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State v. Mazzei

Supreme Court of West Virginia

March 15, 2019

State of West Virginia, Plaintiff Below, Respondent,
Edward Allen Mazzei, Defendant Below, Petitioner

          Cabell County 09-F-217


         Petitioner Edward Allen Mazzei, by counsel Richard W. Weston, appeals the Circuit Court of Cabell County's March 19, 2018, second amended order sentencing him to a cumulative term of incarceration of ten years following his conviction of five counts of possession of material depicting minors engaged in sexually explicit conduct. Respondent State of West Virginia, by counsel Elizabeth Grant, filed a response in support of the circuit court's order. Petitioner filed a reply. On appeal, petitioner argues that the circuit court erred in denying his motions to suppress because the State illegally seized and searched his property, he did not voluntarily consent to a search of external media storage, and the exclusionary rule bars evidence of the initial illegal search and seizure, the search warrant, and his subsequent confession.

         This Court has considered the parties' briefs and the record on appeal. The facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument. Upon consideration of the standard of review, the briefs, and the record presented, the Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision affirming the circuit court's order is appropriate under Rule 21 of the Rules of Appellate Procedure.

         In July of 2007, the West Virginia State Police began an investigation into allegations that petitioner possessed child pornography. According to the record, the police received two factually specific anonymous tips that petitioner was very experienced with computers, including encryption, and possessed thousands of images of child pornography that were contained "on CDs or Disks and [were] stored separately from his hard drive."

         On August 14, 2007, Troopers First Class Robert Boggs and Michael Pardee, both of the West Virginia State Police, arrived at petitioner's home and found petitioner and his wife in their vehicle outside the residence. Trooper Boggs requested that petitioner exit the vehicle to speak with him, and petitioner complied. According to Trooper Boggs's testimony, he explained to petitioner "in detail the tip that we had received and how very specific it was" and "asked [petitioner] for consent to search his house for this child pornography for the material that was listed in the tip." Petitioner then agreed to permit the officers to search his residence and executed a consent form that granted them permission to "conduct a complete search" of the home.

         Upon entering the home, Trooper Boggs brought computer hardware to aid in the search. Petitioner then directed Trooper Boggs to his computer room which contained an "overwhelm[ing] . . . amount of digital data" for Trooper Boggs to review. Per Trooper Boggs's testimony, it was apparent that petitioner "knew something about computers" beyond simple computer literacy. During the search, petitioner was free to move about the home and even entered and exited the computer room. Ultimately, Trooper Boggs encountered a CD that, when inserted into his laptop, contained "a chunk of free space" which he believed was odd. Using software on his laptop, Trooper Boggs was able to "carve" the free space, which revealed approximately sixty-two images of prepubescent children engaged in various sexual acts.[1]According to Trooper Boggs, in performing this carving function, the software on his laptop automatically created a copy of the information and saved it. Trooper Boggs then placed the CD back where he found it and did not tell petitioner about his discovery.

         Trooper Boggs then sought a search warrant based on the tip and his personal observations.[2] According to the record, the magistrate who issued the search warrant did not view any photographs from the CD in question, nor did Trooper Boggs submit them in support of his warrant application. Based on the contents of Trooper Boggs's affidavit, the magistrate authorized a search warrant, and the police executed that warrant. During the warrant's execution, police seized the CD in question, in addition to other images of child pornography ultimately totaling several hundred images.

         After petitioner's arrest he was arraigned and then transported to the regional jail. After Trooper Boggs advised petitioner of his Miranda[3] rights, petitioner confessed to possessing child pornography on the CD in question. Thereafter, petitioner was indicted on ten counts of possessing material depicting minors engaged in sexually explicit conduct. Petitioner filed a motion to suppress the CD and his confession.

         In August of 2013, the circuit court held a hearing on petitioner's motion to suppress the CD. During the hearing, Trooper Boggs testified that the State Police's common practice is to view digital media on a forensic computer, rather than the suspect's computer, because "the [d]efendant's computer . . . could potentially be evidence, and we do not want to change anything on his hard drive. And the mere use of that hard drive you are actually changing a lot of data." Trooper Boggs also indicated that this practice addresses concerns over the possible deletion of data if the suspect's computer were used. During the hearing, Trooper Boggs confirmed that he did not inform petitioner that he would copy any data found in the home nor did he obtain petitioner's consent to copy such data. Following the hearing, the circuit court denied petitioner's motions. In December of 2013, the circuit court held a hearing on petitioner's motion to suppress his statement, which it also denied. By order entered on January 14, 2016, the circuit court memorialized its denials in a consolidated order.

         Eventually, petitioner entered a conditional guilty plea to five counts of the indictment pursuant to a plea agreement with the State. In exchange, the State agreed to dismiss the remaining counts. Prior to sentencing, petitioner appealed the circuit court's order denying his motions to suppress. This Court, however, dismissed petitioner's appeal as interlocutory by order entered on February 14, 2017.

         In August of 2017, petitioner was sentenced to a cumulative term of ten years of incarceration for his convictions. The circuit court subsequently entered two amended sentencing orders for purposes of appeal. It is from the second amended sentencing order that petitioner appeals.

         We have previously held that

[w]hen reviewing a ruling on a motion to suppress, an appellate court should construe all facts in the light most favorable to the State, as it was the prevailing party below. Because of the highly fact-specific nature of a motion to suppress, particular deference is given to the findings of the circuit court because it had the opportunity to observe the witnesses and to hear testimony on the issues. Therefore, the circuit court's factual findings are reviewed for clear error.

         Syl. Pt. 1, State v. Lacy, 196 W.Va. 104, 468 S.E.2d 719 (1996). On appeal, petitioner challenges the circuit court's denial of his motion to suppress the evidence obtained by virtue of the initial search of his home on the grounds that the search exceeded the reasonable scope of his consent and that the police unlawfully seized his property ...

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