Appeal by defendant from an order and judgments dated 9 and 10
January 2007 by Judge Susan Taylor in Davidson County Superior
Court. Heard in the Court of Appeals 1 November 2007.
Attorney General Roy Cooper, by Assistant Attorney General Q.
Shanté Martin, for the State.
Greene & Wilson, P.A., by Thomas Reston Wilson, for defendant.
Kevin McDow Robinson (defendant) appeals from an order dated
10 January 2007, denying his motion to suppress evidence, and
subsequent judgments also dated 9 January 2007 and entered pursuant
to defendant's plea of no contest to eight counts of first degree
statutory sexual offense and three counts of first degree statutory
rape. For the reasons stated herein, we affirm the order of the
Facts and Procedural History
In March of 2006, Michael Young was dating defendant's
daughter and living in defendant's home. Defendant kept a lockbox
in front of the refrigerator in the home. One evening, while
defendant was showering, Mr. Young took defendant's keys, opened
the lockbox, and removed a videotape from the lockbox. Mr. Young
then took the videotape to his room and watched portions of the
tape. The videotape contained scenes of defendant engaging in
sexual activities with at least two girls who appeared to be
between ten and fourteen years old. Mr. Young contacted
Crimestoppers concerning the tape and was told someone from the
Davidson County Sheriff's Department would call him back.
Detective Wanda Thompson of the Davidson County Sheriff's
Department subsequently called Mr. Young and arranged to meet with
him away from defendant's home to retrieve the videotape. Mr.
Young informed Detective Thompson as to what he had observed on the
videotape and gave the videotape to her when they met at Pebble
Beach. Detective Thompson viewed the entire videotape at the
nearby Denton Police Department and confirmed Mr. Young's
observations. Detective Thompson identified the two girls on the
videotape and confirmed that at one point in time they had lived
near defendant and been friends with his daughter. Detective
Thompson then obtained and executed a search warrant for
defendant's home for any additional child pornography or related
materials. On 8 May 2006, defendant was indicted on eight counts of first
degree statutory sexual offense and three counts of first degree
statutory rape. On 5 January 2006, defendant filed a motion to
suppress evidence, arguing the videotape had been searched and
seized by the State in violation of Articles IV and V of the
Amendments of the United States Constitution, and Sections 19 and
23 of Article I of the North Carolina Constitution. Prior to
trial, a suppression hearing was held on 9 January 2007. At the
conclusion of the suppression hearing, the trial court made
findings of fact and conclusions of law in open court denying
defendant's motion to suppress the videotape as evidence.
Defendant objected to the trial court's findings of fact and
conclusions of law, and took exception to the ruling. The trial
court subsequently entered a written order denying defendant's
motion to suppress dated 10 January 2007.
On 9 January 2007, at the conclusion of the suppression
hearing, defendant entered a plea of no contest to all counts set
forth in the indictments. In the Plea Transcript, defendant
specifically preserved appellate review of the findings of fact and
conclusions of law pertaining to the trial court's motion to
suppress. The trial court then entered judgments sentencing
defendant to eleven consecutive sentences of 384 to 470 months
imprisonment with the North Carolina Department of Correction.
Defendant's sole issue on appeal is whether the trial court
erred in denying his motion to suppress the videotape evidence.
Defendant contends Detective Thompson's viewing of the entire
videotape exceeded the scope of Mr. Young's viewing in violation of
the Fourth Amendment. We disagree.
The scope of review of the denial of a motion to suppress is
'strictly limited to determining whether the trial judge's
underlying findings of fact are supported by competent evidence, in
which event they are conclusively binding on appeal, and whether
those factual findings in turn support the judge's ultimate
conclusions of law.' State v. Bone
, 354 N.C. 1, 7, 550 S.E.2d
482, 486 (2001) (quoting State v. Cooke
, 306 N.C. 132, 134, 291
S.E.2d 618, 619 (1982)), cert. denied
, 535 U.S. 940, 152 L. Ed. 2d
231 (2002). Where a defendant has not assigned error to any of the
trial court's findings of fact, those findings are conclusive and
binding on appeal. State v. Jacobs
, 162 N.C. App. 251, 254, 590
S.E.2d 437, 440 (2004). The trial court's conclusions of law,
however, are fully reviewable on appeal. State v. Hughes
N.C. 200, 208, 539 S.E.2d 625, 631 (2000).
The Fourth Amendment provides, in pertinent part, that the
right of the people to be secure in their persons, houses, papers,
and effects, against unreasonable searches and seizures, shall not
be violated. . . . U.S. Const. amend. IV. Searches in violation
of the Fourth Amendment occur when an expectation of privacy
that society is prepared to consider reasonable is infringed.
United States v. Jacobsen
, 466 U.S. 109, 113, 80 L. Ed. 2d 85, 94(1984). Further, the Supreme Court of the United States has
construed the protection guaranteed by the Fourth Amendment as
proscribing only governmental action; it is wholly inapplicable 'to
a search or seizure, even an unreasonable one, effected by a
private individual not acting as an agent of the Government or with
the participation or knowledge of any governmental official.' Id.
(quoting Walter v. United States
, 447 U.S. 649, 662, 65 L. Ed. 2d
410, 421 (1980) (Blackmun, J., dissenting)). When the State
conducts a search in response to information obtained by a search
by a private party and communicated to the State, the legality of
the governmental search must be tested by the scope of the
antecedent private search. Id.
at 116, 80 L. Ed. 2d at 96.
The Fourth Amendment is implicated only if the
authorities use information with respect to
which the expectation of privacy has not
already been frustrated. In such a case the
authorities have not relied on what is in
effect a private search, and therefore
presumptively violate the Fourth Amendment if
they act without a warrant.
. at 117-18, 80 L. Ed. 2d at 96-97.
While there appears to be no settled case law in North
Carolina directly on point regarding the scope of a search
involving the viewing of a videotape, we agree with the positions
of the Fifth and Eleventh Circuits of the United States Court of
Appeals, that the police do not exceed the scope of a prior
private search when they examine the same materials that were
examined by the private searchers, but they examine these materials
more thoroughly than did the private parties. United States v.
, 275 F.3d 449, 464 (5th Cir. 2001) (finding noconstitutional violation where the police viewed more images stored
on a computer disc than did the private searcher); United States v.
, 904 F.2d 607, 610 (11th Cir. 1990) (holding the search of
a box and viewing of videotapes by federal law enforcement agents
did not exceed the scope of the prior private searches for Fourth
Amendment purposes simply because they took more time and were more
thorough than the Federal Express agents). Here, Mr. Young's
viewing of the videotape did not violate the Fourth Amendment
because he was a private party not acting under the authority of
the State. Mr. Young's viewing of the videotape effectively
frustrated defendant's expectation of privacy as to the contents of
the videotape, and thus the subsequent viewing of the videotape by
Detective Thompson did not violate defendant's rights under the
Fourth Amendment. While Mr. Young stated that he had only viewed
portions of the videotape, his viewing opened the container of
the videotape and the subsequent viewing of the entire videotape
was not outside the scope of Mr. Young's initial search.
, 275 F.3d at 465. Defendant's assignments of error are
Judges McGEE and HUNTER concur.
*** Converted from WordPerfect ***