Commonwealth v. Eutsler
Commonwealth v. Eutsler
101 Va. Cir. 564 (Va. Cir. 2018)
December 31, 2018
Mobile Device
Privacy
Criminal
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Summary
The court found that the defendant had a reasonable expectation of privacy in the ESI on a hard drive that was seized by the authorities. The court noted that the third party who delivered the device to the authorities had no authority to consent to a search of the hard drive, and that the defendant may have a reasonable expectation of privacy in such information, even if it is entrusted to another. The court also discussed the importance of ESI and the proper inquiry into whether the defendant has a reasonable expectation of privacy.
Note: This is an unpublished decision. Check your jurisdiction’s rules about citing unpublished decisions before citing this case to a court.
Re: COMMONWEALTH of Virginia
v.
Damian Ryan EUTSLER
Case No. CR17000248-00 (00-99)
Circuit Court of Virginia
December 31, 2018

Counsel

The Honorable Timothy A. Martin, Commonwealth Attorney, 6 East Johnson Street, Staunton, Virginia 24401
Alexandra Meador, Deputy Assistant Commonwealth's Attorney, Office of the Commonwealth's Attorney., 6 E. Johnson St., Staunton, Virginia 24401
Thomas Weidner IV, Esquire, P. O. Box 999, Fishersville, Virginia 22939

Opinion

*1 Dear Ms. Meador, Mr. Martin, and Mr. Weidner,
This letter concerns a Motion to Suppress (the Motion) filed by Damian Ryan Eutsler (Eutsler), on September 9, 2018.[1] At the commencement of a hearing on October 30, 2018, the Commonwealth raised the issue of whether Eutsler had a reasonable expectation of privacy in the portable hard drive from which the contested evidence was derived (the Hard Drive or the Device), and, although Mr. Weidner, counsel for Eutsler objected, the Commonwealth insisted that the issue might be dispositive of the Motion. On that representation, without resolving the larger issue of admissibility of the contested evidence, the Court concluded that it was appropriate to address the predicate issue of Eutsler's expectation of privacy in the Device.[2]
At the conclusion of the hearing, the Court directed the parties to brief the issue; Eutsler filed his brief on November 20, and the Commonwealth responded on November 27. Based on the Court's findings of fact, on its consideration of the parties' legal arguments, and for the reasons recited below, I conclude that Eutsler had a reasonable expectation of privacy to permit him to challenge the search of the Hard Drive.
Particularly because this case will continue after my imminent retirement (but a few days from now), some review of the Court's instructions to the parties is in order. At the hearing, I stated that “I don't see any reason to go forward with a full-blown motion to suppress until we get over the predicate issue of reasonable expectation.” In response to a question by Mr. Weidner as to whether Eutsler would then be able to “proffer the evidence that we have on the balance of the motion to suppress,” I clarified (in my most dignified and formal mode of address): “If the decision is he's got standing, you betcha... we just need to get through the predicate issue first.” I add this observation simply to ensure that the parties (and my successor on the Bench who will preside over this case) do not misapprehend the impact of this opinion letter–it does not end the inquiry into the merits of the Motion; rather, it only ensures that Eutsler may now proceed with it.
I. Facts and Analysis:
*2 After Eutsler had been released on bond on the charges which give rise to this proceeding, he was barred from the premises of his employer, Dixie Oil and Gas (Dixie). Eutsler testified that his arrest and removal from the premises at Dixie gave him no opportunity to secure his personal property, including even his wallet which he left in a company truck. Although the specifics of the contact are not without ambiguity (about which more later), Eutsler communicated with Roger Bowling, Jr. (Bowling), a friend and co-worker, about his inaccessible property. The witnesses' descriptions of the method and content of the communications between Eutsler and Bowling regarding the latter's retrieving Eutsler's personal property are in dispute (or at least are not entirely consistent).
