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State v. Miller

Court of Criminal Appeals of Tennessee, Knoxville

July 3, 2017


          Session April 26, 2017

         Appeal from the Criminal Court for Greene County No. 15CR342 Alex E. Pearson, Judge.

         Anthony Jerome Miller, the Defendant, pled guilty to sexual exploitation of a minor and reserved a certified question for appeal regarding the trial court's denial of his motion to suppress evidence. He asserts that the trial court erred in denying his motion to suppress the evidence obtained by the State during a search of his residence because the District Attorney General's Office did not apply for the search warrant, as required by Tennessee Code Annotated section 39-17-1007. The State responds that: (1) a search warrant is not "process" as intended by the meaning of section 39-17-1007; (2) the search warrant is valid under section 39-17-1007 because Investigator O'Keefe's application falls under the "except as otherwise provided" clause because law enforcement are authorized to apply for search warrants under Tennessee Rule of Criminal Procedure 41(a); and (3) if a search warrant is considered process under section 39-17-1007, then Investigator O'Keefe fulfilled the requirements of the statute by seeking verbal consent from an Assistant District Attorney. After a thorough review of the record and applicable law, we affirm.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed.

          LeRoy Tipton, Jr., Greeneville, Tennessee, for the appellant, Anthony Jerome Miller.

          Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Senior Counsel; Dan E. Armstrong, District Attorney General; and Ritchie Collins, Assistant District Attorney General, for the appellee, State of Tennessee.

          Robert L. Holloway, Jr., J., delivered the opinion of the court, in which D. Kelly Thomas, Jr., and Robert H. Montgomery, Jr., JJ., joined.



         I. Factual and Procedural Background

         On July 20, 2015, the Greene County Grand Jury returned a presentment that charged the Defendant with sexual exploitation of a minor by possessing more than fifty images, a Class C felony. The Defendant subsequently filed a motion to suppress evidence obtained by the State in the search of his residence and his verbal statements to police, arguing that the search warrant was not issued upon the application of the District Attorney General as required by Tennessee Code Annotated section 39-17-1007.

         At a hearing on the Defendant's motion to suppress, Jason Mark Lowe testified that he had worked at the Buchanan County Sheriff's Office in Buchanan County, Virginia, for approximately nine years. Beginning in January 2011, Investigator Lowe worked as an Internet Crimes Against Children ("ICAC") investigator. On December 23, 2014, Investigator Lowe discovered an IP address that had possibly possessed or distributed child sexual exploitation images through the ARES peer-to-peer ("PTP") file-sharing network.[1] Investigator Lowe explained that when he accesses a PTP network, he sees IP addresses of other computers sharing that network. Investigator Lowe then uses "web crawlers" to find any files that contain "certain key words that kind of trigger on files of interest[, ]" or files that may contain child sexual exploitation material.[2]Investigator Lowe stated that the IP address at issue "showed approximately sixty-seven files of interest." Investigator Lowe downloaded "two full video files and eight or nine partial files" from the IP address at issue, which the parties stipulated contained child sexual exploitation material. On December 25, 2014, Investigator Lowe investigated the same IP address and again downloaded files from the IP address that contained child sexual exploitation material.

         Investigator Lowe then applied for a subpoena to request that the internet provider linked to the IP address disclose the subscriber's information. Investigator Lowe stated that he originally believed that the IP address's subscriber was located in Smyth County, Virginia. However, the results of the subpoena revealed that the subscriber was located in Greeneville, Tennessee.[3] Investigator Lowe contacted Michael O'Keefe, who was an ICAC investigator with the Morristown Police Department, and Investigator Lowe sent Investigator O'Keefe the evidence he had obtained.

         On cross-examination, Investigator Lowe explained that he originally thought that the IP address's subscriber was located in Virginia because when he researched the IP address in a Child Protective Services database, the address "showed up in Sm[y]th County[, Virginia] as geolocation details." He stated that he also investigated the IP address on December 29, 2014, and downloaded complete files. Investigator Lowe agreed that IP addresses are "subject to change[]" and that IP addresses can be static or dynamic. He stated that the IP address at issue was dynamic.[4] On redirect examination, Investigator Lowe explained he used the ARES program to download the files of interest from the IP address. He agreed that any other users on the PTP network could have downloaded the same files of interest from the IP address at issue.

