The Laptop, the Computer Repair Shop and Child Pornography

This post examines an opinion from the U.S. Court of Appeals for the 1st Circuit:  U.S. v. Tapley, 2016 WL 457364 (2016).  The court begins by explaining that

John Tapley pled guilty to possessing child pornography after having sustained a prior conviction for unlawful sexual contact with a minor, in violation of 18 U.S. Code §§ 2252A(a)(5)(B) and (b)(2). Tapley's guilty plea was conditioned on his right to seek appellate relief from the district court's denial of his motion to suppress.

U.S. v. Tapley, supra.

The court then explained how, and why, the prosecution arose:

In January 2013, after experiencing technical difficulties with his laptop computer, Tapley left the computer for repairs at Computer Essentials, a repair shop in Ellsworth, Maine. Shortly thereafter, a technician by the name of Robert Harriman was assigned to assess and repair the computer.

In the course of a routine diagnostic evaluation, Harriman discovered several pictures depicting young, but fully-clothed girls who appeared to Harriman to be under the age of ten, as well as a picture of an approximately fourteen to eighteen-year-old girl standing nude in a shower. In reviewing Tapley's internet search history, Harriman discovered searches for topics such as `preteen porn.’ Finding these items `disturbing,’ Harriman searched the Maine sex offender registry and determined that Tapley was on it.

Harriman contacted the Ellsworth Police Department and reported his findings to Officer Gil Jameson. After consulting with a detective, Officer Jameson determined that Tapley had not broken any laws. Officer Jameson called Computer Essentials and left a message with Harriman's manager informing Harriman of his conclusion. In an incident report, Officer Jameson wrote that `[t]he case can be closed.’

Harriman remained `alarmed’ by what he had seen and `did not feel comfortable’ completing his work and returning the computer to Tapley. On his own initiative, Harriman conducted a further search of the computer, and this time found a set of videos appearing to depict young children performing sexual acts.

Harriman again called Officer Jameson with his findings. In turn, Officer Jameson spoke with Detective Alan Brown of the Hancock County Sheriff's Department. In short order, Detective Brown visited Computer Essentials and took possession of the laptop. Based on the information provided by Harriman, Detective Brown applied for, and received, a warrant to search the computer. That search resulted in Tapley's indictment for possession of child pornography.

U.S. v. Tapley, supra.

The opinion then explains that Harriman

again called Officer Jameson with his findings. In turn, Officer Jameson spoke with Detective Alan Brown of the Hancock County Sheriff's Department. In short order, Detective Brown visited Computer Essentials and took possession of the laptop. Based on the information provided by Harriman, Detective Brown applied for, and received, a warrant to search the computer. That search resulted in Tapley's indictment for possession of child pornography.

In proceedings before the district court, Tapley moved to suppress the evidence against him, arguing that Harriman's second search had been performed in violation of the Fourth Amendment and that, absent the information provided by Harriman from that search, Detective Brown's search warrant lacked probable cause. On the report and recommendation of a magistrate judge, the district court denied the motion to suppress, reasoning that Harriman had acted solely as a private citizen and not as an agent of the government.  See United States v. Tapley, No. 1:14–cr00080–JAW, 2014 WL 6679127, at *2 (U.S.District Court for the District of Maine 2014).

Tapley entered a guilty plea conditioned on his right to seek appellate review of the denial of his motion to suppress. See Federal Rules of Criminal Procedure 11(a)(2). The district court later sentenced Tapley to a prison term of 120 months.

U.S. v. Tapley, supra.

The comments about whether Harriman was acting as a “private citizen,” versus as an “agent of the state” in the above paragraph arise from the fact that Constitutional principles, such as the Fourth Amendment, only protect citizens from government action.  The site you can find here has a very good explanation of that requirement and why it exists in U.S. law.  If Harriman was acting as a private citizen, the Fourth Amendment would not apply to what he did; if, on the other hand, he did what he did in order to find evidence that would help the government prosecute Tapley, he might very well be deemed an agent of the state, in which Tapley could move to suppress the evidence discovered by Harriman as the product of activity that violated his Fourth Amendment rights.

