Reply Brief of Appellant
STATEMENT OF FACTS
Preliminarily, the Attorney General “urges this Court to rely on the trial courts (sic) findings below,” rather than providing a statement of facts. Answer Brief (“AB”) at 3. First, it is incumbent on the Attorney General to only advocate those facts that were actually developed in the record below, and not rely on factual conclusions of the trial court that are the subject of challenge in this appeal. Second, the trial court order in question contained irrelevant, prejudicial, hearsay, and other inadmissible evidence, in violation of Faretta. Thus, this Honorable Court should reject that request.
The trial court, over objection of counsel, and contrary to its own written order, improperly relied on evidence adduced at a hearing where Appellant was unrepresented by counsel, without the benefit of a Faretta inquiry. See e.g. R. at 401-03, 469-71. Thus, such inadmissible evidence was improperly considered.
The Appellant, at one point, was unrepresented, and filed a pro se motion to suppress evidence. R. at 73-80. On June 8, a hearing was conducted on the Appellant’s Pro Se Amended Motion to Suppress Evidence. R. at 10. The Appellant’s Pro Se Motion to Suppress was denied. R. at 10, 150-58.
The trial court’s denial order incorrectly stated that a Faretta inquiry occurred on May 23. However, the Appellant was not in court on that day, but rather appeared on May 22. R. at 9, 150. Moreover, the hearing transcripts R. at 801-812) make clear that no such inquiry ever occurred.
Subsequently, the Appellant obtained counsel, who filed a revised motion to suppress. R. at 291-318. At the start of the hearing on the counseled motion to suppress (which is the basis for this appeal), and after concerns were raised about the admissibility of evidence from the prior hearing, the trial court stated, “whatever is in evidence stays in evidence from the prior hearing.” R. at 469 (emphasis added). Counsel for the Appellant reminded the trial court that the prior motion had been abandoned, and that, given the lack of a Faretta inquiry, the trial court should not consider the inadmissible hearsay that was considered when the Appellant was unrepresented. R. at 469-70.
The trial court declined the request, stating, “I would like to see the DCA weighing in on that … Because I think the totality of the circumstances throughout that transcript will indicate that at least the evidence that was introduced by your client … should stay before the Court.” R. at 471:19-25-471:1. Counsel for the Appellant reiterated that the prior hearing, including the use of police reports and deposition transcripts, should “be a nullity,” and could not be used in the subsequent, counseled hearing. R. at 471:6-12.
In its order denying the suppression motion and hearing, conducted by the Appellant’s counsel, the trial court made factual findings on evidence that was obtained and available solely from evidence from the hearing where the Appellant proceeded pro se. R. at 403-07. Thus, that inadmissible evidence was not ignored, but, rather, became an integral part of such findings.
Regretfully, in its Answer Brief, the Attorney General has likewise quoted liberally from the statements made from such inadmissible materials.
This Honorable Court has made it clear that a trial court must offer counsel to a pro se defendant, and conduct a thorough Faretta inquiry, at each “critical stage” of the litigation. Berryhill v. State, 177 So. 3d 1290, 1291 (Fla. 1st DCA 2015). A motion to suppress is such a stage. Id.; citing Kearse v. State, 858 So. 2d 348 (Fla. 1st DCA 2003). Failure to conduct an adequate inquiry is per se error, and prejudice need not be demonstrated. Howard v. State, 147 So. 3d 1040 (Fla. 1st DCA 2014); Wilson v. State, 76 So. 3d 1085 (Fla. 2d DCA 2011); State v. Sigerson, 282 So. 2d 649 (Fla. 2d DCA 1973).
Given the trial court’s reliance on and inclusion of extra-record materials, contrary to Faretta, as well as the Answer Brief’s use of such materials, statements, and conclusions, this Honorable Court should reject the Attorney General’s invitation to accept the trial court’s statement of fact, disregard the Attorney General’s reliance on such material in their Answer Brief, and rely solely on the admissible evidence adduced at the hearing, where the Appellant was represented by counsel.
