North Carolina Court Deepens Split on Private Searches of Digital Evidence

An important Fourth Amendment issue that may be headed to the U.S. Supreme Court.

|The Volokh Conspiracy |

Imagine someone comes to the police and reports that she found evidence of a crime on someone else's computer that she was using.  She brings the computer to the police and asks them to investigate.  Here's the legal question:  If the police agree to investigate, what search of the computer can the police conduct without a warrant?  Can they search the entire computer? Can they search only the actual files that the private party saw?  Or can they not search the computer at all?

I have blogged over the years about this issue, which I have tended to label the "private search reconstruction doctrine." That doctrine lets the police repeat a private search of an item without a warrant, with the private party's permission, on the theory that the private party's search already eliminated Fourth Amendment rights in the item searched.

In a new decision last week, State v. Terrell, the North Carolina Supreme Court deepened the existing 2-2 circuit split on how the doctrine applies to computers.  It also added a new third answer to the questions above. The U.S. Supreme Court may take on this issue soon, perhaps in this very case.  Here is a run-down of the case and why the Supreme Court might be interested in it.

I.  The Facts

Ms. Jones is a grandmother who one day looked through her boyfriend's briefcase in search of a photograph. She found a thumb drive in the briefcase, plugged it in to a laptop, and started looking for the photo.  She opened several folders and subfolders and unexpectedly came across an extremely troubling image: A partially nude photo of her 9 year-old granddaughter.  At that point, Jones stopped the search and alerted her daughter about what she had found.

The next day, Jones and her daughter brought the thumb drive to the local Sheriff's department so they could investigate.  A detective plugged the thumb drive into a computer and started looking through it for the image of Jones's granddaughter.  As he was opening files to find that image, the detective saw other images that he thought might be child pornography.  He then found the image of Jones's granddaughter that Jones had previously found. At that point he stopped the search.

Based on what the detective had found, as well as some other evidence not relevant here, the government applied for and obtained a warrant to search the thumb drive for images of child pornography.  A forensic search of the drive revealed the image of the granddaughter in one folder and 12 images of suspected child pornography—ten of which had been deleted and therefore ordinarily wouldn't be viewable—in a second folder.

Charges followed against the boyfriend, James Terrell, who is the defendant in this case.  Terrell moved to suppress the evidence found on the computer on the ground that the warrant search was the fruit of an unconstitutional warrantless search of his thumb drive.  Specifically, Terrell argued that the detective had exceeded the scope of Jones's private search when he had searched the thumb drive without first obtaining a warrant.

The trial court admitted the evidence and Terrell was convicted and sentenced to a long prison term.  The North Carolina appeals court overturned the conviction on Fourth Amendment grounds and remanded for further proceedings. The state then brought the case to the North Carolina Supreme Court.

II. The New Ruling

A divided North Carolina Supreme Court agreed with the defendant.

First, the court rejected the rule, previously adopted by the Fifth Circuit and the Seventh Circuit, that the fact that Jones had searched the thumb drive at all had eliminated all privacy rights on the device:

We cannot agree that the mere opening of a thumb drive and the viewing of as little as one file automatically renders the entirety of the device's contents "now nonprivate information" no longer afforded any protection by the Fourth Amendment. Id. at 117. An individual's privacy interest in his or her effects is not a liquid that, taking the shape of its container, wholly evaporates merely upon the container's opening, with no regard for the nature of the effects concealed therein. This is particularly true in the context of digital storage devices, which can retain massive amounts of various types of information and which organize this information essentially by means of containers within containers. See, e.g., Orin S. Kerr, Searches and Seizures in A Digital World, 119 Harv. L. Rev. 531, 555 (2005) (stating that "[a] computer is like a container that stores thousands of individual containers").

Unlike rifling through the contents of a cardboard box, a foray into one folder of a digital storage device will often expose nothing about the nature or the amount of digital information that is, or may be, stored elsewhere in the device. As the Court of Appeals majority recognized, "[d]ata stored on a thumb drive may be concealed among an unpredictable number of closed digital file folders, which may be further concealed within unpredictable layers of nested subfolders. A thumb drive search . . . may require navigating through numerous closed file folders and subfolders." Terrell, 810 S.E.2d at 728 (majority opinion).