Bowling testified that he learned that Eutsler had been arrested and that he went to talk to Eutsler about the situation at the latter's home; it was then that he first learned that Eutsler had been arrested “because of a phone or something.”[3] Bowling testified that, at some time after he had visited Eutsler, he called Eutsler from his (Bowling's) father's house, and Eutsler asked him to retrieve “just one item, not items,” “a little drive thing.” Eutsler told him to “take it and get rid of it.” Bowling said that Eutsler informed him that the item would be “underneath some light ballasts,” and, in fact, he located the item (which is the Hard Drive) in the parts room at Dixie, under some light ballasts. He confirmed that all the employees have access to the room. As a result of that and subsequent communications,[4] Bowling retrieved items of Eutsler's personal property from his workplace, some of which he returned to Eutsler.[5]
Having secured the Hard Drive, Bowling took it to an office in the garage at the work place and “put it in a drawer.” Clearly, Bowling had inspected the item closely enough to recognize that it could be connected to a computer only with a cable with a specific connector (not a standard USB connector), because he acknowledged that he went to Walmart to purchase the connecting hardware. His purpose in seeking access to the Hard Drive was, to say the least, remarkable. Responding to the question why he did not dispose of the Hard Drive (as, he testified, Eutsler had asked him to do), Bowling said that he knew that Megan Brown, Eutsler's girlfriend, had co-signed a note with Eutsler to purchase a boat which was then in a storage unit. She asked Bowling if he knew the code to unlock the unit so that she “could get the boat... before everything was gone.”
Searching for the elusive code to gain access to the storage unit, Bowling, with the cable which he purposefully purchased from Walmart, connected the Hard Drive to his work computer, opened it, viewed some of the icons on the desktop, and discovered material which sufficiently troubled him that he delivered the Hard Drive to Chris Arehart (Arehart), the president of Dixie who then, presumably, notified the authorities.
*3 Eutsler's testimony concerning his request that Bowling assist him in securing his personal belongings from Dixie differs in significant details from that of Bowling's. Eutsler testified that, after he received the no-trespass notice from Dixie on December 19, he and his mother texted Bowling to ask about his retrieving items of personal property from the workplace.[6] Bowling then called him on a landline from his parents' house as many as six to ten times.
Eutsler was either equivocal or confused about the specificity of his request to Bowling. Asked the question, “And at some point you asked him to return a personal hard drive that you owned,” Eutsler responded, “Amongst other things, yes.” That supports an inference that Eutsler specifically inquired about the Hard Drive. Moments later, however, in response to the question “Did you ... say anything about the hard drive in particular,” Eutsler said, “No, I mean it was amongst the rest of my property. I just asked for my property to be returned.” Later still, he testified that he gave Bowling a “general list of what [he] thought might be there ... not knowing what the police had taken or not taken,” and he acknowledged that the Hard Drive “may have been” among the things that he mentioned.
Eutsler denied that he asked Bowling to “get rid of the hard drive” or to “hide the hard drive” or that he ever told Bowling that he was “done with the hard drive and didn't want it returned.”
Eutsler testified that, although he could not recall specifically the last place he had put the Hard Drive, the only places that he would have had personal property at the workplace (other than a horse harness) were his office and his truck (but certainly not in the storage room).
Eutsler's and Bowling's account had two notable points of disagreement. Critically, they differed on whether Eutsler asked Bowling to “return” the Hard Drive to him, along with several other items, or to “take it and get rid of it.” Additionally, Bowling testified that he obtained the Hard Drive from a common storage room, where it was hidden under some ballasts. Eutsler-who possessed several electronic devices-testified that he was unsure where this Hard Drive was last located, but that he was reasonably confident that it was either in his office or his car.
After observing, re-reading, and reflecting upon Bowling's testimony (not to mention the Court's observations of him as he was on the stand), the Court finds him to be incredible in large part and specifically rejects his assertion that Eutsler asked him to dispose of the Hard Drive.
