Thursday, June 19, 2008
C.A. Overturns Burglary Conviction Over Search Issue
Police Use of Victim to Gather Evidence Violated Fourth Amendment, Justices Say
By SHERRI M. OKAMOTO, Staff Writer
Police officers may view content on compact discs obtained by a private party that the private party has seen, but may not open and view additional content without implicating the Fourth Amendment, the Third District Court of Appeal held yesterday.
The court reversed Joseph Michael Wilkinsonís conviction for the burglary of his roommate Jessica Schultzeís bedroom, and said that Wilkinson may withdraw the no contest plea he entered after Sacramento Superior Court Judge Gary E. Ransom denied his motion to suppress. If he does so, Justice Ronald Robie wrote for the appellate court, it will be up to the trial judge to determine what evidence must be suppressed under the courtís opinion.
After viewing some sexual content on discs that Schulze had obtained from Wilkinsonís bedroom, the appellate court ruled, the police committed an illegal search by instructing the roommate to find explicit images of actual intercourse.
Wilkinson and Schultze shared an apartment, although each maintained a separate bedroom. Schultzeís boyfriend, Harry Sadler, claimed he was living in Schultzeís bedroom at the apartment as well.
In her room, Schultze had a computer with a ďwebcamĒóa digital camera used to transmit live imagesóattached to it. After Sadler discovered a video file recorded by the webcam on Schultzeís computer showing Wilkinson in Schultzeís bedroom, he became suspicious that Wilkinson was using the webcam to record him and Schultze and contacted the police.
In response to Sadlerís complaint, Sacramento police officer James Walker and his partner came to the apartment. Wilkinson denied the officersí requests to look around his room.
Walker testified that he took Wilkinson to the patrol car, but explained to Sadler and Schultze that he did not have probable cause to arrest Wilkinson and could not search Wilkinsonís room for evidence.
Sadler then asked if he could go into Wilkinsonís bedroom, and Walker claimed he told Sadler:
ď[Y[ou can do whatever you want. Itís your apartmentÖ. But keep in mind, you cannot act as an agent of my authority.† I cannot ask you to go into the room, nor can you go into the room believing that youíre doing so for myself.Ē†
After the officers took Wilkinson to the jail for booking, Sadler entered Wilkinsonís room and picked up some compact discs he found strewn across the room. Nothing on the discs indicated their contents.
Sadler took the discs to Schultzeís room to view their contents and found images of himself and Schultze undressing or naked.
He then returned to Wilkinsonís room and gathered all of the writable compact discs he could find. Sadler viewed the contents of several more discs containing images of himself and Schultze naked or engaged in sexual conduct.†
When Walker returned from the jail with Wilkinson, Sadler told Walker about the material on the discs. Walker went to Schultzeís room, where Sadler showed the officer images on two of the compact discs he had already viewed.
Sadler testified that the officer told him to find explicit images of him and Schultze actually having sexual intercourse, and he looked through 7 to 10 more discs to find the images the officer wanted.
Walker arrested Wilkinson and took 36 discs Sadler had removed from Wilkinsonís room to the police station. A police detective viewed the content of several discs before interviewing Wilkinson.
During the interview, Wilkinson admitted to obtaining the images from Schultzeís computer and webcam, and signed a consent form allowing the police to search his room.
Wilkinson was charged with various crimes, and after the trial court denied his motion to suppress the evidence on the discs, Wilkinson pled no contest to a charge of burglary.
Writing for the appellate court, Robie concluded that Sadlerís search of Wilkinsonís room and discs was a private search that did not implicate the Fourth Amendment because Sadler was not acting as an agent for the police and the police did not encourage, instigate or initiate Sadlerís search.
Citing United States v. Jacobsen (1984) 466 U.S. 109, which held that a government agentís viewing of evidence that a private party freely made available for his inspection does not violate the Fourth Amendment, Robie reasoned that Walkerís viewing of the images Sadler had already seen did not exceed the scope of the private search.
However, under U.S. v. Runyan (5th Cir. 2001) 275 F.3d 449, which held that the police exceed the scope of a prior private search when they examine a closed container that was not opened by the private searchers unless the police are already substantially certain of what is inside, Robie explained neither the police nor Sadler knew the contents of any of the other discs taken from Wilkinsonís room.
Thus, Robie concluded the opening and viewing of images on additional compact discs by Sadler at Walkerís direction and the subsequent viewing by the police detective constituted warrantless governmental searches implicating the Fourth Amendment.
Presiding Justice Arthur G. Scotland and Justice Rick Sims joined Robie in his opinion.
The case is People v. Wilkinson, 08 S.O.S. 3562.
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