Motion to Suppress Digital Media

COMES NOW the Defendant, Client, by and through his undersigned counsel, pursuant to Rules 3.190(g) and (h), Fla. R. Crim. P., and respectfully moves this Honorable Court to enter an order to suppress the below listed evidence, obtained by an unlawful and warrantless search and seizure, and/or as the fruit thereof, in any criminal proceeding in the above-referenced cases, and in support hereof, Defendant states as follows:

Evidence Sought to be Suppressed

1. This motion seeks suppression of the following evidence:

a. The contents of all digital storage media;
b. The contents of all computers and similar devices;
c. The identification of Client;
d. The identification of P.B.1;
e. All statements made by Client;
f. The firearm seized from Client’s vehicle at the time of his arrest; and
g. Any other evidence this Honorable Court deems appropriate to suppress.

Summary of Argument

2. Law enforcement officers conducted not one, but at least four (and likely more) illegal warrantless searches of property belonging to Defendant, and for which he had an expectation of privacy. The first three searches were conducted of digital media that law enforcement officers knew to be the property of Defendant that had been stolen by and was in the possession of a third party.
3. In order to justify their search of the digital media, law enforcement officers obtained consent from an individual they knew did not lawfully possess the digital media, and had no actual or apparent authority to consent to that search. Indeed, law enforcement officers explicitly stated they knew the individual they sought consent to search the digital media did not have apparent or actual authority to consent to the search. Law enforcement continued to access and search the digital media without a warrant, with full knowledge of the actual owner of the digital media, and with knowledge that it did not belong to the individual whose consent to search the digital media they had (improperly) obtained.
4. Law enforcement officers subsequently arrested Defendant as a result of their numerous illegal and warrantless searches. After the unlawful arrest of Defendant had been effectuated, law enforcement officers illegally searched the vehicle, and a briefcase found in that vehicle, pursuant to that unlawful arrest. In addition, said search of the vehicle and briefcase of Defendant was also conducted under the guise of an “inventory search,” even though the vehicle was never impounded or taken into the custody of law enforcement.

