This post examines an opinion from the U.S. Court of Appeals for the 1st Circuit: U.S. v. Tapley, 2016 WL 457364 (2016). The court begins by explaining that
John Tapley pled guilty to possessing
child pornography after having sustained a prior conviction for unlawful sexual
contact with a minor, in violation of 18 U.S. Code §§ 2252A(a)(5)(B) and (b)(2).
Tapley's guilty plea was conditioned on his right to seek appellate relief from
the district court's denial of his motion to suppress.
U.S. v. Tapley, supra.
The court then explained how, and why, the prosecution
arose:
In January 2013, after experiencing
technical difficulties with his laptop computer, Tapley left the computer for
repairs at Computer Essentials, a repair shop in Ellsworth, Maine. Shortly
thereafter, a technician by the name of Robert Harriman was assigned to assess
and repair the computer.
In the course of a routine diagnostic
evaluation, Harriman discovered several pictures depicting young, but
fully-clothed girls who appeared to Harriman to be under the age of ten, as
well as a picture of an approximately fourteen to eighteen-year-old girl
standing nude in a shower. In reviewing Tapley's internet search history,
Harriman discovered searches for topics such as `preteen porn.’ Finding these
items `disturbing,’ Harriman searched the Maine sex offender registry and
determined that Tapley was on it.
Harriman contacted the Ellsworth Police
Department and reported his findings to Officer Gil Jameson. After consulting
with a detective, Officer Jameson determined that Tapley had not broken any
laws. Officer Jameson called Computer Essentials and left a message with
Harriman's manager informing Harriman of his conclusion. In an incident
report, Officer Jameson wrote that `[t]he case can be closed.’
Harriman remained `alarmed’ by what he
had seen and `did not feel comfortable’ completing his work and returning the
computer to Tapley. On his own initiative, Harriman conducted a further search
of the computer, and this time found a set of videos appearing to depict young
children performing sexual acts.
Harriman again called Officer Jameson
with his findings. In turn, Officer Jameson spoke with Detective Alan Brown of
the Hancock County Sheriff's Department. In short order, Detective Brown
visited Computer Essentials and took possession of the laptop. Based on the
information provided by Harriman, Detective Brown applied for, and received, a
warrant to search the computer. That search resulted in Tapley's indictment for
possession of child pornography.
U.S. v. Tapley, supra.
The opinion then explains that Harriman
again called Officer Jameson with his
findings. In turn, Officer Jameson spoke with Detective Alan Brown of the
Hancock County Sheriff's Department. In short order, Detective Brown visited
Computer Essentials and took possession of the laptop. Based on the information
provided by Harriman, Detective Brown applied for, and received, a warrant to
search the computer. That search resulted in Tapley's indictment for possession
of child pornography.
In proceedings before the district
court, Tapley moved to suppress the evidence against him, arguing that
Harriman's second search had been performed in violation of the Fourth Amendment and that, absent the information provided by Harriman from that
search, Detective Brown's search warrant lacked probable cause. On the report and
recommendation of a magistrate judge, the district court denied the motion to
suppress, reasoning that Harriman had acted solely as a private citizen and not
as an agent of the government. See United
States v. Tapley, No. 1:14–cr00080–JAW, 2014 WL 6679127, at *2 (U.S.District Court for the District of Maine 2014).
Tapley entered a guilty plea
conditioned on his right to seek appellate review of the denial of his motion
to suppress. See Federal Rules of Criminal Procedure 11(a)(2). The
district court later sentenced Tapley to a prison term of 120 months.
U.S. v. Tapley, supra.
The comments about whether Harriman was acting as a “private
citizen,” versus as an “agent of the state” in the above paragraph arise from
the fact that Constitutional principles, such as the Fourth Amendment, only
protect citizens from government action.
The site you can find here has a very good explanation of that
requirement and why it exists in U.S. law. If Harriman was acting as a private citizen,
the Fourth Amendment would not apply to what he did; if, on the other hand, he did
what he did in order to find evidence that would help the government prosecute Tapley,
he might very well be deemed an agent of the state, in which Tapley could move
to suppress the evidence discovered by Harriman as the product of activity that
violated his Fourth Amendment rights.
