Md. high court will weigh when consent to search can be withdrawn

Fourth Amendment case involves copied hard drive

Steve Lash//March 8, 2023

Md. high court will weigh when consent to search can be withdrawn

Fourth Amendment case involves copied hard drive

By Steve Lash

//March 8, 2023

The Maryland Supreme Court will consider whether a person’s consent to a warrantless search of his or her computer’s digital data can be withdrawn after a consented-to copy has been made by law enforcement.

The justices last week agreed to hear the state’s appeal of a lower court decision that 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 a week had passed and they had already copied the hard drive.

In its successful petition for Supreme Court review, the state said Daniel McDonnell’s belated withdrawal of consent was invalid because he had no “legitimate expectation of privacy” in the copy investigators had created.

“The state does not dispute that McDonnell could ‘reclaim’ his expectation of privacy in the data physically stored on his hard drive,” Assistant Maryland Attorney General Andrew H. Costinett wrote in the petition.  (But) can an individual who consents to having their records copied, then later demands their return, also obligate the government to return its copies?”

Costinett cited federal court decisions from Georgia and Florida that people have no expectation of privacy in consented-to copies of their digital data.

McDonnell’s attorney countered that his client’s expectation of privacy applies to his data regardless of whether it was in his computer or on a copy.

Thus by withdrawing his consent, McDonnell deprived law enforcement of access to the computerized and copied data without a warrant, J. Dennis Murphy Jr. wrote in McDonnell’s failed request that the high court decline the state’s appeal.

“(T)he whole point of (McDonnell’s) initial consent to search the computer, or any electronic copy, was to give consent to search the relevant data from the computer, and that the whole point of his withdrawal of consent was to withdraw the initial consent to search that data,” wrote Murphy, of the Law Offices of Murphy & Price LLP in Ocean City. “(B)y withdrawing his consent to search the data prior to the search, as is always the case with withdrawal of consent, (McDonnell) reclaimed his expectation of privacy in that data, the infringement upon which required a valid search warrant.”

The Supreme Court will hear arguments in June. The justices are expected to render their decision by Aug. 31 in the case, State of Maryland v. Daniel Ashley McDonnell, No. 36 September Term 2022.

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.

The Appellate Court overturned the conviction last December, saying 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 McDonnell’s hard drive after he had withdrawn consent violated his Fourth Amendment protection against unreasonable searches, the appellate court held in its reported 3-0 decision.

“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 a warrant,” Judge Melanie Shaw wrote for the appellate court.

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

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

The state then sought review by the Supreme Court.


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