Can Consent to Search Be Withdrawn After a “Mirror Image” is Made by Law Enforcement?

The Maryland Supreme Court is considering another important ESI case.  Recently, it issued a landmark decision concerning cell phone searches in criminal cases.  Discovery From Cell Phones – Differing Civil and Criminal Protocols in Maryland

The Court is now considering whether consent to search can be withdrawn after a forensic image is made of a computer.  Steve Lash reported in MD Supreme Court will weigh when consent to search can be withdrawn (thedailyrecord.com)(Mar. 8, 2023), that: “The Maryland Supreme Court will consider whether a person’s consent to a warrantless search of his or her computer’s digital data can be withdrawn after a consented-to copy has been made by law enforcement.”

The case involves a suspected child pornographer.  The suspect initially consented to a search of his computer and any electronic copy.  Mr. Lash reported:

According to court papers, U.S. Army Criminal Investigation Division Command investigators went to McDonnell’s home on July 12, 2019, where he signed a form consenting to their search of his laptop computer. Investigators created a copy of his hard drive before leaving.

Seven days later, McDonnell’s attorney sent the investigators an email telling them his client had withdrawn his consent to their search.

But investigators subsequently examined the copy of the hard drive.

McDonnell was charged with 20 counts of promotion or distribution of child pornography and 20 counts of possessing child pornography.

He moved to suppress the evidence from his computer, saying it was searched without his consent.

He was subsequently convicted.  The Daily Record article explains:

The Appellate Court overturned the conviction last December, saying consent to a warrantless search of a computer’s digital data can be withdrawn at any time before the search is consummated. Thus, the officers’ examination of their copy of McDonnell’s hard drive after he had withdrawn consent violated his Fourth Amendment protection against unreasonable searches, the appellate court held in its reported 3-0 decision.

“Here, because individuals have a legitimate expectation of privacy in the digital data within their computer, we hold that (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,” Judge Melanie Shaw wrote for the appellate court.

By withdrawing his consent, McDonnell “reclaimed a reasonable expectation of privacy in the data,” Shaw added.

The case is State of Maryland v. Daniel Ashley McDonnell, No. 36 September Term 2022, and oral arguments are set for June.  According to the article, the defendant argued “that his client’s expectation of privacy applies to his data regardless of whether it was in his computer or on a copy.”  Mr. Lash reported that the State “cited federal court decisions from Georgia and Florida that people have no expectation of privacy in consented-to copies of their digital data.”