State
v.
Reinpold

Not overruled or negatively treated on appealinfoCoverage
Supreme Court of Nebraska.Jan 4, 2013
824 N.W.2d 713 (Neb. 2013)
824 N.W.2d 713284 Neb. 950

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No. S–12–206.

2013-01-4

STATE of Nebraska, appellee, v. Tyler F. REINPOLD, appellant.

John S. Berry, of Berry Law Firm, Lincoln, for appellant. Jon Bruning, Attorney General, and George R. Love, Lincoln, for appellee.



Syllabus by the Court

1. Constitutional Law: Search and Seizure. Both the U.S. and Nebraska Constitutions guarantee an individual the right to be free from unreasonable searches and seizures.

2. Search and Seizure: Waiver. The right to be free from unreasonable searches and seizures may be waived by consent of the citizen.

3. Warrantless Searches: Proof. When the prosecution seeks to justify a warrantless search by proof of voluntary consent, it is not limited to proof that the consent was given by the defendant, but may show that the permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected.

4. Warrantless Searches: Police Officers and Sheriffs. A warrantless search is valid when based upon consent of a third party whom the police, at the time of the search, reasonably believed possessed authority to consent to a search of the premises, even if it is later demonstrated that the individual did not possess such authority.

5. Police Officers and Sheriffs: Search and Seizure: Evidence. A warrantless seizure is justified under the plain view doctrine if (1) a law enforcement officer has a legal right to be in the place which the object subject to seizure could be plainly viewed, (2) the seized object's incriminating nature is immediately apparent, and (3) the officer has a lawful right of access to the seized object itself.

6. Police Officers and Sheriffs: Search and Seizure: Probable Cause. For an object's incriminating nature to be immediately apparent, the officer must have probable cause to associate the property with criminal activity.

7. Probable Cause: Words and Phrases. Probable cause is a flexible, common-sense standard. It merely requires that the facts available to the officer would warrant a person of reasonable caution in the belief that certain items may be useful as evidence of a crime.

8. Police Officers and Sheriffs: Search and Seizure: Probable Cause. The probable cause standard, with regard to the plain view doctrine, does not demand any showing that a belief that certain items may be useful as evidence of a crime be correct or more likely true than false. Ultimately, satisfaction of the probable cause standard may leave the reporting officer with further need to investigate the items seized to confirm the incriminating nature of those items.

9. Police Officers and Sheriffs: Search and Seizure. Under the plain view doctrine, an officer does not need to have imminent concern regarding the disappearance of an item in question in order to legally seize the item.

10. Obscenity: Minors: Words and Phrases.Neb.Rev.Stat. § 28–1463.02 (Cum.Supp.2012) defines “child” as any person under the age of 18 years and, in the case of a portrayed observer, means any person under the age of 16 years.

11. Obscenity: Minors: Expert Witnesses. It is not always necessary for the government to present expert testimony on the issue of age for a fact finder to conclude that pornographic images depict a minor.

12. Jury Instructions: Appeal and Error. Failure to object to a jury instruction after it has been submitted to counsel for review precludes raising an objection on appeal absent plain error indicative of a probable miscarriage of justice.
John S. Berry, of Berry Law Firm, Lincoln, for appellant. Jon Bruning, Attorney General, and George R. Love, Lincoln, for appellee.
HEAVICAN, C.J., WRIGHT, CONNOLLY, STEPHAN, McCORMACK, MILLER–LERMAN, and CASSEL, JJ.

HEAVICAN, C.J.


INTRODUCTION

Appellant, Tyler F. Reinpold, a former police officer, was convicted after a jury trial of 10 counts of possession of child pornography. On March 9, 2012, Reinpold was sentenced on all counts to 60 to 120 months' imprisonment. Reinpold appeals.

