Facts
In 2011, Sherri Stewart came to Philadelphia P.D. and said she was the victim of identity theft as a fraudulent Facebook page on her was created using a stolen picture from her authentic Facebook page. The fraudulent Facebook page was then slandering her and causing problems with her job. Stewart provided police with the name of John Dove who had more information.
Chief Richard Sistrunk did not know Dove and spoke with him two times on the telephone. The first time, Dove declined to come to the department in person and the second time he said that Stan Chesney has been doing this since 2010 with other users and has followed the same pattern with Stewart.
Sistrunk got a warrant for Chesney’s computer to look for identity theft on Stewart. Chesney advised that the computer was at a repair shop so police seized the computer at that location. There is some discussion of the repair man, Matthew Kaulfers, telling police he saw titles that were sexually explicit and depicted minors but 1) that was not in the police report, 2) Kaulfers could not remember details in court and did not want to be involved, and 3) police did not use this in their subsequent warrant for child pornography (CP).
As the police analyzed the computer, they came across photos depicting CP and stopped to get a second search warrant for CP. Images of CP were found and Chesney was convicted of exploitation of a child and sentenced to 40 years. On appeal, Chesney argued the first warrant lacked probable cause because the informant’s information was not corroborated. MCOA agreed with Chesney and reversed.
Analysis
A. Probable cause
Probable cause for a search warrant exists when the facts and circumstances within an officer’s knowledge are sufficient to justify a man of average caution in the belief that a crime has been committed and that a particular individual committed it.
In Woods, the MSC dismissed a case when the search warrant was solely based upon two telephonic conversations a metro narcotics agent had with a confidential informant who had never previously supplied any information to any law enforcement agencies. The agent failed to conduct an in person interview with the informant, or to otherwise make attempts to test her veracity or credibility other than conducting an NCC background check. Further, the agent failed to corroborate any of the information supplied by the informant through any independent investigatory means.
In this case, police spoke with Dove two times on the telephone and had never dealt with him in the past. Also, the affidavit never described the information from Dove as being reliable or credible, despite the form’s requirement that it do so. A confidential informant’s veracity may be demonstrated through a statement of the affiant that the confidential informant has given credible information in the past. Simply repeating an informant’s allegation, without more, does not overcome the threshold requirements for probable cause.
B. Exclusionary Rule
MCOA agreed with a federal 8th circuit case as well as a case from Ohio holding that the exclusionary rule is extended to evidence obtained through the issuance of a second valid search warrant. In other words, you can’t overcome the problems of the first search warrant by having a good second search warrant that was derived from the first search warrant.
C. Private Search Doctrine
The State argues that once Chesney gave his computer to Kaulfers for repair, and Kaulfers’s private search revealed the questionable file names, Chesney’s reasonable expectation of privacy was frustrated by the private search.
We agree that if the search and seizure of Chesney’s computer had occurred as a direct result of Kaulfers’s private search and subsequent notification of police, there would be no Fourth Amendment violation as Chesney’s reasonable expectation of privacy would be frustrated by his direction to Kaulfers to repair his computer and delete the files in question.
However, for reasons mentioned above, the court ignored the statements of Kaulfers. Consequently, the illicit photographs were obtained from a defective search warrant and were not obtained by the police as a direct result of Kaulfers’s private search.
The court then said the private search would not have worked in this case anyway because the police search of the computer exceeded the scope of Kaulfers’s private search. This is because the repair man only looked at the titles of the file and never actually viewed the contents of the file. Conversely, the police looked at the content of the files and exceeded what Kaulfers had seen.
D. Independent Source Doctrine and Inevitable Discovery Doctrine
These are two ways in which evidence which would normally be subject to the exclusionary rule are deemed admissible. The inevitable discovery doctrine applies if evidence would have been discovered absent the unlawful search while the independent source doctrine applies when the evidence actually was obtained independently from activities untainted by the initial illegality.
We find there was no independent source of information for the second search warrant in the present case. Sistrunk’s statement attached to the application for the second warrant said that the computer files were found by Chris Stokes, the computer technician for the police. Therefore, the second warrant, and resulting search of the computer, was expressly related to the evidence secured through the execution of the first warrant.
The State argues that Kaulfers’ disclosures to Sistrunk inside Gator Computers support the reasonable probability that Chesney’s computer and the child pornography stored on its hard drive would have been inevitably discovered. However, there was no evidence that Kaulfers would have independently contacted and informed the police of the computer files had the police not come to the store.
E. Chesney’s confession is inadmissible
Chesney confessed when confronted by police with information about what had been discovered on his laptop.
In Patterson v. State, 413 So. 2d 1036, 1038 (Miss. 1982), MSC said: A confession obtained by confrontation of an accused with articles indicating the commission of a crime obtained as a result of an illegal search renders the contemporaneous confession inadmissible. Likewise, where the confession comes so closely in time subsequent to the confrontation that the lapse has not attenuated the taint of illegality, proof of the confession may not be given.
Thoughts
This is the only Mississippi case I have found that discusses the private search doctrine so there isn’t much precedent. If you want to see how the 5th circuit handles this, click here.
As for the confession, we have seen another Mississippi case where a confession was valid after an illegal arrest. Obviously, the facts are much different (this is an illegal search and not an illegal arrest) but you should be aware that not every 4th amendment violation renders a confession inadmissible.