IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA17-268
Filed: 6 February 2018
Onslow County, Nos. 15 CRS 2277, 16 CRS 2762, 2957–68
STATE OF NORTH CAROLINA
v.
JAMES H. TERRELL, JR.
Appeal by defendant from judgment entered 17 November 2016 by Judge
Beecher R. Gray in Onslow County Superior Court. Heard in the Court of Appeals 6
September 2017.
Attorney General Joshua H. Stein, by Assistant Attorney General Elizabeth J.
Weese, for the State.
Cheshire Parker Schneider & Bryan, PLLC, by John Keating Wiles, for
defendant-appellant.
ELMORE, Judge.
James H. Terrell, Jr. (defendant) appeals from a judgment entered after a jury
convicted him of possessing a photographic image from secretly peeping, second-
degree sexual exploitation of a minor, and twelve counts of third-degree sexual
exploitation of a minor. This case presents the issue of how to apply the private-
search doctrine to a follow-up police search for one potential contraband image among
several other non-incriminating images stored on an electronic storage device. Or,
put another way, to what extent the private-search doctrine authorizes police to
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Opinion of the Court
conduct, without a warrant, a follow-up search for digital data on a privately searched
electronic storage device.
Defendant’s long-term girlfriend, Jessica Jones, opened defendant’s briefcase
when he was at work in order to search for information about his housekeeper in the
Philippines while he was working overseas on a prior military contract job. Among
employment papers and other personal effects, she found three USB flash drives
(hereinafter “thumb drives”). Jones plugged each thumb drive into a computer. One
of those thumb drives contained data. Jones clicked through its multiple digital file
folders and subfolders until she found one subfolder containing images. After
scrolling through several non-incriminating images, she saw one image of her nine-
year-old granddaughter sleeping without a shirt. Jones believed the image was
inappropriate, summoned authorities, and surrendered the thumb drive, which was
secured in an evidence locker.
Later, an officer conducted a warrantless search through the images on the
thumb drive to locate the granddaughter image. But during his follow-up search, the
officer allegedly discovered images of other partially or fully nude minors that Jones
never viewed. Using this information to support his warrant application, the officer
obtained a search warrant to forensically examine the thumb drive’s contents. The
executed search warrant yielded twelve incriminating images located in a different
subfolder than the granddaughter image.
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Defendant moved to suppress the contents of the thumb drive. He alleged that
the officer had conducted an illegal warrantless search. He further sought to
suppress the images recovered during the forensic examination under the search
warrant as being fruit of the previous unlawful search. Defendant’s motion was
denied. The trial court determined that Jones’s private viewing of the thumb drive
effectively frustrated defendant’s expectation of privacy in its contents and, thus, the
officer’s warrantless search was lawful under the private-search exception to the
warrant requirement and did not violate defendant’s Fourth Amendment rights.
On appeal, defendant contends the trial court erred by denying his motion to
suppress the thumb drive’s contents because the search warrant executed was based
on illegally obtained evidence from the officer’s warrantless search. He contends the
trial court erred by concluding that Jones’s prior search through the thumb drive
effectively frustrated his expectation of privacy in its entire contents, thereby
authorizing the officer to search, without a warrant, through all of the images on that
device. He further contends the trial court’s finding that the officer viewed
incriminating images that Jones never viewed necessarily establishes that his
subsequent search unconstitutionally exceeded the scope of Jones’s earlier one.
We ultimately hold that the trial court reversibly erred by concluding that the
officer’s warrantless search was lawful under the private-search doctrine and,
therefore, did not violate defendant’s Fourth Amendment rights. However, because
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the record is insufficient for us to determine whether the trial court would have
determined that the search warrant executed was supported by probable cause
without the tainted evidence obtained during the officer’s unlawful search, we
remand this matter to the trial court to determine the validity of the search warrant.
I. Background
During their long-term relationship, James H. Terrell, Jr. (defendant) and
Jessica Jones had lived together for over ten years and had two children together.
Jones also had a daughter from another relationship, Cindy, who has a daughter,
Sandy.1
Defendant served in the United States Marine Corps and after he left service,
he began worked various overseas military contractor jobs. When he returned from
one such job in the Philippines in February 2013, he resumed living with Jones until
January 2014.
On 13 January 2014, while defendant was at work, Jones searched his
belongings for information about his housekeeper in the Philippines. She opened his
briefcase and discovered, among employment paperwork and other personal effects,
that it contained three USB thumb drives.
Jones plugged each thumb drive into a home computer. Two of the thumb
drives were blank, but the third thumb drive, which was purple in color, contained
1 Pseudonyms are used to protect identities.
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data. On the purple thumb drive, Jones found a subfolder containing images and
scrolled through various non-incriminating images until she discovered an image of
her nine-year-old granddaughter, Sandy, that was taken the day after Thanksgiving.
In the image, Sandy was sleeping, partially nude from the waist up with her breasts
exposed (hereinafter “the granddaughter image”). Once Jones saw the
granddaughter image, she stopped scrolling through the images and unplugged the
thumb drive. Jones sought counsel from her preacher, who recommended contacting
authorities. Jones also informed her daughter, Cindy, who is Sandy’s mother, and
Cindy expressed her desire to press charges.
That evening, Jones and Cindy brought the purple thumb drive to the Onslow
County Sheriff’s Department and reported to Detective Lucinda Hernandez that it
contained the granddaughter image. Detective Hernandez did not ask to see the
granddaughter image or open the thumb drive to view it but secured the thumb drive
in an evidence locker.
The next day, Detective Eric Bailey was assigned to the case. He reviewed
Detective Hernandez’s report, and then interviewed Jones and Cindy, who also
reported to him that the thumb drive contained the granddaughter image. After the
interview, Detective Bailey decided to examine the thumb drive to verify their report.
At Detective Bailey’s request, the thumb drive was removed from the evidence locker,
and a crime scene investigation (CSI) technician with the sheriff’s department
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plugged it into a computer. During Detective Bailey’s search for the granddaughter
image, he scrolled through several non-incriminating images and allegedly saw
images of other fully or partially nude minor females posing in sexual positions,
images that Jones neither observed nor reported.
On 5 February 2014, Detective Bailey applied for a warrant to search, inter
alia, the purple thumb drive for “contraband images of child pornography and
evidence of additional victims and crimes.” In his application, Detective Bailey
alleged that Jones reported that she saw the granddaughter image on defendant’s
purple thumb drive, that Jones reported her other daughter “several years ago”
alleged that defendant “touched [her] down there,” and that Jones also reported she
found a floppy disk in the bed of defendant’s truck about fifteen years ago that
contained images of child pornography. According to Detective Bailey, an agent with
the State Bureau of Investigation (SBI) refused to conduct a “forensic evaluation [of
the thumb drive] based on [that] search warrant” and “asked [him] to put additional
information in the search warrant.”
On 5 May 2014, Detective Bailey applied for another search warrant, this time
adding allegations that he personally reviewed the thumb drive and saw “several
partially nude photographs of [the granddaughter]” as described by Jones, and that
he also observed “several fully nude photographs of an unknown child standing beside
and [sic] adult female in various sexual positions.”
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The SBI agent executing the search warrant forensically examined several
electronic devices using complex forensic software that creates a mirror image of their
contents. The forensic examination of the thumb drive yielded twelve other
incriminating images located in a different subfolder than the granddaughter image.
Ten of those images had been previously deleted, and therefore would not have been
observable during Jones’s or Detective Bailey’s searches, but were extractable using
a computer forensic tool.
Defendant was indicted for possession of a photographic image from secretly
peeping for the granddaughter image, four counts of second-degree sexual
exploitation of a minor, and twelve counts of third-degree sexual exploitation of a
minor based on the twelve images recovered from the forensic examination. Three of
the second-degree sexual exploitation charges were dropped but the remaining
charges proceeded to trial.
Before trial, defendant moved to suppress the contents of the thumb drive,
arguing that the executed search warrant was based on evidence illegally acquired
during Detective Bailey’s unlawful warrantless search. At the suppression hearing,
defendant argued that Detective Bailey’s thumb drive search violated his federal and
state constitutional rights to be free from unreasonable searches. He further argued
that Detective Bailey’s warrantless search was not exempted by the private-search
exception to the warrant requirement because it unconstitutionally exceeded the
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scope of Jones’s prior search. Defendant emphasized that Jones’s search revealed
only the granddaughter image, while Detective Bailey’s search revealed images of
other fully or partially nude minors that Jones never viewed. To satisfy its burden
to establish that the evidence obtained during Detective Bailey’s warrantless search
was lawful, the State called Jones and Detective Bailey to testify.
