Friday, September 04, 2015

The Laptop, the Private Search and the 4th Amendment

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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