UT: Police short search of stolen computer was negligent Fourth Amendment violation, but suppression not ordered

Defendant’s computer was stolen and recovered at a vacant building when trespassers were arrested. The computer was open and on and a text document open. Through the serial number, the officers were able to locate the owner, and he was called. While waiting on the owner, the officer tried to open the document the thieves had opened to see if it incriminated them. He couldn’t find it, so he explored and clicked on “My Pictures” and found thumbnails of underage females. He turned off the computer. When defendant arrived, they asked him for consent to search the computer for evidence of the thieves on the computer. A forensic examination was done, and evidence of sexual exploitation of a child was found. On defendant’s motion to suppress, the court holds that a negligent violation of Fourth Amendment rights was here enough to not apply the exclusionary rule, analyzing all the factors. State v. Newland, 2010 UT App 380, 253 P.3d 71, 672 Utah Adv. Rep. 8 (2010):

[*P26] We must now decide whether the trial court correctly concluded that the consent was not obtained through exploitation of the initial illegality.

[T]he exploitation analysis requires a balancing of the relative egregiousness of the misconduct against the time and circumstances that intervene before the consent is given. [Thus, t]he nature and degree of the illegality will usually be inversely related to the effectiveness of time and intervening events to dissipate the presumed taint.

State v. Thurman, 846 P.2d 1256, 1264 (Utah 1993). “This balancing [test] necessitates consideration of all factors without giving any of them dispositive weight.” State v. Shoulderblade, 905 P.2d 289, 293 (Utah 1995). The factors, however, are not of mathematically equal importance. See Brown v. Illinois, 422 U.S. 590, 603-04, 95 S. Ct. 2254, 45 L. Ed. 2d 416 (1975) (noting the particular importance of the purpose and flagrancy factor); accord Thurman, 846 P.2d at 1263-64. “[W]here it appears that the illegality arose as the result of negligence, the lapse of time between the misconduct and the consent and the presence of intervening events become less critical to the dissipation of taint.” Thurman, 846 P.2d at 1264. In this case, because the temporal proximity factor is neutral, only the absence of intervening circumstances must be weighed against the lack of purposefulness and flagrancy. In light of the unchallenged negligence finding, however, “a clean break in the chain of events between the misconduct and the consent” was not required. Id. Moreover, because the officer’s conduct was due to negligence, we agree with the trial court that the deterrent value of suppression is minimal and “greatly outweighed by society’s interest in placing all relevant evidence before the jury,” see id. at 1274. The trial court therefore correctly denied Newland’s motion to suppress.10

10 In affirming here, to the extent that the initial search may have been illegal, we are not condoning an officer’s violation of Newland’s constitutional right to freedom from unreasonable searches of his personal effects. The United States Supreme Court, however, has “never suggested that the exclusionary rule must apply in every circumstance in which it might provide marginal deterrence.” Herring v. United States, 555 U.S. 135, 129 S. Ct. 695, 700, 172 L. Ed. 2d 496 (2009) (internal quotation marks omitted).

The rule is calculated to prevent, not to repair. Its purpose is to deter–to compel respect for the constitutional guaranty in the only effectively available way–by removing the incentive to disregard it. But [d]espite its broad deterrent purpose, the exclusionary rule has never been interpreted to proscribe the use of illegally seized evidence in all proceedings or against all persons.

Brown, 422 U.S. at 599-600 (alteration in original) (citation and internal quotation marks omitted). “To trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system.” Herring, 129 S. Ct. at 702.

This case is thoughtfully analyzed, and the court does not consider itself bound by the trial court’s negligence finding. When you get to the end of the opinion, though, you wonder “what happens next time” with this officer or in Utah in general. If the exclusionary rule is “calculated to prevent rather than repair,” does this case add anything to prevention? Should it? Considering how the computer was found, how likely was it that the “My Pictures” folder would have pictures of the thieves? One would surmise that clearly the officer had no business going anywhere other than the open text document or search files found created after it was reported stolen. Hard cases make bad law.