                                                                                       FILED
                                                                                  Apr 18 2018, 10:44 am

                                                                                       CLERK
                                                                                   Indiana Supreme Court
                                                                                      Court of Appeals
                                                                                        and Tax Court




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      Valerie K. Boots                                           Curtis T. Hill, Jr.
      Marion County Public Defender Agency                       Attorney General of Indiana
      Indianapolis, Indiana                                      Justin F. Roebel
                                                                 Supervising Deputy Attorney
                                                                 General
                                                                 Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Daniel Sparks,                                             April 18, 2018
      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 49A05-1710-CR-2218
              v.                                                 Appeal from the Marion Superior
                                                                 Court
      State of Indiana,                                          The Honorable Amy J. Barbar,
      Appellee-Plaintiff                                         Magistrate
                                                                 Trial Court Cause No.
                                                                 49G02-1604-F4-15494



      Vaidik, Chief Judge.



                                            Case Summary
[1]   Lindsey Badanek’s home was burglarized while she was at work and, among

      other things, her employer-issued iPad was taken. She suspected that her ex-


      Court of Appeals of Indiana | Opinion 49A05-1710-CR-2218 | April 18, 2018                            Page 1 of 16
      boyfriend, Daniel Sparks, had something to do with it. She called the police,

      but no further action was taken at the time. Later that night, Lindsey logged

      into Sparks’s Facebook account using a password that he had previously given

      her. She found an audio recording where Sparks was discussing an iPad owned

      by Eli Lilly that was going to get “pinged,” yelling at a woman for her husband

      “veering” off the list, and threatening to “bang[] him on top” for doing so.

      Lindsey called the police again, and a video was made of her playing the

      recording from Sparks’s Facebook account. A search warrant was issued, and

      the iPad was found at Sparks’s home. Sparks was convicted of burglary, and he

      now appeals, arguing that the federal Wiretap Act was violated.


[2]   Federal courts have uniformly concluded that the Wiretap Act covers only

      “contemporaneous” interceptions of wire, electronic, or oral communications,

      which are understood as the acquisition of communications in transit—rather

      than the acquisition of communications in storage. Here, it is undisputed that

      Lindsey discovered on Sparks’s Facebook account a recording of a conversation

      that had already taken place. Finding no violation of the federal Wiretap Act

      or error in any of the other issues that Sparks raises, we affirm the trial court.



                             Facts and Procedural History
[3]   Lindsey and Sparks started dating in 2012 and had three children together.

      They lived on Depot Drive in Indianapolis. In March 2016, Lindsey asked

      Sparks to move out of the house. She and the children stayed in the house.



      Court of Appeals of Indiana | Opinion 49A05-1710-CR-2218 | April 18, 2018   Page 2 of 16
[4]   On April 20, Lindsey, who worked at a credit union inside Lilly Corporate

      Center, returned home from work around 5:30 p.m. Upon returning home, she

      noticed that her employer-issued iPad was not where she had left it that

      morning. When Lindsey went to her bedroom to look for it, she discovered

      that additional items were missing: her collection of Nike Air Max shoes, a

      laptop, a hard drive containing family pictures, a ring, and a North Face jacket.

      Lindsey thought it was “odd” that the items missing were “personal” to her.

      Tr. Vol. II p. 96. Lindsey noted that other electronics were not taken from her

      house, including another tablet that was right next to her iPad, televisions, and

      her daughter’s hoverboard. Lindsey immediately suspected that Sparks “had

      something to do with it” and called 911. Id. at 97. Indianapolis Metropolitan

      Police Department Officer Michael Hodge responded. Lindsey told Officer

      Hodge that she suspected Sparks was involved. Officer Hodge made a report.


