               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA15-1071

                                Filed: 15 March 2016

Currituck County, No. 13 CRS 51255, 14 CRS 36
STATE OF NORTH CAROLINA

              v.
TIMOTHY LADD, JR.

        Appeal by defendant from judgment entered 27 April 2015 by Judge J. Carlton

Cole in Currituck County Superior Court. Heard in the Court of Appeals 22 February

2016.

        Attorney General Roy Cooper, by Assistant Attorney General Phillip T.
        Reynolds, for the State.

        Rudolf Widenhouse & Fialko, by M. Gordon Widenhouse Jr., for defendant-
        appellant.


        TYSON, Judge.


        Timothy Allen Ladd, Jr. (“Defendant”) appeals from judgment entered after he

pled guilty to four counts of secretly using a photographic device with the intent to

capture images of another person pursuant to N.C. Gen. Stat. § 14-202(f). We reverse

the trial court’s denial of Defendant’s motion to suppress and vacate the plea and

judgment entered thereon and appealed from.

                               I. Factual Background

        On 20 November 2013, a female employee of the Currituck County Fire/EMS

discovered an alarm clock located on the windowsill of the women’s bunkroom facing
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two beds in the room. Two other female employees stated they noticed the clock was

also present in the women’s bunkroom on 18 November 2013. The clock contained an

audio and video recorder, which activated when its sensor picked up a motion or noise.

The clock also contained a Subscriber Identity Module (SIM) card.

      Defendant was employed by Currituck County Fire/EMS as an EMT from June

2012 to December 2013. Defendant had slept in the women’s bunkroom during his

overnight shift.   After the “alarm clock” was discovered, Chief Robert Glover of

Currituck County Fire/EMS conducted a personnel interview with Defendant. Also

present were Currituck County Sherriff’s Sergeant Jeff Walker and Wesley

Liverman, President of the Lower Currituck Volunteer Fire Department.

      Defendant consented to a search of his personal laptop and his smartphone,

but only to those two items, during the interview. He did not consent to a search of

any other personal electronic or data storage devices. After the interview, Sergeant

Walker escorted Defendant to Defendant’s vehicle to retrieve the laptop, which was

located inside a black nylon carrying case.

      Sergeant Walker saw and seized a second laptop located on the vehicle’s

floorboard. Defendant consented to the search of the second laptop. Sergeant Walker

and Defendant went to the Currituck County Sheriff’s substation for Sergeant

Walker to search both laptops and the smartphone.

      Sergeant Walker did not find any incriminating evidence on either laptop or



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on the smartphone. He requested permission from Defendant to take the laptops to

the Sheriff’s Department main office for a further search of the contents of the

computers. Defendant consented and left both laptops contained within the black

nylon laptop bag with Sergeant Walker.          Sergeant Walker gave the laptops to

Sheriff’s Detective Ruby Stallings.

      Detective Stallings searched the contents of the black nylon laptop bag and

discovered several external data storage devices. These included an external hard

drive, numerous thumb drives, and micro secure digital cards. Detective Stallings

searched the external hard drive and found video images of four or five women

undressing or completely naked. The record on appeal is unclear whether any of

these recovered images were taken in the EMS women’s bunkroom.

      Based upon her discovery of these images, Detective Stallings obtained a

warrant to search the other external data storage devices located in Defendant’s

laptop bag.    Defendant was charged with seven counts of secretly using a

photographic device based upon images recovered after the search of the external

data storage devices located within his laptop bag. On 3 February 2014, he was

indicted by the Grand Jury on four of those counts.

      On 10 March 2014, Defendant moved to suppress the evidence found by

Detective Stallings when she viewed the external hard drive. The motion was denied

and Defendant conditionally pled guilty, preserving his right to appeal the denial of



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the motion to suppress. The trial court entered judgment for four counts of secretly

using a photographic device. Defendant appeals.

                                     II. Issues

      Defendant argues the trial court erred by denying his motion to suppress

evidence obtained as a result of non-consensual and unreasonable searches without

a valid warrant of both his laptop bag and of the external data storage devices found

inside. While the State contends these searches were consensual and constitutional,

it also argues this case should be remanded so further evidence can be presented in

compliance with State v. Salinas, 366 N.C. 119, 729 S.E.2d. 63 (2012). We address

both arguments below.