At this point, the North Carolina Supreme Court is taking sides on a dispute I have blogged on several times before and that I wrote about in the 2005 law review article the court (graciously) cited.  Here's the question: When applying the private search reconstruction doctrine, is the relevant unit of what is "searched" best defined as the physical device, the folder, the file, the data, or something else?

This has been the subject of a 2-2 circuit split. The Fifth Circuit and Seventh circuits have treated the unit as the device, while the Sixth and Eleventh circuits have treated the unit as something narrower, like the file or data.  The North Carolina Supreme Court rejects the Fifth and Seventh Circuit rules that the unit is the device.  I think the Fifth and Seventh Circuit approach is wrong, as I argued in my article.  So from my perspective, so far so good.

But now things get particularly interesting.  In previous cases, the question had been whether a far-ranging search for other files beyond those privately observed exceeded the private search.  Here, though, it seems that the government was just trying to find the file Jones had already seen.  Once the detective found the image that Jones had described, he stopped the search and applied for a warrant.

Did this make a difference?

According to the North Carolina court, it did not.  The government's search violated the Fourth Amendment even though the detective was only looking for the file Jones had found, the court holds, because Jones's prior search was not so exhaustive as to eliminate Fourth Amendment rights on the thumb drive as a whole. Even a search for the same image Jones had found exceeded the private search and violated the Fourth Amendment:

Following the mere opening of a thumb drive by a private individual, an officer cannot proceed with "virtual certainty that nothing else of significance" is in the device "and that a manual inspection of the [thumb drive] and its contents would not tell him anything more than he already had been told." Jacobsen, 466 U.S. at 119. Rather, there remains the potential for officers to learn any number and all manner of things "that had not previously been learned during the private search." Id. at 120. Accordingly, the extent to which an individual's expectation of privacy in the contents of an electronic storage device is frustrated depends upon the extent of the private search and the nature of the device and its contents.

. . . It is clear that Ms. Jones's limited search did not frustrate defendant's legitimate expectation of privacy in the entire contents of his thumb drive and that Detective Bailey's follow-up search to locate the image of [the granddaughter] was not permissible under Jacobsen because he did not possess "a virtual certainty that nothing else of significance was in the [thumb drive] and that a manual inspection of the [thumb drive] and its contents would not tell him anything more than he already had been told" by Jones. Jacobsen, 466 U.S. at 119; see also id. at 120 n.17 ("A container which can support a reasonable expectation of privacy may not be searched, even on probable cause, without a warrant." (citations omitted)).

. . . [T]he requirement that an officer possess "virtual certainty that nothing else of significance" is in a container is central to Jacobsen because the private-search doctrine, unlike other exceptions to the Fourth Amendment's warrant requirement, is premised fundamentally on the notion that the follow-up search is not a "search" at all. Jacobsen, 466 U.S. at 120 ("It infringed no legitimate expectation of privacy and hence was not a 'search' within the meaning of the Fourth Amendment."). If a container continues to support a reasonable expectation of privacy, it is a necessary corollary that an officer cannot proceed with a "search" of that container absent virtual certainty that he will not infringe upon that expectation of privacy.

III.  Why the Supreme Court Might Take This Case

This is a pretty unexpected rule, it seems to me. Given how much information is on an electronic storage device, it will be the exceedingly rare case when the government has virtual certainty that no other evidence is on the physical device.  As a practical matter, this would mean that the private search reconstruction doctrine doesn't apply to computers.

The new decision appears to create a three-way split with the four federal circuits that have addressed the problem.  The legal rule for the police to follow, when a private party comes to the government with a device and reports having seen evidence on it, would depend on what court you're in:

  1.  If you're in the Fifth Circuit or Seventh Circuit, the government can just search the entire device without a warrant.
  2. If you're in the Sixth or Eleventh Circuit, the government can recreate the private party's actual search to see what the private party saw, such as by asking the private party to show the government the files it had observed before.
  3. If you're in North Carolina, the government would be unable to ask the private party to show the government what the private party had found.  Instead, the government would have to ask the private party to describe what was found and hope that description is sufficient for probable cause to obtain a warrant to search the device.

I wouldn't be at all surprised if the state petitions for cert in this case, and I wouldn't be surprised if the U.S. Supreme Court grants that petition.  In addition to there being a deep split in the federal circuits, the result in this case is pretty surprising in light of prior caselaw. This might be an appealing case for the U.S. Supreme Court to take.

