McDonnell v. State

• Decision Date: 01 December 2022
• Docket Number: 1246 Sept. Term, 2021
• Citation: 256 Md.App. 284,286 A.3d 113
• Parties: Daniel Ashley MCDONNELL v. STATE of Maryland
• Court: Court of Special Appeals of Maryland

256 Md.App. 284

286 A.3d 113

Daniel Ashley MCDONNELL

v.STATE of Maryland

No. 1246 Sept. Term, 2021

Court of Special Appeals of Maryland.

December 1, 2022

Argued by: J. Dennis Murphy (Murphy & Prince LLP, Ocean City, MD), all on the brief, for Appellant.

Argued by: Andrew H. Costinett (Brian E. Frosh, Atty. Gen., Baltimore, MD), all on the brief, for Appellee.

Panel: Wells, C.J., Shaw, James A. Kenney III (Senior Judge, Specially Assigned), JJ.^*

Opinion by Shaw, J.

This appeal stems from the denial of a motion to suppress by the Circuit Court for Anne Arundel County. Appellant, Daniel McDonnell, was indicted on charges of promotion or distribution of child pornography and possession of child pornography. Investigators from the United States Army Criminal Investigation Division Command ("USACIDC") searched his laptop's hard drive, with consent, created a "mirror-image copy" of the hard drive and found "evidence of child pornography search terms in [Appellant's] internet browser history[.]" Seven days later, Appellant retained counsel and withdrew his consent. The examination of the copy occurred after his withdrawal.

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:

1. 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warrant, violate Appellant's Fourth Amendment rights, where the consent to examine the contents had been formally withdrawn prior to the search pursuant to the terms of the initial consent obtained?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 conducted what they characterized as a "knock and talk." During that interaction, investigators asked Appellant about an upload of suspected child pornography. Appellant agreed to sign a consent to search form, in which he "consent[ed] to the seizure and subsequent search of" the contents of his electronic devices. The form states in pertinent part:

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.

* * *

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.

* * *

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.

Sometime between August 5-20, 2019, investigators performed a forensic examination on the "mirror-image copy" of Appellant's hard drive. A report was generated on September 3, 2019, that stated there was "evidence of child pornography search terms in [Appellant's] internet browser history, however there was no evidence of actual child pornography on the system." Appellant was subsequently charged with twenty counts of promotion or distribution of child pornography and twenty counts of possession of child pornography in the Circuit Court for Anne Arundel County.

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.

STANDARD OF REVIEW

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, 158 A.3d 1037 (2017) (quoting Briscoe v. State , 422 Md. 384, 396, 30 A.3d 870 (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, 249 A.3d 833 (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, 385, 134 S.Ct. 2473, 189 L.Ed.2d 430 (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.

The Fourth Amendment to the United States Constitution guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures...." U.S. Const. amend. IV. "The exclusion of evidence obtained in violation of these provisions is an essential part of the Fourth Amendment protections." Swift v. State , 393 Md. 139, 149, 899 A.2d 867 (2006) ; Mapp v. Ohio , 367 U.S. 643, 655-56, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). "[T]he ultimate measure of the constitutionality of a governmental search is ‘reasonableness.’ " Vernonia School Dist. 47J v. Acton , 515 U.S. 646, 652, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995). "[R]easonableness generally requires the obtaining of a judicial warrant." Id. at 653, 115 S.Ct. 2386.

"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, 93 S.Ct. 2041, 36 L.Ed.2d 854 (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 seized." Williamson v. State , 413 Md. 521, 534, 993 A.2d 626 (2010) (citing Smith v. Maryland , 442 U.S. 735, 740, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979) ). If governmental action infringes no legitimate expectation of privacy, then no "search" has occurred for Fourth Amendment purposes. See Raynor v. State , 440 Md. 71, 82-84, 99 A.3d 753 (2014).

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, 134 S.Ct. 2473 (2014). In that case, petitioner, Riley, was stopped for a traffic violation and searched incident to the arrest. Id. at 378, 134 S.Ct. 2473. An officer seized a cellphone from his pants pocket...