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Criminal Law FLASHPOINTS November 2021

Matthew R. Leisten, Ogle County State’s Attorney’s Office, Oregon
815-732-1170 | E-mail Matthew R. Leisten

Illinois Supreme Court Upholds Second Search Warrant of Computer for Child Pornography and Unauthorized Recording After Acquittal on Criminal Sexual Assault Charges

In People v. McCavitt, 2021 IL 125550, the Illinois Supreme Court upheld a second search warrant of a defendant’s computer that had been seized and searched in a sexual assault investigation in which he was acquitted. The subsequent search of the computer resulted in convictions for child pornography and unauthorized video recording.

The McCavitt court provided updated holdings on digital evidence issues such as expectation of privacy, plain-view observations during a search, double jeopardy effects on a search, and timeliness of a digital search warrant execution.

In McCavitt, police obtained a search warrant to search the defendant’s computer for digital images for evidence of aggravated criminal sexual assault, unlawful restraint, and unauthorized recording. 2021 IL 125550 at ¶19. The police found evidence of the sexual assault and a video secretly recorded of a woman in his bathroom. 2021 IL 125550 at ¶18. The forensic examiner copied the hard drive to his work computer using EnCase software and returned the defendant’s computer to the Illinois State Police. 2021 IL 125550 at ¶21. The forensic examiner found evidence of the sexual assault on the hard drive, and the defendant was charged with criminal sexual assault and aggravated criminal sexual assault. In 2014, he was acquitted of all criminal sexual assault charges. 2021 IL 125550 at ¶22.

The day after the acquittal, a Peoria detective obtained a copy of the EnCase file from the forensic examiner. The detective began analyzing the EnCase file and found suspected child pornography and unauthorized bathroom recordings. The detective stopped his analysis and obtained a search warrant to search the EnCase file for child pornography. 2021 IL 125550 at ¶¶25 – 26. Simultaneously, the defendant asked the trial court to return all of his property in the sexual assault case. The trial court ordered that only the defendant’s guns be returned. 2021 IL 125550 at ¶27.

The defendant was subsequently charged with unauthorized video recording. 2021 IL 125550 at ¶29. The detective then obtained a new search warrant to continue searching the EnCase file for child pornography. The defendant was subsequently charged with child pornography. 2021 IL 125550 at ¶32. The defendant moved to suppress the EnCase search warrant on the basis that the detective conducted a warrantless search of his computer because no charges were pending and that the trial court should have returned his computer and hard drive after the first trial. 2021 IL 125550 at ¶33.

The Supreme Court found that the detective’s initial examination of the EnCase file before he obtained a search warrant constituted a “search” under the Fourth Amendment. 2021 IL 125550 at ¶62. The court also found that the defendant’s privacy interest extended to the data that was transferred from his computer to the EnCase file. However, the court cautioned that a defendant’s property interest in the data was not dispositive of the search’s reasonableness because otherwise mere proof of ownership in a place or item would be sufficient for suppression. 2021 IL 125550 at ¶69.

The McCavitt court held that the 2014 search warrant diminished the defendant’s reasonable expectation of privacy in the images and videos that he stored on his computer. However, only his expectation of privacy regarding evidence of the sexual assault was restored, and it was not restored in regard to the evidence of child pornography and unauthorized recording. 2021 IL 125550 at ¶6.

The court next held that the defendant’s acquittal on the sexual assault charges only partially restored his reasonable expectation of privacy in his computer. 2021 IL 125550 at ¶72. The court clarified that double jeopardy protected the defendant against only another prosecution for the sexual assault and restored his reasonable expectation of privacy in data that was evidence of the assault. 2021 IL 125550 at ¶76. However, the court disagreed with the defendant that his acquittal on the sexual assault charges entitled him to have his computer and copies of data returned and that his entire expectation of privacy was restored. 2021 IL 125550 at ¶77.

The court also concluded that the child pornography evidence was admissible under the plain-view doctrine when it was discovered during the execution of the warrant looking for evidence on the unauthorized recording. 2021 IL 125550 at ¶113. The detective testified at a hearing that the discovered child pornography images were immediately apparent to him while searching for unauthorized recording evidence. The detective stopped his search and obtained another search warrant to search for child pornography. 2021 IL 125550 at ¶114.

The court noted that the original search warrant was directed toward both the sexual assault and unauthorized recording allegations. The court rejected the defendant’s contention that his acquittal completely nullified the search warrant. 2021 IL 125550 at ¶85.

The court further held that an officer’s search of digital data must be reasonably directed at finding evidence of the criminal activity identified in the warrant. 2021 IL 125550 at ¶98. The court noted that in this case, the 2013 search warrant also authorized a search for unauthorized video evidence in addition to the sexual assault evidence. Although double jeopardy protected the defendant from being prosecuted further on any sexual assault evidence, he still could have been charged with unauthorized recording. 2021 IL 125550 at ¶100. Therefore, the detective’s search of the computer was consistent with the 2013 warrant. 2021 IL 125550 at ¶104.

The McCavitt court next addressed whether the detective’s search was untimely because it was conducted eight months after the 2013 search warrant was issued. The court stated that despite the acquittal, the warrant still authorized a search for evidence on the unauthorized recording. The court agreed with the appellate court’s statement that the Fourth Amendment “does not place explicit limits on the duration of any forensic analysis authorized by a warrant.” 2021 IL 125550 at ¶106.

The court pointed out that although there was no longer probable cause to search the EnCase file for evidence on the sexual assault, the probable cause to search for evidence on the unauthorized recording never dissipated because the data remained secured and unaltered in the EnCase file. 2021 IL 125550 at ¶108. The court determined that the eight-month period between the issuance of the warrant to the detective’s search was reasonable when considering the sexual assault prosecution, which required the police department to delay its own internal investigation, and the sheer volume of the EnCase file. Id.

Justice Neville dissented and concluded that the 2013 search warrant was void because it was not executed within 96 hours. 2021 IL 125550 at ¶141. Justice Neville also stated that the defendant had a right to have his hard drive returned to him under 725 ILCS 5/108-11 without a hearing being held. 2021 IL 125550 at ¶150. Justice Neville also disagreed with the majority’s holding that the defendant’s acquittal only “partially restored” his expectation of privacy in the data; Justice Neville stated that only a felony conviction can cause one to lose one’s expectation of privacy in one’s property. 2021 IL 125550 at ¶158.

For more information about criminal law, see FEDERAL CRIMINAL PRACTICE (IICLE®, 2019). Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions.

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