MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                  FILED
regarded as precedent or cited before any                         Jun 23 2017, 9:31 am
court except for the purpose of establishing
                                                                       CLERK
the defense of res judicata, collateral                            Indiana Supreme Court
                                                                      Court of Appeals
estoppel, or the law of the case.                                       and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Justin R. Wall                                           Curtis T. Hill, Jr.
Wall Legal Services                                      Attorney General of Indiana
Huntington, Indiana
                                                         Jodi Kathryn Stein
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Joseph E. Waldron,                                       June 23, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         35A02-1701-CR-122
        v.                                               Appeal from the Huntington
                                                         Circuit Court
State of Indiana,                                        The Honorable Thomas M. Hakes,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         35C01-1609-FC-155



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 35A02-1701-CR-122| June 23, 2017         Page 1 of 7
                                       Statement of the Case
[1]   Joseph E. Waldron brings an interlocutory appeal of the trial court’s denial of

      his motion to suppress evidence, following a hearing on that motion. He raises

      one issue, namely, whether the trial court erred when it found that a search

      warrant included within its scope the seizure of electronic devices capable of

      storing video recordings from surveillance cameras. We affirm.


                                 Facts and Procedural History
[2]   On Tuesday, May 10, 2016, six-year-old A.W. disclosed to school personnel

      and police that Waldron, her father, had physically battered her with a Taser

      over the previous Friday and Saturday at their home in Huntington. Based

      upon the information from A.W., Huntington Police Detective Andrew Ellet

      (“Officer Ellet”) obtained a search warrant that afternoon for Waldron’s

      residence to search for and seize: “a taser, all surveillance cameras both inside

      and outside the home, and electronic devices used to store video recordings

      from the surveillance cameras.” Appellant’s App. at 28-29; State’s Ex. 1. The

      search warrant also directed the officers “to search all recovered surveillance

      cameras and electronic devices for the following: video recordings or pictures

      involving child physical abuse.” Id.


[3]   At around 4:00 p.m., Officer Ellet and other Huntington police officers

      executed the search warrant in Waldron’s presence. The officers located in the

      home a digital video recorder (“DVR”) connected to the indoor and outside

      surveillance cameras. Officer Ellet was aware that the purpose of the DVR was


      Court of Appeals of Indiana | Memorandum Decision 35A02-1701-CR-122| June 23, 2017   Page 2 of 7
      to record video from the surveillance cameras and that it had limited capacity to

      store information. Within close proximity to the DVR, the officers also located

      a taser, a computer tower, a laptop computer, an internal hard drive, several cell

      phones, and a digital camera. The computer tower, the laptop computer, and

      the internal hard drive all had the capability of storing video recordings from

      the surveillance cameras transferred through the DVR over a wireless router.

      The officers did not know which electronic devices Waldron used to store the

      videos recorded by the DVR.


[4]   Detective Ellet seized the taser, the laptop computer, the computer tower, the

      internal hard drive, and the DVR, including its hard drive. Indiana State Police

      Sergeant Jeremy Chapman (“Officer Chapman”), a forensic examiner of digital

      evidence and an audio visual enhancement specialist, examined the electronic

      devices and discovered on them evidence of child solicitation committed

      against a sixteen-year-old girl and images of child pornography. On September

      1, 2016, the State charged Waldron with two counts of Class C felony child

      exploitation and one count of Level 6 felony possession of child pornography.


[5]   On October 3, Waldron filed a motion to suppress, which alleged that the

      officers exceeded the scope of the warrant by seizing all electronic devices

      except the DVR. Specifically, Waldron argued that the language of the search

      warrant limited the seizure of evidence to only those electronic devices

      physically connected to the surveillance cameras, i.e., the DVR. Following a

      hearing on Waldron’s motion to suppress, the trial court issued an order

      denying that motion. The trial court’s order stated, in relevant part:

      Court of Appeals of Indiana | Memorandum Decision 35A02-1701-CR-122| June 23, 2017   Page 3 of 7
              The Court finds this attempt to restrict the ability of the officers
              to properly search for evidence with the [w]arrant is incorrect.


              The home had many devices upon which storage of video
              recordings from the surveillance cameras could have been stored.
              The Court could not have been aware of what was in the home
              and capable of storage. Therefore, devices capable of storage by
              connecting to the camera on the DVR would be allowed to be
              taken and searched by the [w]arrant.


      Appellant’s App. at 58.


[6]   Waldron subsequently obtained an order certifying the order on his motion to

      suppress for interlocutory appeal. On February 24, 2017, we accepted

      jurisdiction of this interlocutory appeal.


                                     Discussion and Decision
[7]   Waldron appeals the trial court’s denial of his motion to suppress evidence.

      Our standard of review for the denial of a motion to suppress is similar to other

      sufficiency issues. Gonser v. State, 843 N.E.2d 947, 949 (Ind. Ct. App. 2006).


