Opinion
No. 2D00-1436.
Opinion filed April 27, 2001.
Appeal from the Circuit Court for Polk County; Donald G. Jacobsen, Judge.
Reversed.
Michael P. McDaniel of McDaniel Lobb, P.A., Bartow, for Appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Stephen D. Ake, Assistant Attorney General, Tampa, for Appellee.
BY ORDER OF THE COURT:
Appellee's motion for rehearing is denied; however, appellee's motion for clarification is granted. The opinion dated March 16, 2001, is withdrawn, and the attached opinion is substituted therefor.
Jeffery Fletcher challenges his judgment and sentences for committing a lewd act in the presence of a child and battery. Because the only evidence of Fletcher's guilt was discovered in the execution of a warrant which was unsupported by probable cause, we reverse.
Fletcher was charged with child abuse, lewd act in the presence of a minor, and two counts of lewd act on a child. He was acquitted of child abuse and one count of lewd act on a child. As to the second count of lewd act on a child, the jury found Fletcher guilty of battery, a lesser included offense.
The charges stemmed from videotapes discovered during the execution of a warrant at Fletcher's residence. As a basis of probable cause, the warrant application alleged, in part, the following:
1) Fletcher's twelve-year-old daughter reported finding a camera lens secreted behind grillwork in her bathroom;
2) The angle of the lens was directed at the bathroom mirror which afforded a view of the bathtub and probably the toilet as well;
3) Fletcher's daughter also observed a video camera positioned in the upper corner of the bedroom occupied by his seven-year-old daughter;
4) Fletcher is employed in the electronics field, has above average knowledge about computers and videos, and has three computers in his home (one of which is connected to the Internet); and
5) Fletcher spends a lot of time at his computers and his daughter reported seeing pictures of naked women on the computer.
The warrant application also provided a behavioral profile for pedophiles, and those who collect and trade child pornography over the Internet.
Among other things, several videotapes were seized during the search of Fletcher's home. What is depicted on the videos is not relevant to our review of the trial court's probable cause determination. Fletcher moved to suppress the videotapes prior to trial arguing that the facts alleged in the warrant application did not provide probable cause for the search.
Fletcher challenges the validity of the warrant on two grounds. First, he claims that information provided in the warrant application was stale because the application did not allege facts to show that the hidden cameras were operational. We reject this argument because the staleness doctrine relates to the age of information and events that form the basis of the warrant. Generally, as the incriminating information ages, it becomes less likely that evidence of a crime will be found on the premises sought to be searched. Haworth v. State, 637 So.2d 267, 267 (Fla. 2d DCA 1994) (noting that the length of time between events relied upon to obtain a warrant and the date of issuance determines whether the events and information are stale). Florida courts have held that the rule of thumb on staleness determinations is thirty days. Id.; Montgomery v. State, 584 So.2d 65 (Fla. 1st DCA 1991). In the present case, Fletcher's daughter discovered the hidden cameras on July 9, 1998, and reported them to the police on July 20, 1998. The warrant was issued on July 22, 1998. The presence of the cameras observed only thirteen days prior to the issuance of the warrant sufficiently demonstrates that the information provided in this case was not stale. It was not necessary that the warrant application allege facts to show that the cameras were operational.
The argument Fletcher advances in part two of his challenge to the warrant is much more availing. He contends the videotapes should have been suppressed because the warrant affidavit did not allege facts to establish probable cause to believe that child pornography would be discovered in his home. Fletcher relies upon Lockwood v. State, 588 So.2d 57 (Fla. 4th DCA 1991), in arguing that the presence of a hidden camera in his daughters' bedroom and bathroom did not establish probable cause because, at most, the hidden cameras would have only captured children undressing, showering, performing acts of female hygiene, and donning their clothes. We conclude that the Lockwood decision controls this issue and establishes that the video taping and possession of such tapes is not unlawful in the context of the child pornography statute. See § 827.071, Fla. Stat. (1997); Lockwood, 588 So.2d at 58. The warrant application in this case states that based on information provided by Fletcher's daughter, the police believed the purpose of the hidden cameras was to produce child pornography. The child pornography statute requires that suspect videos depict children engaged in "sexual conduct," which is defined as:
[A]ctual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, or sadomasochistic abuse; contact with a person's clothed or unclothed genitals, pubic area, buttocks, or, if such person is a female, breast, with the intent to arouse or gratify the sexual desire of either party; or any act or conduct which constitutes sexual battery or simulates that sexual battery is being or will be committed.