                         III. Fourth Amendment Analysis

      Defendant argues the trial court erred by denying his motion to suppress

evidence obtained as a result of non-consensual and unreasonable searches in

violation of the Fourth, Fifth, and Fourteenth Amendments of the Constitution of the

United States; Article 1, Sections 5, 19, 20, and 23 of the Constitution of North

Carolina; and North Carolina General Statutes §§ 15A-221-223.

      “An order finally denying a motion to suppress evidence may be reviewed upon

an appeal from a judgment of conviction, including a judgment entered upon a plea

of guilty.” N.C. Gen. Stat. § 15A-979(b) (2015). The fact that Defendant pled guilty

to a crime arising from possession of evidence seized during a search does not



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preclude him from appealing the trial court’s motion to suppress. See State v. Jordan,

40 N.C. App. 412, 413, 252 S.E.2d 857, 858 (1979).

      Defendant properly reserved his right to appeal by notifying the State and the

trial court of his intention to appeal the denial of the motion to suppress during the

pre-trial hearing and during the plea negotiations. See State v. McBride, 120 N.C.

App. 623, 625, 463 S.E.2d 403, 404 (1995), disc. review allowed in part, 343 N.C. 126,

468 S.E.2d 790, aff'd, 344 N.C. 623, 476 S.E.2d 106 (1996).

                                A. Standard of Review

      The trial court’s findings of fact regarding a motion to suppress are conclusive

and binding on appeal if supported by competent evidence. State v. Cooke, 306 N.C.

132, 134, 291 S.E.2d 618, 619 (1982). This Court determines whether the trial court’s

findings of fact support its conclusions of law. Id.

      We review the trial court’s conclusions of law on a motion to suppress de novo.

State v. Edwards, 185 N.C. App. 701, 702, 649 S.E.2d 646, 648, disc. rev. denied, 362

N.C. 89, 656 S.E.2d 281 (2007). “‘Under a de novo review, the court considers the

matter anew and freely substitutes its own judgment’ for that of the lower tribunal.”

State v. Williams, 362 N.C. 628, 632-33, 669 S.E.2d 290, 294 (2008) (quoting In re

Appeal of The Greens of Pine Glen Ltd. P’ship, 356 N.C. 642, 647, 576 S.E.2d 316, 319

(2003)).

                                       B. Consent



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      Generally, if an individual consents to a search of himself or of his property,

the Fourth Amendment is not implicated. Schneckloth v. Bustamonte, 412 U.S. 218,

219, 36 L. Ed. 2d 854, 858 (1973) (“It is equally well settled that one of the specifically

established exceptions to the requirements of both a warrant and probable cause is a

search that is conducted pursuant to consent.”); see State v. Belk, 268 N.C. 320, 322-

23, 150 S.E.2d. 481, 483-84 (1966).

      However, a consensual search is limited by and to the scope of the consent

given. See State v. Jones, 96 N.C. App. 389, 397, 386 S.E.2d. 217, 222 (1989). The

scope of the defendant’s consent is “constrained by the bounds of reasonableness:

what the reasonable person would expect.” State v. Stone, 362 N.C. 50, 54, 653 S.E.2d

414, 418 (2007); see also Florida v. Jimeno, 500 U.S. 248, 251, 114 L. Ed. 2d 297, 302

(1991) (“The standard for measuring the scope of a suspect’s consent under the Fourth

Amendment is that of ‘objective’ reasonableness—what would the typical reasonable

person have understood by the exchange between the officer and the suspect?”).

      During the hearing on the motion to suppress, the parties stipulated to the

facts as set out by Defendant’s counsel’s affidavit, which accompanied Defendant’s

motion to suppress. In the trial court’s order denying the motion, the court stated,

“the Court so finds the facts as alleged in the Defendant’s affidavit.” The court did

not consider any other evidence.

      The relevant stipulated facts are:



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8. Also during the interview, Mr. Ladd was asked for his
consent to search his personal laptop and smartphone.

