Commonwealth v. Eutsler

COMMONWEALTH OF VIRGINIA v. DAMIAN RYAN EUTSLER

Record No. 1515-19-3

COURT OF APPEALS OF VIRGINIA

MARCH 3, 2020

UNPUBLISHED

Present: Judges Humphreys, Russell and Athey

Argued by teleconference

MEMORANDUM OPINION^* BY JUDGE WESLEY G. RUSSELL, JR.

FROM THE CIRCUIT COURT OF AUGUSTA COUNTY

W. Chapman Goodwin, Judge¹

Victoria Johnson, Assistant Attorney General (Mark R. Herring, Attorney General, on briefs), for appellant.

David B. Hargett (Hargett Law, PLC, on brief), for appellee.

Pursuant to Code § 19.2-398(A)(2), the Commonwealth of Virginia appeals the trial court's pretrial order granting Damian Ryan Eutsler's motion to suppress a portable hard drive belonging to Eutsler and the evidence it contains. Specifically, the trial court suppressed "the portable hard drive . . . and all evidence thereon[,]" including 20,000 images of child pornography that investigators had found on the hard drive.² Although we affirm certain rulingsof the trial court, we conclude that the trial court erred in suppressing the evidence found on the hard drive. Accordingly, we reverse the judgment of the trial court regarding suppression of the evidence and remand the matter to the trial court for further proceedings consistent with this opinion.

BACKGROUND³

On November 22, 2016, Detective Byrne of the Lynchburg Police Department investigated a file-sharing network searching for people sharing child pornography. Using a computer running investigative software, Byrne connected to a device containing, among other pornographic images, a video of multiple male and female children engaged in sexual acts with adults. On November 23, 2016, Byrne obtained a court order from Lynchburg Circuit Court allowing him to obtain the subscriber information associated with the IP address associated with the device; the device was identified as a cell phone belonging to Dixie Oil and Gas Corporation located in Verona. After further investigation, Byrne determined that the alleged offense occurred in Augusta County and turned his investigation over to the Augusta County Sheriff's Department (Department).

The Department confirmed that the cell phone belonged to Dixie Oil and Gas and learned that it was a company cell phone assigned to Eutsler. On December 8, 2016, Investigator Conner Tobin met with Chris Earhart, part of the management team at Dixie Oil and Gas, and Earhart confirmed that the cell phone in question was a company phone. Earhart allowed Tobin to take possession of the phone. Eutsler was at work, but agreed to accompany investigators to the sheriff's office for an interview. After officers read Eutsler his Miranda rights, Eutsler admitted to using the file-sharing software that led to the discovery of his actions, to downloading child pornography, and to taking voyeuristic pictures of women in public. Eutsler was then arrested for possession of child pornography. Dixie Oil and Gas fired Eutsler on December 9, 2016.

Eutsler remained in custody from the date of his arrest until he was released on bond on December 19, 2016. On that date, he was served with a "Trespass Notice" form provided by the Department. It informed Eutsler that he was banned from Dixie Oil and Gas property and was subject to trespassing charges if he violated the ban. Accordingly, although he was no longer jailed, Eutsler still had no ability to return to Dixie Oil and Gas to retrieve his personal effects.

Banned from the property, Eutsler took steps to try to recover his personal effects, including the hard drive, that were still at Dixie Oil and Gas. Specifically, he communicated with Roger Bowling, a co-worker and "friend," and asked him to retrieve the hard drive. Although in the proceedings below there was a great deal of dispute as to the specifics of what Eutsler asked Bowling to do and where he told him he could find the hard drive, it is undisputed that Eutsler asked Bowling to go to Dixie Oil and Gas and get the hard drive.⁴

On December 26, 2016, Bowling went to Dixie Oil and Gas and recovered the hard drive. He neither "g[o]t rid of it" nor returned it to Eutsler. Rather, Bowling decided to access the contents of the hard drive while on company property; however, he recognized that he did not have the necessary equipment to do so. The hard drive could not be connected to a computer through a regular USB cord; instead, it required a device Bowling referred to as a "V cord." Bowling went to a local Walmart and purchased a V cord. He then used the V cord to access the contents of the hard drive, which was not password protected, on a computer at Dixie Oil and Gas.