Getting back to the opinion, the Court of Appeals then took up Tapley’s argument regarding his motion to suppress, explaining that

[w]e review the district court's denial of a motion to suppress by means of a two-tiered inquiry. United States v. White, 804 F.3d 132, 136 (U.S. Court of Appeals for the 1st Circuit 2015). The district court's factual findings are reviewed for clear error, and its legal conclusions de novo. Id. A finding of fact will amount to clear error `only if, after considering all the evidence, we are left with a definite and firm conviction that a mistake has been made.’ United States v. Mousli, 511 F.3d 7, 11 (U.S. Court of Appeals for the 1st Circuit 2007) (quoting United States v. Ferreras, 192 F.3d 5, 9–10 (U.S. Court of Appeals for the 1st Circuit 1999)). `So long as any reasonable view of the evidence supports the decision, the district court's ruling will be upheld.’ United States v. McLellan,792 F.3d 200, 212 (U.S. Court of Appeals for the 1st Circuit 2015).

`The Fourth Amendment's protection against unreasonable searches and seizures applies only to government action and not “to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the [g]overnment.”’ United States v. Silva, 554 F.3d 13, 18 (U.S. Court of Appeals for the 1st Circuit 2009) (quoting UnitedStates v. Jacobsen, 466 U.S. 109, 113 (1984)). To determine whether a private party acts as an agent of the government, we consider three factors: (1) `the extent of the government's role in instigating or participating in the search’; (2) `its intent and the degree of control it exercises over the search and the private party’; and (3) `the extent to which the private party aims primarily to help the government or to serve its own interests.’  Id. (quoting United States v. Pervaz, 118 F.3d 1, 6 (U.S. Court of Appeals for the 1st Circuit 1997)).

U.S. v. Tapley, supra.

The Court of Appeals then outlined its rulings on Tapley’s Fourth Amendment argument:

Applying these criteria to the facts before us, we have little difficulty concluding that Harriman acted as a private individual and not as an agent of the government in searching Tapley's computer. As we have described, Harriman in fact undertook two separate searches.  The first was indisputably in Harriman's capacity as a private citizen. As an employee of Computer Essentials, Harriman was assigned to assess Tapley's laptop, to diagnose the technical problems it was experiencing, and to conduct the necessary repairs. In the course of a routine evaluation, Harriman encountered the photographs of young children which prompted his initial telephone call to Officer Jameson.

The second search, on the other hand, was conducted after the initial contact with Officer Jameson, prompting Tapley to contend that Harriman undertook this search as an agent of the government. This argument is unconvincing when considered in light of the determinative factors.

U.S. v. Tapley, supra.

The court ended its opinion with these comments:

There is no evidence suggesting that Harriman's second search was instigated by the government, or that the government participated in, or controlled, that search in any way. To the contrary, Officer Jameson left a message for Harriman informing him that Tapley had not broken the law, and he made a note in his file indicating that `[t]he case can be closed.’ In other words, as far as Officer Jameson was concerned, there was no further investigative work to be done. But Harriman remained `alarmed’ and `did not feel comfortable’ returning the laptop to Tapley without further review of its contents. Therefore, entirely on his own initiative and without the government's direction, control, or knowledge, Harriman undertook the second search.

We must also consider Harriman's intent in order to assess whether his primary aim was to help the government. See Silva, 554 F.3d at 18. The district court concluded, and we agree, that `Harriman's motive is difficult to discern.’ Tapley, 2014 WL 6679127, at *2. In a written statement provided to Detective Brown, Harriman indicated that, even after receiving the message from Officer Jameson that Tapley had not broken the law, he remained `alarmed’ and `did not feel comfortable . . . releasing [the laptop] to Mr. Tapley.’ Therefore, he `decided to look further before [he] contacted Mr. Tapley and released [the laptop] to him.’ The district court thus concluded that `whether Mr. Harriman searched the computer because of a strong personal belief, a desire to assist law enforcement, or a company policy, is not apparent.’ Id. We agree that there is simply not enough in the record to suggest that Harriman's aim was `primarily to help the government.’ Silva, 554 F.3d at 18; see also United States v. Cameron, 699 F.3d 621, 638 (1st Cir.2012) (noting that the defendant bears the burden to show that the party conducting the search `did what it did to further the government's interest,’ even if the record does not reflect an alternative interest).

U.S. v. Tapley, supra.

