Filed 10/9/14 unmodified opinion attached

                               CERTIFIED FOR PUBLICATION

             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                  FIRST APPELLATE DISTRICT

                                            DIVISION TWO


THE PEOPLE,                                            A138712
        Plaintiff and Respondent,
                                                       (Mendocino County Super Ct.
v.                                                     No. SCTMCRCR 11-19131)
MICHAEL E.,
                                                     ORDER MODIFYING OPINION
        Defendant and Appellant.                     NO CHANGE IN JUDGMENT

THE COURT:
        It is ordered that the opinion filed herein on October 3, 2014, be modified as
follows:

        1.       On page 1, in the caption and in the first sentence, appellant’s full name is
                 replaced with Michael E. All further references to the appellant’s first and
                 last name are replaced with Michael E.

        There is no change in judgment.




Dated: _________________                              _______________________________
                                                                             Kline, P.J.




                                                 1
Trial Court:                Mendocino County Superior Court

Trial Judge:                Clayton L. Brennan

Attorney for Appellant:     Maria Leftwich
                            By appointment of the Court of Appeal
                            under the First District Appellate Project

Attorneys for Respondent:   Kamala D. Harris
                            Attorney General of California

                            Dane R. Gillette
                            Chief Assistant Attorney General

                            Gerald A. Engler
                            Senior Assistant Attorney General

                            Eric D. Share
                            Supervising Deputy Attorney General

                            Ronald E. Niver
                            Deputy Attorney General




                              2
Filed 10/3/14 (unmodified version)
                                CERTIFIED FOR PUBLICATION

             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FIRST APPELLATE DISTRICT

                                          DIVISION TWO


THE PEOPLE,
        Plaintiff and Respondent,
                                                    A138712
v.
MICHAEL SHAWN EVANS,                                (Mendocino County Super Ct.
                                                    No. SCTMCRCR 11-19131)
        Defendant and Appellant.


        Appellant, Michael Shawn Evans, was charged with possession of material
depicting a person under the age of 18 engaging in or simulating sexual conduct, a
felony. (Pen. Code, § 311.11, subd. (a).) After his motion to suppress evidence was
heard and denied, appellant entered a plea of guilty. The trial court suspended imposition
of sentence and placed appellant on probation for three years subject to specified terms
and conditions.
        The sole issue presented is whether, as appellant claims, the trial court erred in
denying his motion to suppress video files found in a search of his computer because the
warrantless search conducted by the police exceeded the scope of a prior private search
and therefore violated “a subjective expectation of privacy that society recognizes as
reasonable.” (Kyollo v. United States (2001) 533 U.S. 27, 33.) We conclude that the
police’s subsequent search of appellant’s computer did exceed the scope of the private
search and that the trial court therefore erred in denying appellant’s motion to suppress.
                            FACTS AND PROCEEDINGS BELOW
        On September 27, 2011, appellant brought his computer to Sage’s Computer in
Fort Bragg for servicing. In the course of working on the computer, Sage Statham
viewed images on the computer of what appeared to him “to be underage girls engaged in

                                                1
sexual activity.” Statham felt it appropriate to call the Fort Bragg Police Department to
inquire whether these materials were “something that they should be looking at.” Officer
Brian Clark, who responded to the phone call and viewed the files at Statham’s computer
repair shop, stated that although the girls in the photos he viewed were posing in a sexual
manner, none of them were nude or “engaging in sexual activity or simulating any sexual
activity.”
       Indicating he did not consider the images pornographic, Clark asked Statham
whether he “could search through and look at” anything else in the computer. After
further examining appellant’s computer files, Statham found video files he had not
previously noticed. When directed by Officer Clark to open these files, Statham tried to
but was unable to do so. Statham was, however, able to put the video files on a USB
flash drive,1 which he gave to Officer Clark. Officer Clark took the flash drive to the
Fort Bragg Police Department. When he was unable to open the files on his own
computer, Clark gave the flash drive to Sergeant Lee, who was able to open and view the
videos it contained. Lee informed Clark that he considered the videos “juvenile
pornographic material.” Clark, who also viewed the videos, described them as depicting
“[f]emale juveniles engaged in sexual activity.” The next day appellant’s computer was
seized by Officer Lopez.
       On October 12, 2012, after he had waived a preliminary hearing, appellant filed a
motion to suppress the evidence seized from his computer and also a demand that the
People produce at the suppression hearing “any and all search warrants and arrest
warrants relied upon by the prosecution to justify the searches of [his] property.” The
district attorney maintained that the motion to suppress lacked merit “for two independent
reasons. First, the evidence was not obtained by [Sage Statham] illegally, and hence the
Fourth Amendment does not apply. Second, [appellant’s] expectation of privacy was

       1
         A “flash drive” is “a data storage device that uses flash memory; specifically:
a small rectangular device that is designed to be plugged directly into a USB port on a
computer and is often used for transferring files from one computer to another.”
(http://www.merriam-webster.com/dictionary/flash%20drive)


                                             2
destroyed once Statham as a private citizen[] made the search and revealed his findings to
the police; hence any additional investigation by the police of additional ‘folders’ on that
same computer was not the fruit of any poisonous tree.”2 At no time prior to the
challenged searches of appellant’s computer had the police obtained a search warrant.3
       For reasons later described, the trial court denied appellant’s motion to suppress.
                                      DISCUSSION
       The legal question presented in this case is whether the trial court erred in
determining that the searches of appellant’s computer that took place after Officer Clark
arrived at Statham’s repair shop were within the scope of Statham’s prior search of
appellant’s computer.
                                I. Trial Court Background
       The trial court’s factual findings, set forth in the ruling denying the motion to
suppress, and not challenged, are as follows:
       “1. Before calling the police, Statham had viewed only the photographic images
of juveniles wearing little clothing and posing inappropriately.



