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Docket No. 98070-Agenda 6-March 2005.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee v. RUDY PHILLIPS, Appellant.

Opinion filed June 3, 2005.

JUSTICE GARMAN delivered the opinion of the court:

Defendant, Rudy Phillips, was arrested after a technician foundchild pornography on defendant's computer and informed the police.Defendant made incriminating statements and consented to a searchof his home, which found more apparent child pornography. He wascharged by indictment with one count of possessing, with intent todisseminate, a picture of a child engaged in sexual intercourse (720ILCS 5/11-20.1(a)(1)(i), (a)(2) (West 2000)), and two counts ofpossessing, with intent to disseminate, a picture of a child engaged inoral sex (720 ILCS 5/11-20.1(a)(1)(ii), (a)(2) (West 2000)).Defendant filed a motion to quash arrest and suppress evidence, whichwas denied. After a bench trial in the circuit court of KankakeeCounty, he was convicted of all three counts. Defendant appealed,claiming the child pornography statute is unconstitutionally overbroad,that the indictment was defective, that the circuit court erred indenying his motion to quash arrest and suppress evidence, and that hewas not proved guilty beyond a reasonable doubt. The appellate courtaffirmed, with one justice dissenting. 346 Ill. App. 3d 487. Defendantsought and obtained leave to appeal to this court. See 177 Ill. 2d R.315. He has abandoned his constitutional attack on the statute, butrenews his other claims.

BACKGROUND

On October 11, 2001, defendant took his computer to FifthAvenue Video in Kankakee to have it repaired. Defendant hadoriginally purchased the computer from John Paris, the proprietor ofFifth Avenue Video. On the morning of October 12, after repairing thecomputer, Paris tested it by playing an MPG file he accessed throughthe My Documents menu on the Windows 98 desktop. The file provedto be a short video depicting what appeared to be a young girlperforming oral sex on a man, with a woman looking on. Parisimmediately called Detective Buhrmester of the Bradley policedepartment, because he was an acquaintance. He told Buhrmesterwhat he had seen, and asked him to come and look at it.

When Buhrmester arrived, Paris played the video for him.Buhrmester agreed it was child pornography and informed otherofficers. At about 10 a.m. Detectives Coy and Morris arrived, andParis played the video for them. There is conflicting testimonyregarding whether Coy and Morris proceeded to examine other fileson defendant's computer while they were at Fifth Avenue Video. Theofficers decided to place Fifth Avenue Video under surveillance, andasked Paris to contact them by cell phone when defendant returned topick up his computer. Paris did so. The officers stopped defendantoutside the store and, after he identified himself and told them thecomputer was his, they arrested him and seized his computer.

At the police station defendant received Miranda warnings andagreed to speak with the officers. Morris testified defendant said hedid not produce child pornography, but was just a collector whoexchanged child pornography over the Internet, and that he wouldpost child pornography on Web sites in order to become a member.Defendant also admitted there was child pornography at his home. Heconsented in writing to a search of his home.

At defendant's home, he handed the officers two pictures thatappeared to have been downloaded and printed from the Internet.Each picture was sexually explicit and appeared to depict a preteengirl. Defendant next showed the officers a box of 3- by 5-inchcomputer disks and told them the disks contained child pornography.The officers loaded several of the disks into a laptop computerbrought for that purpose, and viewed numerous pictures of whatappeared to be children engaged in vaginal, anal, and oral sex. Theofficers seized the two printed pictures, over 100 disks, and variouspieces of computer equipment. Defendant was later indicted.

Defendant filed a motion to quash arrest and suppress evidence,in which he argued the warrantless search of his computer was illegalbecause Paris lacked authority to consent to a search of his computer.After a hearing in which Paris and Morris testified to the factsrecounted above, the court denied the motion. The court found Paris'initial search of the file on defendant's computer was the act of aprivate citizen, not an agent of law enforcement. The court furtherfound that the police viewed the same video Paris viewed, and bydoing so they acquired probable cause to arrest defendant. The courtfound the officers had probably not viewed any items on defendant'scomputer other than the video Paris viewed.

Defendant then filed a motion to reconsider the denial of hismotion to suppress. The court issued a written ruling in which it againheld the police could legally arrest defendant after viewing the videoParis viewed. However, the court reversed its finding that the policehad not viewed any other files. The court accordingly barred the Statefrom using at trial any file obtained from defendant's computer otherthan the one Paris had discovered.

At trial, Paris and Morris again testified to the facts recountedabove. The State introduced the two printed pictures defendant turnedover to police, as well as a number of pictures printed from the disksseized from defendant's home. Finally the court admitted the disks,and viewed a small sample of the pictures that were stored on thedisks but had not been printed. Each of the pictures from the disksappeared to depict a child engaged in a sex act, including sexualintercourse and performing or receiving oral sex.

The court made a number of express findings before announcingits verdict. First, the court found the police did not "exceed the scopeof the initial search by the private citizen." The court then found thepictures admitted at trial depicted real children under the age of 18.Regarding the element of intent to disseminate the pictures, the courtnoted there were duplicate pictures in evidence, which by statutecreates a rebuttable presumption of intent. However, the court thenstated that, "[w]ithout considering the two instances of duplicate[sic]," it found Morris' testimony that defendant admitted heexchanged child pornography over the Internet to be "very credible."The court then found the State had proven possession of childpornography with intent to disseminate as to all three counts. Thecourt later sentenced defendant to concurrent terms of 4