WaPo: Sixth Circuit creates circuit split on private search doctrine for computers

WaPo: Sixth Circuit creates circuit split on private search doctrine for computers by Orin Kerr:

The Sixth Circuit handed down a new decision on computer search and seizure that may be the next computer search issue to make it to the Supreme Court. The issue: How does the private search reconstruction doctrine apply to computers? The new decision creates an apparent circuit split with the Fifth and Seventh Circuits.

United States v. Lichtenberger, 2015 U.S. App. LEXIS 8271 (6th Cir. May 20, 2015):

Having found that Holmes’ initial search was private and that Jacobsen governs, the district court erred in its ensuing analysis. Instead of proceeding to an analysis of the scope of Officer Huston’s search vis-a-vis Holmes’ private search, the court addressed Lichtenberger’s argument that Holmes was acting as an agent of the government when she showed Officer Huston photographs on the laptop. The district court found:

The protections of the Fourth Amendment do not apply to a search or seizure “effected by a private individual not acting as an agent of the Government or with the participation or knowledge of any government official.” … Thus, I must determine whether Holmes acted as an agent of Officer Huston. If she did, I must suppress the laptop as evidence.

Id. at 758 (quoting Jacobsen, 466 U.S. at 113).

Because Holmes re-opened the laptop and navigated its contents at Officer Huston’s behest, the district court found that Holmes had acted as an agent of the government. Id. at 759 (relying on United States v. Robinson, 390 F.3d 853, 872 (6th Cir. 2004)). Under this agency analysis, the court held that Officer Huston’s review of the photographs constituted an impermissible warrantless search under the Fourth Amendment, and granted Lichtenberger’s motion to suppress on that basis. Id. at 759-60.

While we agree with the district court’s conclusion, we disagree with its approach. Though the district court properly found that Jacobsen governed the case at bar, the court did not apply the scope test articulated by the Supreme Court in that case. It is true that Jacobsen discusses the essential distinction between searches conducted by a government agent and those conducted by a private party, but that section of the opinion is dicta that clarifies why a government search may properly follow on the heels of a private search. 466 U.S. at 119-20.

Agency is relevant to Holmes’ initial search because government involvement at that stage would remove the case from Jacobsen’s ambit entirely. Id. at 115 n.10 (noting that the justification for the private search conducted by FedEx was questioned in a post-trial affidavit, but because “lower courts found no governmental involvement in the private search, a finding not challenged by respondents[, t]he affidavit [was] thus . . . of no relevance[.]”); see also Bowers, 594 F.3d at 526 (“In this case, because it was wholly private action that first uncovered the [evidence], with neither involvement by law enforcement nor an intent to aid law enforcement, [the private searchers] cannot be considered government agents at the time that the [evidence] was discovered initially.”) And agency is relevant to an after-occurring search analysis where the court determines that the after-occurring search exceeds the scope of the initial private search. Jacobsen, 466 U.S. at 117-18 (“The Fourth Amendment is implicated only if the authorities use information with respect to which the expectation of privacy has not already been frustrated. In such a case the authorities have not relied on what is in effect a private search, and therefore presumptively violate the Fourth Amendment if they act without a warrant.”) But it is only possible to evaluate the elements of a government search “that exceeded the scope of the initial private search” after those elements have been identified by comparing the scope of the two searches. Thus, in Jacobsen, the Supreme Court did not begin by determining the agency behind the officer’s actions. Id. at 113-26. Rather, the Court first evaluated whether the officer’s actions remained within the confines of the initial private search conducted by the FedEx employees who discovered the package. Id. After determining those limits, then the Court examined the elements of the officer’s search that went beyond the FedEx employee’s actions (namely, the cocaine test the officer conducted). Id. at 122 (“The question remains whether the additional intrusion occasioned by the field test, which had not been conducted by the Federal Express agents and therefore exceeded the scope of the private search, was an unlawful ‘search’ or ‘seizure’ within the meaning of the Fourth Amendment.”) Accordingly, the correct inquiry is whether Officer Huston’s search remained within the scope of Holmes’ earlier one.

4In that instance, the government must show an independent justification for that element of the search exceeding the scope. This application of agency is evident in the facts of Jacobsen, wherein a DEA agent-acting openly in his role as a representative of law enforcement-conducted the after-occurring search in question. Id. at 113-26.

D.

We find 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.