       2
         The two reasons—which are related, not independent—assume, as was the case,
that Officer Clark’s search was not made pursuant to a warrant. Nevertheless, the district
attorney’s written opposition to the motion to suppress confuses this issue by initially
arguing that the motion to suppress was “procedurally defective” because the evidence at
issue was seized pursuant to a search warrant, which required appellant to file a “Franks
motion” pursuant to Franks v. Delaware (1978) 438 U.S. 154, 156, alleging specific
misstatements or omissions in the affidavit, which he has not done.”
       3
          Officer Clark apparently sought a warrant to conduct a search of the entire
contents of the computer shown him by Statham, but not until after he had viewed the
videos on the flash drive. Asked why he did not seek a warrant before he directed
Statham to make a more thorough search or before he obtained and the police searched
the flash drive, Clark stated that he “needed to establish if I had probable cause to get a
search warrant.” Clark did not believe the search warrant was ever executed, but thought
the computer was sent to the Department of Justice. The record contains a copy of what
appears to be the warrant Officer Clark referred to, but it does not appear to have been
served and, in any case, the affidavit in support of the warrant states that the affiant had
previously viewed the evidence appellant later sought to suppress.


                                              3
       “2. The images of the juveniles were sexually suggestive, but not necessarily
pornographic.
       “3. Statham and Officer Clark happened upon the video files while Statham was
trying to show Clark the photographic images that caused him to contact the police in the
first place.
       “4. Statham had not seen the video files nor tried to open them prior to meeting
with Officer Clark.
       “5. Officer Clark directed Statham to open the video files during their meeting.
       “6. The sexually explicit titles of the video files were discovered only after
Officer Clark directed Statham to open the video files.”
       Relying on People v. Wilkinson (2008) 163 Cal.App.4th 1554 (Wilkinson), which
adopted portions of the analysis employed in United States v. Runyan (5th Cir. 2001) 275
F.3d 449 (Runyan), the trial court concluded “that the record sufficiently establishes that
Statham showed Officer Clark the photo images that Statham had viewed already, and
that Clark’s viewing of those photo images was within the scope of the private search and
therefore does not implicate the Fourth amendment. As to the video files, the viewing of
those images expanded the private search and constituted a governmental search.”
Nevertheless, based on its analyses of Wilkinson and Runyan, the trial court went on to
find that the governmental intrusion was “not problematic under the Fourth
Amendment.”4
       The trial court acknowledged that unlike Runyan, where the public searcher
examined computer discs that had previously been searched by a private party who found
images that were unquestionably pornographic, the images that prompted Statham to
contact the police were not pornographic. As the court stated, the images Statham found
were “inappropriate, would justifiably raise suspicion, and were obviously offensive to
Statham. However, it is not at all clear that these images were themselves illegal.” The
court felt this fact “raises an interesting question; namely, would a government search be

       4
           We shall discuss Wilkinson and Runyan in detail in part II., post, of this opinion.


                                               4
justified if the images found on Evans’ computer were patently legal.” Without overtly
answering that question, the court rhetorically inquired “would Statham be justified in
calling Officer Clark over to view the entire contents of Evans computer? Put another
way, does a person completely forfeit their [sic] expectation of privacy in the contents of
their computer when they take it to the store to get repaired?” The trial judge stated that
the answer to his rhetorical question lay “in the fact that Evans only had a reasonable
expectation of privacy in the contents of his computer’s hard-drive. Evans did not create
a confidential relationship with Statham akin to an attorney-client relationship when he
entrusted his computer to Statham. Thus, any reasonable expectation of privacy [he] had
in the content of his hard-drive would be eroded in proportion to any legitimate suspicion
arising from what Statham discovered in the course of working on the computer. If all
Statham found were images of kids riding a pony at a birthday party, it would be
reasonable for Evans to expect the content of his computer would not be shared with law
enforcement. However, this expectation is not so reasonable when the images are such as
to cause Statham to believe in good faith that he has discovered child pornography. Nor
is it reasonable for Evans to demand that Statham conclusively determine the images
meet the legal definition of child pornography before involving the police. . . . There is no
requirement that citizen informants validate their suspicions of criminal conduct before
reporting them to the police. By turning his computer over to Statham, Evans diminished
the scope of his reasonable expectations to privacy. Figuratively, he was ‘hanging his
dirty laundry out to dry’ by handing it over to a third party he knew was going to take a
look at it. The discovery of the sexually charged images of children only further eroded
his expectation of privacy. Under these circumstances, it was not unreasonable for
Statham to involve law enforcement.”
       For the foregoing reasons, the trial court concluded that “[Officer] Clark’s
searches of the videos (both when he first met with Statham, and later at the [Fort Bragg
Police Department]), were simply more thorough searches of the hard-drive ‘container’
that Statham had already opened. Evans’ expectation of privacy in his hard-drive, which
included the video files, had already been frustrated when he turned his computer over to