According to Jones, when she plugged in the thumb drive, she opened various
“folders and sub-folders” that she “did not think . . . had a title.” She explained that
“the pictures were all in one folder and . . . the other folders [contained] movies.” After
opening the “one” image folder, she scrolled those images. Jones saw “images of adult
women and . . . children, but they were not inappropriate, meaning they were
clothed”; “pictures of a person that [defendant] alleged was his housekeeper over in
the Philippines”; images of an adult she recognized as defendant’s childhood friend,
some clothed and some partially clothed; and then she saw the granddaughter image.
Once she saw that image, Jones stopped scrolling through the images and unplugged
the thumb drive. According to Jones, she never saw any images of defendant; images
of her and defendant; nor images of nude minors, particularly no “images of a fully
naked young . . . female standing around adult women.” Jones testified she told
Detective Bailey that she “had discovered the image of [her] granddaughter lying in
bed and she’s partially unclothed” on the thumb drive.
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According to Detective Bailey, after the thumb drive was plugged into the CSI
computer, he was “going through checking it to try to find the [granddaughter
image].” He explained that, while he was “scrolling through . . . there was a lot of
photos in there[,]” and he was “clicking trying to find exactly where [the] image [was]
located . . . .” Detective Bailey viewed “multiple images of adult females and also
[defendant] together clothed, nude, partially nude.” He then “continued [his] way
down” and “finally happened upon the photograph of the granddaughter.” He then
stated that during his search, he “observed other young females, prepubescent
females, unclothed, also some that were clothed.”
The State presented no evidence describing the precise scope of either search
Jones or Detective Bailey conducted on the thumb drive. Neither testified to the exact
folder pathway they followed to arrive at the granddaughter image, identified which
folders or subfolders they opened or reviewed, nor identified which subfolder of
images they scrolled through to arrive at the granddaughter image.
At the conclusion of the suppression hearing, the trial court rendered an oral
ruling denying defendant’s motion. It concluded that “there was a private party who
went into this [thumb drive] and, by doing so, . . . it frustrated the defendant’s
reasonable expectation of privacy as to the contents of that [thumb drive].” The trial
court continued: “[W]hen [Detective Bailey] went into that same [thumb drive] . . . to
confirm what had been stated to him, he found additional matters and he did so in a
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manner that was, perhaps, more thoroughly [sic] than the initial examination by Ms.
[Jones]. He ran into more images than what Ms. [Jones] ran into.” Thus, the trial
court determined, Detective Bailey’s warrantless search did not violate defendant’s
Fourth Amendment rights.
At trial, the twelve images were admitted into evidence and a computer
forensic analyst published a mirror image copy of the thumb drive to the jury. The
initial Windows Explorer display screen of the thumb drive revealed multiple closed
digital file folders. According to the transcript, that initial screen revealed at least
the following parent folders (but likely more, since the witness displaying its content
to the jury was asked multiple times to “scroll down” to find certain folders): “bad
stuff,” “Terrell resume,” and “DI info.” Opening the “bad stuff” folder revealed at least
the following subfolders: “me,” “Swanee,” “red bone,” and “Cabaniia.” The evidence
showed that the granddaughter image was located in the “red bone” subfolder, while
the twelve other images were located in the “Cabaniia” subfolder.
After the presentation of evidence, the jury convicted defendant of all charges
based on the granddaughter image and the twelve images recovered from the search
warrant executed on the thumb drive. The trial court sentenced defendant to twelve
consecutive terms of five to fifteen months in prison, and a term of twenty to eighty-
four months of imprisonment, to run concurrent with the last five-to-fifteen-month
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term. On 28 November 2016, the trial court entered its written order denying
defendant’s suppression motion. Defendant appeals.
II. Standard of Review
“The standard of review in evaluating the denial of a motion to suppress is
whether competent evidence supports the trial court’s findings of fact and whether
the findings of fact support the conclusions of law.” State v. Jackson, 368 N.C. 75, 78,
772 S.E.2d 847, 849 (2015) (citation and quotation marks omitted). The trial court’s
legal conclusions “are fully reviewable on appeal.” State v. Hughes,
353 N.C. 200,
208,
539 S.E.2d 625, 631 (2000).
III. Arguments
Defendant contends the trial court erred by denying his motion to suppress the
contents of the thumb drive seized from the executed search warrant because it was
based on illegal evidence obtained during Detective Bailey’s unlawful search. He
contends the trial court erred by concluding Jones’s prior viewing of some images on
the thumb drive effectively frustrated his expectation of privacy in the entire device,
such that the private-search doctrine authorized Detective Bailey to search, without
a warrant, through all of its digital data. Defendant cites to United States v.
Jacobsen, 466 U.S. 109, 113–19,
104 S. Ct. 1652, 1656–59,
80 L. Ed. 2d 85 (1984)
(establishing the private-search exception to the warrant requirement and
instructing that the legality of a follow-up police search is limited by the degree it
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remains within the scope of the prior private search), to support his argument that
because the trial court’s findings establish that Detective Bailey’s warrantless search
exceeded the scope of Jones’s earlier one, it was unlawful.
The State argues that the trial court properly determined that Detective
Bailey’s search was lawful under the private-search doctrine. The State contends
that Detective Bailey’s search was not unconstitutionally excessive in scope, since he
merely examined the thumb drive “more thoroughly” than did Jones, citing to our
decision in State v. Robinson, 187 N.C. App. 795, 798,
653 S.E.2d 889, 892 (2007)
(holding that an officer viewing all of the footage of a videotape did not exceed the
scope of a private search through only portions of the footage because the officer
merely examined the “same materials . . . more thoroughly than did the private
part[y]” (citations and internal quotation mark omitted)). The State further contends
that even if Detective Bailey’s search was conducted more thoroughly, it was not
unconstitutionally excessive in scope because he had “virtual certainty” what
contraband the thumb drive contained, citing to Jacobsen, 466 U.S. at 118–22, 104 S.
Ct. at 1659–61 (establishing the virtual-certainty requirement), and Rann v.
Atchison,
689 F.3d 832, 836–37 (7th Cir. 2012) (holding that an officer did not exceed
the scope of a private search by viewing more files on a memory card and zip drive
when officers were “substantially certain” those devices stored only child
pornography), cert. denied,
133 S. Ct. 672 (2012).
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We conclude that our decision in Robinson concerning the extent to which a
private actor viewing portions of a videotape frustrates an individual’s expectation of
privacy in the entire videotape footage is simply inapplicable to searches for digital
data on electronic storage devices. We therefore decline to extend the container
analogy we applied to the videotape search in Robinson and hold a thumb drive
should not be viewed as a single container for Fourth Amendment purposes. In light
of this determination, we hold that the trial court erred by concluding that Jones’s
thumb drive search effectively frustrated defendant’s expectation of privacy in its
entire contents.
We further hold that Detective Bailey’s warrantless search was not authorized
under the private-search doctrine, since the court’s findings establish that Detective
Bailey 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 Jones already told him.
However, because the trial court’s order is insufficient for us to determine whether it
would conclude that excising from the warrant application the evidence illegally
obtained during Detective Bailey’s unlawful search would still supply probable cause
to issue the search warrant, we remand the matter to the trial court to make a
determination, in the first instance, as to whether the remaining allegations in
Detective Bailey’s warrant application would have been sufficient.
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IV. Analysis
“Both the United States and North Carolina Constitutions protect against
unreasonable searches . . . .” State v. Otto, 366 N.C. 134, 136,
726 S.E.2d 824, 827
(2012) (citing U.S. Const. amend. IV; N.C. Const. art. I, § 20). A warrantless police
search is presumptively unreasonable unless the State proves that search was
exempted from the warrant requirement. See Jacobsen,
466 U.S. at 114,
104 S. Ct.
at 1657 (“[W]arrantless searches of [personal] effects are presumptively
unreasonable.” (footnote omitted)); State v. Cooke,
306 N.C. 132, 135,
291 S.E.2d 618,
620 (1982) (“[W]hen the State seeks to admit evidence discovered by way of a
warrantless search in a criminal prosecution, it must first show how the former
intrusion was exempted from the general constitutional demand for a warrant.”
(citations omitted)). The private-search doctrine provides one such exemption from
the warrant requirement.
