PEOPLE v. BLAIR No. 3-99-0925.
748 N.E.2d 318 (2001)
321 Ill. App.3d 373
254 Ill.Dec. 872
The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Gary L. BLAIR, Defendant-Appellant.
Appellate Court of Illinois, Third District.
April 24, 2001.
John X. Breslin, Deputy Director, State's Attorneys Appellate Prosecutor, Ottawa, Gary L. Spencer, State's Attorney, Morrison, Nancy Rink Carter (argued), State's Attorneys Appellate Prosecutor, Ottawa, for the People.
Justice SLATER delivered the opinion of the court:
After a stipulated bench trial, defendant, Gary L. Blair, was convicted of 16 counts of possessing child pornography (720 ILCS 5/11-20.1(a)(6) (West 1992)). On appeal, defendant contends the trial court erred by denying his motion to suppress. For the reasons that follow, we reverse defendant's convictions outright.
At the outset, we acknowledge that defendant raises other claims of error. However, in light of our disposition of defendant's claim concerning the denial of his motion to suppress, it is unnecessary for us to address the other issues he raises and we decline to do so.
At the residence, they were greeted by Howard Blair, defendant's father. Dean and Chrisholm identified themselves as police officers, informed Blair about his son's arrest, and asked to come in to speak to Blair about his son. Once inside, Dean and Chrisholm asked if they might look at defendant's belongings. Blair gave permission but informed the officers that defendant's bedroom was locked and that he did not have a key to the room. Blair also noted that he lacked a key to certain lockers owned by defendant that were located in the basement.
The search eventually led to a small room in the basement where the officers came upon a computer. Blair informed the officers that the computer belonged to his son. At the hearing on defendant's motion to suppress, Blair testified that he had no ownership interest of any kind in his son's computer. Deputy Sheriff Chrisholm turned on the computer. Dean testified that it was his belief that Chrisholm asked Blair's permission to activate the computer. However, in their testimony, both Blair and Chrisholm denied that any such permission was requested or obtained.
At the suppression hearing, Chrisholm described his subsequent actions in the following manner:
Dean and Chrisholm then seized the computer. The elder Blair did not recall the officers asking permission to remove the computer, but conceded that his memory of the event was not good. Dean, Chrisholm, and another police officer who had arrived on the scene, all testified that Blair gave them permission to take the computer.
A subsequent search of the computer revealed the presence of 16 files capable of displaying a video or still image depicting either a lewd exhibition of a minor or a minor engaged in a sexual act. As a result, defendant was charged by information with 16 counts of possessing child pornography.
In denying defendant's motion to suppress, the trial court found that Howard Blair had given valid consent to search the common areas of the residence he shared with his son and that his general consent extended to permission to activate his son's computer and inspect its contents. The trial court also found that Blair had the requisite authority to consent to a seizure of the computer. After the trial court's ruling, defendant agreed to a stipulated bench trial but specifically reserved his right to appeal the denial of the motion to suppress.
Our federal and state constitutions guarantee the right to be free from unreasonable searches and seizures. U.S. Const., amends. IV, XIV; Ill. Const. 1970, art. I, § 6. A warrantless search or seizure is per se unreasonable unless it comes within one of a few recognized and limited
While affording due deference to a trial court's findings of historical fact and reasonable inferences therefrom, this court reviews de novo the ultimate reasonableness of a warrantless search or seizure and, therefore, the applicability of exceptions to the warrant requirement. See Ornelas v. United States,
One exception to the warrant requirement obtains where a person possessing common authority over premises or effects voluntarily consents to a search. United States v. Matlock,
In the case at bar, it is clear that defendant's father, Howard Blair, gave police valid consent to search the common areas of his home. Moreover, defendant does not contest Blair's authority to allow a search of the small basement room where defendant's computer was discovered. What defendant does dispute is whether police obtained valid consent to activate the computer and permit an inspection of the information stored there.
We find that this issue is ultimately irrelevant to the admissibility of the computer files. For, even assuming that Howard Blair gave valid consent to search his son's computer, the subsequent search failed to provide the police with probable cause to seize it.
In the absence of consent or a warrant, a police officer must have probable cause to effect a seizure. Arizona v. Hicks,
Here, police discovered "bookmarks with references to teenagers and so forth." This discovery and the fact that defendant had been arrested for disorderly conduct would not warrant a person of reasonable caution to believe that the computer contained child pornography. At most, defendant's suspicious behavior at the zoo and the unqualified references to teenagers constitute reasonable suspicion. Such ambiguous facts, however, do not rise to the level of probable cause. Thus, even assuming that the search of defendant's computer was lawful, the computer could not be seized absent valid consent to seize it.
