More than thirty years ago, the U.S. Supreme Court in United States v. Jacobson, 466 U.S. 109 (1984), defined the private search doctrine. Jacobson held that the Fourth Amendment is not implicated by the government’s inspection of private effects when that inspection follows on the heels of a private party’s search and does not exceed its scope. This is because the search by the private party frustrates an individual’s reasonable expectation of privacy regarding the item or area searched.
Jacobson thus determined that federal agents’ warrantless examination of a package of cocaine discovered by Federal Express employees and their field testing of its contents was not a Fourth Amendment search. When federal agents inspected the contents of the package, they “learn[ed] nothing that had not previously been learned during the private search,” and when they tested the substance to determine whether it was cocaine, they did not abridge any legitimate privacy interest.
In the ensuing decades, state and federal courts have applied and refined this analysis to determine the lawfulness of warrantless governmental searches of videotapes, computer disks, luggage, and other items turned over to law enforcement officials by private parties. And yesterday, the North Carolina Court of Appeals in State v. Terrell, ___ N.C. App. ___ (2018), considered whether the private-search doctrine insulated from Fourth Amendment scrutiny the government’s search of a USB flash drive turned over by the defendant’s girlfriend after she discovered among its contents a photo of her nine-year-old granddaughter sleeping without a shirt on.
The facts. The defendant’s girlfriend, Jessica Jones, examined the contents of a USB flash drive that she discovered in his briefcase. She clicked through file folders to arrive at a subfolder that contained images. She scrolled through several non-incriminating images and then found the image of her granddaughter. She took the flash drive to the sheriff’s department, and told them about the image.
A detective investigating the case decided to examine the flash drive to verify Jones’ report. Without obtaining a warrant, he plugged the drive into a computer to search for the granddaughter image. While doing so, he reported that he saw images of other partially or fully nude minors posing in sexual positions. Jones had not viewed or reported these images. Using this information to support his warrant application, the detective obtained a search warrant ordering a forensic examination of the flash drive. That examination revealed twelve incriminating images located in a different subfolder than the granddaughter image. Ten of those images has been previously deleted, and thus could not have been viewed by Jones or the detective.
The procedure. Terrell was indicted on child pornography and related charges. He moved to suppress the contents of the flash drive, arguing that the detective obtained the search warrant based on evidence he acquired during an unlawful warrantless search. The trial court denied the motion, ruling that the detective’s search was lawful under the private-party doctrine. Terrell was convicted at trial and appealed.
The analysis. The State argued on appeal that the detective’s warrantless search of the thumb drive did not exceed the scope of Jones’ search; instead, it simply was more thorough. As support, the State cited the court of appeals’ determination in State v. Robinson, 187 N.C. App. 795 (2007), that a detective’s viewing of an incriminating videotape in its entirety following a private party’s partial viewing of the tape did not exceed the scope of the private party’s search. The Robinson court analogized the videotape to a container, which had been opened by the private party, thus permitting a more thorough examination by the authorities.
More than a container. The Terrell Court declined to extend the container analogy to the flash drive, which it said should not be “viewed as a single container for Fourth Amendment purposes.” Slip op. at 13. The court reasoned that, unlike a single videotape, a flash drive can store thousands of videos and other data, which may be stored with subfolders nested within larger file folders. A thorough search of such a device, said the court, is “significantly more invasive and complex” than viewing a continuous stream of footage on a videotape. Slip op. at 20. Based on the storage capacity of such devices and the complexity associated with searching them, the court declined to conclude that a private party’s viewing of some portion of a flash drive eviscerates the defendant’s expectation of privacy in its entire contents. The court noted that in reaching its decision, it was guided by the Supreme Court’s determination in Riley v. California, 134 S. Ct. 2473 (2014) that the nature of modern electronic devices implicates privacy concerns far beyond those affected by a search of other physical items.
No certainty about the contents. The court likewise rejected the State’s argument that the detective’s search of the flash drive was permissible because the detective was virtually certain that the previously unsearched folders on the flash drive contained child pornography. In applying the private-search doctrine in Jacobson, the Supreme Court had noted the “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 agent] anything more than he already had been told.” 466 U.S. at 119. In Terrell, in contrast, the private party told a detective that non-incriminating photographs were on the thumb drive; thus, the detective who searched the contents of the flash drive had little assurance that the search would not reveal private information beyond what Jones had told him or that the remaining contents of the flash drive were contraband. In short, unlike the search approved by the Supreme Court in Jacobson, the detective’s search in Terrell was not, in the court’s view, limited to confirming what had already been discovered by the private party.
More to come. The defendant argued that if the warrant application had not included the information obtained in the unlawful warrantless search – namely, that the flash drive had additional images of minors posing in sexual positions – it would not have been supported by probable cause. The trial court did not, however, make findings as to whether the application would have supplied probable cause if that information were stricken. The court of appeals thus reversed the trial court’s ruling on defendant’s suppression motion and remanded the matter to the trial court to determine whether probable cause existed without inclusion of the tainted evidence.
A dissent. Judge Stroud concurred in part and dissented in part. She wrote that she would consider the thirteen images as falling in three categories (1) the granddaughter image; (2) the two images that the detective saw before obtaining the warrant; and (3) the ten deleted images discovered in the forensic examination. She believed that the private search doctrine applied to the first two categories of images, and thus would have affirmed the trial court’s denial of the motion to suppress. Judge Stroud wrote that while she “generally agree[d] with the majority’s analysis of the private search doctrine and determination that a thumb drive is not a single container,” she thought the majority overlooked evidence demonstrating that the detective was not engaged in a fishing expedition, but was instead looking for the granddaughter image when he encountered the other two images. Stroud, J., concurring in part and dissenting in part, slip op. at 7. Once the detective found the granddaughter image, he stopped his search and applied for the warrant. Stroud complained that 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 being reported but being unable to get a search warrant without confirming the report.” Stroud, J, concurring in part and dissenting in part, slip op. at 12. As to the third category of images, Stroud agreed that remand was necessary so that the trial court could consider whether the search warrant was supported by probable cause.