On appeal from a divided panel of the Court of Appeals, ___ N.C. App. ___, 810 S.E. 2d 719 (2018) (discussed in an earlier blog post by Shea Denning, https://nccriminallaw.sog.unc.edu/state-v-terrell-private-search-doctrine/), the Supreme Court affirmed the Court of Appeals’ decision that an officer’s warrantless search of a defendant’s USB drive following a prior search by a private individual violated the defendant’s Fourth Amendment rights. While examining a thumb drive belonging to the defendant, the defendant’s girlfriend saw an image of her 9-year-old granddaughter sleeping, exposed from the waist up. Believing the image was inappropriate, the defendant’s girlfriend contacted the sheriff’s office and gave them the thumb drive. Later, a detective conducted a warrantless search of the thumb drive to locate the image in question, during which he discovered other images of what he believed to be child pornography before he found the photograph of the granddaughter. At that point the detective applied for and obtained a warrant to search the contents of the thumb drive for “contraband images of child pornography and evidence of additional victims and crimes.” The initial warrant application relied only on information from the defendant’s girlfriend, but after the State Bureau of Investigation requested additional information, the detective included information about the images he found in his initial search of the USB drive. The SBI’s forensic examination turned up 12 images, ten of which had been deleted and archived in a way that would not have been viewable without special forensic capabilities. After he was charged with multiple sexual exploitation of a minor and peeping crimes, the defendant filed a pretrial motion to suppress all of the evidence obtained as a result of the detective’s warrantless search. The trial court denied the motion, finding that the girlfriend’s private viewing of the images frustrated the defendant’s expectation of privacy in them, and that the detective’s subsequent search therefore did not violate the Fourth Amendment. After his trial and conviction, the defendant appealed the trial court’s denial of his motion to suppress. 

The Supreme Court agreed with the Court of Appeals that the girlfriend’s opening of the USB drive and viewing some of its contents did not frustrate the defendant’s privacy interest in the entire contents of the device. To the contrary, digital devices can retain massive amounts of information, organized into files that are essentially containers within containers. Because the trial court did not make findings establishing the precise scope of the girlfriend’s search, it likewise could not find that the detective had the level of “virtual certainty” contemplated by United States v. Jacobsen, 466 U.S. 109 (1984), that the device contained nothing else of significance, or that a subsequent search would not tell him anything more than he already had been told. The search therefore was not permissible under the private-search doctrine. The court affirmed the decision of the Court of Appeals and remanded the case for consideration of whether the warrant would have been supported by probable cause without the evidence obtained through the unlawful search.

Justice Newby dissented, writing that the majority’s application of the virtual certainty test needlessly eliminates the private-search doctrine for electronic storage devices unless the private searcher opens every file on the device.