Nathan C. Albrecht v. State of Indiana ( 2020 )

FILED
Dec 16 2020, 8:53 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Bernadette A. Kovacs Curtis T. Hill, Jr.
Rahman Law Office Attorney General of Indiana
Ferdinand, Indiana Evan Matthew Comer
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Nathan C. Albrecht, December 16, 2020
Appellant-Defendant, Court of Appeals Case No.
20A-CR-945
v. Appeal from the Dubois Circuit
Court
State of Indiana, The Honorable Nathan A.
Appellee-Plaintiff. Verkamp, Judge
Trial Court Cause No.
19C01-1910-F5-1109
Pyle, Judge.
Statement of the Case
[1] In this interlocutory appeal, Nathan Albrecht (“Albrecht”) appeals the trial
court’s denial of his motion to suppress evidence, which led to the State filing
ten counts of possession of child pornography against Albrecht. This case
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involves five search warrants obtained by police during an investigation into
allegations of child molesting by Albrecht. The second search warrant
authorized the seizure and forensic search of a hard drive, which led to the
discovery that the hard drive contained child pornography.
[2] On appeal, Albrecht challenges the second search warrant, alleging that it
lacked probable cause and did not meet the particularity requirement under the
Fourth Amendment, and he challenges the third, fourth, and fifth warrants
under the fruit of the poisonous tree doctrine. Concluding that the issuing
judge had a substantial basis for finding that probable cause existed for the
second search warrant and that the second search warrant was particularized in
terms of the items to be seized and in terms of the scope of the search to be
performed, we affirm the trial court’s denial of Albrecht’s motion to suppress.
[3] We affirm.
Issue
Whether the trial court abused its discretion by denying
Albrecht’s motion to suppress.
Facts
[4] In August 2019, twelve-year-old R.R. (“R.R.”) told authorities that twenty-
seven-year-old Albrecht, who worked with R.R. as part of Mentors for Youth,
had inappropriately touched R.R. during the prior six to nine months. On
August 23, 2019, R.R. told a forensic interviewer that Albrecht had “placed his
mouth on R.R.’s penis on multiple occasions while [R.R.] was at . . . Albrecht’s
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apartment in Ferdinand.” (Tr. Vol. 2 at 5). R.R. also revealed that Albrecht’s
inappropriate actions had included Albrecht’s penis. Specifically, R.R.
explained that, “on more than one occasion[,]” Albrecht had taken a “clear”
item and “slid[] it over [Albrecht’s] penis” and that occasionally R.R. had used
his hand to put the clear item on Albrecht’s penis. (Tr. Vol. 2 at 5).
Additionally, R.R., while making an up-and-down motion with his hand,
explained that “white stuff would come out of [Albrecht’s] penis, and the clear
plastic thing would catch it.” (Tr. Vol. 2 at 5). R.R. also disclosed that
Albrecht had gotten these clear items from his bathroom. Deputy John
Anderson (“Deputy Anderson”) and Officer Eric Hopkins (“Officer Hopkins”)
spoke to Albrecht about the allegations, and Albrecht invoked his right to an
attorney.
[5] Based on R.R.’s allegations, the police sought a search warrant during a
telephonic hearing on August 23, 2019 around 1:00 p.m. Investigator Richard
Chambers (“Investigator Chambers”), who had attended R.R.’s forensic
interview, informed the trial court of allegations of child molesting and the facts
as set forth above. Investigator Chambers sought a search warrant to obtain
“[a] condom or packages of condoms or similar instrumentality believed to be
located in the bathroom of the residence[.]” (Tr. Vol. 2 at 7). He also sought
“to take photographs or video of the residence that was described by the State’s
witness” to compare it to R.R.’s description. (Tr. Vol. 2 at 7). Investigator
Chambers read the text of the search warrant out loud over the phone to the
trial court. At 1:09 p.m., the trial court found that there was probable cause for
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the issuance of the search warrant and authorized Investigator Chambers to
sign the warrant on the court’s behalf. The warrant was issued under cause
number 19C01-1908-MC-856 (“Search Warrant 856”) and provided as follows:
WHEREAS, there has been testimony given to me an affidavit
that establishes probable cause,
YOU ARE HEREBY COMMANDED in the name of the State
of Indiana, with the necessary and proper assistance, to search an
upstairs unit of a multi-family residence at 1705 Main Street,
Ferdinand, Indiana, located on the west side of the street with
three (3) Bedford stone pillars on the front porch and the
numbers 1705 on it and the home has white vinyl siding with [a]
black roof and the upstairs apartment on the 2nd floor northside of
the building with [a] tan door which is half glass with [a] white
blind in the door and a red painted wooden stairwell leading up
to the apartment. To the right of the entrance door of the
upstairs unit, a TV antenna is located with a security light above
the door.
A condom or packages of condoms or similar instrumentality
believed to be located in the bathroom of the residence as well as
to take photographs or video of the residence that was described
by the State’s witness.
