                            STATE OF WEST VIRGINIA
                          SUPREME COURT OF APPEALS


State of West Virginia,
Plaintiff Below, Respondent,                                                      FILED
                                                                              March 15, 2019
vs.) No. 18-0340 (Cabell County 09-F-217)                                    EDYTHE NASH GAISER, CLERK
                                                                             SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA
Edward Allen Mazzei,
Defendant Below, Petitioner


                              MEMORANDUM DECISION
        Petitioner Edward Allen Mazzei, by counsel Richard W. Weston, appeals the Circuit
Court of Cabell County’s March 19, 2018, second amended order sentencing him to a cumulative
term of incarceration of ten years following his conviction of five counts of possession of
material depicting minors engaged in sexually explicit conduct. Respondent State of West
Virginia, by counsel Elizabeth Grant, filed a response in support of the circuit court’s order.
Petitioner filed a reply. On appeal, petitioner argues that the circuit court erred in denying his
motions to suppress because the State illegally seized and searched his property, he did not
voluntarily consent to a search of external media storage, and the exclusionary rule bars evidence
of the initial illegal search and seizure, the search warrant, and his subsequent confession.

        This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.

        In July of 2007, the West Virginia State Police began an investigation into allegations
that petitioner possessed child pornography. According to the record, the police received two
factually specific anonymous tips that petitioner was very experienced with computers, including
encryption, and possessed thousands of images of child pornography that were contained “on
CDs or Disks and [were] stored separately from his hard drive.”

        On August 14, 2007, Troopers First Class Robert Boggs and Michael Pardee, both of the
West Virginia State Police, arrived at petitioner’s home and found petitioner and his wife in their
vehicle outside the residence. Trooper Boggs requested that petitioner exit the vehicle to speak
with him, and petitioner complied. According to Trooper Boggs’s testimony, he explained to
petitioner “in detail the tip that we had received and how very specific it was” and “asked
[petitioner] for consent to search his house for this child pornography for the material that was
listed in the tip.” Petitioner then agreed to permit the officers to search his residence and
executed a consent form that granted them permission to “conduct a complete search” of the

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home.

        Upon entering the home, Trooper Boggs brought computer hardware to aid in the search.
Petitioner then directed Trooper Boggs to his computer room which contained an
“overwhelm[ing] . . . amount of digital data” for Trooper Boggs to review. Per Trooper Boggs’s
testimony, it was apparent that petitioner “knew something about computers” beyond simple
computer literacy. During the search, petitioner was free to move about the home and even
entered and exited the computer room. Ultimately, Trooper Boggs encountered a CD that, when
inserted into his laptop, contained “a chunk of free space” which he believed was odd. Using
software on his laptop, Trooper Boggs was able to “carve” the free space, which revealed
approximately sixty-two images of prepubescent children engaged in various sexual acts.1
According to Trooper Boggs, in performing this carving function, the software on his laptop
automatically created a copy of the information and saved it. Trooper Boggs then placed the CD
back where he found it and did not tell petitioner about his discovery.

       Trooper Boggs then sought a search warrant based on the tip and his personal
observations.2 According to the record, the magistrate who issued the search warrant did not
view any photographs from the CD in question, nor did Trooper Boggs submit them in support
of his warrant application. Based on the contents of Trooper Boggs’s affidavit, the magistrate
authorized a search warrant, and the police executed that warrant. During the warrant’s
execution, police seized the CD in question, in addition to other images of child pornography
ultimately totaling several hundred images.

       After petitioner’s arrest he was arraigned and then transported to the regional jail. After
Trooper Boggs advised petitioner of his Miranda3 rights, petitioner confessed to possessing child
pornography on the CD in question. Thereafter, petitioner was indicted on ten counts of


        In his testimony, Trooper Boggs described the act of “carving” the CD in question.
        1

According to Trooper Boggs, a file on the CD labeled “Drive Space” or “Drive Free Space,” was
described as “a bunch of ones and zeros, a bunch of hex. There was nothing discernible or
nothing readable about its original nature.” Accordingly, Trooper Boggs “carved” the data by
searching it for “file headers and file formats from the very first zero to the last” in an attempt to
“carve[] out individual files.” This technique yielded the pictures at issue.
        2
         This included observations Trooper Boggs made that were unrelated to the CD at issue,
including the fact that “the very first words upon meeting with [petitioner] and explaining the tip
was – the very first thing he stated was, ‘I was sexually abused as a child.’” Additionally, one of
the tips police received indicated that petitioner possessed children’s clothing despite the fact
that he did not have children. Upon petitioner’s voluntary consent to search the home, the
officers discovered children’s clothing in petitioner’s computer room that petitioner indicated he
used for therapy. When executing the search warrant, police found that the children’s clothing
had been removed.
        3
            Miranda v. Arizona, 384 U.S. 436 (1966).



