State v. McDonnell

State of Maryland v. Daniel Ashley McDonnell, No. 36, September Term, 2022 CONSTITUTIONAL LAW – FOURTH AMENDMENT – SEARCHES AND SEIZURES – REASONABLE EXPECTATION OF PRIVACY – CONSENT – FORENSIC COPY OF DIGITAL DATA – Supreme Court of Maryland held that defendant had reasonable expectation of privacy in data stored on his laptop’s hard drive, whether data was electronically stored on his hard drive or government’s copy of hard drive made with defendant’s consent. Defendant’s reasonable expectation of privacy was not eliminated by government’s copying of hard drive because no data was exposed prior to his withdrawal of consent. Supreme Court held that, under circumstances of defendant’s consent, reasonable person would not think that government could examine data on copy after withdrawal of consent when no examination occurred prior to withdrawal. Government’s examination of data after defendant withdrew consent was search, which was unreasonable because government lacked any authority to conduct search, by warrant or exception to warrant requirement.

Circuit Court for Anne Arundel County Case No. C-02-CR-21-000487 Argued: June 2, 2023 IN THE SUPREME COURT OF MARYLAND* No. 36 September Term, 2022 ______________________________________ STATE OF MARYLAND v. DANIEL ASHLEY MCDONNELL ______________________________________ Fader, C.J. Watts Hotten Booth Biran Gould Eaves, JJ. ______________________________________ Opinion by Watts, J. ______________________________________ Pursuant to the Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this Filed: July 7, 2023 document is authentic. 2023-07-17 10:08-04:00 Gregory Hilton, Clerk *At the November 8, 2022 general election, the voters of Maryland ratified a constitutional amendment changing the name of the Court of Appeals of Maryland to the Supreme Court of Maryland. The name change took effect on December 14, 2022. In this case, we must determine what protection, if any, the Fourth Amendment provides to a person who voluntarily consents to the government seizing his laptop computer, creating an exact copy of its hard drive, and searching the data on it, but who, after the copy is made but before the government has examined the data, withdraws the consent. We must decide whether, for Fourth Amendment purposes, the consensual creation of a copy of the hard drive permanently eliminates the laptop owner’s privacy interest in the data on the hard drive, i.e., what impact the owner’s withdrawal of consent has on the government’s right to examine the data on the copy.

In this case, we conclude that Daniel Ashley McDonnell, Respondent, had a reasonable expectation of privacy in the data contained on his hard drive, whether the data was electronically stored on his laptop’s hard drive or the government’s computer via a copy of the hard drive. We hold that, because the government did not examine the data before he withdrew his consent, Mr. McDonnell did not lose his reasonable expectation of privacy in the data, and the examination of the data was a search. As such, we conclude that the government conducted an unreasonable search by examining the data without any authority to do so, by a warrant or an exception to the warrant requirement. We, therefore, affirm the judgment of the Appellate Court of Maryland1 reversing the Circuit Court for Anne Arundel County’s decision that examination of the data was not a search in violation of the Fourth Amendment. 1 At the November 8, 2022 general election, the voters of Maryland ratified a constitutional amendment changing the name of the Court of Special Appeals of Maryland to the Appellate Court of Maryland.

The name change took effect on December 14, 2022. BACKGROUND On June 1, 2019, agents of the United States Army Criminal Investigation Command (“USACIDC”)2 visited Mr. McDonnell’s home for a “knock-and-talk” with him. Lacking a warrant, the agents asked for Mr. McDonnell’s consent to search his home, phone, and computers as part of an investigation into his possession and distribution of child pornography. Mr. McDonnell declined.

On July 12, 2019, however, Mr. McDonnell met with the agents and signed a written consent form, permitting the agents to search his home and seize electronic devices. With his signature on the consent form and initials next to each paragraph of the document, Mr. McDonnell indicated his understanding of and consent to the search of his home and the seizure and search of his electronic devices and media as follows: I have been informed of my right to refuse to consent to such a search. I hereby authorize the undersigned Special Agent, another Special Agent or other person designated by USACIDC, to conduct at any time a complete search of: . . . all digital media including cell[ ]phones, thum[b ]drive[s], hard disk drives, laptops & any other media relevant to this investigation. *** I understand that any contraband or evidence found on these devices may be used against me in a court of law. I relinquish any constitutional right to privacy in these electronic devices and any information stored on them.

I authorize USACIDC to make and keep a copy of any information stored on these devices. I understand that any copy made by USACIDC will become the property of USACIDC and that I will 2 In 2021, USACIDC was renamed the United States Army Criminal Investigation Division, or “CID.” See U.S. Dep’t of the Army Crim. Investigation Div., Our History, https://www.cid.army.mil/The-Agency/Our-Mission/ [https://perma.cc/7TGL-EWX4]. Because the events at issue occurred before the name change, we will refer to the agency as “USACIDC,” as the parties do. -2- have no privacy or possessory interest in the copy.

I give this written permission voluntarily. I have not been threatened, placed under duress, or promised anything in exchange for my consent. I have read this form or it has been read to me and I understand it. . . . I understand that I may withdraw my consent at any time.

