McDonnell v. State

Daniel McDonnell v. State of Maryland, No. 1246, Sept. Term 2021. Opinion by Shaw, J.

SEARCHES AND SEIZURES: THE FOURTH AMENDMENT

Law enforcement officers generally must obtain a judicial warrant prior to the search and
subsequent examination of property. In the absence of a warrant, a search is reasonable
only if it falls within a specific exception to the warrant requirement. A defendant’s
voluntary consent to search is an exception to the Fourth Amendment’s warrant
requirement. A search and subsequent examination of property based on consent is
constitutionally permissible if the search and examination falls within the scope of consent.
Once the consent to search is revoked, absent any other warrant exceptions, any further
examination of property is unreasonable and unconstitutional. U.S. Const. amend. IV.

SEARCHES AND SEIZURES: THE FOURTH AMENDMENT

The Fourth Amendment safeguards “[t]he right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures….” Individuals
maintain a legitimate expectation of privacy in such property. An expectation of privacy
can be lawfully lost in a variety of circumstances. Once the expectation of privacy is
lawfully lost, it ceases to exist, unless the expectation is reclaimed by some form of
subsequent action and arises again. U.S. Const. amend. IV.

WARRANT REQUIREMENT: THE FOURTH AMENDMENT

Consent is an exception to the warrant requirement if it is knowingly and voluntarily given.
An individual may place limitations on the scope of consent or revoke consent at any time.
When consent serves as the sole basis for authority to search and seize property, law
enforcement officers are required to adhere to the express limitations and revocation by the
individual. U.S. Const. amend. IV.
Circuit Court for Anne Arundel County
Case No. C-02-CR-21-000487

REPORTED

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

No. 1246

September Term, 2021

DANIEL ASHLEY MCDONNELL

v.

STATE OF MARYLAND

Wells, C.J.
Shaw,
Kenney, James A., III
(Senior Judge, Specially Assigned),

JJ.

Opinion by Shaw, J.

Filed: December 1, 2022
Pursuant to the Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State
Government Article) this document is authentic. *Ripken, J., did not participate in the Court’s
2022-12-01 15:20-05:00
decision to designate this opinion for publication
pursuant to Md. Rule 8-605.1.

Gregory Hilton, Clerk
This appeal stems from the denial of a motion to suppress by the Circuit Court for

Anne Arundel County. Appellant, Daniel McDonnell, was indicted on charges of

promotion or distribution of child pornography and possession of child pornography.

Investigators from the United States Army Criminal Investigation Division Command

(“USACIDC”) searched his laptop’s hard drive, with consent, created a “mirror-image

copy” of the hard drive and found “evidence of child pornography search terms in

[Appellant’s] internet browser history[.]” Seven days later, Appellant retained counsel and

withdrew his consent. The examination of the copy occurred after his withdrawal.

Appellant filed a motion to suppress, which was denied following a hearing. On

September 24, 2021, he entered a plea of not guilty, and was tried on an agreed statement

of facts. Appellant was found guilty on three counts of distribution of child pornography

and sentenced to a suspended aggregate sentence of thirty years’ incarceration, with five

years’ supervised probation. He timely appealed and presents the following question for

our review:

1. Did the search of the information from Appellant’s laptop computer,
without a judicial warrant, violate Appellant’s Fourth Amendment
rights, where the consent to examine the contents had been formally
withdrawn prior to the search pursuant to the terms of the initial
consent obtained?

For reasons discussed below, we reverse.

BACKGROUND

On July 12, 2019, investigators from the United States Army Criminal Investigation

Division Command approached Appellant, without a search warrant, at his residence, and
conducted what they characterized as a “knock and talk.” During that interaction,

investigators asked Appellant about an upload of suspected child pornography. Appellant

agreed to sign a consent to search form, in which he “consent[ed] to the seizure and

subsequent search of” the contents of his electronic devices. The form states in pertinent

part:

I hereby authorize the undersigned Special Agent, another
Special Agent or other person designated by USACIDC, to
conduct at any time a complete search of all digital media
including cellphones, thumb drives, hard disk drives, laptops
and any other media relevant to this investigation.