                                             5
Statham. Such searches are not in violation of the 4th Amendment, and thus, suppression
of the videos is not mandated.”
                                     II. Legal Analysis
The Standard of Review
       “In ruling on a motion to suppress, the trial court (1) finds the historical facts, (2)
selects the applicable rule of law, and (3) applies the latter to the former to determine
whether the rule of law as applied to the established facts is or is not violated.
[Citations.] [¶] The court’s resolution of the first inquiry, which involves questions of
fact, is reviewed under the deferential substantial-evidence standard. [Citations.] Its
decision on the second, which is a pure question of law, is scrutinized under the standard
of independent review. [Citations.] Finally, its ruling on the third, which is a mixed
facts-law question that is however predominantly one of law, viz., the reasonableness of
the challenged police conduct, is also subject to independent review. [Citations.] The
reason is plain: ‘it is “the ultimate responsibility of the appellate court to measure the
facts, as found by the trier, against the constitutional standard of reasonableness.” ’ ”
(People v. Williams (1988) 45 Cal.3d 1268, 1301, abrogated on another ground in People
v. Guiuan (1998) 18 Cal.4th 558, 560-561, quoting People v. Loewen (1983) 35 Cal.3d
117, 123. )
       Because the challenged search was conducted without a warrant, the burden is on
the government to prove that the search does not violate the Fourth Amendment. Stated
differently, the warrantless search is presumptively unreasonable and therefore
presumptively unconstitutional. (United States v. Jacobsen (1984) 466 U.S. 109, 114
(Jacobsen).) The sole justification the People offer for the warrantless search is that it
did not exceed the scope of the prior search by Statham, and therefore is not subject to the
Fourteenth Amendment. According to the People, appellant lost any expectation of
privacy when he turned his computer over to Statham.
Relevant Legal Principles
       “It is well-settled that when an individual reveals private information to another,
he assumes the risk that his confidant will reveal that information to the authorities, and if


                                               6
that occurs the Fourth Amendment does not prohibit governmental use of that
information. Once frustration of the original expectation of privacy occurs, the Fourth
Amendment does not prohibit governmental use of the now-nonprivate information . . . .
The Fourth Amendment is implicated only if the authorities use information with respect
to which the expectation of privacy has not already been frustrated. In such a case the
authorities have not relied on what is in effect a private search, and therefore
presumptively violate the Fourth Amendment if they act without a warrant.” (Jacobsen,
supra, 466 U.S. at pp. 117-118, fn. omitted; accord Walter v. United States (1980) 447
U.S. 649, 657 (plur. opn. of Stevens, J.) (Walter).) “[A]dditional invasions of . . . privacy
by the Government agent must be tested by the degree to which they exceeded the scope
of the private search.” (Jacobsen, at p. 115.)5
       In Wilkinson, supra, 163 Cal.App.4th at page 1559, in which the Third District
Court of Appeal addressed the question of when police officers exceed the scope of a
private search, and on which the trial court in this case relied, the defendant’s roommate,
Jessica Schultze, and her boyfriend, Harry Sadler, found signs that led them to believe the
defendant was using a webcam attached to Schultze’s computer to record Schultze and
Sadler together in Schultze’s bedroom. They therefore complained to police that the
defendant was recording them surreptitiously. (Ibid.) When officers arrived at the house,
the defendant refused to consent to a search of his room. After briefly detaining the
defendant, Officer Walker told Schultze and Sadler that the police lacked probable cause
to arrest him. When Sadler asked if he could go into the defendant’s room, Officer
Walker said, “ ‘Well you can do whatever you want. It’s your apartment. . . . But keep
in mind, you cannot act as an agent of my authority. . . .” Walker also said that the
defendant had asked that Schultze and Sadler not enter his room. (Id. at pp. 1559-1560.)

       5
          In Jacobsen, employees of a private freight carrier opened a damaged package
and saw plastic bags of white powder inside a closed tube. The Supreme Court held that
a federal agent’s subsequent removal and testing of a trace of powder did not violate the
Fourth Amendment, in light of, inter alia, the private employees’ prior search of the tube
and the fact that the suspicious nature of the material made it virtually certain that the
substance tested was contraband. (Jacobsen, supra, 466 U.S. at pp. 111, 125.)


