Court Finds File Names are in Plain View; Looks at Consent, Inevitable Discovery and Independent Source Doctrines

In a lengthy c.p. opinion in U.S. v. Stabile, --- F.3d ----, 2011 WL 294036 (Feb. 1, 2011), the Third Circuit found the following:
(1) Consent to a warrantless search by cohabitant who had common authority over the property, including seizure of hard drives in common area which were not password protected, was valid; (2) the search of entire contents of the hard drives was reasonable and was not required to be done on-site;
(3) the subsequent revocation of cohabitant's consent by defendant was ineffective;
(4) a three-month delay between seizure of hard drives and obtaining search warrant was not unreasonable given that property was turned over by consent, defendant did not request return of the property, and government's rationale for the delay was reasonable;
(5) file names, which appeared when a folder on defendant’s hard drive was highlighted, indicating child pornography were in "plain view" during search for financial fraud evidence; and
(6) although the plain view doctrine may not apply to the contents of those files, the independent source and inevitable discovery doctrines applied.

In brief, during a counterfeit check investigation, secret service agents and members of a New Jersey sheriff’s office obtained consent from a cohabitant (“Deetz”) to search the house she shared with Stabile to search for evidence of financial crimes. Next to one of several computers and hard drives, the agents found check stock, check writing software, photocopies of checks, copies of previously-passed fraudulent checks, two printers, and checks with an alias. Agents also located DVD’s bearing titles believed to represent child pornography. When Stabile arrived, he refused to answer questions and attempted to revoke Deetz's consent by stating “I take it back,” but did not request return of his seized property until months later.

Although the agent obtained the six hard drives on July 24, 2006, he did not apply for a state search warrant until October 2006 because of another assigned detail. The warrant authorized search of the computer hard drives for evidence of financial crimes and child pornography. However, the DVDs at this point had already been determined to not contain child pornography, and the detective who would perform the forensic search, was told that there was a problem with the warrant as it related to child pornography and to search only for evidence of financial crimes. During the search, the detective noted numerous suspicious folders, including one “Kazvid,” which he understood to reference a file sharing program used often to share child pornography. He then highlighted the Kazvid folder, which allowed him to view a list of file names contained in the folder. The detective later testified that he highlighted the Kazvid folder not because it necessarily contained child pornography but because-as a suspicious folder-it could harbor evidence of any sort of crime, including a financial crime. He then observed a list of file names suggestive of child pornography and opened twelve different video files to “confirm” that they contained child pornography. He then notified the agent who obtained a federal search warrant based on only the names of the files in the Kazvid folder. This ultimately led to warrants to search the other drives and the child pornography indictment.

Stabile moved to suppress the evidence but the district court concluded that the search of Stabile's house was a valid consent search, that Stabile could not “revoke” Deetz's prior consent under Georgia v. Randolph, that the Government's delay in obtaining a state search warrant was not unreasonably long, and that, under the inevitable discovery doctrine, the evidence obtained from the search of the first hard drive need not be suppressed.

The Circuit affirmed, agreeing that Deetz ( who had common authority over the property) could consent to the warrantless search, including seizure of hard drives in common area which were not password protected. The court further rejected Stabile’s argument that the search of the hard drives should have been done on-site and found that his subsequent revocation of Deetz’s consent was ineffective. The Court also found the three-month delay between the seizure of the hard drives and obtaining of the search warrant reasonable, given that the property was turned over by consent, Stabile did not request return of the property, and government's rationale - that the agent was unavailable due to another assignment - for the delay was reasonable. Finally, the Court held that the file names in the Kizvid folder indicating child pornography were in "plain view" during search for financial fraud evidence because the officer [a] validly arrived at the place where file names were listed, [b] the incriminating character was immediately apparent, and [c] the officer had a lawful right to access the harddrive and, although the plain view doctrine may not apply to the contents of those files, the independent source and inevitable discovery doctrines applied.