372 N.C. 657
N.C.2019Background
- Defendant's purple USB thumb drive was privately opened by his girlfriend's mother (Ms. Jones), who viewed images including a nude photo of her nine‑year‑old granddaughter and then turned the drive over to police.
- Detective Bailey, seeking to verify Jones's report, plugged the drive into a CSI computer and clicked through folders to locate the granddaughter's photo; while doing so he observed additional images he believed to be child pornography and stopped his cursory review.
- Bailey applied for and obtained a search warrant (second application included information he obtained from his warrantless review); a forensic SBI exam later recovered deleted images from other folders on the drive.
- Defendant moved to suppress evidence obtained from Bailey’s warrantless search, arguing the private‑search doctrine did not authorize Bailey’s follow‑up inspection and that the later warrant was tainted by his unlawful viewing.
- The trial court denied suppression; the Court of Appeals reversed in part, holding Bailey’s warrantless search exceeded the private‑search doctrine for electronic storage and remanding to determine if probable cause remained after excising tainted evidence; the NC Supreme Court affirmed the Court of Appeals.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Terrell) | Held |
|---|---|---|---|
| Whether a warrantless police search of a USB drive is permitted under the private‑search doctrine after a private party viewed part of the drive | Jones’s opening of the drive frustrated defendant’s privacy in the device (container approach), so police could lawfully inspect its contents to verify her report | Bailey exceeded the scope of the private search; a private viewing of one file/folder does not waive privacy in the drive’s other contents | Court held the private‑search doctrine does not automatically permit police to search an entire electronic storage device; follow‑up police searches require sufficient certainty that nothing beyond the privately revealed information will be found |
| Standard required to measure scope of a follow‑up search after a private search | A reasonable effort to replicate the private search suffices (no need for perfect certainty) | Police lacked authority to view files beyond what the private searcher revealed without a warrant | Court affirmed Jacobsen’s ‘‘virtual certainty’’ principle: police must be able to show they would learn nothing more than the private search revealed before conducting a warrantless follow‑up |
| Whether the trial court’s factual findings supported denial of suppression | Trial court found Bailey’s viewing corroborated Jones and did not exceed her private search | Defendant argued record lacked specifics about which folders were opened and Bailey’s search exceeded the private search | Court found trial court erred because the record lacked competent evidence showing the precise scope of Jones’s and Bailey’s searches and whether virtual certainty existed |
| Whether the warrant must be evaluated excluding tainted information | If Bailey’s initial warrantless viewing was lawful, warrant stands; otherwise the warrant must be tested without tainted facts | Warrant was based in part on unlawfully obtained views and must be reassessed absent that information | Court left intact Court of Appeals’ remand: trial court to determine in the first instance whether probable cause remains after excising tainted evidence |
Key Cases Cited
- United States v. Jacobsen, 466 U.S. 109 (1984) (establishes private‑search doctrine and the ‘‘virtual certainty’’ test for permissible governmental follow‑up searches)
- Riley v. California, 573 U.S. 373 (2014) (discusses heightened privacy concerns for electronic data and informs analysis of searches of digital devices)
- United States v. Runyan, 275 F.3d 449 (5th Cir. 2001) (applies private‑search/container analogy to digital media; police may search disks a private party opened or if substantially certain of contents)
- Rann v. Atchison, 689 F.3d 832 (7th Cir. 2012) (adopts Runyan reasoning; police may more thoroughly search media a private party turned over when substantially certain of contraband)
- State v. Robinson, 187 N.C. App. 795, 653 S.E.2d 889 (2007) (permitted police to examine an entire videotape more thoroughly after a private party viewed portions)