APPEAL FROM THE MONROE CIRCUIT COURT. The Honorable Marc R. Kellams, Judge. Cause No. 53C02-1212-FA-1176.
ATTORNEY FOR APPELLANT: LENEIGHA S. DOWNS, Monroe County Public Defender's Office, Bloomington, Indiana.
ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER, Attorney General of Indiana; IAN MCLEAN, Deputy Attorney General, Indianapolis, Indiana.
BROWN, Judge. BARNES, J., and BRADFORD, J., concur.
Paul Allen Decker appeals the trial court's denial of his motion to suppress. Decker raises three issues which we consolidate and restate as whether the trial court erred in denying his motion to suppress. On cross-appeal, the State raises the issue of whether this court should vacate its grant of Decker's motion to accept jurisdiction. We affirm.
FACTS AND PROCEDURAL HISTORY
On December 3, 2012, Bloomington Police Detective Brandon LaPossa was advised by his sergeant that the library had called and said a male was looking at child pornography. Detective LaPossa went to the library and met with Dana Geldof, a security guard at the library. Geldof informed Detective LaPossa that there was a male looking at pictures of child pornography. Geldof identified computer number thirty-four as the computer where the person was sitting. At this point, Decker was sitting at a table just across from the computer.
Geldof stated that when she approached the computer there was a " large image of a child laying on a bed with his penis visible," that Decker was clicking the icons and closing some of the images, and that she asked Decker to quit closing them and step away from the computer. Transcript at 17. Geldof also told Detective LaPossa that she asked Decker if he often viewed kiddie porn at the library, and Decker said that he did. Geldof indicated that she was contacted by two of the library staff, Elizabeth Gray and James Gossman. Detective LaPossa asked Geldof to write out a sworn statement.
Detective LaPossa then spoke with Gray who told him that she was approached by
Gossman and asked to walk by computer number thirty-four, and that when she walked by she saw many images of children and she stated that she " felt very uncomfortable and . . . was disturbed by the photos that she looked at." Id. She also stated that the kids were nude or partially clothed in the pictures and that the photos were " not family-type photos." Id. Detective LaPossa asked Gray to make a written statement, and then spoke with Gossman. Gossman stated that he was walking by and saw at least one picture of a small naked child and he told Gray to walk by and take a look. Detective LaPossa asked Gossman to write out a sworn statement.
Detective LaPossa looked at the computer screen and observed several images of different aged children in diapers posed in different positions, some of which Detective LaPossa thought were sexual positions, and that there were " at least probably thirty" images. Id. at 13. He estimated that the children he saw were " anywhere from an infant to approximately twelve years old." Id. at 19.
After speaking with Geldof, Gossman, and Gray, and looking at the computer, Detective LaPossa handcuffed Decker, arrested him, informed him that he was detained and that they were going to the police department, and removed a thumb drive from the computer.
At the police station, Detective LaPossa read Decker his Miranda rights, Decker indicated that he understood them, and signed a waiver form explaining his Miranda rights. Decker stated that he regularly went to the library and visited a specific website where he would download pictures of children in diapers and nude children and take them back to his house. He also stated that he views them for sexual enticement and masturbates to the photos. He stated that he searched for boys wearing diapers. He also provided information regarding acts of child molesting. At some point, Detective LaPossa requested search warrants for Decker's residence, the computer at the library, and the thumb drive.
On December 19, 2012, the State charged Decker with two counts of child molesting as class A felonies, four counts of child molesting as class C felonies, performing sexual conduct in the presence of a minor as a class D felony, and possession of child pornography as a class D felony. On February 12, 2013, Decker filed a motion to dismiss the charge of possession of child pornography. On June 28, 2013, he filed a motion to suppress the electronic thumb drive, his computer, and his statements made at the time of and subsequent to his arrest. He alleged that the police officers arrested him on December 3, 2012, without lawful authority and that the warrant obtained to search his home was based upon information obtained from his unlawful arrest and unlawful seizure of his personal property. On April 17, 2013, Decker filed an amended motion to dismiss.
On August 20, 2013, the court held a hearing on Decker's motions and took them under advisement. The court admitted some photos as defense exhibits, and when asked whether one of the photos was on the computer at the library, Detective LaPossa initially testified that he could not specify because there were so many pictures on the library computer and later testified that he believed that the photo was from the thumb drive.
With respect to the motion to dismiss, Decker's counsel argued:
[T]hese pictures don't even rise to the level of what the Indiana statute requires and if you think they do, then that statute is unconstitutionally vague because that would make every one of us who takes pictures of our kids taking a bath or everything else child pornographers, so it should be dismissed on that alone. Second, the other basis for the motion to dismiss is that the child ...