Opinion handed down August 4, 2009 [FN 1]
Link to Mo. Sup. Ct. Opinion
The Supreme Court of Missouri held that the trial court’s refusal to suppress evidence seized without a warrant was not clearly erroneous because of the inevitable discovery doctrine and that the subsequent warrant to search the items was not invalid because, regardless of any alleged impermissible evidence in the supporting affidavit, the affidavit was supported by sufficient independent probable cause. Further, the court found that there was sufficient evidence to support the convictions on counts of sexual exploitation of a minor and promoting child pornography.
On November 6, 2005, brothers K.K., eight years old, and C.M., five years old, communicated to their mother that, while at their friend’s home, they were photographed with their clothes off by their friend’s father, Robert M. Oliver. [FN 2] The mother of K.K. and C.M. reported the incident to the police who then investigated. [FN 3]
Detective Hill, two deputies, and an investigator with the Division of Family Services (DFS) went to Oliver’s residence where they explained to Oliver the allegations. [FN 3] Oliver claimed he had only taken pictures of the children’s bellies. [FN 4] The detective asked whether Oliver owned a digital camera, and Oliver responded that he did. [FN 5] The detective followed Oliver into his office and asked for Oliver’s consent to search the digital camera and computer tower he saw in the room. [FN 6] Oliver refused and insisted that the detective needed a search warrant. [FN 7] The detective called Detective Bailey, who then initiated the process to obtain a warrant for the items. [FN 8]
Meanwhile, DFS advised Oliver and his wife that they had three options: Oliver could leave the home, Oliver’s wife and children could leave the home, or the children could be taken into DFS custody. [FN 9] Oliver agreed to leave and departed the residence. [FN 10] After Oliver’s departure, Detective Hill acquired Oliver’s wife’s consent in writing to search the office and take the computer and digital camera. [FN 11] The officers and detective also took thirteen floppy disks and one CD-rewritable from a desk drawer opened by Oliver’s wife. [FN 12] Two weeks later, a search warrant application was filed to search the items seized and was granted. [FN 13]
Oliver was charged with sexual exploitation of a minor under section 573.023 and promoting child pornography in the first degree under section 573.025. Oliver filed a motion to suppress the evidence seized from his home, arguing a violation of his Fourth Amendment rights. [FN 14] The trial court overruled the motion at a preliminary hearing. [FN 15] A jury trial was held in which both children testified against the petitioner and photographs from the digital camera were admitted showing the children’s genitalia. [FN 16] Also, photos were submitted that showed the children doing things such as “bending over and using [their] hands to manually separate [their] buttocks.” [FN 17]
At trial, Oliver once again objected to the admission of this evidence, arguing it was inadmissible due to its seizure without a warrant and without consent and was once again overruled. [FN 18] Oliver was convicted of two counts of sexual exploitation of a minor and two counts of promoting child pornography in the first degree for possessing with the intent to exhibit the photos. [FN 19] Oliver was sentenced to two concurrent terms of fifteen years for sexual exploitation of a minor and ten years for promoting child pornography. [FN 20]
II. Legal Background
The court reviews a trial court’s ruling on motions to suppress the evidence in “a light most favorable to the ruling and defers to the trial court’s determination of credibility.” [FN 21] The decision will only be reversed if it was clearly erroneous, and the court will consider both evidence presented at the pre-trial hearing and any evidence presented at trial. [FN 22] Oliver challenged the trial court’s refusal to suppress the evidence on two grounds. [FN 23] First, Oliver argued that the items were inadmissible because they were seized in violation of his Fourth Amendment rights. [FN 24] Second, Oliver argued that the warrant was invalid. [FN 25] Finally, Oliver argued that the trial court erred in refusing to grant his motions for acquittal due to the State’s failure to provide sufficient evidence for a jury to find guilty beyond a reasonable doubt for the offenses of sexual exploitation of a minor and promoting child pornography in the first degree. [FN 26]
A. Fourth Amendment Violation
Oliver argued that the evidence obtained by the police and detectives were seized in violation of his Fourth Amendment right to be free from “unreasonable searches and seizures.” [FN 27] The Missouri Constitution, Article I, section 15 also provides the same guarantees against unreasonable searches and seizures, and the same analysis applies to cases under the Missouri Constitution as under the United States Constitution. [FN 28]
