90 So. 3d 227
Ala. Crim. App.2011Background
- C.B.D., a minor, was adjudicated delinquent on 11 counts of possession of obscene matter under § 13A-12-192(b), Ala.Code 1975, after a search of his residence following a February 2009 warrant.
- Sgt. Rafferty obtained the search warrant based on information from CAC and DHR and located multiple electronic media storage devices and devices at the home.
- Forensic examination by Inv. Yeomans found numerous images/videos believed to be child pornography on a Dell computer C.B.D. admitted using to view pornography; 13 petitions were filed.
- C.B.D. moved to suppress arguing improper warrant procedures, loss of the warrant/affidavit, and lack of probative evidence about contents of the lost documents.
- The juvenile court denied suppression; on appeal, the State argued the warrant contents could be proven by parol evidence and that the warrant was valid with proper predicates.
- The court ultimately upheld the delinquency adjudications, holding that the 2006 amendment to § 13A-12-190(16) controls the unit of prosecution and sustains 11 counts.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Parol evidence predicate for lost warrant | C.B.D. contends there was no diligent search predicate for parol proof. | C.B.D. asserts lack of proper predicate to admit parol contents. | Predicate satisfied; sufficient evidence to admit parol contents. |
| Contents of search warrant and affidavit | State failed to prove warrant/affidavit contents beyond vague testimony. | No direct recollection by judge; only Yeomans testified to contents. | State substantially established contents; parol testimony acceptable for lost documents. |
| Effect of non-returned warrant on challenge rights | Loss/absence of warrant hinders challenge; prejudices defendant. | No prejudice since contents proven; challenge still possible. | No prejudice; contents established; challenge not compromised. |
| Probable cause for warrant | Facts from CAC and DHR supported probable cause to search for child pornography. | Only text-message evidence of solicitation; not enough for probable cause. | Probable cause established; information showed reasonable probability of contraband. |
| Overbreadth and particularity of the warrant | Warrant adequately described items to be seized as electronic media capable of storing images. | Warrant too broad with respect to beyond cellular phone. | Warrant not overbroad; description measured by practical application and probable cause. |
Key Cases Cited
- Lipscomb v. Tucker, 294 Ala. 246, 314 So.2d 840 (Ala. 1975) (sufficiency of predicate for lost document; diligent search doctrine)
- Spellman v. State, 500 So.2d 110 (Ala.Crim.App.1986) (parol evidence to establish contents of missing document)
- Thomas v. State, 37 Ala.App. 118, 66 So.2d 103 (Ala.1983) (admissibility of parol evidence to establish contents of a search warrant)
- Ward v. State, 994 So.2d 293 (Ala.Crim.App.2007) (constructive possession theory for computer images; totality of circumstances)
- Illinois v. Gates, 462 U.S. 213 (U.S. Supreme Court) (probable cause; totality of the circumstances standard)
- Ex parte Darby, 516 So.2d 786 (Ala.1987) (double jeopardy/unit-of-prosecution considerations under Alabama law)
- Callahan v. State, 557 So.2d 1292 (Ala.Crim.App.1989) (probable cause standard; factual basis required in affidavit)
- Mewbourn v. State, 570 So.2d 805 (Ala.Crim.App.1990) (probable cause standard; practical considerations)