          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
                 _____________________________

                         No. 1D17-5118
                 _____________________________

THOMAS GERALD DUKE,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                 _____________________________


On appeal from the Circuit Court for Clay County.
John H. Skinner, Judge.

                       September 14, 2018


WETHERELL, J.

     Thomas Gerald Duke pled no contest to possession of a
firearm by a convicted felon. As part of his plea, Duke reserved his
right to appeal the denial of his dispositive motion to suppress the
incriminating evidence found on several USB drives that had been
stolen from him, his identification from the files on those drives,
and the firearm seized from his vehicle upon his arrest. This is
Duke’s appeal.

     As he did below, Duke argues on appeal that law enforcement
officers violated the Fourth Amendment by opening and viewing
the contents of the stolen USB drives without his consent because
he had an expectation of privacy in the contents of the drives. We
affirm because (1) contrary to Duke’s argument, no Fourth
Amendment search occurred, and (2) even if a search occurred, it
was lawful because it was based on the consent of the person who
had possession of the drives and who the officers reasonably
believed had the apparent authority to consent to a search of the
drives. 1

                                Facts

     On November 6, 2017, Duke reported that his vehicle had
been burglarized. Duke claimed that several USB drives were
stolen in the burglary, along with cash, laptop computers, and
other items. However, the police report of the burglary did not list
the USB drives amongst the stolen property.

     A few days later, Mario Hampton was arrested on unrelated
charges. After his arrest, Hampton consented to a search of his
house and he specifically led the officers to an air conditioning vent
where he had hidden some USB drives. He told the officers that
this was the “mother lode” and that the drives contained “some
sick shit.” Hampton also told the officers that he had obtained the
drives in exchange for drugs. The officers did not know the drives
were stolen.

      The officers inserted one of the USB drives into a police-issued
computer. The drive was not password-protected. The officers
opened a video file on the drive, which depicted what appeared to
be a sexual battery because it showed “a white male strangle a . . .
young oriental girl, to where she was unconscious and then he
raped her.” The officers did not look at any other files on the drive
and immediately turned over all of the drives to a detective in the
Sex Crimes Unit. The detective interviewed Hampton and
questioned him further about the contents of the drives. During
the interview, Hampton told the detective that he only viewed one
video on the drives, which he described as showing a “dude with a
girl . . . she looked like she was young” and “it just looked like . . .

    1   Based on this disposition, we need not address the trial
court’s conclusion that Duke lacked a reasonable expectation of
privacy in the contents of the USB drives because they were not
password-protected.

                                   2
sick.” Hampton then signed a written consent form authorizing
the detective to search all of the USB drives.

     Subsequent searches of the USB drives led law enforcement
to identify the man in the video as Duke. A warrant was thereafter
issued for Duke’s arrest, and when the warrant was executed, a
firearm was found in Duke’s vehicle. Because Duke was a
convicted felon, the State charged him with unlawful possession of
the firearm. 2

     Duke filed a motion to suppress, arguing that the arrest that
led to the firearm’s discovery was unlawful because the arrest
warrant was based on an affidavit that relied on evidence found in
an unlawful warrantless search of the USB drives. Specifically,
Duke argued that the search of the drives violated the Fourth
Amendment because he had not abandoned the drives; he retained
an expectation of privacy in the contents of the drives after they
were stolen; he did not consent to the search or authorize Hampton
to do so; and the officers knew that the drives were stolen and that
Hampton had no authority to consent to a search of the drives.

    The trial court denied the motion after a hearing. The court
concluded that no Fourth Amendment search had occurred
because (1) it was Hampton, not the officers, who violated Duke’s
expectation of privacy in the contents of the USB drives, and (2)
Duke did not have a reasonable expectation of privacy in the
contents of the drives because they were not password-protected.
Duke thereafter pled no contest to possession of a firearm by a
convicted felon, reserving his right to appeal the denial of his
dispositive motion to suppress.

    This appeal followed.




    2  The State also charged Duke with two counts of sexual
battery, kidnapping, and domestic battery by strangulation, but
those charges were dropped.

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                             Analysis

     The trial court’s ruling on the motion to suppress comes to this
Court with a presumption of correctness. See State v. Markus, 211
So. 3d 894, 902 (Fla. 2017). Our standard of review is mixed: the
trial court’s ultimate ruling is a question of law that we review de
novo, but the factual findings on which the ruling is based are
reviewed for support by competent substantial evidence. Id.

     The Fourth Amendment protects the “right of the people to be
secure in their persons . . . and effects, against unreasonable
searches and seizures.” U.S. Const., amend. IV. For purposes of
the Fourth Amendment, a “search” occurs only when an
individual’s reasonable expectation of privacy is infringed by an
agent of the government. United States v. Jacobsen, 466 U.S. 109,
113 (1984). The Fourth Amendment is “wholly inapplicable to a
search or seizure, even an unreasonable one, effected by a private
individual not acting as an agent of the Government or with the
participation or knowledge of any governmental official.” Id.
(internal quotations omitted). Thus, where a warrantless search
by law enforcement is prompted by a prior search by a private
party, the warrantless search does not violate the Fourth
Amendment so long as it does not exceed the scope of the private
party’s search. Id. at 117; see also United States v. Harling, 705
Fed. Appx. 911 (11th Cir. 2017) (affirming the denial of a motion
to suppress the contents of two USB drives that were reviewed by
private parties before they were searched by the police, but
reversing as to a third drive that had not been reviewed by the
private parties before it was searched by the police), cert. denied,
138 S. Ct. 1312 (2018).