According to Bowling, having located the Hard Drive and, despite his friend's request that he dispose of it, Bowling did not do so; rather, he took possession of it and stored it in a drawer in a common area at Dixie for further use at a later time. Why? Because Eutsler's girlfriend asked him for a security code to a storage unit. If Bowling is to be believed, one must accept his assertion that he did not even know if such a code was on the Hard Drive, but, presumably on the off chance that it might be there and that he would be able to recognize it if it were, he went to some effort to access the Device to pursue an unsubstantiated hunch. Having recognized that the Hard Drive “took a V cord, which [he] didn't have... [he went] down there and got one at Walmart in Staunton, brought it back, plugged it up,” and then viewed the icons on the desktop. In Bowling's words:
*4 Uhh, the girl that he was dating had co-signed to get a boat that they had and it was in a storage unit and wanted to know if I knew the numbers to get into the lot where the boat was or if I could get into the storage unit he had, I don't even know where it was at or, well, I mean, I'd been in it, but I still couldn't tell you which one. Don't recall. But she wanted the numbers so she could get the boat so she could have it before everything was gone and that's the only reason I got on—I really just trying to find some numbers.
In addition to being bizarre on its face, this yam is unbelievable in light of the other facts that have been made available to the Court. Eutsler and Bowling were friends. Bowling visited Eutsler at his home, then called Eutsler to offer to help him. According to both parties, Eutsler trusted Bowling to gather his property from their workplace. When Bowling did so, Eutsler was not in jail or otherwise unreachable; he was at home—a fact which Bowling clearly knew, having only recently spoken to Eutsler face-to-face. If Bowling was truly assisting an innocent effort by Megan Brown to secure Eutsler's boat, he could have simply asked Eutsler for the “gate lock” password, or better yet, he could have suggested that Brown do so herself.[7] Instead, Bowling would have the Court believe that he purchased new hardware from Walmart in order to fish aimlessly though Eutsler's Hard Drive for information he did not know was there, for a mutual friend, in defiance of the specific request that Eutsler made to him.
Adding to the Court's skepticism about Bowling's credibility, Bowling appeared almost to be portraying a character, affecting a lack of familiarity with computers and sometimes a non-comprehension of simple questions by counsel. Upon being asked by defense counsel “Did you know how to use a computer?,” Bowling answered “Not - no.” When asked by the Court “So you know enough about computers to know about V cords?,” Bowling twice reiterated that “I'm not a computer guy by no means.” Nevertheless, Bowling clearly possessed, at least, the rudimentary knowledge required to plug in and search through a computer. This makes it odd that he would flatly dispute that he knows “how to use a computer” unless he was attempting willfully to downplay his own knowledge. In addition:
1. The Commonwealth asked Bowling if-after plugging the hard drive into his own computer-he “opened it up,” referring to the Hard Drive. After Bowling momentarily sat in silence, the Commonwealth asked “Do you understand what I'm asking?,” to which Bowling replied “No, sir, I don't.” The Commonwealth then rephrased the question: “Okay, did you look into the contents of the hard drive?”. Bowling responded “Yes, sir.”
2. Although, if one believes his testimony, he initially purported not to understand the term “hard drive,” he knew what one was; otherwise, he would not have recognized it when he found it in the parts room. In fact, he used the term with comfort later in his testimony.
3. He knew enough about computers to recognize that the Device he found had a “weird looking end on the end of the hard drive,” from which one would infer that (a) he knew what a hard drive is, (b) what a standard USB port looks like, and (c) that this one was not one.
4. Perhaps he is just a fast learner, but later in his testimony, after being mystified by the question about “opening it up,” Bowling knew enough to understand the term “opened it [the Hard Drive] up.”
*5 5. He was familiar with the term “icon,” and he recognized that “there was all kinds of them” on the desktop of the Hard Drive.
6. He knew the difference between a laptop and a desktop computer.
7. He understood the concept of opening an icon because, when he saw a “little blond-haired girl in a red dress,” he went “two or three more sections of that and then shut everything down” when he arrived at the photograph of the same little girl without the red dress.
