Monday, May 02, 2016

The Fire/EMS Employees, the “Alarm Clock” and the Consent to Search

This post examines an opinion from the Court of Appeals of North Carolina:  State v. Ladd, 782 S.E.2d 397 (2016). The court begins by explaining that `Timothy Allen Ladd, Jr. . . . appeals from judgment entered after he pled guilty to four counts of secretly using a photographic device with the intent to capture images of another person pursuant to [North Carolina General Statutes] §14–202(f).'  State v. Ladd, supra.  
The court goes on to explain that
[on 20 November 2013, a female employee of the Currituck County Fire/EMS discovered an alarm clock located on the windowsill of the women's bunkroom facing two beds in the room. Two other female employees stated they noticed the clock was also present in the women's bunkroom on 18 November 2013. The clock contained an audio and video recorder, which activated when its sensor picked up a motion or noise. The clock also contained a Subscriber Identity Module (SIM) card.

Defendant was employed by Currituck County Fire/EMS as an EMT from June 2012 to December 2013. Defendant had slept in the women's bunkroom during his overnight shift. After the `alarm clock’ was discovered, Chief Robert Glover of Currituck County Fire/EMS conducted a personnel interview with Defendant. Also present were Currituck County Sherriff's Sergeant Jeff Walker and Wesley Liverman, President of the Lower Currituck Volunteer Fire Department.
State v. Ladd, supra.  The opinion also notes that Ladd
consented to a search of his personal laptop and his smartphone, but only to those two items, during the interview. He did not consent to a search of any other personal electronic or data storage devices. After the interview, Sergeant Walker escorted Defendant to Defendant's vehicle to retrieve the laptop, which was located inside a black nylon carrying case.

Sergeant Walker saw and seized a second laptop located on the vehicle's floorboard. Defendant consented to the search of the second laptop. Sergeant Walker and Defendant went to the Currituck County Sheriff's substation for Sergeant Walker to search both laptops and the smartphone.

Sergeant Walker did not find any incriminating evidence on either laptop or on the smartphone. He requested permission from Defendant to take the laptops to the Sheriff's Department main office for a further search of the contents of the computers. Defendant consented and left both laptops contained within the black nylon laptop bag with Sergeant Walker. Sergeant Walker gave the laptops to Sheriff's Detective Ruby Stallings.
State v. Ladd, supra.  
And it goes on to explain that Detective Stallings
searched the contents of the black nylon laptop bag and discovered several external data storage devices. These included an external hard drive, numerous thumb drives, and micro secure digital cards. Detective Stallings searched the external hard drive and found video images of four or five women undressing or completely naked. The record on appeal is unclear whether any of these recovered images were taken in the EMS women's bunkroom.

Based upon her discovery of these images, Detective Stallings obtained a warrant to search the other external data storage devices located in Defendant's laptop bag. Defendant was charged with seven counts of secretly using a photographic device based upon images recovered after the search of the external data storage devices located within his laptop bag. On 3 February 2014, he was indicted by the Grand Jury on four of those counts.

On 10 March 2014, Defendant moved to suppress the evidence found by Detective Stallings when she viewed the external hard drive. The motion was denied and Defendant conditionally pled guilty, preserving his right to appeal the denial of the motion to suppress. The trial court entered judgment for four counts of secretly using a photographic device. Defendant appeals.
State v. Ladd, supra.  
The court also notes that, on appeal, Ladd argued that
the trial court erred by denying his motion to suppress evidence obtained as a result of non-consensual and unreasonable searches without a valid warrant of both his laptop bag and of the external data storage devices found inside. While the State contends these searches were consensual and constitutional, it also argues this case should be remanded so further evidence can be presented in compliance with State v. Salinas, 366 N.C. 119, 729 S.E.2d 63 (North Carolina Supreme Court 2012). We address both arguments below.
State v. Ladd, supra.  
Ladd’s motion to suppress, and his argument on appeal, were both based on the Fourth Amendment, which bans “unreasonable” law enforcement searches and seizures.  As Wikipedia explains, in the United States
the simplest and most common type of warrantless searches are searches based upon consent. No warrant or probable cause is required to perform a search if a person with the proper authority consents to a search. A consent search requires the individual whose person or property is being searched to freely and voluntarily waive his or her Fourth Amendment rights, granting the officer permission to perform the search. Where consent is obtained through `deception’ on the part of government personnel, the search may be determined to be an unreasonable search in violation of the Fourth Amendment.

The person has the right to refuse to give consent, and except in limited cases may revoke consent at any point during the search. In addition, the prosecution in any trial using the search results as evidence is required to prove that the consent was voluntary and not a result of coercion. Getting back
           to the Ladd opinion, Ladd argued that the trial court judge erred by denying
his motion to suppress evidence obtained as a result of non-consensual and unreasonable searches in violation of the Fourth, Fifth, and Fourteenth Amendments of the Constitution of the United States; Article 1, Sections 5, 19, 20, and 23 of the Constitution of North Carolina; and North Carolina General Statutes §§ 15A–221–223.