                                              7
       After the officers left, Sadler went into appellant’s room to look for more
evidence, and picked up about 15 or 20 compact discs he found strewn around the room.
Viewing several on Schultze’s computer he found “images of himself and Schultze
‘hanging out,’ ‘undressing,’ and ‘being naked,’ with some sexual content but no images
of them having sexual intercourse.” (Wilkinson, supra, 163 Cal.App.4th at p. 1560.)
Sadler then returned to the defendant’s room, opened drawers, and took all the writable
compact discs he could find. (Ibid.) Sadler told Officer Walker of the additional
evidence he had found and showed him images on two of the discs he had already
viewed. Walker said he would need more explicit images of Sadler and Schultze having
sexual intercourse, and Sadler looked through seven to ten more discs to find such
images. In the end, Walker took 36 compact discs Sadler had found in the defendant’s
bedroom to the police station. After another police officer, Detective Vigon, viewed
several of the images, which included some showing Sadler and Schultze “actually
having sex,” Vigon interviewed the defendant, who admitted obtaining the images from
Schultze’s computer and who also signed a consent form allowing the police to search his
room. (Id. at pp. 1560-1561.)
       The trial court denied the defendant’s motion to suppress on the grounds, first, that
the Fourth Amendment was not implicated by Sadler’s private search, which Officer
Walker had not authorized. (Wilkinson, supra, 163 Cal.App.4th at p. 1561.) Second,
with respect to Officer Walker’s viewing of the images on the compact discs, the trial
court found that it was not clear from the record whether Officer Walker viewed more of
the compact discs than Sadler had viewed. “ ‘So, the question I guess is still a little bit
open, whether or not that is exceeding the scope of the search if, in fact, [Officer] Walker
took all of the tapes, although he did not view them with Sadler prior to confiscating
them and using them, but certainly conceptually, if Sadler is showing [Officer] Walker
some of the tapes that Sadler confiscated from [the defendant], and those tapes at least
consist of these images from which a violation occurs, then f[or] my purposes, I don’t see
a violation of the [F]ourth [A]mendment for this hearing, because the images at least I
viewed, were the ones that were shown to Walker by Sadler.’ ” (Id. at pp. 1561-1562.)


                                              8
       The Third District Court of Appeal reversed.
       Agreeing that Officer Walker did not encourage, instigate, or initiate Sadler’s
initial search and seizure of the compact discs, or Sadler’s viewing of some discs after the
police had taken the defendant from the premises, the appellate court rejected the
contention that Sadler acted as an agent for the police in searching the defendant’s room
and in his initial viewing of the defendant’s compact discs. (Wilkinson, supra, 163
Cal.App.4th at pp. 1564-1569.) The Court of Appeal also agreed that Sadler’s search was
a private search, and that Officer Walker’s viewing of the images that Sadler had already
seen did not exceed the scope of the private search, and therefore did not violate the
Fourth Amendment. (Wilkinson, at pp. 1563, 1569.)
       The Court of Appeal then addressed whether “the opening and viewing of images
on additional compact discs by Sadler and Officer Walker, at Officer Walker’s direction
(to the extent it may have occurred), and the subsequent viewing of images by Detective
Vigon (to the extent he may have looked at discs Sadler had not previously viewed),
constituted warrantless governmental searches implicating the Fourth Amendment for
which the People fail to show any legal justification.” (Wilkinson, supra, 163
Cal.App.4th at p. 1563.)6 Finding no California case on point and no consensus among
the federal courts that had addressed the issue, the Wilkinson court found instructive the
opinion in Runyan, supra, 275 F.3d 449, which “held that police officers exceed the
scope of a private search when they fail to confine their examination of the contents of
computer discs to the discs the private searcher examined.” (Wilkinson, at p. 1570, citing

       6
          The People’s argument was that “ ‘[w]hile [defendant] may subjectively have
expressed an interest in keeping the disks private by keeping them in his room and asking
people to stay out, the voyeuristic images are not the kind of material that society is
willing to recognize as a legitimate privacy interest.’ ” (Wilkinson, supra, 163
Cal.App.4th at p. 1563.) The court rejected this argument, which it characterized as
“startling,” “inasmuch as acceptance of it would largely obliterate the Fourth
Amendment, because whenever a criminal prosecution is premised on contraband
discovered during a warrantless search, the search that led to discovery of the contraband
could always be justified on the ground the defendant did not have a legitimate
expectation of privacy in the contraband.” (Ibid.)


                                             9
Runyan, supra, 275 F.3d 449; Annot., Validity of Search or Seizure of Computer,
Computer Disk, or Computer Peripheral Equipment (2000) 84 A.L.R.5th 1; and Kerr,
Searches and Seizures in a Digital World (2005) 119 Harv. L.Rev. 531.)
       Quoting Runyan, the Wilkinson court noted that the defendant in Runyan, who was
charged with possession of child pornography, “argued the police violated the Fourth
Amendment by a warrantless examination of tangible materials, including computer
discs, taken from his property by his wife (from whom he was separated). [Citation.]
The police looked at the contents of a greater number of discs than the wife did during
her private search. The [Runyan] court accepted the parties’ stipulation that the computer
discs were closed containers. [Citation.] The court recognized that a police viewing of
items following a search by a private citizen does not constitute a search within the
meaning of the Fourth Amendment as long as the view is confined to the scope and
product of the initial private search. [Citation.] [¶] The Runyan court went on to
explain, however, that ‘[Jacobsen, supra, 466 U.S. 109, at page 120] emphasized that the
policie’s actions in that case were unproblematic from a Fourth Amendment perspective
because their actions “enabled . . . [them] to learn nothing that had not previously been
learned during the private search.” [Citation.] Thus, under Jacobsen, confirmation of
prior knowledge does not constitute exceeding the scope of a private search. In the
context of a search involving a number of closed containers, this suggests that opening a
container that was not opened by private searchers would not necessarily be problematic
if the police knew with substantial certainty, based on the statements of the private
searchers, their replication of the private search, and their expertise, what they would find
inside. Such an “expansion” of the private search provides the police with no additional
knowledge they did not already obtain from the underlying private search and frustrates
no expectation of privacy that has not already been frustrated.’ [Citation.]” (Wilkinson,
supra, 163 Cal.App.4th at pp. 1570-1571, citing Runyan, supra, 275 F.3d at pp. 452-453,
456, 458-459, 463.)
       Continuing to quote Runyan, the Wilkinson court stated as follows: “ ‘The
guideline that emerges from the above analysis is that the police exceed the scope of a


