D.T.O. v. State (State ex rel. A.O.)

337 P.3d 1039

2014 UT App 242

STATE of Utah, In the Interest of A.O., A.O., R.O., J.O., E.P., and K.C., Persons Under Eighteen Years of Age.

D.T.O., Appellant

v.State of Utah, Appellee.

No. 20130901–CA.

Court of Appeals of Utah.

Oct. 17, 2014.

Scott L. Wiggins, for Appellant.

Sean D. Reyes and John M. Peterson, for Appellee.

Martha Pierce and Tracy Mills, Guardian ad Litem.

Judge GREGORY K. ORME authored this Opinion, in which Judges JAMES Z. DAVIS and MICHELE M. CHRISTIANSEN concurred.

Opinion

ORME, Judge:

¶ 1 At the conclusion of a child welfare proceeding, the juvenile court determined that D.T.O. (Father) had neglected the six children under his care and that he had sexually exploited his then-seventeen-year-old daughter. Based on these conclusions and the detailed findings underlying them, the juvenile court placed the children in the custody of the Division of Child and Family Services. Father appeals this adjudication, arguing that the juvenile court improperly relied on evidence obtained through illegal searches, that the State's expert witness should not have been allowed to testify at trial, and that some evidence admitted by the court lacked adequate foundation. We affirm.

BACKGROUND¹

¶ 2 During the investigation of a report that Father had provided cigarettes to some of his children's teenage friends, one of the friends told law enforcement officers that Father was trading alcohol and tobacco for sexually explicit images. Based on this information, law enforcement officers obtained a warrant to search Father's house for “[c]ell phones, computers, electronic devices, thumb drives, DVDs, CDs or other such items containing images of known juvenile females (15 years old) in various stages of undress.” After conducting a search of the residence and collecting a number of computers, cell phones, thumb drives, and other electronic devices, law enforcement officers obtained a second warrant to examine the contents of these devices for evidence of sexual exploitation of minors. On one thumb drive taken from Father's bedroom, investigators found naked self-portraits of Father's teenage daughter, naked photos of several unknown girls, a video of the daughter undressing, and “up-skirt and down-blouse” style photos of the daughter taken when she was fourteen years old. This thumb drive also contained images of Father and sexually explicit images of his wife. Investigators also found over one hundred images of child pornography on one of the computers.

¶ 3 During the child welfare proceeding, Father moved the juvenile court to suppress all evidence obtained through the search warrants because, according to him, the search warrants lacked probable cause.² Accordingly, he argued, the searches were in violation of both the United States and Utah constitutions. On this basis, he contended that the juvenile court should apply the exclusionary rule, a “judicially created remedy” designed to deter law enforcement from benefitting from unlawful searches. See Arizona v. Evans, 514 U.S. 1, 10, 115 S.Ct. 1185, 131 L.Ed.2d 34 (1995). Without reaching the merits of Father's probable cause argument, the juvenile court rejected the motion because it determined that “the exclusionary rule does not apply except in criminal proceedings or quasi-criminal proceedings and ... a child welfare proceeding is not criminal or quasi-criminal.”

¶ 4 In addition to physical evidence, the teenage friends testified that Father fondled their breasts, took nude pictures of them, asked them to text him sexually explicit images and videos, and showed them sexually explicit images of their friends that he kept on his phone. They also explained how Father used his children as lookouts to prevent his wife—their mother—from discovering what was happening.

¶ 5 Later in the proceeding, the State called a forensic examiner to testify about the evidence recovered from Father's electronic devices. Father objected because the forensic examiner appeared to be offering expert testimony and the State had not provided the proper notice. The juvenile court sustained Father's objection and granted a continuance for the State to remedy the error and to provide Father with adequate time to prepare. At the time, Father agreed with this curative measure. But when the proceeding was reconvened, Father moved to have the expert witness excluded entirely from testifying. Interpreting rule 20A of the Utah Rules of Juvenile Procedure, the juvenile court rejected Father's motion, on the rationale that it had modified the requirements of the rule, as permitted by the terms of the rule, to provide Father with adequate notice.

¶ 6 Near the conclusion of the proceeding, the State's witnesses could not testify with certainty about the precise location within Father's bedroom where they had found two thumb drives, one of which contained incriminating evidence. Father objected, arguing that this confusion created a chain-of-custody problem and that the evidence should not be admitted. The juvenile court then required the State to provide additional evidence about the chain of custody. After hearing the additional evidence, the juvenile court stated, “It's true they don't know if that's just two thumb drives that came from the master bedroom closet or from the master bedroom dresser, but it came from one of the two and so I'll admit [it].”