IV.  The Added Jones Issue, and Justice Gorsuch's Possible Different Approach

Here's another interesting wrinkle to consider. The Jacobsen case that introduced the private search reconstruction doctrine was decided before Jones, back when the Supreme Court spoke only of the Katz expectations of privacy and not of Jones intrusions.  In United States v. Ackerman, 831 F.3d 1292 (10th Cir. 2016), then-Judge Gorsuch indicated that he thought the private search reconstruction doctrine might be a dead letter after Jones:

Jacobsen said no "search" implicating the Fourth Amendment took place even when officers exceeded the scope of the search previously performed by the private party and removed and destroyed a small amount of powder to conduct a drug test. In doing so, Jacobsen invoked Katz and held there was no "reasonable expectation of privacy" in concealing whether something is or isn't contraband. See 466 U.S. at 122-23. But after United States v. Jones, 132 S. Ct. 945 (2012), there's reason to wonder about that conclusion. After all, Jones held that the Katz formula is but one way to determine if a constitutionally qualifying "search" has taken place. Id. at 949-51. In light of the Fourth Amendment's original meaning, Jones explained that government conduct can constitute a Fourth Amendment search either when it infringes on a reasonable expectation of privacy or when it involves a physical intrusion (a trespass) on a constitutionally protected space or thing ("persons, houses, papers, and effects") for the purpose of obtaining information. So the fact the government's conduct doesn't trigger Katz doesn't mean it doesn't trigger the Fourth Amendment. Id. at 950 ("Fourth Amendment rights do not rise or fall with the Katz formulation. . . . [F]or most of our history the Fourth Amendment was understood to embody a particular concern for government trespass upon the areas . . . it enumerates. Katz did not repudiate that understanding.").

Reexamining the facts of Jacobsen in light of Jones, it seems at least possible the Court today would find that a "search" did take place there. After all, the DEA agent who performed the drug test in Jacobsen took and destroyed a "trace amount" of private property, 466 U.S. at 125, a seeming trespass to chattels. Neither is there any question that the purpose and effect of the agent's action was to obtain information. See id. at 122-23. And while the destruction of only a "trace amount" of private property might not amount to a trespass under modern tort law, even less was required to establish a claim of trespass to chattels at the time of the founding — and we know the Fourth Amendment is no less protective of persons and property against governmental invasions than the common law was at the time of the founding. Jones, 132 S. Ct. at 950, 953; id. at 957 n.2 (Alito, J., concurring in the judgment) ("At common law, a suit for trespass to chattels could be maintained if there was a violation of 'the dignitary interest in the inviolability of chattels,' but today there must be 'some actual damage to the chattel before the action can be maintained.'" (quoting W. Keeton et al., Prosser & Keeton on Law of Torts § 14, at 87 (5th ed. 1984))).

For what it's worth, I'm skeptical that Justice Gorsuch's suggested position works as an originalist argument.  But whether or not the argument works, it means that there would be two issues in the case before the Supreme Court—both Katz and Jones.

The North Carolina Supreme Court flagged Jones as an issue but didn't get into it. "Given our holding," Footnote 5 states, "we need not address defendant's argument that the private-search doctrine cannot survive in light of Jones."  But Jones is an interesting wildcard if the case gets before the U.S. Supreme Court, as there's a decent chance Justice Gorsuch would be a libertarian vote on the defense side using a Jones framework.

As always, stay tuned.

NEXT: Court Rules Cop Who Shot Unarmed 15-Year-Old Is Protected by Qualified Immunity

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  1. This 4A stuff is way over my head, so I have to stick to the simpler stuff :

    The next day, Jones and her daughter brought the thumb drive to the local Sheriff’s department so they could investigate.

    Why is this not theft, and why is the Sheriff not an accesory after the fact ?

    1. Lee, it’s probably not theft because there doesn’t seem to be intent to permanently deprive. And the Sheriff isn’t liable for a host of reasons, among them implied exceptions that apply to government possession and the absence of the same intent.

      1. I’m sure you’re right. It’s just that I have an ancient memory of being told that you shouldn’t rely too much on that “intent to permanently deprive” bit because of judicial creativity. Thus – I was told – someone had been successfully convicted of theft, convicted upheld on appeal, even though they planned to give the item back in a week or so, because they had permanently deprived the owner of the use of the thing for a week or so. (No idea what jurisdiction.)

