After being convicted of “committing a lewd and lascivious
act upon a child” in violation of California Penal Code § 288(a) and “possessing
child pornography” in violation of California Penal Code § 311.11(a) and
sentenced prison for “62 years to life”, Joseph White appealed, making several
arguments as to why evidence should have been suppressed. People v. White, 2012 WL 5990991 (California Court of Appeals
2012).
I’m only going to focus on two of them: (i) that his girlfriend’s mother did not have
authority to consent to the search of the apartment; and (ii) that a laptop in which
White had a 4th Amendment reasonable expectation of privacy was
improperly seized without a warrant. First, though, this is how the case arose:
Eight-year-old Haley lived at an apartment complex in
Sacramento. In April of 2009, a resident of the complex, Nicole Buzzetta (Nicki)
came by Haley's apartment and asked if she wanted some kittens. Haley went to
Nicki's apartment with her sister to look at the kittens. On May 12, Haley told
her mother she was going to the complex's parking lot to show a friend her
glasses and then see the kittens. People
v. White, supra.
Haley returned home “very scared.” People v. White, supra. She
told her mother Nicki's boyfriend, White, grabbed her by the hand and asked her
what she was doing in the parking lot. He led Haley to a green truck; while he
sat in the truck and she stood outside it, he stuck his hand down her shorts
and touched her vagina. People v. White, supra.
Someone contacted the police, because Sacramento County
Sheriff’s Detective Darin Pometta “learned from Haley” that the person who had
touched her was associated with
Nicki who resided in apartment 104.
Pometta . . . learned the tenants for apartment 104 were Nicole Buzzetta and
Tommie Butler. . . .
[O]n June 16, Pometta and . . .
Detective Anthony Saika knocked on the door of apartment 104. . . . Butler
invited the[m] in. . . . Buzzetta and Butler . . . agreed to answer questions.
. . . Pometta met with Buzzetta in the parking lot while Saika met with Butler
in the apartment. . . .
Butler . . . told [Saika] her son, [White],
was engaged to Buzzetta. . . . Butler said [he] was out of town looking for
work. . . . Saika learned the green Chevy Tahoe . . . identified by Haley was
registered to Buzzetta's father but it was, for practical purposes, Buzzetta's
car.
People v. White,
supra.
The detectives went back to the station, compared notes and
decided to focus on White. People v. White, supra. A records check showed that he “had
outstanding warrants and was a registered sex offender from Santa Cruz County.”
People v. White, supra. The detectives went back to the apartment to
find out more about White. People v.
White, supra. They knocked on the
door around 11:00 a.m. and Butler answered:
Pometta . . . asked if they could. . .
speak with her. Butler opened the door and gestured with her hand in an
inviting manner, and the detectives entered the apartment. Pometta asked if
there was anyone else in the apartment. Butler said her daughter and two
grandsons were sleeping in a bedroom in the back. Pometta asked if he could
look in the bedrooms and verify. Butler said he could. She directed him down
the hallway to a room on the right, and he entered the room. He saw a female
sleeping on the floor with an infant next to her and another toddler sleeping
in a crib.
Pometta left . . . and asked Butler if
anyone else was in the apartment. She said there was not. Pometta went into the
adjacent room. The door . . . was slightly ajar, and appeared to be leading to
the master bedroom area. As he opened the door and entered the room, he noticed
a man standing motionless to his left. The man was standing inside the
threshold of an adjacent door. This startled Pometta, but he recognized the man
as [White]. With his weapon drawn, he ordered [White] to the ground.
People v. White,
supra.
Pometta cuffed White and led him into the living room. Butler.
People v. White, supra. White said
his wallet was on top of the bed in the master bedroom. People v. White, supra. Pometta
went back to the master bedroom and retrieved a wallet from the bed. People v. White, supra. As he did so, “he noticed a black laptop
computer on the floor at the foot of the bed” that was “plugged into the wall
socket.” People v. White, supra. Butler told Saika White had been “living in
the apartment with her since she had moved in approximately a year and a half
ago.” People v. White, supra.
The officers took White to the station, where he asked
Pometta to give the wallet to Butler. People v. White, supra. Butler and Buzzetta came to retrieve it, and
Pometta wound up interviewing Buzzetta. People v. White, supra. She told him about Haley’s coming to the
apartment to see the kittens and said she had a photograph of Haley and White
together, which she thought was in her digital camera. People v. White, supra.
Pometta told Saika to go to the apartment and get the digital camera or the
memory card with the photo. People v.
White, supra. He told Buzzetta that
Saika would meet her at her apartment; she had no objections. People v. White, supra.
Pometta also told Saika to get the laptop he saw in the
master bedroom. People v. White, supra.
Saika went to the apartment where Buzzetta showed him a digital camera and a
photo of Haley and White. People v.
White, supra. Saika asked for the camera's memory card, and Buzzetta gave
it to him. People v. White, supra. Saika then told her he wanted to take the
laptop because it might contain other useful photos. People
v. White, supra. Buzzetta picked up the laptop, sat on the bed, and began
pushing keys; Saika asked if there was a password on it. People v. White, supra.
Buzzetta said she had a password and White had a password,
but the computer was hers. People v.
White, supra. She initially said she
did not know his password but later said “she checked his settings in regards
to the pictures she had on the computer.” People
v. White, supra. Buzzetta turned off
the laptop, unplugged it and gave it to Saika; and she told him her password. People v. White, supra. On July 3, Pometta got a laptop and viewed
“some of the items on" it, which “included child pornography.” People
v. White, supra. That led to the
possession charge noted above.