FACTUAL BACKGROUND

In April 2003, Reinpold's parents purchased a house located in Mitchell, Nebraska. This house is their primary residence. In November 2007, Reinpold's parents purchased the adjoining house located at 1462 19th Avenue (the 1462 house) and subsequently began using the 1462 house as a rental property. At the time relevant to this appeal, there were six apartments located at the 1462 house: two smaller basement apartments, a main floor apartment, two apartments on the second floor, and a studio apartment on the third floor. Reinpold moved into one of the basement apartments when his parents first purchased the 1462 house, but eventually moved to a farmstead. However, Reinpold returned to the 1462 house in January 2010 and moved into one of the second-floor apartments. At this point in time, the 1462 house was also occupied by Reinpold's grandparents, Lyle and Janice Wakeley, and Reinpold's uncle, Michael Wakeley, son of Lyle and Janice.

From January through July 1, 2010, only Reinpold, Lyle, Janice, and Michael resided at the 1462 house, and no one was living in either basement apartment. Reinpold, Lyle, Janice, and Michael used the basement for storage, and they all had unfettered access to the basement. The basement could be accessed from both inside and outside the 1462 house. Reinpold and Michael both stored property in the northeast corner of the basement. Also at that time, Lyle had been assisting Reinpold's father with certain renovation tasks in the basement.

Reinpold moved from the 1462 house again in late June 2010, to a house in Scottsbluff, Nebraska. After the move, however, Reinpold left some of his belongings at the 1462 house in both the second floor apartment and the basement storage area.

On or about July 10, 2010, upon Janice's request, Lyle located a laptop computer in Reinpold's former second floor apartment. Janice wanted to use the laptop computer during a trip she had planned for the near future. Lyle asked Michael to examine the computer. While examining the computer, Michael and Lyle discovered that the computer owner was listed as either “Reinpold or Tyler.” They also discovered what they described as disturbing images of suspected child pornography.

Michael text-messaged Reinpold regarding the computer. Reinpold denied he owned the computer and claimed, via text message, that the computer belonged to a “pedo” named “Heath” he was investigating. That evening, Reinpold came to the 1462 house to retrieve the computer. Michael recorded their conversation about the computer. The audio recording reveals Reinpold again denied the computer belonged to him. The whereabouts of this computer are unknown to this date.

On August 9, 2010, Stacie Lundgren, a Nebraska State Patrol investigator specializing in Internet crimes against children, was assigned to investigate a rumor that Reinpold was involved with child pornography. Three days later, on August 12, Lundgren interviewed Michael at the 1462 house. Later that same day or the next day, Lundgren returned to the 1462 house to interview Lyle and Janice. Michael and Lyle told Lundgren about the disturbing images they had seen on Reinpold's computer, showed her the text messages Reinpold had sent to Michael regarding such, and played Michael's recording for Lundgren.

They also told Lundgren that Reinpold had several computer hard drives stored in the basement. Michael and Janice led Lundgren to the northeast corner of the basement. There, Lundgren viewed an open cardboard box with three hard drives. Lundgren took possession of the hard drives. On August 23, 2010, Lundgren obtained a search warrant to search the data stored on the hard drives. The data stored on the hard drives included suspected child pornography.

Reinpold was subsequently arrested and charged with 10 counts of possession of child pornography. He pled not guilty and filed a motion to suppress the evidence Lundgren found on the hard drives. At the December 28, 2011, motion to suppress hearing, Reinpold claimed he was renting the northeast corner of the basement from his father for storage, that the doors leading to the northeast corner of the basement were locked in 2010, and that someone had broken into the northeast corner of the basement to take possession of his items. This testimony was in conflict with the testimony of Michael, Lyle, and Lundgren.

Reinpold's motion to suppress was denied as to this issue. The district court found that Michael and Janice had common authority over the basement to consent to Lundgren's search of the basement and that the hard drives were in plain view and lawfully seized by Lundgren. The district court further found Lundgren did not make a deliberate falsehood or act with reckless disregard for the truth in executing a search warrant for the subsequent search of the hard drives.

