State v. Terrell

IN THE SUPREME COURT OF NORTH CAROLINA

No. 55A18

Filed 16 August 2019

STATE OF NORTH CAROLINA

v.
JAMES HOWARD TERRELL, JR.

Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of

the Court of Appeals, 810 S.E.2d 719 (N.C. Ct. App. 2018), reversing in part an order

on defendant’s motion to suppress and remanding for additional proceedings

following an appeal from judgments entered on 17 November 2016 by Judge Beecher

R. Gray in Superior Court, Onslow County. On 20 September 2018, the Supreme

Court allowed the State’s petition for discretionary review of additional issues. Heard

in the Supreme Court on 5 March 2019.

Joshua H. Stein, Attorney General, by Derrick C. Mertz, Special Deputy
Attorney General, for the State-appellant.

Glenn Gerding, Appellate Defender, by Michele A. Goldman, Assistant
Appellate Defender, for defendant-appellee.

EARLS, Justice.

Here we are asked to decide whether a law enforcement officer’s warrantless

search of defendant’s USB drive, following a prior search of the USB drive by a private

individual, was permissible under the “private-search doctrine.” The Court of

Appeals concluded that the warrantless search violated defendant’s Fourth
 STATE V. TERRELL

Opinion of the Court

Amendment rights and remanded to the trial court for a determination of whether

there was probable cause for the issuance of a search warrant without the evidence

obtained from the unlawful search. State v. Terrell, 810 S.E.2d 719 (N.C. Ct. App.

2018). We affirm.

Background

In February 2013, defendant, James H. Terrell, Jr., returned from overseas

work as a contractor in the Philippines and resumed living with his long-time

girlfriend, Jessica Jones, in her home.1 Defendant and Ms. Jones had been in a

relationship for over ten years and had two children together. Ms. Jones also had an

older daughter from an earlier relationship, Cindy, who had a daughter, Sandy.

On 13 January 2014, while defendant was at work, Ms. Jones began searching

for a photograph of defendant’s housekeeper in the Philippines in order “to put a face

to the person[ ]” of whom defendant had spoken. Ms. Jones located and opened

defendant’s briefcase, in which she found paperwork and three USB “thumb drives,”

one of which was purple. After plugging the purple USB thumb drive (the thumb

drive) into a shared computer, Ms. Jones “opened it” and began clicking through

“folders and sub-folders.” Ms. Jones later stated at the suppression hearing that she

observed “images of adult women and . . . children” that “were not inappropriate,”

images of the housekeeper in the Philippines, and images of a “childhood friend” of

1 Like the Court of Appeals, we use pseudonyms in reference to Ms. Jones, Cindy, and
Sandy.

-2-
 STATE V. TERRELL

Opinion of the Court

defendant’s. Ms. Jones testified: “I honestly do not recall any images of [defendant]

and I. And in those pictures there are no images of him. There are just pictures of

women and the young ladies I just spoke of.” According to Ms. Jones, “the pictures

were all in one folder and then the other folders were like movies because [defendant]

likes military movies,” and she did not “think the folders had a title. It was just a

thumb -- it’s the title of the thumbdrive, purple rain.” As Ms. Jones “got past” the

images of defendant’s childhood friend, she saw an image of her granddaughter,

Sandy, who was nine years old at the time, sleeping in a bed “and . . . exposed from

the waist up.” Upon seeing the image of Sandy, Ms. Jones became upset and ceased

her search of the thumb drive.

That evening, after Ms. Jones had spoken with her daughter, Cindy, and “let[

] her know what [she] had discovered,” together they took the thumb drive to the

Onslow County Sheriff’s Department. Ms. Jones and Cindy met with Detective

Lucinda Hernandez, reported what Ms. Jones had discovered on the thumb drive,

and left the thumb drive with Detective Hernandez. Detective Hernandez “did not

view the purple flash drive,” but “accepted [it] and logged it into the Crime Scene

Investigation (CSI) Unit of the Onslow County Sheriff’s Department.”

On the following day, Ms. Jones and Cindy met with Detective Eric Bailey at

the Sheriff’s Department and explained what they had discovered on the thumb drive.

After meeting with Ms. Jones and Cindy, Detective Bailey “went down to the CSI

department . . . to verify the information.” Detective Bailey, with the assistance of a

-3-
 STATE V. TERRELL

Opinion of the Court

member of the CSI Unit, plugged in the thumb drive and went “through checking it

to try to find the image that [Ms. Jones] stated that was on there”—“a nude or

partially nude photograph of her granddaughter.” Detective Bailey stated: “As I was

scrolling through, of course, there was a lot of photos in there so I’m clicking trying

to find exactly where this image is located at. I observed several -- multiple images

of adult females and also [defendant] together clothed, nude, partially nude.” As he

was trying to locate the image of Sandy, Detective Bailey discovered what he believed

might be child pornography; specifically, he “observed other young females,

prepubescent females, unclothed, also some that were clothed.” Eventually, Detective

Bailey “[s]tarted to observe other photographs of women overseas, and then finally

happened upon the photograph with the granddaughter.” At that point, Detective

Bailey ceased his search of the thumb drive and left it with the CSI Unit.

Detective Bailey applied for a search warrant on 5 February 2014 to search the

thumb drive and other property of defendant “for contraband images of child

pornography and evidence of additional victims and crimes committed in this case.”

In his affidavit attached to this initial search warrant application, Bailey did not state

that he had already searched the thumb drive or include any information he obtained

from that search. Bailey instead relied on information from Ms. Jones, including her

allegation that she had discovered the image of Sandy on defendant’s thumb drive,

as well as allegations that Ms. Jones’s other daughter had at some point previously

told Ms. Jones that defendant “touched me down there” and that later a floppy disk

-4-
 STATE V. TERRELL

Opinion of the Court

containing child pornography had been discovered in defendant’s truck. A magistrate

issued the warrant but, according to Bailey, he had to apply for another search

warrant because he “received a call from the [State Bureau of Investigation] stating

that they wanted additional information on the search warrant.” Accordingly,

Detective Bailey applied for another search warrant on 5 May 2014, which was issued

by a magistrate on the same day. In the affidavit supporting this second warrant

application, Bailey included information from his search of the thumb drive, stating

that he saw “several partially nude photographs of” Sandy and “severally fully nude

photographs of an unknown child standing beside and [sic] adult female in various

sexual positions.”

Pursuant to the second warrant, an SBI agent conducted a thorough “forensic

examination” of the thumb drive, which was titled “purple rain” and contained

various folders and subfolders. The SBI agent discovered the image of Sandy in a

folder named “red bone” and he uncovered twelve additional incriminating images

located in a different folder named “Cabaniia.” Ten of those twelve images had been

deleted and archived and would not have been ordinarily viewable without a “forensic

tool.” Defendant was indicted for four counts of second-degree sexual exploitation of

a minor, one count of possessing a photographic image from peeping, and twelve

counts of third-degree sexual exploitation of a minor.

Defendant filed a pretrial motion to suppress “any and all evidence obtained

as a result of” Detective Bailey’s search of his thumb drive, arguing that Bailey

-5-
 STATE V. TERRELL

Opinion of the Court

“conducted a warrantless search of property in which the Defendant had a ligitimate

[sic] expectation of privacy,” that the 5 May 2014 search warrant was based on

evidence unlawfully obtained from that search, and that in the absence of that tainted

evidence the search warrant was unsupported by probable cause. At the suppression

hearing, after receiving testimony from Ms. Jones and Detective Bailey and

considering the arguments of the parties, the trial court orally denied defendant’s

motion. In a written order dated on 29 November 2016, the trial court found, in

pertinent part:

2. . . . [Ms. Jones’s] stated purpose for looking in
defendant’s briefcase was to put a face to someone that
defendant had talked about. Ms. [Jones’s] entry into
defendant’s briefcase and the contents therein were
solely at her own volition and not connected with or at
the suggestion of any law enforcement person or
organization.

3. [Ms. Jones] inserted the purple flash drive into a shared
Apple computer and discovered, among other visual
representations, a picture of her granddaughter,
[Sandy], who appeared to be asleep and who was nude
from the waist up with breasts displayed. After
consulting with her daughter, the mother of [Sandy],
Ms. [Jones] and her daughter, on January 13, 2014,
took the purple flash drive to the Onslow County
Sheriff’s Department.

....

5. On January 14, 2014, [Ms. Jones] again appeared at the
Onslow County Sheriff’s Department to meet with
Detective Eric Bailey concerning the purple flash drive
and the contents that she had seen on that flash drive.
Detective Bailey discussed with Ms. [Jones] the visual

-6-
 STATE V. TERRELL

Opinion of the Court

representations she had discovered on the purple flash
drive.