                                             10
prior private search when they examine a closed container that was not opened by the
private searchers unless the police are already substantially certain of what is inside that
container based on the statements of the private searchers, their replication of the private
search, and their expertise. This guideline is sensible because it preserves the competing
objectives underlying the Fourth Amendment’s protections against warrantless police
searches. A defendant’s expectation of privacy with respect to a container unopened by
the private searchers is preserved unless the defendant’s expectation of privacy in the
contents of the container has already been frustrated because the contents were rendered
obvious by the private search. Moreover, this rule discourages police from going on
“fishing expeditions” by opening closed containers. Any evidence that police obtain from
a closed container that was unopened by prior private searchers will be suppressed
unless they can demonstrate to a reviewing court that an exception to the exclusionary
rule is warranted because they were substantially certain of the contents of the container
before they opened it.” (Wilkinson, supra, 163 Cal.App.4th at p. 1571, quoting Runyan,
supra, 275 F.3d at pp. 463-464, italics added.)
       After its extensive discussion of the analysis in Runyan, the Wilkinson court
rejected the People’s argument that “there was no expansion of the private search because
the additional images Officer Walker viewed were just ‘more evidence of the same
crimes’ and therefore did not harm defendant.” (Wilkinson, supra, 163 Cal.App.4th at
p. 1573.) “As in Runyan, however, neither the police (Officer Walker) nor the private
searcher (Sadler) could have had a substantial certainty about the contents of any of the
36 compact discs taken from defendant’s room. The discs on their face did not indicate
their contents. The fact that the discs not previously viewed by Sadler were found in the
same location (defendant’s room) as the discs Sadler did examine was insufficient to
establish the requisite substantial certainty.” (Wilkinson, at p. 1573.) The Wilkinson
court therefore held that, “as to any compact discs not viewed during the private search,
Officer Walker’s subsequent viewing of images on those discs, which Sadler showed
Officer Walker at his direction, constituted a warrantless government search triggering
the Fourth Amendment. The People offer no legal justification for that warrantless


                                             11
search. Accordingly, contrary to the trial court’s conclusion, an illegal search did occur
in this case.” (Ibid., fn. omitted.) Likewise, the court held that, “[b]ecause the People
failed to show that Detective Vigon’s viewing was limited to discs that had been
previously viewed during the private search, we conclude that Detective Vigon’s viewing
of the discs was an illegal search also.” (Id. at pp. 1573-1574.)
       Most of the pertinent federal cases take the position that police exceed the scope of
a prior private search by examining containers or other materials that were not examined
by the private searcher. (See, e.g., United States v. Rouse (8th Cir. 1998) 148 F.3d 1040,
1041 (Rouse); United States v. Kinney (4th Cir. 1992) 953 F.2d 863, 866; United States v.
Donnes (10th Cir. 1991) 947 F.2d 1430, 1434 (Donnes); United States v. Barth (W.D.
Tex. 1998) 26 F.Supp.2d 929, 937 (Barth).)
       The Runyan court discerned tension between these cases. (Runyan, supra, 275
F.3d at pp. 458, 462, citing Donnes, supra, 947 F.2d at 1436; and United States v.
Kinney, supra, 953 F.2d at p. 866), and the holding in United States v. Bowman (8th Cir.
1990) 907 F.2d 63 (Bowman). In Bowman, an airline employee opened an unclaimed
suitcase containing five identical bundles. After opening one bundle and finding a white
powdery substance wrapped in plastic and duct tape, he contacted a federal narcotic
agent. The agent, who identified the opened bundle as a kilo brick of cocaine, then
opened the others, which contained the same thing. The Bowman court (which did not
determine whether the bundles were “containers” as that term has been used in the
context of Fourth Amendment jurisprudence) found that the warrantless search of the
remaining identical bundles was proper because the opened bundle “ ‘ “spoke volumes as
to [the] contents [of the remaining bundles]—particularly to the trained eye of the
officer.” ’ ” (Id. at p. 65.)
       The Runyan court harmonized Bowman with cases, such as Donnes and Kinney,
which hold that the police exceed the scope of a private search when they open a
container that had not been examined by the private searcher, by looking to the Supreme
Court’s opinion in Jacobsen. As Runyan noted, Jacobsen “emphasized that the police’s
actions in that case were unproblematic from a Fourth Amendment perspective because