The Tire Shop, the Robbery and Accomplice-Witness Testimony

This post examines an opinion from the Court of Appeals of Texas – Texarkana: Walker v. State, 2016 WL 1600268

(2016).  As courts usually do, the Court of Appeals began by explaining how the case arose:

Edgar Llorens was robbed at Eddie's Tire Shop, his business in McLennan County, by three men, each armed with a handgun and each having his face at least partially covered. Though video surveillance cameras recorded the robbers and Llorens, Llorens could not identify any of the men. Bronchea Gerad Walker was charged with aggravated robbery, along with Oliver Johnson and Willie Clark, who by definition are accomplices. Much evidence came from Johnson's testimony concerning the robbery and regarding text messages exchanged between Walker's and Johnson's cell phones. From his conviction for which he received a sentence of twenty-three years' incarceration, Walker appeals, urging two points of error, both related to the status of Johnson and Clark as accomplices.

Walker v. State, supra.  

The brief Walker filed on appeal noted that, when interviewed by police, Llorens said

men came and held him at gunpoint around 8:00 that morning. . . . He allowed them to take a few hundred dollars that were in his pocket. . . . One of the men searched the desk in Llorens's office and took a camera and a radar detector. . . . The State then published a video recording marked as State's Exhibit 1 . . . to the jury. . . .

After the State played the recording from Camera 1,4 Llorens explained that the men arrived at around 8:03 and had left by 8:04:18. He then went outside and called the police. . . . The State then played the recording from Camera 2. . . . Llorens testified that all three men had guns. . . . One of them shoved him after Llorens said he did not have any money other than the money in his pocket. . . . This man had a white t-shirt and a black ski mask. . . . Llorens later testified that this man put a `gun in my face.’ . . .

Appellant’s Brief, Walker v. State, supra.

The Court of Appeals went on to note that Walker’s two arguments on appeal both dealt with whether text messages from Johnson’s cell phone were properly admitted at his trial.  Walker v. State, supra.  More precisely, Walker argued that (i) the text messages from Johnson’s phone “constituted inadmissible hearsay”; and (ii) the trial testimony of Walker’s accomplices, Johnson and Clark, was not sufficiently corroborated. Walker v. State, supra.  (In a footnote, the court explains that “Johnson and Walker exchanged a series of text messages on August 9 and August 14, 2013, in which they ostensibly discussed plans for the robbery that took place on August 14, 2013.”) The court took up each argument, in this order. Walker v. State, supra. 

Walker argues that text messages from Johnson's cell phone were not sufficiently authenticated and therefore constituted inadmissible hearsay, as there was insufficient evidence to connect those messages with Walker. We disagree.

We review the admissibility of evidence for an abuse of discretion and will reverse the trial court's decision only if its ruling lies outside the zone of reasonable disagreement. Butler v. State, 459 S.W.3d 595, 600 (Texas Court of Criminal Appeals 2015); Tillman v. State, 354 S.W.3d 425, 435 (Texas Court of Criminal Appeals 2011). A text message, a short, typed communication typically sent and received using cellular telephones, is, like other evidence, authenticated when evidence supports a finding that it is what its proponent claims it to be. Butler v. State, supra; see TEXAS RULES OF EVIDENCE 901(a) (proponent must produce evidence sufficient to support finding that item is what proponent claims). While a text shown to have originated from a particular individual's cell phone might point to him or her as the probable author of that message, the proponent needs other authenticating information, given that someone else could have used the individual's phone. Butler v. State, supra. The proponent of a text message as evidence could authenticate the message in various ways, including use of a witness who has knowledge about the message or pointing out distinctive characteristics of the message that tend to connect it to a particular person. Butler v. State, supra; see TEXAS RULES OF EVIDENCE 901(b)(1), (4).  Here, the State provided both types of authenticating evidence.

Walker v. State, supra. 

The court went on to explain that

[I]n addition to evidence that the number of the cell phone originating the messages was linked to Walker, within the messages themselves is information that tends to connect them with Walker as the author. (In a footnote, the court explains that

Johnson testified that the text messages originated from `Bshay,’ identified by Johnson as Walker. Haywood Sawyer, who at the time of trial was an investigator with the Bellmead Police Department, testified that he extracted Walker's cell phone number from Johnson's cell phone by looking at the contacts and getting the number for `Bshay.’ Sawyer then ran this number through a Facebook search engine. Sawyer explained that the search engine will tie the number to a person with a Facebook account, if that person listed his telephone number on Facebook when the account was initiated or updated. The number Sawyer extracted from Johnson's cell phone for `Bshay’ matched Walker's Facebook account, and Sawyer was able to obtain a correct spelling of Walker's name.

