People v. McCavitt , 2021 IL 125550 ( 2021 )

2021 IL 125550IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 125550)
THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v.
JOHN T. McCAVITT, Appellee.
Opinion filed October 21, 2021.
JUSTICE MICHAEL J. BURKE delivered the judgment of the court, with
opinion.
Chief Justice Anne M. Burke and Justices Garman, Theis, Overstreet, and
Carter concurred in the judgment and opinion.
Justice Neville dissented, with opinion.
OPINION
¶1 The Illinois State Police obtained warrants to seize and search a personal
computer owned by defendant, John T. McCavitt, an officer of the Peoria Police
Department. The warrant at issue in this appeal authorized law enforcement to
search the computer for digital evidence of two unrelated incidents: the aggravated
criminal sexual assault of a named victim and the unauthorized video recording and
live video transmission of an unnamed victim. Defendant was tried and acquitted
of the alleged sexual assault before the unauthorized video recording was
investigated.
¶2 Following defendant’s acquittal and without seeking a new warrant, the Peoria
Police Department acquired and searched a copy of the computer’s hard drive,
uncovering evidence of the unauthorized video recording. The digital search also
uncovered child pornography, which was not mentioned in the warrant.
¶3 Based on the images, defendant was convicted of several counts of child
pornography. The appellate court reversed the judgment on the ground that the
search violated the fourth amendment (U.S. Const., amend. IV). 2019 IL App (3d)
170830, ¶ 32.
¶4 This appeal concerns the extent to which defendant’s acquittal in the sexual
assault proceedings affected his expectation of privacy in his computer data and
whether the fourth amendment required the police to obtain a new warrant before
searching the same data for evidence of another crime. The outcome turns on the
interplay of four concepts: (1) a person’s reasonable expectation of privacy in data
on an electronic storage device that is subject to search, (2) double jeopardy
principles, (3) the fourth amendment’s particularity requirement as applied to
electronic storage devices, and (4) the plain view doctrine.
¶5 In People v. Hughes, 958 N.W.2d 98, 104 (Mich. 2020) (en banc), the Michigan
Supreme Court cogently explained that a search of an electronic storage device
pursuant to a warrant must be reasonably directed at obtaining evidence relevant to
the criminal activity alleged in the warrant. A search of digital data that is directed
instead at uncovering evidence of criminal activity not identified in the warrant is
effectively a warrantless search that violates the fourth amendment absent some
exception to the warrant requirement. Id.¶6 The warrant at issue diminished defendant’s reasonable expectation of privacy
in the images and videos he stored on his computer. When defendant was acquitted
of the sexual assault, his reasonable expectation of privacy in his data relating to
that offense was restored. However, the acquittal did not resolve the portion of the
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warrant that authorized a search for digital evidence of the unauthorized video
recording. The post-acquittal computer examination was reasonably directed at
obtaining evidence of the unauthorized video recording, and the child pornography
that was uncovered during the search was admissible because the images were
found in plain view.
¶7 We hold that, under the unique facts of this case, the search that uncovered the
child pornography did not violate defendant’s fourth amendment rights. Therefore,
we affirm the circuit’s court’s order denying defendant’s motion to suppress the
images and reverse the appellate court’s judgment reversing that order.
¶8 I. BACKGROUND
¶9 This appeal is part of a series of three criminal prosecutions against defendant.
All three are based on incriminating images and video uncovered on defendant’s
computer.
¶ 10 Defendant was charged in Peoria County case No. 13-CF-741 with aggravated
criminal sexual assault (720 ILCS 5/11-1.30(a)(4) (West 2012)) and criminal
sexual assault (id. § 11-1.20(a)(1)). Following defendant’s acquittal in that case, the
Peoria Police Department launched an internal investigation of defendant, which
led to the discovery of additional incriminating images and video. The investigation
was suspended when defendant was charged. He was ultimately convicted of (1) the
unauthorized video recording of two women (Peoria County case No. 14-CF-203)
and (2) child pornography in this case (Peoria County case No. 14-CF-282).
¶ 11 A. Peoria County Case No. 13-CF-741
¶ 12 Initially, defendant was investigated for criminal sexual assault against A.K., a
female houseguest who was a friend and coworker of defendant’s live-in girlfriend,
Rachel Broquard. On July 17, 2013, the Illinois State Police obtained a warrant to
search defendant’s home for evidence of the alleged sexual assault, which
defendant did not challenge.
¶ 13 The complaint for the warrant described A.K.’s account of the events. A.K.
reported that defendant sexually assaulted her around 6 a.m. that day. A.K.,
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Broquard, and defendant had gone out the previous night to celebrate with another
coworker who was departing for graduate school. At approximately 4 a.m., A.K.,
Broquard, and defendant arrived at his residence and continued socializing. At
5:15 a.m., A.K. lay down, fully clothed, under the covers of a bed in a guest
bedroom. A short time later, she awoke facedown wearing only her bra, which was
pushed up. A.K. was in four-point restraints, and a black sleeping mask covered her
head. She heard a “snap” that she believed to be from the cap of a lubricant
container. A.K. also heard clicking noises that sounded like a camera shutter.
Defendant sexually penetrated A.K. repeatedly and then released her from the
restraints. A.K. quickly dressed, left the residence, and reported the incident.
¶ 14 The search warrant complaint alleged that digital evidence of criminal sexual
assault could be found on defendant’s cellular phone. Accordingly, the warrant
authorized the seizure of “any electronic media cable [sic] of video/audio
recording” and “any electronic storage media capable of stor[ing] pictures, audio
or video.” The warrant also authorized the seizure of any restraints that might have
been used on the victim, physical evidence resulting from the assault, and any
additional items of evidentiary value.
¶ 15 Officers of the Illinois State Police and the Peoria Police Department arrived at
defendant’s home around 8:30 p.m. to execute the warrant. They waited two hours
for defendant to answer the door and allow them inside. Defendant had called in
sick to the police department that evening and had ignored telephone calls from his
supervisors and the investigators. Defendant allegedly told Broquard that, while he
kept the officers waiting outside, he removed the four-point restraints from the
guest bedroom and placed them back under the mattress in the master bedroom.
¶ 16 The police officers seized defendant’s iPhone and his custom-built computer
tower. The iPhone was found locked in a gun safe in the basement. The computer’s
file history showed that more than 16,500 files had been recently deleted from the
hard drive. The officers seized the restraints, a black blindfold, and lubricant. They
also found a video recording system hidden inside two Kleenex tissue boxes.
¶ 17 An initial examination of the computer hard drive revealed photographs and
video of A.K. lying motionless, facedown in four-point restraints. She was wearing
only her top, which was pulled up, and a pillow covered her head. The officers
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determined that the photographs and video of A.K. had been transferred from
defendant’s iPhone to his computer.
¶ 18 The initial examination of the hard drive also revealed what appeared to be
secretly recorded video from defendant’s bathroom of an unidentified woman
stepping out of the shower. Defendant has not alleged that this initial examination
of his computer data was unlawful.
¶ 19 On July 24, 2013, the Illinois State Police obtained a second warrant, which
defendant also did not challenge. The warrant authorized “all peace officers in the
state of Illinois” to search the computer for “any and all digital images, including,
but not limited to JPG, GIF, TIF, AVI, MOV, and MPEG files” and “any evidence
of” the offenses of (1) aggravated criminal sexual assault, (2) unlawful restraint,
and (3) unauthorized video recording and live video transmission. The warrant
authorized a search of “any and all stored/deleted data to determine which particular
files are evidence or instrumentalities of criminal activity.”
¶ 20 The search warrant complaint restated A.K.’s account of the events on July 17,
2013, but A.K. was not the only victim mentioned. The complaint specifically
alleged that “[a]dditionally recovered videos display an unidentified female using
the bathroom and taking a shower. The female appears to have no knowledge she
was being recorded.” Accordingly, the warrant authorized the search of defendant’s
computer for any evidence of the crimes listed “that may be discovered from
separate incidents.”
¶ 21 Detective Jeff Avery, a computer forensics expert with the Peoria County
Sheriff’s Department, examined defendant’s computer. He removed the hard drive
and made an exact, unalterable digital copy of its contents using EnCase software.
Avery saved the copy, called the EnCase file, to his work computer. Avery
reinstalled the hard drive and returned defendant’s computer to the Illinois State
Police.
¶ 22 Avery searched the EnCase file and found images relating to the incident
involving A.K. On August 6, 2013, based on the images, the State charged
defendant in Peoria County case No. 13-CF-741 with aggravated criminal sexual
assault (720 ILCS 5/11-1.30(a)(4) (West 2012)) and criminal sexual assault (id.
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§ 11-1.20(a)(1)) of A.K. 1 A jury ultimately found him not guilty of all charges on
March 19, 2014.
¶ 23 Immediately following the not guilty verdicts, defense counsel orally requested
the return of defendant’s personal property. Counsel specifically mentioned
“collector guns” but did not ask for the computer. The trial court deferred ruling
and asked counsel to file a written motion, because the seized items were weapons.
¶ 24 B. Internal Investigation of Defendant
¶ 25 The next day, on March 20, 2014, the Peoria Police Department initiated a
formal investigation of defendant. 2 Detective James Feehan, a computer forensics
examiner with the police department, requested and received a copy of the EnCase
file from Avery.
¶ 26 On March 24, 2014, Feehan began a digital forensic analysis of the EnCase file
and uncovered two images of what he believed to be child pornography. He also
found video recordings of two unidentified women using the bathroom in
defendant’s home. Feehan suspended his search to apply for a new warrant to
further examine the EnCase file for child pornography.
¶ 27 Also on March 24, 2014, defendant filed a written motion in Peoria County case
No. 13-CF-741, the sexual assault case, requesting the return of his property. The
motion was silent as to the legal basis for the proposed disposition of defendant’s
property. On April 24, 2014, the court ordered the return of defendant’s “guns +
weapons instanter” but otherwise continued the motion. The motion was never fully
resolved, and defendant’s computer was not returned.
¶ 28 C. Peoria County Case No. 14-CF-203
¶ 29 On March 28, 2014, defendant was arrested and charged in Peoria County case
No. 14-CF-203 with two counts of unauthorized video recording (720 ILCS 5/26-
1
The July 24, 2013, warrant authorized a search for evidence of unlawful restraint—presumably
committed against A.K.—but defendant was not charged with the offense.
2
An arbitrator’s ruling and the police department’s collective bargaining agreement prohibited
an internal investigation of defendant while the criminal case was pending.
