State v. Romans

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NOT DESIGNATED FOR PUBLICATION

No. 114,862

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

PATRICK L. ROMANS,
Appellant.


MEMORANDUM OPINION

Appeal from Greenwood District Court; JANETTE L. SATTERFIELD, judge. Opinion filed June 9,
2017. Affirmed.

Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant.

Amanda G. Voth, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.

Before GARDNER, P.J., PIERRON, J., and BURGESS, S.J.

Per Curiam: Patrick L. Romans appeals his convictions for 17 counts of sexual
exploitation of a child, arguing the district court erred in denying his motion to suppress
evidence.

FACTUAL AND PROCEDURAL BACKGROUND

Romans worked as a law enforcement officer for the Greenwood County Sheriff's
Office from 2003 to 2012. On January 26, 2012, Romans was placed on administrative
leave due to an internal investigation, and he resigned on February 24, 2012. On February
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25, 2012, Deputy Josh Nelson was asked to clean out Romans' former office and to look
for items relating to open cases that he would be taking over. Deputy Nelson looked for
items he believed to be Romans' personal belongings. He found a coffee mug, some
insurance documents, and birth certificates for Romans' children, and the deputy took the
items to Romans' home. Deputy Nelson asked Romans whether there were any other
items he wanted from his office. Romans stated there was a cell phone charger for his
personal cell phone. Deputy Nelson brought Romans the charger. Thereafter, Deputy
Nelson believed Romans had everything he wanted from the office.

After returning from Romans' home, Deputy Nelson again went into Romans'
former office. He looked for paperwork related to open cases, documents that needed to
be filed or destroyed, and bills or other items that needed to be turned over to the sheriff.
Deputy Nelson found a rape kit sitting on a shelf and drug paraphernalia in a drawer. He
also found a black portfolio emblazoned with the Kansas Narcotics Officers Association
logo next to the computer monitor. Inside the portfolio, the deputy found an incident
report from a pending rape case Romans had been investigating. He also found some CD-
R disks, yellow notebook paper, and notes behind the incident report. Deputy Nelson put
one of the CD-R discs into the computer to see if it contained anything relating to an
open case. A window popped up automatically, which showed thumbnail images of
unclothed adolescent girls. Deputy Nelson then called the sheriff and turned over the
items.

Agent Katie Whisman of the Kansas Bureau of Investigation became involved in
the investigation. She spoke to Romans' ex-wife, Brooke Romans. Brooke indicated she
had previously located pornography on a personal computer used by Romans, including
images of a female who appeared to be 15 or 16 years old. Whisman asked whether she
could search the computer, and Brooke consented. Brooke later contacted Whisman
indicating she wanted the computer back to retrieve personal photos she had stored on it.
Whisman interpreted this as a withdrawal of consent and obtained a warrant to search the
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computer. A search of the computer revealed images of children engaged in sexually
explicit conduct.

The State charged Romans with 20 counts of sexual exploitation of a child. Prior
to trial, Romans filed a motion to suppress all evidence obtained as a result of the search
of his former office and portfolio. The district court denied his motion, finding Romans
did not have an objectively reasonable expectation of privacy. The district court found the
search of the office and portfolio was not investigatory in nature and was reasonable
under the circumstances. The case proceeded to a bench trial on stipulated facts. The
district court found Romans guilty of 17 counts of sexual exploitation of a child, and he
was sentenced to a total controlling sentence of 32 months' imprisonment. Romans timely
filed a notice of appeal.

ANALYSIS

Romans argues the search of the black portfolio found in his former office was
unlawful, thereby invalidating all evidence subsequently obtained as a result thereof. In
reviewing the granting or denial of a motion to suppress evidence, the court determines
whether the factual findings underlying the district court's suppression decision are
supported by a substantial competent evidence standard. The appellate courts do not
reweigh the evidence or reassess the credibility of the witnesses. The ultimate legal
conclusion drawn from those factual findings is reviewed under a de novo standard. State
v. Carlton, 297 Kan. 642, 645, 304 P.3d 323 (2013).

Romans lacked an objectively reasonable expectation of privacy.

To establish a legitimate expectation of privacy, a defendant must demonstrate a
subjective expectation of privacy in the area searched, and the expectation must be
objectively reasonable. State v. Robinson, 293 Kan. 1002, 1014, 270 P.3d 1183 (2012).
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Here, the portfolio was found in Romans' former office. Romans was no longer an
employee of the sheriff's office and therefore no longer had access or control over the
office. Romans had not attempted to remove the portfolio prior to his resignation. When
Deputy Nelson met with Romans he indicated he had a cell phone charger in his office
but did not mention the portfolio. The portfolio was kept out in the open next to the
computer monitor and was emblazoned with a law enforcement-related logo. There is
nothing in the record suggesting there were any markings on the portfolio indicating it
belonged to Romans. Inside the portfolio were various work-related items, including an
incident report from an ongoing rape case. The portfolio was clearly being used for work
purposes. Although it appears Romans had a subjective expectation of privacy in the
portfolio, his expectation is not objectively reasonable.

The evidence obtained from Romans' portfolio was not the result of an investigatory
search.

Even if Romans had a reasonable expectation of privacy to the portfolio, the
search was for a noninvestigatory, work-related purpose and was therefore reasonable.

"[P]ublic employer intrusions on the constitutionally protected privacy interests
of government employees for noninvestigatory, work-related purposes, as well as for
investigations of work-related misconduct, should be judged by the standard of
reasonableness under all the circumstances. Under this reasonableness standard, both the
inception and the scope of the intrusion must be reasonable." O'Connor v. Ortega, 480
U.S. 709, 725-26, 107 S. Ct. 1492, 94 L. Ed. 2d 714 (1987).

In essence, this is a case of an employer cleaning out the office of a former
employee. Deputy Nelson was looking for documents relating to ongoing department
investigations. The search was noninvestigatory in nature and was being done for work-
related purposes. Accordingly, the intrusion was reasonable at its inception. See
O'Connor, 480 U.S. at 726 ("Ordinarily, a search of an employee's office by a supervisor
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will be 'justified at its inception' when . . . the search is necessary for a noninvestigatory
work-related purpose such as to retrieve a needed file.").

The search will be permissible in scope when the measures adopted are reasonably
related to the objectives of the search and are not excessively intrusive. O'Connor, 480
U.S. at 726. The portfolio was emblazoned with a law enforcement-related logo and was
kept near Romans' computer. Based on its size, location, appearance, and intended use, it
was objectively reasonable to believe the portfolio could contain documents related to
ongoing department investigations. When Deputy Nelson opened the portfolio he found
an incident report related to an ongoing rape case. The deputy then decided to check the
contents of one of the CD-R disks to determine if it was also related to an ongoing
investigation. When he inserted the disk into the computer a window popped up
automatically revealing thumbnail images. Deputy Nelson did not perform any further
search of the disk, and he then turned over the contents of the portfolio to the sheriff.

The intrusion was minimal. Based on finding the incident report in the portfolio, it
was reasonable for Deputy Nelson to check to see if the disks were also related to
ongoing investigations; thus, the scope of the investigation was reasonable. The district
court properly denied Romans' motion to suppress evidence.

Affirmed.