[5]   Later that night, Lindsey logged into Sparks’s Facebook account using a

      password that he had previously given her. She wanted to see if Sparks was

      “talking about breaking into [her] house.” Id. at 100. Lindsey found an audio

      recording in his Facebook messages. See Ex. 2. Lindsey recognized Sparks’s

      voice on the recording. Sparks was angrily yelling at a woman about her

      “husband”:


              Let me tell you something about that iPad. When you turn that
              bit** on, Eli Lilly owns that iPad. That iPad is going to get
              pinged off. Guess who is going to get popped with it. I told that
              stupid mother fu**er . . . not to veer off the goddamn list. I told
              him if he veered off the list, he’s going to get fu**ed up. When I
              catch your husband, I’m banging him on top for disrespecting me
      Court of Appeals of Indiana | Opinion 49A05-1710-CR-2218 | April 18, 2018   Page 3 of 16
                 and for going against what the fu** I told him. . . . [G]o find him
                 and tell him how serious this mother fu**ing situation is.


      Id. Lindsey called the police again, and two officers responded, Officer Erik

      Stevenson and Sergeant Charles Wheeler. Lindsey played the recording for

      them. A video was then made of Lindsey playing the recording from Sparks’s

      Facebook account. Lindsey looked “further into [Sparks’s] Facebook account”

      and found a “message”1 from Sparks to William Bingaman sent “right after that

      recording” indicating that Sparks was angry with Bingaman. Tr. Vol. II p. 103.

      Lindsey gave this information to Sergeant Wheeler. Also, Sergeant Wheeler

      learned that Sparks was on GPS monitoring through Marion County

      Community Corrections and was home when Lindsey’s house was burglarized.


[6]   Sergeant Wheeler prepared an affidavit in order to seek a search warrant for

      Sparks’s home, and a magistrate issued a search warrant in the early-morning

      hours of April 21. See Suppression Ex. 2. During the execution of the search

      warrant, police found an iPad, which was later determined to be Lindsey’s

      employer-issued iPad.


[7]   The State charged Sparks with Class A misdemeanor theft and Level 4 felony

      burglary. Before trial, Sparks filed a motion to suppress the video of Lindsey

      playing the recording from Sparks’s Facebook account and the iPad found in

      his home. After a hearing, the trial court denied Sparks’s motion. A jury trial




      1
          There is no evidence as to what type of message this was. See Tr. Vol. II p. 103.


      Court of Appeals of Indiana | Opinion 49A05-1710-CR-2218 | April 18, 2018               Page 4 of 16
      was then held. At trial, Bingaman testified that he broke into Lindsey’s house

      and took the items at Sparks’s direction.2 Sparks told Bingaman to take

      Lindsey’s shoes and clothing but not to take anything that belonged to the

      children. Sparks said that he wanted to get back at Lindsey because she had

      kicked him out and thrown away his things. Bingaman agreed to help Sparks

      because he needed money to buy drugs. According to Bingaman, he gave the

      iPad to Sparks and sold the other items. The jury found Sparks guilty as

      charged. The trial court entered judgment of conviction for burglary only and

      sentenced him to six years with two years suspended.


[8]   Sparks now appeals.



                                     Discussion and Decision
                                          I. Facebook Recording
[9]   Sparks first contends that the trial court erred in admitting Exhibit 2—the video

      of Lindsey playing the recording from Sparks’s Facebook account. Sparks

      argues that “[Lindsey] and/or the police” violated the federal Wiretap Act, 18

      U.S.C. § 2511, and the Indiana Wiretap Act, Ind. Code art. 35-33.5, “by

      intercepting part of a telephone call made by Sparks without authorization.”

      Appellant’s Br. p. 13. But Sparks did not make claims under these statutes in

      the trial court. Rather, in his motion to suppress, in his supporting brief, and at




      2
          Bingaman pled guilty to Level 4 felony burglary for his role in this crime. Ex. 9.


      Court of Appeals of Indiana | Opinion 49A05-1710-CR-2218 | April 18, 2018                Page 5 of 16
       the hearing, Sparks claimed only that his rights pursuant to the Fourth

       Amendment of the United States Constitution and Article 1, Section 11 of the

       Indiana Constitution were violated because Lindsey was a “government actor.”

       See Appellant’s App. Vol. II pp. 91, 95-100; Tr. Vol. II p. 5. Objecting at trial

       on one ground and raising another ground on appeal usually results in waiver

       of the issue. See Houser v. State, 823 N.E.2d 693, 698 (Ind. 2005). Here,

       however, the State points out waiver only with regard to Sparks’s claim under

       the Indiana Wiretap Act.3 Therefore, we will address Sparks’s challenge to

       Exhibit 2 under the federal Wiretap Act.