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4(a) (West 2014)) based on two incidents unrelated to the sexual assault charges.
The pending criminal charges caused the Peoria Police Department to suspend its
internal investigation of defendant.
¶ 30 The charges were based on the video recordings of two women, identified as
Rachel G. and Whitney S., who were acquaintances of defendant and Broquard.
People v. McCavitt, 2021 IL App (3d) 180399-U, ¶¶ 8-9. Defendant, using cameras
concealed in the Kleenex boxes, secretly recorded the women using his bathroom.
Defendant recorded Rachel on March 27, 2013, and recorded Whitney sometime
between May 1, 2013, and the date his computer was seized. 3 Defendant
transferred the video files to his computer.
¶ 31 D. Peoria County Case No. 14-CF-282
¶ 32 On April 1, 2014, Feehan obtained the new warrant to search the EnCase file
for additional images of child pornography, which he uncovered soon thereafter.
On April 28, 2014, the State filed a 10-count indictment, charging defendant with
7 counts of aggravated child pornography (720 ILCS 5/11-20.1B (West 2010)), a
Class 2 felony, and 3 counts of child pornography (720 ILCS 5/11-20.1 (West
2012)), a Class 3 felony, based on five images found in the EnCase file.
¶ 33 On August 15, 2014, defendant filed a motion to suppress, arguing that Feehan
had no authority to obtain and examine the contents of the EnCase file in March
2014. Defendant asserted that Feehan’s examination was a warrantless search in
violation of the fourth amendment because no criminal charges were pending at the
time of the search. He also claimed the trial court in Peoria County case No. 13-
CF-741, the sexual assault case, had erroneously failed to order the return of his
computer and all copies of the hard drive, pursuant to section 108-2 of the Code of
Criminal Procedure of 1963. See 725 ILCS 5/108-2 (West 2012).
¶ 34 Feehan testified at the suppression hearing that, as soon as he discovered the
two pornographic images, he stopped to apply for a search warrant. He explained
3
The State elected to prosecute the child pornography case first, but defendant ultimately was
convicted of the two counts of unauthorized video recording. Defendant’s convictions were affirmed
on direct appeal. McCavitt, 2021 IL App (3d) 180399-U.
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that the application process “took a couple days because we were investigating
other unlawful videotaping evidence as part of that internal investigation.” On April
1, 2014, after obtaining the new warrant, Feehan resumed his search of the EnCase
file and began looking specifically for child pornography.
¶ 35 Feehan testified that defendant had used White Canyon WipeDrive software, a
utility program for permanently deleting data from a hard drive, at 9:23 p.m. on
July 13, 2017, while the officers waited outside his home. However, Feehan was
able to reconstruct how defendant had used the computer to search, download, and
view child pornography from the Internet. Feehan referred to defendant’s work
schedule to explain that defendant accessed the child pornography when he was off
duty. Feehan recovered the file names of several permanently deleted images and
videos that were labeled with child pornography acronyms, such as “PTHC,”
meaning preteen hard core. Feehan was able to recover other files and identified
their contents as child pornography.
¶ 36 Feehan pieced together the events during the hours between the alleged sexual
assault and the computer seizure. Defendant called in sick to the police department
at 6:01 p.m. Broquard used the computer for about 10 minutes, switched it off at
6:18 p.m., and went to work. At 6:26 p.m., defendant logged on as “owner,” and
around 8:15 p.m. the police began knocking on defendant’s front door. Defendant
deleted data from the computer from 9:18 p.m. to 10:07 p.m. Defendant allowed
the police to enter around 10:30 p.m., at which time they seized the computer.
Defendant was charged for the images that Feehan found despite defendant’s
attempt to delete them permanently.
¶ 37 On cross-examination, Feehan testified that the Illinois State Police excluded
him from the initial criminal investigation of the sexual assault to avoid a potential
conflict of interest arising from Feehan and defendant sharing the same employer.
Feehan conceded that he knew defendant had been acquitted of the sexual assault
charges on March 19, 2014, and that no other charges were pending when he
received the EnCase file from Avery on March 21, 2014. Feehan confirmed that he
requested the EnCase file as part of the internal investigation even though he knew
defendant’s computer had been seized in connection with the sexual assault
prosecution.
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¶ 38 Feehan testified, however, that at the time of his search, he “knew that there
was [sic] other victims that could be identified during the formal [investigation]
that would turn criminal.” Feehan did not believe he needed a search warrant or
other court order to obtain and search the EnCase file “[b]ecause of case law that
[he] was aware of” since defendant’s computer was previously seized “[p]ursuant
to a lawful search warrant.”
¶ 39 On October 21, 2014, the trial court denied defendant’s motion to suppress,
finding that law enforcement’s retention of defendant’s computer after the acquittal
did not compel suppression of the child pornography. The court noted that
defendant had not challenged (1) the warrants issued on July 17 and July 24, 2013,
(2) the original search and seizure of his computer, or (3) Avery’s creation of the
EnCase file. Regardless of whether the trial court in the sexual assault proceedings
erred in failing to order the return of the computer, defendant had tried in that case
to invoke section 108-2 of the Code of Criminal Procedure and had not alleged a
fourth amendment violation. Moreover, returning the computer to defendant would
not have prevented a search of the EnCase file, which Avery still possessed and had
made available to Feehan. The trial court concluded that defendant’s suppression
motion had raised an issue of search, not seizure. The seizure was presumptively
reasonable because it was conducted pursuant to an unchallenged warrant, long
before Feehan searched the EnCase file.
¶ 40 The trial court concluded that, once the police had the right to copy and examine
the hard drive for evidence of certain crimes, defendant’s reasonable expectation of
privacy in the information was substantially diminished but not totally frustrated.
“[A]lthough the police had the right to search the hard drive for certain types of
files and for evidence of certain types of offenses, the police did not have cart [sic]
blanche to review everything on the hard drive.” For instance, the court noted,
defendant still might have held expectations of privacy in a diary, daily planner,
family history, drafts of papers for classes, and the like, but “he no longer held a
‘reasonable’ expectation of privacy in the types of files and directories which were
or could be related to evidence of unlawful restraint and/or improper videotaping.”
¶ 41 The trial court found that Feehan did not violate defendant’s fourth amendment
rights. Feehan’s search of files and folders for images and video did not exceed the
scope of the original warrant because there was no testimony that the first two
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images of child pornography were of a different file type or in different areas or
directories of the computer than those previously subject to search under the
warrant.
¶ 42 On July 10, 2015, the State amended its indictment and charged defendant with
seven additional counts of child pornography (720 ILCS 5/11-20.1(a)(6) (West
2014)), a Class 2 felony, based on seven additional images found in the EnCase
file.
¶ 43 A jury found defendant guilty of 15 of the 17 counts of child pornography.
Defendant filed posttrial motions, which the trial court denied. The trial court
accepted the jury’s verdict on 1 count of Class 3 felony child pornography and 10
counts of Class 2 felony child pornography. The court sentenced defendant on the
Class 3 felony to five years’ imprisonment followed by mandatory supervised
release of three years to life. The court imposed a sentence of 48 months’ probation
on the remaining 10 counts, to be served consecutively to the prison sentence.
¶ 44 On direct appeal, defendant argued, inter alia, that the trial court erroneously
denied his motion to suppress. He argued that “Feehan’s search of his EnCase file
eight months after the initial warrant was issued and following his acquittal of
sexual assault charges violated his fourth amendment rights.” 2019 IL App (3d)
170830, ¶ 13. The Appellate Court, Third District, agreed and reversed the
convictions.
¶ 45 The majority opinion concluded that, when the police took possession of
defendant’s computer, his expectation of privacy was significantly diminished until
his sexual assault acquittal, which then triggered a statutory right to the return of
his property and restored his expectation of privacy in the computer. Id. ¶ 24. The
majority held that, although Avery created the EnCase file lawfully, Feehan
violated defendant’s right to privacy when he searched the file and found the first
two images of child pornography. Id. ¶ 25. The police were not entitled to retain
the entire EnCase file indefinitely but could examine it and retain only those files
within the scope of the initial warrant. The majority held that, once defendant’s
sexual assault trial ended, the police were not entitled to retain any portion of the
EnCase file, much less the entire file. Id. The majority concluded that, because the
police had no authority to retain the EnCase file after defendant’s acquittal,
Feehan’s initial search violated defendant’s fourth amendment rights. Id. ¶ 26.
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¶ 46 The majority also held that the images were not admissible under the good-faith
exception to the exclusionary rule. Id. ¶ 31. Feehan, who had been a police officer
for more than 20 years and a forensic examiner for 17 years, knew when he
requested the EnCase file that defendant had been acquitted of the sexual assault
charges and that no new charges had been filed. The majority concluded that,
because the charges based on the files found pursuant to the initial warrant were no
longer pending, Feehan should have known that the police had no right to retain,
much less search, the EnCase file. Id. We note the majority opinion did not address
the portion of the search warrant concerning the separate incident of unauthorized
video recording.
¶ 47 The dissenting opinion concluded that defendant’s acquittal did not entitle him
to the immediate return of his computer or the information harvested from it. Id.
¶ 37 (Wright, J., dissenting). The dissent noted that, after the acquittal, defendant
did not pursue his oral and written requests for the return of his property. Id. ¶ 39.
The dissent characterized the sexual assault court’s deferral of the oral request as a
denial and concluded that the ruling stands as the law of the case and represents an
unappealable order. Id. ¶ 40. The dissent also concluded that, because Feehan was
merely reviewing information that had already been lawfully seized by another
detective who had made it a part of his working file, defendant’s reasonable
expectation of privacy remained diminished after he lawfully lost possession of the
computer tower pursuant to the search warrant. Id. ¶ 44.
¶ 48 The State petitioned for leave to appeal, which we allowed pursuant to Illinois
Supreme Court Rule 315(a) (eff. Oct. 1, 2019). We granted the American Civil
Liberties Union and the American Civil Liberties Union of Illinois leave to submit
briefs amicus curiae in support of defendant’s position, pursuant to Illinois
Supreme Court Rule 345 (eff. Sept. 20, 2010).
¶ 49 II. ANALYSIS
¶ 50 On appeal, the State argues Feehan’s examination of the EnCase file did not
violate defendant’s fourth amendment rights because the search arose from the
original lawful seizure and search of his computer. The State characterizes the
search as a permissible “second look” that was no broader than the “first look”
authorized by the original search warrant, which was broadly written,
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unchallenged, and presumptively valid. The State also contends defendant’s
privacy and possessory interests in the EnCase file were so significantly reduced
by the sexual assault prosecution that Feehan’s examination did not even constitute
a “search” under the fourth amendment. Third, the State asserts that, even if
Feehan’s examination qualifies as a warrantless search, the officer’s review was
reasonable because it constituted, at most, a minimal intrusion on defendant’s
privacy and possessory interests while diligently promoting compelling law
enforcement interests. The State alternatively contends that the child pornography
was admissible under the good-faith exception to the exclusionary rule.
