State v. Littrell

NOT DESIGNATED FOR PUBLICATION
No. 122,982
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
DALLAS S. LITTRELL,
Appellant.
MEMORANDUM OPINION
Appeal from Wyandotte District Court; JENNIFER L. MYERS, judge. Opinion filed November 19,
2021. Affirmed.
Ryan J. Eddinger, of Kansas Appellate Defender Office, for appellant.
Daniel G. Obermeier, assistant district attorney, Mark A. Dupree Sr., district attorney, and Derek
Schmidt, attorney general, for appellee.
Before SCHROEDER, P.J., WARNER and ISHERWOOD, JJ.
PER CURIAM: An anonymous male (Anonymous) came into possession of a cell
phone containing a video of Dallas S. Littrell involved in sexual acts with a female child
who Anonymous believed was Littrell's relative. Following his bench trial, Littrell was
convicted of two counts of aggravated indecent liberties with a child and one count of
aggravated endangering a child. Littrell now appeals, claiming the district court erred
when it denied his motion to suppress the evidence contained on the cell phone
Anonymous brought to the police department and additional evidence found as a result of
1
a search warrant later issued to search Littrell's home based in part on evidence reflected
in the cell phone video. Upon careful review of the record, we find no error. We affirm.
FACTS
In January 2017, Anonymous came into the Kansas City, Kansas, police
headquarters and requested to speak with a police officer about evidence of possible child
pornography. Detective Cotarino Mendez met with Anonymous.
Anonymous suggested he had a video of an individual he knew as Littrell
performing sexual acts with a female child. Mendez asked Anonymous to show him the
video, which depicted a white male with several tattoos on his body and an adolescent
female child. Anonymous advised he recognized the white male as Littrell because of his
tattoos and suggested the adolescent female was Littrell's relative, K.L. Anonymous also
said Littrell lived on Edith Street.
After meeting with Anonymous, Mendez researched Littrell and confirmed he
lived on Edith Street. Mendez also searched local schools to determine whether a child
named K.L. went to grade school in the general area. Mendez found K.L.'s school and
discovered K.L.'s emergency contact was Littrell. Based on the information he had,
Mendez requested a search warrant for Littrell's residence to look for evidence, including
but not limited to any electronic devices, sex toys, and children's pajamas.
Mendez, armed with the search warrant, went to Littrell's residence along with
other Kansas City, Kansas, police officers. Upon knocking, a male opened the door and
called for Littrell. Littrell came up from the basement wearing only a towel around his
waist, exposing his tattoos, and advised the officers K.L. was in the basement as she
stayed home sick from school that day. Littrell's tattoos matched the man's tattoos from
2
the video. Mendez also noted Littrell's tattoos were in the jail's database, allowing him to
identify the male in the video as Littrell.
During a search of the residence, officers found a loaded handgun under the pillow
where K.L. was lying down. Officers found a picture of K.L. wearing a red pajama top
with embroidery around the wrist and a ring on her finger. The officers took multiple
electronic devices from the house and placed K.L. in police protective custody.
The State initially charged Littrell with sexual exploitation of a child, an off-grid
person felony, and aggravated endangering a child, a severity level 9 person felony.
Shortly after the police conducted their search, Daniel Mott, who claimed to be
Littrell's father, was cleaning out Littrell's bedroom when he found a tablet, a Kodak
camera, and other electronic devices. Mott told Mendez the tablet and the Kodak camera
had videos of Littrell doing sexually explicit things with a child. Mott said the child in the
video was K.L., who was about seven years old. Mott recognized K.L.'s voice in the
video and recognized Littrell's tattoos. Mendez took custody of the items and obtained a
search warrant for permission to open those items.
The tablet and Kodak camera were subsequently searched at the Heart of America
Regional Computer Forensics Laboratory (HARCFL), in Cass County, Missouri. During
a search of the tablet, a video was found of a young female masturbating the suspect,
Littrell, under a camouflage blanket. Mendez recalled seeing a similar camouflage
blanket during his initial search of Littrell's residence. The young female was wearing a
red shirt with embroidery on the wrist and a gold ring on her right hand with a green ink
mark on the outside of her hand. Littrell was identifiable by his stomach and chest
tattoos. Cartoons were playing in the background, and the child was crying in the video.
The HARCFL laboratory determined the video was created in January 2017 in
Wyandotte County.
3
Another video depicted an unidentified child (the child's face was blocked) in
cartoon pajamas and a male with tattoos on his hands and knuckles performing a sex act.
The tattoos on the hands and knuckles in the video matched tattoos on Littrell's hands.
The videos were found in hidden files and renamed and reclassified so they were not
readily recognizable. Mendez testified the same videos were located on multiple devices.