     Duke had the initial burden to prove that the officers
conducted a Fourth Amendment search when they opened and
viewed the video file on the USB drive after Hampton told them
that the drives contained “some sick shit.” Armstrong v. State, 46
So. 3d 589, 593-94 (Fla. 1st DCA 2010); see also Florida v. Riley,
488 U.S. 445, 455 (1989) (O’Connor, J., concurring) (stating that
defendant has burden of proving “a ‘search’ within the meaning of
the Fourth Amendment even took place”). If Duke met that
burden, then the State had the burden to prove that an exception


                                 4
to the warrant requirement applies. Kilburn v. State, 54 So. 3d
625, 627 (Fla. 1st DCA 2011).

      Duke failed to meet his burden to prove that a Fourth
Amendment search occurred. The officers initially only viewed one
file on one of the USB drives after being informed by Hampton that
the drives contained “some sick shit.” Although the record does
not conclusively establish what “sick shit” Hampton viewed, it
supports the inference that he was referring to the same video that
the officers viewed. See Ingram v. State, 928 So. 2d 423, 428 (Fla.
1st DCA 2006) (“In reviewing the denial of a motion to suppress,
we view the evidence and its reasonable inferences in a light most
favorable to affirming the trial court’s ruling.”). Hampton later
told the detective that he only viewed one video file on the drives,
and his description of this video was consistent with what the
officers described seeing in the one video that they opened before
turning over the drives to the Sex Crimes Unit. Moreover, because
Hampton only viewed one video, it is reasonable to infer that he
directed the officers to the specific USB drive that contained the
video that he reviewed. Accordingly, under these circumstances,
the trial court did not err in concluding that the officers did not
conduct a search within the meaning of the Fourth Amendment
when they opened one of the USB drives and viewed a video file on
the drive.

     However, even if the officers’ initial viewing of the video was
a Fourth Amendment search of the USB drive, it was lawful
because Hampton consented to the search. See State v. Purifoy,
740 So. 2d 29, 30 (Fla. 1st DCA 1999) (“It is well-established that
a search conducted pursuant to valid consent is a recognized
exception to the requirements of probable cause and a search
warrant . . . .”). The fact that Hampton did not have actual
authority from the owner of stolen USB drives, Duke, to give such
consent is immaterial because it is well-established that law
enforcement may rely on the consent given by a person with
apparent authority, so long as that reliance is reasonable under
the totality of the circumstances. See State v. Young, 974 So. 2d
601, 610 (Fla. 1st DCA 2008) (citing Illinois v. Rodriguez, 497 U.S.
177, 181 (1990)).



                                 5
     Here, it was reasonable for the officers to rely on Hampton’s
apparent authority to consent to them viewing the contents of the
USB drives. The officers did not know that the drives were stolen
or that Hampton was not in lawful possession of the drives. The
drives were safely hidden in his home, and he told the officers that
he obtained the drives in exchange for drugs. The officers knew
Hampton was a drug dealer and that drug users sometimes traded
personal property for drugs. Under these circumstances, it was
not unreasonable for the officers to assume that the person with
whom Hampton traded was the original owner of the drives,
thereby making Hampton the lawful owner of the drives. The fact
that this turned out not to be the case does not undermine the
reasonableness of the officers’ assumptions at the time.

     The subsequent searches of the USB drives were based on
Hampton’s written consent. The detective with the Sex Crimes
Unit who obtained the written consent asked Hampton if the
devices were stolen, but consistent with what he told the original
officers, Hampton told the detective that he received the drives in
exchange for drugs. Accordingly, under the circumstances, it was
not unreasonable for the detective to conclude that Hampton had
the apparent authority to consent to a search of the USB drives.

     We did not overlook the fact that the detective told Hampton
that law enforcement knew the USB drives were not his, but that
does not undermine the reasonableness of the detective’s reliance
on Hampton’s apparent authority to consent to a search of the
drives. When the detective’s statement is viewed in context, it is
clear that it was merely intended to assure Hampton that even
though he claimed ownership in the drives, he was not going to be
charged with the acts depicted in the video because he was not in
the video.

                           Conclusion

     For the reasons stated above, the trial court properly denied
Duke’s motion to suppress the evidence on the USB drives that
ultimately led to the discovery of the firearm that served as the
basis for the charge to which Duke pled. Accordingly, we affirm
Duke’s conviction and sentence.


                                 6
    AFFIRMED.

BILBREY and M.K. THOMAS, JJ., concur.

                _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________


Curtis S. Fallgatter and Alex King of Fallgatter & Catlin, P.A.,
Jacksonville, for Appellant.

Pamela Jo Bondi, Attorney General, and Jason W. Rodriguez,
Assistant Attorney General, Tallahassee, for Appellee.




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