You are ordered to examine such property, or any part thereof,
found on such search.
(App Vol. 2 at 17).
[6] Immediately thereafter, police officers, including Deputy Anderson, served
Search Warrant 856 at Albrecht’s residence. One of the officers found condoms
in Albrecht’s bathroom. While searching for the condoms, the officer also
found a two-terabyte external hard drive, which was in a Ziploc bag and
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“hidden behind” a “decorative” “wooden border” above the vanity. (Tr. Vol. 2
at 12). The hard drive was “within arm[’]s length” of the condoms. (Tr. Vol. 2
at 12). When the police arrested Albrecht, he had a cell phone in his pocket.
[7] That same day, the police sought a second search warrant during another
telephonic hearing. Deputy Anderson sought the search warrant to seize and
search the hard drive found in Albrecht’s bathroom and the cell phone in
Albrecht’s possession upon his arrest. The trial court took judicial notice of the
hearing for Search Warrant 856 that had occurred two hours previously.
[8] During this second hearing, Deputy Anderson described where the officers had
found the hard drive and gave the specific description of the hard drive,
including brand, model number, pin number and serial number. Deputy
Anderson confirmed that he sought to search the hard drive for “any potential
evidence . . . that could be located related directly to this crime[.]” (Tr. Vol. 2
at 13). When discussing the request to search Albrecht’s phone, Deputy
Anderson gave the phone number of Albrecht’s cell phone and stated that
R.R.’s mother had found some texts from Albrecht and that they were from that
same phone number. Deputy Anderson confirmed that he sought to search the
phone because “the text message relate[d] directly to the date on which the
alleged crimes would’ve occurred[.]” (Tr. Vol. 2 at 12). Deputy Anderson also
stated that Officer Hopkins had contacted Albrecht earlier that day at that same
phone number.
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[9] Deputy Anderson then began to read the text of the search warrant application
out loud over the phone to the trial court. The phone connection cut out as
Deputy Anderson was reading the warrant, so the prosecutor, who had a copy
of the search warrant, finished reading it into the court record. At 3:27 p.m.,
the trial court found that there was probable cause for the issuance of the search
warrant and authorized Deputy Anderson to sign the warrant on the court’s
behalf. The warrant was issued under cause number 19C01-1908-MC-857
(“Search Warrant 857”).
WHEREAS, there has been testimony given to me an affidavit
that establishes probable cause,
YOU ARE HEREBY COMMANDED in the name of the State
of Indiana, with the necessary and proper assistance, to search an
upstairs unit of a multi-family residence at 1705 Main Street,
Ferdinand, Indiana, located on the west side of the street with the
following items which are may [sic] contain evidence of the
crime of child molesting pursuant to [Search Warrant 856] issued
under Cause No. 19C01-1908-MC-00856.
An external hard drive, NEMKO-US, Seagate Model No.
SRD00F1, PN Number 1K9AP-6-501, Serial NA7K1WKJ, TTB,
backup plus portable drive located in a clear plastic Ziploc bag
with a blue seal found in the bathroom, hidden above the vanity
shelf behind a ledge, located during the search for condoms and
found within close proximity to the condoms.
Also, to seize and search a black ZTE TracFone located in
possession of defendant Nathan Albrecht at the time of his arrest
with a phone number of (317) [XXX-XXXX].
This request for a warrant involves the potential seizure and
review of digital media. The analysis of computer and/or digital
media is an exacting scientific procedure which is designed to
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protect the integrity of the evidence and to recover digital
information, to include hidden, erased, compressed, password-
protected or encrypted files. The analysis of evidence from
computer and digital systems commonly require the seizure of all
computer-related items to be processed by a qualified computer
expert in a laboratory or other controlled environment. The high
volume of the contents and the potential intentional concealment
of criminal activity through random ordering and deceptive file
names may require the examination of all stored data. This
process may take weeks to months depending on the volume of
the data involved and the caseload of the computer expert.
Recognizing that specialized and highly technical equipment and
software will be needed to conduct the analysis of the seized
digital media, the media will be transferred to the Indiana State
Police Cyber Crime Unit or other qualified laboratory with a
request that a forensic examination be conducted in this matter.
Additionally, under limited situations, assistance may be
required by the receiving laboratory from other qualified
laboratories.
USE OF UNSWORN PERSONNEL: Forensic analysis of any
seized computer equipment pursuant to this search warrant may
be conducted by employees of law enforcement agencies who are
not sworn law enforcement personnel but are instead civilian
employees.
You are ordered to examine such property, or any part thereof,
found on such search.
(App. Vol. 2 at 18).
[10] A few days later, on August 27, 2019, during an in-person hearing, Deputy
Anderson sought a third search warrant for the search of Albrecht’s apartment.