The State filed a first amended complaint and later filed a second amended
complaint, ultimately charging Littrell with two counts of aggravated indecent liberties
with a child, each an off-grid person felony; three counts of sexual exploitation of a child,
a severity level 5 person felony; and aggravated endangering a child, a severity level 9
person felony. Littrell pled not guilty.
Littrell moved to suppress the evidence brought forth by Anonymous which
supported a search warrant being granted to search his house. Littrell argued:
• Mendez' initial warrantless search of the cell phone brought to police by
Anonymous was improper;
• Any evidence following the improper warrantless search should be suppressed;
• Each subsequent search warrant came from the initial cell phone search and
should also be suppressed; and
• Even if the initial cell phone search was valid, the search warrant for Littrell's
residence lacked probable cause.
The State responded, arguing Littrell's motion to suppress should be denied
because private searches are not protected under the Fourth Amendment to the United
States Constitution. The State claimed that by the time Mendez viewed the videos
voluntarily provided to the police by Anonymous and the other electronic items delivered
by Mott, Littrell's "privacy interests in the images were already frustrated." The State
alternatively argued even if Mendez' search exceeded the scope of the private search, the
4
evidence seized under the search warrants should not be suppressed under the good faith
exception. The district court denied Littrell's motion.
Littrell filed multiple motion to suppress any and all evidence obtained from the
other electronic items seized by the officers during the first search of Littrell's house or
those electronic items brought in by Mott. The district court denied his motions to
suppress and his motion for reconsideration.
At Littrell's bench trial, the district court took the matter under advisement to
review the evidence. Before announcing a verdict, the district court noted the State
changed the dates on its second amended complaint, and the State agreed it would file a
third amended complaint simply to reflect the new dates. Littrell was convicted of two
counts of aggravated indecent liberties with a child and one count of aggravated
endangering a child.
Littrell filed a motion for a new trial or, in the alternative, a motion for judgment
of acquittal, again asking that the evidence obtained from the cell phone and search
warrants be suppressed. Littrell also filed a motion for a downward departure based on
his lack of criminal history. The district court denied the motions. Littrell was sentenced
to imprisonment for life with a mandatory minimum sentence of not less than 25 years
followed by lifetime parole for each conviction of aggravated indecent liberties with a
child, and 6 months' imprisonment for the conviction of aggravated endangering a child.
The district court ordered all sentences to run consecutive.
5
ANALYSIS
I. THE DISTRICT COURT PROPERLY DENIED LITTRELL'S MOTION TO SUPPRESS
EVIDENCE.
Littrell argues Mendez unlawfully participated in a warrantless government search
and seizure of the cell phone brought to the police by an anonymous individual. Littrell
contends Mendez should have first inquired as to how the source obtained the cell phone.
The standard of review of a district court's decision on a motion to suppress has
two components. The appellate court reviews the district court's factual findings to
determine whether they are supported by substantial competent evidence. The ultimate
legal conclusion, however, is reviewed using a de novo standard. In reviewing the factual
findings, the appellate court does not reweigh the evidence or assess the credibility of
witnesses. State v. Hanke, 307 Kan. 823, 827, 415 P.3d 966 (2018).
The Fourth Amendment to the United States Constitution provides in relevant
part: "The right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated . . . ." U.S. Const.
amend. IV. Our Supreme Court has interpreted section 15 of the Kansas Constitution Bill
of Rights "as providing protections identical to the Fourth Amendment." State v. Daino,
312 Kan. 390, 396, 475 P.3d 354 (2020). A warrant is generally required to search a cell
phone, so far as it is seized incident to arrest, though "other case-specific exceptions may
still justify a warrantless search of a particular phone." Riley v. California, 573 U.S. 373,
401-02, 134 S. Ct. 2473, 189 L. Ed. 2d 430 (2014).
6
Standing
Littrell argues the district court should have suppressed all evidence seized from
the cell phone and from the subsequent search of Littrell's home as fruit of the poisonous
tree.
The State explains the police did not need a warrant to search the cell phone
because its contents were first viewed by a private individual before he turned it over to
the police and allowed the police to view it. The State points out Littrell's argument
presumes he even had a reasonable expectation of privacy in the cell phone.
A defendant must have standing to challenge the validity of a search under the
Fourth Amendment. To establish standing to challenge a search or seizure, the
challenging party must show he or she had a legitimate expectation of privacy in the
property searched. The State bears the burden to show "the lawfulness of the search and
seizure by a preponderance of the evidence" once standing is established. State v.
Talkington, 301 Kan. 453, 476, 345 P.3d 258 (2015).