⃰ ⃰ ⃰
I relinquish any constitutional right to privacy in these
electronic devices and any and all information stored on them.
I authorize USACIDC to make and keep a copy of any
information stored on these devices. I understand that any
copy made by USACIDC will become the property of
USACIDC and that I will have no privacy or possessory
interest in the copy.

⃰ ⃰ ⃰
I understand that I may withdraw my consent at any time.

That same day, investigators seized multiple electronic devices from Appellant’s

residence including, “a hard drive from a laptop computer.” Between July 12, 2019, and

July 16, 2019, investigators created a “mirror-image copy” of Appellant’s hard drive. On

July 19, 2019, Appellant’s counsel sent an email to investigators informing them that he

represented Appellant and “any purported consent to the seizure of [Appellant’s] laptop,

or examination of its contents, is hereby withdrawn.” Counsel requested the return of

Appellant’s laptop.

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Sometime between August 5-20, 2019, investigators performed a forensic

examination on the “mirror-image copy” of Appellant’s hard drive. A report was generated

on September 3, 2019, that stated there was “evidence of child pornography search terms

in [Appellant’s] internet browser history, however there was no evidence of actual child

pornography on the system.” Appellant was subsequently charged with twenty counts of

promotion or distribution of child pornography and twenty counts of possession of child

pornography in the Circuit Court for Anne Arundel County.

Appellant filed a motion to suppress the evidence, requesting, in part, “[s]uppression

of any in-court identifications and/or illegally seized evidence and/or any statements or

confessions, and/or evidence derived from therefrom[.]” At a motions hearing held on

August 16, 2021, the parties stipulated to the relevant facts above and to the admission of

four documents: (1) a consent to search form; (2) an email dated July 19, 2019 sent by

Appellant’s counsel to CIDC investigators; (3) a memorandum detailing the findings of the

forensic examination of the Appellant’s laptop hard drive; and (4) an additional page of the

investigation report regarding the time frame in which the hard drives were copied. The

court issued an order on August 30, 2021, denying Appellant’s motion.

On September 24, 2021, Appellant entered a not guilty plea and the case proceeded

on an agreed statement of facts. Appellant was found guilty on three counts of distribution

of child pornography and was sentenced to an aggregate sentence of thirty years’

incarceration, fully suspended, with five years’ supervised probation. He timely appealed.

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STANDARD OF REVIEW

In reviewing a circuit court’s denial of a motion to suppress evidence, this Court

“must rely solely upon the record developed at the suppression hearing.” Grimm v. State,

232 Md. App. 382, 396 (2017) (quoting Briscoe v. State, 422 Md. 384, 396 (2011)). “We

view the evidence” presented, and any “inferences that may be drawn . . . in the light most

favorable to the party who prevails on the motion.” Id. This Court accepts “the circuit

court’s findings of fact unless they are clearly erroneous, but . . . we undertake an

independent constitutional evaluation by reviewing the relevant law and applying it to the

unique facts and circumstances of this case.” Trott v. State, 473 Md. 245, 254 (2021)

(citation and internal quotations omitted).

DISCUSSION

Appellant argues the court erred in denying his motion to suppress. He asserts the

forensic examination of his laptop’s hard drive and the data within, conducted after he

withdrew his consent, was an illegal warrantless search and violated his Fourth

Amendment rights. Appellant argues that Riley v. California, 573 U.S. 373, 485 (2014),

supports his contention that a warrant was required.

The State counters that Appellant lacked any legitimate expectation of privacy in

the mirror-image copy of his laptop’s hard drive, which was created with his consent and

where he expressly disclaimed any possessory or privacy interest in the devices. The State

asserts the examination of the mirror copy was not a Fourth Amendment search. The State

argues that Riley does not create Fourth Amendment protection for copies of digital data

and that Appellant does not have privacy interests in the copy.

