State v. Terrell, COA17-268
| Decision Date | 06 February 2018 |
| Docket Number | No. COA17-268,COA17-268 |
| Citation | 810 S.E.2d 719,257 N.C.App. 884 |
| Court | North Carolina Court of Appeals |
| Parties | STATE of North Carolina v. James H. TERRELL, Jr. |
Attorney General Joshua H. Stein, by Assistant Attorney General Elizabeth J. Weese, for the State.
Cheshire Parker Schneider & Bryan, PLLC, Raleigh, by John Keating Wiles, for defendant-appellant.
James H. Terrell, Jr. (defendant) appeals from a judgment entered after a jury convicted him of possessing a photographic image from secretly peeping, second-degree sexual exploitation of a minor, and twelve counts of third-degree sexual exploitation of a minor. This case presents the issue of how to apply the private-search doctrine to a follow-up police search for one potential contraband image among several other non-incriminating images stored on an electronic storage device. Or, put another way, to what extent the private-search doctrine authorizes police to conduct, without a warrant, a follow-up search for digital data on a privately searched electronic storage device.
Defendant's long-term girlfriend, Jessica Jones, opened defendant's briefcase when he was at work in order to search for information about his housekeeper in the Philippines while he was working overseas on a prior military contract job. Among employment papers and other personal effects, she found three USB flash drives (hereinafter "thumb drives"). Jones plugged each thumb drive into a computer. One of those thumb drives contained data. Jones clicked through its multiple digital file folders and subfolders until she found one subfolder containing images. After scrolling through several non-incriminating images, she saw one image of her nine-year-old granddaughter sleeping without a shirt. Jones believed the image was inappropriate, summoned authorities, and surrendered the thumb drive, which was secured in an evidence locker.
Later, an officer conducted a warrantless search through the images on the thumb drive to locate the granddaughter image. But during his follow-up search, the officer allegedly discovered images of other partially or fully nude minors that Jones never viewed. Using this information to support his warrant application, the officer obtained a search warrant to forensically examine the thumb drive's contents. The executed search warrant yielded twelve incriminating images located in a different subfolder than the granddaughter image.
Defendant moved to suppress the contents of the thumb drive. He alleged that the officer had conducted an illegal warrantless search. He further sought to suppress the images recovered during the forensic examination under the search warrant as being fruit of the previous unlawful search. Defendant's motion was denied. The trial court determined that Jones's private viewing of the thumb drive effectively frustrated defendant's expectation of privacy in its contents and, thus, the officer's warrantless search was lawful under the private-search exception to the warrant requirement and did not violate defendant's Fourth Amendment rights.
On appeal, defendant contends the trial court erred by denying his motion to suppress the thumb drive's contents because the search warrant executed was based on illegally obtained evidence from the officer's warrantless search. He contends the trial court erred by concluding that Jones's prior search through the thumb drive effectively frustrated his expectation of privacy in its entire contents, thereby authorizing the officer to search, without a warrant, through all of the images on that device. He further contends the trial court's finding that the officer viewed incriminating images that Jones never viewed necessarily establishes that his subsequent search unconstitutionally exceeded the scope of Jones's earlier one.
We ultimately hold that the trial court reversibly erred by concluding that the officer's warrantless search was lawful under the private-search doctrine and, therefore, did not violate defendant's Fourth Amendment rights. However, because the record is insufficient for us to determine whether the trial court would have determined that the search warrant executed was supported by probable cause without the tainted evidence obtained during the officer's unlawful search, we remand this matter to the trial court to determine the validity of the search warrant.
During their long-term relationship, James H. Terrell, Jr. (defendant) and Jessica Jones had lived together for over ten years and had two children together. Jones also had a daughter from another relationship, Cindy, who has a daughter, Sandy.1
Defendant served in the United States Marine Corps and after he left service, he began working various overseas military contractor jobs. When he returned from one such job in the Philippines in February 2013, he resumed living with Jones until January 2014.
