Opinion
No. 59201-7-I.
May 27, 2008.
Appeal from a judgment of the Superior Court for Snohomish County, No. 05-1-02399-1, Richard J. Thorpe, J., entered November 17, 2006.
Affirmed by unpublished opinion per Becker, J., concurred in by Grosse and Agid, JJ.
Mark West was found guilty of possession of child pornography on stipulated facts. He appeals, contending that police found the illicit photographs on his computer through an illegal search. But the affidavit in support of the warrant established a reasonable inference that evidence of criminal activity would be found on West's computer. The evidence elicited at the suppression hearing does not compel a finding that West's stepson acted as a law enforcement agent when he gathered images from the computer and gave them to police. We affirm the order denying West's motion to suppress.
The search warrant was based on information police received from Richard Tenney, West's adult stepson. Tenney had been staying with his mother and West at their home in Marysville during the work week. Tenney occasionally used West's computer to type up business documents or play games. While using the computer to search for a file that he had previously created, Tenney came across a folder that held files with sexually suggestive names involving adolescents, children, and girls. Tenney did not open the files. He thought the file names were "questionable," but they did not concern him at the time.
The file names on West's computer gained significance to Tenney a week later when his 10-year-old daughter disclosed that West had molested her on approximately 20 separate occasions. In the course of discussing the allegations with Detective Gordon of the Snohomish County Police Department, Tenney mentioned the file names that he found on West's computer. Detective Gordon told Tenney that he had insufficient evidence to obtain a search warrant for West's computer. After learning that photographs of illegal pictures might assist the police in obtaining a search warrant for the computer, Tenney returned to West's home, took some photos of child pornography he found on the computer, and gave them to his sister to deliver to the police. Detective Gordon obtained a search warrant and found child pornography on West's computer.
The State charged West with three counts of child molestation and one count of possession of child pornography. The court severed the pornography and molestation charges. In July 2006, a jury concluded that West was not guilty of the molestation charges.
Before trial began on the charge of possession of child pornography, West moved to suppress evidence found pursuant to the warrant. The trial court denied West's motion to suppress and entered findings and conclusions. West was found guilty in a bench trial on a stipulated record in November 2006. The court sentenced West to three months in jail. He appeals, and contends the trial court erred by denying his motion to suppress.
AGENCY
West first contends the search was illegal because Tenney was acting as an agent of the State when he accessed West's computer.
Law enforcement officers cannot use private citizens to obtain evidence without a search warrant where a warrant would otherwise be required.State v. Swenson, 104 Wn. App. 744, 754, 9 P.3d 933 (2000). If, however, a private citizen obtains evidence through illegal means and provides it to the government, the State may use the evidence against the defendant unless the private citizen was acting as an instrumentality or agent of the government. State v. Clark, 48 Wn. App. 850, 855-56, 743 P.2d 822 (1987). "Critical factorsin determining whether a private person acts as a government agent include whether the government knew of and acquiesced in the intrusive conduct and whether the party performing the search intended to assist law enforcement efforts or to further his own ends." Clark, 48 Wn. App. at 856.
The State acknowledges that Tenney's motivation for gathering incriminating photos from West's computer was to aid police in their investigation of his daughter's molestation charges. But mere knowledge by the government that a private citizen might conduct an illegal private search without the government taking any deterrent action is insufficient to turn the private search into a government one. Swenson, 104 Wn. App. at 755.
At the suppression hearing, Detective Gordon testified about his conversation with Tenney in which Tenney found out that the police believed they lacked sufficient information to support getting a warrant to search West's computer:
Q. What happened next in that conversation?
[GORDON]. [Tenney] had asked me if he brought some photos to me could those be used, and I told him that I can't ask him to do that. And he said he understands that, but again asked me if he brought some photos, and I explained to him, well, if they're illegal, yes.
Q. So you told him the problem was he hadn't seen anything illegal on the computer and that's why you couldn't get the warrant?
[GORDON]. I don't know if I worded it that way, but, basically, there wasn't enough information.
Q. He said, well, if I got you more information, like, if I got you photos of child pornography, would that be enough?
[GORDON]. It was a little bit later in the conversation, because we kind of quit talking, and I focused my attention on [Tenney's wife], and then he asked me that just before they left.
Q. So he revisited the issue?
[GORDON]. Correct.