Reinpold was later tried by a jury. At trial, he renewed his motion to suppress evidence, which was denied. In presenting its case, the State did not offer expert testimony regarding the ages of the persons in the images and videos found on Reinpold's hard drives. Reinpold subsequently submitted a motion for directed verdict, arguing that this evidence was necessary for the State to prove Reinpold's charges beyond a reasonable doubt. The district court denied that motion.

In instructing the jury, the district court provided in jury instruction No. 3:

The elements of Possession of Child Pornography as charged in Counts I through X are:


1. That [Reinpold] knowingly possessed a visual depiction of sexually explicit conduct, wherein a child (as defined in these instructions) was one of its participants or portrayed observers; and


2. That at the time [Reinpold] was nineteen years of age or older; and


3. That [Reinpold] did so on or about the dates charged in Scotts Bluff County, Nebraska.
Reinpold did not object to jury instruction No. 3 at trial.


At the conclusion of trial, Reinpold was convicted on all 10 counts of possession of child pornography. Reinpold appeals. We granted the State's petition to bypass.

ASSIGNMENTS OF ERROR

Reinpold assigns, restated and consolidated, that the district court erred in (1) denying his motion to suppress evidence found on his computer hard drives, (2) finding there was sufficient evidence to support his convictions when the State did not present independent evidence establishing that the actors in the photographs and videos admitted against him were under the age of 18, and (3) giving jury instruction No. 3.

STANDARD OF REVIEW

This court applies a two-part standard of review to suppression issues. With regard to historical facts, we review the trial court's findings for clear error. We review independently of the trial court's determinations whether those facts suffice to meet the constitutional standards of actual shared authority, apparent shared authority, warrantless seizure under the plain view exception, and the legal sufficiency of the law pertinent to the instant case.

State v. Hedgcock, 277 Neb. 805, 765 N.W.2d 469 (2009).


See id.


When reviewing a criminal conviction for sufficiency of the evidence to sustain the conviction, the relevant question for an appellate court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. In reviewing a criminal conviction, an appellate court does not resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evidence.


State v. Jonusas,
269 Neb. 644, 694 N.W.2d 651 (2005).


Plain error may be asserted for the first time on appeal. Plain error exists where there is an error, plainly evident from the record but not complained of at trial, which prejudicially affects a substantial right of a litigant and is of such a nature that to leave it uncorrected would cause a miscarriage of justice or result in damage to the integrity, reputation, and fairness of the judicial process.

Worth v. Kolbeck, 273 Neb. 163, 728 N.W.2d 282 (2007).


Id.


ANALYSIS

Motions to Suppress.

On appeal, Reinpold argues the district court erred in denying his motions to suppressthe evidence found on his computer hard drives for four separate reasons. We will consider each of Reinpold's four arguments in separate analyses.

Reinpold first argues the district court erred in finding Michael and Janice had shared authority to consent to the search of the northeast corner of the basement of the 1462 house. This court has previously ruled upon the Fourth Amendment issues present in this case. Both the U.S. and Nebraska Constitutions guarantee an individual the right to be free from unreasonable searches and seizures. In State v. Konfrst, this court held:

.U.S. Const. amend. IV; Neb. Const. art. I, § 7.


State v. Konfrst,
251 Neb. 214, 224–25, 556 N.W.2d 250, 259 (1996). See, also, State v. Walker, 236 Neb. 155, 459 N.W.2d 527 (1990); State v. Billups, 209 Neb. 737, 311 N.W.2d 512 (1981).


The right to be free from unreasonable searches and seizures may be waived by consent of the citizen. [Citation omitted.] When the prosecution seeks to justify a warrantless search by proof of voluntary consent, it is not limited to proof that the consent was given by the defendant, but may show that the permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected. [Citations omitted.] Furthermore, a warrantless search is valid when based upon consent of a third party whom the police, at the time of the search, reasonably believed possessed authority to consent to a search of the premises, even if it is later demonstrated that the individual did not possess such authority.