                                             12
their actions ‘enabled . . . [them] to learn nothing that had not previously been learned
during the private search.’ ” (Runyan, supra, 275 F.3d at p. 463, quoting Jacobsen,
supra, 466 U.S. at p. 120.) Runyan reasoned that “Jacobsen harmonizes Bowman with
Kinney and Donnes” because, “[b]ased on their inspection of the one bundle opened by
the private searchers, their own expertise, and the apparent similarity of the bundles, the
police in Bowman were substantially certain that the other four unopened bundles in the
suitcase also contained kilos of cocaine. Thus, they did not exceed the scope of the
private search in simply confirming this substantial certainty, despite the fact that they
looked at additional containers (or additional items within a container) that the private
searchers did not examine.” (Runyan, at p. 463; accord, Rann v. Atchison (7th Cir. 2012)
689 F.3d 832, 836 [finding no Fourth Amendment violation even if police searched
digital media devices more thoroughly than private searchers, since private searchers
knew contents of devices when they delivered them to police, and police were therefore
“ ‘substantially certain’ ” the devices contained child pornography, citing Runyan];
United States v. Oliver (5th Cir. 2011) 630 F.3d 397, 408 [although private searcher did
not search defendant’s notebook, police did not exceed scope of private search when
searching notebook because its contents were obvious].) In contrast, in Kinney and
Donnes, “by opening the additional container, [the police] were not simply confirming
knowledge gained by private searchers.” (Runyan, at p. 463.)
       Based on the foregoing analysis, the Runyan court held that the police exceeded
the scope of the private searches in that case “when they examined disks that the private
searchers did not examine.” (Runyan, supra, 275 F.3d at p. 464.)
       Turning to the case before us, the pornographic videos found by the police in the
flash drive are far from “identical” to the images found by Statham “of juveniles wearing
little clothing and posing inappropriately,” which the trial court described as “sexually
suggestive, but not necessarily pornographic.” Moreover, there was nothing about the
unopened video files, even to the trained eye, to suggest they were pornographic.
Although the titles may have suggested they were pornographic, the trial court expressly
found that “[t]he sexually explicit titles of the video files were discovered only after


                                             13
Officer Clark directed Statham to open the video files.” Thus, like the situations in
Runyan and Wilkinson and unlike the situation in Bowman, the police were not in this
case “substantially certain of the contents” of the video files before they opened them.
(Wilkinson, supra, 163 Cal.App.4th at p. 1571, quoting Runyan, supra, 275 F.3d at pp.
463-464.)
       The Court of Appeal in Runyan did not, however, end its analysis with the holding
relied on by the Court of Appeal in Wilkinson. In a portion of the opinion the trial court
here relied upon, which went beyond the holdings of other federal cases, the Runyan
court dismissed the defendant’s contention that the police also exceeded the scope of the
private search in that case “because they examined more files on each of the disks than
did the private searchers,” and held that “the police do not exceed the scope of a prior
private search when they examine the same materials that were examined by the private
searchers, but they examine these materials more thoroughly than did the private parties.
[Citation.]” (Runyan, supra, 275 F.3d at p. 464, citing United States v. Simpson (11th
Cir. 1990) 904 F.2d 607, 610 (Simpson).)
       In reaching this conclusion, the Runyan court rejected the reasoning of the Eighth
Circuit in Rouse, supra, 148 F.3d at pages 1041-1042, which held that the police
exceeded the scope of a private search in finding and inspecting more items within an
airline passenger’s bag than the airline employees had found in their prior private search,
and agreed with the Eleventh Circuit’s determination in Simpson that government agents’
search of a box containing pornographic videos and magazines “ ‘did not exceed the
scope of the prior private searches for Fourth Amendment purposes simply because they
took more time and were more thorough’ ” than the private searchers. (See Runyan,
supra, 275 F.3d at p. 461, citing Simpson, supra, 904 F.2d at p. 610.)7 Runyan

       7
         In Simpson, a United States Attorney and F.B.I. agent viewed the box containing
the pornographic material more thoroughly than the Federal Express employees from
whom they received it; however, the court emphasized that “[t]he box’s contents had
already been examined [by the Federal Express employees], their illicit character had
been determined, and they were open for viewing by the time the Assistant United States
Attorney and the F.B.I. [a]gent arrived on the scene. Their search of the box and

                                            14
acknowledged “that the Supreme Court has long recognized that individuals have an
expectation of privacy in closed containers,” but pointed out that “an individual’s
expectation of privacy in the contents of a container has already been compromised if that
container was opened and examined by private searchers. [Citation.] Thus, the police do
not engage in a new ‘search’ for Fourth Amendment purposes each time they examine a
particular item found within the container.” (Runyan, supra, 275 F.3d at pp. 464-465
compare Rouse, supra, 148 F.3d at pp. 1041-1042; Barth, supra, 26 F.Supp.2d 929,
937.)8
         The facts of this case are strikingly different from those in both Runyan and
Simpson. As discussed, prior to contacting police, Statham saw photographic images on
appellant’s computer that Officer Clark determined were not pornographic. In addition,
Statham did not examine the materials he placed on the flash drive at any time prior to or
after contacting the police. A warrantless police search certainly cannot be undertaken
under the Fourth Amendment where, as here, the private searcher had not determined the
illicit character of any images and, further, was unable to view the materials stored in a
computer even after police directed him to open those files and to place them on a USB
flash drive. Accordingly, the subsequent search of the flash drive by Officers Clark and
Lee clearly exceeded Statham’s prior private search. (Compare Runyan, supra, 275 F.3d
at p. 465; Simpson, supra, 904 F.2d at p. 610.)
         The trial court, however, found that the materials placed by Statham in a USB
flash drive were contained in the “hard-drive” of appellant’s computer, and treated that

videotapes did not exceed the scope of the prior private searches for Fourth Amendment
purposes simply because they took more time and were more thorough than the Federal
Express agents.” (Simpson, supra, 904 F.2d at p. 610.)
         8
          In Barth, supra, 26 F.Supp.2d at page 937, a computer repairman discovered a
single image of child pornography on a computer’s hard drive. The district court rejected
the government’s argument that, once the single image was opened, the defendant lost his
reasonable expectation of privacy in the files on his hard drive. (Ibid.) The court found,
instead, that the defendant retained his reasonable expectation of privacy in the files and
the subsequent viewing and copying of the defendant’s entire hard drive therefore
exceeded the scope of the repairman’s original search. (Ibid.)


