The Laptop, the Video and Unlawful Conduct Toward a Child

This post examines an opinion from the Court of Appeals of South Carolina:  State v. Cardwell, 2015 WL 5132348 (2015).  The court begins by explaining that

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. 

State v. Cardwell, supra.

The Court of Appeals explained how, and why, the prosecution arose:

In November 2010, Cardwell took her laptop computer to David 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 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.

State v. Cardwell, supra.

The court went on to explain that 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.

State v. Cardwell, supra.

The opinion then notes that

[b]ecause 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 of the Georgetown County Sheriff's Department. On December 10, 2010, 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 § 63–7–310 of the South Carolina Code of Laws.

State v. Cardwell, supra.

As noted above, Sarah Cardwell was subsequently “indicted on two counts of unlawful conduct toward a child and two counts of first-degree sexual exploitation of a minor” and went to trial “with her co-defendant, Michael Cardwell.”  State v. Cardwell, supra. The jury convicted her on both charges and the trial judge sentenced her 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 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. 

State v. Cardwell, supra.

She appealed. State v. Cardwell, supra.  This is the issue she raised 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?

State v. Cardwell, supra.

As you may know, Cardwell’s issue on appeal was based on the 4^th Amendment to the U.S. Constitution, which establishes a constitutional guarantee that citizens of the United States will be free from “unreasonable” searches and seizures. More precisely, she argued 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.” State v. Cardwell, supra.  If you are interested, Wikipedia’s entry on the 4th Amendment explains the significance of the “reasonable expectation of privacy” when it comes to “searches” conducted by law enforcement officers.

Getting back to Cardwell, the Court of Appeals explained that

`[a] reasonable expectation of privacy exists in property being searched when the defendant has a relationship with the property or property owner.’ State v. Robinson, 396 S.C. 577, 722 S.E.2d 820 (South Carolina Supreme Court 2012).  Clearly, `[w]hat a person knowingly exposes to the public, even in his home or office, is not a subject of Fourth Amendment protection.’ State v. Wright, 391 S.C. 436, 706 S.E.2d 324 (South Carolina Supreme Court 2011) (quoting Katz v. U.S., 389 U.S. 347(1967)). However, the act of providing an information technology professional access to one's data for the sole purposes of preserving that data and restoring the computer's functionality does not constitute exposing the data to `the public.’ Compare U.S. v. Barth, 26 F.Supp.2d 929 (U.S. District Court for the Western District of Texas 1998) (`Defendant gave the hard drive to [a computer technician] for the limited purpose of repairing a problem unrelated to specific files and also expected that he would have the unit back the following morning to continue his business. Defendant, therefore, retained his reasonable expectation of privacy in the files when he gave the hard drive to [the technician]’). . . .  

State v. Cardwell, supra.  The Court of Appeals went on to explain that the issue

here is whether Cardwell, in turning her laptop computer over to a technician for repair, relinquished her reasonable expectation of privacy such that the warrantless searches and seizure of the computer and video file were reasonable within 4th Amendment limits. See, e.g., State v. Dupree, 319 S.C. 454, 462 S.E.2d 279 (South Carolina Supreme Court 1995) (defendant did not have a continued reasonable expectation of privacy in crack cocaine discarded on the floor of a business open to the public). Whether a reasonable expectation of privacy exists in one's personal computer and its data when one voluntarily produces them to a third party has not been specifically addressed in South Carolina; however, other jurisdictions have considered this area of 4th Amendment jurisprudence.

State v. Cardwell, supra. 

The court noted that

[s]everal jurisdictions have concluded that although a reasonable expectation of privacy generally exists in one's personal computer and accompanying data, an individual may relinquish this right. See U.S. v. Stults, supra. . . .; Commonwealth v. Sodomsky, 939 A.2d 363 (Pennsylvania Superior Court 2007) (when defendant submitted his computer to technicians for repair, he abandoned his privacy interest in the child pornography stored on his hard drive); Rogers v. State, 113 S.W.3d 452 (Texas Court of Appeals 2003) (upon directing the technician to back up his files, the defendant `“no longer had a legitimate expectation of privacy in those files’). . . .

State v. Cardwell, supra.  