Walker v. State, supra.  The court also noted that the

author of the messages knew when Walker's mother left the house for work and the fact that Walker did not own a car. Johnson testified from his years of dealing with Walker and from the fact that intervening voice calls came from the same telephone that Walker was originating the text messages and calls from that number, as was his custom.

Walker v. State, supra.  In yet another footnote, the court explained that

Johnson testified that he and Walker discussed plans for the robbery on their cell phones during the time they were also discussing these plans via text messages. Johnson and Walker exchanged twenty-seven cell phone calls on August 10 through August 12, and nine additional calls on August 13 and 14. The cell phone record reflecting this series of calls was an accurate depiction of an image from Johnson's cell phone showing the history of calls between Johnson and the contact known as `Bshay.’

Walker v. State, supra. 

The Court of Appeals then took up the substance of Walker’s argument, noting that

Walker claims that, since Johnson was an accomplice, his testimony authenticating the text messages, without corroboration, cannot be used to support Walker's conviction. We disagree. The authentication rule requires the proponent of evidence to supply supporting information sufficient to support a finding that the item of evidence is what the proponent claims it is. TEXAS RULES OF EVIDENCE 901. Here, we are concerned solely with Johnson's testimony that the text messages he received were from Walker. The purpose of the authentication rule is to ensure the trustworthiness of the information offered into evidence. See Venable v. State, 113 S.W.3d 797, 800 (Court of Appeals of Texas –Beaumont 2003, pet. ref'd). There is no rule that would require the trial court to permit only those witnesses whom it finds credible and sufficiently disinterested to testify regarding authentication. The credibility of a witness is a question for the jury. The trial court has discretion to admit evidence that a reasonable juror could find sufficiently identified. Druery v. State, 225 S.W.3d 491, 504 (Texas Court of Criminal Appeals 2007).

In contrast, the policy underlying the accomplice-witness rule is to make sure that a conviction is not based solely on testimony of a biased accomplice who perhaps has good reason to incriminate the defendant. Accomplices often strike bargains with the State, in which the State agrees to a favorable sentencing recommendation in return for the accomplice's testimony against the defendant. See Blake v. State, 971 S.W.2d 451, 460 (Texas Court of Criminal Appeals 1998). Additionally, `those accused of crimes tend to try to place the responsibility for the commission of the crime on the other participants while downplaying their own participation, often in order to avoid the consequences of criminal acts.’ Blake v. State, supra. Consequently, the rule was designed to prevent a defendant from being wrongly convicted. Blake v. State, supra.

Walker v. State, supra. 

It went on to explain that the

authentication rule and the accomplice-witness rule thus fulfill different purposes at trial. The authentication rule is an evidentiary rule that guards against admitting evidence unless it is supported by evidence suggesting that it is what the proponent claims it is. The accomplice-witness rule is not an evidentiary rule, but is designed to protect the defendant from being wrongfully convicted on the testimony of an accomplice alone.

We see no reason to append the additional requirement of corroboration to the authentication rule when the authentication testimony is offered by an accomplice, and decline to hold that such a requirement is mandated either under the authentication rule or the accomplice-witness rule.

Because the trial court acted within its discretion to find that the text messages were properly authenticated, they were properly admitted into evidence.

Walker v. State, supra. 

The Court of Appeals therefore held that “[b]ecause the trial court acted within its discretion to find that the text messages were properly authenticated, they were properly admitted into evidence.”  Walker v. State, supra. 

It then took up Walker’s argument that “there is no evidence corroborating the trial testimony of accomplices Johnson and Clark and that, therefore, his conviction cannot stand.”  Walker v. State, supra.  It went on to explain that

[t]here is no dispute that Johnson and Clark were accomplices. Walker's claim is that no, or insufficient, evidence in this record, other than accomplice testimony within the meaning of Article 38.14 of the Texas Code of Criminal Procedure, tends to connect Walker with the commission of the charged offense. See Id. We find in this record sufficient evidence tending to connect Walker with the robbery in question.

Walker v. State, supra.  In a footnote, the court quoted the article in question:

`A conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of an offense.’ Article 38.14 of the Texas Code of Criminal Procedure.

