TN: Illegal warrantless search of cell phone was harmless error on this record

This is a second appeal from the Vanderbilt dorm rape cases. (The first is here.) The search warrant for defendant’s room and person allowed for seizure of his cell phone, but it wasn’t there. The police found it later and searched it without a separate warrant, using 23 images at trial. On the totality of the evidence, the illegal search was harmless error in light of the proof at trial. State v. Banks, 2019 Tenn. Crim. App. LEXIS 626 (Oct. 4, 2019):

Here, the record makes clear the trial court’s error in this instance was harmless. Though the State presented 23 images illegally recovered from the defendant’s cell phone to the jury at trial, the record is replete with additional, significant evidence supporting the defendant’s convictions. Specifically, in reviewing surveillance footage from Gillette Hall, Captain Harville, Detective Mayo, Detective Gish, McKenzie, and the defendant identified the defendant entering and exiting Room 213 with the unconscious victim on June 23, 2013, between 2:38 a.m. and 3:10 a.m. As it relates to the conviction for aggravated rape, a video recovered from Mr. Quinzio’s laptop showed the defendant squeezing a water bottle that was inserted into the victim’s anus. The video was sent from Vandenburg’s cell phone at approximately 2:40 a.m. At trial, McKenzie and the defendant detailed the defendant’s actions as seen on the video. McKenzie testified the defendant “reached over and squeezed the bottle” after Batey inserted it into the victim’s anus, and the defendant, after viewing the video, admitted to doing the same. Regarding the conviction for aggravated sexual battery, Detective Gish described an image recovered from Batey’s cell phone which showed the defendant’s “left thumb in [the victim’s] vagina, pulling her vagina apart.” McKenzie echoed the testimony of Detective Gish by stating the defendant “spread” the victim’s vagina apart as captured in the image. The defendant also admitted Vandenburg told him to “spread” the victim’s vagina, and he did so. The underlying evidence supporting the defendant’s convictions did not rest solely on the images recovered from the defendant’s cell phone. Rather, after viewing a video sent from Vandenburg’s cell phone and an image obtained from Batey’s cell phone, the defendant and McKenzie identified the defendant’s sexual abuse of the victim, which included aggravated rape and aggravated sexual battery. Accordingly, nothing in the record suggests the images recovered from the defendant’s cell phone contributed to the verdict returned by the jury, and the defendant is not entitled to relief as to this issue.