Aron Lichtenberger was charged with “possession, receipt,
and distribution of child pornography” in violation of federal law and moved to
suppress evidence. U.S. v. Lichtenberger, 2015 WL 2386375 (U.S. Court of Appeals for the 6th Circuit 2015). The U.S. District Judge for the Northern District of Ohio to whom the case was assigned granted the motion and the
government appealed. U.S. v.
Lichtenberger, supra.
The Court of Appeals began its opinion by explaining how the
prosecution arose:
On November 26, 2011, in the afternoon,
Lichtenberger was with Karley Holmes, his girlfriend, at their shared home in
Cridersville, Ohio. They lived there with Holmes's mother, who owned the
residence. That day, two friends of Holmes's mother came over to the residence
and told both Holmes and her mother that Lichtenberger had been previously
convicted of child pornography offenses.
One of the mother's friends then called
the police. Several officers, including Douglas Huston, from the Cridersville
Police Department[,] came to the residence. Holmes requested that the police
escort Lichtenberger off the property because she did not want him living there
anymore. Officer Huston determined that Lichtenberger had an active warrant for
his arrest for failing to register as a sex offender, arrested him, and removed
him from the property.
Later that day, Holmes went into the
bedroom she shared with Lichtenberger and retrieved his laptop. At the
suppression hearing, she testified that she wanted to access his laptop because
[he] `would never let me use it or be near him when he was using it and I
wanted to know why.’ The laptop was password protected, but Holmes hacked it by
running a password recovery program. She then changed the password.
Once she accessed the laptop, she
clicked on different folders and eventually found thumbnails [sic ]
images of adults engaging in sexual acts with minors. She clicked on one
of the thumbnails to see the larger image. When she found the first image, she
took the laptop to the kitchen to show her mother. There, they clicked through
several more sexually-explicit images involving minors. She closed the laptop
and called the Cridersville Police Department.
Officer Huston returned to the
residence. In the kitchen, Holmes told [him] she found child pornography on
[Lichtenberger’s] laptop. She also told him the laptop belonged to [Lichtenberger]
and he was the only one who would access and use it. She explained that one
time she tried to use the laptop and [Lichtenberger] immediately became upset
and told her to stay away from it. Lastly, Holmes told Officer Huston she
hacked the laptop to access it because it was password protected.
Officer Huston then asked Holmes if she
could boot up the laptop to show him what she had discovered. Holmes opened the
laptop lid and booted it up to take it out of sleep mode. She then reentered
the new password she created. Officer Huston asked her to show him the images.
Holmes opened several folders and began clicking on random thumbnail images to
show him. Officer Huston recognized those images as child pornography. He then
asked Holmes to shut down the laptop.
After consulting with his police chief
over the phone, Officer Huston asked Holmes to retrieve other electronics
belonging to Lichtenberger. She gave him Lichtenberger's cell phone, flash
drive, and some marijuana. Officer Huston then left . . . with those items, the
laptop, and its power cord.
U.S. v. Lichtenberger,
supra.
The court also explains that Holmes later testified that when
she was reviewing
Lichtenberger's laptop, she viewed
approximately 100 images of child pornography saved in several subfolders
inside a folder entitled `private.’ Holmes also testified that she showed
Officer Huston `a few pictures’ from these files, although she was not sure if
they were among the same images she had seen in her original search. Officer
Huston testified that Holmes showed him `probably four or five’ photographs.
U.S. v. Lichtenberger,
supra. On December 5, 2012, Lichtenberger was indicted on
three counts of receipt, possession,
and distribution of child pornography under 18 U.S.C. §§ 2252(a)(2), (a)(4)(B) and (b). Before trial, Lichtenberger moved to suppress all evidence
obtained pursuant to Officer Huston's warrantless review of the laptop with
Holmes on November 26, 2011. Lichtenberger argued that when Officer
Huston directed Holmes to show him what she had found, Holmes was acting as an
agent of the government such that the search was impermissible under the 4th Amendment. The government countered that the review Officer Huston conducted
was valid under the private search doctrine, which permits a government agent
to verify the illegality of evidence discovered during a private search.
U.S. v. Lichtenberger,
supra. The District Court Judge, as noted earlier, “granted Lichtenberger's
motion to suppress the laptop evidence.” U.S.
v. Lichtenberger, supra.
The Court of Appeals began its analysis of the government’s
appeal by explaining that
[t]he private search doctrine
originated from the Supreme Court's decision in U.S. v. Jacobsen, 466 U.S. 109 (1984). As with any 4th Amendment case, the facts underlying the Jacobsen case
are key to its holding. In 1981, Federal Express employees were inspecting a
package—a box wrapped in brown paper—that had been damaged in transit. . .
