Page 66 - Police Officer's Guide 2013

SEARCH AND SEIZURE NO EXPECTATION OF PRIVACY IN THUMB DRIVE ACCESSIBLE
TO OTHERS.

A police officer who wanted to use a computer in the departments patrol room to print his daily activity
report from the officer s personal thumb drive, found another thumb drive already in the computer. Since it
wasnt marked with any identifying information and the room was accessible to other officers, employees of the
department, animal- control personnel, law enforcement officers from other counties, and the media, the officer
opened the files in the drive to determine who it belonged to.

Noticing pictures in a folder on the drive, the officer opened that folder and discovered a photograph of
a naked adult woman. He thought this was pornographic and offensive, so the officer turned over the thumb drive
to his lieutenant. The lieutenant, in turn, gave it to an assistant chief who searched the drive and discovered child
pornography. An investigator with the attorney generals office learned that members of the department
suspected the drive belonged to the defendant. In an interview with the investigator, the defendant gave consent
for a full forensics search of the thumb drive and permission to search both his laptop and desktop computer
at defendants home. During this stage of the investigation, the defendant was told he wasnt under arrest; that
he could leave at any time; did not have to talk with the investigators; and that he wasnt under indictment. In a
subsequent search, child pornography was found on the defendants thumb drive and his laptop computer. In the
view of the investigator following the interview, the defendant had a pretty solid understanding of how
computers work and he used them at an advanced level. He also discovered that the defendant had left his
thumb drive in the patrol room computer on three prior occasions. It usually was found by someone and placed
in his inbox within a day or two, and the defendant agreed to let his lieutenant put the drive in his inbox if it was
found.

Following his arrest, the defendant moved to suppress the evidence found on the thumb drive. At the
suppression hearing, he testified that he had an expectation of privacy in the contents of the drive and considered
the patrol room to be a private area.

The officer considered the drive to be his private property and had not given anyone permission to look
through it. During the interview with the investigators, the defendant said, he somewhat felt like he was in
custody because his weapon was taken from him prior to the interview and one of the interviewers became very
antagonistic and accusatory. Consequently, he did not consider his consent to have been truly free and
voluntary.

During cross-examination, the officer admitted that he had not been handcuffed during the interview or
told that he was under arrest. He was not prevented from leaving, and he was not arrested until two or three
months later. He conceded that the thumb drive was not kept in a locked case and was not password protected.
After acknowledging that he had read the departments policy regarding computers, the defendant agreed that he
knew he did not have a reasonable expectation of privacy in the departments computer. At the conclusion of the
suppression hearing, the trial judge held that the defendant lacked standing to complain about the search of his
thumb drive, and denied the motion. After
pleading guilty, the defendant appealed.

Holding: An accused has standing to challenge the admission of evidence obtained by a governmental
intrusion only if he had a legitimate expectation of privacy in the place subject to intrusion by thegovernment.
It is the defendants burden to prove that he had a legitimate expectation of privacy.

By his conduct, the defendant did not exhibit an actual subjective expectation of privacy in his thumb
drive. On three prior occasions, he had left it in the patrol room computer, an area accessible to many people. No
external markings identified the drive as belonging to the defendant. While he had somewhat advanced

A Peace Officer’s Guide to Texas Law 59 2013 Edition