6. Following his discussion with [Ms. Jones], Detective
Bailey went to the CSI Unit to confirm on the purple
flash drive what he had been told by [Ms. Jones]. . . .
The CSI technician placed the purple flash drive into
CSI’s computer and selected the folder that had been
identified by [Ms. Jones] as containing the picture of her
granddaughter [Sandy]. This viewing in the CSI Unit
confirmed what [Ms. Jones] had told Detective Bailey
that she had discovered on the flash drive. In addition
to the picture of [Sandy] Detective Bailey saw
photographs of other nude or partially nude
prepubescent females posing in sexual positions.

7. The images observed by Detective Bailey corroborated
the information provided to him by [Ms. Jones]. Based
upon that corroboration and [Ms. Jones’s] statements,
Detective Bailey then obtained a search warrant in
order to conduct a complete and thorough forensic
examination of the purple flash drive.

8. Detective Bailey’s initial search and examination of the
purple flash drive in the CSI Unit did not exceed the
scope of the private, prior search done by [Ms. Jones],
but could have been more thorough.

Based on these findings, the trial court concluded, in relevant part:

2. [Ms. Jones’s] viewing of the purple flash drive did not
violate the Fourth Amendment because she was a
private party not acting under the authority of the State
of North Carolina. Her viewing of the purple flash drive
effectively frustrated Defendant’s expectation of
privacy as to the contents of the purple flash drive, and
thus the later viewing by Detective Bailey at her
request and upon presentation of the flash drive to [law
enforcement] did not violate Defendant’s rights under
the Fourth Amendment.

-7-
 STATE V. TERRELL

Opinion of the Court

3. None of the Defendant’s rights under the Constitution
or laws of the United States of America or of the
Constitution or laws of the State of North Carolina were
violated during the seizure and search of the purple
flash drive in this case.

Accordingly, the trial court denied defendant’s motion to suppress.

At trial, at the close of all evidence, the State elected not to proceed on three

charges of second-degree sexual exploitation of a minor and dismissed those counts.

The jury convicted defendant of the remaining fourteen counts and the trial court

sentenced him to twelve consecutive terms of five to fifteen months each, plus a

concurrent term of twenty to eighty-four months for the second-degree sexual

exploitation charge. The court imposed a suspended sentence for the secret peeping

conviction. Defendant appealed the trial court’s denial of his motion to suppress.

At the Court of Appeals, defendant first argued that the trial court erred in

concluding that Jones’s viewing of the thumb drive effectively frustrated his

expectation of privacy in the device’s entire contents, thereby permitting Detective

Bailey to subsequently conduct a warrantless search of all the thumb drive’s digital

data. State v. Terrell, 810 S.E.2d at 727. The Court of Appeals majority agreed,

noting that North Carolina courts had not previously considered the “private-search

doctrine” in the context of electronic storage devices. Id. at 728; see also id. at 727

(explaining that under the “private-search doctrine,” “[o]nce 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

-8-
 STATE V. TERRELL

Opinion of the Court

obtained without a warrant” (citing United States v. Jacobsen, 466 U.S. 109, 117

(1984))).

The majority distinguished the Court of Appeals’ prior decision in State v.

Robinson, in which the court concluded that police could permissibly view an entire

videotape after a private searcher viewed only portions of that videotape because “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 728 (first

alteration in original) (quoting State v. Robinson, 187 N.C. App. 795, 798, 653 S.E.2d

889, 892 (2007)). The majority rejected the State’s contention that the thumb drive

was a similar “container” that, once opened, frustrated any expectation of privacy in

the device’s entire contents. Id. at 728–29. According to the majority, “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. . . . One

thumb drive may store thousands of videos, and it may store vastly more and different

types of private information than one videotape.” Id. at 728. In reaching this

conclusion, the majority noted that it was “guided by the substantial privacy concerns

implicated in searches of digital data that the United States Supreme Court

expressed in Riley v. California.” Id. at 729 (citing Riley, 134 S. Ct. 2473, 2485

(2014)).

Turning to the search at issue, the majority stated that under the private-

search doctrine as set forth in United States v. Jacobsen, “a follow-up police search

-9-
 STATE V. TERRELL

Opinion of the Court

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 his inspection of that item ‘would not tell him anything more

than’ what the private searcher already told him.” Id. at 731 (quoting Jacobsen, 466

U.S. at 119). The majority concluded that while “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,” the “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.” Id. at 731–32

(citation omitted). Accordingly, the majority held that “Detective Bailey’s

warrantless thumb drive search [was not] authorized under the private-search

doctrine, nor was he able to use the evidence he obtained during that search to

support his warrant application.” Id. at 734.

Next, defendant argued that without the information Detective Bailey

acquired from the warrantless search, the warrant application failed to establish

probable cause. Id. at 734. The majority noted that “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.” Id. at 735. The majority determined that under State v.

-10-
 STATE V. TERRELL

Opinion of the Court

McKinney, “remand to the trial court [is] more appropriate than unilateral appellate

court determination of the warrant’s validity[.]” Id. at 735 (alterations in original)

(quoting McKinney, 361 N.C. 53, 64, 637 S.E.2d 868, 875 (2006)). Accordingly, the

majority reversed the trial court’s denial of defendant’s motion to suppress and

remanded “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.” Id. at

735.

In a separate opinion, one member of the panel dissented in part. Id. at 736

(Stroud, J., concurring in part and dissenting in part). The dissenting judge

“generally agree[d] with the majority’s analysis of the private search doctrine and

determination that a thumb drive is not a single container” but opined that “the

majority’s analysis overlooks the fact that Detective Bailey attempted to limit his

initial search to find the image reported by Ms. Jones.” Id. at 738. According to the

dissenting judge, “Detective Bailey was ‘substantially certain’ the drive would contain

the ‘granddaughter image,’ ” and he “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.” Id. at 739–40. The dissenting judge would

have found no error in the convictions stemming from “[t]he granddaughter image

and two seen photos Detective Bailey found while searching for the granddaughter

image” because they “fall within the scope of the private search doctrine, and they too

-11-
 STATE V. TERRELL

Opinion of the Court

were properly not suppressed by the trial court.” Id. at 740. Additionally, the

dissenting judge determined that “the granddaughter image and the two seen images

would support probable cause for the other ten deleted images” but “concur[red] with

the majority to remand to the trial court to determine probable cause for issuance of

the search warrant for the ten deleted images.” Id. at 740.

The State appealed on the basis of the dissent pursuant to N.C.G.S. § 7A-30(2).

The State also filed a petition for discretionary review of additional issues on 13

March 2018, which we allowed in part on 20 September 2018.

Standard of Review

We review a trial court’s ruling on a motion to suppress to determine “whether

competent evidence supports the trial court’s findings of fact and whether the

findings of fact support the conclusions of law.” State v. Biber, 365 N.C. 162, 167–68,

712 S.E.2d 874, 878 (2011) (citing State v. Brooks, 337 N.C. 132, 140–41, 446 S.E.2d

579, 585 (1994)). We review the trial court’s conclusions of law de novo. Id. at 168,

712 S.E.2d at 878 (citing State v. McCollum, 334 N.C. 208, 237, 433 S.E.2d 144, 160

(1993), cert. denied, 512 U.S. 1254 (1994), convictions vacated and case dismissed with

prejudice, State v. McCollum, No. 83CRS15506-07, 2014 WL 4345428 (N.C. Super.

Ct. Robeson County, Sept. 2, 2014)). We review decisions of the Court of Appeals for

errors of law. State v. Romano, 369 N.C. 678, 685, 800 S.E.2d 644, 649 (2017) (citing

Brooks, 337 N.C. at 149, 446 S.E.2d at 590).

Analysis

-12-
 STATE V. TERRELL

Opinion of the Court

The State argues that the Court of Appeals, in concluding that Detective

Bailey’s search of the thumb drive constituted an unreasonable search under the

Fourth Amendment, erred by applying an unnecessarily restrictive rule that is

inconsistent with the private-search doctrine as set forth in Jacobsen. We disagree.