9. Timothy Ladd, Jr. consented only to the search of his
personal laptop and smartphone.

....

14. Mr. Ladd consented to the search of the laptop found
on the floorboard of his vehicle.

....

21. That Mr. Ladd consented to further review of the
laptops by the Currituck County Sheriff’s Department.

....

23. Upon receiving the laptops for review, Detective Ruby
Stallings also searched the contents of the black nylon
laptop bag and found numerous external data storage
devices . . . .

24. Without consent from Mr. Ladd, Detective Ruby
Stallings and Deputy Christopher Doxey “decided to view
some of the micro SD cards USB ports that were
confiscated from Timothy Ladd.”

25. The non-consensual search of the external data storage
devices produced electronic material purported to be
evidence of illegal activity.

26. That on November 25, 2013, Detective Ruby Stallings
used the material derived from the non-consensual search
as the evidentiary basis for a warrant to search Mr. Ladd’s
external data storage devices.

27. That the purported evidence derived from the non-
consensual search of the external data storage device led to
Mr. Ladd being charged with seven (7) counts of felonious


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             secret peeping into a room occupied by another person in
             the above-referenced file numbers.

(first emphasis in original).

      Based on these findings of fact, the court concluded “that the defendant’s

consent for the search of his property was freely given.” The stipulated facts relied

on by the trial court clearly distinguish which searches Defendant consented to and

which he did not. While Defendant consented to the search of his two laptops and his

smartphone, the trial court’s findings of fact unambiguously state that all searches

beyond those three items were non-consensual.

      Defendant contends the trial court’s conclusion that he consented to the search

was erroneous based on the stipulated facts, which clearly state the search of the

external data storage devices was non-consensual. Because the trial court’s findings

of fact must support its conclusions of law, we agree with Defendant. Cooke, 306 N.C.

at 134, 291 S.E.2d at 619.

      The State argues that, based on the standard of objective reasonableness, the

officers understood Defendant’s consent to the search to include both laptops,

smartphone, and the external data storage devices. However, the State agreed and

stipulated to the following finding of fact: “Timothy Ladd, Jr. consented only to the

search of his personal laptop and smartphone.” (emphasis original).

      The stipulated facts contain no reference to the officers’ understanding of

Defendant’s consent. If the State wished to introduce evidence pertaining to the


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officers’ understanding of Defendant’s consent, it should have presented or requested

the court to hear additional testimony. We are bound by the findings of fact, as

stipulated by the parties. We conclude Defendant’s consent only extended to his two

laptops and his smartphone.

                            C. Reasonable Expectation of Privacy

      Our finding that Defendant did not consent to the search does not complete our

analysis.   The trial court also concluded Defendant did not have a reasonable

expectation of privacy in the external data storage devices.

      The Fourth Amendment provides:

            The right of the people to be secure in their persons, houses,
            papers, and effects, against unreasonable searches and
            seizures shall not be violated, and no Warrants shall issue,
            but upon probable cause, supported by Oath or affirmation,
            and particularly describing the place to be searched, and the
            persons or things to be seized.

U.S. Const. amend. IV.

      However, “‘[i]t must always be remembered that what the Constitution forbids

is not all searches and seizures, but unreasonable searches and seizures.’” State v.

Scott, 343 N.C. 313, 328, 471 S.E.2d. 605, 614 (1996) (emphasis supplied) (quoting

Elkins v. United States, 364 U.S. 206, 222, 4 L.Ed.2d 1669, 1680 (1960)). “A search

occurs when the government invades reasonable expectations of privacy to obtain

information.” State v. Perry, __ N.C. App. __, __, 776 S.E.2d 528, 536 (2015), disc. rev.

denied and appeal dismissed, __ N.C. __, __ S.E.2d __, 2016 WL 475539 (2016); see


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Katz v. United States, 389 U.S. 347, 351-52, 19 L.Ed.2d 576, 582 (1967) (“For the

Fourth Amendment protects people, not places. . . . what [a person] seeks to preserve

as private, even in an area accessible to the public, may be constitutionally

protected.”).

