State v. Cardwell, Appellate Case No. 2012-213334

CourtCourt of Appeals of South Carolina
Writing for the CourtMCDONALD, J.
Decision Date02 September 2015
PartiesThe State, Respondent, v. Sarah Denise Cardwell, Appellant.
Docket NumberAppellate Case No. 2012-213334,Opinion No. 5351

The State, Respondent,
v.
Sarah Denise Cardwell, Appellant.

Appellate Case No. 2012-213334
Opinion No. 5351

STATE OF SOUTH CAROLINA In The Court of Appeals

Heard September 9, 2014
September 2, 2015


Appeal From Georgetown County
Edward B. Cottingham, Circuit Court Judge

AFFIRMED

Appellate Defender Benjamin John Tripp, of Columbia, for Appellant.

Attorney General Alan McCrory Wilson, and Assistant Attorney General William M. Blitch Jr., both of Columbia, for Respondent.

MCDONALD, J.: Sarah Cardwell (Cardwell) appeals her conviction for two counts of unlawful conduct toward a child and two counts of first-degree sexual exploitation of a minor. Cardwell argues the circuit court erred in refusing to suppress her laptop computer and a video seized from the laptop without a search warrant. She contends that the search and seizure violated her Fourth Amendment rights because law enforcement instructed a computer technician to locate, play, and copy the video prior to obtaining a search warrant. Cardwell further asserts that her constitutional rights were violated when the Johnsonville Police

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Department provided the video to a Georgetown County Sheriff's Office investigator, who viewed it prior to obtaining a warrant. We affirm.

FACTS/PROCEDURAL HISTORY

In November 2010, Cardwell took her laptop computer to David Marsh (Marsh) for repair at his home office, which is located in Florence County. Marsh explained to Cardwell that repairing the laptop would entail downloading the data from the hard drive, rebuilding the hard drive, and then reloading the previously extracted data to the hard drive. Because Cardwell's laptop would not boot, Marsh removed the hard drive from her computer and connected it to his own computer to download the data.

On December 8, 2010, as Marsh was downloading Cardwell's data to his computer, Johnsonville Police Chief Ron Douglas (Chief Douglas) entered Marsh's home office to deliver some packages. When Marsh left the office to take the packages to his garage, Chief Douglas saw an image of "a nude child maybe holding a ladies' bra up across his chest." Chief Douglas then told Marsh, "I just saw something go across the screen, can you back it up?" Marsh subsequently located the image of a male child wearing nothing but a pink bra and determined that the questionable image was actually part of a video. Chief Douglas indicated that he wanted to see the video, so Marsh played "just a little bit . . . possibly a minute" of the video.

The video shows Cardwell's two minor children (Minor 1 and Minor 2) dancing naked with Cardwell's co-defendant and then-boyfriend, Michael Cardwell, who was also naked. Although Sarah Cardwell does not appear in the video, her voice is heard directing the children. In 2007, when the video was filmed, Minor 2 was seven years old and his sister, Minor 1, was six years old. The minor children had just finished bathing before they ran into the living room and pulled down Michael Cardwell's gym shorts, at which point Sarah Cardwell started filming. The video shows Minor 2 "touching his front private part." The video also shows Michael Cardwell "flapping" his own penis back and forth and "tweaking" his own nipples. At trial, Minor 2 testified that his mother and Michael Cardwell instructed him to touch his penis.

Because he was concerned about losing the video in the event of a hard drive crash, and because Cardwell lived in Georgetown County rather than Florence County, Chief Douglas instructed Marsh to make a copy of the video and shut down the laptop. Marsh turned over the copy of the video and Cardwell's laptop to Chief Douglas, who subsequently submitted them to Investigator Phillip Hanna (Investigator Hanna) of the Georgetown County Sheriff's Department.

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On December 10, 2010, Investigator Hanna watched the video with Marsh and Chief Douglas at the Johnsonville Police Department. Investigator Hanna then obtained a search warrant "for everything on the computer" prior to sending Cardwell's laptop computer to the Charleston computer lab for analysis. Marsh testified at trial that even if Chief Douglas had not discovered the troubling image, Marsh would have been required to report the matter to law enforcement pursuant to section 63-7-310 of the South Carolina Code of Laws.1

Subsequently, Cardwell was indicted on two counts of unlawful conduct toward a child and two counts of first-degree sexual exploitation of a minor. The Honorable Edward B. Cottingham called the case to trial on October 29, 2012. Sarah Cardwell was tried with her co-defendant, Michael Cardwell.

