People v. Gingrich

STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, FOR PUBLICATION

November 6, 2014

Plaintiff-Appellant, 9:00 a.m.

v No. 310416

Kent Circuit Court

MAXIMILIAN PAUL GINGRICH, LC No. 11-007145-FH

Defendant-Appellee.

Before: MARKEY, P.J., and WILDER and MURRAY, JJ.

PER CURIAM.

Plaintiff appeals by leave granted the circuit court’s order granting defendant’s motion to

suppress evidence of child pornography, MCL 750.145c(4), found on defendant’s laptop

computer following a warrantless search by police after being notified by Best Buy employees of

suspicious file names the employees saw while performing repairs to the computer. The circuit

court ruled that a search without both probable cause and a warrant is generally unreasonable

unless a recognized exception to the warrant requirement applied, and that in this case, the search

and seizure was not permissible under the exigent circumstances, consent, plain view, or

inevitable discovery exceptions. Our review of United States Supreme Court precedent, by

which this Court is clearly bound regarding matters of federal law, People v Gilliam, 479 Mich

253, 261; 734 NWd2 585 (2007), convinces us that the circuit court ruled correctly.

Accordingly, we affirm.

I. SUMMARY OF PERTINENT FACTS AND PROCEEDINGS

The limited facts pertinent to this appeal were developed at defendant’s preliminary

examination on charges of two counts of possessing child sexually abusive material, MCL

750.145c(4), and two counts of using computers to commit a crime, MCL 752.796. At the

preliminary examination, Chad Vandepanne, a computer repair technician for Best Buy, testified

that he received a work order to perform a “diagnostic repair with a backup” on defendant’s

computer.1 The requested work required Vandepanne to physically remove the computer’s hard

1

No one from Best Buy who had direct contact with defendant testified at the preliminary

examination and the unsigned work order was not admitted in evidence. The prosecution

attempted to supplement the record by attaching the work order to its late motion for

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drive, backup all of the data on the computer, and then perform a full hardware/software

diagnostic, repairing any problems that were discovered. A machine performing the backup

would display computer file names but not permit the files to be opened, as Vandepanne testified

that Best Buy’s policy did not permit employees to open any customer computer files. During

the backup of defendant’s computer, Vandepanne noticed files entitled, “12-year old Lolita” and

“12-year-old female virgin’s pussy,” which led him to suspect the files might be child

pornography. After seeing the file names, Vandepanne informed his manager of what he saw.

Kent County Sheriff’s Deputy Gary Vickery arrived 15 minutes later and Vandepanne pointed

out the suspicious file names while the backup of defendant’s computer was still running.

According to both Vandepanne and Vickery, when the backup process ended Vickery

requested that Vandepanne open the suspicious files. To do so, Vandepanne had to remove the

hard drive from the backup machine and attach it to a computer that would permit opening and

browsing the suspect files. When he did this, the suspect files were opened and displayed

pictures of pornography involving minors. Vickery requested and Vandepanne gave him the

computer hard drive containing the suspected child pornography. Vickery also seized

defendant’s computer, power supply, and nine software discs. Vickery admitted that a search

warrant could have been, but was not, obtained before opening the suspicious computer files.

After Vickery’s testimony, defendant moved to suppress the evidence of the photographs

found on his computer. He argued that Vickery did not obtain a warrant and that no exception to

the warrant requirement applied to his case. The prosecution argued that the motion was

premature, and that defendant did not have an expectation of privacy in the files that were

opened because he turned the computer over to Best Buy for repairs. The district court agreed

with the latter argument, ruling that defendant had no valid expectation of privacy because he

voluntarily delivered his computer to a large corporation for repair with knowledge that

technicians might view its stored images while performing repair work.

In the circuit court, defendant moved to quash the information or in the alternative to

suppress the evidence and dismiss the charges. As noted already, the circuit court ruled that the

initial search of defendant’s computer by Vickery was unreasonable because a search warrant

was not obtained.

Moreover, while expressing concern that no evidence indicated whether defendant knew

of Best Buy’s privacy policy, the court ruled that the warrantless search and seizure by the police

violated defendant’s constitutional rights because no exception to the warrant requirement

applied. Consequently, the exclusionary rule required that the items seized and observations

made be excluded from evidence, along with the fruit of the illegal search. Because no other

evidence beyond that which was suppressed supported the charges against defendant, they were

also dismissed. The circuit court subsequently ruled that the prosecution’s motion for

reconsideration of the circuit court’s ruling. The prosecution has also submitted a copy of the

work order with its brief on appeal but a party may not expand the record on appeal, which

consists of “the original papers filed in that court or a certified copy, the transcript of any

testimony or other proceedings in the case appealed, and the exhibits introduced.” MCR

7.210(A)(1); People v Nix, 301 Mich App 195, 203; 836 NW2d 224 (2013); People v Eccles, 260

Mich App 379, 384 n 4; 677 NW2d 76 (2004). We therefore decline to consider the work order.

