People v. McCavitt

2021 IL 125550

185 N.E.3d 1192

452 Ill.Dec. 456

The PEOPLE of the State of Illinois, Appellant,

v.John T. MCCAVITT, Appellee.

Docket No. 125550

Supreme Court of Illinois.

Opinion filed October 21, 2021.

Kwame Raoul, Attorney General, of Springfield (Jane Elinor Notz, Solicitor General, and Michael M. Glick, Leah M. Bendik, and Eldad Z. Malamuth, Assistant Attorneys General, of Chicago, of counsel), for the People.

Joshua B. Kutnick and James K. Leven, both of Chicago, for appellee.

Rebecca K. Glenberg and Nusrat J. Choudhury, of Roger Baldwin Foundation of ACLU, Inc., of Chicago, Brett Max Kaufman and Nathan Freed Wessler, of American Civil Liberties Union Foundation, of New York, New York, and Jennifer Stisa Granick, of American Civil Liberties Union Foundation, of San Francisco, California, amici curiae.

JUSTICE MICHAEL J. BURKE delivered the judgment of the court, with opinion.

¶ 1 The Illinois State Police obtained warrants to seize and search a personal computer owned by defendant, John T. McCavitt, an officer of the Peoria Police Department. The warrant at issue in this appeal authorized law enforcement to search the computer for digital evidence of two unrelated incidents: the aggravated criminal sexual assault of a named victim and the unauthorized video recording and live video transmission of an unnamed victim. Defendant was tried and acquitted of the alleged sexual assault before the unauthorized video recording was investigated.

¶ 2 Following defendant's acquittal and without seeking a new warrant, the Peoria Police Department acquired and searched a copy of the computer's hard drive, uncovering evidence of the unauthorized video recording. The digital search also uncovered child pornography, which was not mentioned in the warrant.

¶ 3 Based on the images, defendant was convicted of several counts of child pornography. The appellate court reversed the judgment on the ground that the search violated the fourth amendment ( U.S. Const., amend. IV ). 2019 IL App (3d) 170830, ¶ 32, 438 Ill.Dec. 102, 145 N.E.3d 638.

¶ 4 This appeal concerns the extent to which defendant's acquittal in the sexual assault proceedings affected his expectation of privacy in his computer data and whether the fourth amendment required the police to obtain a new warrant before searching the same data for evidence of another crime. The outcome turns on the interplay of four concepts: (1) a person's reasonable expectation of privacy in data on an electronic storage device that is subject to search, (2) double jeopardy principles, (3) the fourth amendment's particularity requirement as applied to electronic storage devices, and (4) the plain view doctrine.

¶ 5 In People v. Hughes , 506 Mich. 512, 958 N.W.2d 98, 104 (2020) (en banc ), the Michigan Supreme Court cogently explained that a search of an electronic storage device pursuant to a warrant must be reasonably directed at obtaining evidence relevant to the criminal activity alleged in the warrant. A search of digital data that is directed instead at uncovering evidence of criminal activity not identified in the warrant is effectively a warrantless search that violates the fourth amendment absent some exception to the warrant requirement. Id.

¶ 6 The warrant at issue diminished defendant's reasonable expectation of privacy in the images and videos he stored on his computer. When defendant was acquitted of the sexual assault, his reasonable expectation of privacy in his data relating to that offense was restored. However, the acquittal did not resolve the portion of the warrant that authorized a search for digital evidence of the unauthorized video recording. The postacquittal computer examination was reasonably directed at obtaining evidence of the unauthorized video recording, and the child pornography that was uncovered during the search was admissible because the images were found in plain view.

¶ 7 We hold that, under the unique facts of this case, the search that uncovered the child pornography did not violate defendant's fourth amendment rights. Therefore, we affirm the circuit's court's order denying defendant's motion to suppress the images and reverse the appellate court's judgment reversing that order.

¶ 8 I. BACKGROUND

¶ 9 This appeal is part of a series of three criminal prosecutions against defendant. All three are based on incriminating images and video uncovered on defendant's computer.

¶ 10 Defendant was charged in Peoria County case No. 13-CF-741 with aggravated criminal sexual assault ( 720 ILCS 5/11-1.30(a)(4) (West 2012)) and criminal sexual assault (id. § 11-1.20(a)(1)). Following defendant's acquittal in that case, the Peoria Police Department launched an internal investigation of defendant, which led to the discovery of additional incriminating images and video. The investigation was suspended when defendant was charged. He was ultimately convicted of (1) the unauthorized video recording of two women (Peoria County case No. 14-CF-203) and (2) child pornography in this case (Peoria County case No. 14-CF-282).

