FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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No. 1D17-5118

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THOMAS GERALD DUKE,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

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On appeal from the Circuit Court for Clay County.

John H. Skinner, Judge.

September 14, 2018

WETHERELL, J.

Thomas Gerald Duke pled no contest to possession of a

firearm by a convicted felon. As part of his plea, Duke reserved his 

right to appeal the denial of his dispositive motion to suppress the 

incriminating evidence found on several USB drives that had been 

stolen from him, his identification from the files on those drives, 

and the firearm seized from his vehicle upon his arrest. This is 

Duke’s appeal.

As he did below, Duke argues on appeal that law enforcement 

officers violated the Fourth Amendment by opening and viewing 

the contents of the stolen USB drives without his consent because 

he had an expectation of privacy in the contents of the drives. We 

affirm because (1) contrary to Duke’s argument, no Fourth 
2

Amendment search occurred, and (2) even if a search occurred, it 

was lawful because it was based on the consent of the person who 

had possession of the drives and who the officers reasonably 

believed had the apparent authority to consent to a search of the 

drives.1

Facts

On November 6, 2017, Duke reported that his vehicle had 

been burglarized. Duke claimed that several USB drives were 

stolen in the burglary, along with cash, laptop computers, and 

other items. However, the police report of the burglary did not list 

the USB drives amongst the stolen property.

A few days later, Mario Hampton was arrested on unrelated 

charges. After his arrest, Hampton consented to a search of his 

house and he specifically led the officers to an air conditioning vent 

where he had hidden some USB drives. He told the officers that 

this was the “mother lode” and that the drives contained “some 

sick shit.” Hampton also told the officers that he had obtained the

drives in exchange for drugs. The officers did not know the drives 

were stolen.

The officers inserted one of the USB drives into a police-issued 

computer. The drive was not password-protected. The officers 

opened a video file on the drive, which depicted what appeared to 

be a sexual battery because it showed “a white male strangle a . . . 

young oriental girl, to where she was unconscious and then he 

raped her.” The officers did not look at any other files on the drive 

and immediately turned over all of the drives to a detective in the 

Sex Crimes Unit. The detective interviewed Hampton and 

questioned him further about the contents of the drives. During 

the interview, Hampton told the detective that he only viewed one 

video on the drives, which he described as showing a “dude with a 

girl . . . she looked like she was young” and “it just looked like . . . 

 1 Based on this disposition, we need not address the trial 

court’s conclusion that Duke lacked a reasonable expectation of 

privacy in the contents of the USB drives because they were not 

password-protected.
3

sick.” Hampton then signed a written consent form authorizing 

the detective to search all of the USB drives.

Subsequent searches of the USB drives led law enforcement 

to identify the man in the video as Duke. A warrant was thereafter 

issued for Duke’s arrest, and when the warrant was executed, a 

firearm was found in Duke’s vehicle. Because Duke was a 

convicted felon, the State charged him with unlawful possession of 

the firearm.2

Duke filed a motion to suppress, arguing that the arrest that 

led to the firearm’s discovery was unlawful because the arrest 

warrant was based on an affidavit that relied on evidence found in 

an unlawful warrantless search of the USB drives. Specifically, 

Duke argued that the search of the drives violated the Fourth 

Amendment because he had not abandoned the drives; he retained 

an expectation of privacy in the contents of the drives after they 

were stolen; he did not consent to the search or authorize Hampton 

to do so; and the officers knew that the drives were stolen and that 

Hampton had no authority to consent to a search of the drives. 

The trial court denied the motion after a hearing. The court 

concluded that no Fourth Amendment search had occurred

because (1) it was Hampton, not the officers, who violated Duke’s 

expectation of privacy in the contents of the USB drives, and (2) 

Duke did not have a reasonable expectation of privacy in the 

contents of the drives because they were not password-protected. 

Duke thereafter pled no contest to possession of a firearm by a 

convicted felon, reserving his right to appeal the denial of his 

dispositive motion to suppress.

This appeal followed.

 2 The State also charged Duke with two counts of sexual 

battery, kidnapping, and domestic battery by strangulation, but 

those charges were dropped. 
4

Analysis

The trial court’s ruling on the motion to suppress comes to this 

Court with a presumption of correctness. See State v. Markus, 211 

So. 3d 894, 902 (Fla. 2017). Our standard of review is mixed: the 

trial court’s ultimate ruling is a question of law that we review de 

novo, but the factual findings on which the ruling is based are 

reviewed for support by competent substantial evidence. Id.

The Fourth Amendment protects the “right of the people to be 

secure in their persons . . . and effects, against unreasonable 

searches and seizures.” U.S. Const., amend. IV. For purposes of 

the Fourth Amendment, a “search” occurs only when an 

individual’s reasonable expectation of privacy is infringed by an 

agent of the government. United States v. Jacobsen, 466 U.S. 109, 

113 (1984). The Fourth Amendment is “wholly inapplicable to a 

search or seizure, even an unreasonable one, effected by a private 

individual not acting as an agent of the Government or with the 

participation or knowledge of any governmental official.” Id.