The Court of Appeals went on to explain that the

[t]he corroborating evidence needed to allow use of accomplice-witness testimony need only tend to connect the defendant with the crime; it need not be sufficient alone to establish guilt. Castillo v. State, 221 S.W.3d 689, 691 (Texas Court of Criminal Appeals 2007); Medrano v. State, 421 S.W.3d 869, 883 (Texas Court of Appeals -- Dallas 2014, pet. ref'd). Instead, the evidence must only link the defendant in some way to the commission of the offense such that rational jurors could conclude that this evidence sufficiently tends to connect the defendant to the offense. Malone v. State, 253 S.W.3d 253, 257 (Texas Court of Criminal Appeals 2008). Such corroboration may come from small details. Trevino v. State, 991 S.W.2d 849, 852 (Texas Court of Criminal Appeals 1999); Medrano v. State, supra. Based on the particular facts and circumstances of each case, our analysis involves the combined force of all the non-accomplice evidence that tends to connect the accused to the offense. Smith v. State, 332 S.W.3d 425, 442 (Texas Court of Criminal Appeals 2011); Medrano v. State, supra.

Walker v. State, supra. 

The court then applied the above principles to the issue in this case, explaining that the

[o]fficers were able to gain access to Johnson's cell phone containing text messages and voice call logs reflecting communications with a `Bshay,’ whom officers were able to identify independently as Walker. The text messages are communications between Johnson and Walker, ostensibly planning the robbery. Walker contends that the text message evidence is inadmissible and therefore cannot be used to corroborate the accomplice-witness testimony. We have determined that the text messages were admissible. Even if they were improperly admitted, they should be considered in our review of the sufficiency of corroborating evidence. Medrano v. State, supra.  Walker next argues that, at most, the text messages connect Walker to Johnson, but not to the commission of the offense. We disagree.

The text messages from Friday, August 9 reveal (1) that Walker and Johnson were looking for some `wheels’ and the time at which those wheels would be needed at Walker's house early that morning, (2) that Walker reassured Johnson that they would not come out `empty handed,’ (3) that they both needed money, (4) that Walker was skeptical about letting someone he did not know drive, even though that person would not say anything, (5) that Walker stated that he would wait, rather than to get it done on that morning with a driver he did not know, and that they could `go anytime of the week.’ The text messages from Wednesday, August 14 reveal (1) that, at 2:17 a.m., Walker told Johnson, `We [are] on 4 2mrrw,’ (2) that Walker told Johnson that he was up at 6:17 a.m., but asked Johnson to wait until about 6:45 to leave, and (3) that, when Johnson told Walker he was on his way at 6:50 a.m., Walker told him, `[W]ait till My [mother] leave[s].’ Johnson explained that Walker was asking him to wait until his mother left for work. The robbery took place at 8:00 a.m. that morning.

These text messages establish that Walker needed a car for the purpose of getting money, that he did not trust someone that he did not know to drive the car, even though he was assured that the driver would not talk, and that he did not want Johnson to pick him up until his mother left for work on the morning of August 14, slightly more than one hour before the robbery took place. Additional non-accomplice evidence showed that Walker's mother was scheduled to arrive at work on the morning of the robbery at 7:00 a.m., that she worked her usual shift that day, and that Johnson was at the scene of the robbery that morning. 

Walker testified in his own defense and admitted to having known Johnson for several years and having texted Johnson as reflected in the messages introduced into evidence. He explained that the text messages reflected his agreement to front Johnson marihuana so Johnson could sell it to get money. Walker further testified that he and Johnson were set to do a drug deal the morning of August 14 at the same time the robbery happened. The jury could have found this testimony lacked credibility and was simply an attempt to explain away incriminating evidence. The totality of this evidence would permit a reasonable fact-finder to conclude that the text messages tend to connect Walker to the robbery. See Cerna v. State, 441 S.W.3d 860, 866 (Texas Court of Appeals -- Houston [14th Dist.] 2014, pet. ref'd) (among other things, fact that defendant exchanged text messages with accomplice just before murder corroborated testimony of accomplice).

Also, Walker's physical characteristics are said to be consistent with physical characteristics of one of the robbers captured by the video recordings of the robbery, other than Clark and Johnson. That, too, tends to connect Walker with the crime.

We find sufficient corroboration of Clark's and Johnson's testimony at trial to allow its admission and, thus, Walker's conviction.

We affirm the judgment of the trial court.

Walker v. State, supra. 

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.   

News story: Biometric Data, the iPhone and the 5th Amendment privilege

LA Times:

The Government Wants Your Fingerprint to Unlock Your Phone.  Should That Be Allowed, LA Times, http://www.latimes.com/local/california/la-me-iphones-fingerprints-20160430-story.html