The court began by citing the general proposition that warrantless searches and seizures of the home are presumptively unreasonable without a warrant and evidence discovered as the result of a Fourth Amendment violation must generally be excluded. [FN 29]
Although the police and detective conducted the search and seizure based on Oliver’s wife’s consent, the court found it unnecessary to analyze whether the consent was valid because the evidence is admissible under the inevitable discovery doctrine. [FN 30] The inevitable discovery doctrine provides that evidence obtained from an unconstitutional search and seizure is nevertheless admissible if law enforcement would have ultimately or inevitably discovered the evidence. [FN 31] To show that evidence falls within the exception, the State must prove by a preponderance of the evidence “(1) that certain standard, proper and predictable procedures of the local police department would have been utilized and (2) those procedures inevitably would have led to discovery of the challenged evidence through the State’s pursuit of a substantial, alternative line of investigation at the time of the constitutional violation.” [FN 32]
The court found that the evidence supported a finding that the police would have discovered the evidence pursuant to a search warrant. [FN 33] The fact that the detective requested a search warrant prior to obtaining consent from Oliver’s wife is evidence that he would have followed the standard police procedure, and the detective also testified that he would not have left the Olivers’ residence without the computer and camera. [FN 34] Further, the detective’s warrant application was supported by sufficient probable cause at the time of application based on the child abuse report and Oliver’s admission to photographing the children with the camera. [FN 35] Because the evidence would have inevitably been discovered, the evidence was admissible, and the decision to admit the items by the trial court was not clearly erroneous. [FN 36]
B. Validity of the Search Warrant
Oliver argued that the affidavit to support the issuance of the warrant two weeks after seizure of the evidence admitted at trial contained evidence that was obtained from an illegal search and seizure and that, without this improper evidence, the warrant was not supported by probable cause. [FN 37] The court began with the proposition that the fact that improper evidence was used in support of a warrant does not itself invalidate the warrant unless, if setting aside all tainted allegations, the independent and lawful information stated in the affidavit fails to show probable cause. [FN 38] The court found that even without the alleged tainted evidence (primarily the make, model and serial number s on the hard drive and camera), the initial child abuse report and general information regarding the use of computers and child pornography were sufficient to establish probable cause to search the camera card, hard drive, and disks. [FN 39] As a result, the evidence was admissible, and the trial court’s determination to admit the evidence was not clearly erroneous. [FN 40]
C. Sufficiency of the Evidence
Oliver argued that the trial court erred in overruling his motions for judgment of acquittal due to the State’s failure to provide sufficient evidence for a jury to find guilty beyond a reasonable doubt for the offenses of sexual exploitation of a minor and promoting child pornography in the first degree. [FN 41] The court will give great deference to the trier of fact when reviewing the sufficiency of the evidence for a conviction and will only determine whether a reasonable juror might have found the defendant guilty beyond a reasonable doubt. [FN 42] Accordingly, the court accepts as true all evidence favorable to the State. [FN 43]
i. Sexual Exploitation of a Minor
Oliver argues that under section 573.023 merely depicting nude children does not depict “sexual conduct,” which is required under the statute. [FN 44] In support of this contention, Oliver argued that because another statute defining the offense of child abuse, section 568.060, already criminalizes this conduct, the legislature did not intend to criminalize the depiction of nude children under 573.023. [FN 45]
Sexual conduct is defined by section 556.061(29) as “acts of human masturbation; deviate sexual intercourse; sexual intercourse; or physical contact with a person’s clothed or unclothed genitals, pubic area, buttocks, or the breast of a female in an act of apparent sexual simulation or gratification.” [FN 46] The court found that the two photographs of the boys bending over and spreading their buttocks with their hands depicts sexual conduct. [FN 47] The conduct is an act of apparent sexual simulation, especially when considered in the context in which they were taken. [FN 48] Further, the fact that the same conduct can be charged under two separate statutes is inconsequential because “the state may elect which statute to proceed under.” [FN 49]