(Some capitalization omitted). After Mr. McDonnell signed the consent form, the agents entered his home and seized a number of electronics, including a Dell laptop computer. Shortly thereafter, at their offices, the agents imaged,3 i.e., copied, the laptop’s hard drives,4 between July 12 and July 16, 2019. On July 19, 2019, counsel for Mr. McDonnell sent an email to USACIDC withdrawing “any purported consent to the seizure of [Mr. McDonnell’s] 3 Imaging a computer’s hard drive is the first of a two-step process in most forensic computer examinations: acquiring the data and analyzing it.

See Orin S. Kerr, Searches and Seizures in a Digital World, 119 Harv. L. Rev. 531 , 547 (2005). Imaging a hard drive “duplicates every bit and byte on the target drive including all files, the slack space, Master File Table, and metadata in exactly the order they appear on the original.” Id. at 541 (footnote omitted). This creates a replica of the computer’s data at the time of imaging that cannot be edited, but can be searched and analyzed.

See id. at 540 . The identical nature of this mirror-image (also called a bitstream) copy and the original drive is verified by a mathematical function called hashing. See id. at 541 . Imaging is necessary because of the length of time that a forensic analysis requires, and the ease with which data on a computer can be inadvertently changed or lost.

See id. at 540-41 ; Stephen Moccia, Bits, Bytes, and Constitutional Rights: Navigating Digital Data and the Fourth Amendment, 46 Fordham Urb. L.J. 162 , 184-85 (2019). 4 According to the Agent’s Investigation Report dated July 16, 2019, two hard drives from the Dell laptop were “imaged.” The agent who authored the report stated for each hard drive that “[t]he image was verified to be an exact, bit-for-bit-copy of the hard drive through a comparison of hash values with no errors.” The image copies of Mr. McDonnell’s hard drives were put onto a new hard drive and the new hard drive containing the copy of Mr. McDonnell’s hard drives was submitted to the agency’s evidence repository. In this opinion, we will refer to the hard drives imaged from Mr. McDonnell’s laptop as the “laptop’s hard drive” and the imaged copies as the “copy of the hard drive” or the “copy.” -3- laptop, or examination of its contents” and requesting the laptop’s return. On September 3, 2019, a Special Agent of the USACIDC’s Digital Forensics and Research Branch authored a report concerning the results of a forensic examination of the data on the copy of Mr. McDonnell’s hard drive, which the agent had conducted between August 5 and 20, 2019.

The report noted that the evidence examined was a hard disk drive containing the forensic images of the Dell laptop’s operating system hard disk drive and storage hard disk drive. The report stated that “no evidence of child pornography” was found but explained that “[a]n examination of the media revealed evidence of child pornography search terms in the internet browser history[.]” Proceedings in the Circuit Court On March 26, 2021, Mr. McDonnell was indicted in the circuit court on charges of possessing, promoting, and distributing child pornography. Thereafter, Mr. McDonnell filed an omnibus motion that included a request to suppress illegally seized evidence, and later filed a memorandum in which he asked the circuit court to suppress the evidence from the forensic examination of the copy of his laptop’s hard drive. On August 16, 2021, the circuit court held a hearing on Mr. McDonnell’s motion to suppress.

The relevant facts relating to the motion were not disputed. The State argued that “a valid consent to search carries with it the right to examine and photocopy” and that downloading and creating the “mirror image copy” of the hard drive of Mr. McDonnell’s laptop was “essentially photocopying digitally.” Continuing with that analogy, the State asserted that federal case law instructs that, once the originals of documents are returned, the government can lawfully retain photocopies and then examine them. Relying on our -4- holding in Varriale v. State, 444 Md. 400 , 119 A.3d 824 (2015), the State argued that, in circumstances involving DNA, blood samples, or firearms, the government can analyze samples even after consent has been withdrawn. The State contended that “once something was outside of the possession of the defendant, [] there was no more reasonable expectation” of privacy in the item.

Mr. McDonnell’s counsel asserted that the laptop was akin to the cell phone in Riley v. California, 573 U.S. 373 (2014), and, therefore, the agents needed authority both to seize it and then to examine its contents. Mr. McDonnell’s counsel contended that the language of the consent form purported to waive his Fourth Amendment rights and permit copying of the laptop, but did not permit the examination of the data on the copy. Mr. McDonnell’s counsel argued that applying this Court’s holding in Varriale concerning the ability to test DNA samples in a case that did not involve the withdrawal of consent would be contrary to the holding of the Supreme Court of the United States in Riley. At the conclusion of the hearing, the circuit court indicated that within one week’s time either party could submit research on whether defense counsel is authorized to withdraw consent.

On August 30, 2021, the circuit court issued a one-page order denying Mr. McDonnell’s motion to suppress. On September 24, 2021, the circuit court conducted a plea proceeding at which Mr. McDonnell entered a plea of not guilty with an agreed statement of facts, reserving the -5- right to appeal the circuit court’s denial of the motion to suppress.5 The prosecutor advised the circuit court of agreed-upon facts, which we summarize as follows. Special Agents of USACIDC had identified an IP address6 connected to a network that was sharing files depicting child pornography. The agents contacted Comcast to determine the IP address.