8. He stated that he could not recall if he had “clicked on any jpeg files,” so apparently knew what a jpeg file is and what it means to “click on” one.
9. He knew what it means for a computer to be password protected, and he knew that some sectors of a computer can be password protected while others are unprotected.
Bowling may not be a “computer guy,” but he is no computer illiterate, and his effort to portray himself as one gives rise to suspicions as to his credibility.
When defense counsel called Bowling as a rebuttal witness, Mr. Weidner attempted to ask Bowling about whether he returned Eutsler's items to Eutsler and his mother. Bowling again repeatedly affected not to understand basic questions involving simple, everyday language.
The Court is, of course, perfectly willing to credit the testimony of witnesses who may have a limited vocabulary or may simply be nervous on the stand. However, the Court accepts neither explanation in defense of Bowling's testimony; the Court simply does not believe that Bowling-who accessed Eutsler's Hard Drive, overcoming some difficulties, as part of a plan surreptitiously to acquire a code by which to access Eutsler's locked boat-did not understand simple questions that were put to him. Bowling's testimony is the only evidence that Eutsler sought to have the hard drive thrown away, and the Court rejects that evidence.
II. Law and Analysis:
The issues in this case are (a) whether Eutsler abandoned the Hard Drive and thereby lost his expectation of privacy in it[8] and (b) whether Bowling had authority (of any flavor) to consent to the search of it.[9]
A. Reasonable expectation of privacy:
Initially, I note that Eutsler has the burden of proving that he has a reasonable expectation of privacy in the Hard Drive. “The proponent of a motion to suppress has the burden of establishing that his own Fourth Amendment rights were violated by the challenged search or seizure.” Rakas, 439 U.S. at 131 f.1 (citing Simmons v. United States, 390 U.S. 377, 389-390 [1968]; Jones v. United States, 362 U.S. 257, 261 [1960]). “[I]n order to claim the protection of the Fourth Amendment, a defendant must demonstrate that he personally has an expectation of privacy in the place searched, and that his expectation is reasonable; i.e., one that has ‘a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.’ [Rakas] at 143-144, and n. 12. See also Smith v. Maryland, 442 U.S. 735, 740-741, 61 L. Ed. 2d 220, 99 S. Ct. 2577 (1979).” Minnesota v. Carter, 525 U.S. 83, 88 (1998). It is a two-pronged test the first of which is subjective, the second, objective.
*6 Certainly, had the Hard Drive been discovered in the parts room (where Bowling places it), either by the authorities or by Bowling (without his having been asked by Eutsler to secure it), the conclusion would be that Eutsler had abandoned it. Less certain would have been the effect had the Device been discovered in Eutsler's office or truck (where Eutsler places it). As to the office, the issue is relatively clear (well, as clear as these issues get); see, e.g., Mancusi v. DeForte, 392 U.S. 364 (1968) (a union employee who shared an office with other union employees had a privacy interest in the office sufficient successfully to challenge the warrantless search of that office). As to the truck, the analysis is far more complex, and the Court will not undertake to go down that rabbit hole by citing and attempting to analyze the relevant cases. Happily for me, the issue of where Eutsler left the Hard Drive is not dispositive so the Court need not address either of the latter two possibilities.
Because the Commonwealth has the burden of proof on the question of abandonment, see, e.g., Watts v. Commonwealth, 57 Va. App. 217, 226 (2010), the Court must assess its evidence on that issue. That consists solely of Bowling's statements to the effect that Eutsler asked him to “get rid” of the Device. However, as I have noted, I find Bowling generally incredible, and I reject that assertion, so I am left with the uncontested fact that Eutsler asked Bowling to find the Hard Drive and deliver it to him (either specifically identifying it or including it generally in a broader category). The legal issue then becomes whether Eutsler lost his expectation of privacy in the Hard Drive by having entrusted it to Bowling.
