ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
BENJAMEN W. MURPHY STEVE CARTER
Murphy Yoder Law Firm, P.C. Attorney General of Indiana
Deputy Attorney General
COURT OF APPEALS OF INDIANA
DAVID JEFFREY LEE, )
vs. ) No. 45A05-0405-CR-267
STATE OF INDIANA, )
APPEAL FROM THE SUPERIOR COURT OF LAKE COUNTY
The Honorable Salvador Vasquez, Judge
Cause No. 45G01-0306-FD-113
April 27, 2005
OPINION FOR PUBLICATION
David Lees (Lee) Motion to Suppress was denied in the Superior Court of
Lake County. Lee appeals, raising the following two restated issues for review:
Whether the Indiana Constitution permitted the police, without first obtaining a search warrant,
to view videotapes that were previously viewed by Lees fiancée; and,
Whether the Fourth Amendment permitted the police, without first obtaining a search warrant,
to view videotapes that were not previously viewed by Lees fiancée.
Concluding the police were only permitted to view the videotapes that had already
been viewed by Lees fiancée, we affirm in part, reverse in part, and
Facts and Procedural History
Margaret Lee (Margaret) owns a home in Highland, Indiana. Margarets son, Lee,
and his fiancée, Melissa Koczur (Koczur), are the sole occupants of Margarets home.
Lee operates a photography studio in the basement of this home, and
Koczur assisted Lee in operating this studio.
While not in Lees studio, Koczur spent most of her time in the
kitchen and living room, and Koczur slept in the living room. Tr.
p. 5. Koczur very rarely went into the bedrooms of Lees residence
and was told by Lee that he preferred that she not go in
the bedrooms because they were extremely unkempt. Tr. p. 17. Occasionally,
the doors to Lees bedrooms were locked when Koczur attempted to gain access
to them. Id.
On May 10, 2003, Koczur went into Lees basement and noticed an open
box of videotapes and stacked videocassette recorders. Koczur viewed one of these
tapes, and found that it contained images of a girl undressing in the
changing room of Lees studio. Koczur viewed two other tapes, which depicted
the same girl at different angles.
Koczur took the tapes she had viewed, as well as thirteen others that
were nearby, to a local police station where she told Officer Michael ODonnell
(Officer ODonnell) that she lived with Lee, she and Lee operated a photography
studio, she had found the videotapes she had with her, and those videotapes
showed that Lee was secretly filming women undressing in his studios changing room.
Officer ODonnell, without first obtaining a search warrant, viewed the three tapes
that had already been viewed by Koczur and ran Lees drivers license, which
revealed that Lee had an outstanding warrant from Parke County.
Koczur, Officer ODonnell, and Officer Timothy Towasnicki (Officer Towasnicki) drove to Lees residence.
Lee was at his residence when the officers arrived and was immediately
arrested and removed from his residence. The officers then had Koczur sign
a consent form and began a warrantless search of Lees residence.
After the search began, Koczur advised Officer Towasnicki that Lees mother, Margaret, owned
the home. Officer Towasnicki immediately informed Officer ODonnell that they needed to
stop searching. After obtaining Margarets consent, the officers resumed their search and
discovered five hidden cameras in the changing room of Lees studio, five videocassette
recorders, and 369 videotapes in boxes in Lees bedroom. Koczur did not
own any of these tapes and had not seen them before the day
in question. Tr. pp. 7-8, 11-12.
On June 5, 2003, Lee was charged with thirty-six counts of Class D
felony voyeurism.See footnote On February 18, 2004, Lee filed a motion to suppress.
The trial court denied Lees motion but certified its order for interlocutory
appeal. This court has since acquired jurisdiction.
I. Standard of Review
The denial of a motion to suppress is reviewed similar to a sufficiency
claim. Bell v. State, 818 N.E.2d 481, 484 (Ind. Ct. App. 2004).
We will not reweigh the evidence or judge witness credibility but, instead,
consider all uncontradicted evidence together with the conflicting evidence that supports the trial
courts decision. Id.
II. Admissibility of the Videotapes Previously Viewed by Koczur
Lee concedes that the Fourth Amendment did not require the police to obtain
a search warrant before viewing the three videotapes previously viewed by Koczur.
Br. of Appellant at 17 (citing United States v. Jacobsen, 466 U.S. 109,
116-18 (1983) (the police may examine what has already been examined by a
private citizen)). Rather, Lee contends that the separate and additional protection against
unreasonable search and seizure under Article One, Section Eleven of the Indiana Constitution
required the police to obtain a warrant before viewing the tapes already viewed
by Koczur. We disagree.
