N.D.Ohio: Gov’t instigated a private search, and it is suppressed

The government became actively involved in a private search of a computer for child pornography, and the search is suppressed. United States v. Lichtenberger, 2014 U.S. Dist. LEXIS 65938 (N.D. Ohio April 30, 2014):

The government argues that the intent behind Holmes’s search of Lichtenberger’s laptop was to satisfy her curiosity. She testified that she was not looking for evidence of a crime but was “just generally looking for anything.” (Doc. 24, at 40). The government also notes that when the police first came to Holmes’s residence to arrest Lichtenberger, no one instructed or encouraged Holmes to search the home for evidence. The government contends that because Holmes was the person who hacked into the laptop, clicked on the folders, and controlled the laptop, there was no governmental action. Finally, the government contends that Officer Huston’s actions to boot up the computer and enlarge three or four images were merely to confirm Holmes’s complaint. In other words, he never participated or affirmatively encouraged Holmes’s private search.

Lichtenberger argues that the government is conflating the first and second searches. He agrees that the first search, in which Holmes discovered the child pornography, is not government action. He contends that the second search is, however, because Officer Huston actively directed Holmes to conduct the search, thereby making her an agent of the government.

Lichtenberger argues that Officer Huston specifically asked Holmes to boot up the computer and show him the pictures. He contends that when Holmes showed him the images, per his request, her intent was not entirely independent of the government’s intent to collect evidence. At that point, she was directly following his instructions and, accordingly, her intent was to assist him in his investigation.

I find the defendant’s arguments persuasive. It is uncontested that the first search was entirely a private action. Thus, the fact that the police officers did not ask or encourage Holmes to search for evidence when they arrested Lichtenberger is simply of no relevance. As Holmes testified, she acted out of curiosity.

The second search, however, constitutes government action. When Officer Huston came to Holmes’s residence, he gave her several directions. He directed her to boot up the laptop and she complied. He asked her to see the images and she showed him. Even though he was not touching the laptop, he would not have seen the images without instructing Holmes to show them to him. By giving her instructions and directing her actions, she became an agent of the officer. See United States v. Robinson, 390 F.3d 853, 872 (6th Cir. 2004) (finding that a private citizen was not an agent because the police “neither asked nor otherwise encouraged” him to open a package containing narcotics).