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New Rule for Plain View? Or just simplification...

The S.C. Supreme Court affirmed the court of appeals on a case discussing two exceptions to the warrant requirement: plain view doctrine and inevitable discovery.

In State v. Cardwell, the defendant gave his computer to a repairman to be fixed. While the repairman was fixing the computer at his house, the chief of police happened to stop by. At one point, a picture of an underage child popped up on the computer screen that immediately got the attention of the chief. The chief then instructed the repairman to click on a video related to the image. A video of more underage children appeared.

Circuit Court

At trial, the defense argued that the search was unreasonable without a warrant. The trial court denied this motion, and found "[p]etitioner did not retain a reasonable expectation of privacy in the contents of her computer files since she voluntarily gave her computer to Marsh and thereby exposed its contents to the public." State v. Cardwell, No. 2015-002507, 2019 WL 290576, at *1 (S.C. Jan. 23, 2019).

Court of Appeals

The CoA disagreed with the trial court, and held that “the act of providing an information technology professional access to one's data for the sole purposes of preserving that data and restoring the computer's functionality does not constitute exposing the data to ‘the public.’ ” Id., at *2. However, the court still held that the defendant did not have a reasonable expectation of privacy in the video file. In a well reasoned and in-depth opinion, the court compared the image file to a container:

In this case, Chief Douglas's authority to open the video file arose from the still image of Minor 2, which allowed an inference to be made about the illegality of the video's content. See Blair v. United States (stating that the contents of a container are considered to be in plain view if the container “proclaims its contents by its distinctive configuration or otherwise and thus allows by its outward appearance an inference to be made of its contents.”).
State v. Cardwell, 414 S.C. 416, 431 (Ct. App. 2015) (citation omitted)

After a discussion on containers and the plain view doctrine, the court held:

Here, the question is whether the “container,” i.e., the video file, “allow[ed] by its outward appearance an inference to be made of [the video's] content[ ]” such that the plain view exception to the warrant requirement may serve as an independent ground for affirming the denial of Cardwell's motion to suppress. The “label” on the container, i.e., the still image, gave the appearance that the video file's content included a nude minor engaging in inappropriate sexual behavior. Therefore, the plain view exception to the warrant requirement supports the denial of the motion to suppress in this case.
Id., at 432-33

The court also held that the defendant had no expectation of privacy in the image because it was in plain view. ("We conclude the circuit court properly denied the motion to suppress the video file seized from Cardwell's laptop computer because Cardwell had no reasonable expectation of privacy in the photograph of Minor 2." Id., at 433-34.)

Supreme Court

The Court upheld both the trial court and CoA in their final result. However, they affirmed and modified. I'm not an appellate attorney, so I might have this completely wrong, but it appears that by affirming and modifying, the court has overruled and cleared out the discussion and conclusion reached by the CoA.

The Court's discussion on plain view doctrine was a concise two paragraphs (one for law, one for analysis). The Court reached the same conclusion as the previous two courts, and held:

The image was of a young boy, approximately ten or eleven years old, wearing nothing but a pink bra. This suggests the video from which the image was taken more than likely contained child pornography.
State v. Cardwell, 2019 WL 290576, at *3

Is there a new rule out of this case?

After reading the CoA case, it seemed like the court created a new rule about digital images on video files being analogous to containers. They also held that by giving your computer to a third party to be fixed, you are not giving up your expectation of privacy in the contents. It makes sense that the court would draw this conclusion because of the increasing digital world in cases.

However, even if the Supreme Court cleared out the CoA analysis, did they still make a new rule (or simplify an existing one)? Based on their holding, the rule could be: If the image on the video suggests that the actual video contains criminal evidence, then the plain view exception applies. Is this the rule, and even if it is, is it different than the CoA opinion?

If only I were an appellate attorney...


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