Specifically, he sought to seize and search a computer that he had seen in
Albrecht’s bedroom and other electronic equipment that may have been used to
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produce or view child pornography. Deputy Anderson stated that he sought
the search warrant because he believed that there would be evidence relating to
the crimes of child molesting, child exploitation, and possession of child
pornography. Pursuant to Deputy Anderson’s request, the trial court took
judicial notice of the prior testimony and hearings involved with the issuance of
Search Warrant 856 and Search Warrant 857. Deputy Anderson discussed the
hard drive that had been seized pursuant to Search Warrant 857. He stated that
the hard drive, which had been partially searched, contained “[i]n excess” of
100,000 images that would be considered child pornography and “thousands”
of videos. (Tr. Vol. 2 at 21, 22). Additionally, Deputy Anderson informed the
trial court that the hard drive contained images of the victim in the pending
child molest case and that the images were of the child either clothed or
wearing underwear. Deputy Anderson explained that Jasper Police Detective
Martin Loya (“Detective Loya”), who was conducting the forensic search of the
hard drive, had explained that the contents of the hard drive could only be
viewed on a computer. Deputy Anderson stated that Detective Loya had also
explained that searching Albrecht’s computer would allow him to determine
whether Albrecht had produced child pornography or had just viewed it.
[11] The prosecutor and Deputy Anderson then took time during the hearing “to
make a record” about Search Warrant 856 and Search Warrant 857. (Tr. Vol. 2
at 23). The prosecutor pointed out that the testimony for Search Warrant 856
had “described” the crime of child molesting but had “not explicitly stated” it.
(Tr. Vol. 2 at 24). Deputy Anderson confirmed that the probable cause that had
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been established for Search Warrant 856 still existed at the time of the current
hearing. The deputy asked the trial court to “correct the record” for Search
Warrant 856 and Search Warrant 857 and to “take notice” that the “offense
that justified” Search Warrant 856 was child molesting. (Tr. Vol. 2 at 24).
Additionally, “[a]s a precaution to ensure the validity” of Search Warrant 856,
Deputy Anderson asked the trial court to reissue a search warrant for the
residence as covered in Search Warrant 856. (Tr. Vol. 2 at 24). Deputy
Anderson then read the prepared search warrant into the record.
[12] The trial court responded that, based on the testimony for the first search
warrant, Search Warrant 856, it was “very clear” to the Court that the crime
that was being alleged and upon which Search Warrant 856 was being issued
was the crime of child molesting by Albrecht who had been a mentor to the
victim through Mentors for Youth. (Tr. Vol. 2 at 26). The trial court also
stated that it was “clear” that the second search warrant, Search Warrant 857,
which sought to do a forensic search of the hard drive, was “a continued
search” and related to child molesting, child exploitation, or possession of child
pornography “based on the fact that the external hard drive was secreted in the
bathroom near where the condoms were located[,]” which “would give rise to
believe” that Albrecht had either videotaped or take photographs “of the allege
events.” (Tr. Vol. 2 at 26).
[13] The trial court found that there was probable cause for the issuance of the third
search warrant. This warrant was issued under cause number 19C01-1908-MC-
886 (“Search Warrant 886”) and provided as follows:
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WHEREAS, there has been presented to me oral testimony,
under oath.
YOU ARE HEREBY COMMANDED in the name of the State
of Indiana, with the necessary and proper assistance in the
daytime or in the nighttime, to enter into or upon the premises
and places being:
An upstairs unit of a multi-family residence at 1705 Main Street,
Ferdinand, Dubois County, State of Indiana, a two story, white
siding residence with three (3) Bedford stone pillars on the front
porch and the numbers 1705 on the top of the porch, with a black
roof, with said residence being located on the west side of Main
Street. The entrance to said apartment is at the top of a reddish-
brown painted wooden stairwell leading to the 2nd floor on the
northside of the residence, with the entrance being a tan door
which is half glass with a white blind in the door. There is a TV
antenna located to the right of the entrance door to the
apartment, as well as a security light above the entranceway.
Said apartment is currently occupied by Nathan C. Albrecht
(DOB 7/20/1992).
And there search diligently for any evidence of violations of
Child Molesting (a Level 1/2/3/4 felony) under I.C. 35-42-4-3,
Child Exploitation (a Level 4/5 felony) under I.C. 35-42-4-4, and
Possession of Child Pornography (a Level 5/6 felony) under I.C.
35-42-4-4. You are ordered to seize such property, or any part
thereof, found on such search.
(App. Vol. 2 at 20).