Q. And you explained to him that you couldn't ask him to go back and actually take pictures or retrieve information from the computer; is that right?
[GORDON]. That's correct.
Q. And you asked him whether he understood that you couldn't tell him to go do that; is that right?
[GORDON]. That's correct.
Q. But he kind of pressed the issue; is that right?
[GORDON]. About these photos, and asked me twice, and that was the end of it.
Report of Proceedings (May 1, 2006) at 34-35.
According to West, this testimony reveals that Detective Gordon was sending Tenney a thinly disguised request to go back to West's computer and get more evidence to help the police. The trial court's findings, to which West assigns error, did not accept this characterization of the conversation between Tenney and Detective Gordon:
Detective Gordon did not instigate, encourage, counsel, direct, or control Richard Tenney's gathering of evidence from the Defendant's computer. Detective Gordon acted exactly the way he was trained and is expected by the courts to act.
Detective Gordon did not wink, nod, or otherwise convey any hints or requests to Richard Tenney while explaining the situation to him.
Findings of fact 1.11 and 1.12.
An appellate court reviews factual findings entered pursuant to a suppression hearing for substantial evidence. "Substantial evidence existswhere there is a sufficient quantity of evidence in the record to persuade a fair-minded, rational person of the truth of the finding."State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994).
Detective Gordon's testimony shows that it was Tenney who steered the conversation to the possibility that he might gather more evidence from West's computer. By answering Tenney's questions frankly, Detective Gordon did not make Tenney an agent. Detective Gordon's testimony provides substantial evidence to support the finding that he did not "wink, nod" or otherwise hint that he was encouraging Tenney to go back and search the computer.
West claims that Detective Gordon's involvement in Tenney's search is factually similar to a Ninth Circuit case in which it was determined that police were aiding a private citizen's search. United States v. Reed, 15 F.3d 928 (9th Cir. 1994). In Reed, a hotel manager suspected that one of the guests was selling drugs from the hotel room due to the guest's refusal of maid service and unusually large number of visitors and telephone calls. The hotel manager asked that police officers come and protect him while he checked the guest's room. Reed, 15 F.3d at 930. Two police officers accompanied the manager to the hotel room. The manager opened dresser drawers and a latched briefcase. Police officers did not ask the manager to search these areas, but they stood guard in the doorway and listened as the manager described what he found. Police obtained a search warrant based on drugs they saw in the hotel room and information the manager passed along to them. Reed was eventually convicted of drug trafficking and firearm violations based on the fruits of the search. On appeal, the Ninth Circuit concluded that the district court had erred in finding that the Fourth Amendment permits police officers, without a warrant, to stand guard while a private citizen illegally searches for incriminating evidence.
The court nevertheless upheld Reed's conviction because even "excising the tainted evidence from the affidavit filed in support of the search warrant, the affidavit establishes probable cause to issue a warrant." United States v. Reed, 15 F.3d 928, 929 (9th Cir. 1994).
The facts here do not substantiate such a high level of police involvement as in Reed. In Reed, the court concluded that the manager would not have searched the room if the police had not been there to provide protection. Here, the same cannot be said of Tenney, who was intent upon returning to West's computer whether Detective Gordon approved of it or not. Substantial evidence supports the trial court findings on which the court based its conclusion that Tenney acted independently, not as a government agent.
PROBABLE CAUSE
West claims the search warrant affidavit was insufficient to establish probable cause because there is nothing in the affidavit to establish that the child pornography images Tenney photographed on West's monitor had actually been stored in the memory of the computer.
A search warrant may be issued only upon a determination of probable cause. State v. Cole, 128 Wn.2d 262, 286, 906 P.2d 925 (1995). Probable cause exists if the affidavit in support of the warrant sets forth facts sufficient to establish a reasonable inference that the defendant is probably involved in criminal activity and that evidence of the crime can be found at the place to be searched. A magistrate's determination that a warrant should be issued is an exercise of judicial discretion that is reviewed for abuse of discretion. Cole, 128 Wn.2d at 286. An application for a search warrant should be judged in the light of common sense with doubts resolved in favor of the warrant. State v. Young, 123 Wn.2d 173, 195, 867 P.2d 593 (1994).
