                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    FOR PUBLICATION
                                                                    November 6, 2014
               Plaintiff-Appellant,                                 9:00 a.m.

v                                                                   No. 310416
                                                                    Kent Circuit Court
MAXIMILIAN PAUL GINGRICH,                                           LC No. 11-007145-FH

               Defendant-Appellee.


Before: MARKEY, P.J., and WILDER and MURRAY, JJ.

PER CURIAM.

        Plaintiff appeals by leave granted the circuit court’s order granting defendant’s motion to
suppress evidence of child pornography, MCL 750.145c(4), found on defendant’s laptop
computer following a warrantless search by police after being notified by Best Buy employees of
suspicious file names the employees saw while performing repairs to the computer. The circuit
court ruled that a search without both probable cause and a warrant is generally unreasonable
unless a recognized exception to the warrant requirement applied, and that in this case, the search
and seizure was not permissible under the exigent circumstances, consent, plain view, or
inevitable discovery exceptions. Our review of United States Supreme Court precedent, by
which this Court is clearly bound regarding matters of federal law, People v Gilliam, 479 Mich
253, 261; 734 NWd2 585 (2007), convinces us that the circuit court ruled correctly.
Accordingly, we affirm.

                I. SUMMARY OF PERTINENT FACTS AND PROCEEDINGS

       The limited facts pertinent to this appeal were developed at defendant’s preliminary
examination on charges of two counts of possessing child sexually abusive material, MCL
750.145c(4), and two counts of using computers to commit a crime, MCL 752.796. At the
preliminary examination, Chad Vandepanne, a computer repair technician for Best Buy, testified
that he received a work order to perform a “diagnostic repair with a backup” on defendant’s
computer.1 The requested work required Vandepanne to physically remove the computer’s hard


1
  No one from Best Buy who had direct contact with defendant testified at the preliminary
examination and the unsigned work order was not admitted in evidence. The prosecution
attempted to supplement the record by attaching the work order to its late motion for

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drive, backup all of the data on the computer, and then perform a full hardware/software
diagnostic, repairing any problems that were discovered. A machine performing the backup
would display computer file names but not permit the files to be opened, as Vandepanne testified
that Best Buy’s policy did not permit employees to open any customer computer files. During
the backup of defendant’s computer, Vandepanne noticed files entitled, “12-year old Lolita” and
“12-year-old female virgin’s pussy,” which led him to suspect the files might be child
pornography. After seeing the file names, Vandepanne informed his manager of what he saw.
Kent County Sheriff’s Deputy Gary Vickery arrived 15 minutes later and Vandepanne pointed
out the suspicious file names while the backup of defendant’s computer was still running.

        According to both Vandepanne and Vickery, when the backup process ended Vickery
requested that Vandepanne open the suspicious files. To do so, Vandepanne had to remove the
hard drive from the backup machine and attach it to a computer that would permit opening and
browsing the suspect files. When he did this, the suspect files were opened and displayed
pictures of pornography involving minors. Vickery requested and Vandepanne gave him the
computer hard drive containing the suspected child pornography. Vickery also seized
defendant’s computer, power supply, and nine software discs. Vickery admitted that a search
warrant could have been, but was not, obtained before opening the suspicious computer files.

       After Vickery’s testimony, defendant moved to suppress the evidence of the photographs
found on his computer. He argued that Vickery did not obtain a warrant and that no exception to
the warrant requirement applied to his case. The prosecution argued that the motion was
premature, and that defendant did not have an expectation of privacy in the files that were
opened because he turned the computer over to Best Buy for repairs. The district court agreed
with the latter argument, ruling that defendant had no valid expectation of privacy because he
voluntarily delivered his computer to a large corporation for repair with knowledge that
technicians might view its stored images while performing repair work.

         In the circuit court, defendant moved to quash the information or in the alternative to
suppress the evidence and dismiss the charges. As noted already, the circuit court ruled that the
initial search of defendant’s computer by Vickery was unreasonable because a search warrant
was not obtained.

        Moreover, while expressing concern that no evidence indicated whether defendant knew
of Best Buy’s privacy policy, the court ruled that the warrantless search and seizure by the police
violated defendant’s constitutional rights because no exception to the warrant requirement
applied. Consequently, the exclusionary rule required that the items seized and observations
made be excluded from evidence, along with the fruit of the illegal search. Because no other
evidence beyond that which was suppressed supported the charges against defendant, they were
also dismissed. The circuit court subsequently ruled that the prosecution’s motion for
reconsideration of the circuit court’s ruling. The prosecution has also submitted a copy of the
work order with its brief on appeal but a party may not expand the record on appeal, which
consists of “the original papers filed in that court or a certified copy, the transcript of any
testimony or other proceedings in the case appealed, and the exhibits introduced.” MCR
7.210(A)(1); People v Nix, 301 Mich App 195, 203; 836 NW2d 224 (2013); People v Eccles, 260
Mich App 379, 384 n 4; 677 NW2d 76 (2004). We therefore decline to consider the work order.