The result of a subpoena revealed that the IP address that was associated with the uploaded pornography came back as Comcast subscriber Daniel McDonnell at an address in Severn, Maryland. Thereafter, on June 1, 2019, the agents conducted a knock-and-talk with Mr. McDonnell and subsequently on July 12, 2019, Mr. McDonnell met with the agents and signed the written consent form. The laptop computer was copied between July 12 and 16, 2019. On July 19, 2019, Mr. McDonnell’s counsel sent an email withdrawing consent to search the laptop.

Between August 5 and 20, 2019, the copy of Mr. McDonnell’s hard drive was forensically analyzed. The forensic examination did not reveal images of child pornography; however, it did reveal that Mr. McDonnell had run “digital forensic deleting software” on June 7, 2019, a few days after the knock-and-talk. The examination also 5 In Maryland, a defendant can plead not guilty, forgo a full trial, and proceed “on an agreed statement of facts or stipulated evidence to preserve appeal on a suppression issue.” Bishop v. State, 417 Md. 1, 16 , 7 A.3d 1074, 1083 (2010). “Under an agreed statement of facts[,] both the State and the defense agree as to the ultimate facts” and “the facts are not in dispute[.]” Taylor v. State, 388 Md. 385, 396 , 879 A.2d 1074, 1081 (2005) (cleaned up). “The trier of fact is not called upon to determine the facts as the agreement is to the truth of the ultimate facts themselves. . . . To render judgment, the court simply applies the law to the facts agreed upon.” Id. at 396-97 , 879 A.2d at 1081 (cleaned up). 6 “The term ‘IP address’ is derived from the phrase ‘Internet protocol[,]’ and means ‘the numeric address of a computer on the Internet[.]’” State v. Sample, 468 Md. 560 , 572 n.6, 228 A.3d 171 , 179 n.6 (2020) (citing IP Address, Merriam-Webster, https://www. merriam-webster.com/dictionary/IP%20address [https://perma.cc/2C7G-TX4Q]) (alterations in original). -6- revealed that Mr. McDonnell had made recent searches with terms consistent with the search for child pornography.

The State introduced into evidence Exhibits 1 through 6, which, among other things, included images that the parties agreed would in fact have constituted child pornography, and were related to Counts I, II, and III of the indictment. The circuit court found Mr. McDonnell guilty of three counts of distribution of child pornography and sentenced him to ten years’ incarceration on each of the three counts, consecutively, for a total of thirty years’ incarceration, all suspended, and five years of supervised probation with the conditions that Mr. McDonnell register as a Tier II sex offender, have no unsupervised contact with minors, and allow authorities to monitor his computer and phone. Mr. McDonnell timely appealed. Opinion of the Appellate Court of Maryland On December 1, 2022, the Appellate Court of Maryland reversed the circuit court’s judgment.

See McDonnell v. State, 256 Md. App. 284 , 297, 286 A.3d 113 , 120 (2022). Relying on Riley, 573 U.S. 373 , the Appellate Court concluded that, “because individuals have a legitimate expectation of privacy in the digital data within their computer,” Mr. McDonnell’s “revocation of his consent to examine data from his laptop computer precluded a forensic examination of the mirror-image copy of its hard drive without a warrant.” McDonnell, 256 Md. App. at 296, 286 A.3d at 120. The Appellate Court did not accept the State’s argument that Mr. McDonnell had no privacy interest in the copy of the hard drive. See id. at 295-96, 286 A.3d at 119-20.

The Appellate Court distinguished Varriale, 444 Md. 400 , 119 A.3d 824 , and Wallace v. State, 373 Md. 69 , 816 A.2d 883 (2003), because, unlike the defendants in those -7- cases, Mr. McDonnell unequivocally revoked his consent, which “expressly limited or eliminated the examination of the data” and “reclaimed [his] reasonable expectation of privacy in the data.” McDonnell, 256 Md. App. at 296, 286 A.3d at 120. The Appellate Court held that, because Mr. McDonnell revoked his consent before the data on the copy was examined, the government’s examination of the data was precluded without a warrant. See id. at 296, 286 A.3d at 120. The Appellate Court relied on this Court’s discussion in Richardson v. State, 481 Md. 423 , 282 A.3d 98 (2022), regarding the “importance and sensitivity of digital information” and the need for courts to be vigilant in enforcing the requirements of the Fourth Amendment in the digital age, as support for its conclusion.

McDonnell, 256 Md. App. at 296, 286 A.3d at 120. The Appellate Court emphasized the obligation of courts to not allow “subtler and more far-reaching means of invading privacy [that] have become available to the Government . . . [to] erode Fourth Amendment protections.” McDonnell, 256 Md. App. at 296, 286 A.3d at 120 (quoting Carpenter v. United States, ___ U.S. ___, 138 S. Ct. 2206, 2223 (2018)) (internal quotation marks omitted). Petition for a Writ of Certiorari On January 19, 2023, the State petitioned for a writ of certiorari, raising the following two issues: 1. Did McDonnell lack any legitimate expectation of privacy in a mirror-image copy of his laptop hard drive that the government created with his consent, and as to which he expressly disclaimed any possessory or privacy interest before the copy was created? 2.