. The employees opened the box and discovered it contained a duct-tape tube
about ten inches long nestled among wadded sheets of newspaper. . . . The
employees removed the tube . . . and cut a slit in the end of [it]. . . . Inside,
they found multiple zip-lock bags of a white, powdery substance. . . .The
employees placed the bags back in the tube, put the tube back in the box, and
called the Drug Enforcement Administration (`DEA’). . . . A DEA
agent arrived and found the box open on a desk. Id. The agent
observed that the tube inside had a slit cut into it, and removed the bags from
the tube. . . . He then opened each bag and removed a trace amount
of the powder for an on-site field test. . . . The test positively
identified the substance as cocaine. . . . Based on the agent's findings,
the DEA procured a warrant to search the place to which the package had been
addressed and subsequently arrested the defendants. . . .
The question before the Court was
whether the DEA agent's search of the package and field test of its contents— conducted
without a warrant—violated the 4th Amendment. If so, the package and any
evidence obtained pursuant to the warrant based on its contents were
inadmissible. The Court began with the fundamental principle that the 4th
Amendment protects `an expectation of privacy that society is prepared to
consider reasonable.’ . . . When a
government agent infringes on this reasonable expectation, a `search’ occurs
for the purposes of the 4th Amendment, and the government must obtain a warrant
or demonstrate an exception to the warrant requirement applies. However, the 4th
Amendment only protects against `governmental action; it is wholly inapplicable
“to a search or seizure . . . effected by a private individual not acting as an
agent of the Government. . . .”’ (quoting Walter v. U.S., 447 U.S. 649 (1980) (Blackmun,
J., dissenting)). . . .
U.S. v. Lichtenberger,
supra.
The Court of Appeals went on to explain that, in applying
these principles, the
Supreme Court distinguished between the
invasion of privacy that resulted from the FedEx employees' search of the
package and the invasion that resulted from the DEA agent's subsequent review,
because `[o]nce frustration of the original expectation of privacy occurs, the 4th Amendment does not prohibit governmental use of the now-nonprivate
information.’ . . . The Court held that,
in a situation where `a governmental search . . . follows on the heels of a
private one[,]’ [t]he additional invasions of [a person's] privacy by the
government agent must be tested by the degree to which they exceeded the scope
of the private search. In other words,
the government's ability to conduct a warrantless follow-up search of this kind
is expressly limited by the scope of the initial private search. . . . (`[T]he
Government may not exceed the scope of the private search unless it has the
right to make an independent search’).
U.S. v. Lichtenberger,
supra. The Jacobsen Court went on to analyze whether the
DEA agent's after-occurring search had
exceeded the scope of the FedEx employees' initial search of the package. The
Court found that the agent's removal of the cocaine from the package remained
within the scope—and was therefore permissible under the 4th Amendment—because
he was merely confirming what the employees had told him and there was a
`virtual certainty’ that he was going to find contraband and little else in the
package. Id. . . .
The Court then evaluated whether the
cocaine field test conducted by the agent exceeded the scope of the initial
private search and found that it had because the FedEx employees had taken no
similar action. . . . However, the Court concluded that the field
test -- which would merely confirm or refute that the powder was cocaine -- could
not disclose any facts in which the defendants had a legitimate privacy
interest protected by the 4th Amendment, and was therefore independently
permissible to the extent it exceeded the scope of the initial private search.
. . .
U.S. v. Lichtenberger,
supra.
In this case, the prosecution argued that Officer Huston’s
review and subsequent seizure
fell within the ambit of the private
search doctrine as articulated by Jacobsen. Lichtenberger argues that
this Court's holding in U.S. v. Allen, 106 F.3d 695 (U.S.
Court of Appeals for the 6th Circuit 1997), prevents application of the private
search doctrine in his case. In Allen, we declined to extend the
private search doctrine to an after-occurring search of a motel room --`a
temporary abode . . .’ that is akin to a home.
U.S. v. Lichtenberger,
supra. The opinion goes on the
explain that in U.S. v. Allen, the
Court of Appeals pointed out that
[u]nlike
the package in Jacobsen . . . which `contained nothing but
contraband,’ Allen's motel room was a temporary abode containing personal
possessions. Allen had a legitimate and significant privacy interest in the
contents of his motel room, and this privacy interest was not breached in its entirety
merely because the motel manager viewed some of those contents. Jacobsen, which
measured the scope of a private search of a mail package, the entire contents
of which were obvious, is distinguishable on its facts; this Court is
unwilling to extend the holding in Jacobsen to
cases involving private searches of residences.
U.S. v. Allen, supra (emphasis added by the Court of Appeals).
