Friday, April 25, 2014

The Flash Drive, “Kiddie Porn” and the Motions to Suppress

After he was convicted of “fifteen counts of sexual exploitation of a minor and four counts of molestation of a minor” in violation of Arizona law, David William Curtis, Jr., appealed.  State v. Curtis, 2014 WL 1319513 (Arizona Court of Appeals 2014). (The opinion does not cite the statues involved, but they appear to be Arizona Revised Statutes § 13-3553 and Arizona Revised Statutes § 13-1410.)  

After Curtis was convicted, the trial judge “sentenced him to ten years on each count, to be served consecutively, for a total of 190 years in prison.”  State v. Curtis, supra.  The news story you can find here provides a little more detail on the facts involved in the case.

Curtis, “an attorney, represented himself at trial”, which may account for the fact that he raised a number of issues on appeal, some of which involved the trial judge’s failure to grant any/all of the motions to suppress he filed prior to trial.  State v. Curtis, supra.  This post examines the arguments he made in support of two of those motions, the judge’s ruling and the Court of Appeals’ review of those rulings.  State v. Curtis, supra.  

This, according to the Court of Appeals, the charges in the case

arose from a private citizen's discovery of a flash drive in the parking lot of the Tempe Marketplace in May 2009. The flash drive contained multiple images of child pornography and was linked to Curtis. Further investigation resulted in the seizure of additional such images on digital media from Curtis' home and a car parked in his home driveway, including images depicting Curtis molesting a child. . . .


Curtis testified at trial, [saying] he did not recall seeing the images that formed the basis of the first ten counts in the indictment, but he had possessed items similar to the charged images in the course of representing clients facing criminal charges and in child-protection and custody cases. Curtis testified that he had had no such cases involving similar images after 2005, and had destroyed a chart linking evidence to the specific clients when he retired from the active practice of law in 2006.

Curtis testified that none of the images had sexual stimulation as their purpose, he had never molested the child depicted in the images charged in Counts 12, 14 and 16, and the images in Counts 18 and 20, which gave rise to associated molestation counts, did not depict either him or the child identified as the victim. Curtis also testified that someone else might have planted the evidence for many of the counts.

State v. Curtis, supra.  

Curtis argued that the trial judge erred in denying his first motion to suppress, which

sought to suppress evidence discovered in an initial warrantless police search of a computer flash drive. The flash drive was found in a parking lot at the Tempe Marketplace by a private individual, who turned it over to the police after discovering what he described as `kiddie porn’ on [it].

Curtis argues the police lacked proper cause to conduct a warrantless search of the flash drive, that the warrantless search was impermissible because it differed from and exceeded the scope of the preceding private search by the individual who found the flash drive and that the warrantless search should not have been allowed to determine ownership of the flash drive.

State v. Curtis, supra.  

The Court of Appeals began its analysis of Curtis’ arguments by noting that the

4th Amendment guarantees the right to be secure against unreasonable searches and seizures, and provides no warrants shall issue except upon probable cause. . . . `A “search” occurs when an expectation of privacy that society is prepared to consider reasonable is infringed.’ U.S. v. Jacobsen, 466 U.S. 109 (1984). Although a person retains no privacy interests in abandoned property, . . . a person retains some privacy interests in lost or misplaced property, which are outweighed by the government's interest in identifying and returning the property to its owner. . . .

The 4th Amendment has no applicability to a search by a private individual not acting with the knowledge of, or as an agent for, the government. U.S. v. Jacobsen, supra.  The government's subsequent searches are permissible to the extent they do not exceed the scope of the private search and thus do not `infringe any constitutionally protected privacy interest that had not already been frustrated as the result of private conduct.’  U.S. v. Jacobsen, supra.  

A government official's search of a computer disk does not exceed the scope of the prior private search simply because the government official examines more files than did the private party. U.S. v. Runyan, 275 F.3d 449 (U.S. Court of Appeals for the 5th Circuit 2001). . . .

State v. Curtis, supra.  

The Court of Appeals noted that “[b]ased on the evidence and argument” presented at

the four-day evidentiary hearing, the superior court found the flash drive had been lost or misplaced, not abandoned. The court found a private party discovered the flash drive in a parking lot at the Tempe Marketplace and turned it over to police after reporting that he saw what he perceived to be “kiddie porn” on the flash drive.

The court found that a police detective opened folders on the flash drive to determine whether the photographs viewed by the private party were in fact prohibited under Arizona law. The court further found that the objectionable material was apparent as soon as the detective viewed the folders on the flash drive. The court also found that the detective's warrantless search of the flash drive was no more extensive than the private party's search.