Here, Michael and Janice had actual and/or apparent authority to consent to the search of the northeast corner of the basement area of the 1462 house. It is uncontested that the basement was not for the exclusive use of Reinpold. Michael, Janice, and Lyle had unfettered access to the basement area and used it for storage. At the suppression hearing, however, Reinpold attempted to argue that the northeast corner of the basement was for his exclusive use and that he paid his father rent to use such space.

The record shows that there are two doorways to the northeast corner of the basement. Reinpold argues on appeal that these doors were locked at the time of the search. He provided photographs of the alleged locked doors taken close to the time of the suppression hearing. The photographs of the northeast corner provided by Lundgren at the time of the seizure of the hard drives, however, show no locks on the doors, and there appears to be an abundant amount of clutter in the storage area and doorways. The clutter is arranged in such a manner that does not allow the doors to be closed. Furthermore, there is no evidence in the record indicating Michael and Janice reported to Lundgren that the northeast corner of the basement was for Reinpold's exclusive use and that they were forbidden from entering that area.

The district court rejected Reinpold's contention that the northeast corner of the basement was for his exclusive use. Instead, the district court found Lundgren's photographs properly demonstrated how the northeast corner of the basement appeared at the time of the search. In considering these photographs, the testimony that Michael, Janice, and Lyle had unfettered access to the basement, and the testimony that Michael stored items in the northeast corner of the basement, the districtcourt concluded that Michael and Janice had actual and/or apparent common authority to consent to the search of the northeast corner of the basement area of the 1462 house.

See, e.g., State v. Daniels, 222 Neb. 850, 388 N.W.2d 446 (1986); State v. Van Ackeren, 194 Neb. 650, 235 N.W.2d 210 (1975).


This finding is not clearly erroneous. Reinpold's argument as to this issue is without merit. Plain View Doctrine.

Reinpold further argues his hard drives were not subject to the plain view doctrine. A warrantless seizure is justified under the plain view doctrine if (1) a law enforcement officer has a legal right to be in the place which the object subject to seizure could be plainly viewed, (2) the seized object's incriminating nature is immediately apparent, and (3) the officer has a lawful right of access to the seized object itself. As previously discussed, Lundgren had a legal right to be in the place where the hard drives were located and had a lawful right of access to the room where the hard drives were found, because Michael and Janice had common, shared authority to consent to the search of the northeast corner of the basement. Once at the northeast corner of the basement, Lundgren could plainly view the hard drives in an open cardboard box.

State v. Keup, 265 Neb. 96, 655 N.W.2d 25 (2003); State v. Buckman, 259 Neb. 924, 613 N.W.2d 463 (2000); State v. Shurter, 238 Neb. 54, 468 N.W.2d 628 (1991).


In addition to being in plain view, in order to be seized, the incriminating nature of the hard drives needed to be immediately apparent. For an object's incriminating nature to be immediately apparent, the officer must have probable cause to associate the property with criminal activity. “Probable cause is a flexible, commonsense standard.... It merely requires that the facts available to the officer would warrant a person of reasonable caution in the belief that certain items may be ... useful as evidence of a crime....”

Keup, supra note 10.


Id.
at 104, 655 N.W.2d at 33.


