IL: Once def was acquitted, seized computer data should have been returned, not searched again without a warrant

Defendant was a Peoria police officer being accused of sexual assault, and the Illinois State Police obtained a search warrant for his computer and other devices. The hard drives were copied with EnCase software. Defendant was tried on the sexual assault charges and acquitted. Defendant sought return of the data. After that, police searched the mirrored image again but without a separate search warrant, thinking that they didn’t need one. Once defendant’s case was over, the information should have been returned to him. The later search was unreasonable, and the good faith exception does not apply. People v. McCavitt, 2019 IL App (3d) 170830, 2019 Ill. App. LEXIS 922 (Nov. 26, 2019):

[*P22] All property seized must be returned to its rightful owner once the criminal proceedings have terminated. Cooper v. City of Greenwood, 904 F.2d 302, 304 (5th Cir. 1990); United States v. Farrell, 606 F.2d 1341, 1343, 196 U.S. App. D.C. 434 (D.C. Cir. 1979); United States v. LaFatch, 565 F.2d 81, 83 (6th Cir. 1977). When no charges are pending against an individual, any of the individual’s property in the possession of the State should be immediately returned to him. See People v. Jaudon, 307 Ill. App. 3d 427, 447, 718 N.E.2d 647, 241 Ill. Dec. 76 (1999) (citing 725 ILCS 5/108-2 (West 1996)); People v. Jackson, 26 Ill. App. 3d 845, 848-49, 326 N.E.2d 138 (1975). After criminal proceedings conclude, the government has no right to retain a defendant’s property. United States v. Rodriguez-Aguirre, 264 F.3d 1195, 1213 (10th Cir. 2001). “[I]t is fundamental to the integrity of the criminal justice process that property involved in the proceeding, against which no Government claim lies, be returned promptly to its rightful owner.” United States v. Wilson, 540 F.2d 1100, 1103, 176 U.S. App. D.C. 321 (D.C. Cir. 1976).

. . .

[*P24] Here, there is no question that defendant had an expectation of privacy in his computer files before his computer was confiscated by police pursuant to the search warrant issued on July 17, 2013. See Heckenkamp, 482 F.3d at 1147; Broy, 209 F. Supp. 3d at 1053-55; Blair, 321 Ill. App. 3d at 381 (Homer, J., specially concurring). Defendant’s expectation of privacy significantly diminished once the police took possession of the computer, and that diminished expectation of privacy continued until his trial was complete. See Burnette, 698 F.2d at 1049; Johnston, 789 F.3d at 942. However, once defendant’s trial was over, defendant could again expect that he had a right to privacy in the contents of his computer. See United States v. Hubbard, 650 F.2d 293, 303, 208 U.S. App. D.C. 399 (D.C. Cir. 1980) (“the party from whom materials are seized in the course of a criminal investigation retains a protectible [sic] property interest in the seized materials” because he is entitled to their return when the criminal proceedings conclude); Thompson, 28 N.Y.S.3d at 259 (State’s unreasonable retention of an individual’s files violates the individual’s reasonable expectation of privacy).

[*P25] Feehan violated defendant’s right to privacy when he searched defendant’s EnCase file without a warrant in March 2014. While police lawfully created the EnCase file to forensically examine defendant’s hard drive, they were not entitled to retain the entire EnCase file indefinitely. See Premises Known as 608 Taylor Avenue, 584 F.2d at 1302. Rather, police were required to examine the contents of the mirrored hard drive and retain only those files that fit within the scope of the July 17, 2013, warrant. See Matias, 836 F.2d at 747; Veloz, 109 F. Supp. 3d at 313; In re Search, 21 F. Supp. 3d at 10; Thompson, 28 N.Y.S.3d at 258-59. While police could retain the relevant files throughout defendant’s trial, once defendant’s trial ended, police were not entitled to retain any portion of the EnCase file, much less the entire file. See Jaudon, 307 Ill. App. 3d at 447; Jackson, 26 Ill. App. 3d at 848-49; Rodriguez-Aguirre, 264 F.3d at 1213.

[*P26] Because police had no authority to retain possession of the EnCase file after defendant’s criminal trial ended, Feehan’s warrantless search of the EnCase file violated defendant’s fourth amendment rights.