Kane, Devon Alexander
PD-0324-15
| Tex. App. | Mar 26, 2015Background
- In Sept. 2010 an unmarked, unlocked flash drive was found in a Schreiner University classroom and inserted into a campus computer by Kathleen Walker (Instructional Technology); she viewed files to identify the owner and found images she believed were child pornography.
- Walker passed the drive to Danny Flores (University security); Flores viewed the files and then turned the drive over to police, who obtained a warrant and charged Devon Kane with possession of child pornography.
- Kane filed motions to suppress (challenging the private search by Walker/Flores, the subsequent warrant, and contending violations of the Fourth Amendment, Texas Constitution, and Penal Code § 33.02). Trial court denied suppression; Kane pleaded guilty but reserved the right to appeal the suppression rulings.
- The Fourth Court of Appeals affirmed, holding Kane lacked a legitimate expectation of privacy in the unattended, unmarked, unencrypted flash drive and that campus employees reasonably accessed it (including applying Jenschke’s law‑enforcement‑purpose rationale); it also declined to find a § 33.02 breach.
- Appellant petitioned the Texas Court of Criminal Appeals raising four grounds: expectation of privacy in an unattended flash drive; improper application of Jenschke; violation of Penal Code § 33.02 (breach of computer security); and failure to address a Jones-style trespassory-search theory.
Issues
| Issue | Plaintiff's Argument (Kane) | Defendant's Argument (State / University actors) | Held |
|---|---|---|---|
| 1. Expectation of privacy in an unattended flash drive | Kane: flash drives store private data like phones; ownership + university policy prohibiting others accessing computers shows subjective and objectively reasonable expectation | State: drive was unmarked, unlocked, left in a public classroom, not password‑protected — no reasonable expectation | Court: Kane failed to prove subjective and objectively reasonable expectation; affirmed denial of suppression |
| 2. Private search excused by Jenschke law‑enforcement‑purpose exception | Kane: Jenschke doesn’t authorize private searches that then continue into content review simply because identification was sought; initial search was illegal | State: Walker/Flores viewed drive to identify owner and, upon discovering apparent contraband, intended to and did turn it over to police — fits Jenschke exception | Court: Walker/Flores are analogous to Jenschke actors who intended to turn over evidence; their actions did not require exclusion |
| 3. Violation of Tex. Penal Code § 33.02 (computer breach) | Kane: accessing someone’s flash drive without effective consent violates § 33.02; evidence should be excluded under art. 38.23 | State: campus practice and intent to identify owner amount to effective consent or lawful conduct; no statutory breach | Court: Trial court could reasonably find effective consent/implied consent in context; no § 33.02 violation shown |
| 4. Trespassory search claim under United States v. Jones | Kane: even if no privacy expectation, Jones’ trespassory framework applies to non‑consensual physical interference with property (flash drive) | State: argued access was reasonable to identify owner and for return to law enforcement; not a trespass warranting exclusion | Court: Did not adopt a Jones‑based reversal; affirmed without treating the search as constitutionally impermissible trespass |
Key Cases Cited
- Jenschke v. State, 147 S.W.3d 398 (Tex. Crim. App. 2004) (private actor who takes property intending to turn it over to police may avoid criminality; informs analysis of private searches turned over to law enforcement)
- State v. Granville, 423 S.W.3d 399 (Tex. Crim. App. 2014) (recognizes legitimate expectation of privacy in cell‑phone data; comparative reasoning for digital media privacy)
- Miller v. State, 335 S.W.3d 847 (Tex. App.—Austin 2011) (found no expectation of privacy where a thumb drive was left unmarked and accessible in a shared workplace computer)
- United States v. Jones, 132 S. Ct. 945 (2012) (reaffirmed the continuing relevance of a trespassory test for searches alongside Katz’s reasonable‑expectation‑of‑privacy test)