We note that defendant has a conviction for child pornography predating his arrest in the instant case. However, there is no indication of record that deputy sheriffs Dean and Chrisholm were aware of this conviction at the time they seized defendant's
Having determined that defendant's computer could not be seized absent valid consent, we turn to the validity of Howard Blair's consent to the seizure. Although Blair could not recall giving the police his consent, three police officers who were present at the scene testified that Blair did in fact give them permission to remove the computer. The trial court's express finding that Blair had the requisite authority to consent implies that the court found that Blair consented to the seizure. In view of the evidence adduced at the suppression hearing, we cannot say that this implicit finding of historical fact is against the manifest weight of the evidence.
However, this conclusion, by itself, does not resolve entirely the question of the validity of Blair's consent. We must still ascertain whether, in light of Blair's assertion that the computer belonged to his son, Blair had the authority to consent to its seizure.
A third party may consent to a search if he has common authority over, or other sufficient relationship to, the premises or effects to be searched. Matlock,
In Matlock, the Supreme Court described common authority in the following manner:
Thus, the rationale for third-party consent searches rests upon the notion that a person has a diminished expectation of privacy in premises or effects to which others have access or over which others have control.
The rationale for third-party consent searches resting, as it does, upon the diminished expectation of privacy attending a third party's common authority over the premises or effects to be searched, does not provide a sufficient basis for a third party's consent to the seizure of another's personal effects. While one who permits a third party access or control over his property has a diminished expectation of privacy, the third party's access or control does not similarly diminish the owner's expectation that he will retain possession of his property.
A third party having common authority over premises or effects may permit a search of the premises or effects in his own right. Matlock,
Therefore, we hold 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, there is a valid warrant for its seizure, or police are lawfully present and there is probable cause to believe the property is contraband, stolen property, or evidence of a crime.
We acknowledge that there are a handful of cases from other jurisdictions that express a contrary view. See United States v. Woodrum,
The decision in Woodrum deals with the peculiar issue of a third party's consent to the seizure of a person. Woodrum,
In Cotten, the court was squarely faced with the question before this court. Cotten,
Accordingly, in light of our holding, Howard Blair's consent to the warrantless seizure of his son's computer was ineffective. The trial court erred by denying defendant's motion to suppress. Defendant's convictions must be reversed. As the prosecution will be unable to proceed against defendant, defendant's cause will not be remanded. See People v. Fulton,
As a final note, we caution that our holding concerning third-party consent to seize has only limited application. First, it is limited to situations in which there is no other applicable exception to the warrant requirement. As noted previously, police rarely need consent to seize an item discovered while conducting a lawful search because the plain view exception provides the necessary justification for the seizure.
Second, our holding only applies where there is, in fact, a "seizure," i.e., a "meaningful interference with an individual's possessory interests in * * * property" (Jacobsen, 466 U.S. at 113, 104 S.Ct. at 1656, 80 L.Ed.2d at 94). In the instant case, it was clear that there had been such meaningful interference when the police removed defendant's computer from his residence.
Finally, our holding is limited to situations in which the party giving consent has no actual or apparent ownership interest in the property to be seized. We do not decide today what ownership interest a person must have in order to give effective consent for a seizure. Nor do we decide what indicia of ownership would justify the police in the belief that the consenting party has the requisite ownership interest to consent to a seizure.
For the foregoing reasons, the judgment of the circuit court of Whiteside County is reversed.
McDADE, J., concurs.
Presiding Justice HOMER, specially concurring:
I agree with the majority's judgment reversing defendant's conviction due to police infringement of his constitutional rights. In my opinion, however, the Fourth Amendment was implicated the moment that Deputy Chisolm turned on the computer and clicked on the computer's "favored bookmarks," as he testified.
It has been held that the Fourth Amendment protection afforded to a person's closed computer files and computer hard drives is similar to the protection afforded a person's closed containers and closed personal effects. See United States v. Barth,
In the absence of valid consent, a warrant is ordinarily required to search the contents of a person's closed container. People v. Bull,
In this case, Deputy Chisolm activated the computer after learning from Howard Blair that the computer belonged to defendant. Accordingly, the officers could not have believed that Blair possessed the requisite authority to consent to its search. Without valid consent, this warrantless search of the computer and its contents was unlawful and any evidence subsequently obtained therefrom must be suppressed as fruit of the poisonous tree. See Wong Sun v. United States,
Through this concurrence, I express no opinion about the conclusions drawn by the majority in its discussion of the ineffectiveness of Blair's consent to "seize" the computer. I simply believe that such analysis is unnecessary to the resolution of this appeal.
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