights Appellant contends that the trial court erred by overruling his motion to suppress because police based their search warrant on evidence that repairmen obtained in violation of his constitutionally-protected expectation of privacy. But the federal and state constitutions safeguard an individual's legitimate expectation of privacy from unreasonable governmental intrusions. Villarreal v. State, 935 S.W.2d 134, 138 (Tex.Crim.App. 1996). Private party conduct does not raise Fourth Amendment or Article I, section 9 concerns. United States v. Jacobsen, 466 U.S. 109, 113 (1984); United States v. Paige, 136 F.3d 1012, 1017 (5th Cir. 1998); State v. Comeaux, 818 S.W.2d 46, 49 (Tex.Crim.App. 1991), overruled on other grounds, State v. Hardy, 963 S.W.2d 516 (Tex.Crim.App. 1997). To determine whether a private party search qualifies as government action we consider whether, in light of all of the circumstances, the private citizen acted as an instrument or agent of the State. Comeaux, 818 S.W.2d at 49-50 (quoting Coolidge v. New Hampshire, 403 U.S. 443, 487 (1971)); see also Paige, 136 F.3d at 1017-18 (noting that to qualify as government action, (1) the government must know of or acquiesce in the intrusive conduct, and (2) the private party must intend to assist law enforcement in conducting the search). Appellant did not present evidence that the repairmen acted as instruments or agents of the State, that the government knew of or acquiesced in the conduct resulting in the initial discovery of child pornography, or that the repairmen intended to assist law enforcement when they first viewed the images. See United States v. Barth, 26 F.Supp.2d 929, 935-36 (W.D. Tex. 1998) (holding that "[computer technician's] initial discovery of an image of child pornography did not violate the Fourth Amendment, because [technician] was not a `government actor' as that term has been defined in case law. . . . [t]here is no evidence that [technician] intended to assist law enforcement officers when he initially viewed the image"). We overrule appellant's point of error as it relates to any violation of his constitutionally-protected expectation of privacy. Claimed Violation of the Law Appellant next argues that the repairmen violated Texas Penal Code section 33.02(a), prohibiting a person from knowingly accessing someone else's computer, computer network, or computer system without his effective consent. Appellant then argues that because the computer repairmen violated section 33.02, the trial court should have excluded the images of child pornography under code of criminal procedure article 38.23. Article 38.23 prohibits the admission of evidence obtained by an officer or other person in violation of either the state or federal constitution or any laws. Appellant had the burden of raising an exclusionary issue by producing evidence of the statutory violation. See Pham v. State, 175 S.W.3d 767, 772 (Tex.Crim.App. 2005). Appellant left his computer for repair with a repair center. But appellant contends that the repairmen did not have his effective consent because he gave his consent to repair his computer, that he did not specifically give them consent to access information on his computer, and that it was not necessary to access the files containing the pornographic pictures to repair the problem. He also contends that the pictures were in a folder requiring a password to access. As a result, the issue is whether appellant demonstrated that the consent was "used for a purpose other than that for which the consent was given." See Tex. Penal Code Ann. § 33.02(12)(E). Reviewing the evidence in a light most favorable to the trial court's ruling and implicit findings, we conclude that appellant failed to meet his initial burden of producing evidence of a statutory violation. The record shows only that appellant was unable to turn on his computer, left it for repair with a computer repair center, and consented to the repairmen "fixing" his computer:
[Defense Counsel]:
So when you went to Microcenter [sic] for the repair of your computer, what did you ask them to do? [Appellant]:
Since I didn't know what the problem was, I just asked them to fix the computer, you know.
[Defense Counsel]:
Okay. Did you tell them that the power supply was not working?
[Appellant]:
Yes.
[Defense Counsel]:
And did you ask them to fix the power supply?
[Appellant]:
Yes.In the context of searching a consenting party's car or home, reviewing courts have held that if the consenting party fails to specifically limit his consent, it is non-exclusionary and extends to concealed places within the search area. In State v. Garrett, 177 S.W.3d 652, 657 (Tex.App.-Hous. [1st Dist.] 2005, no pet.), the reviewing court reversed the trial court's ruling suppressing drug evidence that police discovered behind car door panels when the suspect had never limited or revoked his consent to search the vehicle: "[a]bsent an officer's request or a suspect's consent limiting a search to a particular area of a vehicle, such as the trunk or passenger compartment, a request to search `the car' reasonably includes all areas of the vehicle and excludes none." It further held that "[w]hen an officer specifically asks a suspect if he can search a vehicle for illegal contraband, and the suspect answers affirmatively, a reasonable person would construe the consent to extend to any area of the vehicle in which such objects could be concealed." Id. at 657-58; see also Simpson v. State, 29 S.W.3d 324, 329-30 (Tex.App.-Hous. [14th Dist.] 2000, pet. ref'd) (holding that nod of head in response to officer's request to search car constituted consent to search all areas of vehicle and excluded none). And the Court of Criminal Appeals has held that if the complaining party consents to a person's search of his home, the complaining party may not successfully contest the admission of contraband discovered during the permitted search and then immediately turned over to police. See Cobb v. State, 85 S.W.3d 258, 271 (Tex.Crim.App. 2002) (upholding the admissibility of evidence that after entering defendant's home with his permission, defendant's father recovered five knives and turned them over to police); Stone v. State, 574 S.W.2d 85, 88-89 (Tex.Crim.App. 1978) (upholding admissibility of evidence that after entering defendant's home with his permission, babysitter discovered pictures of defendant engaged in sexual activities with his child and turned pictures over to police). Similarly, appellant did not limit his consent to repair to specific areas of his computer in this case. And upon discovering the pornographic images, repairmen immediately reported them to police. We therefore cannot say that the repairmen exceeded appellant's consent for repair or that appellant's consent was used for a purpose other than that for which it was given. Even if appellant had proven a violation of section 33.02, appellant has failed to develop a causal connection between the alleged illegal conduct and the acquisition of the evidence, necessary to exclude evidence under article 38.23. See Gonzales v. State, 67 S.W.3d 910, 912 (Tex.Crim.App. 2002) (requiring causal connection between illegal conduct and acquisition of evidence in order to exclude evidence under article 38.23). Because appellant has not met his burden, he has not raised an exclusionary issue. See Pham, 175 S.W.3d at 772. Accordingly, we conclude that article 38.23 did not preclude the admission of the child pornography images. We overrule appellant's sole issue.
Tex. Penal Code Ann. § 33.02(a) provides:
A person commits an offense if the person knowingly accesses a computer, computer network, or computer system without the effective consent of the owner.
The word "knowingly" is defined by Tex. Penal Code Ann. § 6.03(b):
A person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist. A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result.
And "effective consent" is defined in Tex. Penal Code Ann. § 33.01(12):
"Effective consent" includes consent by a person legally authorized to act for the owner. Consent is not effective if:
(A) induced by deception, as defined by Section 31.01, or induced by coercion;
(B) given by a person the actor knows is not legally authorized to act for the owner;
(C) given by a person who by reason of youth, mental disease or defect, or intoxication is known by the actor to be unable to make reasonable property dispositions;
(D) given solely to detect the commission of an offense; or
(E) used for a purpose other than that for which the consent was given.