Divided Georgia Supreme Court Finds that Defendant Consented to Search of his Computer

In Winslow v. State, the Georgia Supreme Court held 5-4 that the defendant initially consented to a search of his laptop and that his consent was still valid when the police eventually conducted a forensic examination of the device 14 months later. Four of the justices dissented, disagreeing as to whether his initial consent was sufficient enough to extend to the extensive search that was conducted by a different police agency over a year later.

Background

Officers with the City of Forsyth Police Department responded to a call from a Walmart where it was alleged by an employee that a man was printing photographs from the self-serve kiosk that appeared to be child pornography. The police spoke with the defendant and questioned him about the photos.

The officers asked the defendant whether he had any inappropriate pictures of children and he said that he did not. The officers then asked whether they could open his bag to check and he said “yes.”

The officers discovered a laptop inside the bag and tried to turn it on but it wouldn’t start. They then found several flash drives. The defendant said that the flash drives were blank and that they could check them. On one of the flash drives, the officers saw several pictures of naked children. The officers then placed the defendant under arrest for sexual exploitation of children.

The officers later obtained a search warrant to examine the computer and flash drives. They were forensically examined by the GBI approximately 14 months following the defendant’s arrest. The examination resulted in the discovery of two videos constituting child pornography on the defendant’s laptop.

Prior to trial, the defendant filed a motion to suppress, arguing that the search of his laptop was illegal. He contended that the search warrant was invalid and that he never consented to the full forensic examination of this device by the GBI.

The motion to suppress was denied by the trial court despite the fact that there were several defects with the search warrant. The court held that even if the search warrant was defective, the defendant consented to a search of the laptop and never withdrew that consent at any time prior to the GBI’s examination.

Supreme Court’s Analysis of Consent Issue

The Court noted at the outset that even if the search warrant was defective, the search was still lawful if it was consented to by the defendant. Therefore, the Court focused on whether the defendant consented to the GBI’s forensic examination of the laptop.

First, the Court found that the defendant consented to a search of his bag including all of its contents. The court held that this included searching the laptop. When the officer tried to search the laptop in his presence, the defendant never objected nor told the officers that they could not search the laptop. The Court noted that the defendant then gave the officers permission to search the flash drives, which were in the same bag as the laptop.

Because the defendant never attempted to withdraw or revoke his consent to search these devices over the course of the 14 months following his arrest, the Court held that the officers could reasonably interpret the defendant’s conduct as an indication of his consent to search.

What About the 14-month Delay?

The Supreme Court next addressed whether the scope of the defendant’s consent was clear enough to extend beyond the initial encounter with the officers and include the forensic examination by the GBI 14 months later. The question comes down to how a reasonable person would view the scope and duration of the consent based on the initial exchange between the officers and the defendant.

The justices in the majority conceded that this was a “close call” but that they were required to defer to the trial court’s finding if there was any evidence to support it. The Court then pointed to the following evidence as support for the trial court’s ruling:

• The defendant was aware that the officers were searching for images of children;
• He consented to a search of his bag which contained the laptop and flash drives;
• He witnessed the officer attempt to turn on the laptop and search it;
• He then consented to a search of the flash drives;
• He never complained or objected to the searches; and
• He never attempted to withdraw his consent at any time.

The Court concluded that these facts satisfied the “any evidence standard” with respect to the trial court’s ruling. Additionally, the Court stated that it didn’t matter whether it was a day, a week, a month, or a year until the GBI conducted its search because a reasonable person would have expected the police to continue searching for images and that it might include a forensic examination of the devices sometime in the future.

Therefore, the Court affirmed the trial court’s ruling on the motion to suppress and affirmed the defendant’s conviction

The Dissenting Opinion

The dissent was highly skeptical that the defendant’s brief interaction with the officer at Walmart was sufficient to show that he consented to the GBI forensically examining his laptop 14 months later. The justices noted that the officer testified that he merely asked the defendant “can I check” his laptop and flash drives to see if he had any images of children and the defendant “was like, sure.” He testified that the defendant stated, “you can look.”

Based on this exchange, the dissent held that this consent seemed limited to the officer’s search there at the Walmart and “wholly inadequate” to be extended to a forensic search “by a different person, at a different time and place, using different means.”