Private Searches

by Charles Gillingham

It would be a shame to have the evidence suppressed on a case you are investigating because you didn't take the time to be careful. Be Careful. Take TIME. Get a Search Warrant!!!

PEOPLE v. EVANS

In People v. Evans, 2014 DJDAR 13573, the court examined a case where a computer repairman viewed images on a computer brought to him for service by the defendant. The computer repairman (Sage) viewed images that appeared to him to be underage girls engaging in sexual activity. Sage called the police. An officer responded to the computer repair shop and viewed the photos that Sage viewed. The officer stated that although the photos he viewed were posing in a sexual manner none were engaging in sexual activity or simulating sexual activity. The officer considered none of the images pornographic. The officer asked Sage whether he could search and look at anything else on the computer. Further examination revealed other videos that Sage could not open. Sage placed those videos on a thumb drive that were subsequently opened at the police department. Those videos depicted juveniles engaging in sexual activity.

MOTION TO SUPPRESS

Defendant argued that he had a reasonable expectation of privacy in his computer and the government argued he forfeited that expectation when he brought the computer to the shop to be fixed.

HOLDING

The court went through a great deal of analysis to come to a simple conclusion: In the search of a a computer disc, external drive, thumb drive, smart phone, etc. officers viewing of items following a search by a private citizen does not constitute a search provided that officers confine their search to that already done by the private citizen.

The court further held that police "exceed the scope of a private search when they examine a closed container that was not opened by the private searchers unless officers are "substantially certain" based on the statements of the private searchers, or their training and experience contraband will be found there. If officers cannot show they were substantially certain of the contents of the closed container before they opened it, the contents will be suppressed. An interesting side note to the consent issue, the court held Sage was directed by the officer to make copies of the files at issue. An analysis of the case law suggests that what an officer says will make a huge difference in the outcome of a consent case. Request, do not demand, compliance with what you as a reasonable officer wants and the result may be different.

GET A WARRANT

After a civilian has reported seeing illegal material on a computer, view one or two images, and then request a search warrant.