[10]   The federal Wiretap Act makes it unlawful to “intentionally intercept[],

       endeavor[] to intercept, or procure[] any other person to intercept or endeavor

       to intercept[] any wire, oral, or electronic communication.” 18 U.S.C. §

       2511(1)(a). The federal Wiretap Act also prohibits the intentional

       “disclos[ure]” or “use[]” of the contents of an unlawfully intercepted wire, oral,

       or electronic communication. Id. § 2511(1)(c), (d). “[I]ntercept” is defined as

       “the aural or other acquisition of the contents of any wire, electronic, or oral

       communication.” Id. § 2510(4). “Whenever any wire or oral communication

       has been intercepted, no part of the contents of such communication and no




       3
         Sparks asserts that he preserved his claim under the Indiana Wiretap Act because he cited Henson v. State,
       790 N.E.2d 524 (Ind. Ct. App. 2003), trans. denied, in his supporting brief. Henson, however, focuses on the
       federal Wiretap Act and mentions the Indiana Wiretap Act only in passing. Simply citing this decision
       without also discussing, or even citing, the statute itself was not sufficient to preserve this claim.

       Court of Appeals of Indiana | Opinion 49A05-1710-CR-2218 | April 18, 2018                         Page 6 of 16
       evidence derived therefrom may be received in evidence in any trial . . . .” Id. §

       2515.4


[11]   The State argues that the federal Wiretap Act does not apply here. It asserts

       that the Act only applies to “contemporaneous” interceptions of

       communications and highlights that here, Lindsey discovered on Sparks’s

       Facebook page a recording of a conversation that had already taken place. The

       federal Wiretap Act does not explicitly require that the acquisition of a

       communication occur contemporaneously with its transmission. 2 Wayne R.

       LaFave et al., Criminal Procedure, § 4.6(b) (4th ed. 2017). Nonetheless, federal

       courts have uniformly concluded that the Wiretap Act covers only

       “contemporaneous” interceptions of communications, which are understood as

       the acquisition of communications in transit—rather than the acquisition of

       communications in storage, which are addressed by the Stored

       Communications Act.5 See Epstein v. Epstein, 843 F.3d 1147, 1149-50 (7th Cir.

       2016) (collecting cases but not reaching issue), reh’g denied, cert. denied; Luis v.

       Zang, 833 F.3d 619, 628 (6th Cir. 2016) (“All of the circuit courts that have

       considered the issue . . . have concluded . . . that the acquisition of a

       communication must be contemporaneous with its transmission in order for an

       ‘intercept’ to occur.”), reh’g denied; Theofel v. Farey-Jones, 359 F.3d 1066, 1077-78




       4
        The exclusionary rule does not apply to “electronic communications.” See, e.g., United States v. Steiger, 318
       F.3d 1039, 1050 (11th Cir. 2003).
       5
           Sparks makes no argument under the Stored Communications Act. See 18 U.S.C. § 2701.


       Court of Appeals of Indiana | Opinion 49A05-1710-CR-2218 | April 18, 2018                          Page 7 of 16
       (9th Cir. 2004) (“[T]he Act applies only to acquisition contemporaneous with

       transmission.” (quotation omitted)); Fraser v. Nationwide Mut. Ins. Co., 352 F.3d

       107, 113-14 (3d Cir. 2003) (adopting “the reasoning of our sister circuits” who

       have held that interception can only occur contemporaneously with

       transmission); United States v. Steiger, 318 F.3d 1039, 1048-49 (11th Cir. 2003)

       (“[A] contemporaneous interception—i.e., an acquisition during ‘flight’—is

       required to implicate the Wiretap Act with respect to electronic

       communications.”); see also LaFave, § 4(b) (explaining that courts have

       concluded that the acquisition of a communication must be contemporaneous

       with its transmission).


[12]   Notably, Sparks does not dispute this line of authority. The evidence shows

       that Lindsey discovered on Sparks’s Facebook account a recording of a

       conversation that had already taken place. Lindsey did not intercept a

       communication in transit; rather, she accessed a communication in storage.

