MI: Police told Best Buy employee to search for CP, thereby exceeding private search

A computer is an “effect” under the Fourth Amendment, and the police conducted a warrantless search by telling a Best Buy employee to search the computer for child pornography, thereby exceeding the private search. People v. Gingrich, 2014 Mich. App. LEXIS 2149 (November 6, 2014):

The record evidence also shows that only at the command of the police did the Best Buy employee physically take the hard drive to defendant’s computer (thus, a trespass on defendant’s “effects”) and attach it to a store computer in order to gather evidence of child pornography. Since the officers did not have a search warrant to do so, and no exception to the warrant requirement applies, the circuit court correctly held that a warrant was required before police directed the Best Buy employee to attach the hard drive to another computer for purposes of searching the hard drive for evidence. Having reached this conclusion, there is no need to determine whether defendant also had a reasonable expectation of privacy in the information contained in the computer. Jardines, ___ U.S. at ___; 133 S Ct at 1417, citing Jones, 565 U.S. at ___; 132 S Ct at 951-952.

Our conclusion that it was necessary for the police to obtain a search warrant before exceeding the scope of the private search is further buttressed by the decision in Jones. In Jones, government agents tracked the movements of a suspected drug trafficker by placing an electronic Global-Positioning-System (GPS) device on the undercarriage of a vehicle registered to the suspect’s wife while it was parked in a public parking lot. Jones, 565 U.S. at ___; 132 S Ct at 948. Jones was later charged with, among other offenses, conspiracy to distribute and possess with intent to distribute five kilograms or more of cocaine. Id. The district court denied Jones’s motion to suppress the GPS evidence, finding that one “‘traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.'” Id. (citation omitted). The United States Court of Appeals for the District of Columbia Circuit reversed Jones’s conviction “because of admission of the evidence obtained by warrantless use of the GPS device ….” Id. at 949. The United States Supreme Court affirmed, holding that attaching the GPS tracking device to an individual’s vehicle, and thereby monitoring the vehicle’s movements on public streets, constituted a search or seizure within the meaning of the Fourth Amendment. Id. at 948-949.

Justice Scalia, writing for the Court, noted that it was “beyond dispute that a vehicle is an ‘effect’ as that term is used in the [Fourth] Amendment,” id. at 949 (citation omitted), and added that “[b]y attaching the [GPS] device to the Jeep, officers encroached on a protected area,” id. at 952. “The Government physically occupied private property for the purpose of obtaining information. We have no doubt that such a physical intrusion would have been considered a ‘search’ within the meaning of the Fourth Amendment when it was adopted.” Id. at 949 (citation omitted). Consequently, because the government obtained information by physically intruding on a constitutionally protected area, the Court concluded a search within the protection of the Fourth Amendment had occurred. Id. at 950 n 3. Hence, when the government commits a trespass on “houses,” “papers” or “effects” (or invades a Katz reasonable invasion of privacy) for the purpose of obtaining information, such a trespass or invasion of privacy is a search within the meaning of the Fourth Amendment. Id. at 951 n 5.