¶ 51 Defendant renews his arguments that the child pornography should have been
suppressed because Feehan’s examination was a search that violated his
expectation of privacy under the fourth amendment and that the images are not
admissible under the good-faith exception to the exclusionary rule. Defendant also
argues his property interest in the computer conferred a reasonable expectation of
privacy in the data at the time of Feehan’s search.
¶ 52 A. Standard of Review
¶ 53 We apply our familiar two-part standard of review to a ruling on a suppression
motion. First, the circuit court’s findings of historical fact should be reviewed only
for clear error, and a reviewing court must give due weight to any inferences drawn
from those facts by the fact finder. People v. Luedemann, 222 Ill. 2d 530, 542
(2006) (citing Ornelas v. United States, 517 U.S. 690, 699 (1996)). We defer to the
court’s factual findings and will reverse those findings only if they are against the
manifest weight of the evidence. Id. (citing People v. Sorenson, 196 Ill. 2d 425, 431
(2001)). Second, a reviewing court may undertake its own assessment of the facts
as they relate to the issues and may draw its own conclusions when deciding what
relief should be granted. Id. (citing People v. Pitman, 211 Ill. 2d 502, 512 (2004)).
Accordingly, the circuit court’s ultimate legal ruling on the suppression motion is
reviewed de novo. Id. As the relevant facts in this case are not in dispute, our review
of the suppression ruling is de novo.
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¶ 54 B. Fourth Amendment
¶ 55 Defendant argued in his motion to suppress that Feehan’s examination violated
his rights under the fourth amendment of the United States Constitution and article
I, section 6, of the Illinois Constitution of 1970. The fourth amendment to the
United States Constitution protects the “right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures.”
U.S. Const., amend. IV; see also Elkins v. United States, 364 U.S. 206, 213 (1960)
(the fourth amendment applies to state officials through the fourteenth amendment
(U.S. Const., amend. XIV)). Similarly, article I, section 6, of the Illinois
Constitution provides that the “people shall have the right to be secure in their
persons, houses, papers and other possessions against unreasonable searches [and]
seizures.” Ill. Const. 1970, art. I, § 6; see also 725 ILCS 5/108-7 (West 2012)
(requiring the place or person to be searched and the items to be seized to be
“particularly described in the warrant”). Under our limited lockstep doctrine, we
construe the search and seizure clause of our state constitution in accordance with
the United States Supreme Court’s interpretation of the fourth amendment unless
any of the narrow exceptions to lockstep interpretation apply. People v. Holmes,
2017 IL 120407, ¶ 24. Defendant does not argue that an exception applies here.
¶ 56 The fourth amendment contains two separate clauses: the reasonableness clause
and the warrant clause. U.S. Const., amend. IV; Kentucky v. King, 563 U.S. 452,
459 (2011). The reasonableness clause requires that all government searches and
seizures be reasonable. King, 563 U.S. at 459; Brigham City v. Stuart, 547 U.S.
398, 403 (2006) (the touchstone of fourth amendment analysis always is
“reasonableness”). The warrant clause permits courts to issue warrants only if (1)
the warrant is supported by probable cause and (2) the warrant includes
particularized descriptions of “the place to be searched” and “the persons or things
to be seized.” U.S. Const., amend. IV; King, 563 U.S. at 459. The second condition
of the warrant clause is known as the particularity requirement.
¶ 57 A search warrant is not always required before searching or seizing a citizen’s
personal effects (see Stuart, 547 U.S. at 403), but there is a “strong preference for
searches conducted pursuant to a warrant” (Illinois v. Gates, 462 U.S. 213, 236
(1983)), and police officers generally must obtain a warrant for a search to be
reasonable under the fourth amendment (see, e.g., Riley v. California, 573 U.S. 373,
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382 (2014); Arizona v. Gant, 556 U.S. 332, 338 (2009) (searches conducted outside
the judicial process, without prior approval by a judge or magistrate, are per se
unreasonable under the fourth amendment, subject only to a few specifically
established and well-delineated exceptions).
¶ 58 C. Reasonable Expectation of Privacy in Digital Information
¶ 59 A search is constitutional if it does not violate a person’s “reasonable” or
“legitimate” expectation of privacy. Katz v. United States, 389 U.S. 347, 361 (1967)
(Harlan, J., concurring). To claim protection under the fourth amendment, a person
must have exhibited an actual subjective expectation of privacy in the place
searched or thing seized, and this expectation must be one that society is willing to
recognize as reasonable. People v. Rosenberg, 213 Ill. 2d 69, 77 (2004). As in most
cases, this appeal concerns whether defendant’s actual expectation of privacy was
objectively reasonable.
¶ 60 There is no bright line rule indicating whether an expectation of privacy is
constitutionally reasonable. See O’Connor v. Ortega, 480 U.S. 709, 715 (1987).
Whether a defendant has a legitimate expectation of privacy in the place searched
or the property seized thus depends on factors including (1) property ownership,
(2) whether the defendant was legitimately present in the area searched, (3) the
defendant’s possessory interest in the area searched or the property seized, (4) prior
use of the area searched or property seized, (5) the ability to control or exclude
others’ use of the property, and (6) a subjective expectation of privacy in the
property. People v. Lindsey, 2020 IL 124289, ¶ 40. Whether a person’s expectation
of privacy in an area searched is legitimate is determined by an objective standard
drawn from common experience and based on the totality of the circumstances. Id.¶ 61 In the context of the fourth amendment, computers and other electronic storage
devices have historically been viewed as closed containers. Because individuals
generally retain a reasonable expectation of privacy in the contents of a closed
container that conceals its contents from plain view (see United States v. Ross, 456
U.S. 798, 822-23 (1982)), they also generally retain a reasonable expectation of
privacy in data stored on electronic devices.
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¶ 62 Accessing information stored in an electronic storage device will implicate the
owner’s reasonable expectation of privacy in the information. United States v.
Heckenkamp, 482 F.3d 1142, 1147 (9th Cir. 2007) (an individual generally has a
reasonable expectation of privacy in their personal computers and data files). For
instance, in Riley, the Supreme Court of the United States held that law enforcement
generally must obtain a warrant before conducting a search of cell phone data.
Riley, 573 U.S. at 386. The court described cell phones as “minicomputers that also
happen to have the capacity to be used as telephones.” Id. at 393. Cell phones and
personal computers share the notable distinguishing features of immense storage
capacity and the ability to collect many distinct types of information, including a
user’s Internet browsing history and “a cache of sensitive personal information”
concerning nearly every aspect of a person’s life. Id. at 393-95.
“[A] cell phone search would typically expose to the government far more than
the most exhaustive search of a house: A phone not only contains in digital form
many sensitive records previously found in the home; it also contains a broad
array of private information never found in a home in any form—unless the
phone is.” (Emphasis omitted.) Id. at 396-97.
As the cell phone privacy concerns expressed in Riley apply to personal computers,
we conclude that Feehan’s examination of the EnCase file constituted a search
under the fourth amendment.
¶ 63 The State cites United States v. Edwards, 415 U.S. 800 (1974), for the
proposition that the valid “first look” diminished defendant’s expectation of privacy
and permitted Feehan’s examination. Edwards held that, when a person is lawfully
arrested and taken into custody, the items in his possession when arrested—which
were lawfully subject to search at the time and place of his arrest—may also be
lawfully searched and seized without a warrant even though a “substantial period
of time” has elapsed between the arrest and the time that the items are later
searched. Id. at 807. Edwards does not apply because all the searches in this case
were purportedly conducted pursuant to a warrant, not incident to defendant’s
arrest. Furthermore, Riley instructs that law enforcement generally must obtain a
warrant to search data on an electronic storage device, even if it was seized incident
to arrest.
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¶ 64 D. Defendant’s Expectation of Privacy
¶ 65 Although an individual retains a reasonable expectation of privacy in a
computer under his control, special circumstances may affect that expectation. In
this case, the trial court correctly observed that defendant did not challenge the
warrants authorizing the seizure of his computer, Avery’s creation of the EnCase
file, or Avery’s subsequent search for digital evidence of the sexual assault. The
unchallenged warrants made the initial seizure and search of defendant’s computer
presumptively reasonable.
¶ 66 Defendant, however, challenges Feehan’s initial examination of the EnCase
file, which uncovered evidence of the two incidents of unauthorized video
recording and two images of child pornography. The State argues that Feehan’s
examination was not even a “search” under the fourth amendment because the
initial warrant diminished defendant’s privacy and possessory interests. In support,
the State points out that the item searched was not the original hard drive but a copy
that Avery created and stored on his work computer. The State asserts defendant
did not have a legitimate expectation of privacy in the EnCase file because he did
not create, own, or have lawful access to it. See Lindsey, 2020 IL 124289, ¶ 42.
¶ 67 The State focuses on defendant’s lack of a formal property interest in the
EnCase file itself and disregards defendant’s informal privacy interest in his
personal data. Defendant persuasively argues that “Feehan’s examination of the
police-generated forensic copy of [defendant’s] original for information pertaining
to a criminal investigation is no less a search and no less an infringement on his
property rights than had Feehan examined the original.” The right to exclude others
is one of the main rights attaching to property, and allowing access to a copy defeats
that right. See Rakas v. Illinois, 439 U.S. 128, 143 n.12 (1978); see also United
States v. Jefferson, 571 F. Supp. 2d 696, 702 (E.D. Va. 2008) (“the Fourth
Amendment protects an individual’s possessory interest in information itself,” and
copying interferes with the owner’s possession and interest in privacy of the
information contained in the documents).
