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Evidence properly admitted at internet sex crimes trial

Appellant’s motion to suppress his sexually explicit internet chats with a police officer, who was posing as a 13-year-old girl, was correctly denied. The electronic communications were not obtained in violation of the wiretap act.

Further, appellant was not in custody when he was interviewed at a mobile police command post. As a result, his statements were admissible despite a lack of Miranda warnings.

Internet chats

Payne, a police investigator, posed as a 13-year-old girl named “Lilly” on Omegle, a website that pairs randomly selected anonymous strangers to chat with each other. Appellant was paired with Lilly. Appellant engaged in sexually explicit conversation with Lilly and sent her a sexually explicit video of himself.

Based on details appellant revealed in the chats and research on Facebook, Payne was able to identify appellant. Police obtained a search warrant for appellant’s home, executed the warrant and asked appellant to enter a mobile police command post at the scene.

Payne explained that appellant was not under arrest, said he was free to leave at any time and showed him how to operate the command post door.

Payne began interviewing appellant, who admitted he was on the Omegle site, and eventually admitted to chatting with Lilly. After about 11 minutes of being interviewed, appellant asked for a lawyer. Payne stopped the questioning and told appellant he had five warrants for his arrest.

The circuit court denied appellant’s motions to suppress his internet communications with Lilly and the statements he made in the mobile command center.

Appellant was charged with five sex crimes and convicted of two counts of using a communications system to procure a minor and one count of using a communications system to solicit a child believed to be less than 15 years old, when the accused is seven or more years older.

Omegle chats

Appellant argues that Payne violated the wiretap act by not getting a warrant before intercepting his messages intended for Lilly. Under Code § 19.2-62, anyone who intentionally intercepts an electronic communication is guilty of a felony, and the intercepted communication is inadmissible at trial.

“However, Code § 19.2-62 provides a powerful ‘consent’ exception from its coverage. Under the exception, it is not a criminal offense ‘for a person to intercept a wire, electronic or oral communication[] where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception.” Code § 19.2-62(B)(2) (emphasis added).

“Pursuant to this statute, therefore, a person does not criminally violate the wiretap act by acquiring an electronic communication when that person is a party to the communication. …

“Appellant contends that Payne was not a party to the Omegle conversations because the chats were between appellant and ‘the fictitious persona Lilly.’ He argues that Payne ‘interceded as a third party and intercepted messages transmitted by the [appellant] intended for Lilly,’ and thereby unlawfully acquired the contents of the Omegle chats. We disagree.

“Code § 19.2-61 specifically defines the term ‘person’ as used in the wiretap act as ‘any employee or agent of the Commonwealth or a political subdivision thereof, and any individual, partnership, association, joint stock company, trust or corporation[.]’

“Although certain corporate entities are included in the definition of ‘person,’ the definition does not provide that a ‘persona’ or virtual alternate identity is considered a ‘person.’ If the General Assembly intended that personas or fictitious identities were ‘persons’ under the wiretap act, it could have used express language in the definition of the term. …

“Because Lilly is not a ‘person’ under the statute, she was not a party to the Omegle chats with appellant. … Hence, Payne was a ‘person who was a party to the communication[s].’ … As such, he was protected by the consent exception and therefore did not criminally violate Code § 19.2-62(A) by recording the contents of the Omegle chats. …

“Therefore, the court did not err by denying appellant’s motion to suppress the contents of those chats.”

Command center

“Appellant contends that the court erred by denying his motion to suppress the statements he made in response to police questioning in the mobile command post. He argues that despite Payne’s assurances that he was free to leave, he was actually in police custody and therefore should have been advised of his Miranda rights before the questioning.

During the suppression hearing, “appellant’s counsel conceded … appellant ‘might have felt free to leave or a reasonable person might have felt free to leave when [the police] say that you can.’

“After making that concession, appellant’s counsel modified his argument and contended that appellant was in custody after the police announced that they had five arrest warrants for him. He never reasserted his original argument that appellant was in custody for the entire time he was in the command post.

“The court ultimately ruled that appellant was not subjected to custodial interrogation prior to the police telling him, ‘[W]e do have five arrest warrants for you.’ Appellant’s counsel then made the general statement, ‘I just note that I continue my objection to it.’

“However, that objection was not specific enough to preserve counsel’s earlier argument, later modified and abandoned, that appellant was in custody the entire time he was in the command post. Rule 5A:18 requires that ‘an objection [be] stated with reasonable certainty at the time of the ruling.’ …

“[B]y admitting that a reasonable person would have felt free to leave the mobile command post, appellant waived his argument that he was in custody prior to the police announcing that they had five arrest warrants for him. Therefore, he may not now argue on appeal that he was subjected to custodial interrogation prior to that point.”


Pick v. Commonwealth, Record No. 1945-19-2, Jan. 12, 2021. CAV (O’Brien) from Hanover County Cir. Ct. (Harris). Vaughan C. Jones for appellant, Virginia B. Thiesen for appellee. VLW 021-7-006, 14 pp. Published.

VLW 021-7-006

Virginia Lawyers Weekly