Summary of Facts

5. Defendant and the alleged victim, P. B. were engaged in a consensual relationship for a period of several years, prior to and after the date of the charged offense. Their relationship was sexual in nature. During the time of their relationship, they cohabited together for extended periods, traveled together, and otherwise comported themselves in a manner consistent with such a relationship.
6. During the course of that relationship, Defendant and P. B., with the knowledge and consent of both parties, created audio and visual recordings of their relationship, including recordings of a sexual nature.
7. These recordings were their personal and private property. Defendant retained possession of these records, and did not intend for them to be shared with anyone. Defendant had, at all times relevant, full and protected expectations of privacy in the contents of those recordings.
8. On Friday, November 6, Client’s personal vehicle was the target of a “smash and grab” burglary, which took place at his place of business. Several items of personal property were stolen in that burglary, including digital media, computers, and similar electronic devices that are, inter alia, the subject of the instant motion.
9. The property stolen was located in a black business bag, known to be carried by Defendant. The black bag had been left in Defendant’s vehicle at the time it was burglarized. Defendant was known to carry large sums of currency for his business, and other personal property, in the black bag.
10. The perpetrators of the burglary were M. H., J. L., and J. R.
11. J. R., who was on Defendant’s premises at the time of the burglary, was a temporary employee working for Defendant’s business.
12. J. L. was a former employee, whom Defendant had previously fired. J. L. had previously told third parties he was going to rob Defendant by hitting him over the head, and stealing his black bag.
13. M. H. is a known drug dealer and known associate of the other two burglars.
14. After the burglary to Defendant’s vehicle, the theft was immediately reported to the Jacksonville Sheriff’s Office (“JSO”), who promptly responded to Defendant’s business to conduct their investigation.
15. When officers arrived, Defendant made a full report of the relevant facts leading to the burglary of his vehicle. Defendant promptly identified J. L. as one of the burglars.
16. Defendant provided a full accounting to the officers of all the property in the black bag, including computer hardware and software, which included property that he explicitly informed the officers, was personal, private, and confidential.
17. In the presence of officers, and within an hour of the burglary, Defendant activated a tracking device installed on one of his stolen iPads. Defendant received GPS coordinates, indicating the whereabouts of the stolen property.
18. An officer with the Jacksonville Sheriff’s Office accompanied Defendant to the location indicated by the tracking system, and some of Defendant’s property was located on the side of the road.
19. Defendant promptly identified his property, and it was returned to him. Defendant also told the officers that additional materials were missing from the back bag and described the materials to the officers, including the digital media that is the subject of the instant motion.
20. Two days later, on Sunday, November 8, Defendant engaged in a series of text messages with J. L. J. L. admitted being involved, and blamed M. H. for orchestrating the burglary.
21. J. L. provided additional information about the burglary to Defendant, which was relayed to the Jacksonville Sheriff’s Office. The information ultimately led to the recovery of a stolen laptop, with the assistance, knowledge, and participation of the Jacksonville Sheriff’s Office.
22. Two days after the burglary of Defendant’s vehicle, on November 8, officers with the Jacksonville Sheriff’s Office took K. P. into custody for committing an unrelated felony offense.
23. About two (2) hours later, officers arrived at the residence where M. H. was visiting. Officers took M. H. into custody on numerous unrelated felony charges, and placed him in the back of a patrol car, where he found K. P. already seated.
24. M. H. and K. P. informed law enforcement officers of the existence of the digital media, which they referred to as the “mother load.”
25. After being informed by M. H. of the existence of this digital media, the officers returned to the K. P. residence and conducted an additional search of the air conditioning vents to recover the digital media.
26. Law enforcement officers were made aware that the content of the digital media was not the property of M. H. or K. P. prior to the examination of the content of the digital media.
27. Law enforcement officers knew or should have known that the digital media was stolen, and was not the lawful property of M. H., nor lawfully in his possession.
28. Prior to any search or review of the digital media, law enforcement officers knew or should have known, and were or would have been informed by M. H., that the material did not belong to him and was of other individuals.
29. Law enforcement officers and M. H. returned to the residence, where M. H. provided the location of the digital media that is the subject of the instant motion.
30. At the time he provided the location of the digital media, M. H. knew the digital media was stolen property and the digital media was the personal property of Client.
31. At the time law enforcement officers with the Jacksonville Sheriff’s Office came into possession of the subject digital media, they knew or should have known the digital media was stolen property, that the digital media did not belong to M. H., that the digital media belonged to Defendant.
32. The content of the digital media was immediately viewed by law enforcement officers, at the residence where M. H. had stored this stolen property. This constituted the initial search of the digital media (hereinafter “First Search”) by law enforcement officers with the Jacksonville Sheriff’s Office.