        Still, if this is a false memory, or a true memory of false advice, or otherwise irrelevant it seems to open up quite a few useful vistas. I’m sure Mrs Moore would be happy for me to borrow some diamonds from the jewellers for, oh, five years or so. She’d probably want to swap ’em out then anyway.

    2. “why is the Sheriff not an accesory after the fact ?”

      You’ve got a fundamental conundrum. Who has lawful ownership and possession of the child porn? Nobody? Then nobody was deprived of the ownership and possession of it.

      1. Who has lawful ownership and possession of the child porn?

        Don’t know, don’t care. The property that disappeared from Mr Terrell’s briefcase and finished up in the Sheriff’s office was a thumb drive. And that’s not a tricky one. It belonged to Mr Terrell.

        1. “It belonged to Mr Terrell”

          And it continues to do so, at all points of the story. There might be a tort here, of trespass to chattels, but there isn’t a theft.

      2. But there may well have been other property on the thumb drive that wasn’t child porn and had significant value.

        1. Which would have been returned to Mr. Terrell.

      3. – “You’ve got a fundamental conundrum. Who has lawful ownership and possession of the child porn? Nobody? Then nobody was deprived of the ownership and possession of it.”

        The image data was not the sum total of what was taken. Your comment is like saying that it’s legal for someone to take your wallet without your permission because in addition to your cash, credit cards and drivers license it also contains a photograph that is illegal for you to possess.

        1. “Your comment is like saying that it’s legal for someone to take your wallet without your permission because in addition to your cash, credit cards and drivers license it also contains a photograph that is illegal for you to possess.”

          Er, no. If you get pulled over, and you hand your wallet to the cops cops so they can check your ID, and your little baggie of meth falls out, You will get your wallet back, but not your little baggie of meth. The only thing you’ve been permanently deprived of was your meth, and you didn’t have lawful possession of your meth in the first place. Therefore, nothing has been stolen from you.
          When the Sheriff takes your thumb drive with child porn images on it, and uses those images to prosecute you for possessing child porn images, you’ll get your thumb drive back… but not the child porn images. You didn’t lawfully possess the child porn images, so when you don’t get those back, nothing has been stolen from you. So, with nothing stolen from you, there’s nobody guilty of stealing from you.

          1. You appear to be misunderstanding the question that was asked. It was not with regard to taking the image, but rather taking the drive itself (and everything else that was on it at the time).

            1. And that’s even ignoring the silliness of equating someone taking your property without your permission with you voluntarily handing it to law enforcement.

            2. “You appear to be misunderstanding the question that was asked.”

              You appear to be misunderstanding the answer that was given.

              1. The question:

                “The next day, Jones and her daughter brought the thumb drive to the local Sheriff’s department so they could investigate.

                Why is this not theft, and why is the Sheriff not an accesory after the fact ?”

                The question is with regard to the taking of the thumb drive.

                Your non-answer:

                “Who has lawful ownership and possession of the child porn? Nobody? Then nobody was deprived of the ownership and possession of it.”

                Is English not your primary language?

                1. “The question is with regard to the taking of the thumb drive.”

                  And the answer is that theft requires an intent to permanently deprive the lawful owner of possession, which is an element that is not met by the Sheriff seizing it as evidence. The only thing the Sheriff intends to permanently deprive the defendant of is the contraband images, to which the defendant is not legally entitled to possession in the first place.

                  “Is English not your primary language?”

                  Since you’re the one struggling with it, this question seems misplaced.

                  1. – “And the answer is that theft requires an intent to permanently deprive the lawful owner of possession”

                    That *would* have been the correct answer (in fact that answer was already given prior to your post). But it wasn’t the answer you gave. The answer you gave was with regard to legal ownership of a single file on the thumb drive, which the question was not about.

                    Keep trying.

                    1. “That *would* have been the correct answer”

                      Kind of you to concede so gracefully.

  2. In what way is law enforcement even inconvenienced if after the detective hears from Jones, there is probable cause, and a need for a warrant which specifies whatever extent of search the existing probable cause (from Jones) has established? Is the premise here that because computers are so chock full of stuff, law enforcement needs leeway to search beyond what probable cause has indicated, to see if they can find more?