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possessing material depicting minors engaged in sexually explicit conduct. Petitioner filed a
motion to suppress the CD and his confession.

        In August of 2013, the circuit court held a hearing on petitioner’s motion to suppress the
CD. During the hearing, Trooper Boggs testified that the State Police’s common practice is to
view digital media on a forensic computer, rather than the suspect’s computer, because “the
[d]efendant’s computer . . . could potentially be evidence, and we do not want to change
anything on his hard drive. And the mere use of that hard drive you are actually changing a lot of
data.” Trooper Boggs also indicated that this practice addresses concerns over the possible
deletion of data if the suspect’s computer were used. During the hearing, Trooper Boggs
confirmed that he did not inform petitioner that he would copy any data found in the home nor
did he obtain petitioner’s consent to copy such data. Following the hearing, the circuit court
denied petitioner’s motions. In December of 2013, the circuit court held a hearing on petitioner’s
motion to suppress his statement, which it also denied. By order entered on January 14, 2016, the
circuit court memorialized its denials in a consolidated order.

       Eventually, petitioner entered a conditional guilty plea to five counts of the indictment
pursuant to a plea agreement with the State. In exchange, the State agreed to dismiss the
remaining counts. Prior to sentencing, petitioner appealed the circuit court’s order denying his
motions to suppress. This Court, however, dismissed petitioner’s appeal as interlocutory by order
entered on February 14, 2017.

       In August of 2017, petitioner was sentenced to a cumulative term of ten years of
incarceration for his convictions. The circuit court subsequently entered two amended sentencing
orders for purposes of appeal. It is from the second amended sentencing order that petitioner
appeals.

       We have previously held that

               [w]hen reviewing a ruling on a motion to suppress, an appellate court
       should construe all facts in the light most favorable to the State, as it was the
       prevailing party below. Because of the highly fact-specific nature of a motion to
       suppress, particular deference is given to the findings of the circuit court because
       it had the opportunity to observe the witnesses and to hear testimony on the
       issues. Therefore, the circuit court’s factual findings are reviewed for clear error.

Syl. Pt. 1, State v. Lacy, 196 W. Va. 104, 468 S.E.2d 719 (1996). On appeal, petitioner
challenges the circuit court’s denial of his motion to suppress the evidence obtained by virtue of
the initial search of his home on the grounds that the search exceeded the reasonable scope of his
consent and that the police unlawfully seized his property without his consent. Upon our review,
however, we find no error in the circuit court’s ruling.

       According to petitioner, he did not voluntarily consent to a search of external media




                                                3
storage, such as the CD at issue. As such, he argues that the search of those items was beyond the
scope of any consent given.4 In addressing consent to search, this Court has held as follows:

              “The general rule is that the voluntary consent of a person who owns or
       controls premises to a search of such premises is sufficient to authorize such
       search without a search warrant, and that a search of such premises, without a
       warrant, when consented to, does not violate the constitutional prohibition against
       unreasonable searches and seizures.” Syl.Pt. 8, State v. Plantz, 155 W.Va. 24, 180
       S.E.2d 614 (1971), overruled in part on other grounds by State ex rel. White v.
       Mohn, 168 W.Va. 211, 283 S.E.2d 914 (1981).

Syl. Pt. 1, State v. Buzzard, 194 W. Va. 544, 461 S.E.2d 50 (1995). Given that petitioner does not
contest the voluntary nature of his consent to search the premises, it is unnecessary to analyze the
criteria necessary to determine when such voluntary consent is given. See id. at 545-46, 461
S.E.2d 51-52, syl. pt. 3 (setting forth six criteria to address when evaluating the voluntariness of
consent to search). Instead, petitioner simply challenges the scope of the consent given and
argues that it did not extend to physical storage such as the CD at issue. We do not agree.