Did the Appellate Court of Maryland err in holding that McDonnell’s revocation of consent to examine the contents of his laptop -8- barred investigators from examining the mirror-image copy of his hard drive, when the post-withdrawal examination of the copy was not a search? On March 2, 2023, we granted the petition. See State v. McDonnell, 483 Md. 263 , 291 A.3d 776 (2023). DISCUSSION7 A. The Parties’ Contentions The State contends that USACIDC’s examination of the copy of the hard drive was not a search because Mr. McDonnell had consented to his laptop’s seizure, search, and copying.

According to the State, by consenting to the copying of his laptop’s hard drive, Mr. McDonnell “retain[ed] no reasonable expectation of privacy in any copies the government create[d] within that consent.” The State asserts that the lack of case law addressing “whether a defendant retains any reasonable expectation of privacy in copies of digital data created within the scope of consent” merits reliance on case law regarding photocopies of paper evidence for guidance. (Citation omitted). The State brings to our attention opinions from federal appellate courts, such as United States v. Ponder, 444 F.2d 816, 820 (5th Cir. 1971), and United States v. Ward, 576 F.2d 243, 244-45 (9th Cir. 1978), holding that a defendant’s consent to search also signifies consent to copy and that the government can retain and examine copies of papers made before consent is withdrawn. The State argues that courts in other jurisdictions have applied this approach and determined that a defendant has no reasonable expectation of privacy in a copy of digital 7 We address the two questions raised in the petition for certiorari together because of the interrelation of the issues. -9- data made while consent was in effect.

The State cites unreported decisions of federal District Courts that treated imaged copies of hard drives as photocopies of papers and determined that copying prior to revocation of consent allowed the ongoing use of the copies.8 The State argues that, in two cases, United States v. Lutcza, 76 M.J. 698, 703 (A.F. Ct. Crim. App. 2017), and United States v. Campbell, 76 M.J. 644, 658 (A.F. Ct. Crim. App. 2017), the United States Air Force Court of Criminal Appeals has reached the conclusion that a defendant consenting to the initial copying allows examination of the copied hard drive after the defendant withdraws consent. The State also asserts that, in United States v. Thomas, 818 F.3d 1230, 1242 (11th Cir. 2016), the Eleventh Circuit affirmed the validity of consent to the copying of files from the defendant’s computer with the use of a forensic tool and law enforcement’s reliance on the copy where the copy was made before consent was withdrawn but the examination occurred afterward.

The State contends that, because a warrantless search under the consent exception is legitimate only within the scope of the consent, we should assess the scope of Mr. McDonnell’s consent based on an objective standard of what a reasonable person would have understood the consent to include. According to the State, “[n]o reasonable person would let the government search their digital information, then expect to retain a privacy 8 The State cites United States v. Megahed, No. 8:07-cr-342-T23-MAP, 2009 WL 722481 (M.D. Fla. Mar. 18, 2009) (unreported order); United States v. Thomas, No. 8:13- cr-462-T-33-TBM, 2014 U.S. Dist. LEXIS 33443 (M.D. Fla.

Feb. 14, 2014) (unreported report and recommendation); United States v. Sharp, No. 1:14-cr-229-TCB, 2015 WL 4641537 (N.D. Ga. Aug. 4, 2015) (unreported order), contending that, under our precedent, although such citation “‘ordinarily is not appropriate,’” it is permissible in the face of a lack of authority on the issue. (Quoting Clancy v. King, 405 Md. 541 , 558 n.17, 954 A.2d 1092 , 1102 n.17 (2008)). - 10 - interest in copies that the government made with their consent.” (Emphasis in original). The State contends that, in this case, Mr. McDonnell lost any reasonable expectation of privacy when he signed a form consenting to the seizure, search, and copying of his laptop’s hard drive, and disclaiming his possessory and privacy interests in the copy.

The State asserts that this Court’s holding in Varriale, 444 Md. at 418-19, 423-24 , 119 A.3d at 835, 838-39 , supports its position because, in that case, we held that, by consenting to the use of his DNA in a rape investigation and any future criminal prosecution, without placing any constraints on its use, the defendant waived his expectation of privacy in the DNA sample with regard to the State’s subsequent analysis that linked him to an unrelated crime. For the State, because Mr. McDonnell similarly did not limit his consent when he gave it, he lost any privacy interest he had in the data on his laptop’s hard drive and the copy made while his consent remained in effect. The State contends that the Appellate Court erred by concluding that Mr. McDonnell’s withdrawal of consent after USACIDC copied his laptop’s hard drive precluded subsequent examination of data on the copy. According to the State, Mr. McDonnell’s withdrawal of consent after the copy was made did not change USACIDC’s ability to examine the copy, as the copy was USACIDC’s property.

The State asserts that the language on the consent form indicating that Mr. McDonnell could withdraw his consent at any time is not applicable, because, according to the form, once the copy was made, Mr. McDonnell had no privacy interest in the data on the copy. The State contends that the Appellate Court improperly applied the holding of the Supreme Court of the United States in Riley, which the State distinguishes as being focused - 11 - on the privacy interest implicated in a search of a cell phone’s data and not answering the question of whether law enforcement’s examination of a copy of digital data constitutes a search. The State asserts that Riley’s emphasis on a person’s privacy interest in the digital contents of a cell phone does not support the proposition that a person “always retains identical expectations of privacy in all copies of one’s digital data.” The State acknowledges that there is another view, as expressed by law professor Orin Kerr, that “[c]ourts should apply identical rules regardless of whether the data analyzed is the original version or a government-generated copy.” (Quoting Orin S. Kerr, Searches and Seizures in a Digital World, 119 Harv. L. Rev. 531 , 563 (2005)).