The district court found that the seizure of the hard drives was based upon probable cause, because at that time, Lundgren (1) had received background information through her investigation that Reinpold's laptop computer had not worked for 5 or 6 months and had been thrown away prior to moving to his new residence; (2) had interviewed Michael, Lyle, and Janice; (3) knew that both Michael and Lyle had recently seen suspected child pornography on Reinpold's laptop computer; (4) had seen a text message conversation of July 10, 2010, between Michael and Reinpold wherein Reinpold implicitly acknowledged child pornography on the laptop computer located in his former residence; (5) listened to the July 10, 2010, recorded conversation between Michael and Reinpold wherein Reinpold again acknowledged the child pornography on his laptop computer, but claimed it was part of an investigation of “Heath,” a “pedo”; (6) learned there was no official investigation of “Heath” by Scottsbluff police; (7) knew Reinpold had retrieved the laptop computer on July 10, 2010, and its whereabouts were unknown after that date; (8) knew that Reinpold's family members, including his father, grandparents, and uncle, would now be aware that Reinpold was under investigation by the State Patrol for possession of child pornography; (9) knew that pornography users tend to keep their pornography libraries rather than discard them; and (10) was told by Janice that the hard drives in the basement belonged to Reinpold.

As the U.S. Supreme Court has held several times, the probable cause standard, with regard to the plain view doctrine, “does not demand any showing that ... a belief [that certain items may be useful as evidence of a crime] be correct or more likely true than false.” Ultimately, satisfaction of the probable cause standard may leave the reporting officer with further need to investigate the items seized in order to confirm the incriminating nature of those items. Thus, the facts on record before the district court suffice to meet the constitutional standards for the plain view exception regarding seizure of property.


Brown, supra
note 13. See, Arizona v. Hicks, 480 U.S. 321, 107 S.Ct. 1149, 94 L.Ed.2d 347 (1987); 3 Wayne R. LaFave, Search and Seizure, a Treatise on the Fourth Amendment § 6.7(a) (4th ed.2004).


In light of all of these facts, it was reasonable for Lundgren to believe, especially with her expertise and experience within the field of Internet crimes against children, that the hard drives could be evidence of a crime. Lundgren had uncovered more than enough facts regarding Reinpold's suspected illegal activity and knew that pornography users tend to keep their pornography libraries electronically stored rather than discard them. This evidence, as well as her background, warranted Lundgren, as a person of reasonable caution, in the belief that the hard drives may be useful as evidence of a crime. Certainly such facts suffice to meet the constitutional standards discussed above for a finding of probable cause. Reinpold's argument as to this issue is without merit. Imminent Concern for Seizure.

Reinpold argues Lundgren did not have a justifiably “imminent” concern regarding the disappearance of the hard drives at the time she seized the hard drives. But this court held in Keup that an officer does not need to have imminent concern regarding the disappearance of an item in question in order to legally seize the item. Thus, Reinpold's argument as to this point is without merit. Lundgren's Affidavit.

Brief for appellant at 37.


Keup, supra
note 10.


Finally, Reinpold argues that Lundgren acted in reckless disregard of the truth in her affidavit in support of the warrant to search the seized hard drives. Reinpold contends Lundgren acted in reckless disregard for the truth in her affidavit in averring that Reinpold's property was abandoned when she knew that Reinpold had instructed Michael not to touch “his” property, the hard drives. Reinpold did not object to this statement before the district court regarding the constitutionality of the search warrant executed by Lundgren. Thus, we need not address this issue further on appeal.

See State v. Wetherell, 259 Neb. 341, 609 N.W.2d 672 (2000).


Reinpold did argue before the district court, however, that Lundgren acted in reckless disregard of the truth in her affidavit, because she told Michael she would need to look at the images before she could say whether they were illegal. In making this statement, Lundgren explained the need to search the hard drives subsequent to her lawful seizure of Reinpold's property within the constitutional boundaries of the plain view exception to warrantless seizures of property. Thus, Lundgren did not act in reckless disregard of the truth in her affidavit. Reinpold's argument as to this issue is without merit. Sufficiency of Evidence.

See Keup, supra note 10.


Reinpold next assigns that the evidence adduced by the State was insufficient to support his convictions for possession of child pornography, because the State did not present independent evidence establishing that the actors in the photographs and videos admitted against him were under the age of 18.

