Facts
David Hunter Moore is co-owner of Advantage One LLC (Advantage One) and Moore Advanced Inc. (Advanced). These businesses occupy Suites D and E in a strip-center-type building. On January 2, 2019, before leaving work for the day, Sholonda Williams, an employee of Advanced, went to use the restroom located directly in front of her desk area. She discovered a telephone charger plugged into an electrical outlet in the employees’ restroom. Since her phone had died, Sholonda plugged her phone into the charger. The phone began charging, but she discovered there was nowhere to place her phone. According to her testimony, she unplugged the charger, and a “little blue infrared blinking light kind of winked at me in the top corner.” Sholonda explained that she took pictures of the charger and used the internet to “locate the product to make sure that I wasn’t mistaken or that it was what I thought it was.” Sholonda testified that she located the “exact product” on the internet and found that it was also a camera in addition to a charger.
Without saying anything to the other employees, Sholonda left work and went home after finding the device. She called a relative who is an attorney and was advised to contact the police and file a report. The next day, planning to resign from her position at Advanced, Sholonda went to the Hernando Police Department to seek assistance in retrieving her belongings from her workplace and to make a report. She gave police an oral and a written statement concerning her discovery of the camera/charger at work. She identified Moore and Justin Hankins as the owners of the business, and she suspected one of them had placed the device in the restroom. Sholonda testified that the three people she spoke to at the police station were a female officer whose last name was McCoy and Detectives Michael Hansbro and Dexter Gates. According to Officer McCoy, Sholonda requested an officer to accompany her to Advanced because she had found a camera in the bathroom and wished to resign. McCoy had her fill out a voluntary witness statement, and then Sholonda spoke with Gates and Hansbro.
After Sholonda gave her statement, she e-mailed Hansbro the photographs she had taken of the device with her phone. At that point, Detective Hansbro went to his office, searched the internet, and found a device that looked identical or visually identical to the one in the photo that Sholonda supplied. Hansbro confirmed that the device was a black USB charger with a hidden camera. At trial, Hansbro explained that during his investigation of the device, he learned that it had an SD memory card that could capture images. He also learned the camera/charger had motion detection.
Having been advised that Sholonda was employed by Advanced and that the camera was there the day before her report was filed, Hansbro and Gates did some research. They found that filming a person without the person’s permission in a place where the person would intend to be in a state of undress and have an expectation of privacy is a felony. Hansbro and Gates then drove by the building where Advanced was located and ran the tags of Moore and Hankins, who Sholonda had identified as her employers. At that point, Hansbro typed up the underlying facts and circumstances in order to procure a search warrant. After Hansbro and Gates got additional officers lined up to accompany them to serve the search warrants, they went to see municipal Judge Robert Quimby. After swearing in the officers, Judge Quimby reviewed the underlying facts sheet, heard their testimony concerning the incident, and signed the search warrant.
After obtaining the search warrant, Hansbro asked Sholonda to go into the business and confirm whether the camera was still there. When Sholonda entered the business, Hansbro and the others were parked directly across the street from the business. Sholonda testified that when she entered the bathroom, she shut the door and locked it “probably for [her] own safety.” She also testified that her only purpose for entering the bathroom was to look for the camera. After Sholonda confirmed that the camera was still there, Hansbro, Gates, and two other officers entered the businesses and found Moore and Hankins.
Upon entering the building, Hansbro observed that Advanced and Advantage One were connected by an open doorway between the two suites. Sholonda testified that the connecting door was always open, though it did have a lock. Hansbro testified that he and the other officers entered the building through Suite D, because that was how Sholonda entered. Moore and Hansbro went to Moore’s office located in Suite E, and Hansbro advised him that they were there to serve the search warrant. Meanwhile, Gates was talking with Hankins elsewhere in the building. Hansbro testified that when he advised Moore why they were there, Moore admitted to owning the camera/charger and advised that he had purchased some from Amazon. Moore told Hansbro that he had initially placed the cameras in the office to keep people from stealing. When Hansbro asked him what was depicted in the videos, Moore said they showed breasts and vaginas.
