Please ensure Javascript is enabled for purposes of website accessibility

Md. court reverses porn conviction, says consent to search was withdrawn

“As we see it, his withdrawal (of consent) was clear and unequivocal,” wrote Court of Special Appeals Judge Melanie Shaw. (The Daily Record/File Photo)

Law enforcement officers were constitutionally bound to honor a suspected child pornographer’s withdrawal of his consent to their pending warrantless search of his computer even though seven days had passed and they had already copied his hard drive, Maryland’s second-highest court ruled this month in overturning the man’s pornography conviction.

In its reported decision, the Court of Special Appeals said consent to a warrantless search of a computer’s digital data can be withdrawn at any time before the search is consummated.

Thus, the officers’ examination of their copy of Daniel McDonnell’s hard drive after he had withdrawn consent violated his constitutional Fourth Amendment protection against unreasonable searches, the appellate court held.

Prosecutors alleged that the belated search revealed child pornography.

In its 3-0 ruling, the Court of Special Appeals cited the U.S. Supreme Court’s 2014 Riley v. California decision that warrants are generally required to search cellphones because those ubiquitous “minicomputers” hold a wealth of their owners’ personal information unrelated to the suspected crime.

“Here, because individuals have a legitimate expectation of privacy in the digital data within their computer, we hold that (McDonnell’s) revocation of his consent to examine data from his laptop computer precluded a forensic examination of the mirror-image copy of its hard drive without his consent,” Judge Melanie Shaw wrote for the appellate court.

By withdrawing his consent, McDonnell “reclaimed a reasonable expectation of privacy in the data,” Shaw added.

The court rejected the Maryland Attorney General’s Office’s argument that McDonnell’s expectation of privacy in his computer did not extend to the officers’ consented-to copy of the hard drive, a facsimile that they said belonged to and was freely searchable by them.

“As we see it, his withdrawal (of consent) was clear and unequivocal,” Shaw wrote.

By withdrawing his consent, McDonnell “reclaimed a reasonable expectation of privacy in the data,” Shaw added.

The  Attorney General’s Office declined to comment on the decision and any plans to seek review by the Court of Appeals.

McDonnell’s appellate attorney, J. Dennis Murphy Jr., did not immediately return a telephone message Wednesday seeking comment on the Court of Special Appeals decision. Murphy is with the Law Offices of Murphy & Price LLP in Ocean City.

According to court papers, U.S. Army Criminal Investigation Division Command investigators went to McDonnell’s home on July 12, 2019, where he signed a form consenting to their search of his laptop computer. Investigators created a copy of his hard drive before leaving.

Seven days later, McDonnell’s attorney sent the investigators an email telling them his client had withdrawn his consent to their search.

But investigators subsequently examined the copy of the hard drive.

McDonnell was charged with 20 counts of promotion or distribution of child pornography and 20 counts of possessing child pornography.

He moved to suppress the evidence from his computer, saying it was searched without his consent.

After an Anne Arundel County Circuit Court judge denied his motion, McDonnell pleaded not guilty on Sept. 24, 2021, agreed to a statement of facts and preserved his right to appeal the denial. McDonnell was found guilty of three counts of distributing child pornography and was sentenced to 30 years in prison, all suspended, and five years’ supervised probation.

He then appealed successfully to the Court of Special Appeals.

Shaw was joined in the opinion by Chief Judge Gregory Wells and retired Judge James A. Kenney III, who was sitting by special assignment.

The Court of Special Appeals issued its decision in Daniel Ashley McDonnell v. State of Maryland, No. 1246, September Term 2021.