¶ 11 A. Peoria County Case No. 13-CF-741

¶ 12 Initially, defendant was investigated for criminal sexual assault against A.K., a female houseguest who was a friend and coworker of defendant's live-in girlfriend, Rachel Broquard. On July 17, 2013, the Illinois State Police obtained a warrant to search defendant's home for evidence of the alleged sexual assault, which defendant did not challenge.

¶ 13 The complaint for the warrant described A.K.’s account of the events. A.K. reported that defendant sexually assaulted her around 6 a.m. that day. A.K., Broquard, and defendant had gone out the previous night to celebrate with another coworker who was departing for graduate school. At approximately 4 a.m., A.K., Broquard, and defendant arrived at his residence and continued socializing. At 5:15 a.m., A.K. lay down, fully clothed, under the covers of a bed in a guest bedroom. A short time later, she awoke facedown wearing only her bra, which was pushed up. A.K. was in four-point restraints, and a black sleeping mask covered her head. She heard a "snap" that she believed to be from the cap of a lubricant container. A.K. also heard clicking noises that sounded like a camera shutter. Defendant sexually penetrated A.K. repeatedly and then released her from the restraints. A.K. quickly dressed, left the residence, and reported the incident.

¶ 14 The search warrant complaint alleged that digital evidence of criminal sexual assault could be found on defendant's cellular phone. Accordingly, the warrant authorized the seizure of "any electronic media cable [sic ] of video/audio recording" and "any electronic storage media capable of stor[ing] pictures, audio or video." The warrant also authorized the seizure of any restraints that might have been used on the victim, physical evidence resulting from the assault, and any additional items of evidentiary value.

¶ 15 Officers of the Illinois State Police and the Peoria Police Department arrived at defendant's home around 8:30 p.m. to execute the warrant. They waited two hours for defendant to answer the door and allow them inside. Defendant had called in sick to the police department that evening and had ignored telephone calls from his supervisors and the investigators. Defendant allegedly told Broquard that, while he kept the officers waiting outside, he removed the four-point restraints from the guest bedroom and placed them back under the mattress in the master bedroom.

¶ 16 The police officers seized defendant's iPhone and his custom-built computer tower. The iPhone was found locked in a gun safe in the basement. The computer's file history showed that more than 16,500 files had been recently deleted from the hard drive. The officers seized the restraints, a black blindfold, and lubricant. They also found a video recording system hidden inside two Kleenex tissue boxes.

¶ 17 An initial examination of the computer hard drive revealed photographs and video of A.K. lying motionless, facedown in four-point restraints. She was wearing only her top, which was pulled up, and a pillow covered her head. The officers determined that the photographs and video of A.K. had been transferred from defendant's iPhone to his computer.

¶ 18 The initial examination of the hard drive also revealed what appeared to be secretly recorded video from defendant's bathroom of an unidentified woman stepping out of the shower. Defendant has not alleged that this initial examination of his computer data was unlawful.

¶ 19 On July 24, 2013, the Illinois State Police obtained a second warrant, which defendant also did not challenge. The warrant authorized "all peace officers in the state of Illinois" to search the computer for "any and all digital images, including, but not limited to JPG, GIF, TIF, AVI, MOV, and MPEG files" and "any evidence of" the offenses of (1) aggravated criminal sexual assault, (2) unlawful restraint, and (3) unauthorized video recording and live video transmission. The warrant authorized a search of "any and all stored/deleted data to determine which particular files are evidence or instrumentalities of criminal activity."

¶ 20 The search warrant complaint restated A.K.’s account of the events on July 17, 2013, but A.K. was not the only victim mentioned. The complaint specifically alleged that "[a]dditionally recovered videos display an unidentified female using the bathroom and taking a shower. The female appears to have no knowledge she was being recorded." Accordingly, the warrant authorized the search of defendant's computer for any evidence of the crimes listed "that may be discovered from separate incidents."

¶ 21 Detective Jeff Avery, a computer forensics expert with the Peoria County Sheriff's Department, examined defendant's computer. He removed the hard drive and made an exact, unalterable digital copy of its contents using EnCase software. Avery saved the copy, called the EnCase file, to his work computer. Avery reinstalled the hard...