ISSUE I – THE TRIAL COURT ERRED IN DETERMINING THAT A PORTABLE HARD DRIVE IS NOT SUBJECT TO THE SAME FOURTH AMENDMENT PROTECTION AS OTHER COMPUTERS AND CELL PHONES
A. Fourth Amendment – Application
The Attorney General does not deny this was a warrantless search, or challenge Fourth Amendment law, or dispute that warrantless searches are suspect, or that, since this was a warrantless search, the burden lies with the State to demonstrate the search was valid.
“‘The most basic constitutional rule’ in the area of Fourth Amendment searches is that ‘searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment – subject only to a few specifically established and well-delineated exceptions.’ The exceptions are ‘jealously and carefully drawn,’ and there must be ‘a showing by those who seek exemption … that the exigencies of the situation made that course imperative. [T]he burden is on those seeking the exemption to show the need for it.’” State v. Worsham, 227 So. 3d 602, 603 (Fla. 4th DCA 2017), cert. denied sub nom. Florida v. Worsham, 138 S. Ct. 264 (2017) citing Smallwood v. State, 113 So. 3d 724, 730 (Fla. 2013) (quoting Coolidge v. New Hampshire, 403 U.S. 443, 454–55(1971)). The Supreme Court has very recently confirmed that, “our cases establish that warrantless searches are typically unreasonable where ‘a search is undertaken by law enforcement officials to discover evidence of criminal wrongdoing.’” United States v. Carpenter, No. 16-402 (U.S. June 22, 2018), Slip Op. at 18.
“However, ‘a warrantless search constitutes a prima facia showing [that the search was invalid] which shifts to the [S]tate the burden of showing the search’s legality.’” State v. K.C., 207 So. 3d 951, 953 (Fla. 4th DCA 2016). The Fourth Amendment requires that “the ultimate burden of proof as to the validity of a warrantless search is on the state.” State v. Hinton, 305 So. 2d 804, 808 (Fla. 4th DCA 1975). Where a warrantless search is conducted, the State bears the burden of proof and “must also rebut the presumption that a warrantless search is unreasonable.” Hanifan v. State, 177 So. 3d 277, 279 (Fla. 2d DCA 2015) citing Riggs v. State, 918 So. 2d 274, 278 (Fla. 2005); Hornblower v. State, 351 So. 2d 716, 718 (Fla.1977).
Instead, the Attorney General’s Answer Brief (1) asserts a new third-party doctrine claim, and (2) improperly disregards the law, in an attempt to shift the burden of establishing the legality of the State’s warrantless search to the Appellant.
The State had the burden to demonstrate an exigency or exception for the warrant requirement. As it is clear from the motion and record below, the Appellant did not challenge any [unidentified] searches by non-state actors, the Appellant satisfied the four prongs outlined in the Answer Brief, as it is uncontroverted that law enforcement conducted numerous searches of the Appellant’s digital media – all without a warrant. See AB at 13; R. at 404-12; R. at 492:7-9. Thus, the Appellant’s “burden of proving there was state action” (AB at 16) is satisfied with evidence that law enforcement conducted a search. The Appellant, contrary to the Attorney General’s position, at no point was required to disprove an exception to the warrant requirement, that is, that a private search vitiated the Appellant’s expectation of privacy. AB at 14. Aside from the law clearly making that the State’s burden, that is so for two compelling reasons: (1) the State (below) never made such an argument, and (2) there are no facts in the record to establish a private search for which any law enforcement search would be “confirmatory.” AB at 22.
As the burden is on the State to establish the exception to the warrant requirement, it was the State’s burden below to establish that the Appellant lacked an expectation of privacy, once the Appellant made an initial showing.
