The warrantless search of a man’s thumb drive was unlawful under the private-search doctrine because the detective lacked “virtual certainty” that it contained only contraband and that his inspection would reveal only what he had already been told was on the drive, the North Carolina Court of Appeals has ruled.
In State v. Terrell, the divided court declined to consider a thumb drive a “single container” for Fourth Amendment purposes, setting precedent for the application of the private-search doctrine to an after-occurring police search for digital contraband on a privately searched electronic storage device.
Simply put, opening and searching a thumb drive, with its folders and its “unpredictable layers of nested subfolders,” is not like opening and searching a purse.
Penning the court’s opinion, Judge Rick Elmore wrote that the majority was guided by the U.S. Supreme Court’s emphasis in Riley v. California regarding “tremendous” privacy interests in searches of digital data on a cellphone and its express rejection of the analogy that a cellphone should be viewed as a single container in search-incident-to-arrest cases.
Stumbled across it
According to court documents, defendant James Terrell’s longtime girlfriend, Jessica Jones, was perusing three of Terrell’s thumb drives while he was away at work. Searching for information about one of Terrell’s former housekeepers, Jones instead came across a photo of her 9-year-old granddaughter, shirtless and asleep. Jones, on the advice of her preacher, turned the thumb drive over to the Onslow County Sheriff’s Department.
Detective Eric Bailey interviewed Jones and her daughter, and decided to verify their report by viewing the contents of the thumb drive. While browsing the digital data for the photo, Bailey discovered more photos of fully or partially nude “minor females posing in sexual positions,” photos that Jones had not seen or reported. In May 2014, Bailey obtained a search warrant. A forensic examination of the device yielded 10 other incriminating images — all of which had been deleted — located in a different subfolder than Jones’s granddaughter’s photo.
Terrell was indicted for possession of a photographic image from peeping, four counts of second-degree sexual exploitation of a minor, and 12 counts of third-degree sexual exploitation of a minor.
Three counts of second-degree exploitation were dropped, but the rest proceeded to trial.
Fruit of a poisonous see
Before trial, Terrell moved to suppress the contents of the thumb drive, arguing that the search warrant was based on illegally obtained evidence that Bailey saw during his unlawful search.
He argued that the search was not protected by the private-search doctrine because it unconstitutionally exceeded the scope of Jones’s previous search. Jones’s search, Terrell contended, only revealed one image of her granddaughter, while Bailey’s warrantless search revealed images of nude minors that Jones never viewed.
The motion was denied, the images allowed into evidence, and Terrell eventually convicted of all charges and sentenced to 12 consecutive five-to-15 month prison terms.
Just being thorough
On appeal, the state countered Terrell’s arguments by citing the appeals court’s 2007 decision in State v. Robinson, and contending that Bailey’s search was not excessive in scope, because he merely examined the thumb drive ‘more thoroughly’ than Jones did. In Robinson, the court held that an officer who viewed all the footage of a videotape did not exceed the scope of a private search through only portions of the footage because the officer examined the “same materials … more thoroughly” than did the private party.
The state further contended that it was not excessive in scope because Bailey had “virtual certainty” what contraband the thumb drive contained. It cited United States v. Jacobsen, which in 1984 established the private-search exception to the warrant requirement, “instructing that the legality of a follow-up police search is limited by the degree it remains within the scope of the prior private search.”
It also cited to Rann v. Atchison, a 2012 case out of the 7th U.S. Circuit Court of Appeals holding that an officer did not exceed the scope of a private search by viewing more files on a memory card and zip drive because they were “substantially certain” those files contained only child pornography.
Technology changes everything
Regarding the Robinson argument, Elmore wrote that a private actor viewing portions of a videotape is inapplicable to searches for digital data on electronic storage devices. While the “contents” of a videotape can be revealed merely by playing the tape and observing its footage, a thumb drive can store “vastly more and different” types of private information than can a videotape. Further, a thumb drive search may require navigating through numerous files, folders, and subfolders, a search “more invasive and complex” than watching a continuously streaming videotape.
“We therefore decline to extend the container analogy we applied in the videotape search in Robinson and hold a thumb drive should not be viewed as a single container for Fourth Amendment purposes,” Elmore wrote.
The court also found that Bailey’s warrantless search was not authorized under the private-search doctrine since he did not conduct the search with the “virtual certainty” required by Jacobsen that the thumb drive contained only contraband, or that his inspection would not reveal more than Jones already told him.
According to the private-search doctrine, an officer may warrantlessly duplicate a private search so that he may observe, first-hand, incriminating information that a private searcher has revealed to him. Fourth Amendment protection extends, the rationale goes, only to governmental action.
As such, a search exposing information already revealed by a private search is not a “search” under the Fourth Amendment. But where a warrantless police search uncovers previously unrevealed information, the court wrote, police are prohibited from using the information.
In Jacobsen, FedEx employees opened a damaged package and learned that it contained bags of white powder. Drug Enforcement Agents removed the plastic bags and tested the contents, determining that the powder was cocaine. The court held that the agent’s search did not enable him to learn nothing that the private search didn’t reveal, and that he was authorized to search the box’s contents because he had “virtual certainty” that the package contained nothing else of significance.
There was no such virtual certainty here, Elmore noted.
Despite its findings of a Fourth Amendment violation, the appeals court ruled that because the trial court’s record is insufficient to determine whether it would have found that the search warrant was supported by probable cause without the tainted evidence, it is remanding the matter to determine the validity of the search warrant.
If the information obtained from Bailey’s warrantless search was stricken — that is, had he not come across the additional images — would probable cause still exist for a search warrant?
That’s what the trial court must now consider.
In her dissent, Judge Donna Stroud wrote that Bailey wasn’t on a “fishing expedition,” stating that she generally agrees that a thumb drive is not a single container, but that the majority ignores that Bailey tried to limit his initial search to finding the image of Jones’s granddaughter. Jones, Stroud wrote, did not specify the folder that contained the imager or even seem to know that the drive contained more than one folder.
“Since Ms. Jones could not direct Detective Bailey to a particular folder, he could not go directly to the image but conducted his search reasonably considering the information Ms. Jones had given him,” she wrote.
After finding the granddaughter image, Stroud added, Bailey halted his search and sought a search warrant.
“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,” Stroud wrote.
Decision ‘strongly’ supported
Gordon Widenhouse, a Chapel Hill attorney and law professor at Wake Forest School of Law, understands Stroud’s concerns, but believes the majority’s ruling is consistent with the U.S. Supreme Court’s analysis in Riley regarding the “massive amounts of private information” that cellphones can harbor.
“Riley strongly supports holding that a thumb drive is not a single container,” Widenhouse wrote in an email. “It is a device with potentially hundreds of ‘containers’ within it.”
He noted that while the decision can be appealed to the state Supreme Court, it serves as an additional reminder “of the need for careful actions by everyone in the digital age.”
Terrell’s appellate attorney, John “Keat” Wiles of Raleigh, told Lawyers Weekly that he is no longer involved in the case because of his retirement. An attempt to contact Terrell’s current counsel, Assistant Appellate Defender Michele Goldman, by press time was unsuccessful.
The 53-page decision is State v. Terrell (Lawyers Weekly No. 011-052-18 ). A digest of the opinion is available online at nclawyersweekly.com.
Follow Heath Hamacher on Twitter @NCLWHamacher