Reinpold was charged with 10 counts of knowingly possessing a visual depiction of sexually explicit conduct as defined in Neb.Rev.Stat. § 28–1463.02 (Cum.Supp.2012), which has a child, as defined in such section, as one of its participants or portrayed observers. The statute defines “[c]hild” as “any person under the age of eighteen years and, in the case of a portrayed observer, means any person under the age of sixteen years.” Reinpold argues the State did not present any evidence that the persons visually depicted in the video clips or photographs were children as defined by the statute. Instead of providing expert testimony as to the age of the actors, Reinpold notes the district court merely instructed the jury to make a determination of the age of the actors based upon their own personal experience, observation, common sense, or knowledge as a parent, person, and adult. Reinpold contends such a presentation of the evidence was insufficient to support his convictions for possession of child pornography.

§ 28–1463.02(1).


Various courts, including the U.S. Court of Appeals for the Eighth Circuit, have concluded that it is not always necessary for the government to present expert testimony on the issue of age for a fact finder to conclude that pornographic images depict a minor. When presented with a similar argument on appeal, the Eighth Circuit held that the standard of review regarding claims of insufficiency of the evidence was “ ‘whether or not there is substantial evidence, taking the view most favorable to the government, to support the factual determination.’ ” The Eighth Circuit then engaged in an independent review of the pornographic photographs and found that the photographs depicted minors and that there was substantial evidence for the defendant's conviction.

U.S. v. O'Malley, 854 F.2d 1085 (8th Cir.1988). See, also, U.S. v. Riccardi, 405 F.3d 852 (10th Cir.2005); U.S. v. Katz, 178 F.3d 368 (5th Cir.1999); U.S. v. Cameron, 762 F.Supp.2d 152 (D.Me.2011), affirmed in part, and in part reversed on other grounds699 F.3d 621 (1st Cir.2012); U.S. v. Villard, 700 F.Supp. 803 (D.N.J.1988); U.S. v. Gallo, No. 87–5151, 1988 WL 46293, 1988 U.S.App. Lexis 19550 (4th Cir. May 12, 1988) (unpublished disposition listed in table of “Decisions Without Published Opinions” at 846 F.2d 74 (4th Cir.1995)).


O'Malley, supra
note 20, 854 F.2d at 1087.


O'Malley, supra
note 20.


We concur with the reasoning of the Eighth Circuit. Although it is upon the State to make the judgment as to whether to present expert testimony regarding the age of actors in alleged child pornography, it is a question of fact for the jury to decide whether the actors in alleged child pornography are under the age of 18. The State may indeed risk losing the case by not presenting expert testimony regarding such, but ultimately, it is for the jury to decide, with or without an expert's opinion, whether the evidence exhibits child pornography.

The jury here viewed all of the videos and photographs and determined the actorswere under the age of 18. Upon independent review of the evidence, this court determines that the photographic and video evidence presented to the jury by the State is sufficient to support Reinpold's convictions. Any rational trier of fact could have found beyond a reasonable doubt that the actors in the videos and photographs were under the age of 18, pursuant to statute. The State did not have to provide the jury with expert testimony regarding the age of the actors in order to make this determination. Reinpold's argument as to this issue is also without merit. Whether District Court Erred in Giving Jury Instruction No. 3.

Finally, Reinpold assigns jury instruction No. 3 is fatally defective because it failed to instruct the jury that “Reinpold's knowing possession of [child] pornography” is a separate element from the element requiring that the visual depiction in the pornography be that of a child. Reinpold, however, did not object to jury instruction No. 3 at the time of trial. Failure to object to a jury instruction after it has been submitted to counsel for review precludes raising an objection on appeal absent plain error indicative of a probable miscarriage of justice. Thus, we need not address this issue further on appeal. Accordingly, Reinpold's convictions should be upheld.

Brief for appellant at 40. See § 28–1463.02(1).


State v. Mowell,
267 Neb. 83, 672 N.W.2d 389 (2003).


CONCLUSION

The decision of the district court is affirmed.

Affirmed.