On 13 January 2014, while defendant was at work, Jones searched his belongings for information about his housekeeper in the Philippines. She opened his briefcase and discovered, among employment paperwork and other personal effects, that it contained three USB thumb drives.
Jones plugged each thumb drive into a home computer. Two of the thumb drives were blank, but the third thumb drive, which was purple in color, contained data. On the purple thumb drive, Jones found a subfolder containing images and scrolled through various non-incriminating images until she discovered an image of her nine-year-old granddaughter, Sandy, that was taken the day after Thanksgiving. In the image, Sandy was sleeping, partially nude from the waist up with her breasts exposed (hereinafter "the granddaughter image"). Once Jones saw the granddaughter image, she stopped scrolling through the images and unplugged the thumb drive. Jones sought counsel from her preacher, who recommended contacting authorities. Jones also informed her daughter, Cindy, who is Sandy's mother, and Cindy expressed her desire to press charges.
That evening, Jones and Cindy brought the purple thumb drive to the Onslow County Sheriff's Department and reported to Detective Lucinda Hernandez that it contained the granddaughter image. Detective Hernandez did not ask to see the granddaughter image or open the thumb drive to view it but secured the thumb drive in an evidence locker.
The next day, Detective Eric Bailey was assigned to the case. He reviewed Detective Hernandez's report, and then interviewed Jones and Cindy, who also reported to him that the thumb drive contained the granddaughter image. After the interview, Detective Bailey decided to examine the thumb drive to verify their report. At Detective Bailey's request, the thumb drive was removed from the evidence locker, and a crime scene investigation (CSI) technician with the sheriff's department plugged it into a computer. During Detective Bailey's search for the granddaughter image, he scrolled through several non-incriminating images and allegedly saw images of other fully or partially nude minor females posing in sexual positions, images that Jones neither observed nor reported.
On 5 February 2014, Detective Bailey applied for a warrant to search, inter alia , the purple thumb drive for "contraband images of child pornography and evidence of additional victims and crimes." In his application, Detective Bailey alleged that Jones reported that she saw the granddaughter image on defendant's purple thumb drive, that Jones reported her other daughter "several years ago" alleged that defendant "touched [her] down there," and that Jones also reported she found a floppy disk in the bed of defendant's truck about fifteen years ago that contained images of child pornography. According to Detective Bailey, an agent with the State Bureau of Investigation (SBI) refused to conduct a "forensic evaluation [of the thumb drive] based on [that] search warrant" and "asked [him] to put additional information in the search warrant."
On 5 May 2014, Detective Bailey applied for another search warrant, this time adding allegations that he personally reviewed the thumb drive and saw "several partially nude photographs of [the granddaughter]" as described by Jones, and that he also observed "several fully nude photographs of an unknown child standing beside and [sic] adult female in various sexual positions."
The SBI agent executing the search warrant forensically examined several electronic devices using complex forensic software that creates a mirror image of their contents. The forensic examination of the thumb drive yielded twelve other incriminating images located in a different subfolder than the granddaughter image. Ten of those images had been previously deleted, and therefore would not have been observable during Jones's or Detective Bailey's searches, but were extractable using a computer forensic tool.
Defendant was indicted for possession of a photographic image from secretly peeping for the granddaughter image, four counts of second-degree sexual exploitation of a minor, and twelve counts of third-degree sexual exploitation of a minor based on the twelve images recovered from the forensic examination. Three of the second-degree sexual exploitation charges were dropped but the remaining charges proceeded to trial.
Before trial, defendant moved to suppress the contents of the thumb drive, arguing that the executed search warrant was based on evidence illegally acquired during Detective Bailey's unlawful warrantless search. At the suppression hearing, defendant argued that Detective Bailey's thumb drive search violated his federal and state constitutional rights to be free from unreasonable searches. He further argued that Detective Bailey's warrantless search was not exempted by the private-search exception to the warrant requirement because it unconstitutionally exceeded the scope of Jones's prior search. Defendant emphasized that Jones's search revealed only the granddaughter image, while Detective Bailey's search revealed images of...
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