According to Hansbro, when he realized that Sholonda’s desk area and the restroom at issue were in Suite D and their warrant only authorized a search of Suite E, out of an abundance of caution he went back to get an amended search warrant to include both suites. He left the other officers in place to secure the premises until he obtained the amended search warrant. The only change he made to the affidavit for a search warrant and to the warrant itself was to add Suite D as a place to be searched. According to Hansbro’s testimony, he, Gates, and the other officers conducted the search and seized the evidence only after the second warrant was executed. Hansbro testified that the language in the amended warrant was identical in every way to the first one except for the addition of Suite D. Judge Quimby signed the amended warrant, and Hansbro returned to the businesses, met with Gates and Moore, and then searched both businesses.
Hansbro testified that after the second warrant was executed, he seized the bathroom camera Sholonda had described, but admitted that before he executed the amended warrant, he “peeked” into the bathroom to verify the camera’s location. After obtaining the amended warrant, Hansbro and the other officers seized forty-five pieces of evidence related to the search warrant. The devices included three USB hidden cameras, numerous SD cards, numerous flash drives, numerous cell phones, and three Dell laptops.
The evidence was given to Detective Greg Horton, a digital forensic examiner with the DeSoto County Sheriff’s Department, who extracted the images captured by the devices seized during the search. Horton went on to explain that he performed digital forensic examinations of all the devices and extracted the information he found. He placed the information he extracted on an external hard drive and gave it to Hansbro.
Law enforcement ultimately learned that Moore had recorded people in the other bathroom at the business and at his home. Hansbro was able to view videos of Advanced employees from both suites using the bathroom. Hansbro also saw images from a bathroom they could not identify at the time, but they ultimately learned the bathroom was located in Moore’s home. At least two of the victims who testified at trial were videoed at Moore’s home.
At trial, the jury found Moore guilty of fifteen counts of video voyeurism and one count of video voyeurism against a victim under sixteen years of age. Moore was sentenced to five years on each of the video voyeurism counts and ten years on the count of video voyeurism against a minor, all to run concurrently. On appeal, Moore argued the warrant should have been suppressed. MCOA affirmed.
Analysis
A. Outrageous Conduct by Law Enforcement
Moore contends that law enforcement’s narrative report, consisting of forty-one pages, with 354 numbered paragraphs, is misleading by concealing that 1. two search warrants were obtained; 2. the first warrant did not describe the business the officers first entered (Suite D); 3. the camera at issue was actually found in Suite D; and 4. the officers destroyed the first warrant.
Hansbro destroyed the first warrant in violation of Mississippi Code Annotated section 97-9-125(1)(a) and failed to return the first search warrant to the court in violation of Mississippi Rule of Criminal Procedure 4.4(b).
Based upon the testimony of Hansbro, Gates, and Judge Quimby at the suppression hearing, the trial judge specifically found that a first warrant did exist, that it was limited to Suite E, and that Hansbro had improperly destroyed the first warrant after obtaining an amended search warrant covering both Suites D and E. The trial judge further found that Hansbro’s destruction of the first warrant was not done in bad faith. The trial court ruled that the officer’s actions in halting the first search, securing the premises, and obtaining a warrant that included both suites were reasonable and that said conduct evinces a good faith effort to protect the constitutional rights of the Defendants. This portion of Moore’s argument is without merit.
B. Entry into Suite D Without a Valid Search Warrant
Moore also argues that law enforcement directed Sholonda to enter the business to confirm that the camera/charger was still in the restroom. He contends that once Sholonda notified law enforcement that the device was indeed still present, law enforcement unlawfully entered Suite D and found it. Thus he argues that multiple law enforcement officers and their agent, Sholonda, unlawfully entered Suite D without a warrant. It is important to note that these businesses were open to the public and that Sholonda was still an employee at the time she entered the business.
In Murphy v. State, 426 So. 2d 786 (Miss. 1983), MSC stated the evidence shows that various people went to and from the shop for the purpose of doing business with appellant, and we hold that it was a public place. In Katz v. United States, 389 U.S. 347 (1967), SCOTUS said what a person knowingly exposes to the public, even in his home or office, is not a subject of Fourth Amendment protection. In United States v. Various Gambling Devices, 478 F.2d 1194 (5th Cir. 1973), the Court said: The federal courts have consistently held that a law enforcement officer may enter commercial premises open to the public and observe what is in plain view.