This initial showing is not complex, and “[a]s a practical matter, absence of a search warrant in the court file sufficed to shift the burden of going forward to the prosecution.” State v. Setzler, 667 So. 2d 343, 345 (Fla. 1st DCA 1995) citing State v. Hinton, 305 So. 2d 804, 808 (Fla. 4th DCA 1975) (holding “when the defendant demonstrated a warrantless arrest and search a prima facie showing of invalidity was thereby established satisfying the defendant’s burden under Rule 3.190(h)(3); the burden then shifted to the state to prove a legal search”); see also State v. Williams, 538 So. 2d 1346, 1348 (Fla. 4th DCA 1989).
Although there was no exigency, the officer intentionally circumvented the warrant requirement, by improperly seeking written consent from H. – while telling him, “we know it’s not yours.” App. B at 2.
As the Florida Supreme Court has made abundantly clear, “[t]he deterrent benefits of exclusion … outweigh the societal costs because exclusion reminds law enforcement officers that warrantless searches are the exception to the rule and that this exception should only be used when specifically authorized by law. The rule on searches in questionable areas of law is simple and unequivocal: Get a warrant.” Carpenter v. State, 228 So. 3d 535, 542 (Fla. 2017) (emphasis added).
B. Third-Party Doctrine – New Claim by Attorney General
As noted, for the first time on appeal, the Attorney General raises the third-party doctrine. It was never raised below, for reason it was not supported by the facts or the law. However, the Attorney General erroneously claims both a legal and factual basis for application of that doctrine, asserting, without any record citation (and for which none exists), that “the officers viewed the video file that had already been viewed by the private actor … It is apparent that private actors had already thoroughly reviewed this video file.” AB at 19. The Attorney General improperly seeks to shift the burden to the Appellant, for two inappropriate reasons.
First, as conceded in the Answer Brief, “a warrantless law-enforcement search conducted after a private search violates the Fourth Amendment only to the extent to which it is broader than the scope of the previously occurring private search.” AB at 21; United States v. Sparks, 806 F.3d 1323, 1334 (11th Cir. 2015). As the Supreme Court has made clear, “the Government may not exceed the scope of the private search unless it has the right to make an independent search.” United States v. Jacobsen, 466 U.S. 109, 116 (1984). Thus, the Attorney General wants it to appear the unidentified “private search” by H. was coterminous with the law enforcement searches. However, that unsupported claim is refuted by the record.
There is no record evidence regarding the scope of the unidentified search by H., the alleged private searcher. Indeed, the only record evidence is that, whatever H. saw, was not the same as what the officers searched for and saw. According to the officer conducting the initial search, the extent of the non-speculative, record evidence is that H. had seen “some sick shit.” R. at 848-85. Although that officer was improperly permitted to testify as to his opinion of the H. search, not only was his opinion inadmissible, but there is no record evidence regarding the scope of the speculative and unidentified H. search. Indeed, when asked, “tell me about these thumb drives … [h]ow many of those did you actually look at?” (R. at 331), H.’s response was, “one video” (the identify of which was never established). Thus, it is important to note the seizure involved several thumb drives. Numerous digital media items were taken, and there is absolutely no record evidence which ones (plural) law enforcement searched, versus which one (singular) H. saw (let alone if it was the video selected for prosecution). More to the point, H. disavowed viewing the video the officers selected (R. at 335), thus confirming the scope of their search unlawfully exceeded his.
A review of the record makes it clear that the initial searching officer had no idea what he was going to find. The officer was asked if H. “described a videos or any content that would have been on these thumb drives and SD cards?” – to which the officer replied “not at that time, no.” R. at 500-01. Moreover, the officer said, “he [H.] didn’t go into detail or anything. He only said it was some sick shit.” R. at 501.
The State has only the two words, “sick shit,” upon which to assert the validity of their search, and/or identification of the “one video” H. claimed to have seen. However, in addition to H. disavowing viewing the subject video, the meaning of that term is utterly ambiguous and absolutely void of any probable cause of a crime, as further evidenced by its common meaning. One must use the common meaning of words to determine probable cause, just as one does when interpreting the plain language of a statute. Here, dictionary definitions can be found at “justsickshit.com,” which defines this expression to include “executions, wrecks, torture, disasters, surgeries, corruption and bizarre photos.” Thus, the common meaning of this expression clearly includes multiple non-criminal conduct.