In Bone v. State, a computer repairman discovered child pornography on one of
his customers computers and called the police to investigate. 771 N.E.2d 710,
712-13 (Ind. Ct. App. 2002). Upon arrival, the police had the repairman
show them the images in question without first obtaining a search warrant.
Id. Bone concluded that the Indiana Constitution allowed the police to view
the images already viewed by the repairman without first obtaining a search warrant.
Id. at 715. In so holding, Bone stated:
[The] right to be free from unreasonable searches and seizures under the Indiana
Constitution is a right judged upon the standard of the reasonableness of the
official behavior. However, the protection is also from official and not private
acts. . . . Here a private party saw what he believed to
be child pornography, which he showed to police, and we do not read
Shepherd [v. State, 690 N.E.2d 318 (Ind. Ct. App. 1997), trans. denied,] to
hold that a warrant was first required to be obtained in order for
the police to view that which [the repairman] had seen.
Id. (quoting Moran v. State, 644 NE.2d 536, 539, 540 (Ind. 1994) (internal
citations omitted)). III. Tapes Not Viewed by Koczur
Bones holding controls the issue before us, and the police were allowed to
view the three videotapes already viewed by Koczur without a search warrant.
However, our conclusion is not transferable to the tapes which Koczur had not
previously viewed. There is a well-established Fourth Amendment privacy interest in filmed
images like videotapes. In Walter v. United States, the Supreme Court concluded
that the warrantless police viewing of film violated the Fourth Amendment. 447
U.S. 649, 654 (1980). In so holding, the Court stated:
Even though the cases before us involve no invasion of the privacy of
the home . . . we are nevertheless persuaded that the unauthorized exhibition
of the films constituted an unreasonable invasion of their owners constitutionally protected interest
in privacy. It was a search; there was no warrant; the owner
had not consented[.]
See also Cortese v. Black, 1996 U.S. App. LEXIS 15311 (10th
Cir. 1996) (applying Fourth Amendment protections to videotapes); Rice v. Grecar, 1996 U.S.
App. LEXIS 6120 (6th Cir. 1996); United States v. Jenkins, 46 F.3d 447,
452-61 (5th Cir. 1995); United States v. Simpson, 904 F.2d 607, 610 (11th
Under Walter, the police review of the videotapes not previously viewed by Koczur
presents us with a search within a search or a container search conducted
during the otherwise consented-to search of Lees home. Clearly, Koczur and Margarets
authority and consent permitted the officers to search Lees residence without a warrant.
However, neither Koczurs nor Margarets authority extended to the viewing of the
contents of the private containers, Lees videotapes, that Koczur had not viewed herself.
And for Fourth Amendment purposes, each unmarked videotape was just such a
Our supreme court recently gave Fourth Amendment consideration to the limits of third-party
consent to the search of containers encountered during the search of a home
in Halsema v. State, 823 N.E.2d 668 (Ind. 2005). In that case,
our supreme court stated:
Because Ritchie Halsema enjoyed the exclusive use of at least one of the
dresser drawers in Whiteleys bedroom and because Whiteley specifically advised the officers of
that fact, Whiteley did not have actual authority to consent to a search
of the drawer where the methamphetamine was found, nor could an officer reasonably
believe that she had such authority. In sum, the record here shows
that Whiteley had neither the apparent nor actual authority to consent to a
search of the dresser drawer. Thus the warrantless search of the drawer
without Ritchie Halsemas consent violated his Fourth Amendment right against unreasonable search and
Id at 677; see also Krise v. State, 746 N.E.2d 957, 971 (Ind.
2001) (Tungate gave a voluntary consent to the general search of the home
which he shared with Krise and had authority to do so. However,
the State has not proven that Tungate had mutual use of or joint
access to Krises purse).
See footnote Conclusion
The State asserts that, because the videotapes were in open boxes in Lees
bedrooms, Koczur had the ability to view them and the police were permitted
to rely upon Koczurs consent. However, the purse searched in
found in the open on the top of a commode. Krise, 746
N.E.2d at 960. If third-party consent is insufficient for a container sitting
on top of a commode in a room to which the consenting party
had access, it must also be insufficient for a container in a room
to which Koczur was occasionally locked out of and was told by the
person having authority over the room that he preferred that she not enter
it. See Tr. p. 17.
It might also be argued that a purse or dresser is distinguishable from
a videotape because a purse and a dresser belong to a specific individual
whereas an unmarked videotape might be intended for general household consumption. However,
Officer ODonnell admits that he assumed Koczur had not seen the videotapes before
the day in question. Tr. p. 117. The fact that the
videotapes were not stored in a manner consistent with common availability for entertainment
viewing, the unmarked nature of the videotapes, and the circumstances surrounding Koczurs discovery
and presentation of the videotapes to Officer ODonnell would lead a reasonable person
to the same conclusion reached by Officer ODonnell. Officer ODonnells conclusion undermines
the possibility that a reasonable person might believe Lees tapes were meant to
be generally available to Koczur or Margaret for household consumption,
See footnote and
Halsema are controlling.