      To determine whether a defendant possessed a reasonable expectation of

privacy, the court must consider whether: “(1) the individual manifested a subjective

expectation of privacy in the object of the challenged search[;] and, (2) society is

willing to recognize that expectation as reasonable.” Perry, __ N.C. App. at __,776

S.E.2d at 536 (internal quotation marks omitted) (citing Kyllo v. United States, 533

U.S. 27, 33, 150 L. Ed. 2d 94, 101 (2001)).

      The Supreme Court of the United States has acknowledged that serious

privacy concerns arise in the context of searching digital data. Riley v. California, 573

U.S. ___, 189 L. Ed. 2d 430 (2014). In Riley, the Court emphasized the “immense

storage capacity” of cell phones:

                Before cell phones, a search of a person was limited by
                physical realities and tended as a general matter to
                constitute only a narrow intrusion on privacy. Most people
                cannot lug around every piece of mail they have received
                for the past several months, every picture they have taken,
                or every book or article they have read—nor would they
                have any reason to attempt to do so. . . .

                   But the possible intrusion on privacy is not physically
                limited in the same way when it comes to cell phones. The
                current top-selling smart phone has a standard capacity of
                16 gigabytes (and is available with up to 64 gigabytes).

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             Sixteen gigabytes translates to millions of pages of text,
             thousands of pictures, or hundreds of videos. . . . We expect
             that the gulf between physical practicability and digital
             capacity will only continue to widen in the future.

Id. at __, 189 L. Ed. 2d at 446-47 (citations omitted). The Court held in Riley the

officers must generally secure a warrant before searching a cell phone seized incident

to arrest. Id. at __, 189 L. Ed. 2d at 451.

      This Court has since relied on Riley to support an individual’s expectation of

privacy in the contents of a Global Positioning System (“GPS”) device, which typically

contains less personal information than a modern cell phone. State v. Clyburn, __

N.C. App. __, __, 770 S.E.2d. 689, 694 (2015). Quoting Riley, the Court stated:

             [C]ourts “generally determine whether to exempt a given
             type of search from the warrant requirement ‘by assessing,
             on the one hand, the degree to which it intrudes upon an
             individual’s privacy and, on the other, the degree to which
             it is needed for the promotion of legitimate governmental
             interests.’”

Id. at __, 770 S.E.2d at 693 (citation omitted). Applying this balancing test, the Court

held the defendant’s “expectation of privacy in the digital contents of a GPS outweighs

the government’s interests in officer safety and the destruction of evidence.” Id. at __,

770 S.E.2d at 694.

      While the officers had an interest in ensuring their safety when searching the

laptop bag and inventorying the laptop bag’s contents, the same cannot be said of

examining the contents of the external data storage devices found inside of the bag.


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As the Supreme Court stated in Riley, “[d]igital data stored on a cell phone cannot

itself be used as a weapon to harm an arresting officer.” Riley, 573 U.S. at __, 189 L.

Ed. 2d at 435. The external data storage devices found in Defendant’s laptop bag

posed no safety threat to the officers.

      The officers also had no reason to believe the external data storage devices or

the information they contained would be destroyed while they pursued a warrant

based upon probable cause to search them. The officers had sole custody of these

devices and Defendant was not present when these devices were found and searched.

      In Riley, the Court held:

              The storage capacity of cell phones has several interrelated
          consequences for privacy. First, a cell phone collects in one place
          many distinct types of information—an address, a note, a
          prescription, a bank statement, a video—that reveal much more
          in combination than any isolated record. Second, a cell phone’s
          capacity allows even just one type of information to convey far
          more than previously possible. The sum of an individual’s private
          life can be reconstructed through a thousand photographs labeled
          with dates, locations, and descriptions; the same cannot be said
          of a photograph or two of loved ones tucked into a wallet. Third,
          the data on a phone can date back to the purchase of the phone,
          or even earlier. A person might carry in his pocket a slip of paper
          reminding him to call Mr. Jones; he would not carry a record of
          all his communications with Mr. Jones for the past several
          months, as would routinely be kept on a phone.

Id. at __, 189 L. Ed. 2d at 447.

