• MICHAEL E., 239 CA4 261, 178 CR3 467 (14)
Def. brought his computer to Sage’s Computer in Fort Bragg for servicing. In the course of working on the computer, an employee viewed images on the computer of what appeared to him “to be underage girls engaged in sexual activity.” He felt it appropriate to call the Fort Bragg Police Department to inquire whether these materials were “something that they should be looking at.” Officer who responded to the phone call and viewed the files at the repair shop, stated that although the girls in the photos he viewed were posing in a sexual manner, none of them were nude or “engaging in sexual activity or simulating any sexual activity.”
Indicating he did not consider the images pornographic, Off. asked employee whether he “could search through and look at” anything else in the computer. After further examining Def’s computer files, employee found video files he had not previously noticed. When directed by Off. to open these files, he tried to but was unable to do so. He was, however, able to put the video files on a USB flash drive, which he gave to Off., who took the drive to the Fort Bragg Police Department.
When he was unable to open the files on his own computer, Off. gave the flash drive to a sergeant, who was able to open and view the videos it contained. They concluded the vids depicted “[f]emale juveniles engaged in sexual activity.” The next day they seized the computer.
Def’s motion to suppress was denied. The Court of Appeal, per Kline, P.J., reversed.
They key to the case was the trial court’s ruling that the computer’s hard drive was the functional equivalent of a “closed container.” Thus, when the employee examined the hard drive, he was conducting a private citizen search, which is not covered by the 4th Amendment. Reporting it to the cops, reasoned the trial court, and the subsequent search of the contents, was merely an extension of this private search.
Not so fast, say the Court of Appeal. The United States Supreme Court recently decided in RILEY, 573 US ___, 134 SC 2473 (14) that a cell phone’s data cannot be searched without a warrant. That being so, the same rationale applies to computers.
The Supreme Court’s analysis in Riley highlights the dangers inherent in lawyers and judges cavalierly applying established legal theories to new technologies, without carefully exploring the factual differences between such technologies and the objects traditionally found appropriate for those theories’ application. (See Riley, supra, 134 S.Ct. at p. 2491.) As the Tenth Circuit Court of Appeals has observed: “ ‘Since electronic storage is likely to contain a greater quantity and variety of information than any previous storage method, . . . [r]elying on analogies to closed containers or file cabinets may lead courts to ‘oversimplify a complex area of Fourth Amendment doctrines and ignore the realities of massive modern computer storage.’ [Citation.]” (United States v. Carey (10th Cir. 1999) 172 F.3d 1268, 1275; see also Lessig, The Path of Cyberlaw (1995) 104 Yale L.J. 1743, 1752 [urging courts to “follow the meandering development of the common law” before “venturing too boldly” into the regulation of cyberspace].)