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
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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.
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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
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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
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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
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“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
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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.
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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
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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
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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.
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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
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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
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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);
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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
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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
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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
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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
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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
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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.
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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 . . . .”).
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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
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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.
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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.
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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.
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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
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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
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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
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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
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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.
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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
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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]
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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
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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
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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
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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
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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
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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
State v. Terrell
Court: Supreme Court of North Carolina
Date filed: 2019-08-16
Citations: 831 S.E.2d 17, 372 N.C. 657
Copy CitationsCombined Opinion