Appellant was convicted on a multiple count indictment of possession of child pornography. He filed a motion in limine to suppress evidence (two boxes of miscellaneous floppy discs and CD/DVDs) his wife turned over to the police. Appellant’s wife came into the police station and told the police sergeant that she kicked Appellant out of the house because one of her daughters reported an inappropriate touching by Appellant. She also mentioned that she had previously seen Appellant holding a pair of the daughter’s underwear, muttering under his breath at his computer, masturbating.
The disks were stored in a metal cabinet in a family[-]type room in the family home along with Appellant’s two computers. Appellant put in a password [on the computers] so she couldn’t use [them]. Lyons did not know the password. Regarding the metal cabinet, Lyons said that Appellant usually kept [it] locked but that she and Appellant each had a key. Lyons told Hilt that she did not know what was on the disks, but that she didn’t want them in her house. Hilt took the two boxes of disks for safekeeping. After forensic examination, the discs were found to contain images of child pornography, thus the basis of the indictment.
Suppression Motion: At the suppression hearing, the police sergeant testified that he was not under the belief that wife had given “consent,” but rather had abandoned the property, thereby giving police permission to look through the discs (a most unhelpful piece of testimony). The Sergeant was next asked why he thought he had permission to search the discs, to which the sergeant replied “I believe she gave them to me so they could be searched.” (Better). The trial court denied the motion to suppress finding that wife had ability to consent to search of the property, and did so by bringing them to the police station. The fact that she had a key to the cabinet and that there was no evidence presented that appellant took steps to prevent her from accessing the discs (like the passwords on the computer), contributed to the common ownership of the items.
Practitioner Note: Preparation of critical witnesses is imperative. Witnesses may not understand that legal nuances of the law, but their word choices have consequences.
A well settled, specific exception to the fourth amendment’s warrant requirement is a search conducted pursuant to consent. People v. Pitman, 211 Ill. 2d 502, 523, 813 N.E.2d 93, 286 Ill. Dec. 36 (2004). The State has the burden of proving by a preponderance of the evidence that valid consent was given. People v. Miller, 346 Ill. App. 3d 972, 986, 806 N.E.2d 759, 282 Ill. Dec. 462 (2004).
The appeals court went through an exhaustive analysis based on appellant’s theories, but ultimately concluded that wife had actual authority to consent, and did so by leaving the boxes with the police sergeant.
Ruling of the trial court affirmed.