The Court of Appeals then began the process of applying the principles outlined above to this case, noting, initially, that

[i]n denying the motion to suppress both the video file and the laptop computer itself, the circuit court concluded that because Cardwell `voluntarily turned [her laptop computer] over to a repair technician who took it upon himself to comment on it’ there was no 4th Amendment violation. The circuit court explained, `[w]hen she gave it to the technician she had no concept [of] privacy.’

State v. Cardwell, supra.  

It went on to explain that

Cardwell argues that she has the same reasonable expectation of privacy in the data stored on her laptop that she would retain in any other closed container, file, document, or personal effect, and that she did not relinquish this expectation merely by turning the laptop over to Marsh for repair. She asserts that when Chief Douglas saw the still image of the video file, it only extinguished her privacy interest in the still image and that she retained a legitimate privacy interest in the video. We disagree that Cardwell had a legitimate privacy interest in the video file.

State v. Cardwell, supra.  

The Court of Appeals then explained why it disagreed with Cardwell on that issue:

There is no question that a computer repair professional is required to report a client to law enforcement after discovering child pornography in a client's computer files. See S.C. Code Ann. § 16–3–850 (2003) (requiring film processors, photo finishers, and computer technicians to report their discovery of images depicting minors “engaging in sexual conduct, sexual performance, or a sexually explicit posture”); §63–7–310 (listing persons required to report suspected child abuse or neglect).
 Therefore, the client takes the risk that the computer professional will disclose to law enforcement officials any of her computer files containing child pornography. Melton v. State, 69 So.3d 916 (Alabama Court of Criminal Appeals 2010) (`[T]he question in this case is not whether society would generally find an expectation of privacy in computer files to be reasonable. Rather, the question is whether, at the time law enforcement officers were at the Best Buy store, an expectation of privacy in files with explicit names that suggested that they contained child pornography was an expectation that society is prepared to consider reasonable’) (emphasis added)). Based on our review of the record and the weight of authority from other jurisdictions, we hold the circuit court properly denied the motion to suppress the video file. While we disagree with the circuit court's statement that Cardwell `had no concept [of] privacy’ whatsoever in the computer and its data when she voluntarily turned the computer over to the repair technician, we agree with the circuit court's decision to deny the motion to suppress as to the particular video file at issue.

State v. Cardwell, supra (emphasis in the original).

The Court of Appeals then held that the video file

opened and viewed by Marsh and Chief Douglas contained images of a minor `engaging in sexual conduct, sexual performance, or a sexually explicit posture.’ Once the sexually suggestive still image of the child in a bra appeared, no warrant was required to open and view this video file containing that very image. See, e.g., U.S. v. Gardner, 554 Fed. Appx. 165 (U.S. Court of Appeals for the 4th Circuit 2014). . . .   Nonetheless, to conduct a full search of the remaining files on the computer, obtaining a warrant was necessary to protect Cardwell's legitimate expectation of privacy in those separate files. Indeed, obtaining the warrant would have been a relatively simple step. See Riley v. California, 134 S.Ct. 2473 (2014) (`Recent technological advances similar to those discussed here have, in addition, made the process of obtaining a warrant itself more efficient’).

State v. Cardwell, supra.  

Finally, the Court of Appeals found that,

[a]s an additional sustaining ground, we find the inevitable discovery doctrine further supports the denial of the motion to suppress. See Nix v. Williams, 467 U.S. 431 (1984) (`If the prosecution can establish by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means [,] . . . then the deterrence rationale has so little basis that the evidence should be received’). Having seen the still image of Minor 2, both Chief Douglas and Investigator Hanna clearly had probable cause to obtain a search warrant to open the video file.
 Investigator Hanna testified that it was standard procedure to obtain a search warrant when he discovered images of child pornography, such as the still image of Minor 2, and that after viewing this specific image, he obtained a search warrant for Cardwell's computer. Therefore, the State showed that the video file's content inevitably would have been, and in fact was, ultimately discovered by lawful means.

State v. Cardwell, supra.  

The court therefore held that (i) “the circuit court properly denied the motion to suppress the video file seized from Cardwell's laptop computer because Cardwell had no reasonable expectation of privacy in the photograph of Minor 2”; and (ii) “the inevitable discovery doctrine further supports the circuit court's denial of the motion”.  State v. Cardwell, supra.