DANIEL ASHLEY MCDONNELL v. STATE OF MARYLAND
No. 1246
In the Court of Special Appeals of Maryland
December 1, 2022
Shaw, J.
September Term, 2021; Circuit Court for Anne Arundel County, Case No. C-02-CR-21-000487; Reported; Wells, C.J., Shaw, Kenney, James A., III (Senior Judge, Specially Assigned), JJ.; *Ripken, J., did not participate in the Court‘s decision to designate this opinion for publication pursuant to Md. Rule 8-605.1.
Law enforcement officers generally must obtain a judicial warrant prior to the search and subsequent examination of property. In the absence of a warrant, a search is reasonable only if it falls within a specific exception to the warrant requirement. A defendant‘s voluntary consent to search is an exception to the Fourth Amendment‘s warrant requirement. A search and subsequent examination of property based on consent is constitutionally permissible if the search and examination falls within the scope of consent. Once the consent to search is revoked, absent any other warrant exceptions, any further examination of property is unreasonable and unconstitutional.
SEARCHES AND SEIZURES: THE FOURTH AMENDMENT
The Fourth Amendment safeguards “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures....” Individuals maintain a legitimate expectation of privacy in such property. An expectation of privacy can be lawfully lost in a variety of circumstances. Once the expectation of privacy is lawfully lost, it ceases to exist, unless the expectation is reclaimed by some form of subsequent action and arises again.
WARRANT REQUIREMENT: THE FOURTH AMENDMENT
Consent is an exception to the warrant requirement if it is knowingly and voluntarily given. An individual may place limitations on the scope of consent or revoke consent at any time. When consent serves as the sole basis for authority to search and seize property, law enforcement officers are required to adhere to the express limitations and revocation by the individual.
Appellant filed a motion to suppress, which was denied following a hearing. On September 24, 2021, he entered a plea of not guilty, and was tried on an agreed statement of facts. Appellant was found guilty on three counts of distribution of child pornography and sentenced to a suspended aggregate sentence of thirty years’ incarceration, with five years’ supervised probation. He timely appealed and presents the following question for our review:
- Did the search of the information from Appellant‘s laptop computer, without a judicial warrant, violate Appellant‘s Fourth Amendment rights, where the consent to examine the contents had been formally withdrawn prior to the search pursuant to the terms of the initial consent obtained?
For reasons discussed below, we reverse.
BACKGROUND
On July 12, 2019, investigators from the United States Army Criminal Investigation Division Command approached Appellant, without a search warrant, at his residence, and
I hereby authorize the undersigned Special Agent, another Special Agent or other person designated by USACIDC, to conduct at any time a complete search of all digital media including cellphones, thumb drives, hard disk drives, laptops and any other media relevant to this investigation.
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I relinquish any constitutional right to privacy in these electronic devices and any and all information stored on them. I authorize USACIDC to make and keep a copy of any information stored on these devices. I understand that any copy made by USACIDC will become the property of USACIDC and that I will have no privacy or possessory interest in the copy.
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I understand that I may withdraw my consent at any time.
That same day, investigators seized multiple electronic devices from Appellant‘s residence including, “a hard drive from a laptop computer.” Between July 12, 2019, and July 16, 2019, investigators created a “mirror-image copy” of Appellant‘s hard drive. On July 19, 2019, Appellant‘s counsel sent an email to investigators informing them that he represented Appellant and “any purported consent to the seizure of [Appellant‘s] laptop, or examination of its contents, is hereby withdrawn.” Counsel requested the return of Appellant‘s laptop.
Appellant filed a motion to suppress the evidence, requesting, in part, “[s]uppression of any in-court identifications and/or illegally seized evidence and/or any statements or confessions, and/or evidence derived from therefrom[.]” At a motions hearing held on August 16, 2021, the parties stipulated to the relevant facts above and to the admission of four documents: (1) a consent to search form; (2) an email dated July 19, 2019 sent by Appellant‘s counsel to CIDC investigators; (3) a memorandum detailing the findings of the forensic examination of the Appellant‘s laptop hard drive; and (4) an additional page of the investigation report regarding the time frame in which the hard drives were copied. The court issued an order on August 30, 2021, denying Appellant‘s motion.
