in the Supreme Court on 5 March 2019.
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
H. Stein, Attorney General, by Derrick C. Mertz, Special
Deputy Attorney General, for the State-appellant.
Gerding, Appellate Defender, by Michele A. Goldman, Assistant
Appellate Defender, for defendant-appellee.
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
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. 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.
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
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."
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.
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."
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.
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
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
. . . .
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
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.
on these findings, the trial court concluded, in relevant
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.
the trial court denied defendant's motion to suppress.
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.
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))).
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)).
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.
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.
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.
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.
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).
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.
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.
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.
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.
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 ...