When asked why he decided to access the hard drive rather than returning it to Eutsler or "getting rid of it" as he claimed he had been asked to do, Bowling testified that his reason for doing so was tied to a request from Eutsler's girlfriend. According to Bowling, she asked him to access the hard drive to see whether it contained the security code for a storage unit where Eutsler's boat was kept.⁵

Having accessed the contents of the hard drive, Bowling encountered child pornography. According to Bowling, he immediately shut down the computer and disconnected the hard drive. He informed Earhart of what he had discovered and gave the hard drive to Earhart, who locked it in a file cabinet.

Earhart then contacted the Department. He informed the Department that he had Eutsler's hard drive and that child pornography had been discovered on it. Earhart was advised to maintain possession of the hard drive for law enforcement, who took possession of it the next day. The trial court made an express factual finding that, when the hard drive came into the Department's possession, investigators knew that it contained child pornography.

On the day the hard drive came into the Department's possession, Investigator Cason of the Department used a computer to access some of the information stored on the hard drive. In short order, he encountered child pornography. Upon seeing the child pornography, he disconnected the hard drive and placed it in the Department's evidence storage room.

The Department took no further action regarding the hard drive for some time. Eventually, on February 7, 2017, Investigator Tobin of the Department sought a search warrant related to the contents of the hard drive. A magistrate issued the warrant on that day. The next day, Tobin transported the hard drive to the Spotsylvania County Sheriff's Office, where it was forensically examined by a member of the Office of the Attorney General's computer crimes unit.

When asked why it took more than forty days from the time the Department first possessed the hard drive until it sought a search warrant, Tobin indicated that the Department was busy withother investigations. As summarized by the trial court, Tobin testified that the delay was explained by

two murder investigations. One of those was actively being investigated. The other was a cold case that was "heating up." The [trial c]ourt was not made aware as to what constituted "heating up" other than new information had been obtained. Although the [Department] only has three investigators, no other reason for the delay was proffered to the [trial c]ourt.

No evidence was adduced regarding manpower issues with the Office of the Attorney General's computer crimes unit, the entity that actually conducted the examination of the hard drive once the Department obtained a warrant.

Against this factual backdrop, Eutsler filed multiple motions to suppress the evidence found on the hard drive. The first asserted that the evidence should be suppressed because law enforcement had handled the hard drive improperly by accessing it without first making a forensic copy, effectively altering the hard drive's "metadata" by the very act of looking at the data it contained. In a December 4, 2018 order, the trial court denied the motion.

Eutsler again moved to suppress, this time on Fourth Amendment grounds. A hearing on the motion was held on October 30, 2018.

At the outset of the hearing, the Commonwealth argued that Eutsler did not have a sufficient interest in the hard drive to allow him to raise a Fourth Amendment challenge to either its seizure or a search of it. Specifically, the Commonwealth argued that Eutsler, in effect, had abandoned the hard drive, and thus, no longer had a Fourth Amendment interest in it to assert. Faced with a potentially dispositive argument, the trial court effectively bifurcated the motion to suppress, electing to hear argument regarding only the "predicate issue" of whether Eutsler retained a Fourth Amendment interest in the hard drive that would allow him to seek suppression of any evidence found on it and leaving for another day the "issue of admissibility of [that] evidence[.]"

The trial court heard both evidence and argument on this predicate question at the October 30, 2018 hearing. At the conclusion of the hearing, the trial court directed the parties to brief the issue of whether Eutsler retained a sufficient interest in the hard drive to allow him to seek suppression of its contents on Fourth Amendment grounds.

Eutsler filed his brief as directed. In a section he labeled "Standing," Eutsler argued that he had not abandoned the hard drive, and thus, retained a "reasonable expectation of privacy" in the hard drive and its contents. From this premise, Eutsler concluded he had "standing . . . to challenge the seizure by the Commonwealth of the" hard drive. As directed, the Commonwealth filed its response, asserting that Eutsler had abandoned the hard drive, and thus, had no "reasonable expectation of privacy" in it. From this premise, the Commonwealth argued that Eutsler "did not have a reasonable expectation of privacy in the [hard drive], [and] therefore [did] not have standing to object to its search."

The trial court issued a letter opinion on December 31, 2018, addressing Eutsler's ability to assert Fourth Amendment interests in the hard drive. Before analyzing that question, the...