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reconsideration was not timely, and therefore denied it. The prosecution now appeals by leave
granted.

                                           II. ANALYSIS

                                   A. STANDARD OF REVIEW

        We review de novo a trial court’s ultimate decision on a motion to suppress on the basis
of an alleged constitutional violation. People v Dagwan, 269 Mich App 338, 341; 711 NW2d
386 (2005) (citation omitted). The trial court’s findings of fact from a suppression hearing are
reviewed for clear error, according deference to the trial court’s determination. Id. at 342
(citation omitted); People v Roberts, 292 Mich App 492, 502; 808 NW2d 290 (2011). “A
finding of fact is clearly erroneous if, after a review of the entire record, an appellate court is left
with a definite and firm conviction that a mistake has been made.” People v Antwine, 293 Mich
App 192, 194; 809 NW2d 439 (2011) (quotation marks and citation omitted). Any ancillary
questions of law relevant to the motion to suppress are also reviewed de novo. Id.

                                           B. ANALYSIS

        A warrant is only required if the government conducts a search of an object or area that is
protected by the Fourth Amendment. See O’Connor v Ortega, 480 US 709, 715; 107 S Ct 1492;
94 L Ed 2d 714 (1987).2 The Fourth Amendment itself protects “[t]he right of the people to be
secure in their persons, homes, papers, and effects, against unreasonable searches and seizures . .
. .” US Const, Am IV. Under the plain terms of the Amendment, “[w]hen ‘the Government
obtains information by physically intruding’ on persons, houses, papers or effects, ‘a search
within the original meaning of the Fourth Amendment’ has ‘undoubtedly occurred.’ “ Florida v
Jardines, ___ US ___, ___; 133 S Ct 1409, 1414; 185 L Ed2d 495 (2014), quoting in part United
States v Jones, 565 US ___, ___ n 3; 132 S Ct 945, 950-951; 181 L Ed 2d 911 (2012) (some
internal quotation marks omitted). A “[t]resspass alone does not qualify, but there must be
conjoined with that . . . an attempt to find something or to obtain information.” Jones, 565 US at
__ n 5; 133 S Ct at 951.

       In addition, the government needs a warrant (assuming no exception applies) before
searching something in which the person has a reasonable expectation of privacy. Soldal v Cook
County, 506 US 56, 63; 113 S Ct 538; 121 L Ed 2d 450 (1992). But, if the government
physically intrudes on a constitutionally protected area (a person’s home, papers, and effects) in
search of evidence without a warrant, then the Katz3 reasonable expectation inquiry is
unnecessary. Jardines, 565 US at ___; 133 S Ct at 1417, citing Jones, 565 US at ___; 132 S Ct
at 950-952; Carman v Carroll, 749 F3d 192, 197 (CA 3, 2014). That is because the Katz
reasonable-expectation test is in addition to the traditional property-based understanding of the


2
  The Michigan Constitution’s prohibition against unreasonable searching and seizures is
construed as protecting the same interests as the Fourth Amendment. People v Lemons, 299
Mich App 541, 545; 830 NW2d 794 (2013).
3
    Katz v United States, 389 US 347; 88 S Ct 507; 19 L Ed 2d 576 (1967).

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Fourth Amendment. Id. In other words, these are separate tests that can be applied depending
on the interest at issue, but a finding that one is met is sufficient to find a violation of the Fourth
Amendment.

       As defendant argues, this matter is easily resolved.4 A search for purposes of the Fourth
Amendment occurred in this case because “the officers learned what they learned only by
physically intruding on [defendant’s] property [his computer] to gather evidence [which] is
enough to establish that a search occurred.” Jardines, 565 US at __; 133 S Ct at 1417. It can
hardly be doubted that a computer, which can contain vast amounts of personal information in
the form of digital data, is an “effect,” US Const, Am IV, and a “possession,” Const 1963, art 1,
§ 11, within the meaning of the constitutional proscription against unreasonable searches and
seizures. See People v Smith, 420 Mich 1, 20; 360 NW2d 841 (1984) (opining that as used in the
two constitutional provisions, “ ‘possessions’ and ‘effects’ are virtually identical in meaning”
and therefore there exists no reason to treat those provisions differently).

        The record evidence also shows that only at the command of the police did the Best Buy
employee physically take the hard drive to defendant’s computer (thus, a trespass on defendant’s
“effects”) and attach it to a store computer in order to gather evidence of child pornography.
Since the officers did not have a search warrant to do so, and no exception to the warrant
requirement applies, the circuit court correctly held that a warrant was required before police
directed the Best Buy employee to attach the hard drive to another computer for purposes of
searching the hard drive for evidence. Having reached this conclusion, there is no need to
determine whether defendant also had a reasonable expectation of privacy in the information
contained in the computer. Jardines, 565 US at ___; 133 S Ct at 1417, citing Jones, 565 US at
___; 132 S Ct at 951-952.

