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North Carolina Court Deepens Split on Private Searches of Digital Evidence


Added 08-23-19 03:21:02am EST - “An important Fourth Amendment issue that may be headed to the U.S. Supreme Court.” - Reason.com

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Posted By TheNewsCommenter: From Reason.com: “North Carolina Court Deepens Split on Private Searches of Digital Evidence”. Below is an excerpt from the article.

Imagine someone comes to the police and reports that she found evidence of a crime on someone else's computer that she was using.  She brings the computer to the police and asks them to investigate.  Here's the legal question:  If the police agree to investigate, what search of the computer can the police conduct without a warrant?  Can they search the entire computer? Can they search only the actual files that the private party saw?  Or can they not search the computer at all?

I have blogged over the years about this issue, which I have tended to label the "private search reconstruction doctrine." That doctrine lets the police repeat a private search of an item without a warrant, with the private party's permission, on the theory that the private party's search already eliminated Fourth Amendment rights in the item searched.

In a new decision last week, State v. Terrell, the North Carolina Supreme Court deepened the existing 2-2 circuit split on how the doctrine applies to computers.  It also added a new third answer to the questions above. The U.S. Supreme Court may take on this issue soon, perhaps in this very case.  Here is a run-down of the case and why the Supreme Court might be interested in it.

Ms. Jones is a grandmother who one day looked through her boyfriend's briefcase in search of a photograph. She found a thumb drive in the briefcase, plugged it in to a laptop, and started looking for the photo.  She opened several folders and subfolders and unexpectedly came across an extremely troubling image: A partially nude photo of her 9 year-old granddaughter.  At that point, Jones stopped the search and alerted her daughter about what she had found.

The next day, Jones and her daughter brought the thumb drive to the local Sheriff's department so they could investigate.  A detective plugged the thumb drive into a computer and started looking through it for the image of Jones's granddaughter.  As he was opening files to find that image, the detective saw other images that he thought might be child pornography.  He then found the image of Jones's granddaughter that Jones had previously found. At that point he stopped the search.

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