The initial probable cause established grounds for a lawful search of Sholonda’s employee restroom in Suite D albeit incorrectly labeled as being in Suite E. The trial court found that law enforcement then properly secured both suites and, in good faith, obtained a new search warrant for both suites. The trial judge found that both warrants were supported by probable cause and that all the evidence was seized after the second warrant was obtained and should not be excluded. We conclude that neither Sholonda (via agency) nor law enforcement violated Moore’s Fourth Amendment rights by entering the businesses located in Suite D.
C. False Time
Moore claimed Judge Quimby allegedly entered a false time of issuance of the second warrant. Quimby put the time as 1:45 for the second warrant, which was actually the time of the first warrant.
Mississippi Rule of Criminal Procedure 4.3 provides as follows:
Every search warrant issued by the court shall:
(1) command the law enforcement officer to search, within a specified time not to exceed ten (10) days, the person(s) or place(s) named in the search warrant and to return the warrant and an inventory of the thing(s) seized to the court as designated in the warrant;
(2) designate the court to which the warrant and an inventory of the thing(s) seized shall be returned; and
(3) be signed and dated by the judge, showing the exact time and date and the name of the law enforcement officer to whom the warrant was delivered for execution.
At the suppression hearing, Judge Quimby testified that when Hansbro came back to him for the second search warrant, the judge was of the opinion that Hansbro was amending the first warrant. Judge Quimby stated that he put the time the first warrant was issued on the second warrant because “I wanted to keep the same time frame.” As noted above, Rule 4.3(1) requires that the warrant be executed and returned within ten days of its issuance.
In Brown, the trial judge failed to put the time that the search warrant was issued on the face of the warrant. The evidence showed, however, that the warrant was executed within hours of its issuance. In declining to find the search warrant invalid, this Court held because the officer executed the warrant within mere hours of its issuance, the laudable goals of execution of the warrant within ten days were met. Although the warrant technically violated Rule 4.3, the search and seizure actions by the government in this case were in conformance with the Constitution.
Just as in Brown, the testimony in the present case shows that the second search warrant was executed within hours of its issuance, so the goals of the rule were met.
D. Warrant authorized search for cash and drugs
Moore also contends that Judge Quimby could not have possibly read the affidavits underlying the warrant because the warrants authorized a search for cash or drugs (attachment A) and no affidavit or other evidence claims any cash or drugs were involved. Hansbro testified that those items should not have been listed in the warrant. Judge Quimby testified that he missed that language and that it should have been crossed out. In Carney v. State, 525 So. 2d 776 (Miss. 1988), MSC reasoned that the portion of the warrant not based upon probable cause was invalid. The alternate view is that the inclusion of these items taints the entire warrant. However, it furthers this State’s policy of encouraging the use of warrants to sever the properly listed items from the improperly listed ones.
E. Gates not present when second warrant signed
The same “Underlying Facts and Circumstances” document sworn to by Hansbro and Gates was presented for the second warrant, but Gates was not present at the time the second warrant was issued. Gates initialed as an affiant to the second warrant after it was executed. Moore cites no authority to support suppressing the evidence based on these allegations. We note there is no requirement that more than one affiant be present to obtain a search warrant. Moore cites no authority for the proposition that Gates’ initialing the second warrant after it was executed invalidates that warrant. The trial judge found that the second warrant was properly signed and executed, and we find this decision was supported by substantial evidence. This argument is without merit.
F. Exclusionary Rule
In Delker, the chief of police for the Town of Marion made an arrest for felony DUI on a road he mistakenly believed to be within the Town of Marion. MSC found that the evidence seized pursuant to this arrest was not subject to the exclusionary rule. To trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system. As laid out in our cases, the exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence.
The trial judge found that the confusion as to the exact address of Sholonda’s workspace and restroom, and the other problems discussed above, created the need to obtain a new warrant. The actions law enforcement took in response did not rise to the level of deliberate, reckless, or grossly negligent conduct that would invoke the need to exclude the evidence seized pursuant to the warrants.