That brings us to White’s first argument as to why the
evidence should be suppressed: that his
mother did not have authority to consent to a search of the apartment. Wikipedia notes, consent is an exception to
the 4th Amendment’s default warrant requirement, i.e., to the
requirement that officers have a warrant in order to search for and seize
evidence. And as I have noted in earlier
posts, consent substitutes for a warrant because by consenting, you basically
waive your 4th Amendment rights.
As I have also noted in earlier posts, consent substitutes
for a warrant if the person who consented to the search and/or seizure had
actual authority to consent OR if the officers reasonably, though incorrectly,
believed the person had such authority (apparent authority). For more on that, check out this
article.
Here, White argued that the trial judge erred in denying his
motion to suppress by finding that Butler “had the authority to consent to the
detectives entering the apartment and [his] bedroom.” People v. White, supra. The
trial judge found that the “detectives reasonably relied on Butler's apparent
authority, even if she had no authority in fact, to admit them into [White’s]
bedroom.” People v. White, supra.
The Court of Appeals agreed.
It explained that “whether or not” Butler had actual
authority to consent to the search of
the master bedroom, the detectives' belief that she had that authority was
reasonable. Nothing in the . . . circumstances would have led a reasonable
person to doubt Butler's authority. She and Buzzetta were listed on the lease
as the only tenants. She was the person who invited the detectives into the
apartment on the first two visits and consented to Pometta searching the
bedrooms on the second visit. Based on what she and Buzzetta had told them, the
detectives had no reason to believe anyone else lived at the apartment.
When the detectives made their second
visit, there was no indication Buzzetta had exclusive control of the master
bedroom. The door to that room was slightly open, and from what the detectives
knew . . . the room could have been used by Butler or Buzzetta or both, since
the other bedroom was occupied by a woman and two children, . . . whom Butler
identified as her daughter and grandchildren. Under these circumstances, the
detectives' belief in Butler's authority to consent to their searches was
reasonable and did not violate [White’s] rights under the 4th Amendment.
People v. White,
supra.
The Court of Appeals also noted that “[m]ore significantly,”
the evidence admitted based on the
detectives' second visit
to the apartment was discovered upon defendant's consent.
After bringing a handcuffed [White] to the living room, Pometta asked him for
identification. [White] told him it was in his wallet on top of the bed in the
master bedroom, implicitly granting Pometta consent to reenter the bedroom and
retrieve [his] wallet. [At the suppression hearing,] Pometta testified it was
not until he went back into the master bedroom to retrieve [White’s] wallet
that he saw the laptop. And it was that laptop, first seen by Pometta under
consent from [White], which led to the discovery of the additional evidence
found in the room.
People v. White, supra
(emphasis in the original.)
Based on these facts, the Court of Appeals held that “the
detectives reasonably relied on Butler's apparent authority and [White’s]
actual authority to enter [his] bedroom without a search warrant.” People
v. White, supra.
That brings us to White’s other argument: that “the seizure
of Buzzetta's laptop violated his 4th Amendment rights because he had a
reasonable expectation of privacy in” it.
People v. White, supra. The court noted that the “`application of the
4th Amendment depends on whether the person invoking its protection can claim a “`reasonable . . . expectation of privacy' that has been invaded by
government action.’” People v. White,
supra (quoting Smith v. Maryland, 442 U.S. 735 (1979)). As I’ll explain in a moment, I think this is
the wrong standard to be used in analyzing White’s concededly ill-framed
argument.
The court then explains, correctly, that to have a
reasonable expectation of privacy in a place or thing, the person must
subjectively believe it is private and society must accept that belief as
objectively reasonable. People v. White, supra. For more on that, check out this prior post.
The Court of Appeals found that White did not have a
reasonable expectation of privacy in the laptop because it
belonged to Buzzetta, not [White].
Although he had a profile and a password on the computer, he apparently had
shared those with Buzzetta, as she checked his settings regularly regarding her
photographs. Thus, he did not exclude Buzzetta from his profile, nor did he
control his settings on the laptop.
[White] analogizes his situation to
that of an overnight houseguest, who the courts have held has a legitimate
expectation of privacy in his host's home. (Minnesota v. Olson, 495 U.S. 91 (1990).] But this analogy does not address [his] expectation of privacy in
Buzzetta's laptop computer.
An overnight guest who shares a laptop
computer with his host will not have a reasonable expectation of privacy in the
shared laptop, particularly when he does not own or control the laptop. The 4th
Amendment's protection depends on the reasonable expectations of privacy held
by people, not simply on the location of the item the people seek to keep
private. (Katz v. U.S., 389 U.S. 347 (1967).)
People v. White,
supra.
For this and other reasons, the court rejected White’s 4th
Amendment arguments and affirmed his convictions. People
v. White, supra. In People v. Blair, 321 Ill. App.3d 373, 748 N.E.2d 318 (Illinois Court of Appeals 2001), which also involved a prosecution
for possessing child pornography, the defendant’s motion to suppress challenged
his father’s authority to consent to officers’ seizing a computer that belonged
to him (not his father) and that his father did not use. The court explained that the authority to
consent to a seizure, unlike authority to consent to a search, is predicated on
ownership, not on a reasonable expectation of privacy. The Court of Appeals held that the consent of
a
third party is
ineffective to permit the government to seize property in
which the third party has no actual or apparent ownership interest. Rather,
a seizure is
lawful only when the owner of the property consents to the
seizure. . . .
People v. Blair,
supra. The court therefore held that the father’s consent was ineffective,
which meant the son’s motion to suppress should have been granted, which means
that his convictions were reversed. People v. Blair, supra. Here, the laptop belonged to Buzzetta, so she
would have actual authority to consent to its seizure. So my problem with this part of the court’s
opinion is not that the result is wrong . . . but that the court used the wrong
4th Amendment principle to uphold the trial judge’s denying the
motion to suppress.
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