        As the United States Supreme Court has held, “[t]he touchstone of the Fourth
Amendment is reasonableness.” Florida v. Jimeno, 500 U.S. 248, 250 (1991) (citing Katz v.
United States, 389 U.S. 347, 360 (1967)). Moreover, the Supreme Court held that “[t]he Fourth
Amendment does not proscribe all state-initiated searches and seizures; it merely proscribes
those which are unreasonable.” Id. (citing Illinois v. Rodriguez, 497 U.S. 177 (1990)).
Accordingly, the Supreme Court has “long approved consensual searches because it is no doubt
reasonable for the police to conduct a search once they have been permitted to do so.” Id. at 250-
51 (citing Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973)). Based on these principles, the
Supreme Court instructed that “[t]he standard for measuring the scope of a suspect’s consent
under the Fourth Amendment is that of ‘objective’ reasonableness – what would the typical
reasonable person have understood by the exchange between the officer and the suspect?” Id. at
251 (citing Rodriguez, 497 U.S. at 183-89; Florida v. Royer, 460 U.S. 491, 501-02 (1983)).
Indeed, in addressing this issue, this Court has similarly held that



       4
         On appeal, petitioner does not challenge the voluntariness of his consent to search the
home or the computers therein. While petitioner does make passing references to alleged
coercion or other potential issues with his general consent to search the home, such as his
assertion that “[i]t is questionable whether he voluntarily consented to the search of his house
and computer based on his state of mind of nervousness” and other factors, petitioner does not
raise a specific assignment of error challenging the voluntariness of the consent to search,
generally. Instead, petitioner’s assignment of error is directed specifically at the State’s search of
the CD in question and his assertion that he did not consent to a search this broad in scope. As
such, we address only the propriety of the State’s search of the CD in question and assume,
based on petitioner’s failure to raise the issue, that the general consent to search the residence
was voluntarily given.



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               “[c]onsent to search may be implied by the circumstances surrounding the
       search, by the person’s prior actions or agreements, or by the person’s failure to
       object to the search. Thus, a search may be lawful even if the person giving
       consent does not recite the talismanic phrase: ‘You have my permission to
       search.’” Syl. pt. 1, State v. Flippo, 212 W.Va. 560, 575 S.E.2d 170 (2002).

Syl. Pt. 4, State v. Jonathan B., 230 W. Va. 229, 737 S.E.2d 257 (2012).

        Based on the record before us, we find that the State’s search of the CD in question was
reasonable, given the totality of the circumstances. In addition to the fact that the general consent
to search that petitioner executed granted the officers the right to “conduct a complete search” of
his residence, the record shows that Trooper Boggs also obtained a more specific consent from
petitioner orally. In requesting petitioner’s consent to search the home, Trooper Boggs
“explained to him in detail the tip we had received and how very specific it was, and we asked
for consent to search his house for this child pornography for the material that was listed in the
tip.” (Emphasis added). The record is clear that the tip Trooper Boggs was acting upon was very
explicit about where petitioner stored the illicit images. This tip specifically stated that “[m]ost
of the stuff [petitioner] owns is on CDs or Disks and are stored separately from his hard drive.”

        On appeal, petitioner attempts to limit the scope of the voluntary consent he gave to
search by highlighting testimony from Trooper Boggs wherein he addresses his discussion with
petitioner in terms of “computer images” or “digital images basically that were on a computer.”
According to petitioner, this establishes that the scope of his consent was limited to his
computers and, therefore, law enforcement’s search of the CD was outside the scope of his
consent. We find, however, that based on a totality of the circumstances it is clear that Trooper
Boggs obtained petitioner’s consent to a broad search of the entire home and that he further
expressed to petitioner that he sought images of child pornography consistent with the tip
received by law enforcement, which explicitly outlined that they would be stored on “CDs or
Disks” separate and distinct from petitioner’s computer. As such, we find that a reasonable
person would have expected Trooper Boggs to conduct a search of digital materials within the
home, including CDs.

       In regard to the State’s search of the CD itself, petitioner additionally argues that Trooper
Boggs’s use of forensic software was not allowed without petitioner’s knowledge and consent.
Specifically, petitioner argues that “[t]he Fourth Amendment does not allow searches with
devices that are not in common use without a warrant, or co-extensively, without consent.” In
making this argument, petitioner relies on the United States Supreme Court decision of Kyllo v.
U.S., 533 U.S. 27 (2001). We find, however, that Kyllo is inapplicable, as that case concerned
law enforcement’s use of thermal imaging on a defendant’s home without consent or a warrant.
Again, based on the totality of the circumstances, we find that a reasonable person would have
understood that a search for digital images of child pornography, including a search of external
storage such as a CD, would require the use of a computer and associated software. Accordingly,




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we find no error in the circuit court’s denial of petitioner’s motion to suppress.5

        In petitioner’s second assignment of error, he argues that when Trooper Boggs
transferred data from the CD to his computer, he illegally seized the images. According to
petitioner, Trooper Boggs “could not have viewed the images on the CD without the copying to
his own computer” and petitioner never gave his consent for any such seizure. Despite making
this argument, petitioner acknowledges that the record does not support his assertion, as he also
admits that “Trooper Bogg[s’s] testimony was contradictory as to whether this seizure occurred
before or after he viewed the images.”