       Accordingly, there is no violation of the federal Wiretap Act. We therefore

       affirm the trial court’s admission of Exhibit 2.


                                                     II. iPad
[13]   Sparks next contends that the trial court erred in admitting the iPad found

       during the search of his home because the search warrant was not supported by

       probable cause. The State argues that Sparks has waived this issue for review

       because defense counsel did not object when the State introduced the iPad into

       evidence at trial. See Tr. Vol. II pp. 118-23. Sparks acknowledges that defense


       Court of Appeals of Indiana | Opinion 49A05-1710-CR-2218 | April 18, 2018   Page 8 of 16
       counsel did not object at trial; however, he claims that the trial court was

       nevertheless aware of this issue because he filed a pretrial motion to suppress

       the iPad. See Appellant’s App. Vol. II p. 91. The failure to make a

       contemporaneous objection to the admission of evidence at trial results in

       waiver of the error on appeal. Jackson v. State, 735 N.E.2d 1146, 1152 (Ind.

       2000). This is because a contemporaneous objection affords the trial court the

       opportunity to make a final ruling on the matter in the context in which the

       evidence is introduced. Id. Sparks’s failure here results in waiver of appellate

       review.


[14]   Waiver notwithstanding, we address Sparks’s claim. In deciding whether to

       issue a search warrant, “[t]he task of the issuing magistrate is simply to make a

       practical, common-sense decision whether, given all the circumstances set forth

       in the affidavit . . ., there is a fair probability that contraband or evidence of a

       crime will be found in a particular place.” Illinois v. Gates, 462 U.S. 213, 238

       (1983). As a reviewing court, our duty is simply to ensure that there was a

       substantial basis for finding probable cause. Watkins v. State, 85 N.E.3d 597,

       603 (Ind. 2017). We owe great deference to the initial probable-cause

       determination and will not invalidate warrants by interpreting probable-cause

       affidavits “in a hypertechnical, rather than a commonsense, manner.” Id.

       (quotation omitted).


[15]   The Fourth Amendment to the United States Constitution provides:


               The right of the people to be secure in their persons, houses,
               papers, and effects, against unreasonable searches and seizures,
       Court of Appeals of Indiana | Opinion 49A05-1710-CR-2218 | April 18, 2018    Page 9 of 16
               shall not be violated, and no Warrants shall issue, but upon
               probable cause, supported by Oath or affirmation, and
               particularly describing the place to be searched, and the persons
               or things to be seized.


       Article 1, Section 11 of the Indiana Constitution contains nearly identical

       language. These constitutional principles are codified in Indiana Code section

       35-33-5-2, which details the information to be contained in an affidavit for a

       search warrant. State v. Spillers, 847 N.E.2d 949, 953 (Ind. 2006). Where a

       warrant is sought based on hearsay information, the affidavit must either:


               (1) contain reliable information establishing the credibility of the
               source and of each of the declarants of the hearsay and
               establishing that there is a factual basis for the information
               furnished; or


               (2) contain information that establishes that the totality of the
               circumstances corroborates the hearsay.


       Ind. Code § 35-33-5-2(b).


[16]   The trustworthiness of hearsay for the purpose of proving probable cause can be

       established in a number of ways, including where: (1) the informant has given

       correct information in the past, (2) independent police investigation

       corroborates the informant’s statements, (3) some basis for the informant’s

       knowledge is demonstrated, or (4) the informant predicts conduct or activity by

       the suspect that is not ordinarily easily predicted. Spillers, 847 N.E.2d at 954.

       These examples, however, are not exclusive.



       Court of Appeals of Indiana | Opinion 49A05-1710-CR-2218 | April 18, 2018   Page 10 of 16
[17]   Our courts have observed that there are two categories of informants:

       professional informants and cooperative citizens. Clifford v. State, 474 N.E.2d

       963, 969 (Ind. 1985). The test for determining the reliability of each group of

       informant is different. Id. Cooperative citizens who act as informants


               include[] victims of crime or persons who personally witness
               a crime. These individuals generally come forward with
               information out of the spirit of good citizenship and the desire to
               assist law enforcement officials in solving crime. They are
               usually one-time informants and no basis exists from prior
               dealings to determine their reliability. Further, information of
               this type usually goes to past completed crimes rather than future
               or continuing crimes. Some jurisdictions have therefore held that
               informants of this type are to be considered reliable for the
               purpose of determining probable cause unless incriminating
               circumstances exist which cast suspicion upon the
               informant’s reliability.


