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State v. Cardwell

Supreme Court of South Carolina

January 23, 2019

The State, Respondent,
v.
Sarah Denise Cardwell, Petitioner. Appellate Case No. 2015-002507

          Heard October 19, 2016

          Appeal from Georgetown County Edward B. Cottingham, Circuit Court Judge

         ON WRIT OF CERTIORARI TO THE COURT OF APPEALS

          Deputy Chief Appellate Defender Wanda H. Carter, of Columbia, and Appellate Defender Benjamin J. Tripp, of Beaufort, both for Petitioner.

          Attorney General Alan M. Wilson and Assistant Attorney General William M. Blitch, Jr., both of Columbia, for Respondent.

          BEATTY CHIEF JUSTICE.

         Sarah Cardwell ("Petitioner") appealed her convictions of two counts of unlawful conduct towards a child and two counts of first-degree sexual exploitation of a minor, asserting the trial court erred in denying her motion to suppress a video file taken from her laptop computer. The Court of Appeals affirmed the trial court's denial of Petitioner's motion to suppress. State v. Cardwell, 414 S.C. 416, 778 S.E.2d 483 (Ct. App. 2015). We affirm as modified.

         I. Factual and Procedural History

         Computer technician David Marsh was repairing Petitioner's laptop when Chief Ron Douglas of the Johnsonville Police Department stopped by Marsh's home to deliver packages.[1] While Marsh was taking the packages to his garage, Chief Douglas saw an image go across the computer screen of a naked, male child wearing a pink bra. Chief Douglas called Marsh back into the room, saying "I just saw something go across the screen, can you back it up." Marsh backed up a few files until the image, which was a still shot from a video, reappeared on the screen. At Chief Douglas's request, Marsh clicked play, and the two men watched a minute of the video showing Petitioner's daughter, son, and then-boyfriend, Michael Cardwell, dancing naked.[2] Petitioner cannot be seen in the video; however, Marsh was able to identify Petitioner as the individual behind the camera directing the children's movements based on her voice.

         Upon Chief Douglas's instruction, Marsh copied the video to a disc. Due to jurisdictional concerns, Chief Douglas did not take either the disc or the laptop. Rather, he instructed Marsh to secure the items until he contacted the Georgetown County Sheriff's Office ("GCSO") to see if they would take over the investigation. After watching a portion of the video, Investigator Phillip Hanna with the GCSO took possession of the disc and laptop and obtained a search warrant for these items.

         A grand jury subsequently indicted Petitioner on two counts of unlawful conduct towards a child and two counts of first-degree sexual exploitation of a minor. Before trial, Petitioner moved to suppress the video file, arguing she had a reasonable expectation of privacy in the contents of her computer, including the video file at issue. The trial court denied the motion, finding Petitioner 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. As a result, the trial court admitted both the video and still images from the video into evidence. After a jury found Petitioner guilty on all counts, the trial court sentenced Petitioner to concurrent two-year sentences on the unlawful conduct charges and concurrent three-year sentences for the two counts of first-degree sexual exploitation of a minor. The trial court ordered the three-year sentences to run consecutive to the two-year sentences.

         The Court of Appeals affirmed Petitioner's convictions after determining the trial court properly denied her motion to suppress the video evidence. State v. Cardwell, 414 S.C. 416, 778 S.E.2d 483 (Ct. App. 2015). In arriving at its decision, the court disagreed with the trial court's conclusion that Petitioner relinquished her reasonable expectation of privacy in the contents of the computer files by giving her laptop to Marsh for repair. Id. at 429, 778 S.E.2d at 490. The court reasoned "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 426, 778 S.E.2d at 488. Nevertheless, the court held Petitioner did not have a reasonable expectation of privacy in the particular video file at issue because the still image from the video file of the male child wearing a pink bra "was in Chief Douglas's plain view and gave the appearance that the video file's content included a minor engaging in inappropriate sexual behavior." Id. at 433-34, 778 S.E.2d at 492. Therefore, "[o]nce the sexually suggestive still image of the child in a bra appeared, no warrant was required to open and view this video file containing that very image." Id. at 429, 778 S.E.2d at 490. As an additional sustaining ground, the court determined the evidence would have been admissible under the inevitable discovery doctrine because "[h]aving seen the still image . . ., both Chief Douglas and Investigator Hanna clearly had probable cause to obtain a search warrant to open the video file." Id. at 433, 778 S.E.2d at 492.

         We granted Petitioner's writ of certiorari to review the Court of Appeals' decision.

         II. ...


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