¶ 68 The evidentiary value of data resides in the data itself, not in the medium on
which it is stored. To suggest that defendant lacked an expectation of privacy in the
contents of his personal computer because those contents were copied to another
medium contravenes the requirement of reasonableness, which is the touchstone of
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any fourth amendment analysis. See Stuart, 547 U.S. at 403. “[I]maging a computer
should be regulated by the Fourth Amendment and searches of copies should be
treated the same as searches of the original” (Orin S. Kerr, Searches and Seizures
in a Digital World, 119 Harv. L. Rev. 531, 532 (2005)) because “computers work
by copying and recopying information” (id. at 564). Treating a digital copy as the
original recognizes that the key to fourth-amendment reasonableness is the access
to data, regardless of whether the data is copied, transferred, or otherwise
manipulated. Id.¶ 69 We agree with defendant that his privacy interest in the computer’s contents
extended to the EnCase file. But he goes further, asserting his property interest in
the data obviates the need to show an expectation of privacy. He claims “[h]e is not
required to prove that he had an expectation of privacy in his computer, his hard
drive, the forensic duplicate of the hard drive, or his personal information stored on
these electronic devices in order to show that the police performed a search.”
Defendant’s property interest in the data is not dispositive of the search’s
reasonableness, otherwise mere proof of ownership in a place or item to be searched
would be sufficient for suppression.
¶ 70 To summarize, defendant’s privacy interests in the original hard drive and the
EnCase file were the same. However, the privacy interest conferred by his
ownership of the computer is not dispositive to our inquiry. The appeal turns on
defendant’s privacy interest in light of the warrant and the reasonableness of
Feehan’s examination of the EnCase file following defendant’s acquittal in the
sexual assault proceeding.
¶ 71 E. Restoration of Defendant’s Expectation of Privacy
¶ 72 Defendant argues that, once he was acquitted in the sexual assault case, (1) he
was entitled by statute to the return of his property, (2) his expectation of privacy
in the computer was restored, and (3) it was unreasonable for law enforcement to
look at the data without obtaining a new warrant. We conclude that defendant’s
acquittal only partially restored his reasonable expectation of privacy in his
computer.
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¶ 73 1. Criminal Sexual Assault
¶ 74 The parties do not dispute that defendant’s sexual assault trial culminated in an
acquittal for double jeopardy purposes. An acquittal triggers the double jeopardy
clause of the fifth amendment to the United States Constitution, which provides
that no person shall “be subject for the same offence to be twice put in jeopardy of
life or limb.” U.S. Const., amend. V. Similarly, article I, section 10, of the Illinois
Constitution provides that no person shall “be twice put in jeopardy for the same
offense.” Ill. Const. 1970, art. I, § 10. The prohibition against double jeopardy is
animated by the principle that
“ ‘the State with all its resources and power should not be allowed to make
repeated attempts to convict an individual for an alleged offense, thereby
subjecting him to embarrassment, expense and ordeal and compelling him to
live in a continuing state of anxiety and insecurity, as well as enhancing the
possibility that even though innocent he may be found guilty.’ ” People v.
Williams, 188 Ill. 2d 293, 307 (1999) (quoting Green v. United States, 355 U.S.
184, 187-88 (1957)).
¶ 75 “The prohibition against double jeopardy ‘protects against three distinct abuses:
(1) a second prosecution for the same offense after acquittal; (2) a second
prosecution for the same offense after conviction; and (3) multiple punishments for
the same offense.’ ” People v. Henry, 204 Ill. 2d 267, 283 (2003) (quoting People
v. Placek, 184 Ill. 2d 370, 376-77 (1998)); see also United States v. Wilson, 420
U.S. 332, 343 (1975). “An acquittal triggers the bar against double jeopardy only if
the acquittal ‘actually represents a resolution, correct or not, of some or all of the
factual elements of the offense charged.’ ” Henry, 204 Ill. 2d at 283 (quoting United
States v. Martin Linen Supply Co., 430 U.S. 564, 571 (1977)).
¶ 76 When the jury found defendant not guilty of aggravated criminal sexual assault
and criminal sexual assault, the verdicts represented a resolution of the factual
elements of the offenses charged. The bar against double jeopardy protected
defendant against a second prosecution for those offenses, restoring defendant’s
reasonable expectation of privacy concerning the data that constituted evidence of
those crimes. Defendant, newly freed from “a continuing state of anxiety and
insecurity” that he would be retried for sexual assault (Williams, 188 Ill. 2d at 307),
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regained a reasonable expectation that the police would not search his computer for
evidence of the offenses of which he was acquitted.
¶ 77 Defendant renews his argument that the acquittal entitled him to the return of
his computer and to any copies of his personal data and that therefore his reasonable
expectation of privacy in the data was restored entirely. We disagree. To establish
a legitimate expectation in the place to be searched, a defendant must point to a
source outside the constitution—namely, formal property interests or informal
privacy interests. United States v. Jones, 565 U.S. 400, 408 (2012); Rakas, 439 U.S.
at 143 n.12 (“Legitimation of expectations of privacy by law must have a source
outside of the Fourth Amendment, either by reference to concepts of real or
personal property law or to understandings that are recognized and permitted by
society.”).
¶ 78 Defendant asserts his formal property interests in the computer, relying on
section 108-2 of the Code of Criminal Procedure, which governs the return of
property after a person is released from custody. But the statute applies to items
seized without a warrant, stating
“An inventory of all instruments, articles or things seized on a search without
warrant shall be given to the person arrested and a copy thereof delivered to the
judge before whom the person arrested is taken, and thereafter, such
instruments, articles or things shall be handled and disposed of in accordance
with Sections 108-11 and 108-12 of this Code. If the person arrested is released
without a charge being preferred against him all instruments, articles or things
seized, other than contraband, shall be returned to him upon release.” (Emphasis
added.) 725 ILCS 5/108-2 (West 2012).
¶ 79 Section 108-2 arguably did not apply to defendant’s computer because the
statute applies to “things seized without a warrant.” Defendant’s acquittal does not
negate the fact that the defendant’s computer was seized on July 17, 2013, pursuant
to a warrant.
¶ 80 In contrast to section 108-2, section 108-10 applies to items seized with a
warrant, like defendant’s computer. Section 108-10 provides for the items seized
by law enforcement to be returned to the court:
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“A return of all instruments, articles or things seized shall be made without
unnecessary delay before the judge issuing the warrant or before any judge
named in the warrant or before any court of competent jurisdiction. An
inventory of any instruments, articles or things seized shall be filed with the
return and signed under oath by the officer or person executing the warrant.
The judge shall upon request deliver a copy of the inventory to the person from
whom or from whose premises the instruments, articles or things were taken
and to the applicant for the warrant.” (Emphases added.) Id. § 108-10.
¶ 81 Regardless of which statute governed the custody of defendant’s computer, we
agree with the trial court and the dissenting appellate opinion that defendant failed
to invoke any authority for the return of his computer or copies of its hard drive. In
fact, defendant states in his brief that his “items have never been returned,” but he
does not accuse the State of any wrongdoing.
¶ 82 Moreover, defendant cites no authority to suggest that his acquittal
automatically entitled him to the immediate return of his computer and the
information harvested from it. In fact, section 108-11 provides that “[t]he court
before which the instruments, articles or things are returned shall enter an order
providing for their custody pending further proceedings.” Id. § 108-11. Thus, the
statute contemplates a motion and a hearing before an order is entered disposing of
seized items. See, e.g., City of Chicago v. Pudlo, 123 Ill. App. 3d 337, 345 (1983)
(order denying defendants’ motion for return of weapons was reversed because trial
court erroneously failed to conduct hearing). Here, the State argued at the
suppression hearing that, if defendant had noticed up his motion, the State would
have opposed the return of the computer to defendant on the ground that the hard
drive contained contraband. In any event, the record indicates that defendant neither
pursued his written motion for the return of his computer nor appealed any order in
Peoria County case No. 13-CF-741.
¶ 83 Defendant asserts a possessory interest in the computer and claims it extends to
the digital copies of the hard drive, but the trial court never reached the issue, which
was governed by statute and was subject to an evidentiary hearing. As defendant
did not press his rights in the sexual assault proceeding, he cannot claim his
property interest fully restored his expectation of privacy in his data.
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¶ 84 2. Unauthorized Video Recording
¶ 85 The acquittal resolved the portion of the July 24, 2013, search warrant that was
directed toward the offense of aggravated criminal sexual assault. However, the
acquittal did not resolve any of the factual elements of unauthorized video
recording, which was also specified in the warrant. Contrary to defendant’s
suggestion, the acquittal did not nullify the warrant entirely. The State concludes
that the sexual assault acquittal did not restore defendant’s expectation of privacy
concerning evidence of the uncharged offenses described in the July 24, 2013,
warrant, including unauthorized video recording.
¶ 86 Defendant responds that the State has forfeited the issue. Village of Lake Villa
v. Stokovich, 211 Ill. 2d 106, 121 (2004) (issues not raised in the trial court generally
are forfeited and may not be raised for the first time on appeal). Defendant cites the
appellate majority’s observation that “[t]he State concedes that the July 17, 2013,
warrant ‘did not authorize Feehan’s search, as that warrant had already been
executed and, after investigation and criminal proceedings, defendant was
acquitted.’ ” (Emphasis added.) 2019 IL App (3d) 170830, ¶ 30. But the State has
argued throughout the proceedings that the July 24, 2013, warrant authorized
Feehan’s search.
¶ 87 For instance, the State argues in its opening brief that it had an ongoing interest
in investigating defendant because, “based on prior searches of defendant’s
computer data, phone data, and email account, the [Peoria Police Department]
suspected defendant of committing criminal conduct in addition to the conduct that
resulted in the charges for which he was acquitted.” The State narrows its argument
in the reply brief, asserting that the search warrant described “separate incidents”
besides the sexual assault of A.K. We consider the issue adequately preserved.
Dillon v. Evanston Hospital, 199 Ill. 2d 483, 504-05 (2002) (the forfeiture rule is
an admonition to the parties and not a limitation on the jurisdiction of this court).
¶ 88 F. Scope of the Warrant
¶ 89 The validity of Feehan’s search depends on whether it was within the scope of
the portion of the warrant that was unresolved by the acquittal. It is well established
that a search warrant need not contain “ ‘[a] minute and detailed description of the
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property to be seized.’ ” People v. McCarty, 223 Ill. 2d 109, 151 (2006) (quoting
People v. Prall, 314 Ill. 518, 523 (1924)). “Rather, ‘the property must be so
definitely described that the officer making the search will not seize the wrong
property.’ ” Id. (quoting Prall, 314 Ill. at 523). When a type of property, rather than
particular property, is to be seized, a description of its characteristics is sufficient.
Id. at 152.