       Richard v. State, 820 N.E.2d 749, 754 (Ind. Ct. App. 2005) (quoting Pawloski v.

       State, 269 Ind. 350, 380 N.E.2d 1230, 1232-33 (1978)), trans. denied; see also Allen

       v. State, 798 N.E.2d 490, 496 (Ind. Ct. App. 2003) (“[O]ur supreme court has

       previously held that eyewitnesses and crime victims are considered

       presumptively reliable unless circumstances exist which call into question their

       credibility.”); Frasier v. State, 794 N.E.2d 449, 457 (Ind. Ct. App. 2003)

       (“Information gleaned from . . . eyewitnesses or victims of a crime may be

       relied upon in determining whether probable cause exists for a search where

       there are no circumstances which call the informant’s motives into question.”),

       reh’g denied, trans. denied. But the requirement for corroboration is not totally

       eliminated. Richard, 820 N.E.2d at 754.
       Court of Appeals of Indiana | Opinion 49A05-1710-CR-2218 | April 18, 2018   Page 11 of 16
[18]   Here, Sergeant Wheeler set forth in the affidavit that Lindsey reported that her

       house had been burglarized while she was at work and that several items were

       missing, including her employer-issued iPad. Lindsey suspected that her ex-

       boyfriend, Sparks, “had someone take the items,” but she didn’t know who.

       Suppression Ex. 2. Lindsey said that Sparks had told her that he was “going to

       have someone come over and take her stuff.” Id. Because Lindsey was a crime

       victim, she was presumptively reliable. Accordingly, her statements could be

       used to determine that probable cause existed to search Sparks’s home.

       Moreover, her hearsay statements were corroborated by the recording she

       discovered on Sparks’s Facebook account.


[19]   Sparks argues, however, that the affidavit contains inaccuracies and omits a

       detail about the recording and therefore the information about the recording

       cannot be used to corroborate Lindsey’s hearsay statements.6 We reject this

       argument. As for the alleged inaccuracies, Sparks points to the following

       portions of the affidavit:


                On April 21, 2016 at 12:27 AM, Officer Erik Stevenson was
                dispatched to [XXXX] Depot Dr. to speak with Lindsey
                Badan[e]k about the recent burglary to her residence. . . . Officer
                Stevenson listened to the recording and heard a male[’]s voice
                that Lindsey stated was Daniel Sparks, yelling at a female that he
                was going to “fu** him up for deviating from the list he gave




       6
        On appeal, Sparks admits that it is his voice on the recording. See, e.g., Appellant’s Br. p. 13 (“a telephone
       call made by Daniel Sparks”).

       Court of Appeals of Indiana | Opinion 49A05-1710-CR-2218 | April 18, 2018                          Page 12 of 16
        him”[7] meaning the guy he had break in Lindsey[’]s h[ouse]. . .
        .


        I, Sgt. Charles Wheeler, . . . arrived at the Depot Dr. address and
        also spoke to [Lindsey] and she played an audio recording the
        voice of which she stated she knew was her ex-boyfriend and
        father of her children, Daniel Sparks. She stated she found the
        recording on Facebook and on it Daniel Sparks is heard
        speaking to a female, saying he was trying to find William
        Bingam[a]n because Bingam[a]n stole things out of [Lindsey’s]
        house that weren’t on his list. He specifically states that
        Bingam[a]n “veered from the list” and took an [i]Pad that
        belongs to Eli Lilly, [Lindsey’s] employer, and that if turned on it
        could be “pinged” and he would be caught.