Getting back to the opinion, the Court of Appeals then took
up Tapley’s argument regarding his motion to suppress, explaining that
[w]e review the district court's denial
of a motion to suppress by means of a two-tiered inquiry. United States
v. White, 804 F.3d 132, 136 (U.S. Court of Appeals for the 1st Circuit 2015). The district court's
factual findings are reviewed for clear error, and its legal conclusions de novo. Id. A
finding of fact will amount to clear error `only if, after considering all the
evidence, we are left with a definite and firm conviction that a mistake has
been made.’ United States v. Mousli, 511 F.3d 7, 11 (U.S. Court of Appeals for the 1st Circuit 2007) (quoting United
States v. Ferreras, 192 F.3d 5, 9–10 (U.S. Court of Appeals for the 1st Circuit 1999)). `So long as any
reasonable view of the evidence supports the decision, the district court's
ruling will be upheld.’ United States v. McLellan,792 F.3d 200, 212
(U.S. Court of Appeals for the 1st Circuit 2015).
`The Fourth Amendment's protection
against unreasonable searches and seizures applies only to government action
and not “to a search or seizure, even an unreasonable one, effected by a
private individual not acting as an agent of the [g]overnment.”’ United
States v. Silva, 554 F.3d 13, 18 (U.S. Court of Appeals for the 1st Circuit 2009) (quoting UnitedStates v. Jacobsen, 466 U.S. 109, 113 (1984)). To determine whether a
private party acts as an agent of the government, we consider three factors:
(1) `the extent of the government's role in instigating or participating in the
search’; (2) `its intent and the degree of control it exercises over the search
and the private party’; and (3) `the extent to which the private party aims
primarily to help the government or to serve its own interests.’ Id.
(quoting United States v. Pervaz, 118 F.3d 1, 6 (U.S. Court of Appeals for the 1st Circuit 1997)).
U.S. v. Tapley, supra.
The Court of Appeals then outlined its rulings on Tapley’s
Fourth Amendment argument:
Applying these criteria to the facts
before us, we have little difficulty concluding that Harriman acted as a
private individual and not as an agent of the government in searching Tapley's
computer. As we have described, Harriman in fact undertook two separate
searches. The first was indisputably in
Harriman's capacity as a private citizen. As an employee of Computer
Essentials, Harriman was assigned to assess Tapley's laptop, to diagnose the
technical problems it was experiencing, and to conduct the necessary repairs.
In the course of a routine evaluation, Harriman encountered the photographs of
young children which prompted his initial telephone call to Officer Jameson.
The second search, on the other hand,
was conducted after the initial contact with Officer Jameson, prompting Tapley
to contend that Harriman undertook this search as an agent of the government.
This argument is unconvincing when considered in light of the determinative
factors.
U.S. v. Tapley, supra.
The court ended its opinion with these comments:
There is no evidence suggesting that
Harriman's second search was instigated by the government, or that the
government participated in, or controlled, that search in any way. To the
contrary, Officer Jameson left a message for Harriman informing him that Tapley
had not broken the law, and he made a note in his file indicating that `[t]he
case can be closed.’ In other words, as far as Officer Jameson was concerned,
there was no further investigative work to be done. But Harriman remained
`alarmed’ and `did not feel comfortable’ returning the laptop to Tapley without
further review of its contents. Therefore, entirely on his own initiative and
without the government's direction, control, or knowledge, Harriman undertook
the second search.
We must also consider Harriman's intent
in order to assess whether his primary aim was to help the government. See Silva, 554
F.3d at 18. The district court concluded, and we agree, that `Harriman's motive
is difficult to discern.’ Tapley, 2014 WL 6679127, at *2. In a
written statement provided to Detective Brown, Harriman indicated that, even
after receiving the message from Officer Jameson that Tapley had not broken the
law, he remained `alarmed’ and `did not feel comfortable . . . releasing [the
laptop] to Mr. Tapley.’ Therefore, he `decided to look further before [he]
contacted Mr. Tapley and released [the laptop] to him.’ The district court thus
concluded that `whether Mr. Harriman searched the computer because of a strong
personal belief, a desire to assist law enforcement, or a company policy, is
not apparent.’ Id. We agree that there is simply not enough in
the record to suggest that Harriman's aim was `primarily to help the
government.’ Silva, 554 F.3d at 18; see also United States v. Cameron, 699 F.3d 621, 638 (1st
Cir.2012) (noting that the defendant bears the burden to show that the
party conducting the search `did what it did to further the government's
interest,’ even if the record does not reflect an alternative interest).
U.S. v. Tapley, supra.
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