“The United States and North Carolina Constitutions both protect against

unreasonable searches and seizures of private property.” State v. Lowe, 369 N.C. 360,

364, 794 S.E.2d 282, 285 (2016) (first citing U.S. Const. amend. IV; and then citing

N.C. Const. art. I, § 20). “A ‘search’ occurs when an expectation of privacy that society

is prepared to consider reasonable is infringed.” Jacobsen, 466 U.S. at 113. Because

the Fourth Amendment “proscrib[es] only governmental action[,] it is wholly

inapplicable ‘to a search or seizure, even an unreasonable one, effected by a private

individual not acting as an agent of the Government or with the participation or

knowledge of any governmental official.’ ” Id. (quoting Walter v. United States, 447

U.S. 649, 662 (1980) (Blackmun, J., dissenting)). Searches conducted by

governmental officials in the absence of a judicial warrant “are presumptively

unreasonable, though the Court has recognized a few limited exceptions to this

general rule.” United States v. Karo, 468 U.S. 705, 717 (1984) (citations omitted).

When seeking “to admit evidence discovered by way of a warrantless search in a

criminal prosecution,” the State bears the burden of establishing that the search falls

under an exception to the warrant requirement. State v. Cooke, 306 N.C. 132, 135,

291 S.E.2d 618, 620 (1982) (first citing Chimel v. California, 395 U.S. 752, 762 (1969);

-13-
 STATE V. TERRELL

Opinion of the Court

and then citing United States v. Jeffers, 342 U.S. 48, 51 (1951)). The Supreme Court

set forth one such exception in Jacobsen involving circumstances in which a

warrantless search by government officials may be permissible when conducted in

reliance upon an antecedent search by a private individual.

In Jacobsen employees at an airport FedEx office opened a damaged package—

“an ordinary cardboard box wrapped in brown paper”—to examine the package’s

contents in compliance with a company policy concerning insurance claims. 466 U.S.

at 111. Inside the box employees found “five or six pieces of crumpled newspaper”

covering a tube, which was “about 10 inches long” and made of duct tape. Id. After

cutting open the tube, the employees discovered “a series of four zip-lock plastic bags,

the outermost enclosing the other three and the innermost containing about six and

a half ounces of white powder.” Id. Upon finding the white powder, the employees

notified the Drug Enforcement Administration (DEA), replaced the plastic bags in

the tube, and placed the tube and newspapers back into the box. Id. The first DEA

agent who arrived “saw that one end of the tube had been slit open; he removed the

four plastic bags from the tube and saw the white powder.” Id. He proceeded to open

the series of plastic bags and, using a knife blade, “removed a trace of the white

substance,” which “[a] field test made on the spot identified . . . as cocaine.” Id. at

111–12. DEA agents then obtained a warrant to search the location to which the

package was addressed and ultimately arrested the recipients. Id. at 112. The

Supreme Court granted certiorari to address the recipients’ arguments “that the

-14-
 STATE V. TERRELL

Opinion of the Court

warrant was the product of an illegal search and seizure.” Id. at 112–13.

The Court noted that “[t]he 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.” Id. at 115. Central to that inquiry in Jacobsen, the

Court noted, were “[t]he initial invasions of respondents’ package,” which “did not

violate the Fourth Amendment because of their private character.” Id. The Court

stated, “The additional invasions of respondents’ privacy by the Government agent

must be tested by the degree to which they exceeded the scope of the private search.”

Id. According to the Court, “[t]his standard follows from the analysis applicable when

private parties reveal other kinds of private information to the authorities,”

specifically—“[o]nce frustration of the original expectation of privacy occurs, the

Fourth Amendment does not prohibit governmental use of the now nonprivate

information.” Id. at 117. Rather, “[t]he Fourth Amendment is implicated only if the

authorities use information with respect to which the expectation of privacy has not

already been frustrated,” in which case “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.” Id. at 117–18.

In Jacobsen, the federal agent who first arrived at the scene knew when he

saw the package that “it contained nothing of significance” other than a tube with

“plastic bags and, ultimately, white powder.” Id. at 118. According to the Court:

[T]here was a virtual certainty that nothing else of

-15-
 STATE V. TERRELL

Opinion of the Court

significance was in the package and that a manual
inspection of the tube and its contents would not tell him
anything more than he already had been told. . . .
Respondents could have no privacy interest in the contents
of the package, since it remained unsealed and since the
Federal Express employees had just examined the package
and had, of their own accord, invited the federal agent to
their offices for the express purpose of viewing its contents.

Id. at 119. “Similarly,” the Court continued, “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. It infringed

no legitimate expectation of privacy and hence was not a ‘search’ within the meaning

of the Fourth Amendment.” Id. at 120 (footnote omitted). Notably, in responding to

the concurring Justice’s suggestion that the Court was “sanction[ing] warrantless

searches of closed or covered containers or packages whenever probable cause exists

as a result of a prior private search,” id. at 129 (White, J., concurring), the Court

stressed that the visibility of the white powder was “far less significant than the facts

that the container could no longer support any expectation of privacy, and that it was

virtually certain that it contained nothing but contraband. . . . A container which can

support a reasonable expectation of privacy may not be searched, even on probable

cause, without a warrant.” Id. at 120 n.17 (majority opinion) (citations omitted).

Here we consider a private search made of a container of a different sort,

though one equally protected by the Fourth Amendment. See United States v. Ross,

456 U.S. 798, 822–23 (1982) (“[T]he Fourth Amendment provides protection to the

-16-
 STATE V. TERRELL

Opinion of the Court

owner of every container that conceals its contents from plain view.” (citing Robbins

v. California, 453 U.S. 420, 427 (1981) (plurality opinion))). Indeed, the State does

not dispute that defendant’s thumb drive and its digital contents were his “effects”

and that he possessed a legitimate expectation of privacy in these effects prior to the

search by the grandmother. At issue here is the extent of defendant’s expectation of

privacy in those effects following that search, specifically—whether the thumb drive,

or any part of it, could continue to support a legitimate expectation of privacy.

The State contends that the nature of the thumb drive as a container is such

that Ms. Jones’s mere “opening” of the thumb drive frustrated defendant’s reasonable

expectation of privacy in the entirety of its contents, thereby permitting Detective

Bailey to conduct a follow-up search of any information stored on the device.

According to the State, this position is consistent with a “broader view” of the private

search doctrine’s permissible scope, referred to by the State as the “container

approach.” See, e.g., United States v. Runyan, 275 F.3d 449, 463–65 (5th Cir. 2001)

(holding that while police could not permissibly search the defendant’s floppy disks,

CDs, and ZIP disks previously unopened by private searchers without having

substantial certainty of the disks’ contents, the private searchers’ opening of other

disks compromised the defendant’s expectation of privacy in those closed containers

and police were free to examine their contents, including any files not previously

viewed by private searchers); see also Rann v. Atchison, 689 F.3d 832, 836–38 (7th

Cir. 2012) (adopting Runyan’s rationale “that a search of any material on a computer

-17-
 STATE V. TERRELL

Opinion of the Court

disk is valid if the private party who conducted the initial search had viewed at least

one file on the disk” and if police are “substantially certain” that the disk contains

contraband (citing Runyan, 275 F.3d at 463–65)), cert. denied, 568 U.S. 1030 (2012).

But see United States v. Lichtenberger, 786 F.3d 478, 480, 488 (6th Cir. 2015) (holding

that where the private searcher had “clicked on different folders” in the defendant’s

laptop and was unsure which files she had opened, the follow-up search was not

permissible because the officer could not “proceed with ‘virtual certainty’ that the

‘inspection of the [laptop] and its contents would not tell [him] anything more than

he already had been told’ ” (alterations in original) (quoting Jacobsen, 466 U.S. at

119)). See also United States v. Sparks, 806 F.3d 1323, 1335–36 (11th Cir. 2015)

(holding that where a private searcher viewed all of the images and one video

contained in an album on the defendant’s cell phone, the officer could subsequently

view those images and that video, but the officer exceeded the scope of the prior

search by viewing a second video in that album that had not previously been

watched), cert. denied, 136 S. Ct. 2009, and cert. denied, 137 S. Ct. 34 (2016); cf.

United States v. Ackerman, 831 F.3d 1292, 1305–06 (10th Cir. 2016) (holding that

where AOL’s “hash value matching” screening algorithm identified one of the

attachments to the defendant’s e-mail as a match for child pornography but AOL

never opened the e-mail itself, a government analyst exceeded the private search by

opening the e-mail and viewing the attachments because doing so “could have

revealed virtually any kind of noncontraband information to the prying eye”). We

-18-
 STATE V. TERRELL

Opinion of the Court

conclude that the categorical approach proffered by the State is inconsistent with

Jacobsen, which contemplates that a follow-up search will “enable[ ] [an officer] to

learn nothing that had not previously been learned during the private search,” 466

U.S. at 120, and which requires that a “container . . . no longer support any

expectation of privacy,” id. at 120 n.17 (emphasis added).

