State v. Cardwell

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE
CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

The State, Respondent,

v.

Michael Lee Cardwell, Appellant.

Appellate Case No. 2012-213368

Appeal From Georgetown County
Edward B. Cottingham, Circuit Court Judge

Unpublished Opinion No. 2015-UP-455
Heard September 9, 2014 – Filed September 9, 2015

AFFIRMED

Melissa Ashley Fried, of Nexsen Pruet, LLC, of
Charleston; and Chief Appellate Defender Robert
Michael Dudek, of Columbia, for Appellant.

Attorney General Alan McCrory Wilson, and Assistant
Attorney General William M. Blitch Jr., both of
Columbia, for Respondent.

PER CURIAM: Michael Cardwell (Cardwell) appeals his convictions for two
counts of unlawful conduct toward a child and two counts of first-degree sexual
exploitation of a minor. Cardwell argues the circuit court erred in refusing to
suppress his co-defendant's laptop computer and a video seized from the laptop
without a search warrant. He contends that the search and seizure violated his
Fourth Amendment rights because law enforcement instructed a computer
technician to locate, play, and copy the video prior to obtaining a search warrant.
Cardwell further asserts that his constitutional rights were violated when the
Johnsonville Police Department provided the video to a Georgetown County
Sheriff's Office investigator, who viewed it prior to obtaining a warrant. We
affirm1 pursuant to Rule 220(b), SCACR, and the following authorities:

1. As to whether Cardwell had a reasonable expectation of privacy in the
disputed video file stored on his co-defendant's laptop computer: See U.S. Const.
amend. IV ("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."); S.C. Const. art. I, §10 ("The right of the people to be secure
in their persons, houses, papers, and effects against unreasonable searches and
seizures and unreasonable invasions of privacy 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, the person or thing to be seized,
and the information to be obtained."); S.C. Code Ann. § 16-3-850 (2003)
(requiring that film processors, photo finishers, and computer technicians
discovering images depicting minors "engaging in sexual conduct, sexual
performance, or a sexually explicit posture must report the name and address of the
individual requesting the development of the film, or of the owner or person in
possession of the computer to law enforcement officials in the state and county or
municipality from which the film was originally forwarded"); United States v.
Gardner, 554 Fed.Appx. 165, 167 (4th Cir. 2014) (citing Arkansas v. Sanders, 442
U.S. 753, 764–65 n.13 (1979) (plurality opinion), overruled on other grounds by
California v. Acevedo, 500 U.S. 565 (1991)) ("[S]ome containers (for example a
kit of burglar tools or a gun case) by their very nature cannot support any
reasonable expectation of privacy because their contents can be inferred from their

1
This court recently affirmed the circuit court's denial of Cardwell's co-defendant's
motion to suppress the same video file. See State v. Sarah Cardwell, Op. No. 5351
(S.C. Ct. App. filed Sept. 2, 2015) (Shearouse Adv. Sh. No. 34 at 97–102).
outward appearance."); Commonwealth v. Sodomsky, 939 A.2d 363, 369 (Pa.
Super. Ct. 2007) (finding that when defendant submitted his computer to
technicians for repair, he abandoned his privacy interest in the child pornography
stored on his hard drive); State v. Wright, 391 S.C. 436, 444, 706 S.E.2d 324, 327–
28 (2011) ("What a person knowingly exposes to the public, even in his own home
or office, is not a subject of Fourth Amendment protection." (citing Katz v. United
States, 389 U.S. 347, 351 (1967)); State v. Missouri, 361 S.C. 107, 112, 603 S.E.2d
594, 596 (2004) ("To claim protection under the Fourth Amendment of the U.S.
Constitution, defendants must show that they have a legitimate expectation of
privacy in the place searched." (citation omitted)).

2. As to whether the circuit court properly denied Cardwell's motion to
suppress when the questionable image was in plain view and the video file would
inevitably have been discovered: Nix v. Williams, 467 U.S. 431, 444 (1984) ("If the
prosecution can establish by a preponderance of the evidence that the information
ultimately or inevitably would have been discovered by lawful means[,] . . . then
the deterrence rationale has so little basis that the evidence should be received.");
Blair v. United States, 665 F.2d 500, 507 (4th Cir. 1981) ("First, if the container is
open and its contents exposed, its contents can be said to be in plain view. Second,
if a container proclaims its contents by its distinctive configuration or otherwise
and thus allows by its outward appearance an inference to be made of its contents,
those contents are similarly considered to be in plain view." (citation omitted));
Wright, 391 S.C. at 443, 706 S.E.2d at 327 ("[O]bjects falling within the plain view
of a law enforcement officer who is rightfully in a position to view the objects are
subject to seizure and may be introduced as evidence." (citation omitted)).

AFFIRMED.

WILLIAMS, GEATHERS, and MCDONALD, JJ., concur.