Joseph E. Waldron v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jun 23 2017, 9:31 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Justin R. Wall Curtis T. Hill, Jr. Wall Legal Services Attorney General of Indiana Huntington, Indiana Jodi Kathryn Stein Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Joseph E. Waldron, June 23, 2017 Appellant-Defendant, Court of Appeals Case No. 35A02-1701-CR-122 v. Appeal from the Huntington Circuit Court State of Indiana, The Honorable Thomas M. Hakes, Appellee-Plaintiff. Judge Trial Court Cause No. 35C01-1609-FC-155

Najam, Judge. Court of Appeals of Indiana | Memorandum Decision 35A02-1701-CR-122| June 23, 2017 Page 1 of 7

Statement of the Case [1] Joseph E. Waldron brings an interlocutory appeal of the trial court’s denial of

his motion to suppress evidence, following a hearing on that motion. He raises

one issue, namely, whether the trial court erred when it found that a search

warrant included within its scope the seizure of electronic devices capable of

storing video recordings from surveillance cameras. We affirm.

Facts and Procedural History [2] On Tuesday, May 10, 2016, six-year-old A.W. disclosed to school personnel

and police that Waldron, her father, had physically battered her with a Taser

over the previous Friday and Saturday at their home in Huntington. Based

upon the information from A.W., Huntington Police Detective Andrew Ellet

(“Officer Ellet”) obtained a search warrant that afternoon for Waldron’s

residence to search for and seize: “a taser, all surveillance cameras both inside

and outside the home, and electronic devices used to store video recordings

from the surveillance cameras.” Appellant’s App. at 28-29; State’s Ex. 1. The

search warrant also directed the officers “to search all recovered surveillance

cameras and electronic devices for the following: video recordings or pictures

involving child physical abuse.” Id. [3] At around 4:00 p.m., Officer Ellet and other Huntington police officers

executed the search warrant in Waldron’s presence. The officers located in the

home a digital video recorder (“DVR”) connected to the indoor and outside

surveillance cameras. Officer Ellet was aware that the purpose of the DVR was

Court of Appeals of Indiana | Memorandum Decision 35A02-1701-CR-122| June 23, 2017 Page 2 of 7

to record video from the surveillance cameras and that it had limited capacity to

store information. Within close proximity to the DVR, the officers also located

a taser, a computer tower, a laptop computer, an internal hard drive, several cell

phones, and a digital camera. The computer tower, the laptop computer, and

the internal hard drive all had the capability of storing video recordings from

the surveillance cameras transferred through the DVR over a wireless router.

The officers did not know which electronic devices Waldron used to store the

videos recorded by the DVR. [4] Detective Ellet seized the taser, the laptop computer, the computer tower, the

internal hard drive, and the DVR, including its hard drive. Indiana State Police

Sergeant Jeremy Chapman (“Officer Chapman”), a forensic examiner of digital

evidence and an audio visual enhancement specialist, examined the electronic

devices and discovered on them evidence of child solicitation committed

against a sixteen-year-old girl and images of child pornography. On September

1, 2016, the State charged Waldron with two counts of Class C felony child

exploitation and one count of Level 6 felony possession of child pornography. [5] On October 3, Waldron filed a motion to suppress, which alleged that the

officers exceeded the scope of the warrant by seizing all electronic devices

except the DVR. Specifically, Waldron argued that the language of the search

warrant limited the seizure of evidence to only those electronic devices

physically connected to the surveillance cameras, i.e., the DVR. Following a

hearing on Waldron’s motion to suppress, the trial court issued an order

denying that motion. The trial court’s order stated, in relevant part:

Court of Appeals of Indiana | Memorandum Decision 35A02-1701-CR-122| June 23, 2017 Page 3 of 7

The Court finds this attempt to restrict the ability of the officers to properly search for evidence with the [w]arrant is incorrect.

The home had many devices upon which storage of video recordings from the surveillance cameras could have been stored. The Court could not have been aware of what was in the home and capable of storage. Therefore, devices capable of storage by connecting to the camera on the DVR would be allowed to be taken and searched by the [w]arrant.

Appellant’s App. at 58. [6] Waldron subsequently obtained an order certifying the order on his motion to

suppress for interlocutory appeal. On February 24, 2017, we accepted

jurisdiction of this interlocutory appeal.

Discussion and Decision [7] Waldron appeals the trial court’s denial of his motion to suppress evidence.

Our standard of review for the denial of a motion to suppress is similar to other

sufficiency issues. Gonser v. State, 843 N.E.2d 947, 949 (Ind. Ct. App. 2006).