§ 827.071(1)(g), Fla. Stat. (1997). Thus, in order to establish probable cause, the warrant affidavit must have alleged sufficient facts to lead the issuing magistrate to believe that videos or photos depicting children engaged in "sexual conduct," would be found in Fletcher's home. The warrant in this case merely alleged that hidden cameras were situated in a bedroom and bathroom in Fletcher's home. However, the affidavit contained no facts to establish that these cameras would have captured anything more than innocent conduct such as children using the toilet, dressing and bathing. Based on Lockwood, the presence of cameras which can only record such conduct does not establish probable cause to suspect possession and/or production of child pornography. Moreover, allegations of Fletcher's technical knowledge, the description of practices of child pornographers and Internet sites that cater to "kiddy" covert voyeurism, likewise did not establish probable cause to support the warrant in this case.
The State relies on Schmitt v. State, 590 So.2d 404 (Fla. 1991), and urges affirmance based on public policy in favor of protecting children from sexual exploitation. Id. at 410. We are mindful of these policy considerations and believe that they apply equally in this case; however, public policy cannot support criminal prosecution for what our supreme court has characterized as "innocent" conduct. Lockwood, 588 So.2d at 58. And, notwithstanding compelling policy arguments,Schmitt is wholly distinguishable from this case. Unlike the warrant application under review in this case, the warrant application in Schmitt alleged sufficient facts to provide the issuing magistrate with a substantial basis to conclude that probable cause existed in that case.
The warrant application in Schmitt alleged that the defendant's daughter reported that he had taken numerous nude photographs of her in various poses over a period of five years; that Schmitt had photographed a nude female in his daughter's presence; that she (Schmitt's daughter) had photographed him nude on numerous occasions; and that Schmitt had videotaped his daughter and her friend "stripping down to their panties" and swimming nude. Id. at 408. The application also alleged violations of sections 827.071, Florida Statutes (1987) (sexual performance by a child) and 800.04, Florida Statutes (1987) (lewdness in the presence of a child). Schmitt argued that the warrant application was facially insufficient to support a finding of probable cause because it merely alleged nudity. However, the court held that the application alleged sufficient facts to establish probable cause as to the element of "actual lewd exhibition of the genitals" in section 827.071(1)(g), as well as lewdness in the presence of a child, proscribed by section 800.04. Id. at 410. The court reached this conclusion upon finding that the warrant application did more than allege simple nudity, it showed that Schmitt "made nudity a central and almost obsessive object of his attention" and that an "overall focus of Schmitt's conduct tended to show a lewd intent," thus creating a substantial basis for believing that the search would probably yield evidence of a violation of sections 827.071 and 800.04. Schmitt, 590 So.2d at 411. Obvious factual distinctions betweenSchmitt and the present case cause us to reject Schmitt as controlling or even persuasive authority on this case.
While Fletcher's conduct depicted on the videotapes was reprehensible, we are persuaded by the reasoning in Lockwood, 588 So.2d 57. Under that authority, the presence of secreted video cameras positioned to capture a child performing typical acts of feminine hygiene does not give rise to probable cause for a warrant issued on the suspicion of possession of child pornography. Accordingly, we reverse. Our ruling on the probable cause issue renders the remaining issues raised by Fletcher moot.
Blue, A.C.J., and Casanueva, J., Concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.