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The Fourth Amendment to the United States Constitution guarantees “[t]he right of

the people to be secure in their persons, houses, papers, and effects, against unreasonable

searches and seizures . . . .” U.S. Const. amend. IV. “The exclusion of evidence obtained

in violation of these provisions is an essential part of the Fourth Amendment protections.”

Swift v. State, 393 Md. 139, 149 (2006); Mapp v. Ohio, 367 U.S. 643, 655-56 (1961).

“[T]he ultimate measure of the constitutionality of a governmental search is

‘reasonableness.’” Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 652 (1995).

“[R]easonableness generally requires the obtaining of a judicial warrant.” Id. at 653.

“A search conducted pursuant to valid consent, i.e[.], voluntary and with actual or

apparent authority to do so, is a recognized exception to the warrant requirement.” Id.; see

also Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973). “Once voluntary consent is

given, it remains valid until it is withdrawn by the defendant.” United States v. Ortiz, 669

F.3d 439, 447 (4th Cir. 2012) (emphasis in original) (holding that state troopers were

permitted to search petitioner’s vehicle because he gave troopers consent to search twice,

and never withdrew his consent, and the search was conducted within the scope of the

consent). “A consent to search is not irrevocable, and thus if a person effectively revokes

. . . consent prior to the time the search is completed, then the police may not thereafter

search in reliance upon the earlier consent.” United States v. Lattimore, 87 F.3d 647, 651

(4th Cir. 1996) (holding that officers were permitted to search the petitioner’s automobile

because he never expressly withdrew his consent for the search).

“The person invoking Fourth Amendment protections bears the burden of

demonstrating his or her legitimate expectation of privacy in the place searched or items

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seized.” Williamson v. State, 413 Md. 521, 534 (2010) (citing Smith v. Maryland, 442 U.S.

735, 740 (1979)). If governmental action infringes no legitimate expectation of privacy,

then no “search” has occurred for Fourth Amendment purposes. See Raynor v. State, 440

Md. 71, 82-84 (2014).

In Riley v. California, the Supreme Court consolidated and examined two cases,

Riley and United States v. Wurie, to determine the limited question of whether the warrant

requirement under “the search incident to arrest doctrine applie[d] to modern cell phones.”

See Riley, 573 U.S. at 385 (2014). In that case, petitioner, Riley, was stopped for a traffic

violation and searched incident to the arrest. Id. at 378. An officer seized a cellphone from

his pants pocket and accessed information on the phone. Id. The officer noticed the

repeated use of a term associated with a street gang. Id. Later, a detective, specializing in

gangs, examined the phone’s digital contents and based on his findings, the State charged

Riley in connection with a shooting that had occurred a few weeks earlier. Id. at 379. Riley

moved to suppress all evidence. Id. The lower court denied his motion and he was

subsequently convicted. Id. at 379-80.

In Wurie, the respondent, Wurie, was arrested after police observed him

participating in an apparent drug sale. Id. at 380. At the police station, the officers seized

a cell phone from Wurie’s person and noticed the phone was receiving multiple calls from

a source identified as “[his] house” on its external screen. Id. Officers opened the phone,

accessed its call log, and traced the number to what they suspected was Wurie’s apartment.

Id. They secured a search warrant and found drugs, a firearm and ammunition, and cash

in the ensuing search. Id. at 381. Wurie was charged with drug and firearm offenses. Id.

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He moved to suppress the evidence obtained from the search of the apartment. Id. The

district court denied Wurie’s motion, but the First Circuit reversed holding that “the amount

of personal data cell phones contain” make them “distinct from other physical possessions

that may be searched . . . without a warrant . . . .” Id.