The State acknowledges that the Supreme Court of Illinois determined that this was the appropriate approach in People v. McCavitt, 185 N.E.3d 1192, 1207 (Ill. 2021), where the Court observed that the defendant had an informal privacy interest in his personal data and that this privacy interest extended to an image copy. According to the State, in McCavitt, after a defendant had been acquitted in a criminal case, a law enforcement officer re-examined a copy of the defendant’s computer that had been previously obtained pursuant to a search warrant and new charges were brought against the defendant. The State distinguishes McCavitt from this case, however, on the ground that, here, Mr. McDonnell consented to USACIDC copying the hard drive and, according to the State, treating it as USACIDC’s own property, thereby affirmatively relinquishing his privacy interest in it. In sum, the State asserts that, pursuant to the consent form signed by Mr. McDonnell, the copy of the hard drive was USACIDC’s property and, therefore, Mr. McDonnell had no privacy interest in the data on it at any time.

The State argues that the - 12 - forensic analysis of the copy was therefore not a search. The State contends that, under a reasonableness analysis, in signing the consent form, Mr. McDonnell disclaimed any privacy interest in the data on the copy of the hard drive. Mr. McDonnell responds that he “had a reasonable expectation of privacy in his digitally-stored personal information[.]” (Cleaned up). Mr. McDonnell asserts that, under Riley, 573 U.S. at 386, 393-94, a search of such information must be independently justified apart from any legal seizure of the physical apparatus containing the information or data, because searches of a cell phone or computer “bear ‘little resemblance’ to searches of containers like bags, which are ‘limited by physical realities’” or boundaries.

Mr. McDonnell contends that the Supreme Court of the United States reinforced the distinction between a privacy interest in digital information and its physical storage apparatus in Carpenter, 138 S. Ct. at 2213, 2219-20 , by holding that “an individual maintains a legitimate expectation of privacy in the record of his physical movements as captured through [cell site location information,]” collected and stored by a third party. According to Mr. McDonnell, recognizing this distinction, the Supreme Court therefore concluded that “the Government’s acquisition of the cell[]site records is a search and seizure within the meaning of the Fourth Amendment.” (Cleaned up). Mr. McDonnell contends that, in Richardson, 481 Md. at 472 , 282 A.2d at 126, this Court took the same approach by holding that an abandoned backpack could legitimately be searched without a warrant, but a warrant authorizing a search of information on a cell phone found therein did not satisfy the particularity requirement for search warrants. Mr. McDonnell argues that our holding in Richardson “necessarily recognizes an independent - 13 - expectation of privacy in information as distinguished from the digital media on which it is stored[.]” Mr. McDonnell asserts that, because he had a reasonable expectation of privacy in the information on his laptop, and because USACIDC did not examine the information before he withdrew his consent, the examination of the data thereafter was a search for which a warrant was required.

Mr. McDonnell argues that the USACIDC agents’ possession of the copy of his hard drive after he withdrew consent left them “in the same position as the officers in Riley and Richardson, who had lawfully seized the cell[ ]phones at issue but did not yet have authorization to search the information stored thereon.” Mr. McDonnell argues that forensic copies enjoy the same Fourth Amendment protections as originals and asserts that Katz v. United States, 389 U.S. 347, 352-53 (1967), and Walter v. United States, 447 U.S. 649, 652-54 (1980) (plurality opinion), stand for the proposition that, to have a reasonable expectation of privacy in a searched item, an individual need not have a possessory or property interest in the item. Mr. McDonnell contends that the Supreme Court applied this concept to the electronic and digital realm in United States v. Karo, 468 U.S. 705, 714-15 (1984), and Carpenter, 138 S. Ct. at 2219-20 , by recognizing the defendants’ privacy interests in their data or personal information despite their lack of a “property interest in the devices and media used to collect their personal information[.]” At bottom, Mr. McDonnell asserts, these cases instruct “that if an individual has a reasonable expectation of privacy in his personal information,” the person “retains that expectation regardless of where that information is stored[,]” i.e., the original hard drive or the copy of the hard drive. - 14 - For Mr. McDonnell, the act of copying, without accessing, the hard drive does not remove his privacy interest in the data on the hard drive. Mr. McDonnell contends that, in McCavitt, 185 N.E.3d at 1206 , the Supreme Court of Illinois came to the same conclusion where a hard drive was copied pursuant to a search warrant. Mr. McDonnell asserts that this approach is consistent with the principle reflected in a number of cases, including Richardson, that the justification needed for seizing an electronic device is distinct from the justification needed to search its digital contents.

