TX4: Leaving flash drive with CP on it in a computer lab was a waiver of REP

Defendant left an unmarked flash drive in a university classroom. A teacher opened the drive to attempt to identify the owner and found papers with two names on it. She looked at the photos folder and found child pornography which she reported to university security. He was ultimately charged with it. “We conclude, like in Miller, that the trial court did not abuse its discretion in finding the circumstances did not rise to a level that any subjective expectation by Kane was objectively reasonable.” The search of the flash drive also did not violate the state computer security statute. Kane v. State, 2015 Tex. App. LEXIS 1291 (Tex. App. – San Antonio February 11, 2015):

This case is comparable. Walker testified that she routinely checked the computer lab and classroom for articles left by students or faculty and regularly discovered flash drives. She further testified that doing so was part of her “standard operating procedure” and that the only reason she viewed the information on the flash drive was to facilitate returning the flash drive to its owner.

We conclude the trial court could have reasonably determined that by examining an unmarked and unlocked flash drive left in a common-use computer facility, Walker did not violate Texas Penal Code section 33.02 and that she had Kane’s effective consent to access the flash drive. Id. Because Walker did not violate section 33.02, Kane failed to prove the evidence should have been excluded under article 38.23. Mayfield, 124 S.W.3d at 378.