Even assuming that Eutsler left the Hard Drive in the common storage room and further assuming that that constituted an abandonment (with the result that Eutsler's reasonable expectation of privacy evaporated), Bowling's reacquiring it, as Eutsler's agent and at his request, would have re-established Eutsler's expectation. If one leaves a suitcase in a public park overnight, but, the next day, one safely retrieves it, there is no question that the person (despite his having abandoned the suitcase overnight) reacquires dominion over it when he retrieves it and re-establishes his reasonable expectation of privacy in it. If authorities seized the suitcase from the public place (when it as left there unattended), there is no doubt that they could search it. But the temporary abandonment (no matter how complete) cannot result in an irrevocable and irreversible loss of a reasonable expectation of privacy. If the owner of the suitcase returns to the park and retrieves the suitcase only moments before the authorities arrive to seize it, the Commonwealth could not prevail on an argument that the person had previously abandoned the suitcase. Moreover, if the person sent a friend to retrieve the suitcase, the owner of the suitcase would clearly stand in a derivative posture to object to its search by the authorities. There is no logical reason why these two scenarios should yield different results-in either event, the authorities did not recover the suitcase abandoned in the park.
Instructive, but hardly dispositive, on the impact of entrustment on one's expectation of privacy is Kersey v. Commonwealth, 2017 Va. App. LEXIS 220.[10] After having been informed that she was to be taken into custody on an outstanding capias, Kersey entrusted a curiously folded (to the eyes of the police officer, a suspiciously folded) dollar bill to a third party, Tyson, who almost immediately (and voluntarily) gave the bill to the police officer.[11] The officer opened the folded bill (i.e. searched it) and found illegal drugs. Among other arguments to protect the trial court's decision to deny Kersey's motion to suppress, the Commonwealth maintained, on appeal, that the officer had “probable cause to arrest them [Kersey and Tyson] and to search the bill incident to arrest.” Id. at *6. The specific holding of the Court of Appeals was that:
*7 ... the seizure of the bill was proper based on the companion's consent. We further hold that the unusual way the bill was folded, combined with additional suspicious circumstances, provided probable cause to arrest the appellant and her companion for possession of contraband. The search of the dollar bill was reasonable as one incident to arrest for that offense.
Id. at *1. After the Court determined that the search of the folded bill was a search incident to arrest, it properly observed that “the permissible scope also includes containers found on the arrestee's person or within his or her immediate control as long as the search occurs sufficiently contemporaneously.” Id at *21 (citations omitted). With that holding, the search of the bill was lawful, and it was unnecessary for the Court to go further. Hence, I acknowledge that all of the Court's other comments (about Kersey's reasonable expectation of privacy and the Court's helpful observations on the interposition of agency into that analysis) are enlightening, but I recognize that it is all dictum because it is unnecessary to the resolution of the case.
Kersey argued that “absent either probable cause and exigent circumstances or a search warrant, the officer lacked legal authority to search an item that she chose to entrust to a third party at the time of her arrest,” id. at *4, and that she had a reasonable expectation of privacy in the bill, which she did not forfeit by entrusting it to her friend,” id. at *5. The Commonwealth argued that Kelsey “ ‘divested [herself] of her interest’ in the dollar bill when she gave it to her friend,” id. at *4, and that she “relinquished her expectation of privacy in the bill by passing it to her friend,” id. at *6.
In the case at bar, Eutsler's request that Bowling assist him in securing an item of personal property meets the subjective component of establishing an expectation of privacy. He knew the property was at his place of work; he knew that he was barred from going there to retrieve it; and he knew that his property (including the Hard Drive) was exposed and unprotected from others. His request to Bowling to locate and take custody of the Device was conduct that demonstrated “ ‘an actual (subjective) expectation of privacy,’ [Katz v. United States] 389 U.S. [347] at 361-[and which], in the words of the Katz majority, [showed] that ‘he [sought] to preserve [something] as private.’ ” Id. at 351.” Smith v. Md., 442 U.S. 735, 740 (1979).