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

amounts2 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]

2 For instance, Detective Bailey stated in his sworn affidavit for the search warrant
that the thumb drive here had a capacity of two gigabytes and that “[o]ne gigabyte, or
approximately one thousand (1,000) megabytes, is the approximate equivalent of five
hundred thousand (500,000) double spaced pages of text and is estimated to be approximately
two hundred and twelve (212) feet thick of paper.” We mention this by way of illustration.
The trial court did not make a finding on the capacity of the thumb drive, and its actual
capacity is not relevant to our analysis of whether Bailey’s follow-up search was permissible,
which focuses on what Bailey knew (or, in this case, did not know) about the nature and
extent of the private search before conducting his follow-up search.

-19-
 STATE V. TERRELL

Opinion of the Court

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).3 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

3 The State argues that the Court of Appeals majority reached its decision in erroneous
reliance on Riley v. California, a case addressing the “search incident to arrest” exception to
the warrant requirement, as opposed to the private-search doctrine. 134 S. Ct. 2473. We
conclude that the Court of Appeals recognized the different exceptions to the warrant
requirement at issue in Riley and in this case and did not err in looking for guidance to the
Court’s discussion of electronic data in Riley. See Terrell, 810 S.E.2d at 729 (“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 . . . .”).

-20-
 STATE V. TERRELL

Opinion of the Court

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.

In that regard, the trial court erred in concluding that Jones’s “viewing of the

purple flash drive effectively frustrated Defendant’s expectation of privacy as to the

contents of the purple flash drive,” because this conclusion is not supported by its

findings of fact. The trial court’s findings do not establish the precise scope of Ms.

Jones’s search of the thumb drive and whether Detective Bailey possessed “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.” Id. at 119. Nor could the trial court have made such

findings, as it is clear that the State failed to carry its burden of presenting competent

evidence establishing that Bailey’s warrantless search was permissible under the

private-search doctrine.

At the suppression hearing, neither Ms. Jones nor Detective Bailey “testified

to the exact folder pathway they followed to arrive at the” image of Sandy, “identified

which folders or subfolders they opened or reviewed, [or] identified which subfolder

of images they scrolled through to arrive at the” image of Sandy. Terrell, 810 S.E.2d

at 725. Further, Ms. Jones’s search of the thumb drive for images of defendant’s

housekeeper was far from exhaustive. While Ms. Jones clicked through “folders and

sub-folders” before finding the image of Sandy, she was not aware that any of “the

-21-
 STATE V. TERRELL

Opinion of the Court

folders had a title. It was just a thumb -- it’s the title of the thumbdrive, purple rain.”

Ms. Jones thought that “the pictures were all in one folder and then the other folders

were like movies.” After viewing several non-incriminating images, Ms. Jones ceased

her search upon finding the image of Sandy. Ms. Jones did not view any of the

incriminating photos that were later discovered by Detective Bailey in an entirely

separate folder.4 Had Bailey possessed virtual certainty of the device’s contents,

presumably he would not have been “scrolling through . . . a lot of photos” in different

folders before, according to him, he “finally happened upon the photograph with the

granddaughter.” 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 Sandy 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)).

The State contends that requiring “virtual certainty” under Jacobsen confuses

4 The fact that Detective Bailey, but not Ms. Jones, observed these incriminating
photos demonstrates that the record would not support any finding that Detective Bailey
simply retraced the private search undertaken by Ms. Jones, particularly given that the
incriminating photos other than the one of Sandy were contained in a separate folder.

-22-
 STATE V. TERRELL

Opinion of the Court

a sufficient condition with a necessary condition and that an officer can proceed with

a follow-up search so long as he acts reasonably in replicating the private search

based on the information conveyed to him. See, e.g., Terrell, 810 S.E.2d at 739–40

(Stroud, J., concurring in part and dissenting in part) (“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 limited his search to a reasonable effort to find exactly what Ms.

Bailey reported . . . . [T]he 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.”). Yet,

the 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.5 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

5 This is true at least under the “Katz reasonable-expectation-of-privacy test” for a
search, which the Supreme Court explained “has been added to, not substituted for, the
common-law trespassory test.” United States v. Jones, 565 U.S. 400, 409 (2012) (emphases
omitted); see id. at 404 (stating that the government conducts a search when it “physically
occupie[s] private property for the purpose of obtaining information”). The Court in Jacobsen
did not address the trepassory test and, given our holding, we need not address defendant’s
argument that the private-search doctrine cannot survive in light of Jones.

-23-
 STATE V. TERRELL

Opinion of the Court

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.6 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)).

Additionally, the State argues that this result will discourage private parties

from coming forward with evidence of criminal activity and echoes the concern of the

dissenting judge below of “plac[ing] law enforcement officers in a Catch 22 of being

unable to confirm the private searcher’s report without a search warrant because of

the risk of accidental discovery of an image other than the one reported but being

unable to get a search warrant without confirming the report.” Terrell, 810 S.E.2d at

740. Assuming arguendo that it is true, as the State contends, that Detective Bailey

possessed virtual certainty that the thumb drive contained contraband, it is unclear

why such certainty would not translate into an affidavit sufficient to establish

probable cause. See State v. Riggs, 328 N.C. 213, 219, 400 S.E.2d 429, 433 (1991)

(“[P]robable cause requires only a probability or substantial chance of criminal

activity, not an actual showing of such activity.” (alteration in original) (quoting

Illinois v. Gates, 462 U.S. 213, 244 n.13 (1983)) (emphasis assed)); State v. Arrington,

311 N.C. 633, 638, 319 S.E.2d 254, 257–58 (1984) (“The task of the issuing magistrate

6 For that reason, assuming the existence of the necessary “virtual certainty,” flash
drives can be the subject of a warrantless search performed pursuant to the private search
doctrine.

-24-
 STATE V. TERRELL

Opinion of the Court

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.” (quoting

Gates, 462 U.S. at 238)).

Finally, the State argues in the alternative that the Court of Appeals changed

the private-search doctrine test by declining to follow its prior decisions and erred in

not remanding for additional findings on virtual certainty and the scope of the private

search. We are not persuaded that the Court of Appeals majority altered the private-

search doctrine in this State,7 which is controlled by Jacobsen, and for the reasons

stated above we agree with the Court of Appeals majority that the evidence and

findings make clear “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.” Terrell, 810 S.E.2d at 735 (majority

opinion).

For the reasons stated herein, we affirm the decision of the Court of Appeals.8

7 The State contends that the decision in Robinson, 187 N.C. App. at 798, 653 S.E.2d
at 892 (holding that police could search a single videotape “more thoroughly” than the private
searcher), was controlling, stating that “[a] videotape is simply the thumb drive of an earlier
time.” The more obvious parallel to a videotape would be a single video file, which is not
what we have before us in this case.

8Neither party sought review of the decision of the Court of Appeals majority to
“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

-25-
 STATE V. TERRELL

Opinion of the Court

AFFIRMED.

Justice DAVIS did not participate in the consideration or decision of this case.

application the tainted evidence arising from his unlawful search.” Terrell, 810 S.E.2d at
735. For that reason, that decision remains undisturbed and we express no opinion
concerning its correctness.

-2-
 Justice NEWBY dissenting.

In this case we apply the private-search doctrine to an electronic storage

device, a thumb drive.1 The majority holds that the private-search doctrine cannot

apply to a thumb drive because, even though some of the thumb drive has been

previously opened, “an officer cannot proceed with ‘virtual certainty that nothing else

of significance’ is in the device,” citing United States v. Jacobsen, 466 U.S. 109, 119,

104 S Ct. 1652, 1659, 80 L. Ed. 2d 85, 98 (1984). The majority argues the “virtual

certainty” language in Jacobsen compels its holding. This rigid approach, however, is

a significant misapplication of that decision. Instead of “virtual certainty” that

nothing else is contained in the thumb drive, the pivotal test in Jacobsen requires

identifying the private search and evaluating “the degree to which [the additional

invasion of defendant’s privacy by the government] exceeded the scope of the private

search.” Id. at 115, 104 S. Ct. at 1657, 80 L. Ed. 2d at 95. Jacobsen clearly states

“[t]he Fourth Amendment is implicated only if the authorities use information with

respect to which the expectation of privacy has not already been frustrated.” Id. at

117, 104 S. Ct. at 1658–59, 80 L. Ed. 2d at 97.