A. The Private-Search Doctrine
Under the private-search doctrine, an officer may duplicate a private search,
without a warrant, in order to observe first-hand incriminating information a private
searcher has revealed to him. The rationale behind the doctrine is that Fourth
Amendment protection extends only to governmental action; “it is wholly inapplicable
‘to a search or seizure, even an unreasonable one, effected [solely] by a private
individual . . . .’ ” Jacobsen, 466 U.S. at 113,
104 S. Ct. at 1656 (quoting Walter v.
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United States, 447 U.S. 649, 662,
100 S. Ct. 2395, 2404,
65 L. Ed. 2d 410 (1980)
(Blackmun, J., dissenting)). Once an individual’s privacy interest in particular
information has been frustrated by a private actor, who then reveals that information
to police, the police may use that information, even if obtained without a warrant.
See id. at 117,
104 S. Ct. 1658 (explaining that the private-search doctrine “standard
follows from the analysis applicable when private parties reveal other kinds of private
information to authorities”); see also
id. (“Once frustration of the original expectation
of privacy occurs, the Fourth Amendment does not prohibit governmental use of the
now nonprivate information.”). Thus, a duplicative police search exposing
information already revealed by a private searcher is not a “search” under the Fourth
Amendment, since it would intrude no existing privacy interest in that information.
But where a warrantless police search uncovers previously unrevealed private
information, any additional privacy intrusion effected by that police search
constitutes a Fourth Amendment “search,” and police are therefore prohibited from
using that information under the private-search doctrine. See id. at 117–118, 104 S.
Ct. at 1658–59 (“[I]f the authorities use information with respect to which the
expectation of privacy has not already been frustrated[,]” “the authorities have not
relied on what is in effect a private search, and therefore presumptively violate the
Fourth Amendment if they act without a warrant.” (footnote omitted)). Thus, in
determining whether information acquired during a warrantless police search can be
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used under the private-search doctrine, “the legality of the governmental search must
be tested by the scope of the antecedent private search.” Id. at 116, 104 S. Ct. at 1658
(citation omitted).
Additionally, “the Fourth Amendment’s ultimate touchstone is
‘reasonableness[.] . . .’ ” Brigham City, Utah v. Stuart, 547 U.S. 398, 398,
126 S. Ct.
1943, 1944,
164 L. Ed. 2d 650 (2006). “The reasonableness of an official invasion of
the citizen’s privacy must be appraised on the basis of the facts as they existed at the
time that invasion occurred.” Jacobsen,
466 U.S. at 115,
104 S. Ct. at 1657. Where
information revealed by the private searcher is hidden from plain view, the
reasonableness of a follow-up police search turns on whether the officer had “virtual
certainty” that the item to be searched contained “nothing else of significance” and
that his or her inspection of that item would not “tell him anything more than he
already had been told” by a private searcher.
Id. at 119,
104 S. Ct. at 1659.
B. Frustration of Privacy in Electronic Storage Devices
Defendant contends the trial court erred by concluding that Jones’s prior
viewing of the thumb drive effectively frustrated his expectation of privacy in its
entire contents and, therefore, Detective Bailey was authorized to search, without a
warrant, through all of its digital data without violating his Fourth Amendment
rights. The State retorts that this conclusion was proper, relying heavily on our
decision in State v. Robinson, 187 N.C. App. 795,
653 S.E.2d 889 (2007). See
id. at
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798–99, 653 S.E.2d at 892 (analogizing a videotape search to a container search, and
holding that a private partial viewing of video footage from a videotape “opened the
container” to its entire contents, effectively frustrating the defendant’s expectation of
privacy in all of the videotape footage). We find the State’s authority unpersuasive
as applied to searches of digital data on electronic storage devices, and hold that
defendant retained an expectation of privacy in the information not revealed by
Jones’s search.
An individual has “reasonable and substantial” privacy interests in the digital
information stored on a thumb drive. See State v. Ladd, ___ N.C. App. ___, ___, 782
S.E.2d 397, 403 (2016) (“Defendant’s privacy interests in the digital data stored on
these [external data] storage devices are both reasonable and substantial.”). While
this Court has applied the private-search doctrine to a police search of a privately
searched videotape, see Robinson, 187 N.C. App. at 798–99,
653 S.E.2d at 892
(holding that a private search through some footage of a videotape frustrated an
individual’s privacy interests in the entire videotape footage), 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.
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At issue is whether we should extend our holding in Robinson, as the State
argues, treat the thumb drive as a single container for purposes of applying the
private-search doctrine, and hold that Jones’s prior search “opened the container” to
all of the thumb drive’s digital data, thereby authorizing Detective Bailey to conduct
a “more thorough” examination of the entire device. We decline to do so.
C. A Thumb Drive is not a Single Container
In Robinson, the police viewed, without a warrant, the entire footage of a single
videotape after a private searcher viewed portions of the footage and revealed to
police that it showed the defendant engaging in sexual activities with two minors.
187 N.C. App. at 796,
653 S.E.2d at 891. 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 the two minors.
Id. On appeal, we
applied the private-search doctrine and addressed whether the officer’s search
through the entire videotape footage exceeded the permissible scope of the private
search through only portions of the footage.
Id. at 797–99, 653 S.E.2d at 891–92.
The Robinson panel recognized that North Carolina courts had not defined the
precise scope of a videotape search and turned to federal circuits courts of appeal for
guidance. We adopted the Fifth and Eleventh Circuits’ position that “ ‘the police do
not exceed the scope of a prior private search when they examine the same materials
. . . . more thoroughly than did the private parties.’ ” Id. at 798,
653 S.E.2d at 892
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(quoting United States v. Runyan, 275 F.3d 449, 464 (5th Cir. 2001); citing United
States v. Simpson,
904 F.2d 607, 610 (11th Cir. 1990)). We treated the videotape as
a container, analogized the videotape search to a container search, and concluded
that the private partial “viewing of the videotape effectively frustrated the
defendant’s expectation of privacy as to the contents of the [entire] videotape[.] . . .”
Id. at 798,
653 S.E.2d at 892. Thus, because the prior private “viewing ‘opened the
container’ of the videotape,” we held that “the subsequent [police] viewing of the
entire videotape was not outside the scope of [the private actor’s] initial ‘search.’ ”
Id.
at 799,
653 S.E.2d at 892 (citing Runyan,
275 F.3d at 465).
However, electronic storage devices are unlike videotapes, and a search of
digital data on a thumb drive is unlike viewing one continuous stream of video footage
on a videotape. The container analogy may appropriately apply to a videotape, since
its entire “contents” can be revealed by merely playing that videotape and inactively
observing its footage run until completion; a searcher need not further manipulate
the videotape to observe the entire video footage. Thus, the more-thoroughly-
searched principle may reasonably apply to a police viewing all of the video footage
of a partially viewed videotape. But there are analytically significant reasons to view
thumb drive searches differently.
One thumb drive may store thousands of videos, and it may store vastly more
and different types of private information than one videotape. Data stored on a
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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. Based on a thumb
drive’s ever-expanding storage capacity, its potential to hold vastly more and distinct
types of private information, and the complexity involved in searches of its digital
data, we find Robinson and the reasoning underlying our decision in that case simply
inapplicable here. Accordingly, we decline to extend its container analogy to an
electronic storage device and decline to apply the “opened the container” approach to
authorize police to search through all of the digital data it may store.
In reaching this decision, we are guided by the substantial privacy concerns
implicated in searches of digital data that the United States Supreme Court
expressed in Riley v. California, 134 S. Ct. 2473, 2485,
189 L. Ed. 2d 430 (2014)
(declining to extend the search-incident-to-arrest exception to police searches of
digital data on cell phones). In Riley, the Court expressly rejected the analogy that a
cell phone should be treated like a single container for Fourth Amendment purposes.
Id. at 2488–89. In addressing the United States’ argument that “a search of all data
stored on a cell phone is ‘materially indistinguishable’ from searches of . . . physical
items,” the Supreme Court stated:
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That is like saying a ride on horseback is materially
indistinguishable from a flight to the moon. Both are ways
of getting from point A to point B, but little else justifies
lumping them together. Modern cell phones, as a category,
implicate privacy concerns far beyond those implicated by
the search of a cigarette pack, a wallet, or a purse. A
conclusion that inspecting the contents of an arrestee’s
pockets works no substantial additional intrusion on
privacy beyond the arrest itself may make sense as applied
to physical items, but any extension of that reasoning to
digital data has to rest on its own bottom.