Pre-trial, counsel for Sarah Cardwell made several motions, including a motion to suppress both the video and laptop computer, arguing that the computer was unlawfully searched and both items unlawfully seized in violation of the Fourth Amendment. The circuit court denied the motion to suppress, ruling that there was no Fourth Amendment violation because Cardwell relinquished any expectation of privacy in her laptop when she turned it over to Marsh for repair. The court further opined that the questionable image fell within the plain view of Chief Douglas.

During trial, Cardwell twice renewed her motion to suppress both the video and the computer. After the State rested its case, Cardwell moved for a directed verdict, asserting insufficient evidence to sustain the State's charges against Cardwell. The circuit court denied these motions.

The jury subsequently found Cardwell guilty of two counts of unlawful conduct toward a child and two counts of first-degree sexual exploitation of a minor. After the verdict, Cardwell renewed her motion to suppress and moved for a new trial. The circuit court denied these motions.

Thereafter, the circuit court sentenced Cardwell to two years on each count of unlawful conduct toward a child, to run concurrently. As to the first count of first-degree sexual exploitation of a minor, the circuit court sentenced Cardwell to three

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years, to run consecutively to the previous indictments, and required her to register as a sex offender. As to the second count of first-degree sexual exploitation of a minor, the circuit court sentenced Cardwell to three years, to run concurrently. This appeal followed.

ISSUE ON APPEAL

Did the circuit court err in refusing to suppress the laptop computer and video when, without a search warrant, law enforcement instructed a computer technician to locate the questionable image, play the video, copy the video, and then provide the video to another law enforcement officer, who also viewed it prior to obtaining a search warrant?

STANDARD OF REVIEW

In criminal cases, this court sits to review errors of law only. State v. Williams, 386 S.C. 503, 509, 690 S.E.2d 62, 65 (2010) (citation omitted). "When reviewing a Fourth Amendment search and seizure case, an appellate court must affirm if there is any evidence to support the ruling." State v. Wright, 391 S.C. 436, 442, 706 S.E.2d 324, 326 (2011) (citation omitted). "The appellate court will reverse only when there is clear error." State v. Missouri, 361 S.C. 107, 111, 603 S.E.2d 594, 596 (2004) (citation omitted).

LAW/ANALYSIS

I. Reasonable Expectation of Privacy2

Cardwell argues that she had a reasonable expectation of privacy in the video evidence found on her laptop computer and that the circuit court erred in denying her motion to suppress the video. We disagree.

An appellate court must affirm a circuit court's Fourth Amendment suppression ruling if it is supported by any evidence. State v. Taylor, 401 S.C. 104, 108, 736 S.E.2d 663, 665 (2013) (citation omitted). "However, this deference does not bar this [c]ourt from conducting its own review of the record to determine whether the [circuit court's] decision is supported by the evidence." State v. Tindall, 388 S.C. 518, 521, 698 S.E.2d 203, 205 (2010) (citation omitted). The court will only

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reverse the circuit court's ruling on a motion to suppress when there is clear error. Narciso v. State, 397 S.C. 24, 32, 723 S.E.2d 369, 373 (2012) (citation omitted). This court will not reverse a circuit court's findings of fact merely because we would have reached a different conclusion. State v. Moore, 404 S.C. 634, 640, 746 S.E.2d 352, 355 (Ct. App. 2013) (citation omitted).

The Fourth Amendment to the United States Constitution provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

U.S. Const. amend. IV.3 "As the text makes clear, the ultimate touchstone of the Fourth Amendment is reasonableness." Riley v. California, 134 S.Ct. 2473, 2482 (2014) (citation omitted). "The reasonableness of a search depends on the totality of the circumstances, including the nature and purpose of the search and the extent to which the search intrudes upon reasonable privacy expectations." Grady v. North Carolina, 135 S.Ct. 1368, 1371 (2015).

"To claim protection under the Fourth Amendment of the U.S. Constitution, defendants must show...

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