Suppression Ex. 2 (emphases added). Sparks identifies the following alleged

inaccuracies: (1) the affidavit says that the recording refers to William

Bingaman by name when in actuality the recording only refers to him as the

woman’s “husband”; (2) the affidavit says that Sparks “gave” Bingaman the

list, but the recording does not explicitly say that Sparks was the source of the

list; (3) the affidavit says that Sparks had Bingaman break into Lindsey’s house,

but the recording does not explicitly say that Sparks was responsible for

Bingaman for breaking in; and (4) the affidavit says that Sparks would be the

one caught if the iPad was turned on and pinged, but the recording more

generally says “Guess who is going to get popped with it.” As for (1), contrary




7
  The quote marks imply that the statements are verbatim quotes from the recording, but they do not appear
to be verbatim quotes.

Court of Appeals of Indiana | Opinion 49A05-1710-CR-2218 | April 18, 2018                     Page 13 of 16
       to Sparks’s suggestion, the affidavit does not say that the recording mentions

       Bingaman by name. Rather, it says that Lindsey told Sergeant Wheeler that the

       man her ex-boyfriend is talking about on the recording is Bingaman. As for (2)-

       (4), we find that they are reasonable inferences given the recording as a whole,

       including the angry and threatening tone of Sparks’s voice.


[20]   As for the omission, Sparks notes that Sergeant Wheeler did not include the fact

       that Lindsey discovered the recording by logging into Sparks’s Facebook

       account using his password and argues that had the magistrate known this, it

       would have impacted his decision to issue the search warrant. He argues:


               Judges and magistrates are all too familiar with vengeful and
               underhanded tactics in the realm of feuding exes, particularly
               where the couple have children together. Any such tactics are
               highly relevant to credibility determinations. Especially where a
               person’s accusations against a former domestic partner are
               essentially uncorroborated hearsay, a magistrate must be
               accurately apprised of all relevant facts surrounding the
               accusations in order to make a fair and informed decision about
               probable cause for the warrant.


       Appellant’s Reply Br. pp. 14-15. Given the high level of corroboration

       provided by the recording, we have serious doubts that the fact that Lindsey

       discovered the recording by logging into Sparks’s Facebook account using a

       password that he had previously given her would have changed the magistrate’s

       decision to issue the search warrant.


[21]   Finally, Sparks argues that there was no reasonable nexus between the

       information in the affidavit and the location to be searched, i.e., his home. He

       Court of Appeals of Indiana | Opinion 49A05-1710-CR-2218 | April 18, 2018   Page 14 of 16
       highlights that, as even the affidavit provides, he was home when the burglary

       was committed. However, according to the affidavit, Lindsey, from the very

       beginning, suspected that Sparks “had someone take the items,” but she didn’t

       know who. Suppression Ex. 2. Lindsey also said that Sparks had told her that

       he was “going to have someone come over and take her stuff.” Id. Lindsey

       later discovered the recording. In the recording, Sparks said:


               Let me tell you something about that iPad. When you turn that
               bit** on, Eli Lilly owns that iPad. That iPad is going to get
               pinged off. Guess who is going to get popped with it. I told that
               stupid mother fu**er . . . not to veer off the goddamn list. I told
               him if he veered off the list, he’s going to get fu**ed up. When I
               catch your husband, I’m banging him on top for disrespecting me
               and for going against what the fu** I told him. . . . [G]o find him
               and tell him how serious this mother fu**ing situation is.


       Taken in context, there was a substantial basis that the iPad would be found at

       Sparks’s home. Given Sparks’s anger at the woman’s husband for “veer[ing]”

       off the list, it was reasonable to presume that Sparks was worried about being

       caught with the iPad. See Appellant’s Br. p. 29 (Sparks conceding that it was

       either he or the unnamed “husband” who was going to get “popped”).


[22]   In conclusion, the search warrant was based on a practical, commonsense

       decision that there was a fair probability that contraband or evidence of a crime

       would be found in Sparks’s home. Because the warrant was supported by

       probable cause, the trial court did not err in admitting the iPad into evidence.

       We therefore affirm the trial court.



       Court of Appeals of Indiana | Opinion 49A05-1710-CR-2218 | April 18, 2018   Page 15 of 16
Barnes, J., and Pyle, J. concur.




Court of Appeals of Indiana | Opinion 49A05-1710-CR-2218 | April 18, 2018   Page 16 of 16
