Lead Opinion
for the Court:
¶ 1. On December 19, 2011, Philadelphia, Mississippi Police Chief Richard Sis-trunk was provided information concerning a possible identify theft. Upon further investigation, an informant, John Paul Dove, implicated Stanley Chesney (Ches-ney); so Chief Sistrunk obtained a search warrant from Municipal Judge Steven Cumberland for the residence of “Billy Chesney, Stanley Chesney and persons unknown” to recover “one computer with information on Sherri Stewart on identity theft.”
¶2. Upon arriving at the Chesneys’ residence, Chief Sistrunk was informed by Chesney that his laptop computer was at a nearby computer repair store.
¶ 3. Chesney’s computer was taken to the police department, and Chris Stokes, who worked on computers for the Philadelphia police, was asked to do a search of the computer. He quickly located photographs that possibly depicted child pornography. Stokes was then advised to stop the search, and Chief Sistrunk began the process of obtaining a second search warrant for those files, with the assistance of the Mississippi Attorney General’s cyber-crime division. In the “Statement of Underlying Facts and Circumstances” to support the second warrant, Chief Sistrunk stated that Stokes had alerted him to “what could possibl[y] be photos of underage boys in the nude.” The statement made no mention of Kaulfers or his comments. Chief Sistrunk signed the affidavit, and Judge Cumberland signed the second search warrant.
¶ 4. Pursuant to the second, warrant, Deputy Commander Jay Houston of the cybercrime division searched Chesney’s computer and found five images depicting child pornography in the computer’s recycle bin. Chesney was brought in for questioning and subsequently confessed to possessing the photographic files, claiming that he had found the files on a disk at a relative’s house and admitted that he knew that child pornography was illegal.
¶ 5. Chesney was indicted on five counts of exploitation of a child.
¶ 6. Chesney was convicted on all counts by a Neshoba County Circuit Court jury and sentenced to forty years in the custody of the Mississippi Department of Corrections (MDOC). He received thirty years for Count I, and ten years for Count II, which was to run consecutively to the sentence in Count I. For Counts III-V, Chesney was sentenced to ten years for each count, with the sentences to run concurrently with the sentences in Counts I and II.
¶ 7. Chesney filed a motion for a judgment notwithstanding the verdict or, alternatively, for a new trial. The circuit court denied his motion, and he now appeals. We find that Chesney’s first claim, regarding the failure to instruct the jury on the element of venue, warrants a reversal of the judgment and a remand for a new trial.
¶ 8. We further conclude that Ches-ney’s second claim of error — that the circuit court erred in denying his motion to suppress evidence “because probable cause did not exist for the issuance of the first search warrant” — is also meritorious. Chesney contends that all of the evidence implicating him in the instant crimes was
DISCUSSION
I. Whether the circuit court erred in failing to instruct the jury on the essential elements of the crime.
¶ 9. Chesney contends that the circuit court committed fundamental plain error by failing to instruct the jury on the essential elements of the crime. Specifically, Chesney claims that the instruction failed to instruct the jury on the essential element of venue. Jury Instruction S-l stated identically as to each of the five counts:
The Court instructs the Jury that if you believe from the evidence in this case beyond a reasonable doubt that -at the time and place charged in the Count [_] of the indictment and testified about, that the Defendant, Stanley R. Chesney, did willfully, unlawfully and feloniously have in his possession a visual depiction of an actual child engaging in sexually explicit conduct, then it is your duty to find the defendant guilty as charged in Count [_].
¶ 10. Although the State argues this issue is procedurally barred due to Chesney’s failure to object to the instruction, the Mississippi Supreme Court has stated that “instructing the jury on every element of the charged crime is so basic to our system of justice that it should be enforced by reversal in every case where inadequate instructions are given, regardless of a failure to object at trial.” Boyd v. State,
¶ 11. In Rogers v. State,
¶ 12. We find the record supports Chesney’s claim. Like Rogers, the written jury instructions in the present case provided that the jury had to find the crime occurred “at the time and place charged” in each count. Also, the indictment was not submitted to the jury for consideration, “and the ‘time and place testified about’ was far from definite.” Id. at (¶ 28). Moreover, when reading the instructions to the jury, the circuit court did not include the portion of the written instruction quoted above; thus, nowhere
II. Whether the circuit court erred in denying Chesney’s motion to suppress the evidence obtained through the search warrant.