In answering the question of what police must do before searching a cell phone

seized incident to an arrest, the Supreme Court held, “get a warrant.” Id. at 403. Observing

that cell phones have become a ‘pervasive and insistent part of daily life,’ the Court noted

that cell phones “differ in both a quantitative and a qualitative sense from other objects that

might be kept on an arrestee’s person. The term ‘cell phone’ is itself misleading shorthand;

many of these devices are in fact minicomputers that also happen to have the capacity to

be used as a telephone. They could just as easily be called cameras, video players,

rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or

newspapers.” Id. at 393. The Court then held:

Modern cell phones are not just another technological convenience.
With all they contain and all they may reveal, they hold for many Americans
“the privacies of life,” Boyd, supra, at 630, 6 S.Ct. 524. The fact that
technology now allows an individual to carry such information in his hand
does not make the information any less worthy of the protection for which
the Founders fought.

Riley, 573 U.S. at 403 (quoting Boyd v. United States, 116 U.S. 616, 630 (1886)).

In Varriale v. State, 444 Md. 400, 433 (2015), the petitioner, suspected of rape,

signed a consent to search form and agreed to the search of his person in the form of saliva

and penile swabs. Id. at 405. The form stated, “any evidence found to be involved in this

investigation, being conducted by the Anne Arundel County Police Department can be

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used in any future criminal prosecution.” Id. Subsequent DNA analysis determined that

Varriale was not involved in the rape, however, his DNA was uploaded into a suspect

databank and an “automatic search resulted in a match between Varriale’s DNA profile

and a DNA profile associated with an unsolved commercial burglary that occurred in

2008.” Id. at 406. Varriale was later charged with burglary and filed a motion to suppress

the State’s DNA evidence, “on the grounds that the subsequent use of his DNA . . .

exceeded the scope of his consent.” Id.

The Circuit Court for Anne Arundel County denied the motion, and Varriale

appealed to this court. We affirmed the circuit court’s judgment holding that “the State had

validly obtained the sample, … it had no obligation to obtain a warrant before using the

sample in a subsequent investigation.” Id. at 409. Varriale filed a petition for certiorari.

The Court of Appeals granted Varriale’s petition and held “that the Fourth Amendment did

not prohibit the police from using Varriale’s lawfully obtained DNA sample, where he

consented to the search without placing an express limitation on his consent. . . .” Id. at

410. The Court reasoned that “Varriale’s failure to place an express limitation on the use

or storage of his DNA sample . . . constituted a waiver of any privacy interest in that DNA

sample and the State was not prohibited from utilizing his DNA profile in subsequent

criminal investigations.” Id. at 419. The Court did observe that, “[o]nce a search goes

outside the scope of consent . . . it becomes unreasonable.” Id. at 433.

In Wallace v. State, the Court of Appeals addressed what is required to reclaim one’s

expectation of privacy in an item. 373 Md. 69 (2003). Petitioner Wallace was convicted

by a jury of first-degree and second-degree murder, first degree assault, and the unlawful

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taking of a motor vehicle. Id. at 72. While in custody, his clothing and other personal

belongings were taken from him, inventoried, and then stored in the facility’s property

room. Id. at 75. Wallace’s items were then moved to the patrol side property room for

safekeeping after an officer investigating a murder received witness accounts providing a

description of a man’s appearance that was similar to petitioner. Id. at 76. “Once on the

patrol side, [the investigating officer] separated the clothing from the plastic bag and, while

folding the clothing, noticed stains on petitioner’s shorts.” Id. However, “[n]o analysis

was done on the stains at that time. . . .” Id. at 77. The State’s Attorney’s Office advised

the investigating officer “to take the items back over to the booking area and to obtain a

search warrant to obtain those items.” Id. The investigating officer returned the items and

applied for a search warrant, relying in part, on his “observations upon moving the clothing

to the patrol side property room.” Id. The warrant was issued and executed that same day

“and the items were released from the booking area for analysis the next day.” Id. Wallace

was subsequently charged and filed a motion to suppress, which was denied by the court.