¶ 7 After holding five days of evidentiary hearings over the course of almost four months, the juvenile court determined, among other things, that the children in the household were neglected and that Father had sexually exploited his daughter.³ Accordingly, it granted custody of the children to the Division of Child and Family Services. Father now appeals.

ISSUES AND STANDARDS OF REVIEW

¶ 8 Father first argues that the searches were in violation of the Utah Constitution and that the juvenile court erred in refusing to exclude the evidence obtained in the searches. Whether an exclusionary rule based on the Utah Constitution should apply in child welfare proceedings is a constitutional issue that we review for correctness. See In re L.M., 2013 UT App 191, ¶ 5, 308 P.3d 553.

¶ 9 Next, Father argues that the juvenile court misapplied rule 20A of the Utah Rules of Juvenile Procedure when it allowed the State's expert witness to testify. The juvenile court's interpretation of this rule presents a question of law that we review for correctness. See In re S.M., 2007 UT 21, ¶ 15, 154 P.3d 835.

¶ 10 Finally, Father contends that the juvenile court erred by admitting evidence that lacked proper foundation because of problems with the chain of custody. We will reverse a court's determination that there was proper foundation to admit evidence only if the court abused its discretion. See State v. Torres, 2003 UT App 114, ¶ 7, 69 P.3d 314.

ANALYSIS

A. Exclusionary Rule

¶ 11 Although the Utah Supreme Court, in applying the requirements of the United States Constitution, has made it clear that Utah courts should not apply the exclusionary rule in child welfare proceedings, see In re A.R., 1999 UT 43, ¶ 23, 982 P.2d 73, Father urges us to fashion a more broadly applicable exclusionary rule based on the Utah Constitution. We decline to do so.

¶ 12 Father devotes much of his brief to arguing that although the language forbidding unlawful searches found in the Utah Constitution is effectively identical to the language forbidding unlawful searches found in the United States Constitution, the historical context peculiar to Utah requires us to read Utah's ban on unlawful searches more broadly. Compare Utah Const. art. I, § 14, with U.S. Const. amend. IV. See Kenneth R. Wallentine, Heeding the Call: Search and Seizure Jurisprudence Under the Utah Constitution, Article I, Section 14, 17 J. Contemp. L. 267, 280 (1991). Father is not without support in this assertion. For example, in State v. Thompson, 810 P.2d 415, 418 (Utah 1991), the Utah Supreme Court held that under the Utah Constitution a person has “a right to be secure against unreasonable searches and seizures of their bank statements,” even though the United States Supreme Court earlier held in United States v. Miller, 425 U.S. 435, 442, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976), that under the federal Constitution there was no “legitimate ‘expectation of privacy’ ” in bank statements.

¶ 13 However, even if we were to adopt Father's basic reasoning in this regard, it would not render the juvenile court's decision incorrect. Recognizing a more expansive expectation of privacy under the Utah Constitution would necessarily broaden the circumstances under which we would determine that searches are unreasonable, but it would not alter the nature of child welfare proceedings. As the Utah Supreme Court explained, the “determination of whether the [exclusionary] rule applies depends upon the nature of the proceeding rather than the circumstances under which the evidence was collected.” In re A.R., 1999 UT 43, ¶ 15, 982 P.2d 73. So, while our Supreme Court in In re A.R. was concerned only with the requirements of the federal Constitution, see id. ¶ 14, its reasoning on the inapplicability of the exclusionary rule to child welfare proceedings is still on point:

The primary focus of and sole statutory justification for child protection proceedings is to protect the interests of children who are neglected or abused.... Although parents may suffer a severe detriment in losing temporary or permanent custody of their children, punishment of the parents is not the purpose of the proceeding.

Id. ¶ 18.

¶ 14 Not only are a parent's privacy rights subordinate in a child welfare proceeding to a child's safety, but the Utah Supreme Court has further determined that the relative value of the exclusionary rule as a deterrent is greatly diminished as well:

There appears to be little likelihood that any substantial deterrent effect on unlawful police intrusion would be achieved by applying the exclusionary rule to child protection proceedings. Whatever deterrent effect

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