The next issue is the second prong of establishing a reasonable expectation of privacy (that “his expectation is reasonable; i.e., one that has ‘a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.’ ” Minnesota v. Carter, 525 U.S. at 88 [1998] [citations omitted] ). We begin with the proposition that Eutsler did not necessarily forfeit his reasonable expectation in the Device by entrusting it to Bowling. “See generally 4 Wayne R. LaFave, Search and Seizure § 8.6(a) (5th ed. 2012) (recognizing that the character of a container and whether it is locked or secured in some other fashion can be relevant to whether a bailee may consent to its search).” Kersey, at *12.[12]
*8 Eutsler carried the burden of proving that he had a possessory (ownership) interest in the Hard Drive. In addition, this was no suitcase which one could simply open and view the contents. Third parties could not access the Device except with a cable (which, itself, is not the most common cable and was not present with the Device). Moreover, access to the contents of the Hard Drive required yet another electronic device on which to display the data. Couple those facts with Eutsler's effort to reacquire dominion over the Device, through a trusted agent, before others had access to it, and the conclusion is that he met the requirements of the objective test (subject to the Court of Appeal's concurrence on that legal determination).
The Commonwealth, in its Motion, urges that “[i]t is not objectively reasonable that one would expect to retain privacy interest in a [hard drive] ...without any password protection.” Commonwealth's Response at 9. That position is difficult to reconcile with the decision in Riley v. California, 132 S.Ct. 2473 (2014). In companion cases (the second defendant was Wurie), the Court confronted a search of a cell phone seized as part of an arrest. Recognizing that one of the justifications of the search incident exception (arguably the broadest exception to the requirement for a warrant) was an arrestee's reduced expectation of privacy, the Court held that, although it might justify the seizure, the justification did not apply to the search of a cell phone and required a warrant. Cell phones, unlike suitcases or files, have an immense storage capacity, so great that the expectation of privacy is far greater because the information available to be searched is so much greater.
The storage capacity of cell phones has several interrelated consequences for privacy. First, a cell phone collects in one place many distinct types of information—an address, a note, a prescription, a bank statement, a video—that reveal much more in combination than any isolated record. Second, a cell phone's capacity allows even just one type of information to convey far more than previously possible. The sum of an individual's private life can be reconstructed through a thousand photographs labeled with dates, locations, and descriptions; the same cannot be said of a photograph or two of loved ones tucked into a wallet. Third, the data on a phone can date back to the purchase of the phone, or even earlier. A person might carry in his pocket a slip of paper reminding him to call Mr. Jones; he would not carry a record of all his communications with Mr. Jones for the past several months, as would routinely be kept on a phone.
Id. at 2489. The consequence is that, unlike a search of the person, pockets, files, papers, etc., “the possible intrusion on privacy is not physically limited in the same way when it comes to cell phones.” Id. What is true of cell phones is equally true of hard drives, including the Hard Drive. As to the assertion that the expectation of privacy is diluted by Eutsler's failure to use a password, I note that nothing in the decision indicates that Riley's smartphone or Wurie's “flip-phone” were password-protected.
As is the case with abandonment, the mere transfer of dominion over an item to another does not end the inquiry; rather it is a step in the determination of whether one maintains a reasonable expectation of privacy in the entrusted item. In this case, the Court finds that Eutsler did not automatically forego his reasonable expectation of privacy in the Hard Drive simply because he entrusted it to Bowling.
B. Consent to the search:
Nearly half a century ago, in Schneckloth v. Bustamonte, 412 U.S. 218 (1973), the Supreme Court held that it is the government's burden to prove consent if that is its justification for a warrantless search, and so it was the Commonwealth's obligation to prove valid consent from someone in this case. However, there was no evidence offered by the Commonwealth that Eutsler consented to the search of the Hard Drive, and there was no evidence that Bowling, who acquired the Device as Eutsler's agent, consented to the search.
