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State v. Bard

Superior Court of Maine, Kennebec

August 14, 2014

STATE OF MAINE
v.
ERIC BARD, Defendant

ORDER ON MOTION TO SUPPRESS

Before the court is defendant's motion to suppress all statements and evidence in the possession of the State resulting from activities of the police at his residence on June 19, 201 2 and thereafter.

As a result of a communication to law enforcement regarding an unusual posting on Craig's List in which an individual placed an advertisement offering services for baby sitting young children and giving them a bath, the Maine State Police initiated an investigation to determine the source. Having identified the location of the source of the ad, the officers visited a residence in Sidney which turned out to be the home of the defendant.

The mother of the defendant invited the officers into the home where they discovered entry into a finished and furnished porch identified by the defendant as his bedroom. After some period of denial as to the ad, the defendant admitted he had placed it on Craig's List. He also advised the police that he had access to multiple computers in the home. The officers and the defendant were conversational in their demeanor, even when the subject of child pornography was introduced wherein the defendant admitted to viewing the same years ago as a teenager, albeit accidently.

However, he later admitted to accessing and downloading certain named web sites which are limited to users with a child porn interest. To the request by the officer to view his computers, the defendant admitted that the computers may contain child pornography including a computer he had sold some date previously. The officers examined defendant's bedroom without objection and came across a "thumb drive" and a Motorola SanDisk, 8 GB(SD Card). When asked if they could take the items and examine the contents, the defendant replied that he had no objection to the thumb drive but objected to them examining the S.D. Card because it "has personal information on it." Rather than securing the premises and obtaining a search warrant for the disk, the officers took possession and removed it to the Computer Crime Lab.

Some ten days later, the State Police obtained a search warrant and examined the contents of the disk leading to the indictment in the present case. The defendant has presented evidence that the disk cannot be read without a device and program not found by the officers in the defendant's possession. Accordingly, he argues they did not have probable cause to believe there was admissable evidence on the disk and further, no legal authority to take possession over the objection of the defendant.

From the outset, the defense has raised an issue of competency of the defendant. While the court on two occasions has found the defendant competent to stand trial, it is agreed that he is of limited intelligence and has a slow processing time in responding to questions or comments. The defense argues this puts a particular heavy burden on the State to show consent to search the premises and comments made by the defendant. To meet its burden, the State presented to the court a recording of most of the proceedings of June 1 9th.

The events took place in defendant's bedroom and while sitting on the lawn of the residence. He was not under arrest nor restricted in any way. While the officer was persistent in his questions, he was not threatening in any way nor did he become accusatory. He allowed the defendant to move from denial to admission on his own accord. While his answers were slow in coming, he responded in a conversational tone with details that were appropriate to the questions. This was true even when he avoided eye contact, changed his demeanor, had a tear in his eye and put his head in his hands. He never asked the officers to leave or to leave himself, never refused to talk or asked the questions to stop. He willingly signed a consent form for search of the contents of the computers present. No promises were made by the officers and the recording does not display any "browbeating" in the questioning.

It took some time for the defendant to realize that the interest of the officers was in finding something "inappropriate" on his computers. At this point he started asking questions about the seriousness of the conduct and length of jail sentences. Nevertheless, he continued to answer questions and was completely cooperative until the S.D. Card came into play.

In the final analysis, the officers went to the residence to determine the purpose and circumstances of an ad for babysitting services with reference to giving a bath. While it created some suspicion, it wasn't until the defendant's response to whether there was something "inappropriate" in his computers that a true articulable suspicion arose. Upon his admission that the computers did contain child pornography, the officers had probable cause to search the computers which was done with defendant's consent.

The taking of possession of the disk over the defendant's objection raises a genuine issue of the application of the exclusionary rule. Further, the delay of ten days in obtaining a search warrant seems a violation of the right of possession by the owner.

State v. Nadeau, 2010 ME 71, 1 A. 3d 445, presents the same circumstances although a somewhat different scenario. In Nadeau, the defendant offered the "flash drive" to the officers but never gave his consent to search his computer. The court held that the search of the flash drive was lawful due to Nadeau's consent. The warrantless search of the computer violated the Fourth Amendment because it was not authorized by Nadeu's consent. It was not justified by exigent circumstances and not authorized by law. However, because "Nadeau's computer would have been inevitability discovered by the authorities through lawful means, the initial warrantless seizure and the unlawful preview search do not require the remedy of suppression." As in Nadeau, rather than obtaining a search warrant at the scene for the disk, the taking of the disk over objection could be subject to suppression, particularly where the lab took ten days to obtain the warrant. However, it is only common sense to realize that any computer memory device found in an area where there is admitted child pornography on a computer is going to contain material from the same computer or computers.

Defendant's argument that the lack of proof of a means of access removes the probable cause is of no avail. It might be of interest to a factfinder but this court is not aware of any precedent to the effect that possession in any different form is not possession.

Under all the circumstances taken as a whole, the court is satisfied the defendant's Constitutional rights have not been violated or any violations were harmless under the doctrine of inevitability, the entry will be:

Defendant's motion to suppress is DENIED.

Clerk may docket by reference.


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