33. This First Search was conducted by officers who knew or should have known this digital media was stolen property, and their search was conducted without a warrant, and without consent by anyone authorized to give consent, that is, Defendant.
34. Defendant has been aggrieved by said search, and the First Search, as well as any evidence subsequently obtained is subject to suppression.
35. When M. H., J. L., and K. P. were arrested, on Sunday November 8, all were brought to the Jacksonville Sheriff’s Office headquarters, known as the Police Memorial Building (“PMB”), and interrogated by law enforcement officers.
36. These interviews were recorded by the Jacksonville Sheriff’s Office. Each of the individuals questioned, in their respective interviews, told the police that the digital media belonged to Defendant, and did so prior to any additional search after the First Search.
37. During said interviews by law enforcement officers, M. H. was questioned, and, at the outset of the interview, was asked to sign a “consent to search” form, purportedly authorizing the officers to search the digital media.
38. At the time that M. H. signed the “consent to search” form, detectives with the Jacksonville Sheriff’s Office knew (1) the digital material had been stolen, (2) M. H. had no actual2 or apparent authority to consent to the search of the digital material, (3) no warrant had been obtained, and (4) the digital media belonged to Defendant.
39. Indeed, the consent to search form itself is expressly for the purpose of seeking consent from M. H. to a “search of my computer(s) [and] computer peripheral(s) ….” (emphasis added). However, as the officers explicitly stated, they knew the digital media was not M. H.
40. During the interview of M. H., subsequent to his signing the “consent to search” form, but prior to any actual search, detectives with the Jacksonville Sheriff’s Office told M. H. that they were aware that the digital material did not belong to him and was not his property.
41. Subsequent to the First Search, with full knowledge that the digital material was stolen and did not belong to M. H., and that M. H. had no actual or apparent authority to consent to a search, law enforcement officers conducted an additional warrantless and illegal search of the digital media (hereinafter “Second Search”).
42. As noted, prior to the Second Search, law enforcement officers told M. H., on numerous occasions, they knew that the digital media did not belong to him and was stolen.
43. The Second Search was conducted with full knowledge that the digital media contained therein was stolen, that M. H. had no actual or apparent authority to consent to a search, and was conducted without a warrant.
44. Defendant has been aggrieved by said search, and the Second Search, as well as any evidence subsequently obtained is subject to suppression.
45. At the time of the Second Search, law enforcement officers were well-aware of the need for a warrant, and that one of the individuals depicted in the digital media was Defendant. However, none of the burglars interviewed were able to identify the alleged victim in the case. Law enforcement officers were without knowledge of the identity of the alleged victim.
46. In order to identify the alleged victim in the case (P.B.), law enforcement conducted a further search of the digital media (hereinafter “Third Search”).3 The Third Search, like the First Search and the Second Search, were warrantless searches of digital media that law enforcement officers knew or should have known to be stolen, and belonged to the Defendant.
47. The Third Search was not conducted by merely viewing the digital media, but was conducted using forensic computing software – known as FACES, which is a law enforcement facial recognition program. This process involved searching the digital media and analyzing the contents of the videos found on the thumb drive. Without the warrantless Third Search, law enforcement officers would have been unable to identify the alleged victim in this case.
48. The Third Search was a warrantless search of digital media that law enforcement officers knew or should have known to be stolen, and belonged to the Defendant.
49. Defendant has been aggrieved by said search, and the Third Search, as well as any evidence subsequently obtained is subject to suppression.
50. On December 9, Defendant was arrested, pursuant to an arrest warrant issued in (the sexual battery case). Said warrant was based on an affidavit asserting, in substance, the facts set forth above, as to the content of the digital media, which had been acquired, pursuant to the various unlawful searches recited above.
51. Said arrest warrant was invalid, as having been based on the results of an illegal search of Defendant’s private digital storage media.
52. At the time the arrest warrant was served, a search of Client’s vehicle was conducted, during which the subject firearm (charged in another case) was found in a closed container, specifically, a briefcase (hereinafter the “Fourth Search”).
53. At the time of the Fourth Search of Defendant’s vehicle, and the briefcase contained therein, Defendant was already in custody.
54. Defendant had been taken into custody nearly 20 feet from the vehicle, and had no access to the vehicle. The Fourth Search was not conducted incident to a lawful arrest, even assuming, arguendo, that any arrest was lawful.
55. Furthermore, in order to justify the Fourth Search, law enforcement officers have described in reports that the Fourth Search was an “inventory search” of the vehicle.4 However, the vehicle that is the subject of the Fourth Search was never taken into the care or custody of the Clay County Sheriff’s Office, as it was released to Defendant’s parents at the scene of Defendant’s arrest.
56. Additionally, the Fourth Search did not comply with the written inventory search policy of the Clay County Sheriff’s Office.
57. The Fourth Search was conducted without a warrant, and without any lawful consent of the Defendant.
58. Defendant has been aggrieved by said search, and the Fourth Search, as well as any evidence subsequently obtained is subject to suppression.