(internal quotations omitted). Thus, where a warrantless search 

by law enforcement is prompted by a prior search by a private 

party, the warrantless search does not violate the Fourth 

Amendment so long as it does not exceed the scope of the private 

party’s search. Id. at 117; see also United States v. Harling, 705 

Fed. Appx. 911 (11th Cir. 2017) (affirming the denial of a motion 

to suppress the contents of two USB drives that were reviewed by 

private parties before they were searched by the police, but 

reversing as to a third drive that had not been reviewed by the 

private parties before it was searched by the police), cert. denied, 

138 S. Ct. 1312 (2018).

Duke had the initial burden to prove that the officers 

conducted a Fourth Amendment search when they opened and 

viewed the video file on the USB drive after Hampton told them 

that the drives contained “some sick shit.” Armstrong v. State, 46

So. 3d 589, 593-94 (Fla. 1st DCA 2010); see also Florida v. Riley, 

488 U.S. 445, 455 (1989) (O’Connor, J., concurring) (stating that 

defendant has burden of proving “a ‘search’ within the meaning of 

the Fourth Amendment even took place”). If Duke met that 

burden, then the State had the burden to prove that an exception 
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to the warrant requirement applies. Kilburn v. State, 54 So. 3d 

625, 627 (Fla. 1st DCA 2011).

Duke failed to meet his burden to prove that a Fourth 

Amendment search occurred. The officers initially only viewed one 

file on one of the USB drives after being informed by Hampton that 

the drives contained “some sick shit.” Although the record does 

not conclusively establish what “sick shit” Hampton viewed, it

supports the inference that he was referring to the same video that 

the officers viewed. See Ingram v. State, 928 So. 2d 423, 428 (Fla. 

1st DCA 2006) (“In reviewing the denial of a motion to suppress, 

we view the evidence and its reasonable inferences in a light most 

favorable to affirming the trial court’s ruling.”). Hampton later 

told the detective that he only viewed one video file on the drives,

and his description of this video was consistent with what the 

officers described seeing in the one video that they opened before 

turning over the drives to the Sex Crimes Unit. Moreover, because 

Hampton only viewed one video, it is reasonable to infer that he 

directed the officers to the specific USB drive that contained the 

video that he reviewed. Accordingly, under these circumstances, 

the trial court did not err in concluding that the officers did not 

conduct a search within the meaning of the Fourth Amendment 

when they opened one of the USB drives and viewed a video file on 

the drive.

However, even if the officers’ initial viewing of the video was 

a Fourth Amendment search of the USB drive, it was lawful 

because Hampton consented to the search. See State v. Purifoy, 

740 So. 2d 29, 30 (Fla. 1st DCA 1999) (“It is well-established that 

a search conducted pursuant to valid consent is a recognized 

exception to the requirements of probable cause and a search

warrant . . . .”). The fact that Hampton did not have actual

authority from the owner of stolen USB drives, Duke, to give such 

consent is immaterial because it is well-established that law 

enforcement may rely on the consent given by a person with 

apparent authority, so long as that reliance is reasonable under 

the totality of the circumstances. See State v. Young, 974 So. 2d 

601, 610 (Fla. 1st DCA 2008) (citing Illinois v. Rodriguez, 497 U.S. 

177, 181 (1990)).
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Here, it was reasonable for the officers to rely on Hampton’s 

apparent authority to consent to them viewing the contents of the 

USB drives. The officers did not know that the drives were stolen 

or that Hampton was not in lawful possession of the drives. The

drives were safely hidden in his home, and he told the officers that 

he obtained the drives in exchange for drugs. The officers knew 

Hampton was a drug dealer and that drug users sometimes traded

personal property for drugs. Under these circumstances, it was 

not unreasonable for the officers to assume that the person with 

whom Hampton traded was the original owner of the drives, 

thereby making Hampton the lawful owner of the drives. The fact 

that this turned out not to be the case does not undermine the 

reasonableness of the officers’ assumptions at the time.

The subsequent searches of the USB drives were based on 

Hampton’s written consent. The detective with the Sex Crimes 

Unit who obtained the written consent asked Hampton if the 

devices were stolen, but consistent with what he told the original 

officers, Hampton told the detective that he received the drives in 

exchange for drugs. Accordingly, under the circumstances, it was 

not unreasonable for the detective to conclude that Hampton had 

the apparent authority to consent to a search of the USB drives.

We did not overlook the fact that the detective told Hampton 

that law enforcement knew the USB drives were not his, but that 

does not undermine the reasonableness of the detective’s reliance 

on Hampton’s apparent authority to consent to a search of the 

drives. When the detective’s statement is viewed in context, it is 

clear that it was merely intended to assure Hampton that even 

though he claimed ownership in the drives, he was not going to be 

charged with the acts depicted in the video because he was not in 

the video.

Conclusion

For the reasons stated above, the trial court properly denied 

Duke’s motion to suppress the evidence on the USB drives that 

ultimately led to the discovery of the firearm that served as the 

basis for the charge to which Duke pled. Accordingly, we affirm 

Duke’s conviction and sentence.
7

AFFIRMED. 

BILBREY and M.K. THOMAS, JJ., concur.

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Not final until disposition of any timely and 

authorized motion under Fla. R. App. P. 9.330 or 

9.331.

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Curtis S. Fallgatter and Alex King of Fallgatter & Catlin, P.A., 

Jacksonville, for Appellant.

Pamela Jo Bondi, Attorney General, and Jason W. Rodriguez, 

Assistant Attorney General, Tallahassee, for Appellee.