¶ 90 The Michigan Supreme Court has recently explained how the fourth
amendment’s particularity requirement applies to digital evidence. In Hughes, the
defendant was under investigation for drug trafficking, and law enforcement
obtained a warrant to search his cell phone for evidence related to separate criminal
allegations of that crime. Hughes, 958 N.W.2d at 105. The warrant affidavit
contained no information concerning armed robbery. Id. The warrant provided that
“ ‘[a]ny cell phones or *** other devices capable of digital or electronic storage
seized by authority of this search warrant shall be permitted to be forensically
searched and or manually searched, and any data that is able to be retrieved there
from shall be preserved and recorded.’ ” Id. The warrant authorized the seizure of
any drug paraphernalia and “ ‘any records pertaining to the receipt, possession and
sale or distribution of controlled substances including but not limited to documents,
video tapes, computer disks, computer hard drives, and computer peripherals.’ ”
(Emphasis omitted.) Id. at 106.
¶ 91 After the cell phone was seized, the defendant was charged with an armed
robbery that occurred a week before the warrant was issued. Id. The police
examined the phone and extracted all the data. About a month after the extraction
and at the request of the prosecutor in the armed-robbery case, a detective searched
the cell-phone data again. Id. The searches uncovered evidence of the defendant’s
involvement in the armed robbery, and the evidence was used to convict the
defendant of armed robbery. Id. at 106-07.
¶ 92 On appeal from the armed-robbery conviction, the defendant argued that “the
phone records should have been excluded from trial because the warrant supporting
a search of the data only authorized a search for evidence of drug trafficking and
not armed robbery.” Id. at 107. The Michigan Supreme Court agreed, concluding
that the seizure and search of cell-phone data pursuant to a warrant does not
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extinguish the “otherwise reasonable expectation of privacy in the entirety of that
seized data.” Id. at 111. Specifically, the Hughes court held
“the police were permitted to seize and search that data, but only to the extent
authorized by the warrant. Any further review of the data beyond the scope of
that warrant constitutes a search that is presumptively invalid under the Fourth
Amendment, absent some exception to that amendment’s warrant requirement.”
Id. at 115.
¶ 93 The Hughes court then considered “whether the review of [the] defendant’s data
for evidence of an armed robbery fell within the scope of the warrant issued in the
drug-trafficking case.” Id. The court held that a search of cell-phone data “must be
‘reasonably directed at uncovering’ evidence of the criminal activity alleged in the
warrant and that any search that is not so directed but is directed instead toward
finding evidence of other and unrelated criminal activity is beyond the scope of the
warrant.” (Emphasis omitted.) Id. (quoting United States v. Loera, 923 F.3d 907,
917 (10th Cir. 2019)).
¶ 94 The court acknowledged that a “criminal suspect will not always store or
organize incriminating information on his or her digital devices in the most obvious
way or in a manner that facilitates the location of that information.” Id. at 117.
Nonetheless, the court declined
“to adopt a rule that it is always reasonable for an officer to review the entirety
of the digital data seized pursuant to a warrant on the basis of the mere
possibility that evidence may conceivably be found anywhere on the device or
that evidence might be concealed, mislabeled, or manipulated.” Id.
¶ 95 “Such a per se rule would effectively nullify the particularity requirement of the
Fourth Amendment in the context of cell-phone data and rehabilitate an
impermissible general warrant that ‘would in effect give “police officers unbridled
discretion to rummage at will among a person’s private effects.” ’ ” (Emphasis
omitted.) Id. at 118 (quoting Riley, 573 U.S. at 399, quoting Gant, 556 U.S. at 345).
An officer’s search of seized digital data, as with any other search conducted
pursuant to a warrant, must be reasonably directed at finding evidence of the
criminal activity identified within the warrant. Id.- 23 -
¶ 96 The Hughes court explained that the test in the digital context is whether the
forensic steps of the search process were reasonably directed at uncovering the
evidence specified in the search warrant. Id. Whether a data search that uncovers
evidence of criminal activity not identified in the warrant was reasonably directed
at finding evidence relating to the criminal activity alleged in the warrant turns on
a number of considerations, including (1) the nature of the criminal activity alleged
and the type of digital data likely to contain evidence relevant to the alleged
activity; (2) the evidence provided in the warrant affidavit for establishing probable
cause that the alleged criminal acts have occurred; (3) whether nonresponsive files
are segregated from responsive files on the device; (4) the timing of the search in
relation to the issuance of the warrant and the trial for the alleged criminal acts;
(5) the technology available to allow officers to sort data likely to contain evidence
related to the criminal activity alleged in the warrant from data not likely to contain
such evidence without viewing the contents of the unresponsive data and the
limitations of this technology; (6) the nature of the digital device being searched;
(7) the type and breadth of the search protocol employed; (8) whether there are any
indications that the data has been concealed, mislabeled, or manipulated to hide
evidence relevant to the criminal activity alleged in the warrant, such as when
metadata is deleted or when data is encrypted; and (9) whether, after reviewing a
certain number of a particular type of data, it becomes clear that certain types of
files are not likely to contain evidence related to the criminal activity alleged in the
warrant. Id. at 118-20.
“To be clear, a court will generally need to engage in such a ‘totality-of-
circumstances’ analysis to determine whether a search of digital data was
reasonably directed toward finding evidence of the criminal activities alleged
in the warrant only if, while searching digital data pursuant to a warrant for one
crime, officers discover evidence of a different crime without having obtained
a second warrant and a prosecutor seeks to use that evidence at a subsequent
criminal prosecution.” Id. at 120.
¶ 97 The Hughes court found the search for armed robbery evidence was outside the
scope of the warrant, which authorized a data search only for evidence of drug
trafficking and “did not even mention” the armed robbery or its surrounding
circumstances. Id. at 121. The second search of the phone violated the fourth
amendment because the “review was directed exclusively toward finding evidence
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related to the armed-robbery charge, and it was grounded in information obtained
during investigation into that crime.” (Emphasis omitted.) Id. at 122.
¶ 98 We are persuaded by Hughes that an officer’s search of seized digital data, as
with any other search with a warrant, must be reasonably directed at finding
evidence of the criminal activity identified within the warrant.
¶ 99 The warrants in this case and in Hughes make the cases factually
distinguishable. The Hughes warrant authorized a data search for evidence of drug
trafficking, but the supporting affidavit did not mention armed robbery, let alone
claim probable cause that the defendant committed armed robbery. As a result, the
warrant did not authorize a search for digital evidence related to the armed robbery.
¶ 100 By contrast, the search warrant in this case was not limited to uncovering
evidence of the sexual assault of which defendant was acquitted. The July 24, 2013,
warrant also authorized a search for digital evidence of unauthorized video
recording. Double jeopardy protected defendant from retrial on the sex offenses,
but defendant still could be charged with unauthorized video recording, because the
issuing court found there was probable cause to search defendant’s data for
evidence of that offense.
¶ 101 The Hughes factors indicate Feehan’s search was reasonably directed at finding
evidence of the unauthorized video recording. Specifically, the complaint for the
July 24, 2013, search warrant stated that “[a]dditionally recovered videos display
an unidentified female using the bathroom and taking a shower” and that this
“unidentified female appears to have no knowledge she was being recorded.” The
complaint expressly targeted the crime of “Unauthorized Video Recording/Live
Video Transmission in violation of 720 ILCS 5/26-4,” and the warrant authorized
the search of all digital images for “Unauthorized Video Recording/Live Video
Transmission 720 ILCS 5/26-4.”
¶ 102 The warrant permitted a search of “any and all digital images, including, but
not limited to JPG, GIF, TIF, AVI, MOV, and MPEG files,” which are image and
video file formats likely to contain evidence relevant to unauthorized video
recording. Moreover, the evidence provided in the search warrant application
described the bathroom video in sufficient detail to establish probable cause.
Defendant has not challenged Feehan’s methodology concerning search protocols
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and the sorting of responsive and unresponsive data, and Feehan testified to
defendant’s attempts to hide relevant evidence by permanently deleting files. See
Hughes, 958 N.W.2d at 118.
¶ 103 The concurring opinion in Hughes stated that an officer’s subjective intention
in conducting the search also should be considered as a potentially dispositive
factor in determining whether the search of seized data is reasonably directed at
finding evidence of the criminal activity identified in the warrant. Id. at 124
(Viviano, J., concurring). The concurrence concluded that, if the officer
purposefully searches for evidence of a crime other than the one identified in the
warrant, the search cannot be reasonably directed at uncovering evidence of the
criminal activity alleged in the warrant. Id. at 124-25.
¶ 104 Feehan’s conduct adhered to the special concurrence in Hughes. Feehan
testified at the suppression hearing that he was not searching for evidence of the
criminal sexual assault, because defendant already had been acquitted of that
charge. But contrary to defendant’s assertion, the detective did not engage in a
fishing expedition. Feehan testified that “we were investigating other unlawful
videotaping evidence as part of [the] internal investigation” and that he “knew that
there was [sic] other victims” besides A.K. Also, Feehan actually uncovered
evidence of the offense described in the warrant. The July 24, 2013, warrant
authorized law enforcement to search for digital evidence of the unauthorized video
recording of another victim, and Feehan’s search and subjective intent were
consistent with the warrant.
¶ 105 G. Timeliness of Search
¶ 106 Defendant primarily argues that his acquittal restored his expectation of privacy
in all the data, but he also suggests that Feehan’s search was unreasonable because
it was conducted eight months after the warrant was issued. Following the acquittal,
the warrant still authorized a search for evidence of unauthorized video recording,
and as the appellate majority noted, the fourth amendment does not place explicit
limits on the duration of any forensic analysis authorized by a warrant. 2019 IL App
(3d) 170830, ¶ 19 (“ ‘under current law there is no established upper limit as to
when the government must review seized electronic data to determine whether the
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evidence seized falls within the scope of a warrant.’ ” (quoting United States v.
Metter, 860 F. Supp. 2d 205, 215 (E.D.N.Y. 2012))).
¶ 107 Courts have upheld forensic analyses begun months after law enforcement
acquires the electronic storage device. See United States v. Syphers, 426 F.3d 461,
469 (1st Cir. 2005) (a five-month delay in processing a computer already in police
custody “did not invalidate the search *** because there is no showing that the
delay caused a lapse in probable cause, that it created prejudice to the defendant, or
that federal or state officers acted in bad faith to circumvent federal requirements”);
United States v. Burns, No. 07 CR 556, 2008 WL 4542990, at *8-9 (N.D. Ill. Apr.