Id.; see also id. at 2485 (“A search of the information on a cell phone bears little
resemblance to the type of brief physical search considered in [a prior case].”). Since
Riley was decided, this Court has relied on its guidance in rejecting the State’s
argument that a “GPS [device] should be viewed as a type of ‘digital container’ and
treated the same as an address book, a wallet, or a purse” in the search-incident-to-
arrest context. See State v. Clyburn,
240 N.C. App. 428, 435,
770 S.E.2d 689, 695
(2015) (holding that a search of the digital contents of a GPS was not a valid search
incident to arrest).
While this is a private-search exception case, not a search-incident-to-arrest
exception case, Riley’s guidance that the nature of an electronic device greatly
increases privacy implications holds just as true, and it guides our decision in how
best to apply a doctrine originating from the search of a container limited by physical
realities to a search for digital data on an electronic storage device that is not. Cf.
United States v. Lichtenberger, 786 F.3d 478, 487 (6th Cir. 2015) (relying on Riley’s
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guidance in applying the private-search doctrine to a laptop search), aff’g, 19 F. Supp.
3d. 753 (N.D. Ohio 2014); see also United States v. Sparks, 806 F.3d 1323, 1336 (11th
Cir. 2015) (relying on Riley’s guidance in applying the private-search doctrine to a
cell phone search), cert. denied, Sparks v. United States,
136 S. Ct. 2009, and cert.
denied, Johnson v. United States,
137 S. Ct. 34 (2016).
Accordingly, we decline to extend the container analogy we applied in Robinson
to searches of digital data on electronic storage devices. 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 Jones’s thumb drive
search effectively frustrated defendant’s expectation of privacy in the contents of the
entire device. We turn now to whether the trial court’s findings support its conclusion
that Detective Bailey’s search remained within the permissible scope of Jones’s prior
search and whether it was reasonable under the circumstances, and was, therefore,
a valid warrantless search under the private-search doctrine.
D. Validity of the Thumb Drive Search Under the Private-Search Doctrine
Defendant challenges the finding that “[i]n addition to the [granddaughter
image] Detective Bailey saw photographs of other nude or partially nude
prepubescent females posing in sexual positions.” (Emphasis added.) He contends
this finding necessarily establishes that Detective Bailey’s search unconstitutionally
exceeded the scope of Jones’s prior search because Jones never viewed those images
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and the granddaughter image was located in a different subfolder. The State
contends that even if Detective Bailey’s thumb drive search was “more thorough,” it
was not unconstitutionally excessive in scope under the private-search doctrine,
because Detective Bailey had “virtual certainty” what contraband it contained.
Because the private-search doctrine originated from an officer’s physical search of the
contents of a parcel box, which significantly differs from a digital search of data on
an electronic storage device, we turn to the material facts of Jacobsen and its
application of the private-search doctrine for guidance.
In Jacobsen, a Federal Express (FedEx) employee opened a damaged parcel
package, a paper-wrapped cardboard box, which revealed that it contained crumpled
newspaper covering a closed tube made of duct tape. 466 U.S. at 111,
104 S. Ct. at
1655. FedEx employees removed the tube, cut it open, and discovered it contained
zip-lock bags of white powder.
Id. They summoned authorities to review the contents
of the box, and replaced the plastic bags into the tube, and the tube and newspapers
back into the box.
Id. The responding Drug Enforcement Administration (DEA)
agent saw that the repackaged box had a hole punched in its side and its top was
open.
Id. He removed the tube from the box, saw that one end of it had been slit
open, removed the plastic bags from the tube, and then saw the white powder.
Id.
He then removed a trace of the white powder and conducted a field test confirming it
was cocaine.
Id. at 111–12,
104 S. Ct. at 1655.
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The Court in Jacobsen addressed whether the DEA agent’s warrantless search
was valid under the Fourth Amendment. After articulating the private-search-
doctrine standard, the Court began applying that doctrine by defining the scope of
the FedEx employees’ initial private search and then testing it against the DEA
agent’s subsequent one, in order to determine the extent to which the DEA agent’s
search invaded additional privacy interests and thus exceeded the scope of the FedEx
employees’ search. Id. at 118–20, 122, 104 S. Ct. at 1659–60, 1661. The Court
explained that the FedEx employees’ initial search, and the resulting invasions of
privacy, “revealed that the package contained only one significant item, a suspicious
looking tape tube[,]” and that “[c]utting the end of the tube and extracting its contents
revealed a suspicious looking plastic bag of white powder.”
Id. at 115,
104 S. Ct. at
1657. Thus, the Court determined that the DEA agent’s actions of removing the tube
from the box, removing the plastic bags from the tube, and observing the white
powder did not exceed the scope of the prior search, since “the removal of the plastic
bags from the tube and the agent’s visual inspection of their contents enabled the
agent to learn nothing that had not previously been learned during the private
search.”
Id. at 120,
104 S. Ct. at 1660 (footnote omitted). Thus, “[i]t infringed no
legitimate expectation of privacy and hence was not a ‘search’ within the meaning of
the Fourth Amendment.”
Id.
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In analyzing the reasonableness of the DEA’s warrantless search in light of
what he knew from the FedEx employees’ prior search, the Court explained that
“[w]hen the first [DEA] agent on the scene initially saw the package, he knew it
contained nothing of significance except a tube containing plastic bags and,
ultimately, white powder.” Id. at 118,
104 S. Ct. at 1659. The Court further
determined that “[e]ven if the powder was not itself in ‘plain view’ because it was still
enclosed in so many containers and covered with papers,” the DEA agent was
authorized to search the contents of the box 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.”
Id. at 119–20,
104 S. Ct. at 1659 (emphasis added).
Accordingly, under Jacobsen’s beyond-the-scope test, judicial review centers on
defining the precise scopes of both searches in order to determine whether a follow-
up police search further invaded privacy interests and thus exceeded the scope of the
prior private search. Further, under Jacobsen’s virtual-certainty requirement, where
a private search does not leave incriminating evidence in plain view, judicial review
of the reasonableness of a follow-up police search must be tested by the degree to
which that officer had “virtual certainty” the privately searched item contained
“nothing else of significance” other than the now non-private information, and that
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Opinion of the Court
his inspection of that item “would not tell him anything more than” what the private
searcher already told him.
Here, the trial court’s only factual findings concerning the scope of both
searches established the following:
3. . . . [Jones] inserted the purple flash drive into a shared
Apple computer and discovered, among other visual
representations, a picture of her granddaughter, . . . who
appeared to be asleep and who was nude from the waist up
with breasts displayed. . . .
....
6. Following his discussion with . . . [Jones], Detective
Bailey went to the CSI Unit to confirm on the purple flash
drive what he had been told by [Jones]. . . . The CSI
technician placed the purple flash drive into CSI’s computer
and selected the folder that had been identified by [Jones]
as containing the . . . granddaughter [image]. This viewing
in the CSI Unit confirmed what . . . [Jones] had told
Detective Bailey that she had discovered on the flash drive.
In addition to the [granddaughter image] Detective Bailey
saw photographs of other nude or partially nude
prepubescent females posing in sexual positions.
(Emphasis added.) Based on these findings, the trial court determined that
“Detective Bailey’s initial search and examination of the purple thumb drive in the
CSI Unit did not exceed the scope of the private, prior search done by [Jones], but
could have been more thorough.”
Jacobsen instructs that “[t]he additional invasions of respondents’ privacy by
the Government agent must be tested by the degree to which they exceeded the scope
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Opinion of the Court
of the private search.” 466 U.S. at 115,
104 S. Ct. 1657. Thus, the trial court should
have made detailed findings on the exact scope of both Jones’s and Detective Bailey’s
searches of the thumb drive’s contents, in order to determine precisely the extent to
which Detective Bailey’s search may have exceeded Jones’s earlier one. However, the
State never presented any evidence, see State v. Romano,
369 N.C. 678,
800 S.E.2d
644, 654 (2017) (placing the burden on the State to prove there was no state action
when a nurse drew the defendant’s blood, or “that the seizure of the blood was not an
act of the State and thus, was not subject to the Fourth Amendment’s search and
seizure analysis”), and the trial court never made any findings establishing exactly
what folder(s) and/or subfolder(s) Jones or Detective Bailey searched. Nor did the
trial court’s findings describe what “other visual representations” Jones viewed, or
whether Detective Bailey only viewed those particular images.
