FOR PUBLICATION

ATTORNEY FOR APPELLANT:            ATTORNEYS FOR APPELLEE:

BENJAMEN W. MURPHY                 STEVE CARTER
Murphy Yoder Law Firm, P.C.            Attorney General of Indiana
Merrillville, Indiana
                             JOBY JERRELLS                
                            Deputy Attorney General
                            Indianapolis, Indiana

DAVID JEFFREY LEE,                  )

                                            )
    Appellant-Defendant,                    )
                                            )
        vs.                                 )    No. 45A05-0405-CR-267
                                            )
STATE OF INDIANA,                           )
                                            )
    Appellee-Plaintiff.                     )

Concluding the police were only permitted to view the videotapes that had already been viewed by Lee’s fiancée, we affirm in part, reverse in part, and remand. See footnote

Id. (quoting Moran v. State, 644 NE.2d 536, 539, 540 (Ind. 1994) (internal citations omitted)).
    Bone’s holding controls the issue before us, and the police were allowed to view the three videotapes already viewed by Koczur without a search warrant.

Id. See footnote 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 Cir. 1990).
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 Lee’s home. Clearly, Koczur and Margaret’s authority and consent permitted the officers to search Lee’s residence without a warrant. However, neither Koczur’s nor Margaret’s authority extended to the viewing of the contents of the private containers, Lee’s videotapes, that Koczur had not viewed herself. And for Fourth Amendment purposes, each unmarked videotape was just such a private container.
    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 Whiteley’s 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 Halsema’s consent violated his Fourth Amendment right against unreasonable search and seizure.

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 Krise’s purse”). See footnote
    The State asserts that, because the videotapes were in open boxes in Lee’s bedrooms, Koczur had the ability to view them and the police were permitted to rely upon Koczur’s consent. However, the purse searched in Krise was 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 O’Donnell 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 Koczur’s discovery and presentation of the videotapes to Officer O’Donnell would lead a reasonable person to the same conclusion reached by Officer O’Donnell. Officer O’Donnell’s conclusion undermines the possibility that a reasonable person might believe Lee’s tapes were meant to be generally available to Koczur or Margaret for household consumption, See footnote and Krise 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 official’s 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 State’s assertion of apparent or actual authority for Koczur and Margaret’s consent to search the unmarked videotapes must fail, and the trial court’s decision to admit the videotapes that had not previously been viewed by Koczur must be reversed.