On September 24, 2021, Appellant entered a not guilty plea and the case proceeded on an agreed statement of facts. Appellant was found guilty on three counts of distribution of child pornography and was sentenced to an aggregate sentence of thirty years’ incarceration, fully suspended, with five years’ supervised probation. He timely appealed.
In reviewing a circuit court‘s denial of a motion to suppress evidence, this Court “must rely solely upon the record developed at the suppression hearing.” Grimm v. State, 232 Md. App. 382, 396 (2017) (quoting Briscoe v. State, 422 Md. 384, 396 (2011)). “We view the evidence” presented, and any “inferences that may be drawn . . . in the light most favorable to the party who prevails on the motion.” Id. This Court accepts “the circuit court‘s findings of fact unless they are clearly erroneous, but . . . we undertake an independent constitutional evaluation by reviewing the relevant law and applying it to the unique facts and circumstances of this case.” Trott v. State, 473 Md. 245, 254 (2021) (citation and internal quotations omitted).
DISCUSSION
Appellant argues the court erred in denying his motion to suppress. He asserts the forensic examination of his laptop‘s hard drive and the data within, conducted after he withdrew his consent, was an illegal warrantless search and violated his Fourth Amendment rights. Appellant argues that Riley v. California, 573 U.S. 373, 485 (2014), supports his contention that a warrant was required.
The State counters that Appellant lacked any legitimate expectation of privacy in the mirror-image copy of his laptop‘s hard drive, which was created with his consent and where he expressly disclaimed any possessory or privacy interest in the devices. The State asserts the examination of the mirror copy was not a Fourth Amendment search. The State argues that Riley does not create Fourth Amendment protection for copies of digital data and that Appellant does not have privacy interests in the copy.
“A search conducted pursuant to valid consent, i.e[.], voluntary and with actual or apparent authority to do so, is a recognized exception to the warrant requirement.” Id.; see also Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973). “Once voluntary consent is given, it remains valid until it is withdrawn by the defendant.” United States v. Ortiz, 669 F.3d 439, 447 (4th Cir. 2012) (emphasis in original) (holding that state troopers were permitted to search petitioner‘s vehicle because he gave troopers consent to search twice, and never withdrew his consent, and the search was conducted within the scope of the consent). “A consent to search is not irrevocable, and thus if a person effectively revokes . . . consent prior to the time the search is completed, then the police may not thereafter search in reliance upon the earlier consent.” United States v. Lattimore, 87 F.3d 647, 651 (4th Cir. 1996) (holding that officers were permitted to search the petitioner‘s automobile because he never expressly withdrew his consent for the search).
“The person invoking Fourth Amendment protections bears the burden of demonstrating his or her legitimate expectation of privacy in the place searched or items
In Riley v. California, the Supreme Court consolidated and examined two cases, Riley and United States v. Wurie, to determine the limited question of whether the warrant requirement under “the search incident to arrest doctrine applie[d] to modern cell phones.” See Riley, 573 U.S. at 385 (2014). In that case, petitioner, Riley, was stopped for a traffic violation and searched incident to the arrest. Id. at 378. An officer seized a cellphone from his pants pocket and accessed information on the phone. Id. The officer noticed the repeated use of a term associated with a street gang. Id. Later, a detective, specializing in gangs, examined the phone‘s digital contents and based on his findings, the State charged Riley in connection with a shooting that had occurred a few weeks earlier. Id. at 379. Riley moved to suppress all evidence. Id. The lower court denied his motion and he was subsequently convicted. Id. at 379-80.
In Wurie, the respondent, Wurie, was arrested after police observed him participating in an apparent drug sale. Id. at 380. At the police station, the officers seized a cell phone from Wurie‘s person and noticed the phone was receiving multiple calls from a source identified as “[his] house” on its external screen. Id. Officers opened the phone, accessed its call log, and traced the number to what they suspected was Wurie‘s apartment. Id. They secured a search warrant and found drugs, a firearm and ammunition, and cash in the ensuing search. Id. at 381. Wurie was charged with drug and firearm offenses. Id.