Although the trial court found that Detective Bailey viewed images in a folder
Jones identified as containing the granddaughter image, it did not explore whether
the images of partially or fully nude minors Detective Bailey allegedly viewed were
located in another subfolder of images other than that which Jones searched. To the
extent that they were, those images were not admissible under the private-search
doctrine. Cf. United States v. Kinney, 953 F.2d 863, 866 (4th Cir. 1992) (holding drug
evidence found during a follow-up police search of a closet inadmissible where the
private search revealed only guns: “This phase of the search cannot be supported by
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Opinion of the Court
Akers’ prior private search because the fruits of [the officer’s] search, the white
powder and drug paraphernalia, were never discovered by Akers.”).
Ordinarily, “ ‘when the trial court fails to make findings of fact sufficient to
allow the reviewing court to apply the correct legal standard, it is necessary to
remand the case to the trial court.’ ” State v. Ingram, 242 N.C. App. 173, 180,
774
S.E.2d 433, 440 (2015), disc. rev. denied, writ denied,
369 N.C. 195,
791 S.E.2d 677
(2016) (quoting State v. Salinas,
366 N.C. 119, 124,
729 S.E.2d 63, 67 (2012)). “In
such a situation, ‘remand is necessary because it is the trial court that ‘is entrusted
with the duty to hear testimony, weigh and resolve any conflicts in the evidence, find
the facts, and, then based upon those findings, render a legal decision, in the first
instance, as to whether or not a constitutional violation of some kind has occurred.’ ”
Ingram,
242 N.C. App. at 180,
774 S.E.2d at 440 (quoting Salinas,
366 N.C. at 124,
729 S.E.2d at 67). However, remand is not required where “there are no material
conflicts in the evidence” and “the superior court’s order . . . contain[s] sufficient
findings of fact to which this Court can apply the [applicable legal] standard.”
Salinas,
366 N.C. at 124,
729 S.E.2d at 67; see also Ladd, ___ N.C. App. at ___, 782
S.E.2d at 403–04 (declining to remand for additional findings where there was no
“conflicting evidence for the trial court to adjudicate” and the facts were “sufficient
for our de novo review of the trial court’s conclusions”).
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Opinion of the Court
After carefully considering the suppression hearing evidence, we conclude that
there were no material evidentiary conflicts and that the trial court’s findings are
sufficient for our de novo review of its ultimate conclusion that Detective Bailey’s
warrantless search did not violate defendant’s Fourth Amendment rights. We
conclude that findings on the precise scope of both searches are immaterial in this
particular case, in light of the other findings establishing that Jacobsen’s virtual-
certainty requirement was not satisfied and, therefore, Detective Bailey’s search was
unauthorized under the private-search doctrine. Cf. Lichtenberger, 786 F.3d at 490
(concluding that an officer’s lack of “virtual certainty” he viewed the same child
pornography images a private searcher viewed on the defendant’s laptop dispositively
established that his search was unconstitutional under the private-search doctrine).
Jacobsen further instructs that because Jones’s prior search did not leave
incriminating evidence in plain view, judicial review centers on whether Detective
Bailey had “virtual certainty that nothing else of significance [except for the
granddaughter image that Jones revealed to him] was in the [thumb drive] and that
a[n] . . . inspection of the [thumb drive] and its [digital data] would not tell him
anything more than he already had been told.” 466 U.S. at 119,
104 S. Ct. 1659; see
also
id. at 120 n.17,
104 S. Ct. at 1660 n.17 (noting the “significant . . . facts” that “the
container could no longer support any expectation of privacy” and “it was virtually
certain that it contained nothing but contraband” (emphasis added)). This virtual-
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Opinion of the Court
certainty requirement limits unfettered governmental searching through all of the
digital data stored on an electronic storage device that is not known to contain only
contraband.
Here, neither the State’s evidence, nor the trial court’s findings, established
that Detective Bailey proceeded with any certainty, much less the virtual certainty
required, that the thumb drive contained only the potential contraband that Jones
had reported, nor that Detective Bailey’s inspection of its contents would not reveal
anything more than what Jones had told him. Rather, the findings establish that the
only defining characteristic of the thumb drive was its purple color, which reveals
nothing about the nature of its digital contents, and that Detective Bailey knew the
thumb drive contained “other visual representations” in addition to the one
granddaughter image that was not obviously child pornography. According to Jones,
those other representations were images of fully clothed adult women and children;
defendant’s housekeeper; and defendant’s childhood friend as an adult, posing clothed
and partially clothed. The trial court’s findings establish that Detective Bailey did
not search the thumb drive with the same level of “virtual certainty” contemplated
by Jacobsen that the thumb drive only contained child pornography contraband, or
that his inspection of its digital contents would not reveal private information that
Jones had not already revealed to him.
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In urging us to reach a different result, the State cites to our decision in
Robinson and two other federal circuit courts of appeal cases to support its position
that Detective Bailey’s search did not materially exceed the scope of Jones’s prior one
because he merely examined the thumb drive more thoroughly. Those cases are
distinguishable because the officers in those cases could be virtually certain the
devices contained contraband.
In Robinson, based on the now non-private information revealed by the private
searcher that portions of the videotape showed the defendant engaging in sexual
activity with two minors, see id. at 796, 653 S.E.2d at 891, the officer could have
virtual certainty the videotape contained only contraband and that his viewing of the
entire footage would not reveal anything further. Here, contrarily, the only now non-
private information Jones’s search revealed was that the thumb drive contained,
among several other images, only one potential contraband image, which was not
obviously child pornography. The evidence showed that the thumb drive contained
various folders and subfolders storing different types of private digital data and that
the granddaughter image was stored in one subfolder among numerous other non-
incriminating images. Unlike the officer in Robinson, Detective Bailey did not have
the same sort of certainty that the thumb drive only contained contraband, or that
his search would not reveal anything more than what Jones had reported. The State’s
other authority is similarly distinguishable. See Runyan,
275 F.3d at 464 (holding
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Opinion of the Court
that police did not exceed the scope of a private search by examining more files on
partially searched computer disks that a private searcher revealed contained child
pornography); Rann, 689 F.3d at 836–37 (holding that police did not exceed the scope
of a private search by examining more images on a memory card and zip drive that
the police “could be substantially certain” contained child pornography based on the
private searchers’ reports).
Moreover, while the private-search doctrine “does not prohibit governmental
use of . . . now nonprivate information[,]” it prohibits “use [of] information with
respect to which the expectation of privacy has not already been frustrated.”
Jacobsen, 466 U.S. at 117, 104 S. Ct. at 1658–59. The trial court’s findings establish
that the only “now non-private information” Jones’s search revealed was that the
thumb drive contained only one potentially incriminating image of her
granddaughter sleeping without a shirt. Because Jones’s search never revealed that
the thumb drive contained child pornography images, the private-search doctrine
alone could not have authorized Detective Bailey to use that information for his
warrant application.
Under the Fourth Amendment’s reasonableness inquiry, “ ‘[w]e must balance
the nature and quality of the intrusion on the individual’s Fourth Amendment
interests against the importance of the governmental interests alleged to justify the
intrusion.’ ” State v. Grice, 367 N.C. 753, 762,
767 S.E.2d 312, 319 (2015) (quoting
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Opinion of the Court
Jacobsen, 466 U.S. at 125,
104 S. Ct. at 1662 (alteration in original) (citation
omitted)). The suppression evidence showed that Detective Bailey’s search involved
opening multiple closed folders and subfolders and scrolling through various non-
incriminating files in search of one potential contraband image that was not obviously
child pornography or overtly sexual in nature. The governmental interest alleged to
justify the private-search exception to the warrant requirement was that of “merely
avoiding the risk of a flaw in the [private searcher’s] recollection,” Jacobsen,
466 U.S.
at 119,
104 S. Ct. at 1659, which carries little weight when balanced against the
immense privacy interests at stake in the thumb drive search here, see Riley, 134 S.
Ct. at 2488–91. Further, no risks supported an immediate search based on evidence
preservation; the thumb drive was stored in an evidence locker. And thumb drives
present no cognizable harm to police. Id. at 2485 (“Digital data stored on a cell phone
cannot itself be used as a weapon. . . .”).