Mr. McDonnell contends that the State erroneously relies on opinions treating a copy of a hard drive like a copy of a piece of paper, because “[t]he U.S. Supreme Court has already rejected the false equivalency between physical documents and digital media.” Mr. McDonnell asserts that, in Riley, 573 U.S. at 393, the Supreme Court dispositively ruled out the idea that searches of a cell phone’s digital contents and physical containers are “materially indistinguishable” because the breadth of information contained in a cell phone merits “privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse.” Mr. McDonnell points out that the Fourth Amendment’s “touchstone” is reasonableness and argues that it is unreasonable “to categorically equate digital media with paper documents” due to the difference in sophistication between the two, particularly because “a forensic copy of a personal device gives insight into ‘many distinct types of information’ that can ‘reveal much more in combination than any isolated record[,]’ Riley, 573 U.S. at 394[,]” in a way that copies of paper documents do not. Mr. McDonnell argues that, while his signing of the consent form made the seizure of his laptop reasonable under the Fourth Amendment and any search of it reasonable while - 15 - his consent was effective, by withdrawing his consent, he preserved a reasonable expectation of privacy in his unexamined digital data. Mr. McDonnell contends that consent can be withdrawn at any time and “does not extinguish the individual’s reasonable expectation of privacy[.]” Mr. McDonnell argues that his revocation of consent nullified the consent provided to USACIDC, including the disclaimer in the consent form of any “privacy or possessory interest in the copy” of his laptop. Mr. McDonnell maintains that accepting the State’s contention otherwise would allow consent to become permanent when framed as a “disclaimer” and that this would contravene the principle that consent can be withdrawn at any time.

Mr. McDonnell points out that the consent form itself in this case instructed that he could withdraw his consent “at any time.” In addition, Mr. McDonnell contends that this Court’s holding in Varriale is not dispositive because it did not involve a withdrawal of consent. B. Standard of Review “The validity of a suppression ruling is a mixed question of law and fact.” Richardson, 481 Md. at 444 , 282 A.3d at 110 (citation omitted). We consider only the record from the suppression hearing, which we assess in the light most favorable to the prevailing party, and we accept the trial court’s factual findings absent clear error. See id. at 444-45 , 282 A.3d at 110 .

However, when assessing the constitutionality of a search or seizure, we conduct “an independent constitutional evaluation . . . applying the law to the facts found in each particular case.” Id. at 445 , 282 A.3d at 110 (cleaned up). We review de novo any legal conclusions about the constitutionality of a search or seizure. See id. at 445 , 282 A.3d at 110 . - 16 - C. Fourth Amendment Protections The Fourth Amendment provides: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. U.S. Const. amend.

IV

The Fourth Amendment9 does not prohibit all searches and seizures, just unreasonable ones. See United States v. Sharpe, 470 U.S. 675, 682 (1985). “A search compromises the individual interest in privacy; a seizure deprives the individual of dominion over his or her person or property.” Horton v. California, 496 U.S. 128, 133 (1990) (citation omitted). “The touchstone of the Fourth Amendment is reasonableness.” Florida v. Jimeno, 500 U.S. 248, 250 (1991). Two tests can determine whether government action constitutes a search that implicates the Fourth Amendment. The first approach, set forth in Katz, 389 U.S. at 351 , focuses on “people, not places[.]” Under this test, “[w]hen an individual seeks to preserve something as private, and his expectation of privacy is one that society is prepared to recognize as reasonable, . . . official intrusion into that private sphere generally qualifies as a search[.]” Carpenter, 138 S. Ct. at 2213 (cleaned up).

The burden is on the defendant asserting Fourth Amendment protection to “demonstrate that a government actor infringed 9 The Fourth Amendment is applicable to the States through the Fourteenth Amendment. See Varriale, 444 Md. at 411 , 119 A.3d at 831 . Additionally, we interpret Article 26 of the Maryland Declaration of Rights in pari materia with the Fourth Amendment, such that it provides the same protections. See King v. State, 434 Md. 472, 482 , 76 A.3d 1035, 1041 (2013). - 17 - upon his or her actual, subjective expectation of privacy in an item or place searched and that the expectation of privacy is one that society is prepared to recognize as reasonable.” In re Russell, 464 Md. 390 , 406, 211 A.3d 426, 435 (2019) (cleaned up).

The second prong of this test requires that the defendant show an objectively reasonable expectation of privacy, “either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society[.]” Williamson v. State, 413 Md. 521, 535 , 993 A.2d 626, 634 (2010) (cleaned up). Next, because the amendment’s text “reflects its close connection to property,” historically, “the Fourth Amendment was understood to embody a particular concern for government trespass upon the areas (‘persons, houses, papers, and effects’) it enumerates.” Jones, 565 U.S. at 405-06 (footnote omitted). This property-focused approach related to “common-law trespass[.]” Carpenter, 138 S. Ct. at 2213 (cleaned up). Under this test, government action that causes “physical intrusion” on “private property” constitutes a search, such as attaching a GPS device to a person’s car.

Jones, 565 U.S. at 404-05. Generally, there is no bright-line rule for determining the reasonableness of a search. See Ohio v. Robinette, 519 U.S. 33, 39 (1996). Instead, courts apply a totality of the circumstances analysis, based on the unique facts and circumstances of each case.