¶ 13. At trial, defense counsel “move[d] to suppress all evidence gained and acquired as a result of [the first] search warrant.” Counsel argued that the affidavit and statement of facts by Chief Sis-trunk, which had been provided to Judge Cumberland in order to obtain the original search warrant, failed to establish the informant’s reliability; thus, there were no grounds for a valid search warrant. The circuit court overruled Chesney’s motion to suppress the evidence.
¶ 14.- On appeal, Chesney reasserts that “probable cause did not exist for the issuance of the first search warrant”; therefore, “all evidence implicating [him] for the instant offenses was obtained derivatively as a result of this illegal warrant [and] must be suppressed as fruit of the poisonous tree.” He, therefore, contends that he “is entitled to have this Court reverse and render his convictions and sentences.” The State counters that there was sufficient “credible information” to justify the issuance of the first warrant.
¶ 15. A “mixed standard of review” is employed when considering the circuit court’s denial of a motion to suppress. Gillett v. State,
Determinations of reasonable suspicion and probable cause are reviewed de novo. However, this Court should take care both to review findings of historical fact only for clear error and to give due weight to inferences drawn from those facts by resident judges and local law enforcement officers. Thus, this Court is restricted to a de novo review of the trial judge’s findings using the applicable substantial evidence/clearly erroneous standard. Finally, this Court reviews the admission or exclusion of evidence for abuse of discretion.
Id. (internal citations and quotation marks omitted).
A. Probable Cause
¶ 16. Our supreme court has held that a court “may issue a [search] warrant based only upon probable cause, which is determined from the totality of the circumstances.” Batiste v. State,
The task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.
Id. (quoting Lee v. State,
¶ 17. In the' present case, Chief Sistrunk’s affidavit for the search warrant contained the following “Underlying Facts and Circumstances”:
On 08 — 23—11[,] Mrs. Stewart came to the [police department] to file a complaint on identity theft. Mrs. Stewart stated that someone had stole[n] a picture of her off her Facebook page and created another Facebook on her. This person has since defrauded, slander[ed], used her identity in such a way[,] which became harmful to the job ... which Mrs. Stewart held. I sent Facebook a sub-peona and received back information on a[n] Amanda Warren. I have since received information from John Paul Dove from Meridian[] Mississippi,] stating that it was in fact a Stan Ches-ney who was using the name of Sherri Stewart. Mr. Dove stated it started back in 2010 with different users and then Sherri Stewart’s name with the same messages and pattern as before.
(Emphasis added). The affidavit never described the information from Dove as being reliable or credible, despite the form’s requirement that it do so.
¶ 18. A confidential informant’s veracity may be demonstrated through “a statement of the affiant that the confidential informant has given credible information in the past.” Peden v. State,
Q. You have riot spoken with Mr. Dove on the phone numerous times about other criminal cases that he’s provided information for?
A. No, sir. I don’t even know this gentleman. .
Q. And he just spontaneously called you?
A. No. If I may, Ms. Stewart provided me with Mr. John Paul Dove’s name. And once I talked with Mr. Dove, he advised me how he came into contact and knew Mr. Chesney and how we arrived to the information that was provided in the affidavit.
Q. And you spoke with him on the phone one time[?]
A. Actually[,] I spoke with him on the phone twice, not numerous.
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Q. And you talked with him a total of two times on the phone[?]
A. Tried to get him on the — first conversation, I wanted him to come to my office where I could speak with him, and he couldn’t. The second time over the telephone is when he provided the information how he came to know Mr. Chesney and the information given that I provided in the affidavit.