Thus, the State must not only improperly rely on conjecture as to what H. purportedly saw, but it must also improperly attempt to shift the burden to the Appellant. Since there is no record evidence regarding the scope of the unspecified H. search, and since H. disavowed viewing the subject video, the State cannot satisfy their burden in proving the numerous subsequent searches did not exceed the scope of H.’s unidentified viewing.
To sidestep their burden, the Attorney General argues, “Appellant has not demonstrated … police exceeded the scope of the private search and, since he bore that burden, affirmance … is proper.” AB at 26. However, this is not the Appellant’s burden; it’s the State’s.
The Attorney General’s new theory must have a basis in the record, and cannot contradict the actual record evidence. The actual record evidence is that, when the detective brought up the video from the first search, H. denied viewing the video. R. at 335. The detective told H., “That one video that we looked at, the one I had you sign that form for, it’s pretty rough, on some of that” (R. at 335) – to which H. responded, “[a]nd I ain’t see.” R. at 335.
When the first searching officer was asked what was on the video, he had no idea what he would find. R. at 512. That is due to the fact, as noted above, no one asked H. what he saw. Indeed, even at the suppression hearing, the State failed to identify what H. saw.
Thus, the record evidence confirms a complete lack of knowledge by the officers regarding the breadth and scope of the unidentified private search. Furthermore, there is no record evidence to suggest that the Appellant’s expectation of privacy had been frustrated by the actions of H.
The Attorney General’s efforts to assert this new “third-party doctrine” to support denial of suppression is further thwarted by the law – including the very recent U.S. Supreme Court decision in United States v. Carpenter, No. 16-402 (U.S. June 22). Carpenter analyzed the very third-party doctrine now asserted by the Attorney General’s Office, and illuminated the reach of the third-party doctrine, holding that doctrine does not defeat the expectation of privacy for cell phone users, such that government agencies must obtain a warrant to seek location information derived from cell towers, notwithstanding the fact that, by operation of the cellular technology, cell phone users voluntarily share information about their location with their carriers.
Given the fact the United States Supreme Court has ruled that the expectation of privacy is not lost to those who voluntarily permit their cell phone carriers to track their location, a fortiori, the Appellant submits this decision reinforces his expectation of privacy, under the circumstances where his very personal data was stolen from him.
The Attorney General asserts the 98 year old case of Burdeau v. McDowell, 256 U.S. 465 (1921) supports their position. First, whatever vitality that case had, 98 years ago, has long been vitiated – including by the very recent Carpenter Supreme Court decision. Second, the facts in that case are far afield from ours. In Burdeau, the documents were located in “a large safe belonging to the bank” [the landlord of McDowell’s employer, who leased space from the bank]. That “large safe was opened with a view to selecting papers belonging to the company,” during which time a “representative of the company took private papers of McDowell’s also.” Burdeau at 473. Thus, McDowell’s employer had lawful access to premises it rented, and, while retrieving its own records, observed, in plain view, personal records of McDowell. Here, the highly personal portable thumb drive was taken from the Appellant during a smash and grab auto burglary, by persons with no authority to access either his locked vehicle, or open the content of his hard drives. Significantly, neither the State below, nor the Attorney General, can cite a single case supporting the authority of law enforcement to search the contents of a hard drive, under such circumstances.
Carpenter Slip Op. at 9, citing United States v. Miller, 425 U.S. 435, 443 (1976). Carpenter concluded Miller was not controlling, because the documents in question were “business records of the banks,” and thus Miller could “assert neither ownership nor possession of the documents.” Id. Here, the Appellant could, and did, assert both ownership and possession (prior to the theft) of his highly confidential records on his portable hard drive. No one else had such lawful ownership.
