After Aron Lichtenberger was charged with possessing,
receiving and distributing child pornography, he filed a motion to suppress
evidence. U.S. v. Lichtenberger, 786 F.3d 478 (U.S. Court of Appeals for the 6th Circuit 2015). The Court
of Appeals began its opinion by explain 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 defendant `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 the laptop 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 the officer that she found child
pornography on the defendant's laptop.
She also told him that the laptop belonged to the defendant and that he was the
only one who would access and use it. She explained that one time she tried to
use the laptop and the
defendant immediately became upset and told her to stay away from it. Lastly,
Holmes told Officer Huston that 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. Huston then left the premises with those items,
the laptop, and its power
cord.
U.S. v. Lichtenberger,
supra. The “defendant” in the
excerpt above is, of course, Lichtenberger. U.S.
v. Lichtenberger, supra.
The court goes on to explain 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. The opinion includes a
footnote after the first sentence in the passage quoted above, in which the
court explains that the images
`were in a folder
marked “private,” and when you clicked on the folder it came up with multiple
other folders. And they were labeled with numbers that said two, three, four,
five up to 12, and then when you clicked on one of those files, it came up with
images in those individual files.’
U.S. v. Lichtenberger,
supra.
The opinion then goes on to explain that Lichtenberger was
indicted on
December 5, 2012, 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. Following a suppression hearing
and additional briefing from the parties, the district court granted
Lichtenberger's motion to suppress the laptop evidence. The government appeals.
U.S. v. Lichtenberger,
supra.
The Court of Appeals began its analysis of both parties’
arguments on appeals by explaining that the “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 (`FedEx’) employees were inspecting a package—a box wrapped in
brown paper—that had been damaged in transit. . . . The employees opened
the box and discovered that it contained a duct-tape tube about ten inches long
nestled among wadded sheets of newspaper. . . The employees removed the tube
from the box and cut a slit in the end of the tube.
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. . . . The agent observed that the tube inside had a
slit cut into it, and removed the bags from the tube. . . .He 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. . . .
U.S. v. Lichtenberger,
supra. The court goes on to explain
that the issue before the
Supreme Court was whether the DEAagent's search of the package and field test of its contents—both 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 that 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, 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.”’ . . .
(quoting Walter v. U.S., 447 U.S. 649 (1980). . . .
Applying these principles, the Supreme
Court distinguished between the invasion of privacy that resulted from the
FedEx employees' search . . . 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. . . .
The Court therefore analyzed 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.
(citing Coolidge v. New Hampshire, 403 U.S. 443 (1971) and Burdeauv. McDowell, 256 U.S. 465 (1921)).
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.
The Court of Appeals then explained that Lichtenberger
argued that its decision in U.S. v. Allen, 106 F.3d 695 (1997),
barred the 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 containing personal possessions’ that is akin to a
home. We explained 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. Lichtenberger,
supra (quoting U.S. v. Allen, supra).
The court went on to explain that Lichtenberger argued 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 4th 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 that she then showed the officer a sample of what she had found.
The district court found that this fact pattern was analogous to the critical
elements of Jacobsen -- a private search followed closely by a
governmental search -- and held 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. . . .
U.S. v. Lichtenberger,
supra.
The court therefore 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.
U.S. v. Lichtenberger,
supra.
It went on to explain that when Officer 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 Holmes
himself 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 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.
All 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.
The Court of Appeals therefore held that “[i]n light of” the
information available at the time the
search was conducted, the strong privacy interests at stake, and the absence of
a threat to government interests, we conclude that Officer Huston's warrantless
review of Lichtenberger's laptop exceeded the scope of the private search
Holmes had conducted earlier that day, and therefore violated Lichtenberger's 4th
Amendment rights to be free from an unreasonable search and seizure.
The laptop evidence and evidence
obtained pursuant to the warrant issued on the basis of its contents must be
suppressed.
U.S. v. Lichtenberger,
supra.
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