The record lacks evidence showing the cell phone brought to the police
department by Anonymous was owned by Littrell. In fact, Littrell argues, "assuming
arguendo"—for the sake of argument—that if the phone belonged to him, then the search
could not have been lawfully conducted without his consent. It is Littrell's burden to
establish the record to support his allegation. See State v. Miller, 308 Kan. 1119, 1157,
427 P.3d 907 (2018). Because Littrell never claimed ownership of the cell phone and
Anonymous had possession of and access to the cell phone, Littrell did not have a
reasonable expectation of privacy in the cell phone or its contents. Thus, we find Littrell
has no standing to challenge what was found on the cell phone voluntarily brought to the
police station.
7
Littrell claimed ownership of the other electronic devices, including the Kodak
camera and tablet, brought to the police department by Mott. The devices were found in
his bedroom, and he had an expectation of privacy as to those devices and their contents.
Merits
The Fourth Amendment's prohibition on unreasonable searches and seizures only
encompasses governmental action and does not apply to a search or seizure by a private
party on his or her own initiative. The Fourth Amendment does, however, protect against
such intrusions if the private party acted as an instrument or agent of the government.
Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 614, 109 S. Ct. 1402, 103 L.
Ed. 2d 639 (1989); see State v. Miesbauer, 232 Kan. 291, 293, 654 P.2d 934 (1982). A
private person can be considered an agent of the government if "the government knew of
and acquiesced in the intrusive conduct, and [the private actor's purpose was] to assist
law enforcement efforts or to further his or her own ends." State v. Brittingham, 296 Kan.
597, 602, 294 P.3d 263 (2013).
Evidence secured by a private individual, even if unreasonable, is constitutionally
admissible in a criminal proceeding against the offended person. U.S. v. Jacobsen, 466
U.S. 109, 113, 104 S. Ct. 1652, 80 L. Ed. 2d 85 (1984).
"It is well-settled that when an individual reveals private information to another, he
assumes the risk that his confidant will reveal that information to the authorities, and if
that occurs the Fourth Amendment does not prohibit governmental use of that
information. Once frustration of the original expectation of privacy occurs, the Fourth
Amendment does not prohibit governmental use of the now-nonprivate information . . . .
The Fourth Amendment is implicated only if the authorities use information with respect
to which the expectation of privacy has not already been frustrated. [Citation omitted.]"
466 U.S. at 117.
8
Additional invasions of an individual's privacy by a government agent "must be tested by
the degree to which [the government agent] exceeded the scope of the private search."
466 U.S. at 115.
A warrantless search is per se unreasonable unless it falls within an exception to
the search warrant requirement. State v. Sanchez-Loredo, 294 Kan. 50, 55, 272 P.3d 34(2012). Again, a governmental search does not violate the Fourth Amendment if the
individual's expectation of privacy has been frustrated and the governmental search does
not exceed the scope of the private search. Jacobsen, 466 U.S. at 115, 117. The State
cites United States v. Starr, 533 F.3d 985, 995 (8th Cir. 2008), explaining when the
government re-examines materials following a private search, the government may
intrude on an individual's privacy expectations without violating the Fourth Amendment,
provided the government intrusion goes no further than the private search.
The search by Mendez did not violate Littrell's Fourth Amendment rights because
Littrell's expectation of privacy was frustrated by Anonymous. The cell phone was
opened by Anonymous without a passcode, and then he showed Mendez a sexually
explicit video. The record also lacks any indication Anonymous acted as an instrument or
agent of the government, and Mendez did not know of or acquiesce in the procurement of
the cell phone or its contents.
The State persuasively explains the same analysis applies to the tablet, Kodak
camera, and other electronic devices Mott provided to law enforcement. Littrell's
expectation of privacy was frustrated when Mott opened and viewed the contents on the
devices. Again, the Fourth Amendment prohibition on searches and seizures only
encompasses governmental action and does not apply to a search or seizure by a private
party on his or her own initiative. Skinner, 489 U.S. at 614. Mott explained to Mendez
who he believed the individuals in the videos were and what they were doing. The record
does not reveal Mendez knew of or acquiesced in Mott obtaining the other electronic
9
items with videos prior to him doing so, or that Mott's purpose was to assist law
enforcement. The district court did not err in denying Littrell's motion to suppress the
evidence contained on the tablet, camera, and other electronic devices.
II. THE SEARCH WARRANT AUTHORIZING THE SEARCH OF LITTRELL'S HOUSE WAS
SUPPORTED BY PROBABLE CAUSE.
Littrell argues Mendez failed to present an affidavit with sufficient facts to support
a neutral magistrate to make a probable cause determination that evidence of illicit
behavior would likely be found in Littrell's home. Littrell contends Mendez failed to
independently establish the veracity and reliability of his anonymous source and failed to
establish a nexus between the video Mendez viewed and Littrell's residence.