Therefore, there was sufficient evidence for a reasonable juror to find Oliver guilty beyond a reasonable doubt of sexual exploitation of a minor. [FN 50]
ii. Intent to Exhibit
Oliver argued that there was insufficient evidence to support a finding that he intended to exhibit the photos of the children or the images downloaded from the internet containing child pornography. [FN 51] Section 573.025 says, “[a] person commits the crime of promoting child pornography in the first degree if, knowing of its content and character, such person possesses with the intent to promote or promotes obscene material that has a child as one of its participants or portrays what appears to be a child as a participant or observer of sexual conduct.” [FN 52] One of the ways section 573.010(12) defines “promote” is to “exhibit . . . by any means including a computer.” [FN 53] “Exhibit” is not defined in the statute, so the court considers the plain meaning derived from the dictionary. [FN 54] “Exhibit” is defined in the dictionary as ‘to present to view; show; display.’ [FN 55] The defendant’s intent is most often shown by the surrounding circumstances of the act and the act itself. [FN 56]
Oliver took photographs of the children and put them on his computer, and one of the children testified that he saw the photo once uploaded onto the computer. [FN 57] The fact that Oliver deleted the photos before the evidence was seized does not negate the fact that he possessed with the intent to exhibit the photos on or about November 3, 2005. [FN 58] There was sufficient evidence for a jury to find that Oliver possessed the images and intended to exhibit them, regardless of subsequent deletion. [FN 59]
Further, there was sufficient evidence to support a finding that Oliver intended to exhibit the internet pornography. [FN 60] The fact that evidence showed that Oliver had viewed the images multiple times combined with the testimony from the children that he had exhibited similar photos to them is sufficient evidence to support a finding of the requisite intent to exhibit the internet pornography as well. [FN 61]
III. Conclusion
The Supreme Court of Missouri in this case demonstrates the wide latitude it has granted law enforcement in searching and seizing items in private homes. The court avoided discussing the issue of whether Oliver’s wife’s consent after Oliver’s rejection of consent would have been a proper basis upon which to find the search and seizure sufficient under the standards of the Fourth Amendment. The court’s use of the inevitable discovery doctrine, though substantially supported in this case, bypasses important Fourth Amendment considerations. The Department of Family Services essentially gave Mr. Oliver an ultimatum requiring him to be separated from his children. In order to comply with this ultimatum and to avoid the DFS taking custody of his children, Oliver consented to leave his home. After Oliver left, the detective and officers obtained the consent of Oliver’s wife to the search. There is potential here for police and state abuse of power. Unfortunately, the court never considered these issues, and we are left waiting for another day when the question of the state’s ability to manufacture consent to a search of the home is addressed more fully by the court.
-Bradley S. Dixon
[FN 1] No. SC 89888, 2009 WL 2381280 (Mo. Aug. 4, 2009) (en banc).
[FN 2] Id. at 1.
[FN 3] Id. at 2.
[FN 4] Id.
[FN 5] Id
[FN 6] Id.
[FN 7] Id.
[FN 8] Id.
[FN 9] Id.
[FN 10] Id.
[FN 11] Id.
[FN 12] Id.
[FN 13] Id.
[FN 14] Id.
[FN 15] Id.
[FN 16] Id. at 3.
[FN 17] Id.
[FN 18] Id.
[FN 19] Id.
[FN 20] Id.
[FN 21] Id. (citing State v. Edwards, 116 S.W.3d 511, 530 (Mo. banc 2003)).
[FN 22] Id.
[FN 23] Id.
[FN 24] Id.
[FN 25] Id.
[FN 26] Id. at 5.
[FN 27] Id. at 3.
[FN 28] Id.
[FN 29] Id. at 4 (citing State v. Rutter, 93 S.W.3d 714, 723 (Mo. banc 2002); State v. Miller, 894 S.W.2d 649, 654 (Mo. banc 1995)).
[FN 30] Id.
[FN 31] Id. (citing Rutter, 93 S.W.3d at 726).
[FN 32] Id. (citing Nix v. Williams, 467 U.S. 431, 444 (1984)).
[FN 33] Id.
[FN 34] Id.
[FN 35] Id.
[FN 36] Id.
[FN 37] Id.
[FN 38] Id. (citing State v. Mahsman, 157 S.W.3d 245, 251 (Mo. App. 2004)).
[FN 39] Id. at 5.
[FN 40] Id.
[FN 41] Id.
[FN 42] Id. (citing State v. Chaney, 967 S.W.2d 47, 52 (Mo. banc 1998)).
[FN 43] Id.
[FN 44] Id.
[FN 45] Id.
[FN 46] Id. at 6 (citing Mo. Rev. Stat. § 556.061(29) (Supp. 2004)).
[FN 47] Id.
[FN 48] Id.
[FN 49] Id. (citing State v. Koen, 468 S.W.2d 625, 629 (Mo. 1971)).
[FN 50] Id.
[FN 51] Id.
[FN 52] Id.
[FN 53] Id. at 7.
[FN 54] Id. (citing State v. Eisenhouer, 40 S.W.3d 916, 920 (Mo. banc 2001)).
[FN 55] Id. (citing Webster’s Third International Dictionary 796 (1993)).
[FN 56] Id. (citing State v. McIntyre, 63 S.W.3d 312, 315 (Mo. App. 2001)).
[FN 57] Id.
[FN 58] Id.
[FN 59] Id.
[FN 60] Id.
[FN 61] Id.