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*506 Q. And he has never — before your incident with Stanley Chesney, he has not provided information about any other criminal activities, has he?
A. Not that I’m aware of, no, sir.
(Emphasis added).
¶ 19. The supreme court considered a similar situation in Woods,
That a search warrant was issued for the purpose of searching the defendant’s residence on November 21, 2000. That this search warrant was issued solely based upon two telephonic conversations a metro narcotics agent had with a confidential informant who, had never previously supplied. any information to any law enforcement agencies. That the agent failed to conduct an in person interview with the informant, or to otherwise make attempts to test her veracity or credibility other than conducting an NCC background check. Further, the agent failed to corroborate any of the information supplied by the informant through any independent investigatory means. For these reasons, the Court finds that, based upon the totality of the circumstances, the application for, and issuance of, the instant search warrant is constitutionally defective and that the warrant and the fruits thereof are suppressed and held for naught.
Id. at 425 (¶ 7) (emphasis added).
¶ 20. This Court later addressed this issue in Roebuck v. State,
¶ 21. Based on the holdings in Woods and Roebuck, we find that the threshold requirements for probable cause, to sup
B. Fourth Amendment and the “Fruit of the Poisonous Tree’TExclusionary-Rule Doctrine
¶ 22. Our inquiry does not end here, however. Finding that the first search warrant was invalid for lack of probable cause, we must now determine whether the resulting evidence obtained through the first warrant — including evidence obtained through the second search warrant and Chesney’s confession — should have been suppressed.
¶ 23. The right to be free from unreasonable search and seizure is secured by the Fourth Amendment to the United States Constitution and Article 3, Section 23 of the Mississippi Constitution. Under the “fruit of the poisonous tree” doctrine, “tangible evidence obtained incident to an unlawful search or seizure” is considered to be inadmissible. Mosley v. State,
¶ 24. The United States Supreme Court discussed this exclusionary rule in Wong Sun v. United States,
[T]estimony as to matters observed during an unlawful invasion has been excluded in order to enforce the basic constitutional policies. Thus, verbal evidence which derives so immediately from an unlawful entry and an unauthorized arrest as the officers’ action in the present case is no less the “fruit” of official illegality than the more common tangible fruits of the unwarranted intrusion.
Id. (internal citations omitted). These policies underlying the exclusionary rule do not “invite any logical distinction between physical and verbal evidence” and “the danger in relaxing the exclusionary rules in the case of verbal evidence would seem
¶ 25. The exclusionary rule discussed in Wong Sun has also been extended to evidence obtained through the issuance of a second valid search warrant. In United States v. Clark,
¶ 26. Further, in State v. Dalpiaz,
i. Standing and Reasonable Expectation of Privacy
¶ 27. We find it important to discuss an issue that was not raised by either party in their initial briefs — whether Chesney had standing to challenge the search and seizure of his computer files by police. See State v. Hicks,
¶ 28. “Only those persons whose privacy is invaded by a search have standing to object to it under the exclusionary rule[.]” United States v. Colbert,
In order to qualify as a “person aggrieved by an unlawful search and seizure[,]” one must have been a victim of a search or seizure, one against whom the search was directed, as distinguished from one who claims prejudice only through the use of evidence gathered as a consequence of a search or seizure directed at someone else.
Id. (emphasis added) (citation omitted). “We determine the issue of standing after a two-part inquiry: (1) whether the defendant had a subjective expectation of privacy in the place searched; and (2) whether, from society’s perspective, that expectation was reasonable.” Bankston v. State,
¶ 29. The State argues that once Chesney gave his computer to Kaulfers for
¶ 30. We agree that if the search and seizure of Chesney’s computer had occurred as a direct result of Kaulfers’s private search and subsequent notification of police, there would be no Fourth Amendment violation as Chesney’s reasonable expectation of privacy would be frustrated by his direction to Kaulfers to repair his computer and delete the files in question. However, those are not the facts before us. The police issued (what we have determined to be) an invalid search warrant, directing law enforcement to seize Ches-ney’s personal computer from his home in order to look for evidence of identity theft. The police obtained the computer from the repair shop only under the purported authority of the invalid search warrant.
