California Court of Appeals, First District, Second Division
[As modified Oct. 10, 2014]
Mendocino County Superior Court No. SCTMCRCR 11-19131 Clayton L. Brennan Judge
[Copyrighted Material Omitted]
Maria Leftwich, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris Attorney General, Dane R. Gillette Chief Assistant Attorney General, Gerald A. Engler, Assistant Attorney General, Eric D. Share and Ronald E. Niver Deputy Attorneys General for Plaintiff and Respondent.
Appellant, Michael E., was charged with possession of material depicting a person under the age of 18 engaging in or simulating sexual conduct, a felony. (Pen. Code, § 311.11, subd. (a).) After his motion to suppress evidence was heard and denied, appellant entered a plea of guilty. The trial court suspended imposition of sentence and placed appellant on probation for three years subject to specified terms and conditions.
The sole issue presented is whether, as appellant claims, the trial court erred in denying his motion to suppress video files found in a search of his computer because the warrantless search conducted by the police exceeded the scope of a prior private search and therefore violated “a subjective expectation of privacy that society recognizes as reasonable.” (Kyollo v. United States (2001) 533 U.S. 27, 33 [150 L.Ed.2d 94, 121 S.Ct. 2038].) We conclude that the police’s subsequent search of appellant’s computer did exceed the scope of the private search and that the trial court therefore erred in denying appellant’s motion to suppress.
FACTS AND PROCEEDINGS BELOW
On September 27, 2011, appellant brought his computer to Sage’s Computer in Fort Bragg for servicing. In the course of working on the computer, Sage Statham viewed images on the computer of what appeared to him “to be underage girls engaged in sexual activity.” Statham felt it appropriate to call the Fort Bragg Police Department to inquire whether these materials were “something that they should be looking at.” Officer Brian Clark, who responded to the phone call and viewed the files at Statham’s computer repair shop, stated that although the girls in the photos he viewed were posing in a sexual manner, none of them were nude or “engaging in sexual activity or simulating any sexual activity.”
Indicating he did not consider the images pornographic, Clark asked Statham whether he “could search through and look at” anything else in the computer. After further examining appellant’s computer files, Statham found video files he had not previously noticed. When directed by Officer Clark to open these files, Statham tried to but was unable to do so. Statham was, however, able to put the video files on a USB flash drive,  which he gave to Officer Clark. Officer Clark took the flash drive to the Fort Bragg Police Department. When he was unable to open the files on his own computer, Clark gave the flash drive to Sergeant Lee, who was able to open and view the videos it contained. Lee informed Clark that he considered the videos “juvenile pornographic material.” Clark, who also viewed the videos, described them as depicting “[f]emale juveniles engaged in sexual activity.” The next day appellant’s computer was seized by Officer Lopez.
On October 12, 2012, after he had waived a preliminary hearing, appellant filed a motion to suppress the evidence seized from his computer and also a demand that the People produce at the suppression hearing “any and all search warrants and arrest warrants relied upon by the prosecution to justify the searches of [his] property.” The district attorney maintained that the motion to suppress lacked merit “for two independent reasons. First, the evidence was not obtained by [Sage Statham] illegally, and hence the Fourth Amendment does not apply. Second, [appellant’s] expectation of privacy was destroyed once Statham as a private citizen made the search and revealed his findings to the police; hence any additional investigation by the police of additional ‘folders’ on that same computer was not the fruit of any poisonous
tree.” At no time prior to the challenged searches of appellant’s computer had the police obtained a search warrant.
For reasons later described, the trial court denied appellant’s motion to suppress.
The legal question presented in this case is whether the trial court erred in determining that the searches of appellant’s computer that took place after Officer Clark arrived at Statham’s repair shop were within the scope of Statham’s prior search of appellant’s computer.
I. Trial Court Background
The trial court’s factual findings, set forth in the ruling denying the motion to suppress, and not challenged, are as follows:
“1. Before calling the police, Statham had viewed only the photographic images of juveniles wearing little clothing and posing inappropriately.
“2. The images of the juveniles were sexually suggestive, but not necessarily pornographic.
“3. Statham and Officer Clark happened upon the video files while Statham was trying to show Clark the photographic images that caused him to contact the police in the first place.
“4. Statham had not seen the video files nor tried to open them prior to ...