In answering the question of what police must do before searching a cell phone seized incident to an arrest, the Supreme Court held, “get a warrant.” Id. at 403. Observing that cell phones have become a ‘pervasive and insistent part of daily life,’ the Court noted that cell phones “differ in both a quantitative and a qualitative sense from other objects that might be kept on an arrestee‘s person. The term ‘cell phone’ is itself misleading shorthand; many of these devices are in fact minicomputers that also happen to have the capacity to be used as a telephone. They could just as easily be called cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers.” Id. at 393. The Court then held:
Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans “the privacies of life,” Boyd, supra, at 630, 6 S.Ct. 524. The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought.
Riley, 573 U.S. at 403 (quoting Boyd v. United States, 116 U.S. 616, 630 (1886)).
In Varriale v. State, 444 Md. 400, 433 (2015), the petitioner, suspected of rape, signed a consent to search form and agreed to the search of his person in the form of saliva and penile swabs. Id. at 405. The form stated, “any evidence found to be involved in this investigation, being conducted by the Anne Arundel County Police Department can be
The Circuit Court for Anne Arundel County denied the motion, and Varriale appealed to this court. We affirmed the circuit court‘s judgment holding that “the State had validly obtained the sample, ... it had no obligation to obtain a warrant before using the sample in a subsequent investigation.” Id. at 409. Varriale filed a petition for certiorari. The Court of Appeals granted Varriale‘s petition and held “that the Fourth Amendment did not prohibit the police from using Varriale‘s lawfully obtained DNA sample, where he consented to the search without placing an express limitation on his consent. . . .” Id. at 410. The Court reasoned that “Varriale‘s failure to place an express limitation on the use or storage of his DNA sample . . . constituted a waiver of any privacy interest in that DNA sample and the State was not prohibited from utilizing his DNA profile in subsequent criminal investigations.” Id. at 419. The Court did observe that, “[o]nce a search goes outside the scope of consent . . . it becomes unreasonable.” Id. at 433.
In Wallace v. State, the Court of Appeals addressed what is required to reclaim one‘s expectation of privacy in an item. 373 Md. 69 (2003). Petitioner Wallace was convicted by a jury of first-degree and second-degree murder, first degree assault, and the unlawful
In affirming this Court‘s holding, the Court of Appeals held that “once petitioner‘s belongings were taken and put into police custody, he had no reasonable expectation that they would be kept private from police inspection.” Id. at 93. The State lawfully possessed the property based on a routine inventory search stemming from a lawful arrest. Id. at 81. “[Wallace] was well aware that the police had dominion over the clothing and could exclude him from possessing it.” Id. at 93. The Court noted that after the initial inventory,
Here, it is uncontested that Appellant voluntarily gave his written consent to investigators, allowing them to seize and search his laptop‘s hard drive. At the time of his consent, Appellant was informed “that an inquiry [was] being conducted in connection with . . . possession [and] distribution of child pornography.” His consent authorized investigators to create a mirror-image copy of the hard drive. He agreed to “relinquish any constitutional right to privacy [he had] in the electronic devices and any information stored on them.” He also agreed that because the “copy made by USACIDC w[ould] become the property of USACIDC . . . [he] w[ould] have no privacy or possessory interest in the copy.”
However, seven days later, prior to the forensic examination of the copy, Appellant expressly withdrew his consent, stating, “any purported consent to the seizure of [Appellant‘s] laptop, or examination of its contents, is hereby withdrawn.” Unlike Varriale, Appellant expressly limited or eliminated the examination of the data. As we see it, his withdrawal was clear and unequivocal. Also, unlike Wallace, by his subsequent action, he reclaimed a reasonable expectation of privacy in the data.
In a recent Court of Appeals opinion, Richardson v. State, No. 46, 2022 WL 3711713, at *1 (Md. Aug. 29, 2022), law enforcement officers sought and obtained a search warrant for the retrieval of information stored in a cellphone. The Court held the officers acted reasonably in executing the search even though the warrant lacked the necessary
Here, because individuals have a legitimate expectation of privacy in the digital data within their computer, we hold that Appellant‘s revocation of his consent to examine data from his laptop computer precluded a forensic examination of the mirror-image copy of its hard drive without a warrant. For that reason, his motion to suppress should not have been denied.
JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY REVERSED; COSTS TO BE PAID BY APPELLEE.
Shaw, J.