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.
No comments:
Post a Comment