MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, Zachary Haselton, appeals from his convictions of rape, indecent assault and battery, and photographing an unsuspecting person in the nude. The defendant claims: (1) the seizure of his laptop computer (laptop) violated his rights under the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights; (2) his convictions and sentences for two of the counts of rape and the three counts of indecent assault and battery violated double jeopardy; and (3) it was error to convict and sentence on multiple counts based on single episodes of videotaping an unsuspecting person in the nude. For the reasons set forth below, we affirm.
Background. The defendant and the victim began dating in April of 2015. In the summer of 2016, the victim accessed the defendants laptop while the defendant was away on a trip; the victim gained access after several incorrect attempts at entering his password. The victim discovered around thirty to forty videos and pictures of herself in which the defendant was touching the victims body, including parts of her vagina, and placing his fingers inside her vagina.
The victim brought the defendants laptop to the police station and described to an officer what she had observed on the laptop. The victim left the laptop with the officer. The police obtained a search warrant, authorizing a search of the laptop, within three days. Sergeant Scott Whalen then examined the defendants laptop where he located photographs and videos of the victim from September 25, 2015; January 17, 2016; July 10, 2016; and July 18, 2016; each digital file had a specific and unique file name, and each digital file had been generated at a specific and unique time.
Discussion. Motion to suppress. In his motion to suppress the defendant claimed the search warrant for his laptop was invalid because the information that provided the probable cause for the issuance of the warrant was illegally obtained in violation of his rights under the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights. After a hearing the judge determined that the search of the defendants laptop did not violate the defendants constitutional rights because the victims review of the contents of the laptop occurred without any influence from the police, and the warrant that issued thereafter was based on probable cause furnished by the victims description to police of what she observed on the laptop.
When reviewing a judges ruling on a motion to suppress, “we accept the judges subsidiary findings of fact absent clear error but conduct an independent review of [the judges] ultimate findings and conclusions of law” (citation and quotation omitted). Commonwealth v. Scott, 440 Mass. 642, 646 (2004).
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“It is well settled that the Fourth Amendment to the United States Constitution applies only to searches and seizures conducted by or at the direction of the State.” District Attorney for the Plymouth Dist. v. Coffey, 386 Mass. 218, 220–221 (1982). “[E]vidence illegally obtained by private parties and turned over to the police is not a violation of the Fourth Amendment. The same considerations apply to art. 14.” (Citation omitted.) Id. at 221. Here, the victim conducted a private search of the defendants laptop independently and without any prompting by the police. After the victim turned over the evidence and informed the police of the videos and photographs she found on the defendants laptop, the police had probable cause to validly seek a search warrant for the defendants laptop. Accordingly, the motion judge properly denied the motion to suppress on the grounds that were presented to her.
For the first time on appeal, the defendant claims that the warrantless seizure of his laptop by the police violated his constitutional rights. Since this issue was not raised before the motion judge it is therefore waived. Nevertheless, we review to ascertain whether there was a substantial risk of a miscarriage of justice. See Commonwealth v. Dew, 478 Mass. 304, 309-310 (2017).
“Warrantless seizures are permissible in certain circumstances. With probable cause, the police may seize property ‘to prevent destruction or removal of evidence during the relatively short period of time needed ․ to obtain a search warrant.’ Commonwealth v. Taylor, 426 Mass. 189, 195 (1997). Commonwealth v. Martino, 412 Mass. 267, 275-277 (1992) (police secured defendants home pending issuance of warrant).” Commonwealth v. Gentile, 437 Mass. 569, 573 (2002). Here the laptop was brought to the police station and left with an officer by the victim. Even assuming that possession by the police of the laptop under these circumstances constituted a seizure by the police, the seizure was supported by probable cause to believe the laptop contained evidence of criminal actions by the defendant. “In dealing with probable cause ․ we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent [people], not legal technicians, act.” Commonwealth v. Hason, 387 Mass. 169, 174 (1982), quoting Brinegar v. United States, 338 U.S. 160, 175 (1949). At the time the police took possession of the laptop they had been provided with a detailed description of what the victim had observed on the laptop, including that the laptop contained videos and photographs showing the defendant raping the victim. The evidence was obviously capable of being hidden or destroyed if not retained by the police for a reasonable period to allow them to obtain a search warrant. We conclude that there was no substantial risk of a miscarriage of justice by the police retaining the laptop during the time it took them to obtain a search warrant.