    Or is it because even searching to confirm the initial report creates a likelihood of finding other criminally relevant stuff? Why not tailor a warrant to match that contingency? Seems like the plain requirement is to say in the warrant with specificity what are the boundaries of the search. If a search turns up evidence from an out-of-bounds location, that ought to be right out. As a practical matter, the least-encompassing boundary relevant to the probable cause seems like the right choice. So not the whole device, not multiple directories, not the deleted files, just the folder with the evidence in it.

    How else can you keep the spirit of the 4A alive in the digital age? Anything less restrictive puts an entire digital life in plain sight. Perhaps that is what law enforcement wants, but does telling them, “no,” in any way constrict the scope of search they could have expected to get pre-digitally? In a case like this one, wouldn’t a pre-digital warrant have been based entirely on what a witness told to law enforcement?

    I am sure actual law enforcement experience can demonstrate my expectation is naive. I ask for the benefit of that experience. What is the argument which says a computer somehow restricts law enforcement’s ability to get evidence, compared to what could have been found pre-digitally? Is it the problem that previously the warrant would say something like, “Search the top drawer in the file cabinet for document X,” and the practicality was that everything found in the file cabinet was deemed within the scope—and now law enforcement wants the same liberality of interpretation in the digital age?

    For someone not versed in 4A law, it is quite difficult to understand what is the back-story which may be tacitly playing out in the foreground as these digital cases are considered.

    1. Stephen, hi. I recognize your strong priors on Fourth Amendment issues, but here are two thoughts in response that push back a bit:

      1) It seems to me that the decision here gives people more privacy rights in their digital devices than they would have in their mere physical places like the home. If Jones found her boyfriend’s drugs, she could invite the police into their home and show them the drugs. That would be a question of third party consent, and as long as Terrell isn’t present and objecting at that moment, the consent would be valid and no warrant would be needed. The court’s rule here restricts the police far more, treating computers as a place that can’t be entered when a mere home could be so entered. Maybe that’s the right rule or maybe it’s the wrong one. But I’m not sure it works to see this case as an example of how the Fourth Amendment is meaningless in the digital age.

      2) The “inconvenience” to the police is that the private party account is less likely to be reliable, and therefore less likely to lead to a proper search or proper decision not to search, than an officer’s direct experience. Private parties ordinarily are not well trained in legal questions like whether what they previously saw at some time in the past technically constitutes child p*rn. If Jones comes in and says that she saw a picture that troubled her, she will have to recall from memory what the picture looked like and she may not be articulate in doing so. It may be difficult for the officer to tell if her account creates probable cause. That could lead to a wrongful search if the image is not actually child p*rn, invading privacy, or a decision not to search when the image is such and a search would be proper. Allowing the officer to see the image that the private party saw allows the officer who is trained in the law to make the officer’s own assessment of whether the evidence amounts to probable cause. Of course, that doesn’t mean that the court adopted the wrong rule. But if you think the police should have to show a need for a rule that allows a warrantless search, I think that is the case for that need.

      1. I agree with your 1) and feel this is simply a matter of a person finding evidence of suspected criminal activity who then turns it over to law enforcement.

        For 2), seriously, you can’t spell out porn?

        1. I’m betting he knows how to spell it. But he may not want this site to show up in google searches for the two-word phrase C_ P_.

          1. If that were the case, they’d put in a nanny-filter on the comments that would push submitted comments into moderation for using the phrase.

      2. If Jones found her boyfriend’s drugs, she could invite the police into their home and show them the drugs.

        I think there are a couple of reasons why this is not such a close parallel. Jones didn’t do the equivalent of showing the police the drugs, it was closer to telling them she saw drugs somewhere in the house but can’t tell them where, leading them to institute a thorough search. Third-party consent for broad searches though depends on the consenting individual’s actual or apparent common authority over the place to be searched, and there is no indication that a shared thumb drive was involved.

      3. It seems to me that a digital container in this case should be treated, not the same as a house, but the same as a physical container. What would the case be if grandma brought them the whole briefcase and said the saw child pornography in it?

      4. – “If Jones found her boyfriend’s drugs, she could invite the police into their home and show them the drugs. That would be a question of third party consent, and as long as Terrell isn’t present and objecting at that moment, the consent would be valid and no warrant would be needed.”