`An order finally denying a motion to suppress evidence may be reviewed upon an appeal from a judgment of conviction, including a judgment entered upon a plea of guilty.’ North Carolina General Statutes § 15A–979(b) (2015). The fact that Defendant pled guilty to a crime arising from possession of evidence seized during a search does not preclude him from appealing the trial court's motion to suppress. See State v. Jordan, 40 N.C.App. 412, 252 S.E.2d 857, 858 (North Carolina Court of Appeals 1979).
Defendant properly reserved his right to appeal by notifying the State and the trial court of his intention to appeal the denial of the motion to suppress during the pre-trial hearing and during the plea negotiations. State v. McBride, 120 N.C.App. 623, 463 S.E.2d 403 (North Carolina Court of Appeals 1995). . . .
State v. Ladd, supra.  
The Court of Appeals then outlined the “standard of review” it would employ in reviewing the arguments made by both sides:
The trial court's findings of fact regarding a motion to suppress are conclusive and binding on appeal if supported by competent evidence.  State v. Cooke, 306 N.C. 132, 291 S.E.2d 618 (North Carolina Supreme Court 1982). This Court determines whether the trial court's findings of fact support its conclusions of law. Id.

We review the trial court's conclusions of law on a motion to suppress de novo. State v. Edwards, 185 N.C.App. 701, 649 S.E.2d 646 (North Carolina Court of Appeals 2007). ‘Under a de novo review, the court considers the matter anew and freely substitutes its own judgment’ for that of the lower tribunal.’ State v. Williams, 362 N.C. 628, 669 S.E.2d 290, 294 (North Carolina Supreme Court 2008) (quoting In re Appeal of The Greens of Pine Glen Ltd. Partnership, 356 N.C. 642, 576 S.E.2d 316 (North Carolina Supreme Court 2003)).
State v. Ladd, supra.  
It went on to analyze the issues in the case, beginning with the issue of “consent.”  State v. Ladd, supra.  The Court of Appeals outlined the standards governing consent searches under Constitutional and North Carolina law:
Generally, if an individual consents to a search of himself or of his property, the Fourth Amendment is not implicated. Schneckloth v. Bustamonte, 412U.S. 218 (1973) (`It is equally well settled that one of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent’); see State v. Belk, 268 N.C. 320, 150 S.E.2d 481 (North Carolina Supreme Court 1966).

However, a consensual search is limited by and to the scope of the consent given. See State v. Jones, 96 N.C. App. 389, 386 S.E.2d 217 (North Carolina Court of Appeals 1989). The scope of the defendant's consent is `constrained by the bounds of reasonableness: what the reasonable person would expect.’ State v. Stone, 362 N.C. 50, 653 S.E.2d 414 (North Carolina Supreme Court 2007); see also Florida v. Jimeno, 500 U.S. 248 (1991) (`The standard for measuring the scope of a suspect's consent under the Fourth Amendment is that of ‘objective’ reasonableness—what would the typical reasonable person have understood by the exchange between the officer and the suspect?’).
State v. Ladd, supra.  
The court then began its analysis of the “reasonableness” of the consent at issue in this case, explaining that
[d]uring the hearing on the motion to suppress, the parties stipulated to the facts as set out by Defendant's counsel's affidavit, which accompanied Defendant's motion to suppress. In the trial court's order denying the motion, the court stated, `the Court so finds the facts as alleged in the Defendant's affidavit.’ The court did not consider any other evidence.

The relevant stipulated facts are:

8. Also during the interview, Mr. Ladd was asked for his consent to search his personal laptop and smartphone.

9. Timothy Ladd, Jr. consented only to the search of his personal laptop and smartphone. . . .

14. Mr. Ladd consented to the search of the laptop found on the floorboard of his vehicle. . . .

21. That Mr. Ladd consented to further review of the laptops by the Currituck County Sheriff's Department. . . .

23. Upon receiving the laptops for review, Detective Ruby Stallings also searched the contents of the black nylon laptop bag and found numerous external data storage devices. . . .

24. Without consent from Mr. Ladd, Detective Ruby Stallings and Deputy Christopher Doxey `decided to view some of the micro SD cards USB ports that were confiscated from Timothy Ladd.’

25. The non-consensual search of the external data storage devices produced electronic material purported to be evidence of illegal activity.

26. That on November 25, 2013, Detective Ruby Stallings used the material derived from the non-consensual search as the evidentiary basis for a warrant to search Mr. Ladd's external data storage devices.

27. That the purported evidence derived from the non-consensual search of the external data storage device led to Mr. Ladd being charged with seven (7) counts of felonious secret peeping into a room occupied by another person in the above-referenced file numbers.
State v. Ladd, supra (emphases in the opinion).
The Court of Appeals went on to explain that
[b]ased on these findings of fact, the [trial] court concluded `that the defendant's consent for the search of his property was freely given.’ The stipulated facts relied on by the trial court clearly distinguish which searches Defendant consented to and which he did not. While Defendant consented to the search of his two laptops and his smartphone, the trial court's findings of fact unambiguously state that all searches beyond those three items were non-consensual.

