Quantcast
Home / Opinion Digests / Criminal Practice / Criminal Practice – Search & Seizure – First Impression – Thumb Drive – Private Search – Scope Exceeded

Criminal Practice – Search & Seizure – First Impression – Thumb Drive – Private Search – Scope Exceeded

State v. Terrell (Lawyers Weekly No. 011-052-18, 53 pp.) (Rick Elmore, J.) (Donna Stroud, J., concurring in part & dissenting in part) Appealed from Onslow County Superior Court (Beecher Gray, J.) N.C. App.

Holding: On defendant’s thumb drive, his girlfriend found a photo of her nine-year-old granddaughter sleeping without a shirt on, so the girlfriend turned the thumb drive over to the police. Since the police detective who searched the thumb drive was not virtually certain that the thumb drive contained only contraband or that his inspection of its data would not reveal anything more than the girlfriend had already told him, the detective’s discovery of other nude photos of minor girls on the thumb drive is not protected by the private-search doctrine.

We reverse the trial court’s conclusion that the detective’s warrantless search was lawful under the private-search doctrine. However, because the record is insufficient for us to determine whether the trial court would have held that the subsequent search warrant was supported by probable cause without the tainted evidence, we remand this matter to the trial court to determine the validity of the search warrant.

In United States v. Jacobsen, 466 U.S. 109 (1984), a Federal Express employee opened and unpacked a damaged container and found zip-lock bags of white powder. The employee repacked the container and called the Drug Enforcement Agency. The DEA agent unpacked the container to find the bags of white powder, which turned out to be cocaine.

The U.S. Supreme Court held that the DEA agent’s warrantless search did not violate the Fourth Amendment because “there was a virtual certainty that nothing else of significance was in the package and that a manual inspection of the tube and its contents would not tell [the DEA agent] anything more than he had already been told” by the Fed Ex employee who had conducted the private search.

In State v. Robinson, 187 N.C. App. 795, 653 S.E.2d 889 (2007), we applied Jacobsen to the police search of a videotape. The officer’s videotape search confirmed what the private actor revealed to him: that the videotape contained footage of the defendant engaging in sexual activities with two minors.

However, in this case, we decline to extend the container analogy we applied to the videotape search in Robinson; instead, we hold that a thumb drive should not be viewed as a single container for Fourth Amendment purposes.

We further hold that the detective’s warrantless search was not authorized under the private-search doctrine, since the court’s findings establish that the detective did not conduct his warrantless search with the requisite “virtual certainty” required under Jacobsen that the thumb drive contained only contraband, or that his inspection of its data would not reveal anything more than the girlfriend already told him.

An individual has reasonable and substantial privacy interests in the digital information stored on a thumb drive. North Carolina courts have neither applied the private-search doctrine to a police search for digital data on a privately searched electronic storage device, nor defined the precise scope of a search for digital data on an electronic storage device, which bears directly on the extent to which a private search through a thumb drive may frustrate an individual’s privacy interests in all of its digital data.

One thumb drive may store vastly more and different types of private information than one videotape. Data stored on a thumb drive may be concealed among an unpredictable number of closed digital file folders, which may be further concealed within unpredictable layers of nested subfolders. A thumb drive search that may require navigating through numerous closed file folders and subfolders is significantly more invasive and complex than a search of viewing one continuous stream of footage on a videotape.

We hold that an electronic storage device should not be viewed as a single container for Fourth Amendment purposes. The trial court therefore erred by concluding that the girlfriend’s thumb drive search effectively frustrated defendant’s expectation of privacy in the contents of the entire device. The trial court further erred by concluding that the detective’s warrantless search did not violate defendant’s Fourth Amendment rights.

The trial court’s order contains no findings on the issue of whether it would have found the evidence seized pursuant to the warrant admissible absent the tainted allegations acquired by the detective’s unlawful thumb drive search. We reverse the trial court’s ruling on defendant’s suppression motion and remand this matter to the trial court to determine, in the first instance, whether probable cause existed to issue the search warrant after excising from the detective’s warrant application the tainted evidence arising from his unlawful search.

Concurrence & Dissent

(Stroud, J.) The detective did not go on a fishing expedition. The girlfriend did not tell him in which folder she found the image of her granddaughter; in fact, she seemed not to realize there was more than one folder on the thumb drive.

The detective searched the thumb drive until he found the granddaughter image and no further. In the process, he found two other photos of unclothed minors. Using that information, the detective obtained a warrant to search the thumb drive, and a more in-depth search revealed 10 more such images.

The majority places law enforcement officers in a Catch 22 of being unable to confirm the private searcher’s report without a search warrant because of the risk of accidental discovery of an image other than the one reported but being unable to get a search warrant without confirming the report.

The granddaughter image and the two photos the detective found while searching for the granddaughter image fall within the scope of the private search doctrine, and they were properly not suppressed by the trial court. Furthermore, those three images would support probable cause for the other ten images, although I agree with the majority that is a determination the trial court must ultimately make for itself.

 

Leave a Reply

Your email address will not be published. Required fields are marked *

*