Over 40 years ago, the Supreme Court identified the third-party doctrine.” That doctrine holds that, “a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.” Carpenter Slip Op. at 9 (emphasis added). Thus, “The third-party doctrine partly stems from the notion that an individual has a reduced expectation of privacy in information knowingly shared with another.” Carpenter Slip Op. at 15-16 (emphasis added). Here, it cannot be gainsaid that the Appellant did not “voluntarily,” or “knowingly,” turn over his personal hard drives to the thieves who broke into his locked car, or to H. Thus, the required predicate for application of the third-party doctrine does not exist, and the Appellant’s expectation of privacy remained intact.
“When an individual ‘seeks to preserve something as private,’ and his expectation of privacy is ‘one that society is prepared to recognize as reasonable,’ we have held that official intrusion into that private sphere generally qualifies as a search and requires a warrant supported by probable cause.” Carpenter Slip Op. at 5. Clearly, a portable hard drive, locked in a vehicle, represents an unassailable effort to preserve the hard drive as private. Moreover, society has long-recognized the application of the Fourth Amendment to vehicles, and now does so with cell phones, and, by extension, computers and hard drives. Riley v. California, 134 S. Ct. 2473 (2014); Smallwood v. State, 113 So. 3d 724 (Fla. 2013); State v. K.C., 207 So. 3d 951 (Fla. 4th DCA 2016).
This is all the more so, given the clear recognition, of all modern courts, to extend that expectation of privacy to electronic devices and storage medium, such as computers and hard drives.
A quote by the Carpenter court is particular applicable here:
… the fact that the information is held by a third party does not by itself overcome the user’s claim to Fourth Amendment protection.
Carpenter Slip Op. at 11.
That principle was applied to the lawful possession of records by a third party (the cell phone carrier). Thus, it must apply, a fortiori, to the unlawful possession by H. of stolen records, which he intended to use for extortion.
Although claiming to recite “modern” law (AB at 6), in reality, the Attorney General is relying on 97 year old case law (at a time when our country permitted wiretaps without a court order), and fails to recognize the paradigm shift in Fourth Amendment law in the last century.
That shift was confirmed in Carpenter, Slip Op. at 5:
More recently, the Court has recognized that “property rights are not the sole measure of Fourth Amendment violations.” Soldal v. Cook County, 506 U.S. 56, 64 (1992). In Katz v. United States, 389 U.S. 347, 351 (1967), we established that “the Fourth Amendment protects people, not places,” and expanded our conception of the Amendment to protect certain expectations of privacy as well.
The Supreme Court explained the need to refine Fourth Amendment law, “to ensure that the ‘progress of science’ does not erode Fourth Amendment protections.” Carpenter at 22.
Clearly, even if H. unlawfully possessed the stolen hard drives, that did not defeat the Appellant’s expectation of privacy in their content.
Thus, just as Carpenter rejected the government’s assertion “that the third-party doctrine governs this [Carpenter] case,” finding that “The Government’s position fails to contend with the seismic shifts in digital technology” (Carpenter Slip Op. at 15), respectfully, so too must the Attorney General’s assertion of application of the third-party doctrine be rejected.
In the absence of record evidence, and with clear evidence to the contrary, this Court should decline the Attorney General’s invitation to make up facts to overcome the choice by law enforcement officers to ignore the warrant requirement. Further, given the lack of evidence or testimony of good faith, coupled with the recent holding of Carpenter, the searching officer’s intentional decision to circumvent the warrant requirement, as well as failure to argue it below, precludes application of any good faith exception.