The superior court did not abuse its discretion in finding that the detective's warrantless search of the flash drive was no more extensive than the search conducted by the private party. The private party testified that he saw thumbnail views of `kiddie porn’ after he viewed several folders on the flash drive.

The detective who conducted a review to determine if images on the flash drive were prohibited under Arizona law testified that he quickly scrolled through thumbnail views of the contents of two folders before he opened a folder that displayed thumbnail views of at least four images of child pornography.

The detective exited the program as soon as he confirmed child pornography was present on the flash drive. He later confirmed that child pornography was present in only that one folder, which contained 24,000 images, the majority of which was child pornography.

On this record, the superior court did not err in finding that the detective's search of the flash drive was no more extensive than that of the private party. . . . For these reasons, the detective's warrantless search of the flash drive . . .  did not violate Curtis' 4th Amendment rights. . . .

State v. Curtis, supra.  

Curtis also argued that the Superior Court Judge who presided over his case

erred in denying his fifth motion to suppress, which claimed the police conducted a warrantless search of a portable hard drive discovered on the front passenger seat of a Honda Civic parked in his home driveway after the car had been towed to a police impound lot. Curtis argues on appeal that the search warrants issued for the car and his residence did not cover the portable hard drive found in the Honda Civic and a CD found in a Fujitsu laptop computer in his bedroom, and the evidence therefore should have been suppressed.

State v. Curtis, supra.  

The Court of Appeals began its analysis of Curtis’ arguments by noting that

[b]ecause Curtis did not ask the superior court to suppress the evidence discovered in a search of the CD found in the Fujitsu laptop computer on the basis he raises on appeal, he bears the burden of demonstrating that any error was fundamental error resulting in prejudice.

State v. Curtis, supra.  As I noted in a recent post, appellate courts tend to find, absent countervailing factors, that litigants who did not raise an issue at the trial court level are barred, under a theory of waiver or forfeiture, from raising it for the first time on appeal.

The Court of Appeals then explained that the

initial search warrant for Curtis' residence and the Honda Civic authorized police to examine and impound the car to ascertain if its interior matched photographs found on the flash drive and to seize computers and digital media found in the car and at the residence for later search by forensic examiners for evidence of images of the sexual exploitation of minors in violation of Arizona Revised Statutes § 13–3553(A).

A second search warrant judicially approved later in the day authorized the search and impoundment of a Hyundai that Curtis was driving the day of his arrest.

A third search warrant judicially approved the following day authorized police to search digital media and computers seized from the residence or the vehicles as identified in an attached Exhibit A. The detective who prepared the search warrants testified that he obtained the third warrant as a `precautionary’ measure and inadvertently omitted the portable hard drive from Exhibit A discovered earlier that day in the Honda Civic.

State v. Curtis, supra.  

The Court of Appeals found that the Superior Court Judge

concluded that the initial search warrant covering the Honda Civic and Curtis' residence properly allowed the search of any seized digital media, including the late-discovered portable hard drive (notwithstanding the technical error in omitting that late-discovered portable hard drive from the list of seized items to be searched in Exhibit A to the third warrant). On appeal, Curtis has shown no error in the superior court's conclusion.

State v. Curtis, supra.  

It also noted that the “same analysis” applied to the

search of the CD in the Fujitsu laptop computer seized from Curtis' bedroom, which was not discovered until sometime after the computer was seized. `[O]nce an item in an individual's possession has been lawfully seized and searched, subsequent searches of that item, so long as it remains in the legitimate uninterrupted possession of the police, may be conducted without a warrant.’ U.S. v. Burnette, 698 F.2d 1038 (U.S. Court of Appeals for the 9th Circuit 1983).

State v. Curtis, supra.  

The Court of Appeals therefore found that, in this case,

police lawfully seized the Honda Civic and the laptop computer pursuant to the first warrant to allow time and a secure venue for a subsequent, more thorough search, including a comparison of the interior of the Honda Civic to the background of certain photographs, and to allow a forensic search of computers and other digital media.

Because the portable hard drive and the CD in the Fujitsu laptop computer were discovered while the items were in the uninterrupted possession of the police pursuant to their execution of the first warrant, it was not necessary for police to obtain another warrant to conduct these searches.

Under these facts and circumstances, the superior court did not err in refusing to suppress the evidence found on the portable hard drive, or fundamentally err in failing to suppress the evidence found on the CD discovered in the Fujitsu laptop computer.

State v. Curtis, supra.  


For these and many other reasons, the Court of Appeals rejected the various arguments Curtis made on appeal and therefore affirmed his “convictions and resulting sentences.”  State v. Curtis, supra.  

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