29, 2008) (10-month delay); United States v. Gorrell, 360 F. Supp. 2d 48, 55 n.5
(D.D.C. 2004) (10-month delay for off-site forensic analysis). The fourth
amendment does not subject data searches to any rigid time limit because they may
involve much more information than an ordinary document search and require more
preparation and a greater degree of care in their execution. 2019 IL App (3d)
170830, ¶ 19 (citing United States v. Triumph Capital Group, Inc., 211 F.R.D. 31,
66 (D. Conn. 2002)). Nevertheless, the fourth amendment requires the government
to complete its review of digital data “ ‘within a “reasonable” period of time.’ ” Id.(quoting Metter, 860 F. Supp. 2d at 215). A search of digital data that takes several
years may be reasonable as long as the search ends before trial and does not exceed
the scope of the original search warrant. See United States v. Johnston, 789 F.3d
934, 942-43 (9th Cir. 2015).
¶ 108 We agree with defendant that the acquittal eliminated the probable cause to
search for evidence of the sexual assault. But to the extent that defendant argues the
eight-month delay in conducting the search was unreasonable, he does not claim
that probable cause to search for unauthorized video recording dissipated while the
sexual assault prosecution was pending, nor could he, because his data remained
secured and unaltered in the EnCase file. He also does not claim prejudice by the
delay or that the police department acted in bad faith. See Burns, 2008 WL
4542990, at *9 (search upheld despite “lengthy” delay because the defendant did
not assert that “the time lapse affected the probable cause to search the computer
(nor could he, given that suspected child pornography had already been found on
the hard drive), that the government has acted in bad faith, or that he has been
prejudiced in any way by the delay”); see also Syphers, 426 F.3d at 469 (the fourth
amendment “ ‘contains no requirements about when the search or seizure is to occur
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or the duration’ ” (quoting United States v. Gerber, 994 F.2d 1556, 1559-60 (11th
Cir. 1993)), but “ ‘unreasonable delay in the execution of a warrant that results in
the lapse of probable cause will invalidate a warrant’ ” (quoting United States v.
Marin-Buitrago, 734 F.2d 889, 894 (2d Cir. 1984)). The passage of eight months
from the warrant issuance to Feehan’s search was reasonable under the
circumstances, considering the intervening sexual assault prosecution, which
required the police department to delay its internal investigation, and the sheer
volume of data in the EnCase file.
¶ 109 H. Plain View
¶ 110 Hughes contrasted its facts with
“a circumstance in which the officer was reasonably reviewing data for
evidence of drug trafficking and happened to view data implicating defendant
in other criminal activity. If such were the case and the data’s ‘incriminating
character [was] immediately apparent,’ the plain-view exception would likely
apply and permit the state to use the evidence of criminal activity not alleged in
the warrant at a subsequent criminal prosecution.” Hughes, 958 N.W.2d at 122.
The court’s hypothetical matches this case.
¶ 111 Evidence of a crime may be seized without a warrant under the plain view
exception to the warrant requirement. A police officer may properly seize evidence
of a crime without a warrant if (1) the officer was lawfully in a position from which
to view the object seized in plain view, (2) the object’s incriminating character was
immediately apparent, meaning the officer had probable cause to believe the object
was contraband or evidence of a crime, and (3) the officer had a lawful right of
access to the object itself. Horton v. California, 496 U.S. 128, 134-36 (1990).
However, “the ‘plain view’ doctrine may not be used to extend a general
exploratory search from one object to another until something incriminating at last
emerges.” Coolidge v. New Hampshire, 403 U.S. 443, 466 (1971).
¶ 112 This case presents the most common use of the plain view doctrine in the
context of digital data, which occurs when law enforcement examines a computer
pursuant to a search warrant and discovers evidence of a separate crime that falls
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outside the scope of the search warrant. The inquiry focuses on whether an officer
is exploring hard drive locations and opening files responsive to the warrant,
considering both the types of files accessed and the crimes specified in the warrant.
Johnston, 789 F.3d at 941-43. For example, in United States v. Wong, 334 F.3d
831, 838 (9th Cir. 2003), an agent uncovered child pornography on a hard drive
while conducting a valid search of the drive for evidence of a murder. Because the
agent was properly searching graphics files for evidence of the murder, the child
pornography was properly seized and subsequently admitted under the plain view
doctrine. Id.¶ 113 We agree with the State that the child pornography was admissible under the
plain view doctrine, despite the warrant seeking evidence related to unauthorized
video recording. The July 24, 2013, warrant authorized Feehan to search the
EnCase file for evidence of the unauthorized video recording, including “any and
all digital images, including, but not limited to JPG, GIF, TIF, AVI, MOV, and
MPEG files.” Feehan testified that the child pornography was in the JPG file
format. The trial court found there was no testimony that the first two images of
child pornography were of a different file type or in different areas or directories of
the computer than those previously subject to search under the warrant. Defendant
does not quarrel with the court’s finding, which is not against the manifest weight
of the evidence.
¶ 114 Defendant does not allege that Feehan accessed an area of the hard drive that
fell outside the scope of the warrant or that Feehan would have reason to know,
before opening the digital images, that they would not contain evidence of the
crimes listed on the warrant. Feehan had lawful access to the EnCase file to search
for images and video of unauthorized video recording, and he testified that the
incriminating character of the two JPG files containing the child pornography was
immediately apparent, meaning he had probable cause to believe the files were
evidence of a crime. See Horton, 496 U.S. at 134. Finding the first two images
caused Feehan to suspend his search before securing another warrant to search for
additional images of child pornography.
¶ 115 As Feehan’s search was within the scope of the July 24, 2013, warrant and the
images of child pornography were admissible under the plain view doctrine, we
need not address the State’s alternate argument that the child pornography was
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admissible under the good-faith exception to the warrant requirement.
¶ 116 III. CONCLUSION
¶ 117 To summarize, the warrant authorizing the search of defendant’s computer data
diminished his expectation of privacy in the types of files described in the warrant.
However, any postacquittal search of the same data, directed toward uncovering
further evidence of the sexual assault, would have exceeded the scope of the
warrant. In this case, Feehan’s data search was within the scope of the warrant
because it was reasonably directed at uncovering evidence of unauthorized video
recording, which was alleged in the warrant. Feehan’s search was not directed at
finding evidence of criminal activity not described in the warrant. Therefore, the
search was reasonable under the fourth amendment and resulted in the lawful
discovery of child pornography in plain view.
¶ 118 For the preceding reasons, we hold that the appellate court erred in reversing
the trial court’s denial of defendant’s motion to suppress evidence. We reverse the
judgment of the appellate court and affirm the trial court’s denial of defendant’s
motion to suppress the digital images supporting his convictions of child
pornography.
¶ 119 Appellate court judgment reversed.
¶ 120 Circuit court judgment affirmed.
¶ 121 JUSTICE NEVILLE, dissenting:
¶ 122 In this case, the majority holds that the police did not violate McCavitt’s privacy
rights after his acquittal for criminal sexual assault when they searched a copy of
the data on his computer hard drive on March 24, 2014, with a search warrant issued
on July 24, 2013, because (1) McCavitt’s acquittal of criminal sexual assault (a)
only partially restored his right to privacy in his computer data involving charges
of criminal sexual assault but (b) his acquittal did not restore his privacy rights in
evidence of the second offense listed in the July 24, 2013, search warrant—an
unauthorized video recording—and (2) police conducted the March 24, 2014,
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search within a “reasonable time” after the circuit court issued the July 24, 2013,
search warrant.
¶ 123 I agree with the majority that McCavitt had a reasonable expectation of privacy
in the data on his computer hard drive. Supra ¶ 69. I also agree with the majority
that McCavitt’s March 19, 2014, acquittal affected his privacy rights in his
property. Supra ¶ 70. I disagree with the majority that (1) the search warrant issued
on July 24, 2013, remained valid for 243 days until March 24, 2014, for searches
for evidence of crimes for which McCavitt was not acquitted that were listed in the
July 24, 2013, search warrant and (2) the police could lawfully remain in possession
of McCavitt’s hard drive data for 243 days (from July 24, 2013, until March 24,
2014) before the hard drive was searched for data.
¶ 124 I would find that the State’s March 24, 2014, search of McCavitt’s data violated
his constitutional and statutory rights for three reasons: (1) McCavitt had a
constitutional right to privacy in the personal data on his hard drive and his right to
privacy cannot be interfered with or intruded upon without a valid warrant issued
after a showing of probable cause; (2) section 108-6 of the Code of Criminal
Procedure of 1963 (Code) (725 ILCS 5/108-6 (West 2020)) gave the police 96
hours to execute the July 24, 2013, search warrant and search McCavitt’s hard drive
for data, and once the 96 hours expired the search warrant was void (id.); and
(3) once McCavitt was acquitted on March 19, 2014, section 108-11 of the Code
mandated that the trial judge enter an order directing the State to return McCavitt’s
property (id. § 108-11). Accordingly, I respectfully dissent.
¶ 125 BACKGROUND
¶ 126 On July 17, 2013, the circuit court issued its first warrant to search the single-
family residence located at 1710 W. West Aire Avenue in Peoria, Illinois, and the
Illinois State Police (ISP) executed the warrant and seized McCavitt’s computer
and hard drive.
¶ 127 On July 24, 2013, the circuit court issued its second warrant, at 2:05 p.m., to
“search and examine in greater detail” (1) a telephone possessing telephone number
(309) 657-4*** and (2) an LG Computer Tower SN No. WMAZA2914641 that
were seized on July 17, 2013, for digital images, for stored and deleted data, for
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evidence of criminal activity, and for any evidence of aggravated criminal sexual
assault, unlawful restraint, or unauthorized video recording.
¶ 128 The parties stipulated that on July 25, 2013, the ISP transported McCavitt’s
hard drive to Detective Jeff Avery, a member of the Peoria County Sheriff’s
Department (PCSD) and a forensic examiner on special assignment to the U.S.
Attorney’s office. Detective Avery testified that he removed the hard drive from
McCavitt’s computer, copied it, and saved the copy, called an “EnCase file,” to the
State’s computer. Detective Avery did not testify about the exact date he began his
search, but he performed an examination of the EnCase file and found images and
videos pertaining to a sexual assault.
¶ 129 After Detective Avery’s search, a grand jury indicted McCavitt on August 6,
2013, for the first time, on multiple counts of criminal sexual assault and aggravated
criminal sexual assault. On March 19, 2014, a jury found McCavitt not guilty on
all of the sexual assault charges. Once the not guilty verdict was returned in open
court, McCavitt’s attorney made an oral motion requesting that the trial court return
items confiscated from McCavitt, including some “collector guns.” The court
instructed McCavitt’s attorney to make his request “in the form of a motion.”