                                              15
hard drive as the functional equivalent of, or analogous to, a closed container. On these
grounds, the trial court reasoned that “[Officer] Clark’s searches of the videos . . . were
simply more thorough searches of the hard-drive ‘container’ that Statham had already
opened. Evans’ expectation of privacy in his hard-drive, which included the video files,
had already been frustrated when he turned his computer over to Statham. Such searches
are not in violation of the [Fourth] Amendment, and thus, suppression of the videos is not
mandated.”
       The trial court’s conclusion is predicated on the statements in Runyan that, as
previously discussed, in the context of a closed container search, “the police do not
exceed the private search when they examine more items within a closed container than
did the private searchers,” and that “an individual’s expectation of privacy in the contents
of a container has already been compromised if that container was opened and examined
by private searchers . . . . (Runyan, supra, 275 F.3d at pp. 464-465.) Whatever the merits
of the legal analysis in Runyan,9 neither that opinion nor any other supports the ruling of
the trial court in this case.
       The fundamental flaw in the trial court’s ruling relates to its assumption that a
computer hard drive can properly be considered a “closed container,” as that term is
sometimes used in applying the Fourth Amendment. In Runyan, the court assumed
without deciding that certain computer discs were closed containers. (Runyan, supra,
275 F.3d at p. 458) Here the putative container is not a computer disc, which contains a
relatively small amount of data, but a computer hard drive, which ordinarily contains or
connects to all the information stored in a computer. (See Barth, supra, 26 F.Supp.2d at
p. 937; cf. 2 Crim. Proc. § 3.1(h) (3d ed. 2013 [finding Rouse’s analysis “especially

       9
         Appellant maintains that Runyan conflicts with the opinion of the United States
Supreme Court in Jacobsen and the portions of the plurality opinion in Walter, supra,
447 U.S. 649 adopted in Jacobsen, claiming government examination of every file on a
compact disc will invariably enable the government to obtain a “plethora of information
that had not previously been learned during the private search.” We need not decide
whether the alleged conflict exists because, as will be seen, the trial court’s reasoning
cannot be sustained even under Runyan.


                                             16
compelling” and Runyan rule “most clearly inadequate, in those cases where the
‘container’ in question (e.g., a computer or a filing cabinet) is filled with many items,
only a few of which the private searcher examined”].)10
       Noting that a “container” has been defined as “ ‘any object capable of holding
another object,’ ” the United States Supreme Court has recently observed that “[t]reating
a cell phone as a container whose contents may be searched incident to an arrest is a bit
strained as an initial matter. [Citation]. But the analogy crumbles entirely when a cell
phone is used to access data located elsewhere, at the tap of a screen. [This] is what cell
phones, with increasing frequency, are designed to do by taking advantage of ‘cloud
computing.’ Cloud computing is the capacity of Internet-connected devices to display
data stored on remote servers rather than on the device itself. Cell phone users often may
not know whether particular information is stored on the device or in the cloud, and it
generally makes little difference. [Citation.]” (Riley v. California (2014) ___U.S.___,
134 S.Ct. 2473, 2491 (Riley), quoting New York v. Belton (1981) 453 U.S.454, 460, fn.
4.) The Court further stated: “Modern cell phones are not just another technological
convenience. With all they contain and all they may reveal, they hold for many
Americans ‘the privacies of life” [citation]. The fact that technology now allows an
individual to carry such information in his hand does not make the information any less
worthy of the protection for which the Founders fought. Our answer to the question of
what police must do before searching a cell phone seized incident to an arrest is
accordingly simple—get a warrant.” (Riley, at pp. 2494-2495.)



       10
           We also observe that, unlike the parties in Runyan, who stipulated that, for
purposes of adjudication in that case, the computer discs were closed containers, the
parties in this case never agreed that appellant’s hard drive is the functional equivalent of
a closed container, an issue that never arose during the proceedings below. Indeed, the
brief of the Attorney General takes the position that “the flash drive [not the hard drive]
constituted the container” and that “Statham had viewed images stored within that
container,” a position that conflicts not just with the trial court’s analysis but also its
specific factual finding that “Statham had not seen the video files nor tried to open them
prior to meeting with Officer Clark.”