The private-search doctrine is an exception to the Fourth Amendment warrant

requirement for a governmental search because a search conducted with the

1 A thumb drive is a small, usually rectangular device used for storing electronic data.
The data is typically contained in individual files (e.g., a photograph, a document, a song,
etc.), and the files are usually organized in folders and subfolders. See Merriam-Webster’s
Collegiate Dictionary 485 (11th ed. 2007) (defining a “folder” as “an organizational element
of a computer operating system used to group files or other folders together”).
 STATE V. TERRELL

Newby, J., dissenting

permission of a private person does not implicate a governmental intrusion; the

private person’s prior search frustrates any reasonable expectation of privacy. Here

a concerned grandmother searched defendant’s thumb drive in her home and found

a picture of her sleeping, partially nude nine-year-old granddaughter. She then

delivered the thumb drive to law enforcement, intending that they verify her finding

and pursue criminal charges. Law enforcement did so. This transaction constitutes a

textbook application of the private-search doctrine.

There is no dispute, as the trial court found, that the grandmother opened the

thumb drive, opened the folder “Bad stuff,” and saw various files. Likewise, there is

no dispute that the grandmother opened the subfolder “red bone” and its file

containing the image of her granddaughter. The only question should be whether the

detective’s opening of another subfolder, while trying to replicate the grandmother

search, unlawfully exceeded the scope of that private search.

The majority holds that the private-search doctrine does not apply to an

electronic storage device if the private searcher did not open all of the device’s folders,

subfolders, and files. It maintains the test is “whether the thumb drive, or any part

of it, could continue to support a legitimate expectation of privacy.” In other words, if

the private searcher did not open every file, there is a possibility defendant’s

reasonable expectation of privacy to any unopened file has not been frustrated by the

private search. Therefore, by simply opening the thumb drive, law enforcement

committed an unlawful search. Even though it is indisputable that the grandmother

2
 STATE V. TERRELL

Newby, J., dissenting

opened the file containing the granddaughter’s image, because the thumb drive

contained files not searched by her, law enforcement cannot open it. In addition, to

reach its result, the majority violates the standard of review by rejecting facts found

by the trial court, which are supported by substantial evidence, and substitutes its

own fact-finding.

The trial court took the correct approach. That court found the detective only

searched the folder (“Bad stuff”) identified by the grandmother. The detective stopped

his search when he found the image of the granddaughter. The trial court applied

Jacobsen as informed by panels of the Fifth and Seventh Circuits, which analyzed

facts similar to those presented here and asked the correct question: Did the

governmental agent attempt to limit the scope of the search to that described by the

private party? The trial court found that the search “did not exceed the scope of the

private, prior search done by [the grandmother], but could have been more thorough”

and ultimately denied defendant’s motion to suppress. Because the trial court

correctly applied the private-search doctrine, its decision should be affirmed. The

majority’s “virtual certainty” test needlessly eliminates the private-search doctrine

for electronic storage devices, making it impossible for law enforcement to verify

provided information. I respectfully dissent.

3
 STATE V. TERRELL

Newby, J., dissenting

I. Facts

Jessica Jones,2 the grandmother, located in her home and looked through a

purple thumb drive (titled “Purple Rain”) that belonged to her longtime boyfriend,

defendant. She found an unlawful, disturbing photo of her granddaughter. She and

her daughter brought the thumb drive to the Sheriff’s Office and reported to Detective

Hernandez that it contained, along with other images, her granddaughter’s image. In

laymen’s terms, Jones explained her search process. Detective Hernandez completed

a “Property/Evidence Status Form” that included a short summary of her

conversation with Jones: “9 y/r victim’s mom . . . [and Jones] Brought USB that has

photographs of 9 y/r shirtless and asleep. Labeled under ‘Bad stuff.’ ” The next

morning, Detective Bailey reviewed Detective Hernandez’s report and met with Jones

to discuss “the visual representations she had discovered on the purple flash drive”

before examining the thumb drive to verify Jones’s report.3

In retracing Jones’s search through the folder entitled “Bad stuff” and its

2 This name is a pseudonym used by the trial court and the Court of Appeals.
3 At the suppression hearing, Jones described her search of the purple thumb drive,
saying “when I opened it and the images came up. . . . I saw images of adult women and what
I presumed was children, but they were not inappropriate, meaning that they were clothed.
They just looked like little young girls.” She viewed images of adult females, some naked and
some clothed. Jones noted that “the pictures were all in one folder, and she “scrolled down”
by “go[ing] into folders and sub-folders.” Jones then discovered her granddaughter’s image
“in bed and she was asleep and she’s exposed from the waist up.” Jones explained that she
“got upset” because she “never in a million years expected to find anything like that” and
then ended her search. Detective Bailey testified at the suppression hearing that, while
retracing Jones’s search, he “observed other young females, prepubescent females, unclothed,
also some that were clothed,” but when he was able “to verify what [Jones] told [him] she had
seen on the flashdrive . . . . [he] completed [his] search.” Thus, Detective Bailey discovered
4
 STATE V. TERRELL

Newby, J., dissenting

subfolders, while looking for and before finding the granddaughter’s image, Bailey

discovered “fully nude photographs of an unknown child standing beside and [sic]

adult female in various sexual positions” that Jones had neither observed nor

reported. Detective Bailey only searched the folder identified by Jones, “Bad stuff.”

The “Bad stuff” subfolder titled “red bone” contained the image of the granddaughter;

the “Bad stuff” subfolder titled “Cabaniia” contained the two images of the

unidentified nude children viewed by Detective Bailey. Detective Bailey sought and

obtained a search warrant to forensically examine the thumb drive for any hidden

files. Upon executing the warrant, a SBI technician extracted ten additional images

of child pornography, which had previously been deleted from the subfolder titled

“Cabaniia.” Defendant faced charges for the photograph of the granddaughter as well

as for possessing the two images of the children as observed by Detective Bailey and

the ten images discovered by the SBI technician.

Defendant moved to suppress all evidence obtained by and through Detective

Bailey upon his viewing of the thumb drive Jones brought to the police. During the

suppression hearing, defense counsel identified the issue as, inter alia, “to what

extent did Detective Bailey’s subsequent search without a search warrant exceed the

scope of the search done by the private citizen.” Counsel argued that, because

Detective Bailey discovered “entirely different type images,” his action “without a

search warrant clearly exceeds the scope of the search done by a private individual,

the two images of child pornography before finding the granddaughter’s image.
5
 STATE V. TERRELL

Newby, J., dissenting

in this case, [Jones].” Because Detective Bailey happened upon the additional images

while retracing Jones’s search for the granddaughter’s image, defendant argued those

images could not serve as a basis for probable cause for the warrant.

Following a hearing on the motion to suppress, the trial court made its ruling:

I’ve read through the case law handed up, read the case law
in North Carolina, it appears to me that this -- in exercising
my discretion, it appears that there was a private party
who went into this flashdrive and, by doing so, I believe the
Court says it frustrated the defendant’s reasonable
expectation of privacy as to the contents of that flashdrive.

Therefore, thereafter, when the police officer went
into that same thumbdrive . . . to confirm what has been
stated to him, he found additional matters and he did so in
a manner that was, perhaps, more thoroughly than the
initial examination by [Jones]. He ran into more images
than what [Jones] ran into.

Given all of this, in exercising my discretion, the
motion to suppress will be denied.

The trial court’s written order included findings regarding the relationship between

defendant and Jones and a description of the private search conducted here:

2. On January 13, 2014, [Jones] was in her home;
defendant was not present. [Jones] looked inside of a
briefcase belonging to the defendant, which stayed in
her home in a usual and customary manner. On this
date, defendant’s briefcase was in [Jones’s] den. Inside
the briefcase, [Jones] found, among other items, a USB
flash drive, sometimes referred to as a thumb drive.
The flash drive in issue here was purple in color.
[Jones’s] stated purpose for looking in defendant’s
briefcase was to put a face to someone that defendant
had talked about. [Jones’s] entry into defendant’s
briefcase and the contents therein were solely at her
own volition and not connected with or at the
6
 STATE V. TERRELL

Newby, J., dissenting

suggestion of any law enforcement person or
organization.

3. [Jones] inserted the purple flash drive into a shared
Apple computer and discovered, among other visual
representations, a picture of her granddaughter, [name
redacted] who appeared to be asleep and who was nude
from the waist up with breasts displayed. After
consulting with her daughter, the mother of [the child],
[Jones] and her daughter, on January 13, 2014, took
the purple flash drive to the Onslow County Sheriff’s
Department.