¶ 130 On March 21, 2014, two days after McCavitt’s acquittal, Detective James
Feehan, a computer forensic examiner for the Peoria Police Department (PPD),
requested a copy of the EnCase file for purposes of an internal affairs investigation
of McCavitt regarding allegations of sexual assault and other possible offenses. On
March 24, 2014, Detective Feehan received a copy of Detective Avery’s EnCase
file, searched it for images of sexual assault “as the [July 24, 2013, search] warrant
had authorized,” and discovered two images of child pornography.
¶ 131 Also on March 24, 2014, five days after McCavitt’s acquittal and pursuant to
the trial judge’s instructions, his attorney filed a written motion for return of
confiscated property.
¶ 132 On March 28, 2014, police arrested McCavitt and charged him with
unauthorized video recording. On April 1, 2014, 13 days after McCavitt’s acquittal,
Feehan obtained a third warrant. Once the circuit court issued the third warrant,
Feehan resumed his search and located additional images of child pornography. On
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April 23, 2014, a grand jury indicted McCavitt on 10 counts of child pornography
and aggravated child pornography.
¶ 133 On April 24, 2014, the circuit court entered a written order that (1) directed ISP
to return all guns and weapons to McCavitt instanter and (2) “generally continued”
McCavitt’s motion for return of confiscated property.
¶ 134 On August 15, 2014, McCavitt filed a motion to suppress evidence in the child
pornography case. On October 21, 2014, the circuit court denied McCavitt’s motion
to suppress evidence. On July 10, 2015, McCavitt was indicted on seven additional
counts of child pornography. On July 14, 2015, a jury found McCavitt guilty of 15
of 17 counts of child pornography. On December 1, 2017, the circuit court
sentenced McCavitt to five years’ imprisonment. The appellate court, with one
justice dissenting, reversed McCavitt’s conviction. 2019 IL App (3d) 170830. We
allowed the State’s petition for leave to appeal. Ill. S. Ct. R. 315 (eff. Oct. 1, 2019).
¶ 135 ANALYSIS
¶ 136 A. Standard of Review
¶ 137 This appeal involves a determination of McCavitt’s rights under Illinois’s
constitution (Ill. Const. 1970, art. I, § 6) and statutory provisions (725 ILCS 5/108-
6, 108-11 (West 2020)). When construing a constitutional provision, this court’s
goal is to determine and effectuate the common understanding of the persons who
adopted it—the citizens of this state—and to that end, we will consider the natural
and popular meaning of the words used as well as the object to be attained or the
evil to be remedied. Walker v. McGuire, 2015 IL 117138, ¶ 16. Where the language
of a constitutional provision is unambiguous, we give it effect without resort to aids
for construction (id.), meaning that we will not depart from the plain language of a
provision by construing it so that any part is rendered meaningless or superfluous;
nor will we read into a provision exceptions, limitations, or conditions that do not
appear on its face or that conflict with its intent (People v. Burge, 2021 IL 125642,
¶ 34 (citing People v. Perry, 224 Ill. 2d 312, 323 (2007))). The interpretation and
application of constitutional provisions presents a question of law that we review
de novo. Gregg v. Rauner, 2018 IL 122802, ¶ 23 (citing Hawthorne v. Village of
Olympia Fields, 204 Ill. 2d 243, 254-55 (2003)). We follow the same rules for
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statutory interpretation that we use to construe constitutional provisions, and
statutory interpretation also presents a question of law that we review de novo.
People v. Wise, 2021 IL 125392, ¶ 23.
¶ 138 The ultimate issue in this case is whether the March 24, 2014, search of the
State’s EnCase file with a search warrant issued 243 days earlier, on July 24, 2013,
violated McCavitt’s constitutional and statutory rights. The legality of the March
24, 2014, search is a question of law we review de novo. People v. Bonilla, 2018
IL 122484, ¶ 10 (citing People v. Caballes, 221 Ill. 2d 282, 289 (2006)).
¶ 139 B. McCavitt Had a Constitutional Right
to Privacy in His Data Under Article I, Section 6,
of the Illinois Constitution
¶ 140 The Illinois Constitution, unlike the federal constitution, specifically codifies a
person’s right to privacy in one’s person, house, papers, and possessions against
unreasonable searches and seizures. Ill. Const. 1970, art. I, § 6. Privacy rights are
so important to Illinois citizens that the delegates to the sixth constitutional
convention codified them in Illinois’s constitution. See also id. § 1. “This court has
observed that the Illinois Constitution goes beyond federal constitutional
guarantees by expressly recognizing a zone of personal privacy, and that the
protection of that privacy is stated broadly and without restrictions.” Kunkel v.
Walton, 179 Ill. 2d 519, 537 (1997); see also Ill. Const. 1970, art. I, § 1. Therefore,
article I, section 6, of the Illinois Constitution gives McCavitt a right to privacy in
the data on his hard drive. Ill. Const. 1970, art. I, § 6.
¶ 141 C. The July 24, 2013, Search Warrant
Was Void 96 Hours After
Its Issuance Under Section 108-6 of the Code
¶ 142 The majority maintains that the March 24, 2014, search pursuant to the search
warrant issued on July 24, 2013, was reasonable (1) because of “the intervening
sexual assault prosecution” and (2) because of “the sheer volume of data in the
EnCase file.” Supra ¶ 108.
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¶ 143 The majority completely ignores the plain language of section 108-6 of the
Code (725 ILCS 5/108-6 (West 2020)). See supra ¶¶ 105-08. Section 108-6
provides, in pertinent part, as follows: “The warrant shall be executed within 96
hours [(four days)] from the time of issuance. *** Any warrant not executed within
such time shall be void and shall be returned to the court of the judge issuing the
same as ‘not executed’.” 725 ILCS 5/108-6 (West 2020).
¶ 144 The plain language of section 108-6 requires warrants to be executed and
searches to be conducted within 96 hours, or four days, after the date and time they
were issued, or the warrant is void. See id. The July 24, 2013, search warrant
directed the police who seized possession of McCavitt’s computer on July 17, 2013,
to “search and examine in greater detail *** an LG computer tower.” There is no
language in section 108-6 that tolls the running of the 96 hours (1) because of
intervening prosecutions, (2) because of the volume of data in a file being searched,
or (3) because of an arbitrator’s ruling or the police department’s collective
bargaining agreement (supra ¶ 25 n.2). See 725 ILCS 5/108-6 (West 2020). There
is also no evidence that the police requested that the trial judge extend the time for
the police to search the data on McCavitt’s hard drive. Finally, this court may not
depart from section 108-6’s plain language by reading into it exceptions,
limitations, or conditions the legislature did not express. Burge, 2021 IL 125642,
¶ 20.
¶ 145 The United States Supreme Court provides guidance on what happens when a
limitation provision in a search warrant statute expires. In Sgro v. United States,
287 U.S. 206, 208 (1932), a commissioner under the National Prohibition Act
(Prohibition Act) issued a search warrant on July 6, 1926, pursuant to 18 U.S.C.
§§ 613-616 (1926) (repealed). Section 11 of the Prohibition Act required that the
“ ‘warrant must be executed and returned to the *** commissioner who issued it
within ten days after its date.’ ” Sgro, 287 U.S. at 210 (quoting 18 U.S.C. § 621(1926)). The Prohibition Act also provided that “ ‘after the expiration of [the 10
days] the warrant, unless executed, is void.’ ” Id. (quoting 18 U.S.C. § 11 (1926)).
The government did not execute the warrant within 10 days of July 6, 1926. On
July 27, 1926, the commissioner redated and reissued the warrant, and the
government conducted the search. Id. at 208-09. The trial court denied the
defendant’s motion to suppress evidence seized under the invalid warrant and
admitted the evidence over the defendant’s objection. Id. at 208. The Second Circuit
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Court of Appeals affirmed. Id. (citing Sgro v. United States, 54 F.2d 1083 (2d Cir.
1932)).
¶ 146 The Supreme Court noted that there was no provision in the statute that
authorized the commissioner to extend the life of the warrant or to revive it. Instead,
the government was required to obtain a new warrant and to follow all of the
procedures under the statute. Id. at 211. The Supreme Court held that, because the
original warrant was issued on July 6 and was not executed within 10 days, it
became void and could not be redated or reissued by the commissioner. Id. at 210-
11 (citing 18 U.S.C. § 621 (1926)).
¶ 147 On March 24, 2014, 239 days after the search warrant expired on July 28, 2013,
Detective Feehan conducted a search of the EnCase file, leading to the discovery
of suspected child pornography. Because the July 24, 2013, search warrant expired
on July 28, 2013, and therefore was void (see id. at 208-09), the search warrant did
not confer any rights on the State or Detective Feehan to conduct the March 24,
2014, search of McCavitt’s data. The 243-day delay in searching McCavitt’s data
was unreasonable and violated McCavitt’s constitutional and statutory rights. Ill.
Const. 1970, art. I, § 6; 725 ILCS 5/108-6 (West 2020).
¶ 148 The July 24, 2013, search warrant expired on July 28, 2013, and was void (see
Sgro, 287 U.S. at 208-09), and the search the police conducted on March 24, 2014,
239 days after the search warrant expired, violated section 108-6 (see 725 ILCS
5/108-6 (West 2020); see also Sgro, 287 U.S. at 212). Moreover, any evidence that
Detective Feehan may have discovered in plain view on March 24, 2014, pursuant
to the void July 24, 2013, search warrant was the fruit of the illegal search and must
be suppressed. See Wong Sun v. United States, 371 U.S. 471, 485-88 (1963)
(holding that evidence seized during an unlawful search cannot be used as proof
against the victim of the search when the unlawful conduct of the police cannot be
purged from the primary taint). Therefore, following Sgro, I submit that the July
24, 2013, search warrant became void on July 28, 2013, and that, without a new
warrant, no search could take place after that date and any evidence seized was the
fruit of the illegal search. Id.- 36 -
¶ 149 D. McCavitt Had a Right to Have
His Hard Drive Returned Under Section 108-11
¶ 150 The majority takes the position that section 108-11 “contemplates a motion and
a hearing before an order is entered disposing of seized items.” Supra ¶ 82. I submit
that the majority is ignoring the plain language of the statute and, therefore, the trial
court’s failure to order the return of McCavitt’s property, instanter, cannot be
justified by McCavitt’s failure to file a written motion. See 725 ILCS 5/108-11
(West 2020).