The State does not claim exigent circumstances, and the fact that the police
had probable cause to believe that the unmarked videotapes at issue contained illegal
images does not justify the warrantless police review of the unmarked videotapes.
See Halsema, 823 N.E.2d at 676 (Generally, a search warrant is a prerequisite
to a constitutionally proper search and seizure.). A law enforcement officials determination
that probable cause exists for a search does not negate the need for
a neutral and detached magistrate to independently confirm probable cause and to authorize
state intrusion into containers subject to Fourth Amendment protection. Otherwise, the protective
language of the Fourth Amendment and of Article One, Section Eleven of the
Constitution of Indiana would be meaningless.
Under the facts and circumstances of this case, the States assertion of apparent
or actual authority for Koczur and Margarets consent to search the unmarked videotapes
must fail, and the trial courts decision to admit the videotapes that had
not previously been viewed by Koczur must be reversed.
Without first obtaining a warrant, the police were only permitted to view the
videotapes Koczur had previously viewed.
Affirmed in part, reversed in part, and remanded.
BAILEY, J., and SULLIVAN, J., concur.
We heard oral argument in this matter on March 24, 2005 at
Ball State University. We thank Ball State for its hospitality in hosting
the oral argument and commend counsel on the quality of their presentations.
Footnote: Koczur was visibly upset when she presented the tapes, and our review
of the record leads us to believe Officer ODonnell understood Koczur had not
seen the tapes before the day in question and claimed no ownership interest
in them. Tr. p. 117.
Footnote: Ind. Code § 35-45-4-5 (2004).
Footnote: The State contends
Walter is not controlling because it is a plurality
opinion and only two justices recognized a Fourth Amendment privacy interest in videotapes.
We disagree. The justices concurring in result agreed with the majoritys
contention that Walter had a right to privacy concerning the films. Walter,
447 U.S. at 654, 660 (the Governments warrantless projection of the films constituted
a search that infringed petitioners Fourth Amendment interests). Although Justice Marshall concurred
in the judgment without issuing a written opinion, he could not have agreed
to suppress the films without recognizing a Fourth Amendment privacy interest in them.
Id. at 660.
The State claims a defendant does not have the same privacy interest
in unmarked videotapes as he or she would in a purse or dresser.
However, we believe that an unmarked tape could well contain information that
would be even more private than that expected to be found in a
dresser or in a purse. Furthermore, as discussed above, there is a
recognized Fourth Amendment privacy interest in a videotape.
The State points to the legitimacy of field tests of
powder, later discovered to be cocaine by law enforcement officers. However, the
States example is distinguishable from the case at bar, as well as from
Krise and Halsema, because the Fourth Amendment privacy interest in an unmarked videotape
is considerably greater than the lesser privacy interest in visible powder. See
Krise, 746 N.E.2d at 969 (the type of container is of great importance
in reviewing third-party consent search cases. Absent one of the well-delineated exceptions
to the warrant requirement, [a] container which can support a reasonable expectation of
privacy may not be searched, even on probable cause, without a warrant.) (quoting
United States v. Jacobsen, 466 U.S. 109, 120 n.17 (1984)).
We acknowledge that the decision in
Halsema was by a
three-to-two vote of the court, although we note that Halsema involved containers within
containers, thereby differing from the facts before us. We also recognize merit
in Chief Justice Shepards dissent, joined by Justice Dickson. The containers involved
in Halsema and in Krise differed in their attributes of privacy and with
regard to whether valid access by others to the containers was clearly demonstrated.
Nevertheless, the videotape cassette containers in our case, as to Koczur and
Margaret, were not accessible without a violation of Lees right to privacy.
Accordingly, the consent present in Halsema and alleged in Krise is not present
in the case before us except as to the three tapes viewed by
Koczur and taken by her to the police.
This fact is particularly dispositive. Had Koczur given the officers reason
to believe the videotapes were subject to general household consumption, the outcome of
this case might well be different. However, warrantless access to the contents
of a container subject to Fourth Amendment protection is improper when based upon
the consent of an individual who was only recently made aware of the
containers existence and does not own the container and when circumstances lead to
the conclusion that the container was not intended for general consumption. This
is particularly true when the police have, as they had in this case,
the ability to acquire consent from the containers owner or to obtain a
warrant without risk of destruction of the evidence sought.