[14] When officers served Search Warrant 886, they found and seized, among other
items, a computer, an SD card, four DVDs, and two Zune audio/electronic
devices. The computer and Zune devices were found in Albrecht’s bedroom,
while the SD card and four DVDs were found in a cardboard box near the front
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door. That same day, the police sought a fourth and fifth search warrant to
conduct a forensic search of those items. The fourth search warrant related to
the computer, SD card, and four DVDs, while the fifth search warrant related
to the Zune devices. These search warrant affidavits stated that there was
probable cause to believe that evidence of the crimes of child molesting, child
exploitation, and possession of child pornography may be found in a search of
the above-listed items. The search warrant affidavits also requested the trial
court to take judicial notice of the testimony that established probable cause for
the first three search warrants, specifically Search Warrant 856, Search Warrant
857, and Search Warrant 886. The trial court found that there was probable
cause for the fourth and fifth warrant requests and issued the fourth warrant
under cause number 19C01-1908-MC-887 (“Search Warrant 887”) and the fifth
warrant under cause number 19C01-1908-MC-888 (“Search Warrant 888”).
[15] The State charged Albrecht with ten counts of Level 5 felony possession of child
pornography. The ten counts alleged that Albrecht knowingly or intentionally
possessed “a motion picture that depicts or describes sexual conduct by a child
who appears to be less than eighteen (18) years of age and that lacks serious
literary, artistic, political or scientific value and the child who is depicted or
described is less than twelve” years of age. (App. Vol. 2 at 48-49).
Additionally, some of the counts also alleged that the child in the video
appeared to be in pain or forced to engage in the conduct or was involved in
bestiality.
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[16] On December 17, 2019, Albrecht filed a pro se motion to suppress evidence
obtained from the hard drive. Albrecht argued that the seizure of the hard drive
violated his Fourth Amendment right against unreasonable search and seizure.
Specifically, Albrecht argued that “[t]he hard drive seized was not an item
particularly described in the warrant it was collected under.” (App. Vol. 2 at
66). He suggested that the hard drive had been seized under Search Warrant
856, which was the first warrant, and asserted that that search warrant had only
listed condoms and not the hard drive.
[17] The trial court held a hearing on Albrecht’s motion to suppress on January 3,
2020. Albrecht appeared pro se and did not call any witnesses. During the
hearing, the State called Deputy Anderson, who testified that the hard drive
had been seized pursuant to the second search warrant, Search Warrant 857.
The trial court issued an order denying Albrecht’s motion to suppress on
January 10, 2020.
[18] On January 28, 2020, Albrecht filed a second motion to suppress, arguing that
the second and third search warrants, Search Warrant 857 and Search Warrant
886, did not satisfy the particularity requirement of the Fourth Amendment and
requesting that the evidence collected under those two warrants be suppressed
and returned to him.1 Albrecht argued that Search Warrant 857 failed to fulfill
1
Albrecht did not specify the evidence he sought to suppress. Nevertheless, the evidence obtained under
Search Warrant 857 included the hard drive and Albrecht’s cell phone, while the evidence obtained under
Search Warrant 886 included a computer, an SD card, four DVDs, and two Zune audio/electronic devices.
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the particularity requirement because it did not set forth “what [wa]s being
searched for from the contents of the devices listed [hard drive and cell phone]”
and “what data of those devices [wa]s allowed to be searched.” (App. Vol. 2 at
76). Additionally, Albrecht argued that the language of Search Warrant 886
did not meet particularity requirement of the Fourth Amendment because it
allowed for a search related to the three listed crimes but did not set forth any
guidelines on what could be taken. Albrecht also argued that the lack of
particularity was not covered by the good faith exception and that Search
Warrant 887, which related to Search Warrant 886, should be suppressed under
the exclusionary rule.
[19] On February 13, 2020, Albrecht filed a supplemental brief, asserting that, for
Search Warrant 857, he was challenging both the lack of probable cause and the
lack of particularity. When arguing that Search Warrant 857 lacked the
necessary probable cause, Albrecht challenged the facts that Deputy Anderson
had provided regarding the location of the hidden hard drive in Albrecht’s
bathroom in relation to the condoms. Specifically, Albrecht argued that
Deputy Anderson should have stated that the size of Albrecht’s bathroom was
small, making “most everything in the bathroom . . . within arm’s length[,]”
and that the deputy also should have stated that the condoms had been found in
plain view on a low shelf of Albrecht’s bathroom. (App. Vol. 2 at 83).
[20] In his supplemental brief, Albrecht also challenged whether sufficient facts had
been asserted to show that the hard drive had a relational nexus to an alleged
crime. Albrecht argued that Deputy Anderson should have provided specific
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facts “stating any training or experience that would [have] le[]d him to believe
evidence would be found” on the hard drive. (App. Vol. 2 at 83). Albrecht
acknowledged that Search Warrant 857 provided that a search of the hard drive
might contain evidence of the crime of child molesting but asserted that it
should have specifically alleged that photographs, videos, audio files, or
documents would be found. Additionally, Albrecht argued that if the trial court
suppressed the evidence under Search Warrant 857, then it should also suppress
the evidence obtained under Search Warrant 886, Search Warrant 887, and
Search Warrant 888 under the fruit of the poisonous tree doctrine.2
[21] The trial court held a hearing on Albrecht’s second motion to suppress on
February 26, 2020. Albrecht appeared pro se and did not call any witnesses.