       Ultimately, we decline to address the issue of whether Trooper Boggs’s transfer of data
from petitioner’s CD to his computer constituted a seizure for several reasons. First, as noted
above, petitioner acknowledges that the record does not support his position that Trooper Boggs
would have been unable to view the files in question had he not allegedly seized the data first.
Indeed, Trooper Boggs never asserted that this was the case and, in fact, simply indicated that


       5
        In support of this assignment of error, petitioner additionally argues that the circuit
court’s ruling on his motion to suppress “is not [c]onsistent with West Virginia [l]aw.” To
advance this argument, petitioner cites West Virginia Code §§ 62-1A-10(a)(2) and (3), which
provide that

       (a) A law-enforcement officer who stops a motor vehicle for an alleged violation
       of a traffic misdemeanor law or ordinance may not search the vehicle unless he or
       she: . . .
                       ....

               (2) Obtains the written consent of the operator of the vehicle on a form
               that complies with section eleven [§ 62-1A-11] of this article; or,
               alternatively,

               (3) Obtains the oral consent of the operator of the vehicle and ensures that
               the oral consent is evidenced by an audio recording that complies with
               section eleven of this article.

Relying solely on this statute, petitioner argues that “[i]f West Virginia has decided to extend
these protections to motor vehicles, certainly they should extend to our refuge, the castle.” We
find, however, that petitioner’s reliance on this statute is entirely misplaced, for several reasons.
First, this statute plainly applies to motor vehicles, not homes, and petitioner has not cited to any
relevant statute governing private dwellings. More importantly, although petitioner argues that
the consent form he signed did not comport with the requirements of this statute and, thus, was
legally deficient, petitioner ignores subsection (d) of that statute, which provides that “[f]ailure to
comply with the provisions of this section shall not, standing alone, constitute proof that any
consent to search was involuntary.” For these reasons, we find that petitioner’s reliance on this
statute does not entitle him to relief.



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“the simple act of processing” the CD resulted in his forensic computer “automatically sav[ing]”
the information. Given that the transfer of data appeared to be incidental to Trooper Boggs
viewing it, petitioner has failed to establish that, without the alleged seizure, Trooper Boggs
could not have viewed the images from the CD.

        Second, the record is clear that any alleged seizure had no effect on the outcome of the
matter. According to the record, Trooper Boggs did not submit any of the images from the CD in
support of his application for a search warrant of petitioner’s home. Instead, Trooper Boggs
relied on his own observations about petitioner and the images he viewed to support his
application. As such, we find no error.

        Finally, petitioner argues that because the officer’s initial search of his home exceeded
the scope of his consent and because he alleges that law enforcement engaged in an unlawful
seizure of the data found on the CD, “the images seized the next day pursuant to the search
warrant are also inadmissible as fruits of the poisonous tree.” We do not find this argument
compelling, however, given the analysis above. In further arguing that his statement to police
should have been suppressed, petitioner argues that “[i]f the initial Fourth Amendment violation
did not occur, the officers would not have discovered any images and [petitioner] would not have
been arrested” and would not have given the statement to law enforcement. Again, given that we
find that no Fourth Amendment violation occurred during law enforcement’s initial search of
petitioner’s home, we find that petitioner is entitled to no relief in this regard.6

       For the foregoing reasons, we affirm.


                                                                                        Affirmed.

ISSUED: March 15, 2019




       6
         In his brief on appeal, petitioner does not independently challenge the circuit court’s
denial of his motion to suppress his statement to law enforcement on any ground other than that
it was a direct result of law enforcement’s initial search of his home. Although petitioner does
assert that he “requested a lawyer ‘throughout’” his interaction with law enforcement and that the
officer who took his statement “did not use the standard State Police form” when memorializing
his Miranda waiver, petitioner nonetheless admits he was given a Miranda warning before
giving his statement. He also makes it clear that his argument concerning the requirement that his
statement be suppressed is directly tied to his allegation that the initial search was illegal by
presenting this argument under his assignment of error alleging that “The Exclusionary Rule
Bars Evidence Of The Initial Illegal Search And Seizure, The Search Warrant, And Defendant’s
Subsequent Statement.” As such, it is clear that petitioner is not challenging the admission of his
statement on any grounds other than that it should have been excluded because it flowed from
what he believes was an illegal search and seizure.



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CONCURRED IN BY:

Chief Justice Elizabeth D. Walker
Justice Margaret L. Workman
Justice Tim Armstead
Justice Evan H. Jenkins
Justice John A. Hutchison




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