Next, the trial court made findings regarding Jones’s delivery of the purple

flash drive to law enforcement.

4. On January 13, 2014, [Jones] met with Detective
Lucinda Hernandez to discuss what she had found on
the purple flash drive. Detective Hernandez accepted
the purple flash drive and logged it into the Crime
Scene Investigation (CSI) Unit of the Onslow County
Sheriff’s Department. Detective Hernandez did not
view the purple flash drive.

5. On January 14, 2014, [Jones] again appeared at the
Onslow County Sheriff’s Department to meet with
Detective Eric Bailey concerning the purple flash drive
and the contents that she had seen on that flash drive.
Detective Bailey discussed with [Jones] the visual
representations she had discovered on the purple flash
drive.

The trial court found that law enforcement retraced Jones’s private search

through the folder identified by Jones as containing the granddaughter’s image and

saw additional incriminating and corroborating photographs. Ultimately, Detective

Bailey confirmed what Jones told him about the thumb drive:

6. Following his discussion with [Jones], Detective Bailey

7
 STATE V. TERRELL

Newby, J., dissenting

went to the CSI Unit to confirm on the purple flash
drive what he had been told by [Jones]. Detective
Bailey did not remove the purple flash drive from the
CSI Unit where it was being held securely as a matter
of evidence. The CSI technician placed the purple flash
drive into CSI’s computer and selected the folder [Bad
stuff] that has been identified by [Jones] as containing
the picture of her granddaughter [name redacted]. 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 picture of [the
granddaughter] Detective Bailey saw photographs of
other nude or partially nude prepubescent females
posing in sexual positions.

7. The images observed by Detective Bailey corroborated
the information provided to him by [Jones]. Based
upon that corroboration and [Jones’s] statements,
Detective Bailey then obtained a search warrant in
order to conduct a complete and thorough forensic
examination of the purple flash drive.

(Emphasis added.) The trial court found as fact that “8. Detective Bailey’s initial

search and examination of the purple flash drive in the CSI Unit did not exceed the

scope of the private, prior search done by [Jones], but could have been more

thorough.”

Having made the preceding findings, the trial court concluded the search was

valid under the private-search doctrine:

2. [Jones’s] viewing of the purple flash drive did not
violate the Fourth Amendment because she was a
private party . . . . Her viewing of the purple flash drive
effectively frustrated Defendant’s expectation of
privacy as to the contents of the purple flash drive, and
thus the later viewing by Detective Bailey at her
request and upon presentation of the flash drive to [law
enforcement] did not violate Defendant’s rights under

8
 STATE V. TERRELL

Newby, J., dissenting

the Fourth Amendment.

3. None of the Defendant’s [constitutional] rights . . .
were violated during the seizure and search of the
purple flash drive in this case.

The trial court thus denied defendant’s motion to suppress, and the State introduced

into evidence thirteen images all retrieved from the “Bad stuff” folder. Regarding the

granddaughter’s image, the jury convicted defendant of one count of possessing a

photographic image from peeping and one count of second-degree sexual exploitation

of a minor. The jury also convicted defendant of twelve counts of third-degree sexual

exploitation of a minor based on the twelve other images. Defendant appealed.

In a divided opinion, the Court of Appeals first determined that the

private-search doctrine did not apply to Detective Bailey’s search because the thumb

drive was not a “single container” and there was not “virtual certainty” that the

thumb drive contained only contraband or material reported by Jones. State v.

Terrell, 810 S.E.2d 719, 726 (N.C. Ct. App. 2018). The Court of Appeals acknowledged

that the private-search doctrine would typically require factual findings as to the

specific scope of Jones’s and Bailey’s searches, id. at 734, like those made by the trial

court here. But, because Jones did not report the exact file path for the

granddaughter’s image, Bailey could not be virtually certain that he would find

nothing else of significance during his search. Id. After concluding that “Jacobsen’s

virtual-certainty requirement was not satisfied,” the Court of Appeals opined that

“the precise scope of both searches [was] immaterial,” id. at 732; therefore, the court

9
 STATE V. TERRELL

Newby, J., dissenting

did not remand for further factual findings on that issue, id. at 735. The Court of

Appeals did, however, remand for a determination of whether the search warrant

application would still supply “probable cause to issue the search warrant to

forensically examine the thumb drive.” Id. at 736.

The dissent maintained that the scope of the subsequent search was not only

material but determinative of the legal issue here. Id. at 740 (Stroud, J., concurring

in part and dissenting in part). Even though the dissent did not view the thumb drive

as a “single container” now fully opened by Jones’s private search, the search did not

violate the Fourth Amendment because Detective Bailey limited his search to efforts

to find an image he was substantially certain was on the thumb drive and stopped

his search when he found it. Id. at 739. Thus, “[e]ven if all of the other images are

excluded from consideration, the granddaughter’s image along with the other

information in the warrant application and affidavit could support a finding of

probable cause to issue the search warrant.” Id. at 738.

II. Issue Presented

At this Court, the majority now affirms the Court of Appeals’s “virtual

certainty” approach. This unrealistic standard essentially holds the private-search

doctrine cannot be applied here because, with electronic storage devices, there is

never a “virtual certainty” that a government searcher will not discover other

unopened material. To reach this sweeping conclusion, the majority misapplies

Jacobsen, ignores the precise facts leading to the discovery of the different photos,

10
 STATE V. TERRELL

Newby, J., dissenting

blurs the distinction between electronic storage devices and electronic computer-type

devices, and refuses to follow the accepted standard of review by substituting its own

findings of fact. It holds that the private-search doctrine does not apply if “the thumb

drive, or any part of it, could continue to support a legitimate expectation of privacy.”

According to the majority, whether the governmental search included a privately

opened file is immaterial as long as other unopened files exist.

The correct question, however, is what files and folders were opened, not

whether some remained unopened. The Court should ask to what extent Detective

Bailey’s subsequent search without a search warrant exceeded the scope of the

private search. The trial court seems to say that, by having opened the purple thumb

drive, defendant’s expectation of privacy was thwarted as to all of its files. This broad

application, however, is unnecessary to resolve the precise issue presented by this

case. There is no evidence that Detective Bailey looked in any folder other than the

one identified by Jones as labeled “Bad stuff.” Thus, this case presents the issue of

whether defendant’s reasonable expectation of privacy was lost as to some, or all, of

the files contained in the folder “Bad stuff” previously opened and reviewed by Jones.

Each of the three separate groups of images, all located in the folder “Bad stuff,”

require an analysis under the private-search doctrine:

1) the granddaughter’s image, located in the subfolder “red bone,” which was

clearly opened by Jones and Detective Bailey;

11
 STATE V. TERRELL

Newby, J., dissenting

2) the unidentified nude children, discovered by Detective Bailey in the subfolder

“Cabaniia,” while attempting to retrace Jones’s search, but before finding the

granddaughter’s image; and

3) the ten images located in the subfolder “Cabaniia” discovered by the SBI

technician pursuant to the search warrant.

The correct approach of Jacobsen requires identifying the initial private search and

evaluating “the degree to which [the additional invasion of defendant’s privacy]

exceeded the scope of the private search.” Jacobsen, 466 U.S. at 115, 104 S. Ct. at

1657, 80 L. Ed. 2d at 95.

III. Proper Appellate Review of the Trial Court Order

“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. . . . Conclusions of law are

reviewed de novo and are subject to full review.” State v. Biber, 365 N.C. 162, 167–

68, 712 S.E.2d 874, 878 (2011) (citations omitted). Here the trial court order meets

this standard. Competent evidence supports the trial court’s findings of fact, and

those findings of fact support its conclusions of law and its ultimate denial of

defendant’s motion to suppress. Most significantly, the trial court made the following

findings of fact which are supported by the evidence:

6. . . . . The CSI technician placed the purple flash drive into
CSI’s computer and selected the folder that has been
identified by [Jones] as containing the picture of her
granddaughter [name redacted]. This viewing in the CSI

12
 STATE V. TERRELL

Newby, J., dissenting

Unit confirmed what [Jones] had told Detective Bailey that
she had discovered on the flash drive. In addition to the
picture of [the granddaughter] Detective Bailey saw
photographs of other nude or partially nude prepubescent
females posing in sexual positions.

....

8. Detective Bailey’s initial search and examination of the
purple flash drive in the CSI Unit did not exceed the scope
of the private, prior search done by [Jones], but could have
been more thorough.