ISSUE II – POLICE CANNOT RELY ON “APPARENT” CONSENT AUTHORITY OF A THIRD PARTY WHEN THEY KNOW THE STORAGE DEVICE WAS NOT THAT PERSON’S, AND KNEW IT HAD BEEN STOLEN FROM THE TRUE OWNER, AND PURCHASED BY THAT THIRD PARTY WITH HEROIN, FROM THE THIEF, TO USE FOR EXTORTION
With regard to whether the officers reasonably relied on apparent consent from H. as to the first search, it is clear that the officers had an obligation to make a further inquiry. Young at 601. It is anathema to logic and common sense that a multi-time convicted felon, experienced in the criminal justice system, would stop officers who were on the way to taking him back to jail, to turn over evidence that was his property. R. at 689, 404. Again, as with Issue I, the Attorney General makes numerous factual statements unsupported by the record, and thus without record citations. For example, there is absolutely no record evidence that H. “expressly described the contents of the drive to the officers.” AB at 35. As discussed in Issue I, all of the record evidence is to the contrary.
Once law enforcement officers observed another individual’s name on all of the files, they had yet a further obligation to further inquire of H., to determine if he had lawful authority to consent to a search. R. at 433; AB at 41-42; Young at 601. The Attorney General repeatedly claims H. consented to a search of the contents of the hard drives. AG at 7, 19, 21, and 45. That is incorrect. Rather, he was never even asked for consent to search the contents of the hard drives.” R. at 511:5-19. Thus, the issue of his “apparent authority” is truly moot.
Even assuming, arguendo, that, up to that point, H. had apparent authority, the name of a third party on all of the files required the officers stop their search and inquire further. Id. The officers failed to make a reasonable inquiry, even though “the basis for the [apparent] asserted authority [was] unclear.” Young at 610. The Appellant otherwise would rely on his Initial Brief (“IB”) to address the numerous (11) factors that should have clearly caused law enforcement officers to inquire further as to H.’s authority to consent to a search, and not rely on the “apparent” authority of a man complicit in the theft. IB at 32-37.
With regard to the second search, law enforcement asked a man to consent to a search, who had no apparent authority to consent – and they knew it. Specifically, the investigating detective, recognizing the need for either a warrant or a lawful exception, asked H. to sign a Consent to Search Computer and Peripherals, but told H., “I know it’s not yours.” R. at 328 (emphasis added).
The necessary deterrent effect for such police conduct is clear. The detective, made it clear he knew it was not H.’s, and yet proceed with a pretextual “consent” form. R. at 328. No lawful exigencies existed to allow the detective to disregard the warrant requirement, before searching through digital material that H. had not seen and had no authority to consent to a search of its contents. While the initial searching officer violated the requirements of Young, by failing to inquire of H. regarding his apparent authority, or determine the scope of the alleged “private” search, as the facts developed that evening, it became even more clear that H. had no authority to consent to such a search. Nevertheless, the officers persisted in conducting an illicit and warrantless search.
ISSUE III – THE FACIAL RECOGNITION SEARCH, WHICH LED TO THE IDENTIFICATION OF THE VICTIM, WAS CONDUCTED WITH FULL KNOWLEDGE NO APPARENT AUTHORITY EXISTED FOR THE “CONSENT” SEARCH OF THE CONTENTS OF THE DIGITAL STORAGE DEVICE
In addressing the third search, the Attorney General primarily relies on its arguments advanced in Issues I and II. AB at 45-46. Thus, the Appellant incorporates and adopts the arguments addressed in Issues I and II of both his Initial Brief and this Reply Brief. With regard to the trial court’s finding that “viewing of the thumb drives does not constitute a search,” it is clear that the Attorney General has not embraced that argument on appeal, but rather argues all searches were lawful, because the scope of the searches by law enforcement were allegedly the same (which is not true) as H.’s entirely unidentified “search,” or alternatively, H. had apparent authority to consent to the searches. R. at 412; see generally AB. However, the State, as did the trial court, fails to recognize the key factual and legal distinction between the third search, as compared with the prior searches. AB at 49. The trial court’s order stated that “the second and third searches are inconsequential.” R. at 412. As discussed below, this assertion is incorrect.