*9 Even if there had been such evidence, there was no evidence that Bowling had any express authority to consent. As to apparent authority, although Bowling violated Eutsler's trust by opening the Hard Drive, there was no evidence that Eutsler authorized him to examine or otherwise access the Hard Drive; on the contrary, both Bowling and Eutsler testified that Eutsler asked him only to secure the Device. Eutsler testified that he asked that Bowling return it to him, and the Court rejects Bowling's testimony that Eutsler asked for anything else.
There was no evidence of what happened to the Hard Drive after Bowling delivered it to Arehart or who could or did consent to a search or what form any consent to a search could have taken. I have observed, a couple of times, that, presumably, Arehart delivered the Device to the deputies, but that is only surmise, and there was no evidence as to what conditions or circumstances led to that delivery or what representations were made by whom or to whom regarding the Hard Drive or its pedigree. Specifically how the Hard Drive came to the custody of the Commonwealth is not clear, but there is no basis on which the Court could find that any authorized person or entity consented to the search of it.
One thing is clear; Eutsler's entrusting the Hard Drive to Bowling did not, of itself, confer authority on Bowling to consent to the search of it. Although the Court in Kersey did not reach the question of the consent of a disloyal friend to a search, it did raise it. And in United States v. Presler, 610 F.2d 1206, 1213-1214,[13] the Court found that Presler had a legitimate expectation of privacy in locked briefcases which he entrusted to Houghton, who proved to be a disloyal third party. The Court found that, although, Houghton of could surrender the suitcases to the authorities, his consent to a search the suitcases was invalid.
There can be no question that in this case the defendant clearly manifested that expectation of privacy in the two locked briefcases which entitled him to the protection guaranteed by the Fourth Amendment and that Houghton claimed no right of access to the locked briefcases. Cf. United States v. Chadwick, 433 U.S. 1 at 11, 97 S. Ct. 2476, 53 L. Ed. 2d 538. The very act of locking them and retaining either the key or the combination to the locks on the two briefcases was an effective expression of the defendant's expectation of privacy.
Id. at 1213-1214. If the Commonwealth were correct in asserting that trusting a “false friend” terminates the owner's reasonable expectation of privacy in a container, then the Presler Court would have resolved the Fourth Amendment question against Presler immediately upon finding that the seizure was valid. Instead, Presler prevailed. In the case before this Court, Eutsler, like Presler, clearly manifested an expectation of privacy, and, Bowling did not credibly assert any ownership interest in the Device or claim a right to it. He did briefly look at the Hard Drive, but he did that without Eutsler's knowledge, an act which could have had no impact on Eutsler's expectation of privacy.
On the issue of consent to the search, I find that the Commonwealth did not carry its burden of proof, and I find that Bowling had no authority (express, implied or apparent) authority to consent to a search of the Hard Drive.
*10 I ask that Mr. Weidner prepare an order consistent with and incorporating this letter opinion. Obviously, the next step in the process will be to set a hearing on the substance of the Motion.
Very truly yours.
/s/
Victor V. Ludwig, Judge


Footnotes

The Motion was designated on its face for, and filed in, the file for case numbers CR17000248-00 et seq. For reasons not entirely clear to me, the parties filed their briefs in support of their respective positions in the file for case numbers CR18000552-00, et seq. In his Brief in Support of Defendant's Motion to Sever Indictments and Establish Standing (the Brief), Eutsler “moves this court to find that standing exists for his Motion to Suppress the seizure of” the Hard Drive. Of course, the Motion, filed in the other case, did not contest the seizure of the Hard Drive: rather, it attacked the authorities' search of the Device by accessing it prior to obtaining a warrant. Even the argument in the Brief does not appear to address the seizure of the Hard Drive, and it is not apparent how the argument addresses a seizure that did not involve state action (in light of the fact that a third party voluntarily delivered the Device to the Deputies).