We determine whether there is substantial evidence of probative value to support the trial court’s ruling. Litchfield v. State, 824 N.E.2d 356, 359 (Ind. 2005). We do not reweigh evidence and [we] construe conflicting evidence most favorably to the trial court’s ruling. Widduck v. State, 861 N.E.2d 1267, 1270 (Ind. Ct. App. 2007). We must also consider uncontested evidence favorable to the defendant. Id. The trial court’s ultimate determination of the constitutionality of a search or seizure is, however, reviewed de novo. Harper v. State, 922 N.E.2d 75, 79 (Ind. Ct. App. 2010) (quoting Crabtree v. State, 762 N.E.2d 241,

Court of Appeals of Indiana | Memorandum Decision 35A02-1701-CR-122| June 23, 2017 Page 4 of 7

244 (Ind. Ct. App. 2002)) (applying this standard to a Terry stop), trans. denied.

Woodson v. State, 960 N.E.2d 224, 226 (Ind. Ct. App. 2012). [8] Waldron maintains that all electronic devices except the DVR were erroneously

admitted into evidence because they were beyond the scope of the warrant to

search his home.

To protect a citizen’s right to be free from unreasonable searches and seizures, our state and federal constitutions require officials to obtain a warrant before conducting searches and seizures. Green v. State, 676 N.E.2d 755, 757 (Ind. Ct. App. 1996), trans. denied. A warrant may not issue unless an affidavit is submitted to a judge or magistrate, describing with particularity the place to be searched and the items to be seized. Id. The particularity requirement restricts the scope of the search, authorizing seizure of only those things described in the warrant; a warrant which leaves the executing officer with discretion is invalid. Lee v. State, 715 N.E.2d 1289, 1290 (Ind. Ct. App. 1999).

Pavey v. State, 764 N.E.2d 692, 702 (Ind. Ct. App. 2002), trans. denied.

However, “[o]ur supreme court has noted that while the items to be searched

for and seized must be described with some specificity, there is no requirement

that there be an exact description.” Id. (citing Phillips v. State, 514 N.E.2d 1073,

1075 (Ind. 1987)). [9] Here, the search warrant authorized the police to search Waldron’s home for

“electronic devices used to store video recordings from the surveillance

cameras,” and to seize such items. Appellant’s App. at 58. The warrant further

Court of Appeals of Indiana | Memorandum Decision 35A02-1701-CR-122| June 23, 2017 Page 5 of 7

authorized the police to “search all recovered surveillance cameras and electronic

devices for . . . video recordings or pictures involving child physical abuse.” Id.

(emphasis added). Officer Chapman, who had been employed as a forensic

examiner of digital evidence for thirteen years, testified that recordings from the

surveillance cameras could have been transferred from the DVR to the seized

laptop computer, computer tower, and internal hard drive for storage. Such a

transfer could have been accomplished either by a hard connection or through a

wireless router. He testified that such a transfer was likely, given the limited

storage capacity of the DVR. Moreover, the DVR unit had the capability of

transferring data directly to the computer tower. Thus, the seized electronic

devices were capable of storing “video recordings from the surveillance

cameras.” Id. And, since the officers obviously could have no way of knowing

which, if any, of the devices actually stored such recordings until they searched

each of them, the warrant authorized them to conduct such a search of each

seized electronic device. Id. [10] Waldron maintains that only the DVR fell within the scope of the warrant

because it was the only device that was physically connected to the surveillance

cameras at the time of the search. Thus, he contends, only the DVR could be

used to store video recordings “from” the surveillance camera. That contention

is without merit. The warrant contains no language limiting the search and

seizure to electronic devices that happen to actually be attached to the

surveillance camera at the time of the search. Nor does it limit the search to

only devices that can directly record the video from the surveillance camera.

Court of Appeals of Indiana | Memorandum Decision 35A02-1701-CR-122| June 23, 2017 Page 6 of 7

Rather, the plain language of the warrant applies to devices “used to store”

recordings, and the evidence shows that the seized electronic devices were

capable of such storage. Moreover, this was not a situation where the officers

were authorized to seize one kind of item, but seized an item of unrelated

character. C.f. Ogburn v. State, 53 N.E.3d 464, 474 (Ind. Ct. App. 2016) (holding

seizure exceeded scope of warrant where the item seized “was not of the same

character as” the items described in the warrant), trans. denied. [11] The record contains substantial evidence of probative value to support the trial

court’s denial of Waldron’s motion to suppress the electronic devices. [12] Affirmed.

Riley, J., and Bradford, J., concur.

Court of Appeals of Indiana | Memorandum Decision 35A02-1701-CR-122| June 23, 2017 Page 7 of 7