Additionally, the three-day detention of the defendants laptop was a reasonable period of time to obtain a warrant. “The impoundment of an object pending the issuance of a search warrant violates the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights only if it is unreasonable.” Commonwealth v. Kaupp, 453 Mass. 102, 106 (2009). According to the United States Supreme Court, “[w]e have found no case in which this Court has held unlawful a temporary seizure that was supported by probable cause and was designed to prevent the loss of evidence while the police diligently obtained a warrant in a reasonable period of time.” Illinois v. McArthur, 531 U.S. 326, 334 (2001). Here, there was no illegal seizure of the defendants laptop because its temporary detention by the police occurred while the police diligently pursued a search warrant based on the probable cause provided by the victims statements about the contents of the laptop. The police ran the risk of the defendant destroying the video and photographic evidence on his laptop had the police not seized the laptop while seeking the search warrant, and the warrant was obtained in only three days. The motion judge was correct in determining that the defendants constitutional rights had not been violated.
Double jeopardy. Next, the defendants argument that his convictions and sentences for two counts of rape and three counts of indecent assault and battery violated double jeopardy must fail. “Where, as here, [the defendant] did not raise the issue of duplicative convictions below, we review his claim[s] to determine whether there was an error and, if so, whether the error created a substantial risk of a miscarriage of justice.” Commonwealth v. Kelly, 470 Mass. 682, 699 (2015). To sustain multiple convictions for the same charge, and to sustain convictions for a lesser-included offense, it must be shown that all of the charges were based on “distinct criminal act[s].” Commonwealth v. Traylor, 472 Mass. 260, 269 (2015), quoting Commonwealth v. Vick, 454 Mass. 418, 435 (2009). Here, the defendant committed multiple distinct rapes and indecent assault and batteries. The defendant raped the victim twice on January 17, 2016, first at 4:56 a.m. and then again at 5:39 a.m.; the defendant recorded each act in separate video files, each with their own unique file names and each captured at separate times. Additionally, the defendant committed three indecent assault and batteries, with each act recorded in a separate video file. The defendants acts were independent of each other such that no one action was necessary for the perpetration of another. Therefore, all of the charges were correctly based on distinct criminal acts.
Multiple convictions. Finally, the defendants claim that it was error to convict and sentence him on multiple counts based on single episodes of videotaping and photographing an unsuspecting person who is nude or partially nude must fail. Although it is the Commonwealths contention that the defendant did not raise this issue below, the record shows that the issue was raised and argued prior to sentencing. However, it makes no difference whether we review for prejudicial error or substantial risk of a miscarriage of justice; since under either standard, we conclude that the defendant is not entitled to appellate relief. Here, the defendant committed multiple violations of G. L. c. 272, § 105 (b)
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because -- as discussed above -- each photograph and video created by the defendant constituted a separate criminal act, and each criminal act warranted its own violation of the statute.
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We conclude there was no error.
Judgments affirmed.
FOOTNOTES
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. We note that the defendant does claim that the application for the search warrant lacked probable cause, but only challenges whether the information that supported the probable cause was proper to use and whether the holding of the laptop by the police until they obtained the search warrant was a proper seizure.
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. “Whoever willfully photographs, videotapes or electronically surveils another person who is nude or partially nude, with the intent to secretly conduct or hide such activity, when the other person in such place and circumstance would have a reasonable expectation of privacy in not being so photographed, videotaped or electronically surveilled, and without that persons knowledge and consent, shall be punished by imprisonment in the house of correction for not more than 21/212 years or by a fine of not more than $5,000, or by both such fine and imprisonment.” G. L. c. 272, § 105 (b).
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. The defendants reliance on the holding in Commonwealth v. Wassillie, 482 Mass. 562 (2019) is misplaced. The court in Wassillie was presented with two videos that showed seventeen adults and five children nude or partially nude and determined that the proper unit of prosecution was the number of victims not the episode of video recording. Unlike in Wassillie, here, although we have one victim, the Commonwealth established there were multiple separate violations of the statute against this victim. See Traylor, 472 Mass. at 269.