         Investigator Michael O'Keefe testified that he currently worked as a Special Agent with the Tennessee Bureau of Investigation, but he formerly worked as the ICAC investigator for the Morristown Police Department for eight years as a member of the ICAC Task Force, which operated in different counties to investigate "cybercrime involving child pornography." In January 2015, Investigator O'Keefe received information from Investigator Lowe regarding a child sexual exploitation investigation. Investigator O'Keefe verified that the physical location of the subscriber of the IP address at issue was located in Greeneville by requesting that the Greeneville Police Department take photographs of the house at the address supplied by the provider. The Greeneville Police Department also researched background information on the resident and determined that the Defendant lived at the residence. Investigator Lowe stated that, before he applied for a search warrant, he spoke with Cecil Mills, an Assistant District Attorney in the District Attorney's Office for the Third Judicial District, on January 12, 2015. After obtaining Assistant District Attorney Mills's approval, Investigator O'Keefe applied for a warrant to search the Defendant's house on January 28, 2015. He executed the search warrant on January 29, 2015.

         The Defendant was not present when Investigator O'Keefe began searching the Defendant's residence, but the Defendant later arrived. Investigator O'Keefe stated that he asked the Defendant to sit down and spoke with the Defendant about the offense, but he noted that the Defendant was not handcuffed or placed into custody at that time. Investigator O'Keefe informed the Defendant of his Miranda rights and asked the Defendant to sign a waiver of rights form. The Defendant declined to sign the waiver form, and Investigator Lowe explained to the Defendant that he was not under arrest and could leave at any time. Investigator O'Keefe believed that the Defendant understood his rights. The Defendant informed Investigator O'Keefe that no one else had access to his computer or router. The Defendant stated that he regularly looked at adult pornography, but he explained that if he ever came across child pornography, "he would click off of it." Investigator O'Keefe seized various items of electronic media, including a hard drive, which contained seventy-five images and four videos of child sexual exploitation material. Investigator O'Keefe also used a program to collect search terms from the Defendant's internet searches that were commonly associated with child sexual exploitation material.

         On cross-examination, Investigator O'Keefe agreed that he based his application for a search warrant on the evidence obtained by Investigator Lowe. He explained that he typically kept evidence from ICAC investigations in his office until he brought the evidence to the District Attorney's Office when prosecutors were preparing an indictment or presentment. Investigator O'Keefe stated that he typically applied for a search warrant in his ICAC investigations, and he applied for the search warrant in this case. He also prepared the search warrant affidavit. He did not request Assistant District Attorney Mills' assistance with preparing either the search warrant or the search warrant affidavit. Investigator O'Keefe agreed that he informed the Defendant that, if the Defendant were honest and cooperated with the investigation, he would try to assist the Defendant in later criminal proceedings. On redirect examination, Investigator O'Keefe explained that, if Assistant District Attorney Mills had advised against applying for a search warrant, he would not have applied for a search warrant in this case.

         Tim Ward testified that he was an administrative patrol captain with the Greeneville Police Department. Captain Ward stated that on January 29, 2015, he assisted Investigator O'Keefe in locating the Defendant. Captain Ward observed the Defendant leaving his residence and heading to his place of employment before 9 a.m. After Investigator O'Keefe executed the search warrant, Captain Ward approached the Defendant at his workplace, explained that his residence was being searched, and informed him that he could stay at his work or return to his residence. Captain Ward stated that the Defendant was not placed in handcuffs and that the Defendant drove to his residence in his own vehicle. On cross-examination, Captain Ward testified that he followed the Defendant to ensure that the Defendant was headed to his residence and to determine whether the investigators needed Captain Ward's assistance.

         The trial court found "that there [wa]s nothing wrong with Investigator Lowe being out there looking on the public internet to try to find downloadable files[.]" The trial court also found that "the issuance of a search warrant is not process as is contemplated under [Tennessee Code Annotated section] 39-17-1007." The trial court concluded that process, as intended by the statute, referred to "an arrest warrant like a presentment or an indictment" and that "a search warrant is an investigatory tool." The trial court also concluded that "even if a search warrant is process, the investigators complied with [Tennessee Code Annotated section 39-17-1007] by speaking with the District Attorney's Office and . . . specifically putting in the affidavit that they had consulted with General Cecil Mills . . . ." The trial court concluded that this information was "sufficient to put the [trial c]ourt on notice that, in fact, the District Attorney's Office . . . approv[ed] th[e] application." The trial court found that the search warrant "was served within a proper time from when it was applied for" and concluded that "the results of the search warrant will be admissible in this court in a subsequent trial."

         Regarding the Defendant's assertion that his verbal statements to law enforcement should be suppressed, the trial court found that the Defendant "was sufficiently advised of his Miranda rights." The trial court concluded that "as a result [of] engaging in conversation after being informed of what those Miranda rights were . . ., that [the Defendant] waived his Miranda rights and as a result of that the oral statements that he made would be admissible in court." The trial court also concluded that the Defendant was not in a custodial interrogation when he entered his residence and ...

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