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reconsideration was not timely, and therefore denied it. The prosecution now appeals by leave

granted.

II. ANALYSIS

A. STANDARD OF REVIEW

We review de novo a trial court’s ultimate decision on a motion to suppress on the basis

of an alleged constitutional violation. People v Dagwan, 269 Mich App 338, 341; 711 NW2d

386 (2005) (citation omitted). The trial court’s findings of fact from a suppression hearing are

reviewed for clear error, according deference to the trial court’s determination. Id. at 342

(citation omitted); People v Roberts, 292 Mich App 492, 502; 808 NW2d 290 (2011). “A

finding of fact is clearly erroneous if, after a review of the entire record, an appellate court is left

with a definite and firm conviction that a mistake has been made.” People v Antwine, 293 Mich

App 192, 194; 809 NW2d 439 (2011) (quotation marks and citation omitted). Any ancillary

questions of law relevant to the motion to suppress are also reviewed de novo. Id.

B. ANALYSIS

A warrant is only required if the government conducts a search of an object or area that is

protected by the Fourth Amendment. See O’Connor v Ortega, 480 US 709, 715; 107 S Ct 1492;

94 L Ed 2d 714 (1987).2 The Fourth Amendment itself protects “[t]he right of the people to be

secure in their persons, homes, papers, and effects, against unreasonable searches and seizures . .

. .” US Const, Am IV. Under the plain terms of the Amendment, “[w]hen ‘the Government

obtains information by physically intruding’ on persons, houses, papers or effects, ‘a search

within the original meaning of the Fourth Amendment’ has ‘undoubtedly occurred.’ “ Florida v

Jardines, ___ US ___, ___; 133 S Ct 1409, 1414; 185 L Ed2d 495 (2014), quoting in part United

States v Jones, 565 US ___, ___ n 3; 132 S Ct 945, 950-951; 181 L Ed 2d 911 (2012) (some

internal quotation marks omitted). A “[t]resspass alone does not qualify, but there must be

conjoined with that . . . an attempt to find something or to obtain information.” Jones, 565 US at

__ n 5; 133 S Ct at 951.

In addition, the government needs a warrant (assuming no exception applies) before

searching something in which the person has a reasonable expectation of privacy. Soldal v Cook

County, 506 US 56, 63; 113 S Ct 538; 121 L Ed 2d 450 (1992). But, if the government

physically intrudes on a constitutionally protected area (a person’s home, papers, and effects) in

search of evidence without a warrant, then the Katz3 reasonable expectation inquiry is

unnecessary. Jardines, 565 US at ___; 133 S Ct at 1417, citing Jones, 565 US at ___; 132 S Ct

at 950-952; Carman v Carroll, 749 F3d 192, 197 (CA 3, 2014). That is because the Katz

reasonable-expectation test is in addition to the traditional property-based understanding of the

2

The Michigan Constitution’s prohibition against unreasonable searching and seizures is

construed as protecting the same interests as the Fourth Amendment. People v Lemons, 299

Mich App 541, 545; 830 NW2d 794 (2013).

3

Katz v United States, 389 US 347; 88 S Ct 507; 19 L Ed 2d 576 (1967).

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Fourth Amendment. Id. In other words, these are separate tests that can be applied depending

on the interest at issue, but a finding that one is met is sufficient to find a violation of the Fourth

Amendment.

As defendant argues, this matter is easily resolved.4 A search for purposes of the Fourth

Amendment occurred in this case because “the officers learned what they learned only by

physically intruding on [defendant’s] property [his computer] to gather evidence [which] is

enough to establish that a search occurred.” Jardines, 565 US at __; 133 S Ct at 1417. It can

hardly be doubted that a computer, which can contain vast amounts of personal information in

the form of digital data, is an “effect,” US Const, Am IV, and a “possession,” Const 1963, art 1,

§ 11, within the meaning of the constitutional proscription against unreasonable searches and

seizures. See People v Smith, 420 Mich 1, 20; 360 NW2d 841 (1984) (opining that as used in the

two constitutional provisions, “ ‘possessions’ and ‘effects’ are virtually identical in meaning”

and therefore there exists no reason to treat those provisions differently).

The record evidence also shows that only at the command of the police did the Best Buy

employee physically take the hard drive to defendant’s computer (thus, a trespass on defendant’s

“effects”) and attach it to a store computer in order to gather evidence of child pornography.