ARGUMENT

Search #1 – Initial Viewing by Patrol Officers

59. As a matter of law, whenever a search occurs without a warrant, the State has the burdens of proof and persuasion that the searches were conducted pursuant to a lawfully recognized exception to the Fourth Amendment. Respectfully, no such exception applies to any of the (minimum) four discrete searches that law enforcement officers undertook in these cases.
60. Smallwood v. State, 113 So. 3d 724, 729 (Fla. 2013), recited the bedrock law that warrantless searches “are per se unreasonable,” quoting Coolidge v. New Hampshire, 402 U.S. 443, 454-55 (1971). Thus, exigent circumstances are required. Smallwood at 729 and 735.
61. Regarding consent searches, “The burden is on the State to establish common authority to consent to the search.” Brown v. State, 789 So.2d 1021, 1022 (Fla. 2d DCA 2001) (Judge Altenbernd – citing to Illinois v. Rodriguez, 497 U.S. 177 (1990) and Saaverdra v. State, 622 So. 2d 952 (Fla. 1993).
62. In assessing whether the reliance by the officer on apparent authority is reasonable, “courts presume that the officer was familiar with applicable law.” State v. Young, 974 So. 2d 601, 610 (Fla. 1st DCA 2008). For that reason, “the proper inquiry is whether a reasonable person [officer] familiar with applicable law would have believed the third party had common authority” to consent to the search. Id.
63. Moreover, and directly on point here, “If the basis for the asserted authority is unclear, the officer must conduct further inquiry before relying on the third party’s representations.” Id. (emphasis added). On that standard, it is impossible for the State to claim the officers could rely on any “apparent” authority of M. H., for, inter alia, these compelling reasons:
a. M. H. never made any “representations” that he did have authority to consent to the search of the contents of the digital media. To the contrary, as noted above, he disavowed any such authority.
b. Worse yet, the JSO detectives told him they knew he did not have any such authority. Thus, it was entirely clear, under Young, that the JSO detectives could not rely on M. H. to consent to search the contents of the digital media.
c. Moreover, even if it was “unclear” at the time of the First Search, those officers were required to “conduct further inquiry before relying on the third party’s representations.” The same simple questions the JSO officers asked at the PMB would have revealed that M. H. had no authority. Indeed, since it was those PMB officers who, themselves, stated to M. H. they knew the media was not his, JSO clearly already knew M. H. did not have such authority.
d. Of course, even, assuming arguendo, the First Search was valid, the Second and Third Searches of the content of the digital media most clearly were not, since, by then, JSO had tape-recorded evidence of them telling M. H. they knew the digital media was not his.
64. The first illegal search of the digital media was performed at the residence, where M. H. was brought by officers with the Jacksonville Sheriff’s Office. When M. H. identified the location of the stolen digital media, the officers, with his assistance, seized it, and then proceeded to search its contents.
65. The illegality of the First Search involves the actual search of the contents of the digital media, by the law enforcement officers, rather than their simple recovery of the stolen digital media. Thus, while it may have been permissible for law enforcement officers to secure the digital media, upon receipt from M. H., the intrusive and warrantless search of the contents of the digital media in the First Search was conducted in violation of the Fourth Amendment.
66. It was unreasonable and unlawful for law enforcement officers to rely on M. H.’s authority to consent to view the digital media, because M. H. lacked both actual and apparent authority to consent to said search – and not only told the JSO officers so – in a tape recorded interview – but they told him they knew it was not his property.
67. As a matter of law, M. H. lacked actual authority to search the digital media, as he was not the lawful owner of the digital material. This fact was also known or should have been known to law enforcement prior to the First Search and all subsequent searches.
68. With regard to apparent authority, mere possession is insufficient when law enforcement knows that the digital media to be searched is stolen and that the individual that law enforcement is requesting consent to search is not the true owner.
69. M. H. never consented to “view” the devices, when dealing with the original officers, who were at K. P.’s residence. He merely showed them where the device was hidden.
70. M. H. expressly informed law enforcement he did not have authority to consent to a search of the devices – and yet his consent was relied upon in abrogation of the Fourth Amendment.
71. Law enforcement officers knew that M. H. was not in any lawful care, custody and control of the devices, as stolen property is stolen property – regardless of whether the police know the identity of the person from whom the property is stolen. As stolen property, M. H. could not consent. Indeed, a thief cannot consent to a search of the contents of digital media he has stolen.5
72. In addition to the absence of lawful consent, the patrol officers who conducted the First Search at the apartment with M. H. had no lawful grounds to search the digital media. All that M. H. reported was that he had observed a sexual video between a white male and a young female. That is not a crime, there was no probable cause to believe that a crime had occurred, and there was no exigency or exception to the warrant requirement.
73. In addressing Defendant’s pro se motion to suppress, this Honorable Court ruled that Defendant has no “standing to challenge the search of M. H.’s and K. P.’s residence.” Order at 5. This is an accurate statement of law and Defendant does not challenge the physical seizure of the digital media – prior to the First Search.
74. However, and respectfully, that is not the issue. Regarding standing, the issue is this: Does Defendant have standing to challenge the search of the contents of his own property. On that issue, the Court (while surely being satisfied Client had standing regarding a search of his own property6), sought to eliminate the standing issue, by concluding that the initial “viewing of the device did not constitute a search.” Order at 5.
75. However, respectfully, that is precisely what the officers did. That viewing is, by definition, a search of the contents of that media. Thus, whereas Defendant does not have standing to object to the seizure of the device from the K. P. residence, he most certainly has standing to object to the search of the contents of that device.
76. However, Client inadvertently misdirected the Court on that issue, by arguing those searching officers knew he was the victim of an auto burglary, where the device was stolen. Order at 5.7 However, whether those initial officers knew that Client was a victim of an auto burglary, or not, is irrelevant.8 They knew the device was stolen, and they searched its contents anyway. To do so, they had to “open” the device. As reasonably trained officers, they also knew (and/or should have known), M. H. could not consent to viewing items he stole.
77. The Court, citing Kelly v. State, 77 So. 3d 318, 824 (Fla 4th DCA 2012) (which cited Illinois v. Rodriguez, 497 U.S. 177, 181 (1990)), concluded,
The Fourth Amendment prohibition against warrantless searches of an individual’s property does not apply when officers obtain consent either from the individual whose property is to be searched or from a third part who possess “common authority” over the premises.

