Cheri Beasley never voted to “set free” a child porn offender. But that’s not the end of the story. Shining more light on that offender’s case is likely to do little to bolster Beasley’s political prospects.
Beasley, the Democratic nominee for North Carolina’s open U.S. Senate seat, generated headlines earlier this month. Lawyers working on her behalf complained to N.C. television stations about an ad from the National Republican Senatorial Committee.
Specifically, the Democratic lawyers argued that the Republican ad contained a false statement.
Focusing on the 2019 N.C. Supreme Court decision in a case titled State v. Terrell, the NRSC ad said, “A child porn offender. She voted to set him free.” The ad cited a Washington Free Beacon article, which had reported that “The Democratic majority on North Carolina’s supreme court ruled to let a child porn offender go free on a technicality.”
Beasley served as the N.C. Supreme Court’s chief justice at the time. She cast one of five votes for the court’s majority decision. That’s true.
What the news article and the NRSC ad missed was that the decision didn’t set defendant James Howard Terrell Jr. free. The state’s high court actually sent the case back to a lower court for further proceedings.
The dispute ended up prompting some TV stations to pull the ad temporarily. (Later reporting revealed that Democrats, led by former Hillary Clinton campaign lawyer Marc Elias, had publicized a draft letter announcing one TV company’s decision to pull the ad. The problem? The company had not made a final decision about the letter. It had sent no correspondence to NRSC.)
After changing the line “She voted to set him free” to “She sided with him, not the police,” NRSC reported that it was able to air the ad on every station originally targeted.
Now that the ad has focused attention on the Terrell case, it might be helpful to review the case’s facts.
In 2014, Terrell’s live-in girlfriend discovered an image of her topless 9-year-old granddaughter on a thumb drive. Upset by the image, the girlfriend turned the thumb drive over to the Onslow County Sheriff’s Department. A sheriff’s detective looking for the image found other photos that appeared to show evidence of child pornography.
A jury eventually convicted Terrell of more than a dozen charges stemming from the thumb drive’s images. Terrell had argued unsuccessfully before a trial judge that authorities violated his Fourth Amendment rights. A sheriff’s detective had viewed the thumb drive images before securing a warrant.
The N.C. Court of Appeals accepted Terrell’s argument. Then the state Supreme Court affirmed that appellate ruling by a 5-1 vote.
But Justice Paul Newby, the court’s lone Republican at the time, disagreed with that decision. He argued that Beasley and the majority misapplied a “private-search doctrine.”
“The private-search doctrine is an exception to the Fourth Amendment warrant requirement for a governmental search because a search conducted with the permission of a private person does not implicate a governmental intrusion; the private person’s prior search frustrates any reasonable expectation of privacy,” Newby wrote in dissent.
“Here a concerned grandmother searched defendant’s thumb drive in her home and found a picture of her sleeping, partially nude nine-year-old granddaughter,” Newby added. “She then delivered the thumb drive to law enforcement, intending that they verify her finding and pursue criminal charges. Law enforcement did so. This transaction constitutes a textbook application of the private-search doctrine.”
“The trial court took the correct approach,” the dissent continued. “That court found the detective only searched the folder (‘Bad stuff’) identified by the grandmother. The detective stopped his search when he found the image of the granddaughter. … The trial court found that the search ‘did not exceed the scope of the private, prior search done by [the grandmother], but could have been more thorough’ and ultimately denied defendant’s motion to suppress.”
Newby accused Beasley and colleagues of adding an unnecessary “virtual certainty” test to the private-search doctrine. In essence, the majority concluded that authorities would have been permitted to access the thumb drive only if Terrell’s girlfriend already had opened every file. Otherwise, law enforcement could not proceed with “virtual certainty” that it was not violating Terrell’s constitutional rights.
“This rigid approach,” according to Newby, represented a “significant misapplication” of previous court precedents.
“Rather than remedying a constitutional violation, the majority’s opinion here only frustrates concerned citizens’ attempts to report criminal activity against children and prevents law enforcement from verifying the allegations,” Newby concluded.
The opinion endorsed by Beasley didn’t set Terrell free. But it did represent a case of the court siding with a child porn offender over police, as the amended NRSC ad claimed.
It’s unlikely that this case will win Beasley many cheers from those concerned about protecting children from predators. It’s unclear whether the case will have an impact on Beasley’s campaign to join the U.S. Senate.
Mitch Kokai is senior political analyst for the John Locke Foundation.