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State v. Terrell

Supreme Court of North Carolina

August 16, 2019


          Heard in the Supreme Court on 5 March 2019.

         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.

          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 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.


         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 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 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 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 "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 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.
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 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 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. 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 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).


         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); 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 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 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 ...

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