Although many courts speak about the issue of “standing” in Fourth Amendment cases (and, before Rakas, that was the standard short-hand term), the United States Supreme Court has made clear that the proper inquiry is whether the defendant has a reasonable expectation of privacy. In Rakas v. Illinois, 439 U.S. 128 (1978), the Supreme Court noted that the issue of standing is “more properly subsumed under substantive Fourth Amendment analysis.” Id. at 139. Consequently, following the lead of the United States Supreme Court (and, generally, the appellate courts of the Commonwealth), this Court will speak to whether Eutsler has a “reasonable expectation of privacy” in the Hard Drive.
Later, Bowling did not recall whether or not he had had conversations with Eutsler's mother about the reason for Eutsler's arrest even before visiting him.
All subsequent communication was by telephone, with Bowling using a land-line exclusively because of his concern that Dixie might learn of his contact with Eutsler if he used the cell phone which the company had issued to him.
Bowling also retrieved other items of Eutsler's personal property from his workplace. Bowling, Eutsler, and Thomas agreed that Bowling delivered a couple of boxes with items belonging to Eutsler, but Bowling testified that he did not gather the individual items; rather, to the best of his recollection, he found boxes, already filled with items, in Eutsler's office, and he merely transported them to the home of Eutsler's grandmother, presumably for ultimate delivery to Eutsler.
Eutsler's mother, Sandra Thomas (Thomas), confirmed that assertion in its essential details.
Bowling did not explain why he did not avail himself of either simple expedient, but then, no one asked.
The principal that one may not, under the Fourth Amendment, complain about the seizure or search of abandoned property is a long-standing one. Hester v. United States, 265 U.S. 57 (1924) Even so, the determination of whether property is abandoned is but another way of asking if the person has treated it in a fashion that demonstrates that he has no expectation of privacy in it. See, e.g., California v. Greenwood, 486 U.S. 35 (1988).
The seizure of the Hard Drive is not an issue because there is no evidence that there was any state action involved; as best we can surmise, Bowling voluntarily delivered the Hard Drive to Arehart, who voluntarily delivered it to the authorities.
I recognize that this case is unpublished and, therefore, not precedential. Nevertheless, it is a good synopsis of issues that touch on the case at bar, and I consider it informative. Rule 5A:1(f) of the Rules of the Supreme Court of Virginia.
Either Kersey and Tyson were in custody at the time of the search or, at least, there was probable cause to arrest them. It is not entirely clear whether Kersey was already under arrest on an outstanding capias, but “[t]he officer's observations of [the two of them] as they surreptitiously passed and hid the dollar bill, combined with the officer's knowledge about the possible significance of the atypical way the bill was folded, provided probable cause for an arrest of [both of them].” Id. at 21.
That cite is taken from the context of this observation by the Court in Kersey, at *13: ‘ “Additionally, the appellant did not forfeit her objectively reasonable expectation of privacy in the item “simply by entrusting [it] to the care of another.” ’ 6 LaFave, supra, § 11.3(f), at 285-86 (quoting United States v. Most [involving an entrustment to “store clerks”] ); see Hardy, 17 Va. App. at 680-82, 440 S.E.2d at 436-37 (recognizing that both the owner of a car and its bailee had a sufficient reasonable expectation of privacy in it to challenge its search); cf. Knight v. Commonwealth, 61 Va. App. 297, 309 n.5, 734 S.E.2d 716, 722 n.5 (2012) (noting in dicta that an owner generally retains a reasonable expectation of privacy even in lost property, subject to the finder's examination of it to identify its owner).”
I recognize that, except for decisions of the United States Supreme Court as to Constitutional issues or issues of federal law, no federal court is in this Court's chain of command and no decisions rendered by those courts have any precedential value. Nevertheless, the Court certainly considers them if the decisions are well-reasoned, sensible, informative, and appear to be grounded in the law.