Since the officers did not have a search warrant to do so, and no exception to the warrant

requirement applies, the circuit court correctly held that a warrant was required before police

directed the Best Buy employee to attach the hard drive to another computer for purposes of

searching the hard drive for evidence. Having reached this conclusion, there is no need to

determine whether defendant also had a reasonable expectation of privacy in the information

contained in the computer. Jardines, 565 US at ___; 133 S Ct at 1417, citing Jones, 565 US at

___; 132 S Ct at 951-952.

Our conclusion that it was necessary for the police to obtain a search warrant before

exceeding the scope of the private search is further buttressed by the decision in Jones. In Jones,

government agents tracked the movements of a suspected drug trafficker by placing an electronic

Global-Positioning-System (GPS) device on the undercarriage of a vehicle registered to the

suspect’s wife while it was parked in a public parking lot. Jones, 565 US at ___; 132 S Ct at

948. Jones was later charged with, among other offenses, conspiracy to distribute and possess

with intent to distribute five kilograms or more of cocaine. Id. The district court denied Jones’s

motion to suppress the GPS evidence, finding that one “ ‘traveling in an automobile on public

thoroughfares has no reasonable expectation of privacy in his movements from one place to

another.’ “ Id. (citation omitted). The United States Court of Appeals for the District of

Columbia Circuit reversed Jones’s conviction “because of admission of the evidence obtained by

warrantless use of the GPS device . . . .” Id. at 949. The United States Supreme Court affirmed,

holding that attaching the GPS tracking device to an individual’s vehicle, and thereby monitoring

the vehicle’s movements on public streets, constituted a search or seizure within the meaning of

the Fourth Amendment. Id. at 948-949.

4

As Jardines says straight forward cases should be. See Jardines, 565 US at __; 133 S Ct at

1417 (“One virtue of the Fourth Amendment’s property-rights baseline is that it keeps easy cases

easy.”).

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Justice Scalia, writing for the Court, noted that it was “beyond dispute that a vehicle is an

‘effect’ as that term is used in the [Fourth] Amendment,” id. at 949 (citation omitted), and added

that “[b]y attaching the [GPS] device to the Jeep, officers encroached on a protected area,” id. at

952. “The Government physically occupied private property for the purpose of obtaining

information. We have no doubt that such a physical intrusion would have been considered a

‘search’ within the meaning of the Fourth Amendment when it was adopted.” Id. at 949 (citation

omitted). Consequently, because the government obtained information by physically intruding

on a constitutionally protected area, the Court concluded a search within the protection of the

Fourth Amendment had occurred. Id. at 950 n 3. Hence, when the government commits a

trespass on “houses,” “papers” or “effects” (or invades a Katz reasonable invasion of privacy) for

the purpose of obtaining information, such a trespass or invasion of privacy is a search within the

meaning of the Fourth Amendment. Id. at 951 n 5.

C. CONCLUSIONS

In sum, we hold that under the Fourth Amendment as reinforced by Jardines and Jones a

personal computer storing personal information in the form of digital data must be considered

defendant’s “effect” under the Fourth Amendment, and “possession” under the Michigan

Constitution, see Const 1963, art 1, § 11. To access the data and obtain information from

defendant’s computer, his “effect” or “possession,” the Best Buy employees as directed by the

police physically attached another device to its hard drive. Such action was a trespass—a search

under the Fourth Amendment and Const 1963, art 1, § 11—because the government physically

intruded defendant’s property to obtain information. Jones, 565 US at ___; 132 S Ct at 949-953;

see also Smith, 420 Mich at 7 n 2, 18-20. The police did not obtain a warrant to conduct the

search and the prosecution’s brief offers no exception to the warrant requirement to justify the

police’s action.

As the circuit court ruled, “[a] search and seizure without a warrant is unreasonable per se

and violates the Fourth and Fourteenth Amendments of the United States Constitution and Const

1963, art 1, § 11, unless shown to be within one of the exceptions to the rule.” People v Wagner,

114 Mich App 541, 546-547; 320 NW2d 251 (1982) (citation omitted); see also Riley v

California, ___ US ___; 134 S Ct 2473, 2482, 2493; 189 L Ed 2d 430 (2014) (“[T]he warrant

requirement is an important working part of our machinery of government, not merely an

inconvenience to be somehow ‘weighed’ against the claims of police efficiency”) (some internal

quotation marks and citation omitted), and Katz, 389 US at 357 (“Over and again this Court has

emphasized that the mandate of the (Fourth) Amendment requires adherence to judicial

processes, and 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.”) (Citations and quotation marks

omitted). Consequently, we conclude that the police search in this case without a warrant or

applicable exception to the warrant requirement, was per se unreasonable under the Fourth

Amendment and Const 1963, art 1, § 11.

Affirmed.

/s/ Jane E. Markey

/s/ Kurtis T. Wilder

/s/ Christopher M. Murray

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