See Missouri v. McNeely, 569 U.S. 141, 150 (2013). The nature of the intrusion, whether severe or “negligible[,] is of central relevance to determining reasonableness[.]” Maryland v. King, 569 U.S. 435, 446 (2013); see also Riley, 573 U.S. at 396 (quoting Judge Learned Hand’s observation in United States v. Kirschenblatt, 16 F.2d 202, 203 (2d Cir. 1926), “that it is ‘a totally different thing to search a man’s pockets and use against him what they - 18 - contain, from ransacking his house for everything which may incriminate him’”); Richardson, 481 Md. at 453 , 282 A.3d at 115 (“Without understating the problem posed by a general warrant to search someone’s home prior to the digital age, a general warrant to search a computer or a smartphone today magnifies that problem exponentially.”). Another consideration is whether any facts reduced or heightened the defendant’s expectation of privacy. See King, 569 U.S. at 462 (discussing a person’s diminished expectation of privacy as a student at school, an employee on the job, or a person in custody of law enforcement).

An additional factor is the governmental interest or need that allegedly justifies the intrusion. See McNeely, 569 U.S. at 152 (concluding that a warrantless blood-alcohol test is unreasonable when the facts show that “police officers can reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search”). The contours of the privacy protected by the Fourth Amendment are “informed by historical understandings” at the time of its adoption regarding what constituted unreasonable searches or seizures. Carpenter, 138 S. Ct. at 2213-14 .

The “basic guideposts” for such an analysis, as described by the Supreme Court of the United States, include the amendment’s goals of guarding “the privacies of life against arbitrary power” and “plac[ing] obstacles in the way of a too permeating police surveillance.” Id. at 2214 (cleaned up). The Supreme Court has “kept this attention to Founding-era understandings in mind when applying the Fourth Amendment to innovations in surveillance tools.” Id. “As technology has enhanced the Government’s capacity to encroach upon areas normally guarded from inquisitive eyes,” courts should seek to preserve the “degree of privacy - 19 - against government that existed when the Fourth Amendment was adopted.” Id. (quoting Kyllo v. United States, 533 U.S. 27, 34 (2001)) (internal quotation marks omitted). The Supreme Court has been particularly concerned with “th[e] power of technology to shrink the realm of guaranteed privacy.” Kyllo, 533 U.S. at 34 . 1.

Consent A search conducted without a warrant is presumed to be unreasonable, but a warrantless search can still be reasonable, such as when “conducted pursuant to valid consent[.]” Jones v. State, 407 Md. 33, 51 , 962 A.2d 393, 403 (2008) (citations omitted). The consent must be voluntary, see Robinette, 519 U.S. at 40 , and the search must remain within the scope of the consent, see Jimeno, 500 U.S. at 252 . Courts examine the scope of consent objectively: “what would the typical reasonable person have understood by the exchange between the officer and the suspect?” Id. at 251 (citations omitted). “The scope of a search is generally defined by its expressed object.” Id. (citing United States v. Ross, 456 U.S. 798 (1982)).

One who gives consent for the search of a particular area or items may subsequently narrow the scope of the consent given or withdraw consent entirely. See, e.g., State v. Reum, 313 P.3d 1156, 1164 (Wash. 2013) (en banc) (“A person consenting to a search has the right to restrict or revoke that consent at any time.” (Citations omitted)). If consent is withdrawn, thereafter, the government must have other justification to make the search reasonable. See, e.g., United States v. Williams, 898 F.3d 323, 330 (3d Cir. 2018).

That is, if the person withdraws consent before “the search is completed, then the police may not thereafter search in reliance upon the earlier consent.” United States v. Lattimore, 87 F.3d 647, 651 (4th Cir. 1996) (en banc) (citations omitted). In the context - 20 - of the taking, testing, and matching of a DNA sample, this Court has held that consent that is neither limited beforehand nor withdrawn permits the government to use the sample consistent with the reasonable understanding of the consent, including in unrelated investigations. See Varriale, 444 Md. at 423-25 , 119 A.3d at 838-39 . In Varriale, id. at 425 , 119 A.3d at 839 , this Court held that, under the circumstances of the case, “the Fourth Amendment [did] not preclude the police from retaining and using a suspect’s DNA profile created from a DNA sample lawfully obtained by consent.” Varriale consented to provide samples for DNA testing in relation to an investigation into a rape.

See id. at 404-05 , 119 A.3d at 827 . After the testing ruled Varriale out as a suspect in the rape, the police uploaded his DNA profile to county and State databanks and compared it to “unidentified DNA profiles developed from crime scene evidence” in other unsolved cases, leading to a match to a profile associated with a burglary. Id. at 406 , 119 A.3d at 827-28 . When Varriale was prosecuted for that crime, he challenged the use of his DNA as an unauthorized search, but it was not suppressed.

See id. at 403-04 , 119 A.3d at 826 . This Court concluded that the database search was not beyond the scope of Varriale’s consent, because there was no express limitation on his consent, and it was objectively reasonable for the police to retain and compare his DNA profile against the cold case evidence. See id. at 418-19 , 119 A.3d at 835 . We determined “that DNA profiles are like fingerprints, which police routinely catalog and compare in the course of criminal investigations” and, therefore, when police validly have such an identifying profile in their possession, “[n]o further Fourth Amendment authorization is required” to indefinitely store - 21 - and reuse them to “identify criminals.” Id. at 416 , 119 A.3d at 833-34 (citations omitted).