During the hearing, Albrecht specifically stated that he had “no problem with
th[e] initial warrant[,]” Search Warrant 856. (Tr. Vol. 2 at 59). Instead, the
focus of Albrecht’s argument during the hearing was on Search Warrant 857
and the hard drive. He asserted that Search Warrant 857 lacked probable cause
because there was no statement of illegality attributed to the hard drive, which
he asserted he had the legal right to possess. Albrecht also argued that, when
the officer had requested Search Warrant 857, he did not allege that the hard
drive was suspicious and did not establish a nexus between the hard drive and
an alleged crime. As for Albrecht’s particularity argument, he argued that
2
Albrecht also argued that a search warrant under cause number 19C01-1908-F1-879 should be suppressed
under the fruit of the poisonous tree doctrine.
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Search Warrant 857 had no limitation as to what the police could look for on
the hard drive and that it was an impermissible general search. Albrecht also
argued that the warrant request should have specified what the police expected
to find on the hard drive.
[22] The State argued that “this [wa]s a really textbook case” and that suppression of
the evidence was not warranted. (Tr. Vol. 2 at 51). The State summarized the
procedural facts involved in the officers obtaining the five search warrants that
led to the child pornography charges being filed against Albrecht. The State
pointed out that Search Warrant 857 referenced Search Warrant 856 that
sought evidence relating to the child molesting allegation. The State contended
that the hard drive was “suspicious” because it was “hidden and wrapped in
plastic in a bathroom, which is . . . the last place anyone would put a piece of
electronic equipment due to the moisture and the potential damage[.]” (Tr.
Vol. 2 at 55). The State asserted that was a reasonable nexus between the hard
drive and the crime because perpetrators in child molesting cases often video
themselves committing sexual acts. The State further argued that the
magistrate, “relying on his own common sense and understanding,” was able to
reasonably infer that the discovery of the hard drive in the bathroom where the
condoms were found as part of a child molesting case may be related to the
crime. (Tr. Vol. 2 at 61). The State argued that the trial court’s issuance of
Search Warrant 857 was proper and based on probable cause because it was
“based on the evidence that had been found, based on the statement of the
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child, [and] based on the type of crime that was being investigated.” (Tr. Vol. 2
at 62).
[23] Additionally, the State argued that Albrecht misunderstood the particularity
requirement because the police did not have to list exactly what they were
seeking to find on the hard drive. The State pointed out that the police had
stated that they were looking for evidence of child molesting, child exploitation,
or child pornography and that because the evidence to be searched was a hard
drive, it was clear that the police were looking for electronic data. Additionally,
the State pointed out that the officers did not conduct an impermissible general
search and that “[t]he officers then stayed within the constricts of the warrant
they were granted and came back for an additional warrant when they found
further contraband.” (Tr. Vol. 2 at 62).
[24] At the end of the hearing, the trial court denied Albrecht’s second motion to
suppress (“February 2020 Order”).3 Albrecht then sought appointed counsel for
the limited purpose of trying to file an interlocutory appeal. The trial court
granted Albrecht’s request and appointed interlocutory appellate counsel.
[25] On March 26, 2020, Albrecht filed a petition seeking to have the trial court
certify its February 2020 Order and a motion to stay the proceedings. The trial
court granted both requests. In April 2020, Albrecht sought permission to file a
3
The trial court did not issue a separate written order.
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permissive interlocutory appeal, and this Court granted his request. Albrecht
now appeals the denial of his second motion to suppress.
Decision
[26] Albrecht challenges the trial court’s interlocutory order denying his second
motion to suppress. As he did below, Albrecht’s appellate argument focuses on
Search Warrant 857 and the hard drive. Specifically, Albrecht argues that the
trial court erred by denying his motion to suppress because Search Warrant 857
violated the Fourth Amendment by: (1) lacking probable cause; and (2) failing
to meet the particularity requirement.4 Albrecht also argues that, if probable
cause was lacking for issuance of Search Warrant 857, this deficiency is not
salvaged by the good faith exception. Additionally, Albrecht argues that if the
hard drive obtained pursuant to Search Warrant 857 should have been
suppressed, it would also require the exclusion of all subsequently obtained
evidence resulting from Search Warrant 886, Search Warrant 887, and Search
Warrant 888 under the fruit of the poisonous tree doctrine.5 Because Albrecht’s
4
Albrecht also asserts that Search Warrant 857 violated Article 1, Section 11 of the Indiana Constitution.
However, he has waived such argument because he did not raise that argument to the trial court when he
presented his motion to suppress and does not provide a separate analysis on appeal. See Lee v. State, 973
N.E.2d 1207, 1209 (Ind. Ct. App. 2012) (explaining that “generally the failure to file a proper motion to
dismiss raising a constitutional challenge waives the issue on appeal), trans. denied; White v. State, 772 N.E.2d
408, 411 (Ind. 2002) (holding that the defendant’s claim of an alleged search and seizure violation under
Article 1, Section 11 of the Indiana Constitution was waived when he failed to provide a separate analysis
under that provision.