      The same analysis applies to the search of the digital data on the external data

storage devices in this case. Depending on their storage capacities, external data


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storage devices can often contain as much, if not more, personal information as a

modern cell phone. External hard drives, in particular, can hold the entire contents

of an individual’s personal computer—all of their photographs, personal information

and documents, work documents, tax forms, bank statements, and more.               The

information contained in these devices can span the course of many years and are

capable of containing the “sum of an individual’s private life.” Id. We do not agree

with the State’s assertion that Defendant had no reasonable expectation of privacy

in these devices and the information they contained to permit a search without a

warrant.

      As in Clyburn and Riley, the search of the external data storage drives did not

further any governmental interest in protecting officer safety or in preventing the

destruction of evidence. Defendant’s privacy interests in the digital data stored on

these storage devices are both reasonable and substantial. The trial court erred by

concluding Defendant did not have a reasonable expectation of privacy in the contents

of his external data storage devices and by upholding the non-consensual search of

the external data storage devices.

                                 IV. State v. Salinas

      Finally, the State argues that the North Carolina Supreme Court’s decision in

State v. Salinas, 366 N.C. 119, 729 S.E.2d 63 (2012) controls the outcome of this case.

The Court held, “when ruling upon a motion to suppress in a hearing held pursuant



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to section 15A–977 of the North Carolina General Statutes, the trial court may not

rely upon the allegations contained in the defendant’s affidavit when making findings

of fact.” Id. at 126, 729 S.E.2d at 68. The State asserts the trial court’s reliance upon

the stipulated facts in Defendant’s counsel’s affidavit directly violates Salinas.

      In Salinas, the defendant did not present any evidence during the hearing on

his motion to suppress and relied solely on the facts as set out in his affidavit. Id. at

121, 729 S.E.2d at 65. The State presented testimony from several officers, which

conflicted with the facts set out in the defendant’s affidavit, regarding whether the

officers had probable cause to make the stop. Id. at 121-22, 729 S.E.2d at 65.

      Rather than requiring the defendant to present additional testimony, the trial

court relied on defendant’s affidavit, did not adjudicate the conflicting facts, and

granted the defendant’s motion to suppress. Id. at 122, 729 S.E.2d at 65-66. The

Supreme Court stated the trial court “failed to make findings of fact sufficient to allow

a reviewing court to apply the correct legal standard.” Id. at 119-20, 729 S.E.2d at 64.

      Here, the facts are easily distinguishable from those before the Court in

Salinas. Salinas holds that a court cannot rely on a defendant’s affidavit in lieu of

presenting evidence when the State presents contradicting evidence at a suppression

hearing. Id. at 124-25, 729 S.E.2d at 67. Unlike in Salinas, the parties before us

agreed to stipulated facts as the basis for the trial court’s findings of fact on the

motion to suppress. Based upon this agreement, the court was not presented and did



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not have to consider any conflicting evidence.

      In addition, we find that the facts as stipulated by both parties are sufficient

for our de novo review of the trial court’s conclusions. Neither N.C. Gen. Stat. § 15A–

977 nor Salinas prevent parties from stipulating to the facts from which the trial

court must determine whether the warrantless search was consensual, reasonable,

and in the end, constitutional. With the lack of any conflicting evidence for the trial

court to adjudicate, the holding in Salinas is not applicable here to require remand.

                                  V. Conclusion

      The trial court’s conclusion of law that Defendant consented to the search of

all of his property is not supported by its findings of fact, which clearly state that the

search of the contents of Defendant’s external data storage devices was non-

consensual.

      Defendant possessed and retained a reasonable expectation of privacy in the

contents of the external data storage devices contained and found inside his laptop

bag. The Defendant’s privacy interests in the external data storage devices outweigh

any safety or inventory interest the officers had in searching the contents of the

devices without a warrant.

      Without a lawful search, no probable cause supports the later issued search

warrant. We reverse the trial court’s conclusions of law and denial of Defendant’s

motion to suppress the evidence found as a result of a non-consensual and



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unreasonable search of the external data storage devices found in Defendant’s laptop

bag. Defendant’s conditional guilty plea and judgment entered thereon are vacated.

      REVERSED AND VACATED.

      Judges CALABRIA and STROUD concur.




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