Monday, June 01, 2015

The Girlfriend, the Hacked Laptop and the 4th Amendment

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.

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