5
Additionally, Albrecht seems to challenge Search Warrant 856, suggesting that Search Warrant 856 “had
several defects.” (Albrecht’s Br. 19). Albrecht did not challenge the validity of Search Warrant 856 in his
motion to suppress, and he specifically said during the hearing that he had “no problem with th[e] initial
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arguments hinge on his challenge to Search Warrant 857, we will focus our
review on that warrant.
[27] Our appellate review of a trial court’s denial of a motion to suppress is similar
to other sufficiency matters. Mehring v. State, 884 N.E.2d 371, 376 (Ind. Ct.
App. 2008), reh’g denied, trans. denied. We will determine whether “substantial
evidence of probative value exists to support the trial court’s ruling.” Litchfield
v. State, 824 N.E.2d 356, 358 (Ind. 2005). We will not reweigh the evidence,
and we will consider conflicting evidence most favorably to the trial court’s
ruling. Id.[28] We first address Albrecht’s probable cause challenge to Search Warrant 857.
The Fourth Amendment to the United States Constitution requires search
warrants to be based on probable cause. Heuring v. State, 140 N.E.3d 270, 274
(Ind. 2020).6 “Our General Assembly has codified this constitutional
requirement in Indiana Code section 35-33-5-2, which specifies the information
that must be included in an affidavit supporting a search warrant.” Id.(citing I.C. § 35-33-5-2)).7 “Probable cause is a ‘fluid concept incapable of
warrant[,]” Search Warrant 856. (Tr. Vol. 2 at 59). Accordingly, he has waived any appellate challenge to
Search Warrant 856.
6
Article 1, Section 11 of the Indiana Constitution also requires search warrants to be based on probable
cause. Heuring, 140 N.E.3d at 274. We need not discuss that constitutional provisions because Albrecht did
not raise a state constitutional challenge in his motion to suppress.
7
INDIANA CODE 35-33-5-2 provides, in relevant part, that “no warrant for search . . . shall be issued until
there is filed with the judge an affidavit:
(1) particularly describing:
(A) the house or place to be searched and the things to be searched for; or
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precise definition . . . [and] is to be decided based on the facts of each case.’”
Carter v. State, 105 N.E.3d 1121, 1127 (Ind. Ct. App. 2018) (quoting Figert v.
State, 686 N.E.2d 827, 830 (Ind. 1997)), trans. denied. “Probable cause is not a
high bar, and [it] is cleared when the totality of the circumstances establishes a
fair probability—not proof or a prima facie showing—of criminal activity,
contraband, or evidence of a crime.” Hodges v. State, 125 N.E.3d 578, 581-82
(Ind. 2019) (internal quotation marks and citations omitted). “Significantly,
probable cause requires only a probability or substantial chance of criminal
activity, not an actual showing of such activity.” Eaton v. State, 889 N.E.2d
297, 299 (Ind. 2008) (internal quotation marks and citation omitted), reh’g
denied, cert. denied.
[29] “In deciding whether to issue a search warrant, ‘[t]he task of the
issuing magistrate is simply to make a practical, common-sense decision
whether, given all the circumstances set forth in the affidavit . . . there is a fair
probability that contraband or evidence of a crime will be found in a particular
(B) particularly describing the person to be arrested;
(2) alleging substantially the offense in relation thereto and that the affiant believes and has good
cause to believe that:
(A) the things sought are concealed there; or
(B) the person to be arrested committed the offense; and
(3) setting forth the facts known to the affiant through personal knowledge or based on hearsay,
constituting the probable cause.
I.C. § 35-33-5-2(a). A search warrant may be issued upon an affidavit that meets the requirements of
INDIANA CODE § 35-33-5-2 or upon a witness’s sworn testimony without an affidavit, as set forth in INDIANA
CODE § 35-33-5-8(a). A search warrant issued under INDIANA CODE § 35-33-5-8 must also provide the “same
facts required” under INDIANA CODE § 35-33-5-2. I.C. § 35-33-5-8(a).
Court of Appeals of Indiana | Opinion 20A-CR-945 | December 16, 2020 Page 19 of 26
place.’” State v. Spillers, 847 N.E.2d 949, 952-53 (Ind. 2006) (quoting Illinois v.
Gates, 462 U.S. 213, 238 (1983)). “Put differently, the central question in a
probable cause determination is whether the affidavit presents facts, together
with reasonable inferences, demonstrating a sufficient nexus between the
suspected criminal activity and the specific place to be searched.” Carter, 105
N.E.3d at 1128. See also Heuring, 140 N.E.3d at 274 (explaining that a search
warrant affidavit “must link the object of the search with criminal activity”).