“[T]he ‘prime purpose’ of the [exclusionary] rule, if not the sole one, ‘is to deter
future unlawful police conduct.’ ” United States v. Janis, 428 U.S. 433, 446,
96 S. Ct.
3021, 3028,
49 L. Ed. 2d 1046 (1976) (citation omitted). “A ruling admitting evidence
in a criminal trial . . . has the necessary effect of legitimizing the conduct which
produced the evidence, while an application of the exclusionary rule withholds the
constitutional imprimatur.” Terry v. Ohio,
392 U.S. 1, 13,
88 S. Ct. 1868, 1875,
20 L.
Ed. 2d 889 (1968). To hold that the evidence discovered during Detective Bailey’s
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Opinion of the Court
warrantless thumb drive search was admissible under the private-search doctrine
may authorize unfettered police searching through all of the digital data on an even
more sophisticated electronic device that may contain greater quantities of distinct
items of private information based merely on a private searcher viewing and
revealing to police only one potentially incriminating file on that device. We therefore
hold this evidence was inadmissible under the private-search doctrine and that
Detective Bailey was prohibited from using it to support his warrant application.
In summary, although the trial court failed to make adequate factual findings
concerning the exact scope of Jones’s and Detective Bailey’s searches through the
thumb drive, its findings establish that Detective Bailey did not conduct his search
with the requisite level of “virtual certainty” that the thumb drive contained only
contraband or that his inspection of its contents would not reveal anything more than
he already learned from Jones. Therefore, neither was Detective Bailey’s warrantless
thumb drive search authorized under the private-search doctrine, nor was he able to
use the evidence he obtained during that search to support his warrant application.
We thus hold that the trial court erred by concluding that Detective Bailey’s
warrantless search did not violate defendant’s Fourth Amendment rights.
D. Probable Cause to Issue the Search Warrant
Defendant next argues that without the illegally acquired information from
Detective Bailey’s search—that the thumb drive contained other images of minors
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Opinion of the Court
posing in sexual positions—his warrant application failed to establish probable cause
to issue the search warrant executed on the thumb drive that yielded the twelve
incriminating images underlying his second- and third-degree sexual exploitation of
a minor convictions. The State does not address the merits of this argument but
contends that, because the evidence obtained during Detective Bailey’s warrantless
search was lawfully acquired pursuant to the private-search doctrine, the search
warrant issued was valid.
“The ultimate inquiry on a motion to suppress evidence
seized pursuant to a warrant is not whether the underlying
affidavit contained allegations based on illegally obtained
evidence, but whether, putting aside all tainted
allegations, the independent and lawful information stated
in the affidavit suffices to show probable cause.”
State v. McKinney, 361 N.C. 53, 59,
637 S.E.2d 868, 872 (2006) (emphasis omitted)
(quoting United States v. Giordano,
416 U.S. 505, 554–55,
94 S. Ct. 1820,
40 L. Ed.
2d 341 (1974) (Powell, J., concurring in part, dissenting in part) (citation omitted)).
If excising illegally obtained information from a warrant application would fail to
supply probable cause to issue the search warrant, all evidence obtained from its
execution must be suppressed as tainted fruit. See, e.g., McKinney,
361 N.C. at 58,
637 S.E.2d at 872 (citations omitted).
“The ‘common-sense, practical question’ of whether probable cause exists must
be determined by applying a ‘totality of the circumstances’ test.” State v. Benters, 367
N.C. 660, 664,
766 S.E.2d 593, 597–98 (2014) (quoting Illinois v. Gates,
462 U.S. 213,
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Opinion of the Court
230, 103 S. Ct. 2317, 2328,
76 L. Ed. 2d 527, 543 (1983), and citing State v. Arrington,
311 N.C. 633, 637, 641,
319 S.E.2d 254, 257 (1984)). Thus,
“[t]he task of the issuing magistrate is simply to make a
practical, common-sense decision whether, given all the
circumstances set forth in the affidavit before him,
including the ‘veracity’ and ‘basis of knowledge’ of persons
supplying hearsay information, there is a fair probability
that contraband or evidence of a crime will be found in a
particular place. And the duty of a reviewing court is
simply to ensure that the magistrate had a ‘substantial
basis for . . . conclud[ing]’ that probable cause existed.”
Id. at 664, 766 S.E.2d at 597–98 (emphasis added) (quoting Gates, 462 U.S. at 238–
39,
103 S. Ct. at 2332,
76 L. Ed. 2d at 548 (third and fourth alterations in original),
as quoted in State v. Arrington,
311 N.C. 633, 638,
319 S.E.2d 254, 257–58 (1984)).
Striking the information Detective Bailey acquired during his warrantless
search—that the thumb drive contained “several fully nude photographs of an
unknown child standing beside and [sic] adult female in various sexual positions”—
all that remained to provide a “fair probability that contraband” would be found in
the thumb drive, other than Jones’s allegations concerning two incidents involving
defendant in 2001, is Detective Bailey’s allegation that Jones reported the thumb
drive “contained pictures of [defendant] and other women engaged in sexual
activities”; “pictures of them in her home[ ]”; and “pictures of her 9 year old
granddaughter . . . in bed[,]” where she “appeared to be sleeping and she was exposed
(Nude) from the waist up.”
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Opinion of the Court
However, as defendant concedes, because the trial court determined that the
evidence acquired by Detective Bailey’s warrantless search was lawful under the
private-search doctrine, the trial court never determined whether striking that
information from his application would still supply probable cause to issue the search
warrant. Further, 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 Detective Bailey’s unlawful thumb drive search.
In such a situation, our Supreme Court has instructed that “remand to the trial court
[is] more appropriate than unilateral appellate court determination of the warrant’s
validity[.]” McKinney, 361 N.C. at 64,
637 S.E.2d at 875 (citation omitted).
In McKinney, our Supreme Court was presented with an issue of whether
omitting unlawfully obtained information from a search warrant application would
have still supplied probable cause to issue the warrant. However, because the trial
court’s order “contained limited findings of fact,” none of which “indicate[d] whether
the trial court would have found the evidence seized pursuant to the warrant
admissible even if the tainted evidence had been excised from the warrant
application,” id. at 63,
637 S.E.2d at 875, the Court determined that “the record . . .
[did] not reveal the extent to which consideration of the illegally obtained information
affected the trial court’s determination that the evidence seized pursuant to the
warrant should not be suppressed,”
id. Accordingly, the Court “decline[d] to speculate
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Opinion of the Court
as to the probable outcome . . . had the trial court analyzed the validity of the search
warrant based only on the legally obtained information on the warrant” and instead
“afford[ed] the trial court an opportunity to evaluate the validity of the warrant” in
the first instance. Id. at 65,
637 S.E.2d at 876.
Accordingly, under McKinney, 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 Detective Bailey’s warrant application the tainted evidence arising
from his unlawful search.
V. Conclusion
This case presents a novel issue for this Court of how to apply the private-
search doctrine to an after-occurring police search for potential digital contraband on
a privately searched electronic storage device. Guided by the Riley Court’s emphasis
on the tremendous privacy interests implicated in searches of digital data on a cell
phone, and its express rejection of the analogy that a cell phone should be viewed as
a single container in search-incident-to-arrest cases, as well as this Court’s prior
ruling in Ladd, we conclude that the “closed-container” approach we applied to the
videotape search in Robinson should not be extended to searches for digital data on
an electronic storage device. Accordingly, we hold that the trial court erred by
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Opinion of the Court
concluding Jones’s prior viewing of the thumb drive effectively frustrated defendant’s
expectation of privacy in its entire contents.
Additionally, while the trial court’s findings did not adequately address the
scope of both searches in order precisely to determine the extent to which Detective
Bailey’s search may have exceeded the scope of Jones’s earlier one, we decline to
remand the matter for more detailed findings. We conclude that such findings would
be immaterial in light of the other findings establishing that Detective Bailey’s search
was not authorized under the private-search doctrine because he did not conduct his
search with the requisite level of “virtual certainty” contemplated by Jacobsen. Since
the additional information Detective Bailey acquired during his warrantless search
was never revealed to him by Jones, the private-search doctrine did not permit him
to use that information to support the warrant application. Accordingly, we hold the
trial court erred by concluding the private-search doctrine authorized Detective
Bailey’s warrantless thumb drive search and, therefore, did not violate defendant’s
Fourth Amendment rights.