¶ 31. Furthermore, even if we were to agree with the State that Kaul-fers’s private search frustrated Chesney’s reasonable expectation of privacy in the computer’s contents, we find the police’s subsequent search of Chesney’s computer was a Fourth Amendment violation, as it exceeded the scope of Kaulfers’s private search. As the Supreme Court noted in Jacobsen:
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.
Jacobsen,
¶ 32. In Walter v. United States,
¶ 33. In a factually similar case, Barth,
¶ 34. Kaulfers testified that he only looked at the file names in the recycle bin. Law enforcement admitted that Stokes, the technician'employed by police, viewed the actual files/photographs before the police obtained the second search warrant. Therefore, based on the holdings in Walter and Barth, we find that the search of the computer files by the police prior to obtaining the second search warrant was a violation of Chesney’s Fourth Amendment rights.
¶ 35. Accordingly, under the specific facts of this case, we find that Chesney had standing to challenge the search and seizure of his computer under the Fourth Amendment and that he had a reasonable expectation of privacy in its contents,
ii. Independent-Source Doctrine
¶ 36. In Murray v. United States,
[T]he exclusionary rule also prohibits the introduction of derivative evidence, both tangible and testimonial, that is the product of the primary evidence, or that is otherwise acquired as an indirect result of the unlawful search, up to the point at which the connection with the unlawful search becomes “so atten[Juat-ed as to dissipate the taint [.]”
(Emphasis added) (quoting Nardone v. United States,
¶ 37. Thus, there are instances where evidence seized through a second search warrant, that was based on an invalid initial warrant or illegal search, has been ruled admissible. In State v. Dasen,
[T]he information provided to secure the second warrant was information the State obtained prior to the first search warrant, as well as information obtained from additional sources not connected to or derived from the first search. The State submitted the same information used to secure the first search warrant, which was obviously ob-. tained without the information gained in the first search. Further, the few new pieces of information submitted were independently obtained as well, such as details provided by one of the victim’s grandmotherfe], and information concerning a wire transfer known to the State prior to the first search. Finally, while the first search was a factor in obtaining the second search warrant, in that the invalidity of the first search necessitated a second warrant, the State nevertheless possessed sufficient independent information to “purge the taint" of the first search.
Id. at 1286 (¶21) (emphasis added); see also McKinney v. State,
¶ 38. Although the State did not initially challenge ' Chesney’s argument that all of the evidence was derivative of the first search warrant, this Court also requested additional briefing on the issue of whether Kaulfers’s statement to police — that he had located files that appeared to be child pornography — could constitute “independent probable cause to support the temporary seizure of the computer for the purpose of obtaining a search warrant for the alleged images.” In his response, Chesney claims Kaulfers’s comments were insufficient to justify the seizure of his computer. The State, however, argues that Kaulfers’s statements “would give a ‘man of reasonable caution a belief that there was a practical, non-technical probability that five images of child pornography were present on’ Chesney’s com
¶ 39. Unlike Dasen, McKinney, and Zesiger, we find there was no independent source of information for the second search warrant in the present case. Chief Sistrunk’s statement attached to the application for the second warrant skid that the computer files were found by Stokes, the computer technician for the police. Therefore, the second warrant, and resulting search of the computer, was expressly related to the evidence secured through the execution of the first warrant. Further, even if Chief Sistrunk’s statement had referenced the statement by Kaulfers, which it did not, we note that there is nothing to indicate Kaulfers would have independently come forward with the information regarding the photographs. In fact, Chief Sistrunk testified that Kaulfers made a brief comment regarding the possible content of the pictures and, when questioned further, “he didn’t want to say a whole lot[.]”
