from the Marion Superior Court Trial Court Cause No.
49G02-1604-F4-15494 The Honorable Amy J. Barbar, Magistrate
Attorney for Appellant Valerie K. Boots Marion County Public
Defender Agency Indianapolis, Indiana
Attorneys for Appellee Curtis T. Hill, Jr. Attorney General
of Indiana Justin F. Roebel Supervising Deputy Attorney
General Indianapolis, Indiana
Vaidik, Chief Judge.
Lindsey Badanek's home was burglarized while she was at
work and, among other things, her employer-issued iPad was
taken. She suspected that her ex-boyfriend, Daniel Sparks,
had something to do with it. She called the police, but no
further action was taken at the time. Later that night,
Lindsey logged into Sparks's Facebook account using a
password that he had previously given her. She found an audio
recording where Sparks was discussing an iPad owned by Eli
Lilly that was going to get "pinged, " yelling at a
woman for her husband "veering" off the list, and
threatening to "bang him on top" for doing so.
Lindsey called the police again, and a video was made of her
playing the recording from Sparks's Facebook account. A
search warrant was issued, and the iPad was found at
Sparks's home. Sparks was convicted of burglary, and he
now appeals, arguing that the federal Wiretap Act was
Federal courts have uniformly concluded that the Wiretap Act
covers only "contemporaneous" interceptions of
wire, electronic, or oral communications, which are
understood as the acquisition of communications in
transit-rather than the acquisition of communications in
storage. Here, it is undisputed that Lindsey discovered on
Sparks's Facebook account a recording of a conversation
that had already taken place. Finding no violation of the
federal Wiretap Act or error in any of the other issues that
Sparks raises, we affirm the trial court.
and Procedural History
Lindsey and Sparks started dating in 2012 and had three
children together. They lived on Depot Drive in Indianapolis.
In March 2016, Lindsey asked Sparks to move out of the house.
She and the children stayed in the house.
On April 20, Lindsey, who worked at a credit union inside
Lilly Corporate Center, returned home from work around 5:30
p.m. Upon returning home, she noticed that her
employer-issued iPad was not where she had left it that
morning. When Lindsey went to her bedroom to look for it, she
discovered that additional items were missing: her collection
of Nike Air Max shoes, a laptop, a hard drive containing
family pictures, a ring, and a North Face jacket. Lindsey
thought it was "odd" that the items missing were
"personal" to her. Tr. Vol. II p. 96. Lindsey noted
that other electronics were not taken from her house,
including another tablet that was right next to her iPad,
televisions, and her daughter's hoverboard. Lindsey
immediately suspected that Sparks "had something to do
with it" and called 911. Id. at 97.
Indianapolis Metropolitan Police Department Officer Michael
Hodge responded. Lindsey told Officer Hodge that she
suspected Sparks was involved. Officer Hodge made a report.
Later that night, Lindsey logged into Sparks's Facebook
account using a password that he had previously given her.
She wanted to see if Sparks was "talking about breaking
into [her] house." Id. at 100. Lindsey found an
audio recording in his Facebook messages. See Ex. 2.
Lindsey recognized Sparks's voice on the recording.
Sparks was angrily yelling at a woman about her
Let me tell you something about that iPad. When you turn that
bit** on, Eli Lilly owns that iPad. That iPad is going to get
pinged off. Guess who is going to get popped with it. I told
that stupid mother fu**er . . . not to veer off the goddamn
list. I told him if he veered off the list, he's going to
get fu**ed up. When I catch your husband, I'm banging him
on top for disrespecting me and for going against what the
fu** I told him. . . . [G]o find him and tell him how serious
this mother fu**ing situation is.
Id. Lindsey called the police again, and two
officers responded, Officer Erik Stevenson and Sergeant
Charles Wheeler. Lindsey played the recording for them. A
video was then made of Lindsey playing the recording from
Sparks's Facebook account. Lindsey looked "further
into [Sparks's] Facebook account" and found a
"message" from Sparks to William Bingaman sent
"right after that recording" indicating that Sparks
was angry with Bingaman. Tr. Vol. II p. 103. Lindsey gave
this information to Sergeant Wheeler. Also, Sergeant Wheeler
learned that Sparks was on GPS monitoring through Marion
County Community Corrections and was home when Lindsey's
house was burglarized.
Sergeant Wheeler prepared an affidavit in order to seek a
search warrant for Sparks's home, and a magistrate issued
a search warrant in the early-morning hours of April 21.
See Suppression Ex. 2. During the execution of the
search warrant, police found an iPad, which was later
determined to be Lindsey's employer-issued iPad.
The State charged Sparks with Class A misdemeanor theft and
Level 4 felony burglary. Before trial, Sparks filed a motion
to suppress the video of Lindsey playing the recording from
Sparks's Facebook account and the iPad found in his home.
After a hearing, the trial court denied Sparks's motion.
A jury trial was then held. At trial, Bingaman testified that
he broke into Lindsey's house and took the items at
Sparks's direction. Sparks told Bingaman to take
Lindsey's shoes and clothing but not to take anything
that belonged to the children. Sparks said that he wanted to
get back at Lindsey because she had kicked him out and thrown
away his things. Bingaman agreed to help Sparks because he
needed money to buy drugs. According to Bingaman, he gave the
iPad to Sparks and sold the other items. The jury found
Sparks guilty as charged. The trial court entered judgment of
conviction for burglary only and sentenced him to six years
with two years suspended.
Sparks now appeals.