However, because the record “did not reveal the extent to which consideration
of the illegally obtained information affected the trial court’s determination that the
evidence seized pursuant to the warrant should not be suppressed,” McKinney, 361
N.C. at 63,
637 S.E.2d at 875, we reverse the ruling on defendant’s suppression
motion and remand this matter to the trial court with instructions to determine
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Opinion of the Court
whether excising the evidence acquired during Detective Bailey’s unlawful
warrantless search would have supplied probable cause to issue the search warrant
to forensically examine the thumb drive.
REVERSED IN PART AND REMANDED.
Judge TYSON concurs.
Judge STROUD concurs in part and dissents in part by separate opinion.
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No. COA17-268 – State v. Terrell
STROUD, Judge, concurring in part and dissenting in part.
The majority opinion considers thirteen images: (1) the “granddaughter
image”2 which was Ms. Jones’s primary concern when she came to the Sheriff’s
Department because it was her granddaughter; (2) two images of nude prepubescent
girls in sexual positions3 (“two seen images”) discovered in the process of confirming
the information law enforcement officers were given about the granddaughter image;
(3) and the remaining ten (“ten deleted images”) discovered through a data recovery
method because they had been deleted from the thumb drive. It is important to
distinguish the three categories of photographs from the outset because Detective
Bailey’s knowledge at certain points in time is relevant to the legal analysis and to
the question remanded to the trial court regarding probable cause.
It is also essential to understand the convictions regarding the different
categories of images. As I will further discuss later in this dissent a major flaw in
this appeal is that we have none of the images in the record before us, making it
2 I believe the majority’s use of the term “granddaughter image” is misleading because the
child in the image is not defendant’s granddaughter; this is important in the consideration of probable
cause because any implication of familial relationship or affection between the child in the image and
defendant is false. Defendant was the boyfriend of the child’s grandmother. Nonetheless, I will refer
to the image as the “granddaughter image” to avoid confusion.
3 The majority opinion never states that Detective Bailey saw two other concerning images,
but it does state there were twelve images at issue in addition to the granddaughter image, and ten of
the twelve Detective Bailey could not have seen while looking for the granddaughter image because
they had been deleted and were only discovered after the search warrant was issued and further
analysis was performed on the thumb drive. This means there were two images at issue Detective
Bailey would have seen while looking for the granddaughter image and because the trial court found
as an unchallenged fact that while looking for the granddaughter image “Detective Bailey saw
photographs of other nude or partially nude prepubescent females posing in sexual positions[,]”
(emphasis added), those photographs must be the two not mentioned by the majority.
STATE V. TERRELL
STROUD, J., dissent
difficult to pair a particular image with a specific conviction. We can determine from
the indictment and jury instructions that defendant was convicted of secretly peeping
based upon the granddaughter image. It also appears that a second-degree
exploitation conviction was likely based upon the granddaughter image. As noted by
the majority there were thirteen photographs. Defendant was convicted of twelve
counts of third-degree sexual exploitation, one count of second-degree sexual
exploitation, and one count of secretly peeping, for fourteen total convictions.
Logically this could mean the second-degree exploitation conviction was based upon
the granddaughter image and the twelve third-degree exploitation convictions were
based upon the twelve images other than the granddaughter image. So I will assume
that as to the granddaughter image defendant was convicted of secretly peeping and
second-degree sexual exploitation, and as to the two seen images and the ten deleted
images, defendant was convicted of twelve counts of third-degree sexual exploitation.4
Now that I have clarified the images and convictions associated with the
images, I will address the reasons for my dissent. I would affirm the trial court’s
denial of defendant’s motion to suppress the granddaughter image based upon the
private search doctrine, and I would find no error as to defendant’s convictions for
secretly peeping and second-degree exploitation of a minor. I dissent in part because
4 I also make this assumption because it is the defendant’s duty to make sure the record is
complete and includes all of the information necessary to understand the issues presented. See N.C.
Concrete Finishers, Inc. v. N.C. Farm Bureau Mut. Ins. Co., 202 N.C. App. 334, 337,
688 S.E.2d 534,
536 (2010).
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STATE V. TERRELL
STROUD, J., dissent
there is no need to remand for any issue for the convictions based upon the
granddaughter image. Because Detective Bailey found the two seen images while
verifying Ms. Jones’s report of the granddaughter image, I again would affirm the
trial court in denying defendant’s motion to suppress based upon the private search
doctrine. I also would find no error on the third-degree sexual exploitation of a minor
convictions entered based on the two seen images, and again remand is unnecessary
on those images. As to the remaining ten deleted images and the ten related
convictions for third-degree sexual exploitation of a minor, I agree with the majority
these images do not fall under the private search doctrine and remand is necessary
for the trial court to consider whether Detective Bailey had probable cause to obtain
the search warrant. As to the ten deleted images and their related convictions, I
concur in result only.
I. Evidence Not in the Record on Appeal
As I have mentioned, this appeal was filed on issues arising from thirteen
photographic images and none were provided to this Court. If a party is seeking relief
based upon a piece of evidence, that evidence must be in the record before this Court:
Pursuant to the North Carolina Rules of Appellate
Procedure, our review is limited to the record on appeal and
any other items filed with the record in accordance with
Rule 9(c) and 9(d).
The Court of Appeals can judicially know only
what appears of record. Matters discussed in
a brief but not found in the record will not be
considered by this Court. It is incumbent upon
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STATE V. TERRELL
STROUD, J., dissent
the appellant to see that the record is properly
made up and transmitted to the appellate
court.
N.C. Concrete Finishers, Inc. v. N.C. Farm Bureau Mut. Ins. Co., 202 N.C. App. 334,
337,
688 S.E.2d 534, 536 (2010) (citations, quotation marks, and ellipses omitted).
The burden is on the appellant to ensure that all the evidence necessary to
understand his argument is in our record. See generally
id. Defendant would prefer
that we lump all of the images together in the legal analysis – as the majority has –
since that would increase his chances of having more of his convictions reversed. But
defendant should not benefit from any deficiency in the record.
II. Granddaughter Image
As this Court has noted before, “It is said that a picture is worth a thousand
words. In this case, a picture would be worth several thousand words[.]” State v.
Sutton, 232 N.C. App. 667, 673,
754 S.E.2d 464, 468 (2014). None of the thirteen
images were provided to this Court, and on the granddaughter image specifically, this
Court should make no assumptions of potential innocence about that image since we
have not seen it. Perhaps someone could imagine an innocent reason for an unrelated
adult male to have a photograph of his girlfriend’s nine-year-old granddaughter’s
breasts stored in his photographs; someone could also easily imagine other reasons
for the photograph and those reasons would provide not only probable cause for a
future search warrant based upon the image but also grounds for a criminal
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STATE V. TERRELL
STROUD, J., dissent
conviction. The jury saw the image and they determined it violated North Carolina
General Statute § 14-202(g) and convicted defendant of possessing a photographic
image from peeping; this conviction means the jury found that defendant had taken
the photograph “for the purpose of arousing or gratifying the sexual desire[.]” The
“purpose of arousing or gratifying the sexual desire” is an element of the crime which
the trial court instructed the jury on, and the jury unanimously found the
granddaughter image to have been taken for such a purpose.
The majority’s characterization of the granddaughter image as “not obviously
child pornography” is perhaps correct but misleading as it ignores the fact that a
partially nude photograph of a child may violate the law, as this one did for secret
peeping and apparently second degree sexual exploitation, even if it is not “obviously
pornographic.” My primary concern is that the majority’s focus on the term
“pornography” could lead the trial court astray on remand. The trial court need not
consider the granddaughter image to be child pornography to find probable cause for
issuance of the warrant. It is true that the warrant affidavit alleged probable cause
to search for “images of child pornography[,] but it also alleged probable cause to
believe the search may reveal “evidence of additional victims and crimes committed
in this case.”
As the majority notes, the magistrate must be able
to make a practical, common-sense decision whether, given
all the circumstances set forth in the affidavit before him .
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STATE V. TERRELL
STROUD, J., dissent
. . there is a fair probability that contraband or evidence of
a crime will be found in a particular place and the trial
court must review to ensure that the magistrate had a
substantial basis for concluding that probable cause
existed.
State v. Benters, 367 N.C. 660, 664,
766 S.E.2d 593, 597–98 (2014) (citation, quotation
marks, ellipses and brackets omitted).
Even if all of the other images are excluded from consideration, the
granddaughter image along with the other information in the warrant application
and affidavit could support a finding of probable cause to issue the search warrant.