¶ 151 Section 108-11 of the Code provides: “The court before which the instruments,
articles or things are returned shall enter an order providing for their custody
pending further proceedings.” 725 ILCS 5/108-11 (West 2020). There is nothing in
the plain language of section 108-11 to support the majority’s position that the
statute has a written motion or hearing requirement. See id. The majority has read
conditions into the statute—a requirement for a motion and a hearing—that are not
contained in the plain language of the statute. See id. The majority violates this
court’s well-established rules of statutory construction that the court will not depart
from the plain statutory language by reading in exceptions, limitations, or
conditions not expressed by the legislature. People v. Wise, 2021 IL 125392, ¶ 23.
The majority ignored the language in section 108-11 of the Code when it found that
McCavitt failed to file a motion or request a hearing for return of his computer and
the data on his hard drive. Supra ¶ 82.
¶ 152 When the State seizes property pursuant to a valid warrant (the July 24, 2013,
search warrant expired on July 28, 2013, and was void), the custody and disposition
of the seized property is controlled by section 108-11 of the Code. See People
ex rel. Carey v. Covelli, 61 Ill. 2d 394 (1975); 725 ILCS 5/108-11 (West 2020).
This court has construed section 108-11 to be the applicable statute when a person
seeks the return of property seized by the State. See Covelli, 61 Ill. 2d 394. In
Covelli, the plaintiffs sought the return of their deceased father’s property that
police seized pursuant to a search warrant to discover the identity of the person who
murdered their father. Id. at 398. The plaintiffs argued that section 114-12(a) of the
Code (Ill. Rev. Stat. 1973, ch. 38, ¶ 114-12) did not provide a remedy for the return
of their father’s property because there were no “defendants” in the case, as no one
had been charged with the murder. Covelli, 61 Ill. 2d at 402. This court rejected the
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plaintiffs’ argument and pointed out that the plaintiffs had “failed to consider article
108 of the Code.” Id. This court held that section 108-11 of the Code provided
protection to the plaintiffs’ interests in their “property and privacy.” Id. at 403.
¶ 153 Section 108-11 gave the trial court, upon McCavitt’s March 19, 2014, acquittal
with the entry of the not guilty jury verdict, the authority to order the return of
McCavitt’s property instanter since the statute did not require McCavitt to file a
motion or the judge to hold a hearing. 725 ILCS 5/108-11 (West 2020). It should
be noted that, after a hearing on McCavitt’s written motion, the trial judge ordered
the return of McCavitt’s guns but continued the remainder of the motion. The trial
judge abused his discretion by failing to order a return of the EnCase file upon
McCavitt’s acquittal and his attorney’s oral motion on March 19, 2014, because,
without a motion or hearing requirement, section 108-11 of the Code gave the trial
court authority, sua sponte, to enter an order directing the State to return McCavitt’s
seized property. See id.¶ 154 1. McCavitt’s Right to His Computer Data
Was Never Lost So It Did Not Need to Be Restored
¶ 155 The majority maintains, without citation of authority, that McCavitt’s acquittal
only partially restored his expectation of privacy in his data. Supra ¶ 72. The
majority takes the position that, after the March 19, 2014, acquittal, the July 24,
2013, search warrant “still authorized a search for evidence of unauthorized video
recording[s].” Supra ¶ 106. The majority cites the double jeopardy provision in
support of its position that upon McCavitt’s acquittal he only “regained a
reasonable expectation that the police would not search his computer for evidence
of the offenses of which he was acquitted [on March 19, 2014.]” Supra ¶ 76.
¶ 156 I disagree. The double jeopardy provision only prevents McCavitt from being
tried a second time for the criminal sexual assault offenses for which he was
acquitted. See Ill. Const. 1970, art. I, § 10 (“No person shall be *** twice put in
jeopardy for the same offense.”). The double jeopardy provision did not determine
whether McCavitt’s article I, section 6, right to privacy in his computer data was
fully restored upon his acquittal.
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¶ 157 Illinois’s constitution and statutes codify a right to vote, serve on a jury, and
hold public office. See Ill. Const. 1970, art. III, § 1; id. art. XIII, § 1; 705 ILCS
305/1, 2 (West 2020); see Hoskins v. Walker, 57 Ill. 2d 503, 508-09 (1974) (finding
the right to be a candidate for office is not absolute and limitations may be imposed
by the legislature). Upon conviction of a felony, Illinois’s constitution and statutes
provide that a person shall lose the rights to vote, to serve on a jury, and to hold
public office. See Ill. Const. 1970, art. III, § 2; id. art. XIII, § 1; 705 ILCS
305/2(a)(3) (West 2020). Illinois’s constitution and statutes also provide that
certain rights that are lost because of a conviction of a felony are immediately
restored upon completion of the sentence. Ill. Const. 1970, art. III, § 2; 730 ILCS
5/5-5-5(a), (b), (c) (West 2020); 705 ILCS 305/2(a)(3) (West 2020) (“Jurors must
be: *** [f]ree from all legal exception”). Illinois statutes also provide that the rights
to vote, to serve on a jury, and to hold public office are automatically restored no
later than upon the completion of any sentence for a felony conviction. 705 ILCS
305/2(a)(3) (West 2020); 730 ILCS 5/5-5-5(a), (b), (c) (West 2020). A conviction
does not result in the loss of any “civil rights” except as provided by section 5-5-5
of the Unified Code of Corrections (730 ILCS 5/5-5-5 (West 2020)) or sections 29-
6 and 29-10 of the Election Code (10 ILCS 5/29-6, 29-10 (West 2020)).
¶ 158 It should be noted that neither Illinois’s constitution nor its statutes provide for
a loss of the right to privacy at any time. See Ill. Const. 1970; 730 ILCS 5/5-5-5
(West 2020). I submit that the right to privacy in one’s property, like the rights to
vote, serve on a jury, and hold public office, can only be lost, if lost at all, upon
conviction of a felony. See Ill. Const. 1970, art. III, § 2; id. art. XIII, § 1; 705 ILCS
305/2(a)(3) (West 2020).
¶ 159 Here, McCavitt was only charged with criminal offenses for which he was
presumed innocent. See People v. Robinson, 167 Ill. 2d 53, 74 (1995). Because
McCavitt was acquitted and had not been convicted of a felony on March 19, 2014,
he never lost his right to his property and was not required by section 108-11 to
take any action, including filing a motion, to have the trial judge return his property.
725 ILCS 5/108-11 (West 2020); see also Ill. Const. 1970, art. I, § 6; id. art. I, § 13;
id. art. XIII, § 1; 705 ILCS 305/2(a)(3) (West 2020); 730 ILCS 5/5-5-5(a), (b), (c)
(West 2020). Therefore, since McCavitt’s article I, section 6, right to his property
was never lost, and since the two images of child pornography were found by
Detective Feehan on March 24, 2014, five days after McCavitt’s acquittal, his
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property should have been returned instanter upon his acquittal by the trial judge
because he had an inherent and inalienable right to “the protection of [his]
property.” Ill. Const. 1970, art. I, § 1.
¶ 160 2. The Majority’s Reliance on Hughes Is Misplaced
¶ 161 The majority maintains that McCavitt’s acquittal did not nullify the July 24,
2013, search warrant entirely (supra ¶ 85) and cites People v. Hughes, 958 N.W.2d
98 (Mich. 2020) (en banc), to support its position (supra ¶ 90). According to the
majority, the March 24, 2014, search for evidence of McCavitt’s video recordings
was within the scope of that portion of the void July 24, 2013, search warrant for
the uncharged offenses ((1) unlawful restraint and (2) unauthorized video recording
and live video transmission) that were not resolved by McCavitt’s acquittal. Supra
¶ 89. Therefore, the majority argues the March 24, 2014, search was “consistent
with the warrant.” Supra ¶ 104.
¶ 162 The majority’s argument presumes the July 24, 2013, search warrant was valid
and ignores section 108-6 of the Code, which provides that a warrant must be
executed and the search conducted within 96 hours after it is issued or it is void.
See 725 ILCS 5/108-6 (West 2020). The majority never explains how a search
warrant that was issued on July 24, 2013, and that became void on July 28, 2013,
could be used to execute a search of McCavitt’s computer hard drive and data on
March 24, 2014, fully 243 days after it was issued. See id.; Riley v. California, 573
U.S. 373, 403 (2014) (requiring a warrant before the state may search electronic
data).
¶ 163 Finally, the majority’s reliance on Hughes is misplaced. Hughes was a
Michigan case where the police obtained a warrant for drug dealing and, during a
search of the defendant’s cell phone data, discovered evidence of the defendant’s
involvement in an armed robbery. Hughes, 958 N.W.2d at 105-06. The Hughes
court held that the police were permitted to seize and search the data on the cell
phone “only to the extent reasonably consistent with the scope of the warrant.” Id.
at 111.
¶ 164 First, Hughes is inapposite because the Michigan warrant in Hughes was valid,
but in this case the police based their search on the July 24, 2013, search warrant
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that was void because it was issued 243 days before the search was conducted by
the police. Id. Second, Hughes is also inapposite because there was no Michigan
statute like section 108-6 of the Code that placed a 96-hour limit on the execution
of a search warrant by the police. See id. at 106; Mich. Comp. Laws § 780.651(2014). Third, Hughes is inapposite because the defendant in Hughes was not
acquitted of certain charges delineated in the warrant. Hughes, 958 N.W.2d at 104-
05. Therefore, because Detective Feehan could not conduct a search for data within
the scope of the void July 24, 2013, search warrant, Hughes provides no support
for the majority’s position.
¶ 165 CONCLUSION
¶ 166 McCavitt had a constitutional right to the control and possession of his data
until the issuance of the July 17, 2013, and July 24, 2013, search warrants. Riley,
573 U.S. at 386. Upon the issuance of the July 17, 2013, and July 24, 2013, search
warrants, McCavitt’s right to his property was temporarily suspended but was never
lost because he had not been convicted of a felony on March 24, 2014, and the
warrants gave the police 96 hours to search the data on his hard drive. In light of
the fact that the July 24, 2013, search warrant became void on July 28, 2013,
McCavitt’s March 19, 2014, acquittal immediately restored his right to the
immediate return of the data in the State’s EnCase file. The evidence the police
discovered after July 28, 2013, was the fruit of an illegal search with a void search
warrant and should not have been admitted into evidence against McCavitt. The
legislature should amend section 108-11 of the Code and make it clear that, after
an acquittal, a citizen’s property (1) that is seized pursuant to a valid search warrant
and (2) that is not contraband or obscene must be returned instanter. Therefore, I
respectfully dissent, and I would affirm the appellate court’s judgment and remand
this case to the circuit court with directions to exclude all evidence that was
discovered by the police during the illegal search conducted by the police after July
28, 2013.
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