        The home is “theirs”. In this case, it appears that the thumb drive, as well as the brief case that Jones was digging through was Terrell’s property, not Jones’. What indication was there that Jones had shared authority over the drive (or the brief case)?

        1. ” In this case, it appears that the thumb drive, as well as the brief case that Jones was digging through was Terrell’s property, not Jones’.”

          That’s only relevant if the cops knew it at the time.

          ” What indication was there that Jones had shared authority over the drive”

          Possession. What evidence was there that Jones had no authority over the drive?

    2. “How else can you keep the spirit of the 4A alive in the digital age?”

      You could encrypt your child porn, Stephen. Use the security features built into your modern-day operating system to limit access to the things you want to limit access to. If you leave your contraband in plain sight, your 4A rights are not infringed just because a cop saw them and you didn’t want any cops to see it. You have to actually take steps to keep your privacy, if you want the cops to respect your privacy (contraband or no).

      If you like to walk around your house naked, that’s your business. If, at the same time, you don’t like other people to see you naked, close the drapes. Build a privacy fence. Grow a hedge.

      1. – “If you leave your contraband in plain sight”

        Please explain to the class how digital data stored in a thumb drive (or any other digital data storage device/medium) equates to to something that is “in plain sight”.

        1. OK, for the slow, when data is stored in a FAT32 file system, anyone can examine the full contents of the device Another way of saying “anyone can see this” is that it is “in plain sight”.
          By contrast, if you encrypt the contents of a file system, then the only people who can see the contents are those who have access to the decryption key. Anyone else cannot see the contents of the file.
          NTFS is more complicated, because there are some things that can be used to limit access to the contents of the filesystem, but any of them EXCEPT encryption can be overcome by the skilled professional with the correct tools at hand, such people as are employed by the police department and various private entities available for hire, and the tool kits found in their offices.

          It’s kind of like the difference between and open window and a locked door. One improves privacy, and the other does not.

          Encryption isn’t the only solution… one can limit physical access to the media, as well. But the law regarding that method is not particularly fluid; it’s well-understood.

          1. – “OK, for the slow”

            That particular ad hominem is quite funny considering the utter cluelessness of the remainder of your comment (not to mention most of your other blathering as well).

            – “when data is stored in a FAT32 file system, anyone can examine the full contents of the device Another way of saying “anyone can see this” is that it is “in plain sight”.”

            Can they see the contents of the device simply by looking at it while it’s sitting on a desk (or wherever it happens to be)? Or do they have to take some specific actions, using a specific type of tool in order to view the contents thereof?

            – “It’s kind of like the difference between and open window and a locked door.”

            It’s nothing like that at all. It’s more like the difference between a locked door and an unlocked door on your house. Your house is “in plain sight”, but any contents of your house that are not readily visible through a window or some opening are NOT “in plain sight”, nor does the fact that anyone could just open your unlocked front door make them “in plain sight”.

            The absence of a security mechanism on a container does magically render the contents of that container “in plain sight”.

            1. Correction: “does magically render the contents” should obviously be “does not magically render the contents”

            2. “That particular ad hominem is quite funny considering the utter cluelessness of the remainder of your comment (not to mention most of your other blathering as well)”

              This one, though, is just dumb through-and-through.

              “Your house is “in plain sight”, but any contents of your house that are not readily visible through a window or some opening are NOT “in plain sight”,”

              They are, if the cop happens to be lawfully present inside your house.

              1. – “They are, if the cop happens to be lawfully present inside your house.”

                The cop had no warrant and was not invited in by anyone who had the authority to do so. Now what?

                1. Oh, we’re adding details after the other person has responded? Fine. It was the cop’s house. Your turn.

                  1. – “Oh, we’re adding details after the other person has responded?”

                    We? Do you have a mouse in your pocket? I’m sticking to the already existing details of the original case, rather than making up new ones…which is what you’re doing.

                    The digital contents of the thumb drive are not in plain sight any more than the contents of a closed opaque brief case are. Anyone can physically open the brief case and look inside, but that does not mean that the contents were plainly visible before that. And a digital data storage device is inherently even more opaque, as you can’t simply physically “open” it and view the contents. You need to use computer hardware and software to not only access the “contents”, but to interpret those contents and present that interpretation in a human-understandable form.