Id. at 71. He was ultimately convicted, and his conviction was affirmed by this Court. Id.

at 72. The Court of Appeals granted his petition for certiorari. Id. at 73.

In affirming this Court’s holding, the Court of Appeals held that “once petitioner’s

belongings were taken and put into police custody, he had no reasonable expectation that

they would be kept private from police inspection.” Id. at 93. The State lawfully possessed

the property based on a routine inventory search stemming from a lawful arrest. Id. at 81.

“[Wallace] was well aware that the police had dominion over the clothing and could

exclude him from possessing it.” Id. at 93. The Court noted that after the initial inventory,

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“[Wallace] could have requested the release and exchange of his clothing to a third person,

but he did not.” The Court concluded that “[o]nce the expectation of privacy is lawfully

lost, it does not exist, unless such an expectation arises again by some subsequent action.”

Id. at 95. Wallace declined to take any subsequent action.

Here, it is uncontested that Appellant voluntarily gave his written consent to

investigators, allowing them to seize and search his laptop’s hard drive. At the time of his

consent, Appellant was informed “that an inquiry [was] being conducted in connection

with . . . possession [and] distribution of child pornography.” His consent authorized

investigators to create a mirror-image copy of the hard drive. He agreed to “relinquish any

constitutional right to privacy [he had] in the electronic devices and any information stored

on them.” He also agreed that because the “copy made by USACIDC w[ould] become the

property of USACIDC . . . [he] w[ould] have no privacy or possessory interest in the copy.”

However, seven days later, prior to the forensic examination of the copy, Appellant

expressly withdrew his consent, stating, “any purported consent to the seizure of

[Appellant’s] laptop, or examination of its contents, is hereby withdrawn.” Unlike

Varriale, Appellant expressly limited or eliminated the examination of the data. As we see

it, his withdrawal was clear and unequivocal. Also, unlike Wallace, by his subsequent

action, he reclaimed a reasonable expectation of privacy in the data.

In a recent Court of Appeals opinion, Richardson v. State, No. 46, 2022 WL

3711713, at *1 (Md. Aug. 29, 2022), law enforcement officers sought and obtained a search

warrant for the retrieval of information stored in a cellphone. The Court held the officers

acted reasonably in executing the search even though the warrant lacked the necessary

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particularity. The Court noted the importance and sensitivity of digital information as

discussed in Riley. The Court also noted that “[v]igilance in enforcing the probable cause

and particularity requirements is . . . essential to the protection of the vital privacy interests

inherent in virtually every modern cell phone and to the achievement of the ‘meaningful

constraints’ contemplated in Riley.” Id. at *21 (quoting Burns v. United States, 235 A.3d

758, 773-74 (D.C. 2020); Riley, 573 U.S. at 399). Courts are “obligated – as ‘subtler and

more far-reaching means of invading privacy have become available to the Government’ –

to ensure that the ‘progress of science’ does not erode Fourth Amendment protections.”

Carpenter v. United States, 138 S. Ct. 2206, 2223 (2018) (quoting Olmstead v. United

States, 277 U.S. 438, 473-74 (1928) (Brandeis, J., dissenting)).

Here, because individuals have a legitimate expectation of privacy in the digital data

within their computer, we hold that Appellant’s revocation of his consent to examine

data from his laptop computer precluded a forensic examination of the mirror-image copy

of its hard drive without a warrant. For that reason, his motion to suppress should not have

been denied.

JUDGMENT OF THE CIRCUIT COURT
FOR ANNE ARUNDEL COUNTY
REVERSED; COSTS TO BE PAID BY
APPELLEE.

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The correction notice(s) for this opinion(s) can be found here:

https://mdcourts.gov/sites/default/files/import/appellate/correctionnotices/cosa/1246s21cn.pdf