Although it is true that “the officers cannot un-see what they already viewed,” this statement fails to acknowledge the significance of the additional searches, both from a legal and evidentiary standpoint. R. at 412. From an evidentiary standpoint, prior to that search, officers remained clueless as to any of the details or identities of the parties depicted in the videos, and could never have identified them.
Sgt. Faulkner, the initial searching officer, testified he opened only one file and, “as soon as we saw what was on there, we stopped looking at it … immediately.” R. at 493. The second officer was asked, “[h]ow much of the video did you see?” – to which he replied “not much.” R. at 503:13-14. The second search, conducted by Det. M., the investigating detective, observed only “one particular video file.” R. at 517. (Again, importantly, H. explicitly disclaimed having watched that video. R. at 335.)
The third search was conducted after the detective’s detailed interview of H., where he conclusively learned H. disavowed having search authority. The third search was far more invasive, including a review of the Appellant’s business plans, and screen captures of the videos, which were selected for forensic (facial recognition) analysis. R. at 538-40. Absent that forensic analysis and review of those documents, none of the officers knew, or had the ability to determine, the identity of either of the individuals in the video. R. at 541:7-15. The State so stipulated. R. at 324-25 (App. D).
Thus, the record is clear that, absent the continued and far more expansive searches, merely viewing a small portion of a video at the H. residence was of no value to the officers, as they were unable to identify the Appellant, or the alleged victim.
The continued and more invasive searches are clearly illegal, as any potential argument that H. had apparent authority to consent to the searches was all the more negated during the course of the detectives’ interview with H. As discussed, supra, the State did not argue below, and the record clearly does not support, a conclusion that law enforcement did not exceed the scope of the unidentified H. search. The only record evidence is that H. explicitly disclaimed seeing the only video observed by officers in the first two searches. R. at 335.
The Attorney General now incorrectly argues the Appellant’s challenge to the law enforcement expansion of the unidentified alleged search by H. was waived, because not presented below. AB at 47. However, below, the State argued both apparent authority, and that no warrant was required, because the devices were not password protected. See generally, 545-47. The State did not argue that the Appellant’s privacy rights had been frustrated by the unidentified actions of H. Rather, knowing there was no proof as to what H. saw, the State understood they could not, in good faith, assert such an argument. As noted, there were no facts adduced as to what H. may have seen. Thus, the search by law enforcement clearly exceeded the scope of any unidentified viewing by H. Nevertheless, the Appellant’s 28 page motion to suppress clearly articulated that all searches (including the third) were conducted without a warrant, and were illegal. R. at 291-317.
Lastly, any broad brush claim that the officers had the duty to investigate crime is factually flawed, because they were not informed of a “crime.” Even if they had been, any such “duty” does not vitiate the officers’ duty to comport any searches with the warrant requirement of the Fourth Amendment. R. at 412. Their failure to do so violated the rights of the Appellant, and was in violation of the Constitution.
ISSUE IV – THE SEARCH OF THE APPELLANT’S VEHICLE AND SEIZURE OF THE FIREARM WAS FRUIT OF THE POISONOUS TREE
With regard to this issue, the Appellant relies on his Initial Brief.
In light of the foregoing, this Honorable Court should find that the trial court erred and that the Appellant’s motion to suppress should have been granted. With regard to its argument regarding the scope of private searches, the State cannot shift its burden on warrantless searches to the Appellant. Moreover, the record below clearly demonstrates no factual predicate to support the Attorney General’s belated third-party doctrine argument. In addition, since it is clear law enforcement went well beyond the scope of any [unidentified] private search, it is also clear that the Appellant’s right to privacy was violated – even if the third-party doctrine applied to the private hard drives stolen from the Appellant’s locked vehicle. With regard to the claim H. could consent to a search of the contents of the hard drives, the record is clear that H. lacked either actual or apparent authority to authorize a search of the contents of highly personal digital data of the Appellant. As such, the Appellant’s appeal is due to be granted.