Detective Bailey averred that in 2001 “there was an incident regarding child
pornographic pictures[;]” in 2001 Ms. Jones’s daughter, whom she had with
defendant, had claimed defendant had “touched me down there[;]” and Ms. Jones also
turned over a floppy disk drive from the 2001 “incidents” which she reported
contained “children engaged in multiple sex acts.” The passage of time since 2001
does not eliminate the potential import or relevance of the “incidents” of potential
sexual molestation of a child and possession of child pornography in considering
probable cause for a search warrant. And because the granddaughter image is
evidence of criminal activity, it should also be an important part of the trial court’s
analysis on remand of whether there was probable cause for issuance of a search
warrant to determine if the thumb drive may contain more similarly incriminating
images.
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STATE V. TERRELL
STROUD, J., dissent
III. The Two Seen Images
Turning now to the two images Detective Bailey saw prior to the
granddaughter image, while I generally agree with the majority’s analysis of the
private search doctrine and determination that a thumb drive is not a single
container, the majority’s analysis overlooks the fact that Detective Bailey attempted
to limit his initial search to find the image reported by Ms. Jones. Detective Bailey
acted within the proper scope of the private search doctrine in his discovery of the
granddaughter image and the two seen images as he was trying to confirm the
existence of the granddaughter image. Ms. Jones brought the thumb drive to the
Sheriff’s Department. Ms. Jones did not specify which folder or sub-folder her
granddaughter’s photo was in, nor did she seem aware there were separate folders on
the drive. Ms. Jones testified at the suppression hearing:
Q. Okay. So, as you clicked on each folder or sub-folder, you would open them up and see what the pictures
were?
A. Yeah, the pictures were all in one folder and
then the other folders were like movies because he likes
military movies and, you know, action movies and that --
that was it.
Q. Do you remember the name of the folder or
any of the sub-folders?
A. I don't think the folders had a title. It was just
a thumb – it’s the title of the thumbdrive, purple rain.
(Emphasis added.)
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STATE V. TERRELL
STROUD, J., dissent
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. It is true, as the majority points out, that
the thumb drive had many folders and sub-folders, but Ms. Jones did not understand
how the data was organized on the drive.5 We should not require individuals who
take digital media to law enforcement and report potential sexual exploitation or
abuse of children to be IT experts. Ms. Jones’s understanding was that the thumb
drive overall was entitled “purple rain” and she did not realize that “purple rain” was
the entire drive which contained folders and sub-folders. The trial court also found
in its order that Detective Bailey attempted to confirm the existence of the
“granddaughter image” and discovered “photographs of other nude or partially nude
prepubescent females posing in sexual positions.” Detective Bailey specifically
testified:
Q. All right. So, at that point were you verifying
what Ms. Jones had told you she had observed on the
flashdrive?
A. Yes.
Q. And when you were able to verify what she
told you she had seen on the flashdrive, what did you do?
5 The trial court found that “[t]he CSI technician placed the purple flash drive into CSI’s
computer and selected the folder that had been identified by Ms. Jones as contained the picture of her
granddaughter[.]” “Folder” was the word Ms. Jones used in her testimony, but in actuality she only
identified the “drive” – the purple rain thumb drive – and not the folder. There were many folders and
sub-folders to choose from within the purple rain thumb drive, and Ms. Jones had not clarified to
Detective Bailey which one contained the granddaughter image.
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STATE V. TERRELL
STROUD, J., dissent
A. Then I completed my search.
Thus, the only evidence before the trial court was that Detective Bailey discovered
the two seen images of prepubescent girls in sexual positions before he found the
granddaughter image because upon discovering that image he stopped his search.
“[T]here is a remarkable dearth of federal jurisprudence elaborating on what
types of investigative actions constitute exceeding the scope” of a private search.
U.S. v. Runyan, 275 F.3d 449, 461 (5th Cir. 2001) (quotation marks and footnote
omitted). The same is true of state court jurisprudence. The unique factual
situations of each private search and the particular “container” involved make cases
difficult to compare. I have sought without success to find another case with a
factual situation as presented here, where a law enforcement officer engages in a
reasonably limited search of a drive only to confirm what the private searcher has
reported but sees other evidence during that search because the private searcher’s
report on the organization of the drive was inaccurate or incomplete. But in Runyan
the Fifth Circuit set out what I deem to be a reasonable “guideline” in considering
the issue before us:
The guideline that emerges from the above analysis
is that the police exceed the scope of a prior private search
when they examine a closed container that was not opened
by the private searchers unless the police are already
substantially certain of what is inside that container based
on the statements of the private searchers, their replication
of the private search, and their expertise. This guideline is
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STATE V. TERRELL
STROUD, J., dissent
sensible because it preserves the competing objectives
underlying the Fourth Amendment’s protections against
warrantless police searches. A defendant’s expectation of
privacy with respect to a container unopened by the private
searchers is preserved unless the defendant’s expectation
of privacy in the contents of the container has already been
frustrated because the contents were rendered obvious by
the private search. Moreover, this rule discourages police
from going on fishing expeditions by opening closed
containers. Any evidence that police obtain from a closed
container that was unopened by prior private searchers
will be suppressed unless they can demonstrate to a
reviewing court that an exception to the exclusionary rule
is warranted because they were substantially certain of the
contents of the container before they opened it.
Id. at 463–64. (emphasis added).
Applying this “guideline” here, the purple thumb drive was “a closed
container” which was opened by Ms. Jones, a private searcher. Id. at 463. Ms.
Jones’s statement to Detective Bailey was that the images were all in one folder, and
she did not believe the drive had multiple folders or sub-folders. Detective Bailey
was “substantially certain” the drive would contain the “granddaughter image” as
described by Ms. Jones.
Id. Detective Bailey sought to replicate Ms. Jones’s private
search but since she did not understand the organization of the drive, he could not
go directly to the particular image he was seeking. Detective Bailey saw other
images before he found the one he was seeking, but upon finding the granddaughter
image he stopped and sought a search warrant. Detective Bailey did not go on a
“fishing expedition” after finding the granddaughter image.
Id. at 464. This case
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STATE V. TERRELL
STROUD, J., dissent
differs from any other I have been able to find because Detective Bailey limited his
search to a reasonable effort to find exactly what Ms. Bailey reported and then
stopped and got a search warrant.
Due to Detective Bailey’s attempts to limit his search only to seeking the
evidence Ms. Jones had brought to his attention, the majority’s analysis wrongly
requires perfection from a private searcher who reports finding contraband and a
law enforcement officer who seeks to confirm existence of contraband as reported by
a private searcher. Ms. Jones did not understand the internal organization of the
thumb drive but described it to Detective Bailey as best she could. And by the
majority’s analysis, unless Detective Bailey had gone directly to the specific
granddaughter image identified by Ms. Jones upon opening the drive, he would
unconstitutionally exceed the scope of her private search. But had Detective Bailey
attempted to get a search warrant without looking at the thumb drive to confirm Ms.
Jones’s report, he would not have had enough information to find probable cause to
support a search warrant. If we require perfection of private searchers and law
enforcement officers, law enforcement officers would have to get a search warrant
before trying to confirm the private searcher’s report of information on any type of
digital media or device. Otherwise, they risk inadvertently finding an incriminating
image before finding the one reported and then all of the evidence may be
suppressed. The majority places law enforcement officers in a Catch 22 of being
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STATE V. TERRELL
STROUD, J., dissent
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 two seen photos Detective Bailey found while
searching for the granddaughter image fall within the scope of the private search
doctrine, and they too were properly not suppressed by the trial court. Furthermore,
the granddaughter image and the two seen images would support probable cause for
the other ten deleted images, although I agree with the majority that is a
determination the trial court must ultimately make for itself.
IV. The Ten Deleted Images
Last, as to the ten deleted images discovered after the search warrant was
issued and upon forensic analysis of the drive, I agree that the private search
doctrine did not extend to these images. The trial court should use the information
in the search warrant affidavit and application, the granddaughter image, and the
two seen images to determine whether there was probable cause to issue the search
warrant which ultimately led to the discovery of the ten deleted images. I therefore
concur with the majority to remand to the trial court to determine probable cause
for issuance of the search warrant for the ten deleted images.
In summary, I dissent on remand regarding the images and related
convictions for secretly peeping and second-degree exploitation as to the
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STATE V. TERRELL
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granddaughter image and the convictions of third-degree exploitation as to the two
seen images. I concur in remanding for a determination of probable cause as to the
ten deleted images.
13