In other words, this Court held that, once police lawfully obtain a person’s DNA sample during an investigation, the person no longer has any expectation of privacy in that sample. See id. at 423 , 119 A.3d at 838 . 2. Digital Information The Supreme Court has recognized the important distinctions between digital media and the physical targets of searches, observing that smartphones, for example, have “immense storage capacity” and “collect[] in one place many distinct types of information—an address, a note, a prescription, a bank statement, a video—that reveal much more in combination than any isolated record.” Riley, 573 U.S. at 393-94. Searches of computers, cell phones, and the like can reveal the “sum of an individual’s private life” and bear “little resemblance” to searches of containers like bags, which are “limited by physical realities.” Id. at 386, 393-94.

Data stored on electronic devices is both qualitatively and quantitatively different from physical analogues because a search of cell phone or computer data “would typically expose to the government far more than the most exhaustive search of a house[.]” See id. at 396 (emphasis in original). A device’s hard drive “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 [device] is.” See id. at 396-97. The remarkable ability of digital information in the modern age to permit “official intrusion” into an individual’s “private sphere” requires “special solicitude” for this information. Carpenter, 138 S. Ct. at 2213, 2219 .

The unique nature and scope of digital - 22 - information warrants particular limits on the government’s ability to access it, such as determining that cell site location information requires a warrant or other authorization despite it being collected and held by third parties, whereas in other contexts “the Government is typically free to obtain such information from the recipient without triggering Fourth Amendment protections” because a person usually has no reasonable expectation of privacy in information shared with third parties. Id. at 2216, 2223 . Riley, 573 U.S. at 378, required the Supreme Court to resolve “whether the police may, without a warrant, search digital information on a cell phone seized from an individual who has been arrested.” The Supreme Court noted the pervasiveness of cell phones and the “vast quantities of personal information” they contain. Id. at 385-86.

The Court concluded that the rationales justifying searches incident to arrest—officer safety and preventing evidence destruction—did not justify a search of digital data on an arrestee’s cell phone. See id. at 386. Citing the quantity and quality of information stored on cell phones, the Court determined that the warrantless examination of the digital contents of a phone implicates greater privacy interests than a search of an arrestee. See id. at 386.

Thus, the Court held that “a warrant is generally required” before “a search” of a cell phone’s digital contents, even if the cell phone was lawfully “seized incident to arrest.” Id. at 401. In Richardson, 481 Md. at 434 , 282 A.3d at 104 , this Court reiterated “[t]he privacy concerns implicated by cell phone storage capacity and the pervasiveness of cell phones in daily life” and pointed out that these concerns “do not fade away when police obtain warrants to search cell phones.” The defendant’s abandonment of his backpack provided - 23 - justification for the warrantless search of it, but this Court explained that the government needed separate justification to search the contents of the cell phone found inside. See id. at 435-36 , 282 A.3d at 105 . We held that the search warrant at issue failed to comply with the particularity requirement of the Fourth Amendment because it lacked any limitations on the authority to search the contents of the phone.

See id. at 472 , 282 A.3d at 126 . Because “[t]he particularity requirement is arguably of even greater importance in the context of computers and smartphones than it is in the physical world,” we concluded that it must be enforced to realize the “meaningful constraints” on government power required under Riley. Richardson, 481 Md. at 452 , 282 A.3d at 114-15 (cleaned up). To date, relatively few courts have grappled with the effect of governmental copying of a hard drive from a computer or cell phone on a person’s privacy interest in the information stored therein.

Some State high courts have rejected the argument that a defendant does “not have a legitimate expectation of privacy in” a copy of a hard drive from the defendant’s computer because the defendant “did not create, own, or have lawful access to it.” McCavitt, 185 N.E.3d at 1206 (citation omitted); see also People v. Hughes, 958 N.W.2d 98 , 115 (Mich. 2020) (holding that search and extraction of data from a cell phone pursuant to a search warrant in a drug trafficking investigation did not permit law enforcement officers to later search the data for evidence of unrelated crimes without a warrant). In contrast, some trial and intermediate appellate courts in other jurisdictions have concluded that a copy of a computer hard drive is analogous to a photocopy of a paper document, which the government may freely examine so long as the copy was lawfully obtained. See, e.g., United States v. Megahed, No. 8:07-cr-342-T23-MAP, 2009 WL - 24 - 722481, ³ (M.D. Fla. Mar. 18, 2009) (unreported order).

These courts have relied on opinions like Ponder, 444 F.2d at 818-19 , for the proposition that “a valid consent to search . . . carries with it the right to examine and photocopy” and that withdrawal of consent does not limit the government’s ability to examine copies made prior to that withdrawal. See Megahed, 2009 WL 722481 , at ³. In McCavitt, 185 N.E.3d at 1198-99 , the Illinois State Police seized the defendant’s computer and created a copy of the hard drive under a warrant that the defendant did not challenge. The warrant permitted law enforcement to search for digital evidence of two unrelated crimes.

See id. at 1196 . The defendant was acquitted of one offense before the second offense was investigated. See id. After the defendant’s acquittal, without seeking a new warrant, a different