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Evidence incorrectly suppressed in child pornography case

Virginia Lawyers Weekly//March 16, 2020

Evidence incorrectly suppressed in child pornography case

Virginia Lawyers Weekly//March 16, 2020//

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The trial court erred by concluding that although the police lawfully acquired appellant’s portable hard drive, known to contain child pornography images, keeping the hard drive became an unreasonable seizure because the police waited more than a month before getting a warrant regarding the hard drive’s content.


After a police investigation revealed that appellant Eutsler accessed child pornography on a company cell phone, Eutsler admitted to the police that he used file sharing software to download child pornography. His employer, Dixie Oil and Gas, fired him the next day. After Eutsler was released from jail, Dixie served him with a “trespass form” barring him from the company’s premises.

Eutsler contacted Bowling, a co-worker, to retrieve a portable hard drive that he left at work. Bowling recovered the hard drive but instead of returning it to Eutsler, he accessed it with a company computer and discovered child pornography. He notified Earhart, a Dixie official, and gave him the hard drive.

Earhart locked the hard drive in a file cabinet and contacted the sheriff’s department, which took possession the next day. The trial court specifically found that the police knew child pornography was on the hard drive.

Cason, a police investigator, accessed the hard drive, saw the child pornography and placed the hard drive into evidence storage. More than a month later, Tobin, another investigator, obtained a warrant. Forensic investigators then examined the hard drive.

Suppression motion

Eutsler moved to suppress. The commonwealth argued that Eutsler had abandoned the hard drive. The court disagreed and found Eutsler had a reasonable expectation of privacy that allowed him to challenge “the search of the [h]ard [d]rive.”

Eutsler argued that Cason’s access of the hard drive was an illegal search, and the long passage of time between the police getting the hard drive and seeking a warrant “rendered the [sheriff] Department’s possession of the hard drive unreasonable[.]”

The trial court ruled that neither Bowling nor Earhart acted as police agents, and that Cason knew there was child pornography on the hard drive before he accessed it. The court said that Earhart’s surrender of the hard drive to the police was not a Fourth Amendment seizure. But, “the trial court concluded that the passage of time converted the Department’s lawful possession of the hard drive into an unreasonable seizure. The trial court reasoned that the prior finding that Eutsler retained a reasonable expectation of privacy in the device meant that ‘his possessory interest[s in it] were not diminished.”

The commonwealth appeals the trial court’s suppression of the hard drive.

Not abandoned

“[T]he record supports the trial court’s finding that Eutsler did not voluntarily abandon the hard drive.” Eutsler never denied ownership. “[A]nd, as the Commonwealth conceded … there was no affirmative, voluntary act by Eutsler indicating he had no interest in the device.”

In fact, “Eutsler did attempt to regain possession of the hard drive, requesting that Bowling retrieve it for him.” Even though that effort was unsuccessful this “does not alter the fact that, by seeking its recovery, Eutsler demonstrated a continuing interest in the hard drive.”

Passage of time

“Because a person generally retains at least some possessory interest in items seized by authorities, a lack of diligence by authorities that unnecessarily lengthens the time period in which a person is denied his possessory interest in an object lawfully seized can convert that lawful seizure into an unreasonable one. United States v. Place, 462 U.S. 696, 709 (1983).”

What is “reasonable” is determined by weighing “‘the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion.’ … It is undisputed that Eutsler did not consent to the seizure of his hard drive. Similarly, it is undisputed that the hard drive, like a computer or cell phone, is an object entitled to special solicitude because of the vast amounts of personal information it could contain. … Accordingly, these two factors weigh in favor of Eutsler.

The lengthy delay in “seeking a search warrant also tips the balance towards Eutsler. … [T]he trial court reasonably rejected the [sheriff] Department’s manpower excuse as a reasonable explanation for the more than forty-day delay.”

These three factors favor Eutsler but “[t]hey must be balanced against other significant factors, including the extent of Eutsler’s possessory interest in the hard drive and the extent of law enforcement interests. Properly viewed, these factors swing the balance in favor of the Commonwealth.”

Eutsler had a possessory interest in the hard drive but “his possessory interest was far from unfettered.” He did not have physical possession. He did not keep it at home, instead, he left the hard drive at work. In fact, he was not even certain where it was at work, testifying it was either in his company car or his office. His arrest and jailing further reduced his possessory interest. He could not retrieve the hard drive, and even if he did, he could not use it at jail. Once released, he could not enter Dixie Oil’s property to retrieve the hard drive and had to enlist Bowling’s help.

His possessory interest was also diminished by the fact that to claim possession of the hard drive was a claim to possess “known contraband,” child pornography. Further, when the authorities know a container holds contraband, this reduces a person’s Fourth Amendment interest in the container.

“All of these factors lead us to conclude that despite his unquestioned ownership interest, Eutsler’s possessory interest in the hard drive was greatly diminished and law enforcement’s interest was at its apex. Simply put, the Department could not return the hard drive containing contraband to Eutsler. If deputies had done so, they would have known that they were witnessing his possession of child pornography, one of the very crimes for which he is now charged.”


The trial court correctly found that Eutsler did not abandon the hard drive. However, the court erred by finding that the delay in getting a search warrant transformed the hard drive’s lawful acquisition into an unreasonable seizure.

The suppression order is reversed. Remanded for further proceedings.

Commonwealth v. Eutsler, Record No. 1515-19-3, March 3, 2020. CAV (Goodwin) from Augusta Cir. Ct. (Haddock). Victoria Johnson for appellant, David B. Hargett for appellee. VLW 020-7-041, 29 pp. Unpublished.

VLW 020-7-041

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