Wednesday, October 01, 2008

Private and Not-So-Private Searches

An issue that often gets overlooked when we talk about police's searching and seizing property is the role of private citizens in that process. While most of the time it will be police officers -- local, state or federal -- who search for and seize evidence, sometimes private citizens get involved, as well.

As I explained in an earlier post, the 4th Amendment only protects you from what lawyers refer to as “state action" That is, it only applies when agents of the government search places and/or seize property.

As I noted in that post, if a private person decides to search your car or house or office or computer for evidence and then turns whatever he or she finds over to the police, you’re out of luck.

Unless the police instigate the private person’s doing all this, it’s a purely private search and the 4th Amendment doesn’t apply. (You can always sue the person for trespass, theft and probably a variety of other things, but that ends to be very cold comfort when you’re facing criminal charges.)

A relatively recent case from the U.S. Navy-Marine Corps Court of Criminal Appeals illustrates a particular aspect of this private/public search dichotomy. Here are the facts:
[Tyler Strader] shared a two-person barracks room with . . . Aviation Electrician's Mate Airman Apprentice (AEAA) L. Their room was one of four that shared a . . . lounge area. Strader owned a computer he kept on his desk. He told his roommate not to use the computer, and made it clear that he did not want anyone else using it.

On 9 May 2003, Strader went to work and left his computer on, but with an active screensaver visible. Neither the computer nor its files were password protected.

Later that day, AEAA L met . . . Jessica, who was visiting a Sailor that lived in one of the adjoining rooms. . . . AEAA L invited Jessica into his room to see Strader's collection of `Hello Kitty’ dolls. AEAA L told Jessica Strader spent large amounts of time on his computer, and did not let anyone else use it. After she accidentally bumped Strader's desk, causing the computer to return from standby, Jessica began to browse the computer out of curiosity. AEAA L asked her to see what was on [the] computer. Jessica opened files on the hard drive, one of which was entitled `Avril.’ That folder contained what Jessica and AEAA L believed to be child pornography. Jessica scrolled through every image file with a `.jpg’ suffix in the folder, noting that it contained approximately 260 images of child pornography.

Jessica and AEAA L summoned two other Sailors to show them what they had discovered. . . . After looking at some of the images of child pornography, one of the Sailors called security. Jessica closed the `Avril’ folder, and either turned the screensaver back on, or left the computer, which returned to standby mode.

When the . . . security officers arrived, they took statements from AEAA L and Jessica. AEAA L told them he and Jessica had seen images of child pornography on Strader's computer. The officers secured the . . . room, and called their watch commander and field supervisor, Sergeant Worthington. When he arrived, . . . Worthington asked AEAA L and Jessica to show him what they had seen. Jessica, AEAA L, and the officers entered the barracks room and Worthington asked Jessica how she knew what she had seen was child pornography. She replied that she would show him, opened the `Avril’ folder, and scrolled through 23 of the images . . . she and AEAA L had viewed earlier.

After looking at the images, Worthington contacted the Naval Criminal Investigative Service (NCIS) Duty Agent, who advised him to seize the computer . . . but not to apprehend Strader because NCIS would conduct a[n] . . . investigation . . . . . The officers seized the computer . . . . Later, NCIS took custody of these items.

On 30 May 2003, NCIS asked the Regional Computer Forensics Laboratory (RCFL) to search and analyze Strader's hard drive. The RCFL found that the computer contained 551 separate files which had images of suspected child pornography, including some images of child pornography that had not been viewed by AEAA L, Jessica, or any of the officers on 9 May 2003.
U.S. v. Strader, 2008 WL 892689 (N.M. Ct. Crim. App. 2008).

Strader pled guilty to one count each of attempted possession and attempted receipt of child pornography. He reserved the right to appeal the constitutionality of the search of his computer, though.

As I noted above, everything AEAA L and Jessica did was the action of private parties, so the 4th Amendment doesn’t apply to their overtly searching Strader’s computer. What Strader argued was that the subsequent search by the Naval investigative officers was itself conducted in violation of the 4th Amendment.

There’s a limitation on the private search doctrine I outlined earlier: It does not violate the 4th Amendment for police officers to see what the private citizens have already seen; the premise is that the search by the private citizens has already turned up this evidence so if they share it with police there is no incremental invasion of someone’s privacy. It DOES, though, violate the 4th Amendment for police officers (civilian or military) to go beyond what the private citizens did, to look at more than they saw, and that’s what Strader was arguing happened here.

The U.S. Navy-Marine Corps Court of Criminal Appeals held that the officers’ viewing what AEAA L and Jessica had already seen did not violate the 4th Amendment because they stayed within the scope of the prior, private search:
The military judge found that the police `examination or intrusion into [Strader’s] hard drive did not exceed . . . the scope . . . ' of the . . . private search by Jessica and AEAA L. The military judge noted that the security examination of the computer was limited to viewing images that had . . . been . . . viewed by AEAA L and Jessica. Therefore, he concluded that the officers' viewing of these same images was not a search within the meaning of the Fourth Amendment. We agree. The officers' examination of [Strader's] computer in his barracks room did not exceed the scope of the earlier private search nor did it violate the Fourth Amendment. We also agree with the military judge's determination that the extraction and seizure of the child pornography images by the RCFL did not exceed the earlier private party search, but that the web-sites, chat logs, and e-mail retrieved from the computer during the RCFL search exceeded the scope of the private search and should be suppressed.
U.S. v. Strader, supra.

I also agree with that last point. As noted in the facts quoted above, the RCFL examiners looked at more than AEAA L and Jessica had, which was a violation of the 4th Amendment. They should have known better than to do that. The only way they could legitimately go outside the scope of what AEAA L and Jessica had already done was by getting a search warrant authorizing a more expansive search; and they should have had no difficulty getting a warrant given what they had already found on the computer.

The court of appeals also held that the officers acted within the 4th Amendment in seizing the computer. The seizure was justified under the plain view doctrine. As I explained in a post I wrote a couple of months ago, the plain view doctrine is a principle that expands the scope of a legitimate search. Here’s how it applied in this instance: (i) the Naval officers could legitimately look at what AEAA L and Jessica had already seen without violating the 4th Amendment; (ii) seeing those images gave them probable cause to believe the computer contained child pornography, which is illegal in and of itself; (iii) since the computer was in plain view, all they had to do was seize it (that is, they didn’t have to search for it). So, the plain view doctrine justified their taking the computer and looking, again, at what AEAA L and Jessica had seen . . . but not their looking a new images.

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