                                             17
       Because, as the Supreme Court observed, cell phones “are in fact minicomputers”
(Riley, supra, 134 S.Ct. at p. 2489), and the search of a computer hard drive implicates at
least the same privacy concerns as those implicated by the search of a cell phone, there is
no reason to think conventional computers can any more reasonably be characterized as
containers than cell phones. Indeed, “[c]omputers are relied upon heavily for personal
and business use. Individuals may store personal letters, e-mails, financial information,
passwords, family photos, and countless other items of a personal nature in electronic
form on their computer hard drives.” (United States v. Mitchell (11th Cir. 2009) 565 F.3d
1347, 1351, 1352 [describing “the hard drive of a computer, which ‘is the digital
equivalent of its owner’s home, [as] capable of holding a universe of private
information’ ”].)
       The Supreme Court’s analysis in Riley highlights the dangers inherent in lawyers
and judges cavalierly applying established legal theories to new technologies, without
carefully exploring the factual differences between such technologies and the objects
traditionally found appropriate for those theories’ application. (See Riley, supra, 134
S.Ct. at p. 2491.) As the Tenth Circuit Court of Appeals has observed: “ ‘Since
electronic storage is likely to contain a greater quantity and variety of information than
any previous storage method, . . . [r]elying on analogies to closed containers or file
cabinets may lead courts to ‘oversimplify a complex area of Fourth Amendment doctrines
and ignore the realities of massive modern computer storage.’ [Citation.]” (United
States v. Carey (10th Cir. 1999) 172 F.3d 1268, 1275; see also Lessig, The Path of
Cyberlaw (1995) 104 Yale L.J. 1743, 1752 [urging courts to “follow the meandering
development of the common law” before “venturing too boldly” into the regulation of
cyberspace].)
       For these reasons, we hold that the trial court erred in describing the hard drive of
defendant’s computer as a closed container. Moreover, even if, as the People contend,
the flash drive may be deemed a “closed container,” as we have already discussed, the
record reflects and the trial court found that Statham did not view the materials he placed
in the flash drive before he was “directed” by Officer Clark to conduct a more thorough


                                             18
search than the one that led him to contact the police. In placing the video files in the
flash drive, Statham unquestionably “intended to assist law enforcement” and Officer
Clark “knew of and acquiesced in” the “private” search Statham undertook at Clark’s
direction. (Wilkinson, supra, 163 Cal.App.4th at pp. 1566-1567.)
       We reiterate the regnant principle articulated in Jacobsen, the opinion of the
United States Supreme Court most pertinent to this case: “that the legality of the
governmental search must be tested by the scope of the antecedent private search.”
(Jacobsen, supra, 466 U.S. at p. 116, italics added.) As Jacobsen explains, “[t]his
standard follows from the analysis applicable when private parties reveal other kinds of
private information to the authorities. . . . Once frustration of the original expectation of
privacy occurs, the Fourth Amendment does not prohibit governmental use of the now-
nonprivate information. . . . The Fourth Amendment is implicated only if the authorities
use information with respect to which the expectation of privacy has not already been
frustrated. In such a case the authorities have not relied on what is in effect a private
search, and therefore presumptively violate the Fourth Amendment if they act without a
warrant.” (Id. at pp. 117-118, fn. omitted, italics added.)
       The factual findings made in this case, which are uncontested, indisputably
establish that the government authorities have used information in which appellant’s
expectation of privacy was not frustrated by Statham’s private search. Accordingly, the
conclusions upon which the trial court based its ruling—namely, that Officer Clark’s and
Officer Lee’s searches “were simply more thorough searches of the hard-drive
‘container’ that Statham had already opened,” and that appellant’s “expectation of
privacy in his hard-drive, which included the video files, had already been frustrated
when he turned his computer over to Statham”—are wholly untenable.11 The fact that

       11
          Moreover, nothing in Runyan, supra, 275 F.3d 449, which the trial court treated
as controlling, suggests otherwise. Assuming that the computer discs in that case were
“containers,” the court concluded that the defendant “appears to have manifested his
subjective expectation of privacy in the electronic images in question by storing the
images in these ‘containers.’ ” (Id. at p. 458, citing Barth, supra, 26 F.Supp.2d 929, 936-
937 [finding that the owner of a computer manifested a reasonable expectation of privacy

                                             19
neither Statham, a computer specialist, nor Officer Clark were able to open the video files
strongly suggests appellant took precautions to maintain his privacy with respect to these
materials.
       The notions the trial court relied upon—that Statham initially “believe[d] in good
faith that he had discovered pornography,” and that appellant was, in effect, “ ‘hanging
his dirty laundry out to dry’ by handing it over to a third party he knew was going to look
at it”—beg the central question pertinent to the scope of Statham’s private search:
whether it frustrated appellant’s subjective expectation in the privacy of the materials
searched and seized by the government in this case. As we have explained, Statham’s
search did not frustrate that expectation of privacy, which is clearly one society
recognizes as reasonable.
                                      DISPOSITION
       The judgment is reversed. The matter is remanded to the trial court with
directions to vacate its ruling denying appellant’s motion to suppress and to grant the
motion.




in the data filed by storing them in a computer hard drive] and United States v. Chan
(N.D. Cal. 1993) 830 F.Supp. 531, 534-535 [analogizing data in a pager to contents of a
closed container].)


                                             20
                                 _________________________
                                 Kline, P.J.


We concur:


_________________________
Richman, J.


_________________________
Stewart, J.




A138712, People v. Evans




                            21
Trial Court:                Mendocino County Superior Court

Trial Judge:                Clayton L. Brennan

Attorney for Appellant:     Maria Leftwich
                            By appointment of the Court of Appeal
                            under the First District Appellate Project

Attorneys for Respondent:   Kamala D. Harris
                            Attorney General of California

                            Dane R. Gillette
                            Chief Assistant Attorney General

                            Gerald A. Engler
                            Senior Assistant Attorney General

                            Eric D. Share
                            Supervising Deputy Attorney General

                            Ronald E. Niver
                            Deputy Attorney General




                              22