West alleges that the child pornography Tenney photographed on West's monitor could have simply been pictures from an open internet site that Tenney himself located and opened. But probable cause is not negated merely because it is possible to imagine an explanation for what Tenney observed that would not inculpate West. State v. Graham, 130 Wn.2d 711, 725, 927 P.2d 227 (1996). Several statements in the search warrant affidavit give rise to a reasonable inference that the pictures Tenney photographed had been previously downloaded and stored by West. The affidavit states that Tenney's mother had been arguing with West about "sick pictures" of little girls that she had found on the computer. A reasonable inference is that Tenney's mother had stumbledacross child pornography stored in the computer's memory. Her statements corroborate Tenney's own statement that he came across sexually explicit file names when he was searching for a file that he had previously created on West's computer. Upon seeing these file names he "closed the file" before locating his own work. These facts were sufficient to show the magistrate that child pornography would likely be found in the computer's memory.
Clerk's Papers at 68.
Clerk's Papers at 67.
INFORMANT RELIABILITY
West claims the affidavit for the search warrant fails to establish Tenney's reliability. "It is well settled that when the existence of probable cause depends on an informant's tip, the affidavit in support of the warrant must establish the basis of the informant's information as well as the credibility of the informant." State v. Ibarra, 61 Wn. App. 695, 698, 812 P.2d 114 (1991). When the informant is an ordinary citizen, as opposed to a criminal or professional informant, the reliability prong is satisfied when an informant's identity is revealed to the magistrate and "intrinsic indicia of the informant's reliability may be found in his detailed description of the underlying circumstances of the crime observed." State v. Northness, 20 Wn. App. 551, 557, 582 P.2d 546 (1978).
West argues that Tenney does not deserve the deference normally afforded a named citizen informant because the affidavit failed to disclose hisaddress, which he contends is necessary under Northness. Northness says that constitutional safeguards are met where the affidavit in support of the search warrant contains the name and address of a citizen informant. Northness, 20 Wn. App. at 558. It does not say that an informant's address is an indispensable requirement for making an informant identifiable rather than anonymous. The affidavit here listed sufficient information to identify Tenney without his address. It identified Tenney as the father of a known complaining witness in the child molestation case. And it identified Tenney's mother and gave the address in Marysville where she lived with West and where Tenney stayed. These known connections would make Tenney easy to find if his testimony was needed, and thus dispel the concern that the informant might be an anonymous troublemaker.
West also claims that Tenney's own interest in the investigation taints the credibility of Tenney's statements in the affidavit. Tenney did have a motive to incriminate West, but that does not automatically render his statements unreliable. In Northness, the citizen informant reported finding marijuana in one of the bedrooms of the apartment she shared with several other people. The court recognized that "a desire to exculpate herself from criminal liability as copossessor of the premises wherein the marijuana was kept" may have motivated her to come forward to the police. Northness, 20 Wn. App. at 558. But even where the informant has some measure of self-interest in coming Page 11 forward with information, that alone does not vitiate the inference of reliability afforded to a named citizen informant who provides detailed information.Northness, 20 Wn. App. at 558. Here, as in Northness, "intrinsic indicia" of Tenney's reliability is found not only in the fact that he was identified, but also in the detailed and specific description he was able to give of West's home and the images on his computer. The affidavit contains sufficient facts to support the trial court's ruling that Tenney was a credible informant.
Tenney put the images he had photographed on a disk and gave it to his sister to deliver to the police. West contends that the sister also acted as a citizen informant, yet the affidavit did not establish her reliability as a "middle man." But when a "middle man" engages only in nonassertive conduct, it is unnecessary for the affidavit to establish that person's reliability. The magistrate "could properly consider the police's firsthand observation of the middleman's conduct for its probative value in determining probable cause." State v. Mejia, 111 Wn.2d 892, 900, 766 P.2d 454 (1989) (overruling State v. Morehouse, 41 Wn. App. 334, 704 P.2d 168 (1985)). Tenney's sister engaged only in nonassertive conduct when she functioned as a courier. She was not involved in gathering the evidence against West and she did not look at what was on the disk. None of her statements formed the basis of the affidavit, so she did not function as an informant. There is no allegation that she tampered with the Page 12 images on the disk before turning them over to the police. Because Tenney's sister did not function as a citizen informant, the affidavit did not have to establish her credibility.
Affirmed.