GEORGIA COURT UPHOLDS WARRANTLESS SEIZURE OF COMPUTERS FROM RESIDENCE
by Brian S. Batterton, Attorney
©2011 Brian S. Batterton, Attorney, PATC Legal & Liability Risk Management Institute (www.llrmi.com) Hesrick v. State
On March 10, 2011, the Court of Appeals of Georgia, decided Hesrick v. State [i], which serves as an excellent review of the “exigent circumstance” exception to the search warrant requirement of the Fourth Amendment. The relevant facts of Hesrick, taken directly from the case are as follows:
[O]n November 28, 2008, two officers with the Savannah-Chatham Metropolitan Police Department were dispatched to the scene of a domestic dispute. Upon arrival, they encountered a man, Cody Hoffman, in the front yard. Hoffman was the person who had called the police, and he told the officers that he and the homeowner, Hesrick, had been in a fight earlier that day and that Hesrick had "basically kicked" him out of the residence.
The officers knocked on the front door, and Hesrick unlocked the door and let them into the house…Hesrick confirmed that Hoffman had been staying at the house "off and on for quite some time," and said that he wanted the officers to remove Hoffman from his house. The officers explained to Hesrick the legal process of eviction, and Hesrick stated that he would take care of that the next morning.
While Hesrick stood in the doorway to the house, the officers went outside and spoke to Hoffman again, telling him that Hesrick wanted to evict him. Hoffman responded that he had already made arrangements to leave the house, but then told the officers that "things were much more serious than . . . what [the officers] were called for that day." When asked what he meant, Hoffman said that, earlier that day, he had seen Hesrick looking at child pornography on his computer, that he had told Hesrick that the pictures were illegal, and that an argument had ensued, leading to a fight. Hoffman told the officers that Hesrick had "gotten in trouble with child pornography in Chicago" before he moved to Savannah. Hoffman also told the officers that, when Hesrick learned that he had called the police, Hesrick removed the computer's external hard drive and put it in a shed in the backyard. Hoffman then warned the officers that, if they asked Hesrick about the child pornography, Hesrick would destroy the evidence.
At some point while the officers were talking to Hoffman, Hesrick retreated back into the house and locked the front door. After hearing Hoffman's allegations about the child pornography, the officers decided to talk to Hesrick again and knocked on the front door. After a few minutes, Hesrick opened the door and let the officers inside the front room, and the officers asked Hesrick where he was from. According to one officer, Hesrick immediately became "pissed off" and said that he was from Chicago. The officers then asked Hesrick if he had child pornography on his computer. Hesrick asked the officers what constituted child pornography, and the officers explained that it would be images of children under the age of 18 in "explicit acts, without clothing." According to the officers, Hesrick stated that "he did have that on his computer" and that he had been looking at it. When asked if he would show them the pictures, however, Hesrick responded that he did not know what material they were talking about and that they would need a search warrant to find out any further information.
At that point, one of the officers contacted a sergeant with the Special Victims Unit, explained the situation, and asked for guidance, and the sergeant told him to seize all of the computers and other media that were in plain view due to the possibility that Hesrick was going to destroy the evidence. The officers seized a laptop computer that they saw in the corner, as well as a desktop computer that was in another room, and locked them in their patrol car. The officers walked through the house looking for any other computer equipment that was sitting in plain view, but they found nothing. Although one of the officers also looked inside the door to the backyard shed, he did not see an external hard drive. When the officers asked Hesrick about the external hard drive, he denied having one. Hesrick then told the officers that, before they were able to get a search warrant to look for additional evidence, he would destroy the evidence…[ii]
A few days later, detectives obtained and executed a search warrant and obtained additional evidence from Hesrick’s residence. The computers that were seized during the initial incident on November 28 were also searched pursuant to the warrant and evidence was obtained. Hesrick subsequently was convicted of sexual exploitation of children under Georgia law at a bench trial.