[30] “When a magistrate concludes that an affidavit establishes probable cause, we
accord that determination great deference.” Id. On appellate review of an
issuing magistrate’s probable cause determination, our Court “must ensure that
the magistrate had a ‘substantial basis for . . . conclud[ing] that probable cause
existed.” Eaton, 889 N.E.2d at 299 (internal quotation marks and citation
omitted). “A substantial basis requires the reviewing court, with significant
deference to the magistrate’s determination, to focus on whether reasonable
inferences drawn from the totality of the evidence support the determination of
probable cause.” Spillers, 847 N.E.2d at 953. “In determining whether an
affidavit provided probable cause for the issuance of a search warrant, doubtful
cases are to be resolved in favor of upholding the warrant.” Mehring, 884
N.E.2d at 377.
[31] Albrecht argues that the trial court erred by finding that there was probable
cause for the issuance of Search Warrant 857. Specifically, he asserts that
Deputy Anderson did not establish a substantial factual basis upon which the
trial court could have determined that the hard drive in Search Warrant 857
Court of Appeals of Indiana | Opinion 20A-CR-945 | December 16, 2020 Page 20 of 26
would contain evidence of or was linked to a crime. He contends that
“[d]espite the deferential standard given . . . to a magistrate’s probable cause
finding, the record in this matter does not support a finding that there was a
substantial basis for the trial court’s finding of probable cause or that reasonable
inferences drawn from the totality of the evidence support the finding.”
(Albrecht’s Br. 21) (internal quotation marks and citation omitted).
[32] The State argues that Search Warrant 857 was supported by probable cause and
asserts that “[b]ased on the evidence elicited at the hearings on Search Warrant
856 and 857, police had probable cause to believe that the external hard drive
found hidden in the bathroom in Albrecht’s apartment was linked to the
allegations of child molesting raised during R.R.’s forensic interview.” (State’s
Br. 14). We agree with the State.
[33] Here, the police sought the first search warrant, Search Warrant 856, to search
Albrecht’s residence for condoms based on information from the victim, R.R.,
who had alleged that Albrecht had molested him multiple times at Albrecht’s
apartment. Specifically, during a telephonic probable cause hearing,
Investigator Chambers informed the trial court of the various allegations that
R.R. had disclosed during a forensic interview. These allegations included
Albrecht placing his mouth on R.R.’s penis and Albrecht forcing R.R. to place a
condom on Albrecht’s penis and to rub his penis until he ejaculated.
Investigator Chambers told the trial court that, according to R.R., the condoms
that Albrecht had used during the alleged crime were located in Albrecht’s
bathroom.
Court of Appeals of Indiana | Opinion 20A-CR-945 | December 16, 2020 Page 21 of 26
[34] When the officers executed Search Warrant 856, they found condoms in
Albrecht’s bathroom, and, within arm’s reach of the condoms, they found a
hard drive that was wrapped in a plastic bag and hidden in the bathroom.
Deputy Anderson then contacted the trial court and requested the second
warrant, Search Warrant 857, to seize the hard drive and conduct a forensic
examination of it because it “may [have] contain[ed] evidence of the crime of
child molesting pursuant to [Search Warrant 856].” (App. Vol. 2 at 18). The
warrant request for Search Warrant 857 referenced Search Warrant 856, and
the trial court took judicial notice of the testimony and information from Search
Warrant 856.
[35] Giving deference to the issuing magistrate’s determination and considering the
totality of the circumstances—including the testimony and information set forth
during the hearings for Search Warrant 856 and Search Warrant 857; the nature
of the crime being investigated; the proximity of the hard drive to other
evidence relating to the crime; the clandestine storage location of the hard drive;
the nature of the hard drive and the reasonable inference that a bathroom is not
where one usually stores such an item; and the normal and common sense
inferences that perpetrators in child molest cases often photograph or video
themselves committing sexual acts—we conclude that the issuing judge had a
substantial basis for concluding that probable cause existed for the issuance of
Search Warrant 857 and that there was a fair probability that evidence of a
crime may be present on the hard drive. In other words, the totality of these
circumstances, along with reasonable inferences, demonstrated a sufficient
Court of Appeals of Indiana | Opinion 20A-CR-945 | December 16, 2020 Page 22 of 26
nexus between the suspected criminal activity and the hard drive that the police
sought to search. Accordingly, the trial court did not err when it denied
Albrecht’s motion to suppress based on his probable cause challenge.8
[36] Next, we turn to Albrecht’s challenge to the particularity of Search Warrant
857. Our Court has explained the particularity requirement as follows:
The Fourth Amendment to the United States Constitution
forbids general search warrants. A warrant must describe the
place to be searched and the items to be searched for. Although
the warrant must describe with some specificity where officers
are to search and what they are to seize, there is no requirement
that there be an exact description. Nonetheless, the warrant must
be specific enough so that officers can, with reasonable effort,
ascertain the place to be searched and the items to be seized.