Order at 5 (emphasis added).
78. However, as noted above, M. H., by his own admission to JSO, in his tape recorded interview, and, as a matter of law (as a thief in possession of stolen property), had no authority at all, let alone “common authority” with Client. Indeed, as also noted above, the facts for the State are far worse – because it was JSO themselves who told M. H. they knew he did not have lawful authority to consent, but just wanted him to sign the consent form anyway.9
79. In defining apparent authority, this Honorable Court relied on State v. Young, 974 So. 2d 601, 610 (Fla. 1st DCA 2008), for the proposition that,
A law enforcement officer may rely on consent from an individual to search the premises or item, if the officer has reasonable reliance that the person giving the consent has apparent authority to do so.

Order at 5 (emphasis added).
80. Undersigned counsel represented Pastor Young, so he is very familiar with that case – and thus can assure the Court that case supports suppression in this case. In Young, a church member had a second key to the pastor’s personal office – and still the First DCA concluded the officers could not rely on any apparent authority of that church member to consent to a search of the pastor’s private office. Conversely, here, Client was the victim of an auto burglary. If a church member with lawful possession of a key to a room does not have apparent authority to consent to a room where the pastor had an expectation of privacy, a fortiori, the police here can never properly claim a thief who was in unlawful possession of the digital media had apparent authority. That reality is all the more stark, given the fact (as noted above), that M. H. did not claim he had any such lawful authority. Indeed, he disavowed it – as did the JSO officers.
81. No reasonably trained officer could place “reasonable reliance” on a thief having “apparent authority” to consent to that which he has stolen. Moreover, as noted, here, law enforcement officers conducted a recorded interview in which both they and M. H. disavowed having any such authority.10 Additionally, while asking for consent, law enforcement explicitly and on more than one occasion told M. H. that they “know it’s not yours.” Thus, not only did M. H. lack apparent authority – but law enforcement officers knew for a fact that he lacked any authority, and that it was not M. H.’s property.
82. Indeed, the officers actually knew the digital media belonged to Client – and they specifically (and repeatedly) named “Client” as the person in the video.
83. Further, the officers who conducted the original and illegal First Search failed to ask M. H. for consent to search the content of the digital material.11
84. In addition, the files located on the device had identifying information relating them to Client. Thus, when the officers illegally accessed the device, and before even viewing the videos, they would have seen additional proof the files did not belong to M. H. – just like M. H. told the officers during his recorded interview.
85. State v. K.C., 207 So. 3d 951 (Fla. 4th DCA 2016), held that a warrantless search of a cell phone constitutes a prima facie showing that the search was invalid. Id. at 953. The “password” factor became relevant in K.C. – for reason the cell phone had been abandoned. Thus, the court reasoned that, absent the phone being password protected, the owner of an abandoned phone would not have a viable expectation of privacy.
86. Here, Defendant did not “abandon” his property. Rather, it was stolen from him. Thus, the abandonment exception articulated in K.C., requiring password protection, to retain an expectation of privacy, has no application to the digital media at issue.
87. Indeed, a fortiori, if there exists a warrant requirement for an abandoned cell phone, such a warrant requirement exists for a thumb drive stolen from the owner – whose files have his name on them. Law enforcement knew or should have known that the digital media was stolen, rather than abandoned.
88. K.C. set forth the test for abandonment, holding that, “Our supreme court has recognized that ‘[t]he test for abandonment is whether a defendant voluntarily discarded, left behind, or otherwise relinquished his interest in the property in question …’” K.C. at 955. Here, clearly, Defendant did no such thing. Rather, his thumb drive was stolen from his truck, after burglars and thieves broke in. Thus, the “password” requirement discussed in K.C. is not required here, in order for Client to retain his expectation of privacy.
89. Additional case law confirms the warrant requirement to search the contents of a media device. To conduct a search incident to arrest, officers must generally obtain a warrant. K.C. at 958 – relying on Riley v. California, 134 S.Ct. 2473 (2014) (“Concluding that a warrantless search of a cell phone cannot be justified as a search incident to arrest.” K.C. at 953).
90. Moreover, although exigent circumstances can sometimes justify a warrantless search (K.C. at 955), as we have noted, no such exigent circumstances existed here.
91. Similarly, Smallwood held that the holding of Arizona v. Gant applies, because the phone was removed from defendant. Smallwood at 735.
92. Importantly, Smallwood held that cell phones are now “computer-like devices.” Smallwood at 731. Thus, the expectation of privacy in a cell phone, is like a “home computer,” and cell phones “are entitled to a heightened expectation of privacy.” Id. at 736. So strongly did the Florida Supreme Court feel about the expectation of privacy for cell phones, that they held as follows:
In our view, allowing law enforcement to search an arrestee’s cell phone without a warrant is akin to providing law enforcement with a key to access the home of the arrestee.

