Appeal from the Circuit Court of Kendall County No. 08-CF-462 Honorable Grant S. Wegner and John A. Barsanti, Judges, Presiding.
Justices Zenoff and Hudson concurred in the judgment and opinion.
¶ 1 Following a bench trial, defendant, Kevin Lyons, was convicted of possession of child pornography. He appeals the denial of his motion to suppress evidence in the form of electronic media that his wife gathered from their home and delivered to the police. For the following reasons, we affirm.
¶ 2 BACKGROUND
¶ 3 In January 2009, defendant was indicted on multiple counts of possession of child pornography (720 ILCS 5/11-20.1(a)(6) (West 2008)). In March 2009, he filed a motion to suppress "two boxes of miscellaneous computer floppy disks and CD/DVDs" that his wife, Mona Lyons (Lyons), had brought to the police station in October 2008.
¶ 4 The trial court heard the motion on May 4, 2009. Yorkville police sergeant Larry Hilt testified that, on October 27, 2008, Lyons came to the Yorkville police station. At approximately 3 p.m. that day, he spoke with Lyons, who reported she had concerns about defendant. Lyons related that she had expelled defendant from the family home three days earlier. Defendant had been residing with Lyons, Ka. L., their biological daughter, and Ke. L., Lyons' daughter from a different relationship. Lyons told Hilt that she had expelled defendant from the home because Ka. L. had said that defendant touched her inappropriately. Lyons also recounted to Hilt that, approximately one year before her meeting with Hilt, she caught defendant masturbating in their home while at his computer. Defendant was holding three pairs of Ke. L.'s underwear and saying "something about [Ke. L.'s] tight ass and that she wanted him." Lyons was "fairly far away" from the computer but could see that defendant was viewing an image of a "young girl" on the screen as he masturbated and spoke about Ke. L. Hilt noted that Lyons did not say what she believed was the age of the young girl or whether she believed that the image was pornography. Lyons reported that, after she caught defendant, she told him she wanted him to leave. Defendant replied that he would agree to go to counseling. Defendant continued to reside with Lyons. Lyons told Hilt that she later expelled defendant after Ka. L. made her accusation.
¶ 5 Hilt further testified that, at the end of the interview, Lyons gave him two boxes containing various floppy disks and DVDs (collectively, disks). Lyons informed him that the disks "all belong[ed] to [defendant]" except for one that might have belonged to Ke. L. According to Hilt, Lyons said that "she didn't have an ownership interest in [the] disks." Later in his testimony, however, Hilt clarified that Lyons never used the phrase "ownership interest." According to Hilt, "the only indication that [he] had regarding ownership of the disks" was that Lyons told him they belonged to defendant. Hilt further indicated that Lyons said that the disks "were stored in a metal cabinet in a family[-]type room" in the family home along with defendant's two computers. Defendant "put in a password [on the computers] so she couldn't use [them]." Lyons did not know the password. Regarding the metal cabinet, Lyons said that defendant "usually kept [it] locked" but that she and defendant each had a key. Lyons told Hilt that she did not know what was on the disks, but that she "didn't want them in her house." Hilt took the two boxes of disks "for safekeeping."
¶ 6 According to Hilt, Lyons said that, on October 25, one day after she expelled defendant from the family home, she obtained an order of protection against him. That same day, defendant contacted the police himself and said he wanted to retrieve his computers from the residence. The police then contacted Lyons and told her that she would have to let defendant have his computers. On October 25, defendant returned to the residence and retrieved various computer hardware, including towers, monitors, and keyboards. According to what Lyons related to Hilt, defendant did not ask for or take any of the disks. Later, on December 10, 2008, defendant's attorney faxed to the police a list of property that he wanted returned. The list described, inter alia, disks in a metal cabinet.
¶ 7 Hilt described what he did with the disks following his meeting with Lyons. Hilt put the disks "on the back burner" because he was more concerned with the possibility that defendant sexually molested Ka. L. On November 12, 2008, Hilt began to inspect the contents of the disks. Hilt did not seek a warrant beforehand and had no "information about what was contained on the disks." Hilt further acknowledged that he never informed defendant that the police possessed the disks. Hilt testified as follows as to why he believed he had authority to search the disks:
"Q. Officer, you testified that Mona Lyons gave you consent to search these disks, correct?
A. She did not actually, no.
Q. She did not give you consent?
Q. So you just searched these on your own authority, correct?
Q. Why did you think you could search them?
A. Because it was my impression that she left them at the police department as abandoned property.
Q. Okay. She left them as abandoned property. That's what your belief was?
A. I believe that she gave them to me so they could be searched.
Q. But she never told you that you could search these, correct?
Q. And she told you that these didn't belong to her, they belonged to [defendant], her husband, correct?
On November 12, Hilt searched several of the disks but found nothing illegal. That same day, he gave the disks to Yorkville police officer Jon Helland for assistance in searching them. Two days later, Helland informed Hilt that he had found materials resembling child pornography. On November 18, Hilt and Helland obtained a search warrant that simply described the disks Lyons had given Hilt. After searching more of the disks, Hilt and Helland found further materials resembling child pornography. According to Hilt, none of the data on the disks was protected by password. On December 15, 2008, Hilt and Helland obtained a search warrant for defendant's computer hardware. Meanwhile, on December 14, 2008, defendant, by court ...