iii. Good-Faith Exception and Inevitable-Discovery Doctrine
¶ 40. We also find that this case does not fall under the well-recognized exceptions to the exclusionary rule: the good-faith exception and the inevitable-discovery doctrine. Under the good-faith exception, the State may admit “evidence obtained by officers acting in reasonable reliance on a search warrant issued by a detached and neutral magistrate but ultimately found to be invalid.” Magee v. State,
[T]he inquiry is not simply whether the officers thought they were doing the right thing, but whether a reasonably well-trained officer would have known that the search was illegal.... [A] brief perusal of the affidavit would suffice for an officer to realize that the issue of the informants’ reliability had not been addressed. Just as a brief perusal of the boilerplate language contained in the same affidavit indicates that such a statement of informant reliability is a necessity.
More recently, in an unpublished opinion, the Montana United States District Court noted: “Reasonably well-trained officers would have known of the need to corroborate a vague, anonymous, second-hand tip.... Suppression here is warranted to further the goal of deterrence of future unlawful police conduct,- and to effectuate the guarantee of the Fourth Amendment against unreasonable searches and seizures.” United States v. Embry, No. CR-14-21-BLG-SPW-CSO,
¶ 41. The State alternatively argues in its supplemental brief that “this Court may rely on the inevitable-discovery doetrine[.]” The inevitable-discovery doctrine states that “results of an unreasonable search will be admissible if it can be shown that this evidence would have ultimately been discovered by constitutionally permissible means.” Pugh v. State,
iv. Inadmissibility of Evidence Obtained Through Both Search Warrants
¶42. Consequently, the evidence obtained as a result of the improper search warrants and unlawful search — including the evidence of Chesney’s telling police where his computer was located, the verbal evidence of the computer store employee’s comments concerning the pictures on Chesney’s laptop, and the five photographs obtained through the second search warrant — should have been excluded. As the Supreme Court stated in Wong Sun, evidence obtained through an illegal search, both physical and verbal, cannot “constitute proof against the victim of the search.” Wong Sun,
v. Inadmissibility of Chesney’s Confession
¶ 43. We further find Chesney’s statement to law enforcement should have been excluded.
¶ 44. In Patterson v. State,
[A] confession obtained by confrontation of an accused with articles indicating the commission of a crime obtained as a result of an illegal .search renders the contemporaneous confession inadmissible. Likewise, where the confession comes so closely in time subsequent to the confrontation that the lapse has not attenuated the taint of illegality, proof of the confession may not be given.14
In State v. Young,
¶ 45. In this case, Chesney’s statement was given contemporaneously with his being informed that child pornography had been discovered on his computer. There was no intervening event to attenuate the taint of the illegal search. As in Young, Chesney’s statement to police should have been suppressed as evidence, as there was no event to break the “chain of illegality.”
CONCLUSION
¶ 46. We find that the circuit court should have granted Chesney’s motion to suppress the evidence of the photographs and Chesney’s statement to police, as they were both “fruit of the poisonous tree.” As a result, there is no legally sufficient evidence to support Chesney’s convictions. Without the evidence of the computer files/photographs and Chesney’s confession, there was no other basis for the charges.
*515 [Finding the evidence against [the defendant] legally insufficient after suppression of the fruits of the illegal search warrant, this Court is not at liberty to reverse and remand for a new trial. In such an instance, “[t]he prosecution cannot complain of prejudice, for it has been given one fair opportunity to offer whatever proof it could assemble.” [Burks v. United States,437 U.S. 1 , 16,98 S.Ct. 2141 ,57 L.Ed.2d 1 (1978) ]. In White v. State,735 So.2d 221 (Miss. 1999), the Mississippi Supreme Court determined that when, as a result of the suppression of evidence obtained illegally, the evidence against the accused cannot sustain a conviction, the proper remedy is to reverse and render. See id. at 224 (¶ 10). Accordingly, we must do the same.
