The Volokh Conspiracy
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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.
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:
- If you're in the Fifth Circuit or Seventh Circuit, the government can just search the entire device without a warrant.
- 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.
- 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.
