October 19, 2016
from Georgetown County Edward B. Cottingham, Circuit Court
WRIT OF CERTIORARI TO THE COURT OF APPEALS
Chief Appellate Defender Wanda H. Carter, of Columbia, and
Appellate Defender Benjamin J. Tripp, of Beaufort, both for
Attorney General Alan M. Wilson and Assistant Attorney
General William M. Blitch, Jr., both of Columbia, for
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.
Factual and Procedural History
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. 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. 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.
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.
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.
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.
granted Petitioner's writ of certiorari to review the
Court of Appeals' decision.