Roebuck,
¶ 47. Accordingly, we must reverse and render the circuit court’s judgment. While the nature of Chesney’s crimes is abhorrent, the protection provided by the Fourth Amendment is not dependent on the nature of the criminal activity. As the United States Court of Appeals for the Ninth Circuit has cautioned: “Given the current environment of increasing government surveillance and the long memories of computers, we must not let the nature of the alleged crime, child pornography, skew our analysis or make us ‘lax’ in our duty to guard the privacy protected by the Fourth Amendment.” United States v. Gourde,
¶ 48. Based on our holding, Chesney’s remaining issues are rendered moot.
¶ 49. THE JUDGMENT OF THE NESHOBA COUNTY CIRCUIT COURT IS REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO NESHOBA COUNTY.
Notes
. Chief Sistrunk later stated during a motion-to-suppress hearing that Chesney also made a vague comment about “going to jail for some pictures,” but it does not appear that those comments caused law enforcement any concern at that time, and this testimony was not given in the presence of the jury.
. The clerk later explained at trial that although he had not actually looked at the photos, the picture titles were sexually explicit in nature and indicated that minors were involved.
. Chesney insinuated in his statement to police that he had been sexually abused as a child and that he looked at the pictures to see if they depicted what had happened to him. He also claimed he had not viewed any child pornography in months.
. See Miss.Code Ann. § 97-5-33(5) (Rev. 2014).
. “Proof of venue, as any other element of an offense, must be made beyond a reasonable doubt.” Campbell v. State,
. The affidavit for the warrant directed the applicant that “[¡Information obtained from informants must be described as reliable and the informants identified as credible persons .... [T]here must be shown enough of the underlying facts and circumstances from which the affiants conclude that the informants are credible and the information reliable.”
. Dove did not testify at the hearing.
. There is nothing in the record to indicate whether there was any evidence Chesney was responsible for the identity theft, the original cause for the search warrant.
. Although Chesney directed law enforcement to Gator Computers, we do not find that constitutes consent to a warrantless search. See United States v. Barth,
. In contrast, the Supreme Court in Jacob-sen held that "it hardly infringed respondents’ privacy” for law enforcement agents to reexamine the contents of a package unsealed and opened by Federal Express employees. Jacobsen,
Respondents could have no privacy interest in the contents of the package, since it remained unsealed and since the Federal Express employees had just examined the package and had, of their own accord, invited the federal agent to their offices for the express purpose of viewing its contents. The [law enforcement] agent’s viewing of what a private party had freely made available for his inspection did not violate the Fourth Amendment.
Id. Noting the relevancy of the fact that the "respondents' privacy interest in the contents of the package had been largely compromised,” the Jacobsen Court held: "Under these circumstances, the package could no longer support any expectation of privacyM” Id. at 121,
However, in the present case, Kaulfers did not view the contents of Chesney's files; so the files were not "freely available” for inspection by the police. Furthermore, Kaul-fers did not "invite” police to the computer store to view the contents of Chesney's computer. They were there under the purported authority of the invalid warrant.
. An arrest warrant issued for Kaulfers a day before the trial commenced for failure to appear, which is contained in the record, is another indication he was reluctant to be involved.
. Chesney’s counsel moved to suppress all evidence obtained as a result of the insufficient search warrant, and he additionally requested suppression of Chesney's statement because it was not recorded. Although defense counsel did not reassert the inadmissibility of the confession based' on a Fourth Amendment violation, we do not find this to be a waiver of this issue, as the circuit court had already ruled that the search warrants were supported by probable cause.
. Miranda v. Arizona,
. The Patterson court found the confession at issue to be admissible, as the statement was made prior to the illegal search. Patterson,
. Even if Chesney's confession were admissible, there would be no corroborating evidence to support a conviction. See Stephens v. State,
Dissenting Opinion
dissenting:
¶ 50. I would reverse and remand for a new trial due to error on the issue of venue. See Rogers v. State,
¶ 51. In this case, like in Rogers, the failure to instruct the jury so it could determine the essential element of venue was fatal and requires reversal. Id. at (¶¶ 30-31). This error is dispositive. Therefore, I submit that we must remand for a new trial and should exercise restraint by refraining from comment on the remaining assignments of error since we