The State argues an ordinary person of reasonable caution would believe evidence
of sexual abuse would be located in Littrell's home.
"'When an affidavit in support of an application for search warrant is challenged,
the task of the reviewing court is to ensure that the issuing magistrate had a substantial
basis for concluding probable cause existed. This standard is inherently deferential. It
does not demand that the reviewing court determine whether, as a matter of law, probable
cause existed; rather, the standard translates to whether the affidavit provided a
substantial basis for the magistrate's determination that there is a fair probability that
evidence will be found in the place to be searched. Because the reviewing court is able to
evaluate the necessarily undisputed content of an affidavit as well as the issuing
magistrate, the reviewing court may perform its own evaluation of the affidavit's
sufficiency under this deferential standard.' [Citation omitted.]" State v. Powell, 299 Kan.
690, 695-96, 325 P.3d 1162 (2014).
To determine whether an affidavit provides probable cause, the totality of the
circumstances must be considered to make "'a practical, common-sense decision whether
10
. . . there is a fair probability that contraband or evidence of a crime will be found in a
particular place.'" 299 Kan. at 695.
The affidavit presented by Mendez in support of obtaining the search warrant for
Littrell's house stated an anonymous male provided the police department with a video of
Littrell performing sexual acts with a seven-year-old relative. The affidavit specifically
stated:
"[The anonymous male] showed me a video of the white male (Dallas Littrell)
with several tattoos on his body with a young adolescent child (female) who had a purple
in color strap-on dildo fastened to her. The young female was putting the dildo in Dallas'
rectum while he was filming her. The child's face is never shown but the child was
wearing what looked like comic book pajamas. This incident was taking place in a
bedroom on a bed.
"The anonymous male advised that the girl in the video is [Dallas'] [relative]]. He
advised that he knows the male is Dallas because he recognizes Dallas' tattoos. I later
viewed a Facebook profile for Dallas Littrell, and observed a star tattoo in a photograph
which appeared to match the star tattoo observed in the video. Additionally, during the
video, a view of the male's face comes onto screen for a brief moment. When I observed
the photograph on Facebook, the male seen in the video appears to be Dallas Littrell.
Additionally, I reviewed DMV records for Dallas Littrell. I viewed his Driver's License
photo, which appears to match the photos observed on Facebook, and appears to match
the male observed in the video.
"The anonymous male provided additional information regarding where Littrell
resides. He stated Littrell currently lives . . . [on] Edith [Street], Kansas City, Wyandotte
County, Kansas. Littrell's mother lives at that residence as well. In reviewing DMV
records, a different address on Edith was listed as Littrell's address. I called the school the
relative is currently enrolled at, and confirmed that her address is listed [on] Edith.
Additionally, I was informed that she was not at school today, and was called in by
Littrell as ill. I also confirmed that Littrell . . . is listed as the first contact person in her
school records."
11
Based on the above information contained in the affidavit, the district judge
found probable cause to issue the search warrant for Mendez and other members of the
Kansas City, Kansas, police department to search Littrell's house.
We evaluate the affidavit's sufficiency under a deferential standard to ensure the
district judge had a substantial basis for concluding probable cause existed. See Powell,
299 Kan. at 695-96. Mendez' affidavit provided a substantial basis for the district judge to
determine the tattooed man in the video was Littrell. Mendez watched the video and
specifically noted a star tattoo on the man in the video that matched a star tattoo from one
of Littrell's Facebook pictures. Mendez also briefly saw the male's face in the video
which also matched pictures on Littrell's Facebook profile and Littrell's DMV records.
Mendez confirmed where Littrell lived with his relative, providing the district judge a
substantial basis to determine there was a fair probability Littrell not only performed
sexually explicit conduct with his young relative, but also there was a fair probability
evidence would be found in Littrell's house where he lived with his relative. The search
warrant specifically authorized the seizure of any electronic devices that could contain
evidence as well as children's pajamas and sex toys. Based on the fact there was a video
recording, there was a substantial basis to conclude electronic devices would be found in
Littrell's home. And based on the fact the video contained images of a sex toy and a child
wearing pajamas, there was a substantial basis to conclude sex toys and children's
pajamas would also be found in the home.
Common sense and prior cases tell us a person interested in child pornography is
likely to keep it in the privacy of the person's home. United States v. Riccardi; 405 F.3d
852, 861 (10th Cir. 2005); United States v. Potts, 559 F. Supp. 2d. 1162, 1171 (D. Kan.
2008). In granting the search warrant, the district court appropriately determined there
was a fair probability, based on the affidavit, evidence of the crime of sexual exploitation
of a child could be found in Littrell's house.
12
Because we find there was probable cause to issue the search warrant, we decline
to address whether the good-faith exception applies. We affirm.
Affirmed.
13