                    Furthermore, in the case in question, the LEO was NOT lawfully “inside” the thumb drive (home), as he did not have permission to search it from anyone with the authority to give that permission, and had no warrant to conduct the initial search for even the single file he was told about, and was prohibited from conducting such a warrantless search by 4A. That’s the whole point of this article.

                    1. ” I’m sticking to the already existing details of the original case”

                      But you didn’t START doing that until you were six levels deep in a comment thread about something else.
                      That’s why you’re being ignored.

  3. What’s really astonishing about this case is the North Carolina Supreme Court taking a liberal position in favor of a criminal defendant – an accused sex offender at that – on a constitutional rights issue.

  4. There are two related questions.

    First, Joe Citizen walks into the police station and says “I saw child porn on Fred Badguy’s computer.” Is that sufficient probable cause to obtain a warrant to examine Badguy’s computer?

    Second, take a case similar to this one. A witness comes in and alleges a photo exists on the drive, and can describe it thoroughly and can even describe the filename and what folder it’s in. If the cops get a warrant, can they expand the search from that file (yep, that’s child porn all right!) to search other files and folders, and do forensic examination, or do they need a second warrant application to go fishing?

  5. Modeling this after a search of your physical papers in reverse, I assume if she saw a printed picture on top of 74 unlockled file cabinets, they’d need a warrant to start rummaging through it all, unlike drugs spied?

    1. Is finding one image outside of the file cabinets even sufficient to get a warrant to search the cabinets? I mean, unless the label on one of the drawers reads “raunchy kiddie porn etc.”?

  6. So the year is 2028. I break into my neighbor’s house in Sacramento to steal some yogurt, confident no harm will come to me because all guns in the state have been confiscated. On the way to the fridge, to my astonishment, I see an assault rifle. Immediately I run to the police department and tell them what I saw because I know it’s a crime to have one. In turn, the police immediately break down my neighbor’s door and enter the house to search for the assault rifle. They find it, and when they pick it up, they see it had been placed on top of a photo of my neighbor making a Nazi salute. In blackface! So the police get a warrant to search the rest of his house and find all kinds of bad stuff.

    Sure that’s a little silly, but the initial police search in my example, imo, isn’t much different than the initial police search of the usb drive in the NC case. The police should have used grandma’s info to get a warrant, and then they coukd knock themselves out searching. There were no exigent circumstances in the NC case. Get a warrant.

    1. What if the grandmother went to police and merely said, “I found this thumbdrive and think there are unlawful pictures on it, can you take a look?”

      What if the grandmother looked at every photo and relayed all her findings to the police?

      In either of those scenarios, is it right that the evidence would not be suppressed?

      1. Didn’t mean to reply to yours!~

  7. Professor Kerr wrote:

    “Here’s the legal question: If the police agree to investigate, what search of the computer can the police conduct without a warrant?”

    Seems to me that: A computer (or thumb drive) can be compared to a cardboard box containing many letters, envelopes, folders, files, documents and pictures. If a creditable person walks into a police station with the box and reports that the box contains a picture that is likely child pornography then police experience would dictate that the entire box is reasonably suspect and consequently searchable . . . if not, then it should be for no other reason than the most helpless among us need and should have enhanced protection.

    1. Except that the entire box is not “reasonably suspect and consequently searchable”. Or more accurately, that is reasonable suspicion necessary to get a warrant, not to go digging through the box without bothering about due process.

      Your assessment of the person as creditable should be undermined by the fact that the person’s ownership of the box and right to divulge it to the police is at best questionable. This was not a box left unattended at the bus station. This was a box with a closed lid inside a briefcase in a private home. If the owner of the briefcase doesn’t have a reasonable expectation of privacy in that situation, then the phrase has little remaining meaning.

      1. ” If the owner of the briefcase doesn’t have a reasonable expectation of privacy in that situation, then the phrase has little remaining meaning.”

        If the cops bust in, seize the thing, and search it, that’s not ambiguous. At the other end, if they knock politely on the door, and then ask the person who answers the door if they can please come in and look at the contents of some thumb drives, and the person says “yes”, that’s a consent search*. Recall that the 4A doesn’t preclude searches, it precludes unreasonable searches, and searching with consent is reasonable unless the consent is suspect.
        This one is between the poles. There is some accumulated case law on where things that aren’t at either end of the spectrum get worked out, including some that went both ways on whether seeing what’s stored in an electronic device is a “search” in the first place. The law is currently swinging one way on that subject, but hasn’t always been, and never has been clear (because it all depends on how you analogize.)