        Our conclusion that it was necessary for the police to obtain a search warrant before
exceeding the scope of the private search is further buttressed by the decision in Jones. In Jones,
government agents tracked the movements of a suspected drug trafficker by placing an electronic
Global-Positioning-System (GPS) device on the undercarriage of a vehicle registered to the
suspect’s wife while it was parked in a public parking lot. Jones, 565 US at ___; 132 S Ct at
948. Jones was later charged with, among other offenses, conspiracy to distribute and possess
with intent to distribute five kilograms or more of cocaine. Id. The district court denied Jones’s
motion to suppress the GPS evidence, finding that one “ ‘traveling in an automobile on public
thoroughfares has no reasonable expectation of privacy in his movements from one place to
another.’ “ Id. (citation omitted). The United States Court of Appeals for the District of
Columbia Circuit reversed Jones’s conviction “because of admission of the evidence obtained by
warrantless use of the GPS device . . . .” Id. at 949. The United States Supreme Court affirmed,
holding that attaching the GPS tracking device to an individual’s vehicle, and thereby monitoring
the vehicle’s movements on public streets, constituted a search or seizure within the meaning of
the Fourth Amendment. Id. at 948-949.


4
  As Jardines says straight forward cases should be. See Jardines, 565 US at __; 133 S Ct at
1417 (“One virtue of the Fourth Amendment’s property-rights baseline is that it keeps easy cases
easy.”).

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        Justice Scalia, writing for the Court, noted that it was “beyond dispute that a vehicle is an
‘effect’ as that term is used in the [Fourth] Amendment,” id. at 949 (citation omitted), and added
that “[b]y attaching the [GPS] device to the Jeep, officers encroached on a protected area,” id. at
952. “The Government physically occupied private property for the purpose of obtaining
information. We have no doubt that such a physical intrusion would have been considered a
‘search’ within the meaning of the Fourth Amendment when it was adopted.” Id. at 949 (citation
omitted). Consequently, because the government obtained information by physically intruding
on a constitutionally protected area, the Court concluded a search within the protection of the
Fourth Amendment had occurred. Id. at 950 n 3. Hence, when the government commits a
trespass on “houses,” “papers” or “effects” (or invades a Katz reasonable invasion of privacy) for
the purpose of obtaining information, such a trespass or invasion of privacy is a search within the
meaning of the Fourth Amendment. Id. at 951 n 5.

                                       C. CONCLUSIONS

        In sum, we hold that under the Fourth Amendment as reinforced by Jardines and Jones a
personal computer storing personal information in the form of digital data must be considered
defendant’s “effect” under the Fourth Amendment, and “possession” under the Michigan
Constitution, see Const 1963, art 1, § 11. To access the data and obtain information from
defendant’s computer, his “effect” or “possession,” the Best Buy employees as directed by the
police physically attached another device to its hard drive. Such action was a trespass—a search
under the Fourth Amendment and Const 1963, art 1, § 11—because the government physically
intruded defendant’s property to obtain information. Jones, 565 US at ___; 132 S Ct at 949-953;
see also Smith, 420 Mich at 7 n 2, 18-20. The police did not obtain a warrant to conduct the
search and the prosecution’s brief offers no exception to the warrant requirement to justify the
police’s action.

       As the circuit court ruled, “[a] search and seizure without a warrant is unreasonable per se
and violates the Fourth and Fourteenth Amendments of the United States Constitution and Const
1963, art 1, § 11, unless shown to be within one of the exceptions to the rule.” People v Wagner,
114 Mich App 541, 546-547; 320 NW2d 251 (1982) (citation omitted); see also Riley v
California, ___ US ___; 134 S Ct 2473, 2482, 2493; 189 L Ed 2d 430 (2014) (“[T]he warrant
requirement is an important working part of our machinery of government, not merely an
inconvenience to be somehow ‘weighed’ against the claims of police efficiency”) (some internal
quotation marks and citation omitted), and Katz, 389 US at 357 (“Over and again this Court has
emphasized that the mandate of the (Fourth) Amendment requires adherence to judicial
processes, and that searches conducted outside the judicial process . . . without prior approval by
judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a
few specifically established and well-delineated exceptions.”) (Citations and quotation marks
omitted). Consequently, we conclude that the police search in this case without a warrant or
applicable exception to the warrant requirement, was per se unreasonable under the Fourth
Amendment and Const 1963, art 1, § 11.

       Affirmed.

                                                              /s/ Jane E. Markey
                                                              /s/ Kurtis T. Wilder
                                                              /s/ Christopher M. Murray
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