(Emphasis added.) Based on these findings, the trial court concluded:

2. . . . . [Jones’s] viewing of the purple flash drive effectively
frustrated Defendant’s expectation of privacy as to the
contents of the purple flash drive, and thus the later
viewing by Detective Bailey at her request and upon
presentation of the flash drive to [law enforcement] did not
violate Defendant’s rights under the Fourth Amendment.

IV. Law & Analogous Cases

The Fourth Amendment, applied to the states through the Fourteenth

Amendment, protects “[t]he right of the people to be secure in their persons, houses,

papers, and effects, against unreasonable searches and seizures” by the government.

U.S. Const. amend. IV. Nonetheless,

[l]ong-established precedent holds that the Fourth
Amendment does not apply to private searches. See
Burdeau v. McDowell, 256 U.S. 465, 475, 41 S. Ct. 574, 65
L. Ed. 1048 (1921). When a private party provides police
with evidence obtained in the course of a private search,
the police need not “stop her or avert their eyes.” Coolidge
v. New Hampshire, 403 U.S. 443, 489, 91 S. Ct. 2022, 29 L.
Ed. 2d 564 (1971). Rather, the question becomes whether
the police subsequently exceed the scope of the private
search. See United States v. Jacobsen, 466 U.S. 109, 104 S.

13
 STATE V. TERRELL

Newby, J., dissenting

Ct. 1652, 80 L. Ed. 2d 85 (1984).

Rann v. Atchison, 689 F.3d 832, 836 (7th Cir. 2012). “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, 80 L. Ed. 2d at 95.

In Jacobsen employees of a private shipping carrier notified federal Drug

Enforcement Administration (DEA) agents that they had opened a damaged package

in accord with company policy, cut open a tube inside the package, and discovered a

white powdery substance in the innermost of a series of four plastic bags that had

been concealed therein. Id. at 111, 104 S. Ct. at 1655, 80 L. Ed. 2d at 92–93. The

employees of the private shipping carrier reassembled the package, replacing the

plastic bags in the tube and returning the tube back to the cardboard box. Id. at 111,

104 S. Ct. at 1655, 80 L. Ed. 2d at 93. When the first federal agent arrived, he retraced

the private search, removing the tube from the box and the plastic bags from the tube,

and observed the white powdery substance. Id. at 111–12, 104 S. Ct. at 1655, 80 L.

Ed. 2d at 93. The agent then continued the search, opening all the bags and removing

a trace of the powder for chemical testing. Id. at 111, 104 S. Ct. at 1655, 80 L. Ed. 2d

at 92. The field chemical tests revealed the substance was cocaine, and federal agents

obtained and executed a warrant to search the location to which the package was

addressed. Id. at 111–12, 104 S. Ct. at 1655, 80 L. Ed. 2d at 93.

The Court in Jacobsen first set out the Fourth Amendment protections against

14
 STATE V. TERRELL

Newby, J., dissenting

unreasonable searches and seizures, defining an impermissible search as “occur[ring]

when there is some meaningful interference with an individual’s possessory interests

in that property” if that interference is unreasonable and conducted by the

government. Id. at 113, 104 S. Ct. at 1656, 80 L. Ed. 2d at 94. Thus, the protection “is

wholly inapplicable ‘to a search or seizure, even an unreasonable one, effected by a

private individual not acting as an agent of the Government or with the participation

or knowledge of any governmental official.’ ” Id. at 113–14, 104 S. Ct. at 1656, 80 L.

Ed. 2d at 94 (quoting Walter v. United States, 447 U.S. 649, 662, 100 S. Ct. 2395,

2404, 65 L. Ed. 2d 410, 421 (1980) (Blackmun, J., dissenting)).

Regardless of “[w]hether those [employees’] invasions [of respondents’

package] were accidental or deliberate, and whether they were reasonable or

unreasonable, they did not violate the Fourth Amendment because of their private

character.” Id. at 115, 104 S. Ct. at 1657, 80 L. Ed. 2d at 95 (footnote omitted); see id.

at 117, 104 S. Ct. at 1658, 80 L. Ed. 2d at 96 (“[T]he Fourth Amendment does not

prohibit the obtaining of information revealed to a third party and conveyed by him

to Government authorities . . . .” (quoting United States v. Miller, 425 U.S. 435, 443,

96 S. Ct. 1619, 1624, 48 L. Ed. 2d 71, 79 (1976))). “Once frustration of the original

expectation of privacy occurs, the Fourth Amendment does not prohibit governmental

use of the now nonprivate information . . . .” Id. at 117, 104 S. Ct. at 1658, 80 L. Ed.

2d at 96. The Court identified the standard by which to assess the subsequent

government action: “The additional invasions of respondents’ privacy by the [DEA]

15
 STATE V. TERRELL

Newby, J., dissenting

agent must be tested by the degree to which they exceeded the scope of the private

search.” Id. at 115, 104 S. Ct. at 1657, 80 L. Ed. 2d at 95 (citing Walter, 447 U.S. 649,

100 S. Ct. 2395, 65 L. Ed. 2d 410). Notably, Jacobsen did not involve the search of a

digital storage device but rather “an ordinary cardboard box.” Id. at 111, 104 S. Ct.

at 1655, 80 L. Ed. 2d at 93. The Court noted that it was indisputable that the

government could use the employees’ testimony about what they observed when they

opened the package.

If that is the case, it hardly infringed respondents’ privacy
for the agents to reexamine the contents of the open
package by brushing aside a crumpled newspaper and
picking up the tube. The advantage the Government
gained thereby was merely avoiding the risk of a flaw in
the employees’ recollection, rather than in further
infringing respondents’ privacy. Protecting the risk of
misdescription hardly enhances any legitimate privacy
interest, and is not protected by the Fourth Amendment.

Id. at 118–19, 104 S. Ct. at 1659, 80 L. Ed. 2d at 97–98.

The Fifth Circuit in United States v. Runyan, 275 F.3d 449 (5th Cir. 2001),

applied Jacobsen in the context of a private search of digital storage devices similar

to the thumb drive at issue here. In that case Runyan was convicted on child

pornography charges after his former wife and several of her friends collected various

digital media storage devices from his home and turned them over to the police. Id. at

453, 455. The Fifth Circuit analogized digital media storage devices to physical

containers. That court determined that “police exceed the scope of a prior private

search when they examine a closed container that was not opened by the private

16
 STATE V. TERRELL

Newby, J., dissenting

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.” Id. at 463. Thus, even an unopened container

may fall within the scope of the private search if a “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.” Id. at 463–64 (noting that “this rule

discourages police from going on ‘fishing expeditions’ by opening closed containers”).

Because the police could be substantially certain, based on conversations with

Runyan’s former wife and her friends, about the contents of the privately searched

disks, police did not exceed the scope of the private search when they searched those

specific disks, even if they searched the same disks more thoroughly. Id. at 465. The

police only exceeded the scope of the private search when they searched different

disks, those that Runyan’s former wife and her friends had not previously “opened”

or, in other words, viewed at least one file therein. Id. at 463–64.

Similarly, the Seventh Circuit in Rann considered the merits of “whether the

police’s viewing of [certain images stored on digital devices] constituted a significant

expansion of a private search such that a warrant was required to permit police to

view the images,” Rann, 689 F.3d at 835, and applied Runyan to similar facts:

S.R. testified that she knew [the defendant] Rann had
taken pornographic pictures of her and brought the police
a memory card that contained those pictures. S.R.’s mother
also brought the police a zip drive containing pornographic
pictures of her daughter. Both women brought evidence
supporting S.R.’s allegations to the police; it is entirely
17
 STATE V. TERRELL

Newby, J., dissenting

reasonable to conclude that they knew that the digital
media devices contained that evidence. The contrary
conclusion—that S.R. and her mother brought digital
media devices to the police that they knew had no
relevance to S.R.’s allegations—defies logic.

Id. at 838; see id. at 837–38 (Given the lower court’s assessment that, because S.R.

“turned exactly one memory card over to the police, and her mother gave the police

exactly one zip drive,” the appellate court stated that it could not “imagine more

conclusive evidence that S.R. and her mother knew exactly what the memory card

and the zip drive contained.”). Accordingly, “even if the police more thoroughly

searched the digital media devices . . . and viewed images that [the prior search] . . .

had not viewed,” the police search did not exceed the scope of the prior search because

“the police were ‘substantially certain’ the devices contained child pornography” as

alleged by the private searchers. Id. at 838 (emphasis added) (applying Runyan, 275

F.3d at 463).