This requirement prevents the seizure of one thing under a
warrant describing another. As to what is to be taken, nothing is
left to the discretion of the officer executing the warrant.
Ultimately, the description in a search warrant should be as
particular as circumstances permit. Moreover, to satisfy
the particularity requirement, it is permissible if
a warrant incorporates by reference certain supporting
documents—such as the probable cause affidavit—that
8
Moreover, we note that there is significant empirical data, including law reviews and psychological
journals, linking sex crimes such as child molesting to the use of pornography. Indeed, this research serves as
the basis for the terms of probation for sex offenders. Additionally, courts regularly limit or ban access to the
internet, social media, and other forms of technology because social science research has demonstrated a link
between sex offenders and pornography. See https://smart.ojp.gov/somapi/chapter-2-etiology-adult-sexual-
offending#mult_theo_offe_beha. Because of this demonstrated link, it was not error for the trial court to
reason that the detailed allegations from the hearing on Search Warrant 856 and the additional facts provided
in the hearing on Search Warrant 857 made it likely that the hard drive concealed in the bathroom might
contain incriminating pictures or other evidence of a crime such as child pornography.
Court of Appeals of Indiana | Opinion 20A-CR-945 | December 16, 2020 Page 23 of 26
collectively serve to identify the scope of items that could
properly be seized.
Price v. State, 119 N.E.3d 212, 224 (Ind. Ct. App. 2019) (cleaned up), trans.
denied.
[37] Albrecht argues that Search Warrant 857 did not meet the particularity
requirement because it did “not contain language specifying what type of
content and data” that the police could search within Albrecht’s hard drive and
cell phone. (Albrecht’s Br. 25). On the other hand, the State argues that Search
Warrant 857 was particularized with respect to the evidence to be seized and
that “[t]he warrant [Search Warrant 857] was also tailored to allow officers to
search only Albrecht’s hard drive and his cell phone for digital media related to
the crime of child molesting.” (State’s Br. 14). We agree with the State.
[38] Our review of the record reveals that Search Warrant 857 was not an
impermissible general warrant as it was particularized in terms of the items to
be seized and in terms of the scope of the search to be performed. Search
Warrant 857 specified that the officers sought to seize and search Albrecht’s
hard drive and cell phone, “which . . . may contain evidence of the crime of
child molesting pursuant to [Search Warrant 856] issued under Cause Number
19C01-1908-MC-00856.” (Tr. Vol. 2 at 13). The warrant specified that the
police sought to seize the following items:
An external hard drive, NEMKO-US, Seagate Model No.
SRD00F1, PN Number 1K9AP-6-501, Serial NA7K1WKJ, TTB,
backup plus portable drive located in a clear plastic Ziploc bag
Court of Appeals of Indiana | Opinion 20A-CR-945 | December 16, 2020 Page 24 of 26
with a blue seal found in the bathroom, hidden above the vanity
shelf behind a ledge, located during the search for condoms and
found within close proximity to the condoms.
Also, to seize and search a black ZTE TracFone located in
possession of defendant Nathan Albrecht at the time of his arrest
with a phone number of (317) [XXX-XXXX].
(App. Vol. 2 at 18). In regard to what was to be searched, the warrant set forth
that the police sought “potential seizure and review of digital media” of the
devices. (App. Vol. 2 at 18). Search Warrant 857 also explained that the
analysis of digital media was “an exacting scientific procedure” and would
include “hidden, erased, compressed, password-protected or encrypted files.”
(App. Vol. 2 at 18). Additionally, the warrant specified that the “analysis of
evidence from computer and digital systems commonly require the seizure of all
computer-related items to be processed by a qualified computer expert in a
laboratory” and that “potential intentional concealment of criminal activity
through random ordering and deceptive file names may require the
examination of all stored data.” (App. Vol. 2 at 18).
[39] Our Court has explained that a government’s search of an electronic device is
“[l]ike looking through drawers in a home or office file cabinet for specific files
or letters that are relevant to the investigation” and that “a great deal of other
information [will] . . have been sifted through [the electronic device] to find the
relevant information.” Price, 119 N.E.3d at 226 (citing Carter, 105 N.E.3d at
1130). Because the search of the items listed in Search Warrant 857 were
electronic devices, the description of the items and the description of what was
Court of Appeals of Indiana | Opinion 20A-CR-945 | December 16, 2020 Page 25 of 26
to be seized was sufficiently particularized as the circumstances permitted. See
Price, 119 N.E.3d at 224. Because Search Warrant 857 met the particularity
requirement, the trial court did not err by denying Albrecht’s motion to
suppress based on this challenge.9
[40] Affirmed.
Kirsch, J., and Tavitas, J., concur.
9
Because we conclude that Search Warrant 857 was supported by sufficient probable cause and met the
particularity requirement, Albrecht’s secondary arguments regarding the good faith exception and the
exclusionary rule are moot and will not be addressed.
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