Smallwood at 738.
93. The digital media in question is entitled to similar constitutional protections. While law enforcement could secure possession of the digital media from M. H., a warrant was required to search the contents of the digital media. As discussed above, it is clear that M. H. lacked the authority to consent to such a search, in order to vitiate the warrant requirement under the Fourth Amendment.
94. The media was stolen – not abandoned. The “test for abandonment is whether a defendant voluntarily discarded, left behind, or otherwise relinquished his interest in the property in question so that he could no longer retain a reasonable expectation of privacy with regard to it at the time of the search.” State v. K.C., 207 So. 3d (Fla. 4th DCA 2016), quoting Caraballo v. State, 39 So. 3d 1234, 1245 (Fla. 2010).
95. The defendant in K.C. was arrested, after a cell phone, found on the front seat of a stolen car, was searched. Holding that K.C. maintained an expectation of privacy in the electronic media stored on his cell phone, the trial court granted suppression of a warrantless search, and the Fourth District affirmed.
96. The holding in K.C., as well as the facts, are directly analogous here. The police, in K.C., acquired evidence without the consent of the owner, and without a warrant. In the instant case, there was no warrant, either. The officers could have, and indeed were obligated to, get a warrant.
97. The subject thumb drives, like the cell phone in K.C.,as digital storage devices, have “an immense storage capacity.” K.C. at 2. As such, they contain:
many distinct types of information – an address, a note, a prescription, a bank statement, a video – that reveal much more in combination than any isolated record. Second, a cell phone’s capacity allows even just one type of information to convey far more than previously possible. The sum of an individual’s private life can be reconstructed through a thousand photographs labeled with dates, locations, and descriptions.
Id.
98. The same is true for a thumb drive. Indeed, the memory capacity of the subject thumb drive is far greater than that of the typical cell phone. In such cases, the K.C. Court concluded, the law is clear, and a warrant is generally required. Id. at 6.
99. Based on the above facts, and the argument following below, it is clear that the evidence in question was seized as a result of an illegal search, and therefore suppression should be granted. Client has standing, as he had an expectation and a right to privacy in his personal property. His consent to search, or a warrant, should have been obtained prior to any search.

Search #2 – Subsequent Search by Detectives

100. Even after the initial and unlawful First Search, law enforcement officers made no attempt to obtain a warrant. Detectives with the Jacksonville Sheriff’s Office conducted interviews prior to the Second Search, where it was made clear that the digital media belonged to the Defendant, and that M. H. had no actual or apparent authority to consent to the search of the digital media.
101. Moreover, as also noted above, the interrogation of M. H., at the Police Memorial Building, confirms that officers knew that M. H. was a thief, who stole the digital media. They told M. H. they knew the device was not his – and he agreed.12 The law enforcement officers insisted on his signature on their consent form, knowing he was but a thief in possession of stolen property, who, as a matter of law, could not consent.
102. One of the methods that the law enforcement officers used to coax M. H. into signing the consent to search was confirming with M. H. that, not only did the investigation have nothing to do with him, but they knew the digital media was not M. H.’s property.
103. Thus, even, assuming arguendo, the law enforcement officers at the First Search believed M. H. had authority to consent to the search of the digital media, the detectives involved in the Second Search explicitly stated that they knew M. H. was not the owner of the digital media, yet still relied on his consent to search in an effort to avoid obtaining a warrant.
104. For this compelling reason, it could not be more clear that the Second Search was unlawful.

