Consent for Search May Be Effective Retroactively

State v. Newland, 2010 UT App 380 (Utah Court of Appeals December 23, 2010).

Newland’s laptop was stolen and was recovered by police.  While the computer was in police custody, an officer conducted a warrantless search of the computer and discovered child pornography.  When Newland arrived to retrieve his computer, the officer asked if he could search the computer for evidence from the robbers.  Newland agreed.  Newland was charged with three counts of sexual exploitation of a minor.

Newland moved to suppress the computer evidence because it was a result of a warrantless search.  The trial court denied the motion and Newland was convicted.  Newland appealed. 

When determining whether a consent is lawful after initial police misconduct the court must evaluate whether the consent was (1) voluntary and (2) whether the police exploited the prior misconduct to obtain consent.  The search was clearly voluntary.  To determine if consent was obtained by misconduct the court evaluates (1) temporal proximity of illegal search and consent search; (2) presence of intervening circumstances; and (3) the purpose and flagrancy of the search.  In this case, the illegal search directly preceded the consent search and there were no intervening circumstances.  However, the illegal search was neither purposeful nor flagrant.  Therefore, the evidence should be admitted because society interest is greater than the minimal deterrent effect suppression may have.

See full decision at  http://www.utcourts.gov/opinions/appopin/newland122310.pdf