The court went on
to apply these principles to this case, explaining that Lichtenberger
argues that, because the laptop was in
his home and because laptops may contain private information similar to that in
a home, our holding in Allen prevents application of the private
search doctrine to his case. While there is good reason to be concerned about
the breadth of private information contained in a laptop . . . Lichtenberger's
argument goes a step too far. Homes are a uniquely protected space under the
Fourth Amendment, and that protection `has never been tied to measurement of
the quality or quantity of information obtained.’ Kyllo v. U.S., 533 U.S. 27 (2001). Rather, any and all details in a home `are intimate details,
because the entire area is held safe from prying government eyes.’ Kyllo v.
U.S., supra. The fact remains that Officer Huston did not search Lichtenberger's
home. We decline to extend the protection afforded to homes to a laptop
computer.
The parties do not dispute that Holmes
acted solely as a private citizen when she searched Lichtenberger's laptop,
that she invited Officer Huston into a common area of the residence she and
Lichtenberger shared (the kitchen), and then showed the officer a sample of
what she had found. The district court found this fact pattern was analogous to
the critical elements of Jacobsen -- a private search followed closely
by a governmental search -- and held that the private search doctrine applied
in this case. We agree. This case presents an after-the-fact confirmation of a
private search. Accordingly, Jacobsen properly
applies, as the district court found.
U.S. v. Lichtenberger,
supra.
It explained that the District Court Judge, instead of “proceeding
to an analysis of the scope of Officer Huston's search vis-a-vis Holmes'
private search,” went on to address “Lichtenberger's argument that Holmes was
acting as an agent of the government when she showed Officer Huston photographs
on the laptop.” U.S. v. Lichtenberger,
supra. More precisely, it explained that the District Court Judge found
that the
`protections of the 4th Amendment do
not apply to a search or seizure “effected by a private individual not acting
as an agent of the Government or with the participation or knowledge of any
government official.”. . .Thus, I must determine whether Holmes acted as an
agent of Officer Huston. If she did, I must suppress the laptop as evidence.’
U.S. v. Lichtenberger,
supra.
The Court of Appeals therefore found that the District Court
Judge erred in focusing on whether Holmes was acting as a government agent when
she searched the laptop rather than on “whether Officer Huston's search
remained within the scope of Holmes' earlier one.” U.S. v. Lichtenberger, supra.
It analyzed that issue and found that the scope of Officer
Huston’s search of
Lichtenberger's laptop exceeded that of
Holmes' private search conducted earlier that day. This is, in large part, due
to the extensive privacy interests at stake in a modern electronic device like
a laptop and the particulars of how Officer Huston conducted his search when he
arrived at the residence. . . .
Under the private search doctrine, the
critical measures of whether a governmental search exceeds the scope of the
private search that preceded it are how much information the government stands
to gain when it re-examines the evidence and, relatedly, how certain it is
regarding what it will find. . . .
These principles have guided our
application of the private search doctrine for three decades. We have held a
government search permissible -- that is, properly limited in scope -- in instances
involving physical containers and spaces on the grounds that the officers in
question had near-certainty regarding what they would find and little chance to
see much other than contraband. For instance, in U.S. v. Bowers, the
defendant's roommate's boyfriend discovered a photo album containing what he
believed to be child pornography in the defendant's bedroom dresser. 594
F.3d 522 (U.S. Court of Appeals for the 6th Circuit 2010). When the
summoned authorities arrived at the defendant's home, his roommate directed
them to the dining room table, where the agents opened the album to view the
potentially incriminating evidence. U.S.
v. Bowers, supra. We upheld the
agents' search of the photo album because the roommate had already described
the contents of the album. U.S. v.
Bowers, supra. The agents therefore knew the album contained child
pornography, `learn[ed] nothing that had not previously been learned during the
private search, and `infringed no legitimate expectation of privacy.’ U.S. v. Bowers, supra. (quoting U.S.
v. Jacobsen, supra). . . .
U.S. v. Lichtenberger,
supra. The court also noted that it has “declined to apply the private
search doctrine where an officer's search of a physical space goes beyond the
scope of the initial private search.” U.S.
v. Lichtenberger, supra
But it also explained that that searches of physical spaces
and the items they contain
differ in significant ways from
searches of complex electronic devices under the 4th Amendment. On this point,
we find the Supreme Court's recent decision in Riley v. California 134 S.Ct. 2473 (2014), instructive. The Riley decision arose from
two cases in which officers had found cell phones on the defendants during
searches incident to arrest, secured and searched the data on those cell phones
without warrants, and subsequently discovered evidence used against the
defendants at trial. Riley v.
California, supra. The Riley Court held that the
search-incident-to-arrest exception, which permits law enforcement to search
items found on a suspect's person or in a suspect's vehicle at the time of
arrest without a warrant, did not extend to the data on a cell phone. .