Thus, in the digital storage context, the question remains “whether the police

subsequently exceed the scope of the private search.” Id. at 836 (citing Jacobsen, 466

U.S. at 109, 104 S. Ct. at 1652, 80 L. Ed. 2d at 85); accord Runyan, 275 F.3d at 463–

64. When the police are substantially certain the devices contain the contraband as

alleged by the private searchers, police do not exceed the scope of the private search

when they examine the same materials more thoroughly or when they search

additional items within the same container previously opened by a private party.

Rann, 689 F.3d at 838; Runyan, 275 F.3d at 461–63.

18
 STATE V. TERRELL

Newby, J., dissenting

V. Analysis

The analysis the Fifth and Seventh Circuits apply is correct. Using the

container analogy as instructed by Runyan and Rann, defendant left in Jones’s home

a digital “box of folders” that she could open and examine. When she did so,

defendant’s expectation of privacy became frustrated; she had possession of and

gained access to the entire contents of the thumb drive. Its contents, specifically,

various photos of defendant with adult females and the image of her nine-year-old

partially nude granddaughter located in the “Bad stuff” folder, became obvious to

Jones, the private searcher.

When she turned over the thumb drive to law enforcement, she did so without

limitation and authorized them to look for her granddaughter’s image. Nonetheless,

she gave a layman’s description of her search process and identified the location of

her granddaughter’s image as “[l]abled under ‘Bad stuff.’ ” Thereafter, police in good

faith attempted to replicate the grandmother’s search.

Detective Bailey’s follow-up search to verify Jones’s discovery can be a more

thorough review of the same privately searched materials or can uncover more items

from the same container Jones previously opened. See Runyan, 275 F.3d at 464–65.

Like in Runyan and Rann, even if Jones did not open every picture file it contained,

Detective Bailey could be substantially certain, based on conversations with her,

what the privately searched thumb drive contained. As found by the trial court, he

did not exceed the scope of the private search when he searched the one and only

19
 STATE V. TERRELL

Newby, J., dissenting

thumb drive he received and confined that search within the “Bad stuff” folder as

identified by Jones, even if Detective Bailey’s search was more thorough than Jones’s

search. Runyan, 275 F.3d at 465.

In addressing each group of images separately, it is clear that none should be

suppressed. When Jones opened the purple thumb drive, she went to the folder

labeled “Bad stuff.” Though she could not recall the names of the subfolders that

contained the images she saw, she found her granddaughter’s image in one of these

subfolders (ultimately identified as “red bone”). Clearly, Jones’s search thwarted

defendant’s reasonable expectation of privacy as to that subfolder, and the

private-search doctrine allowed the detective to enter that subfolder. Entering the

“Bad stuff” folder and the “red bone” subfolder mirrored the precise scope of the

private search. “The agent’s viewing of what a private party had freely made available

for his inspection did not violate the Fourth Amendment.” Jacobsen, 466 U.S. at 119–

20, 104 S. Ct. at 1660, 80 L. Ed. 2d at 98 (citing Coolidge, 403 U.S. at 487–90, 91 S.

Ct. at 2048–50, 29 L. Ed. 2d at 595–96; Burdeau, 256 U.S. at 475–76, 41 S. Ct. at 576,

65 L. Ed. at 1051).

As Detective Bailey tried to replicate Jones’s search, he entered a subfolder in

“Bad stuff” titled “Cabaniia,” within which he found the photos of the unidentified

nude children. It is unclear if Jones actually opened the “Cabaniia” subfolder. In

evaluating Detective Bailey’s search, the question is “the degree to which [he]

exceeded the scope of the private search.” Jacobsen, 466 U.S. at 115, 104 S. Ct. at

20
 STATE V. TERRELL

Newby, J., dissenting

1657, 80 L. Ed. 2d at 95. By entering the folder “Bad stuff,” Jones frustrated

defendant’s reasonable expectation of privacy as to any file it contained. The trial

court found that in discovering the two additional photos depicting child

pornography, Detective Bailey’s search “did not exceed the scope of the private, prior

search done by [Jones], but could have been more thorough.” A more thorough search

does not remove the search from the private-search doctrine. A forensic search,

authorized by a search warrant substantiated by Jones’s statements to Detective

Bailey, revealed the final ten photos.

The majority holds that there can be no lawful governmental search under the

private search doctrine as long as “the thumb drive, or any part of it, could continue

to support a legitimate expectation of privacy.” Thus, it refuses to address the precise

steps taken by Detective Bailey to replicate the search done by Jones or to address

each category of evidence separately. It does not even mention that the search was

limited to the “Bad stuff” folder. It finds this approach unnecessary as it concludes

there must be “virtual certainty” the thumb drive contains nothing else besides the

illegal photo. Regardless of whether Jones opened the purple thumb drive and the

folder “Bad stuff,” unless she also testified she opened each of the other folders and

files and reviewed their contents, the majority concludes the private-search doctrine

is inapplicable, even as to the precise photo identified by Jones.

The majority wrongly asks whether any folders or files in the thumb drive were

unopened by Jones. By its approach, if any of the subfolders or files remained

21
 STATE V. TERRELL

Newby, J., dissenting

unopened, then Detective Bailey’s opening of the thumb drive was an

unconstitutional search because he could not be virtually certain that nothing else of

significance was on the thumb drive. The majority assumes, without a factual basis,

that Detective Bailey engaged in an extensive search of “the entire contents of” the

thumb drive without any direction from Jones, opining that Detective Bailey had

been “ ‘scrolling through . . . a lot of photos’ in different folders before, according to

him, he ‘finally happened upon the photograph with the granddaughter.’ ” The trial

court found facts to the contrary.

The record indicates that here the grandmother identified the one folder,

within which law enforcement could locate the granddaughter’s image. According to

the finder of fact, Detective Bailey reported that he “selected the folder [Bad stuff]

that had been identified by [Jones] as containing the picture of her granddaughter

[name redacted].” (Emphasis added.) This Court does not have the thumb drive before

us for inspection. Based on the facts presented to the trial court, which did have the

thumb drive, however, there is no indication that Jones did not sufficiently

understand the features of the thumb drive to be able to direct Detective Bailey to

“the pictures [that] were all in one folder.” Competent evidence presented to the trial

court certainly supports the trial court’s finding that Detective Bailey’s efforts to

verify Jones’s allegations fell within the scope of her initial search. Under the

majority’s circular approach, law enforcement cannot conduct a subsequent search to

verify the reported image within the “Bad stuff” folder—for risk of inadvertently

22
 STATE V. TERRELL

Newby, J., dissenting

seeing other subfolders and files—at least not without the probable cause supplied

by verifying its contents.

The analysis of the opinions of both the Court of Appeals majority and this

Court are influenced by Riley v. California, 573 U.S. 373, 134 S. Ct. 2473, 189 L. Ed.

2d 430 (2014), in which the Supreme Court of the United States declined to extend

the search-incident-to-arrest exception to police searches of digital data on cell

phones. The court below determined that Riley “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.”

Terrell, 810 S.E.2d at 729 (majority opinion) (citations omitted). The Court of Appeals

concluded that a thumb drive’s “potential to hold vastly more and distinct types of

private [electronic] information” renders the container analogy inapplicable for

Fourth Amendment purposes. Id. at 728–29 (citing Riley, 573 U.S. at 386, 134 S. Ct.

at 2485, 189 L. Ed. 2d at 442–43); see also Riley, 573 U.S. at 393, 134 S. Ct. at 2488–

89, 189 L. Ed. 2d at 446 (“Modern cell phones . . . implicate privacy concerns far

beyond those implicated by the search of a cigarette pack, a wallet, or a purse.”). Riley

simply does not apply here. The cell phone in that case was not a finite container like

the thumb drive here, whose contents had been previously viewed by a third party;

therefore, the owner’s expectation of privacy was not frustrated as to any aspect of

the cell phone.

VI. Conclusion

23
 STATE V. TERRELL

Newby, J., dissenting

While computers and cell phones may conceivably open the door to seemingly

unlimited mounds of information, those devices are not implicated here. The purple

thumb drive was a storage device with limited space. Moreover, Detective Bailey did

not engage in a “fishing expedition” but retraced Jones’s search within the thumb

drive’s folder, “Bad stuff.” Rather than remedying a constitutional violation, the

majority’s opinion here only frustrates concerned citizens’ attempts to report criminal

activity against children and prevents law enforcement from verifying the

allegations.

Under our time-honored standard of review, the trial court appropriately

denied the motion to suppress. It found facts supported by the evidence and correctly

applied the law. Its order should be upheld. I respectfully dissent.

24