              We determine whether there is substantial evidence of probative
              value to support the trial court’s ruling. Litchfield v. State, 824
              N.E.2d 356, 359 (Ind. 2005). We do not reweigh evidence and
              [we] construe conflicting evidence most favorably to the trial
              court’s ruling. Widduck v. State, 861 N.E.2d 1267, 1270 (Ind. Ct.
              App. 2007). We must also consider uncontested evidence
              favorable to the defendant. Id. The trial court’s ultimate
              determination of the constitutionality of a search or seizure is,
              however, reviewed de novo. Harper v. State, 922 N.E.2d 75, 79
              (Ind. Ct. App. 2010) (quoting Crabtree v. State, 762 N.E.2d 241,


      Court of Appeals of Indiana | Memorandum Decision 35A02-1701-CR-122| June 23, 2017   Page 4 of 7
              244 (Ind. Ct. App. 2002)) (applying this standard to a Terry stop),
              trans. denied.


      Woodson v. State, 960 N.E.2d 224, 226 (Ind. Ct. App. 2012).


[8]   Waldron maintains that all electronic devices except the DVR were erroneously

      admitted into evidence because they were beyond the scope of the warrant to

      search his home.


              To protect a citizen’s right to be free from unreasonable searches
              and seizures, our state and federal constitutions require officials
              to obtain a warrant before conducting searches and seizures.
              Green v. State, 676 N.E.2d 755, 757 (Ind. Ct. App. 1996), trans.
              denied. A warrant may not issue unless an affidavit is submitted
              to a judge or magistrate, describing with particularity the place to
              be searched and the items to be seized. Id. The particularity
              requirement restricts the scope of the search, authorizing seizure
              of only those things described in the warrant; a warrant which
              leaves the executing officer with discretion is invalid. Lee v. State,
              715 N.E.2d 1289, 1290 (Ind. Ct. App. 1999).


      Pavey v. State, 764 N.E.2d 692, 702 (Ind. Ct. App. 2002), trans. denied.

      However, “[o]ur supreme court has noted that while the items to be searched

      for and seized must be described with some specificity, there is no requirement

      that there be an exact description.” Id. (citing Phillips v. State, 514 N.E.2d 1073,

      1075 (Ind. 1987)).


[9]   Here, the search warrant authorized the police to search Waldron’s home for

      “electronic devices used to store video recordings from the surveillance

      cameras,” and to seize such items. Appellant’s App. at 58. The warrant further


      Court of Appeals of Indiana | Memorandum Decision 35A02-1701-CR-122| June 23, 2017   Page 5 of 7
       authorized the police to “search all recovered surveillance cameras and electronic

       devices for . . . video recordings or pictures involving child physical abuse.” Id.

       (emphasis added). Officer Chapman, who had been employed as a forensic

       examiner of digital evidence for thirteen years, testified that recordings from the

       surveillance cameras could have been transferred from the DVR to the seized

       laptop computer, computer tower, and internal hard drive for storage. Such a

       transfer could have been accomplished either by a hard connection or through a

       wireless router. He testified that such a transfer was likely, given the limited

       storage capacity of the DVR. Moreover, the DVR unit had the capability of

       transferring data directly to the computer tower. Thus, the seized electronic

       devices were capable of storing “video recordings from the surveillance

       cameras.” Id. And, since the officers obviously could have no way of knowing

       which, if any, of the devices actually stored such recordings until they searched

       each of them, the warrant authorized them to conduct such a search of each

       seized electronic device. Id.


[10]   Waldron maintains that only the DVR fell within the scope of the warrant

       because it was the only device that was physically connected to the surveillance

       cameras at the time of the search. Thus, he contends, only the DVR could be

       used to store video recordings “from” the surveillance camera. That contention

       is without merit. The warrant contains no language limiting the search and

       seizure to electronic devices that happen to actually be attached to the

       surveillance camera at the time of the search. Nor does it limit the search to

       only devices that can directly record the video from the surveillance camera.


       Court of Appeals of Indiana | Memorandum Decision 35A02-1701-CR-122| June 23, 2017   Page 6 of 7
       Rather, the plain language of the warrant applies to devices “used to store”

       recordings, and the evidence shows that the seized electronic devices were

       capable of such storage. Moreover, this was not a situation where the officers

       were authorized to seize one kind of item, but seized an item of unrelated

       character. C.f. Ogburn v. State, 53 N.E.3d 464, 474 (Ind. Ct. App. 2016) (holding

       seizure exceeded scope of warrant where the item seized “was not of the same

       character as” the items described in the warrant), trans. denied.


[11]   The record contains substantial evidence of probative value to support the trial

       court’s denial of Waldron’s motion to suppress the electronic devices.


[12]   Affirmed.


       Riley, J., and Bradford, J., concur.




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