Search #3 – Facial Recognition Search for Alleged Victim

105. It appears law enforcement officers may have conducted numerous searches of the digital media, between the First and Third Searches. However, the warrantless Third Search is the one that ultimately led to the identity of the alleged victim in this case.
106. This Honorable Court’s prior Order confirms the Third Search was the search that “discovered the identity of the victim through the aforementioned video and facial recognition.” Order at 4. Clearly, that search was not only the fruit of the prior illegal searches, but was conducted with full knowledge (including a tape recording), confirming the officers knew M. H. had no authority to consent.
107. Moreover, but for the Third Search, law enforcement would never have identified the alleged victim through social media accounts. Verbal descriptions from the officers conducting the First Search, or from the detectives who conducted the Second Search, would have been unable to reasonable identify the alleged victim. The science and technology requirements of facial recognition software require an actual photograph of the person to conduct a search. A verbal report from other law enforcement officers would be wholly insufficient to conduct the Third Search.
108. Thus, but for the extensive processing of the illegal and warrantless Third Search, the identity of the alleged victim would have not been ascertained.

Search #4 – Search of Defendant’s Vehicle and Briefcase

109. At the time the Fourth Search was conducted, Defendant had been arrested and taken into custody.
110. As discussed above, in order to lawfully conduct any search, a warrant must be obtained or a recognized exception to the warrant requirement must exist.
111. In the case of the search of Defendant’s vehicle, subsequent to his arrest, as well as the search of the closed containers therein (including the briefcase where the subject firearm was recovered), law enforcement officers did not obtain a warrant, and no exceptions to the warrant requirement apply. Therefore, the search that led to the recovery of the subject firearm was unlawful and the fruits of said search are due to be suppressed.
112. In South Dakota v. Opperman, the Supreme Court outlined the requirements allowing law enforcement officers to inventory lawfully impounded property without first obtaining a warrant (if conducted pursuant to a lawful arrest of Client – which, of course, did not occur here). South Dakota v. Opperman, 428 U.S. 364, 369 (1976). This is commonly known as the “inventory search” exception to the warrant requirement.
113. Opperman requires two predicates for an inventory search to be considered lawful. First, the vehicle must be lawfully impounded. Second, the inventory search must be conducted pursuant to an established and standardized inventory policy. Id.
114. The Supreme Court has held “an inventory must not be a ruse for a general rummaging in order to discover incriminating evidence. The policy or practice governing inventory searches should be designed to produce an inventory.” Florida v. Wells, 495 U.S. 1, 4 (1990).
115. The corollary is that, where law enforcement officers act “in bad faith or for the sole purpose of investigation,” an inventory search will be held invalid and the subject evidence suppressed. Colorado v. Bertine, 479 U.S. 367, 373 (1987).
116. In this case, neither of the two predicates for an inventory search were complied with. With regard to the first issue, not only was the arrest of Client and seizure of his vehicle unlawful, but the Clay County Sheriff’s Office never actually impounded the vehicle or otherwise took custody of the vehicle. Indeed, the vehicle was handed over to the parents of the Defendant at the scene.
117. Thus, the vehicle was never lawfully seized or impounded. As it was never lawfully impounded, it cannot be the subject of an inventory search. Thus, as there was no warrant and no other legal justification to search the vehicle, any evidence obtained during such a purported inventory search is due to be suppressed.
118. Additionally, the purported inventory search failed to comply with the standardized inventory policy of the Clay County Sheriff’s Office. Because the search was conducted without law enforcement officers obtaining a warrant, intended to obtain evidence in a criminal case, was conducted on a vehicle that had not actually been impounded, and failed to comply with the standardized inventory policy, and otherwise failed to fall under the guise of any other exceptions to the warrant requirement, any evidence obtained pursuant to said unlawful search is due to be suppressed.