. .Instead, the Court declared the searches unconstitutional, and
emphasized that `officers must generally secure a warrant before conducting
such a search.’ Riley v. California,
supra.
The Riley Court
explained that, under the 4th Amendment, `we generally determine whether to
exempt a given type of search from the warrant requirement “by assessing . . .
the degree to which it intrudes upon an individual's privacy and . . . the
degree to which it is needed for the promotion of legitimate governmental
interests.”’ Riley v. California, supra (quoting Wyoming v. Houghton, 526 U.S. 295 (1999)). In the context of a search incident
to arrest, that determination must be made by weighing the governmental
interests of officer safety and preservation of evidence against the invasion
of privacy inherent in searching the belongings someone has on their person at
the time of arrest. . . .
U.S. v. Lichtenberger,
supra.
The Riley Supreme
Court went on to explain that neither of these rationales has
much force with respect to digital
content on cell phones. . . . There are no comparable risks when the search is
of digital data. In addition, [we have] regarded any privacy interests retained
by an individual after arrest as significantly diminished by the fact of the
arrest itself. Cell phones, however, place vast quantities of personal
information literally in the hands of individuals. A search of the information
on a cell phone bears little resemblance to the type of brief physical search
considered in [our prior cases].
Riley v. California,
supra.
The Court of Appeals then noted that in Riley, the Supreme Court explained that
“[o]ne of
the most notable distinguishing features of modern cell phones is their immense
storage capacity.’” Riley v. California, supra. It therefore found that the likelihood
that
an electronic device will contain 1)
many kinds of data, 2) in vast amounts, and 3) corresponding to a long swath of
time, convinced the Riley Court that
officers must obtain a warrant before searching such a device incident to
arrest. Id. We reach the
same conclusion regarding the private search doctrine in the case at bar. As
with any 4th Amendment inquiry, we must weigh the government's interest in
conducting the search of Lichtenberger's property against his privacy interest
in that property. . . . But under Riley, the nature of
the electronic device greatly increases the potential privacy interests at
stake, adding weight to one side of the scale while the other remains the
same. . . .
U.S. v. Lichtenberger,
supra.
The court then explained that the “virtual certainty”
standard the Jacobsen Court applied in
that case also applied here, which meant Officer Huston’s search had to stay
within
the scope of Holmes' initial private
search. . . . To accomplish this, Officer Huston had to proceed with `virtual
certainty’ that the `inspection of the [laptop] and its contents would not tell
[him] anything more than he already had been told [by Holmes.]’ U.S. v.
Jacobsen, supra. That plainly was not the case. As the district court
found, `there was absolutely no virtual certainty that the search of Lichtenberger's
laptop would have revealed only what [he] had already been told.’
U.S. v. Lichtenberger,
supra.
The Court of Appeals also found that given the
extent of information that can be
stored on a laptop computer . . . the `virtual certainty’ threshold in Jacobsen requires
more than was present here. When Office Huston arrived, he asked Holmes to show
him what she had found. While the government emphasizes that she showed Officer
Huston only a handful of photographs, Holmes admitted during testimony that she
could not recall if these were among the same photographs she had seen earlier
because there were hundreds of photographs in the folders she had accessed.
And Officer Huston admitted that he may
have asked Holmes to open files other than those she had previously opened. As
a result, not only was there no virtual certainty that Officer Huston's review
was limited to the photographs from Holmes's earlier search, there was a very
real possibility Officer Huston exceeded the scope of Holmes's search and that
he could have discovered something else on Lichtenberger's
laptop that was private, legal, and unrelated to the allegations prompting the
search—precisely the sort of discovery the Jacobsen Court
sought to avoid in articulating its beyond-the-scope test.
U.S. v. Lichtenberger,
supra (emphasis in the original).
And it went on to point out that “all” of the photographs
Holmes showed
Officer Huston contained images of
child pornography, but there was no virtual certainty that would be the case.
The same folders—labeled with numbers, not words—could have contained, for
example, explicit photos of Lichtenberger himself: legal, unrelated to the
crime alleged, and the most private sort of images. Other documents, such as
bank statements or personal communications, could also have been discovered
among the photographs. So, too, could internet search histories containing
anything from Lichtenberger's medical history to his choice of restaurant. The
reality of modern data storage is that the possibilities are expansive.
U.S. v. Lichtenberger,
supra.
For these and other reasons, it affirmed the District Court
Judge’s order granting Lichtenberger’s motion to suppress the evidence at
issue. U.S. v. Lichtenberger, supra. In federal criminal practice, it is very unusual
to have a District Court Judge grant a motion to suppress, and even more
unusual to have a Court of Appeals uphold the District Court’s ruling.
If you would like to read an article that argues for limiting the private search exception in the context of digital searches, you can find one here.
No comments:
Post a Comment