  8. I’m only writing to take issue with the title of this post.

    The split was 2-2. There’s no way the court could have ruled in a way that would not have “deepened” that split.

    1. They could have declined to take on the case. That wouldn’t have deepened the split.

      1. If there were a split in the NC appellate courts, the split may have been deepened by the NC supreme court refusing to hear the case.

        Or maybe a split among state lower courts would have lengthened the split. Perhaps even widened it.

        1. Jubulent, I was using the phrase in the way that I think it is used in Supreme Court circles — effectively, as a signal of how many circuit courts and state supreme courts have weighed in on the issue, and how much disagreement there is about the rule, which is a key question in terms of whether SCOTUS will agree to hear the case. Here the NC court took a position on the issue and added a third possible rule, so I think of that as deepening the split.

          1. This is, of course, a bit of frivolity.

            “Deepen” in this context seems to mean making the difference between the two sides more profound. Adding more participants to one side or the other doesn’t change the nature of the split, or drive the sides further apart.

            If there’s a third solution, then you might say that the NC court “complicated” the split, or “bifurcated” if you really want to torture the analogy.

            With more circuits bringing this the issue to the Supreme Court’s attention, you might even say that this decision heightens the split.

            1. I suppose the nature of language communities is that your opinion of what would be a logical meaning may not match their understanding of words and how they are used.

  9. What if the grandmother went to police and merely said, “I found this thumbdrive and think there are unlawful pictures on it, can you take a look?”

    What if the grandmother looked at every photo and relayed all her findings to the police?

    In either of those scenarios, is it right that the evidence would not be suppressed?

    1. You need more details to answer the question, because if the granny looks through the thing as an agent of the law-enforcement agency you get a different answer than if she had already done all the looking before coming to an agent of the state.

  10. Cursory review indicates there is a single Republican on the North Carolina Supreme Court, and that there was a single dissenter in State v. Terrell who would have ruled for State (the government) against Terrell (the citizen).

    Any guesses on correlation?

    (It is always good to see that someone informed and reasonable, such as Prof. Kerr, is tackling these important and developing issues. Also good to see judges within the liberal-libertarian mainstream safeguarding citizens’ rights.)

    1. “It is always good to see that someone informed and reasonable, such as Prof. Kerr, is tackling these important and developing issues.”

      That’s rather like exclaiming it’s good to hear a horse neigh.

      Though we hardly need his knowledge and keen eye when we have your cursory reviews of partisan affiliation.

    2. One Republican on the North Carolina Supreme Court, yet I am assured by this very commentator that North Carolina – because a majority of its citizens weren’t With Her in 2016 – is full of deplorables.

      The mind boggles.

  11. “As a practical matter, this would mean that the private search reconstruction doctrine doesn’t apply to computers.”

    Not so sure that is true. One can search for an *exact* filename and pull up only that file. In this case, the private party could have simply recorded the filename, and the detective could pull up only that file. Since its an image in this case, the private party could take a picture with their phone.

    1. ” One can search for an *exact* filename and pull up only that file.”

      No, unless either A) the file is in the current directory (folder) and you don’t do a full recursive search, or B) you know exactly which directory it is in, and specify this when you start the search. A mass storage device (such as a hard drive or a flash drive) may have many files of the same name contained within it.

    2. ” Since its an image in this case, the private party could take a picture with their phone.”

      Thus creating a child-porn image on their phone. That’s a felony.

  12. Since the “partially nude” photo wasn’t adequately described in the article and the subsequent claims of other photos found on the thumb drive “might be child porn” I’m wondering if the photos actually met the Supreme Court definition of child porn in the Ashcroft V Free Speech ruling.
    The Court ruled that child porn was an identifiable minor engaged in sexually explicit conduct. Thus nude photos of minors which are not sexually explicit, even if the genitals can be seen, are not child porn.
    I have noted from news articles that a number of states still consider nude photos child porn.

    1. “The Court ruled that child porn was an identifiable minor engaged in sexually explicit conduct”

      Look up the definition of “sexually explicit conduct” in the federal statute. It covers a lot of things that you might otherwise struggle to identify as “sexual”, including posing alone.

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