Conclusion

As United States and Florida citizens, we have the right to be secure in our persons, our homes, our papers and effects against unreasonable searches and seizures. This right is guaranteed both by the Fourth Amendment to the United States Constitution, and by Article I, §12, of the Florida Constitution. Furthermore, the Florida Constitution “shall be construed in conformity with the Fourth Amendment to the United States Constitution, as interpreted by the United States Supreme Court.” Article I, §12, Florida Constitution (1982).
Ordinarily this contemplates that a search warrant will be issued prior to any search, however certain exceptions have been recognized, including consent, and extraordinary circumstances. Where there is no search warrant, the prosecution has “the burden to establish that the evidence sought to be suppressed was obtained lawfully.” State v. Setzler, 667 So. 2d 343, 345 (Fla. 1st DCA 1995). This is because the State is required to justify any search made by law enforcement of a citizen. This justification can either take place “before the fact by showing a judge grounds for issuance of a warrant,” or by proof of a valid “exception to the warrant requirement.” Id. “It is well established that a search conducted pursuant to valid consent is a recognized exception to the requirements of probable cause and a search warrant, although the consent to search must be voluntary, and the person giving consent must have the authority to do so.” State v. Purifoy, 740 So. 2d 29, 30 (Fla. 1st DCA 1999). Here, as the facts and law recited above demonstrate, no lawful consent was obtained.
As noted above, the prosecution bears the burden of establishing that common authority exists, to support a claim of consent to search. See Illinois v. Rodriguez, 497 U.S. 177, 181 (1990); also Saaverdra v. State, 662 So.2d 952 (Fla. 1993) (adopting the common authority test set out in Matlock to determine validity of third-party consent); Brown v. State, 789 So.2d 1021, 1022 (Fla. 2d DCA 2001) (driver could not consent to search of passenger’s fanny pack left in car when policed ordered them to exit the car). Here, the State cannot possibly establish that burden. It is unimaginable they would assert to the Court that a thief, who denied ownership or lawful possession of the thumb drive, could ever provide “valid” third-party consent. The officers knew M. H. was a thief. They knew the thumb drive did not belong to M. H. They knew it was not his.13 They knew it was stolen. Any reasonably informed officer knows a thief cannot consent to searching computer, or hard drive, he stole.
The Fifth Circuit held, in Iraheta, that the search and admission of evidence was improper, because the driver of a car is not authorized to consent to search of a passenger’s bags in the trunk. U.S. v. Iraheta, 764 F.3d 455, 458, 463-64 (5th Cir. 2014). Here, whereas M. H. may have had authority to allow a search of the residence, he certainly had no authority to consent to a search of the contents of the thumb drive, because, like the passenger’s bags in the trunk, he had no authority to consent to the search of an even more private “passenger bag,” that is, the thumb drive.
U.S. v. Peyton, 745 F.3d 546, 552-54 (D.C. Cir. 2014) held the search and admission of evidence to be improper, because officers lacked reasonable belief that defendant’s great-grandmother, despite having authority over the general common area, had common authority over a shoe box located where officers knew defendant specifically stored personal belongings. Similarly, here, if M. H. had authority to allow a search of the residence, he had no such authority with regard to the thumb drive, because, like the shoe box, it was not his, the officers knew it was not his, and they knew the true owner (whether it be Client, or some other person), had “specifically stored personal belongings” in that thumb drive.
The Ziegler case held that an employer had authority to consent to search of defendant’s work computer, because employer owned the computer and employees knew the employer routinely monitored Internet traffic. U.S. v. Ziegler, 464 F.3d 1184, 1191-92 (9th Cir. 2007). However, here, Client owned the “computer” (that is, the hard drive) – and never shared it with M. H.
Defendant had a valid and reasonable expectation of privacy in his stolen personal property, and therefore has standing to contest the validity of this search.
The evidentiary value of the contents of the digital media were not readily observable without a search. The “plain sight” exception to the warrantless search doctrine is thus inapplicable.
The seizure and search of Defendant’s vehicle was illegal, for reason the Defendant’s arrest was unlawful, no warrant was obtained, and no “inventory search” exception, or any other exception, vitiated the requirement of a warrant under the Fourth Amendment.
The Arrest Affidavit was known by the executing officers to have material factual omissions defeating probable cause, and thus precluding good faith reliance on the warrant.
WHEREFORE, Client requests that any and all evidence obtained by an unlawful search and seizure be suppressed, along with any other evidence.