Hesrick then appealed to the Court of Appeals of Georgia and argued that the initial warrantless seizure of his computers was unreasonable under the Fourth Amendment, and evidence obtained from those computers should not be admissible. Hesrick does not challenge any other evidence that was seized pursuant to the search warrant. Thus, the only issue before the court was whether the warrantless seizure of Hesrick’s computers from his residence was reasonable under the Fourth Amendment based upon the ‘exigent circumstance’ exception to the search warrant requirement.
In examining this issue, the court of appeals noted five important rules that must be considered. The rules are as follows:
It is a basic principle of Fourth Amendment law that searches and seizures inside a home without a warrant are presumptively unreasonable. Nevertheless, because the ultimate touchstone of the Fourth Amendment is 'reasonableness,' the warrant requirement is subject to certain exceptions. [iii] [internal quotations omitted]
Among these exceptions is when exigent circumstances exist which require the immediate action of law enforcement officers, in other words, when the exigencies of the situation make the needs of law enforcement so compelling that the warrantless search is objectively reasonable under the Fourth Amendment. [iv] [internal quotations omitted]
An action is 'reasonable' under the Fourth Amendment, regardless of the individual officer's state of mind, as long as the circumstances, viewed objectively, justify the action. The officer's subjective motivation is irrelevant. [v]
One example of such an exigent circumstance is when the circumstances preceding an officer's warrantless search and seizure demonstrate that the officer had an objectively reasonable basis for fearing the imminent destruction of the evidence at issue before a search warrant could be obtained. [vi]
Whether exigent circumstances existed is a question of fact, and we review police actions from the standpoint of a hypothetical reasonable officer and must measure those actions from the foresight of an officer acting in a quickly developing situation and not from the hindsight of which judges have benefit. [vii] [internal quotations omitted]
The court of appeals then examined the facts as determined by the trial court in light of the above rules. The court noted that the trial court held that (1) prior to entering Hesrick’s residence the officer’s had reasonable suspicion that he possessed child pornography, (2) Hesrick voluntarily let the officer’s into his house, (3) Hesrick admitted that he possessed child pornography, and (4) Hesrick told the officers that the child pornography was easy to destroy. [Authors note: While not specifically mentioned in the case, the admission by Hesrick that he possessed computer child pornography provided the officers with probable cause to believe evidence of the crime was contained on his computers.]
Since the officers possessed probable cause to believe that Hesrick’s computers contained child pornography, and in light the fact that child pornography on computers is easily destroyable, the court of appeals upheld the warrantless seizure of the computers due to the ‘exigent circumstance’ exception to the search warrant requirement as it pertains to preventing the destruction of evidence. Specifically, the court stated
[W]e find no error with the trial court's conclusion that the warrantless seizure of the computers was authorized by exigent circumstances, specifically, the objectively reasonable concern that the seizure was necessary to prevent Hesrick's imminent destruction of the computer images of child pornography, images that were vulnerable to quick destruction, irreplaceable, and essential to proving that a crime had been committed. [viii]
As such the court of appeals upheld the decision of the trial court.
Note: Court holdings can vary significantly between jurisdictions. As such, it is advisable to seek the advice of a local prosecutor or legal advisor regarding questions on specific cases. This article is not intended to constitute legal advice on a specific case.
SEE RELATED ARTICLES:
Computer Search Warrants: Where Can We Look? US v. MANN (Legal Update 2010)
Legally Speaking, Your Computer IS a Cell Phone (2011 Legal update)
No Warrant Needed to Search Cell Phones in California (PATCtech Blog 2011)
BROWSE ARTICLE ARCHIVES AT http://www.llrmi.com/articles/
[i] A10A1770, 2011 Ga. App. LEXIS 189 (2011)
[ii] Id. at 2-6
[iii] Id. at 9 (quoting Brigham City v. Stuart, 547 U.S. 398, 403 (II) (164 L. Ed. 2d 650, 126 S. Ct. 1943) (2006))
[iv] Id. (quoting Stuart, 547 U.S. 403-404)
[v] Id. at 10
[vi] Id. (citing James v. State, 294 Ga. App. 656, 658-660 (670 SE2d 181) (2008))
[vii] Id. at 10-11 (quoting Lawrence v. State, 298 Ga. App. 94, 97-98 (679 SE2d 94) (2009))
[viii] Id. at 11