Defendant contends the trial court's conclusion that he consented to the search was erroneous based on the stipulated facts, which clearly state the search of the external data storage devices was non-consensual.  Because the trial court's findings of fact must support its conclusions of law, we agree with Defendant. State v. Cook, supra.

The State argues that, based on the standard of objective reasonableness, the officers understood Defendant's consent to the search to include both laptops, smartphone, and the external data storage devices. However, the State agreed and stipulated to the following finding of fact: `Timothy Ladd, Jr. consented only to the search of his personal laptop and smartphone.’ . . .

The stipulated facts contain no reference to the officers' understanding of Defendant's consent. If the State wished to introduce evidence pertaining to the officers' understanding of Defendant's consent, it should have presented or requested the court to hear additional testimony. We are bound by the findings of fact, as stipulated by the parties. We conclude Defendant's consent only extended to his two laptops and his smartphone.
State v. Ladd, supra (emphases in the original).
The Court of Appeals then noted that
[o]ur finding that Defendant did not consent to the search does not complete our analysis. The trial court also concluded Defendant did not have a reasonable expectation of privacy in the external data storage devices.
The Fourth Amendment provides that:
`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.
State v. Ladd, supra.  
The court also explained that
`what the Constitution forbids is not all searches and seizures, but unreasonable searches and seizures.’ ” State v. Scott, 343 N.C. 313, 471 S.E.2d 605 (North Carolina Supreme Court 1996) (emphasis supplied) (quoting Elkins v. United States, 364 U.S. 206 (1960)). `A search occurs when the government invades reasonable expectations of privacy to obtain information.’ State v. Perry, 776 S.E.2d 528 (North Carolina Court of Appeals 2015). . .; see Katz v. United States, 389 U.S. 347 (1967) (`For the Fourth Amendment protects people, not places.... what [a person] seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected’).

To determine whether a defendant possessed a reasonable expectation of privacy, the court must consider whether: `(1) the individual manifested a subjective expectation of privacy in the object of the challenged search[;] and, (2) society is willing to recognize that expectation as reasonable.’ State v. Perry, supra (citing Kyllo v. U.S., 533 U.S. 27 (2001)).
State v. Ladd, supra (emphasis in the original).
The Court of Appeals went on to explain that it
has since relied on Riley v. California, 573 U.S. __ (2014) to support an individual's expectation of privacy in the contents of a Global Positioning System (`GPS’) device, which typically contains less personal information than a modern cell phone. State v. Clyburn, 770 S.E.2d 689, (North Carolina Court of Appeals (2015). Quoting Riley, the Court stated:

`[C]ourts “generally determine whether to exempt a given type of search from the warrant requirement `by assessing, on the one hand, the degree to which it intrudes upon an individual's privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.”’

Id. (citation omitted). Applying this balancing test, the Court held the defendant's `expectation of privacy in the digital contents of a GPS outweighs the government's interests in officer safety and the destruction of evidence.’ Id. 
State v. Ladd, supra.  
The court then articulated its findings with regard to the Ladd search:
The officers also had no reason to believe the external data storage devices or the information they contained would be destroyed while they pursued a warrant based upon probable cause to search them. The officers had sole custody of these devices and Defendant was not present when these devices were found and searched. . . .

The same analysis applies to the search of the digital data on the external data storage devices in this case. Depending on their storage capacities, external data storage devices can often contain as much, if not more, personal information as a modern cell phone. External hard drives, in particular, can hold the entire contents of an individual's personal computer—all of their photographs, personal information and documents, work documents, tax forms, bank statements, and more. The information contained in these devices can span the course of many years and are capable of containing the `sum of an individual's private life.’ Id. We do not agree with the State's assertion that Defendant had no reasonable expectation of privacy in these devices and the information they contained to permit a search without a warrant.

As in Clyburn and Riley, the search of the external data storage drives did not further any governmental interest in protecting officer safety or in preventing the destruction of evidence. Defendant's privacy interests in the digital data stored on these storage devices are both reasonable and substantial. The trial court erred by concluding Defendant did not have a reasonable expectation of privacy in the contents of his external data storage devices and by upholding the non-consensual search of the external data storage devices.
State v. Ladd, supra.  
It went on to point out that the trial court
briefly addressed the Salinas issue, i.e., that decision’s holding that when a trial court judge rules on a motion to suppress he/she cannot “`rely upon the allegations contained in the defendant's affidavit when making findings of fact.’” State v. Salinas, supra. The Court of Appeals found Salinas was not relevant here because

[u]nlike in Salinas, the parties before us agreed to stipulated facts as the basis for the trial court's findings of fact on the motion to suppress. Based upon this agreement, the court was not presented and did not have to consider any conflicting evidence.
State v. Ladd, supra.  
The Court of Appeals therefore held that,
[w]ithout a lawful search, no probable cause supports the later issued search warrant. We reverse the trial court's conclusions of law and denial of Defendant's motion to suppress the evidence found as a result of a non-consensual and unreasonable search of the external data storage devices found in Defendant's laptop bag. Defendant's conditional guilty plea and judgment entered thereon are vacated.
State v. Ladd, supra.   

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