TALLAHASSEE – The First District Court of Appeal denied an Orange Park man’s appeal that

USB drives that led to his arrest on a charge of possession of a firearm by a convicted felon should not have been used in court.

According to court documents, Thomas Gerald Duke reported his vehicle stolen in November 2015, though the arrest report did not mention USB drives. Duke was sentenced to 92 months in a state prison for the gun possession charge.

A man in possession of the USB drives, Mario Hampton, was arrested on unrelated charges. Hampton said he exchanged drugs for the drives. Hampton consented to a search and told deputies the drives contained offensive material. Detectives said the video depicted a man and an underage child.

Police identified Duke in the video, and after executing a search warrant on his vehicle, they found a firearm. Duke was then arrested on one count of possessing a firearm as a convicted felon. He pleaded no contest to the charge and was later found guilty.

Duke challenged the court that deputies violated the Fourth Amendment by searching the USB drives without his consent and filed a motion to suppress the evidence 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...”

The court stated Duke failed to have the initial burden of proof a Fourth Amendment search occurred. The court said Hampton only viewed one video and directed deputies to the contents of the video, and deputies viewing of the video was upheld by the court because Hampton consented to the search.

“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,” the court wrote.