The informant was acting as an agent of the government in conducting the search here. United States v. Minkkinen, 2026 U.S. Dist. LEXIS 230696 (S.D. W. Va. Oct. 7, 2026):
In short, the evidence that Informant Keene was acting as an agent of law enforcement was overwhelming. He met with Mr. Powers dozens of times, provided reams of data downloaded from workspaces controlled by the Defendants, and the specific information and data he provided was directed by Mr. Powers, either through direct requests or through collaborative discussions about the needs of the investigation.
To the extent others at WorkForce, including Mr. Keene’s subordinate, Mark McNeely, provided information from SharePoint or the Sandbox to investigators, they likewise intended to assist law enforcement and had no other motivation. Mr. McNeely, like Mr. Keene, conducted searches after Mr. Powers asked for his assistance in accessing documents. While he did not have the same long-standing and collaborative relationship, the Court finds that the fact that he was supervised by Mr. Keene, in combination with Mr. Powers’ request for any additional documents he could find, was sufficient to make Mr. McNeely a government agent when he turned over Sagitec’s data.
C. Scope of Searches
Even if the Court were to find that Keene was not an agent of the Government, despite the staggering weight of the evidence that he was, the United States would not be in the clear. When the Government receives items from a private search, it “may not exceed the scope of the private search unless it has the right to make an independent search.” Walter v. United States, 447 U.S. 649, 657, 100 S. Ct. 2395, 65 L. Ed. 2d 410 (1980) (finding that viewing films exceeded the scope of a search by a private party, where the private party observed labels describing potentially unlawful content). “Digital files are containers,” and “police must still get a warrant before they can open the container and confirm its contents.” United States v. Lowers, 170 F.4th 134, 149 (4th Cir. 2026).
Investigator Powers did not seek a warrant at any point. Nor did the United States seek a warrant prior to collecting much of the data provided by Informant Keene and delivering it to a consultant for review. The United States has the burden of establishing that the Defendants’ “expectation of privacy had been frustrated,” by a private party’s prior viewing of the material. Id. at 153. Given the amount of material Mr. Keene provided, it is unlikely that he personally viewed the documents. There is no evidence that he personally viewed the documents. Instead, he conducted searches for documents responsive to a search term, downloaded all of those documents, and provided the collected documents to Investigator Powers. In the case of the source code, similarly, Mr. Keene noted the massive size of the program. He downloaded it and provided it to Mr. Powers without meaningful review. Mr. McNeely did the same. The use cases or other material eventually supplied by Jonathan Link following an official request to WorkForce management were likewise never reviewed by Mr. Link or other private parties. According to the testimony, Mr. Link and Mr. Green believed the material consisted only of documents originally created by West Virginia. To the extent the files provided included documents originating with Sagitec, Deloitte, or the Defendants, no third party had privately searched those documents to defeat the Defendants’ privacy interest. The United States certainly has not provided evidence that the individuals who provided the material to investigators reviewed those documents or that the scope of any private party search was consistent with the scope of the subsequent search by law enforcement. Thus, the thumb drives, email attachments, and other means of transferring material obtained by Investigator Powers from Mr. Keene, Mr. McNeely, and Mr. Link all constitute containers that could not legally be searched without a warrant.
D. Suppression
In sum, the Defendants had a reasonable expectation of privacy in the virtual workspaces that they and their company owned and controlled. Those workspaces contained confidential material and access was tightly controlled. Providing access to employees of the Consortium states for tasks associated with the Consortium Project did not eliminate all expectation of privacy against intrusion by law enforcement. Informant Keene acted as an agent of law enforcement, not as a private party, when he searched the Sagitec workspaces. Investigator Powers and others then opened files provided by Mr. Keene without first obtaining a warrant, again violating the Constitutional prohibition on unreasonable warrantless searches. The searches were illegal when Mr. Keene undertook them with the encouragement of Mr. Powers, the searches were illegal when Mr. Powers opened the files, and the searches were illegal when the United States shared the files with experts and others to build this case.
Investigator Powers’ actions are frankly baffling, particularly in light of his ongoing consultation with AUSA Cogar during the investigation. Mr. Powers testified that he had a 24-year career with the West Virginia State Police prior to joining the Commission on Special Investigations. That experience would have provided him with at least some minimal awareness of Fourth Amendment implications. The Court has presided over criminal prosecutions, in both state and federal court, arising from a wide variety of criminal investigations. When a case begins with a tip from a confidential informant, law enforcement routinely uses that information, in combination with information obtained from public records, interviews, and plain-view observations, to develop probable cause and seek a search warrant. The Court has never seen a case in which law enforcement spent years on a document-intensive investigation, apparently without ever considering attempting to obtain evidence via a search warrant, subpoena, or other legal process. The Court will not speculate as to whether that is because most law enforcement officers are more adept with the Fourth Amendment or because prosecutors normally screen cases with such glaring Fourth Amendment problems.
The Assistant United States Attorneys involved in this case apparently periodically recognized the problem with building a case on evidence obtained through the warrantless searches of an informant conducted in consultation with law enforcement. AUSA Cogar, when asked whether Mr. Keene should turn over evidence from a proposed search, said he should not. But he later accepted that evidence without a warrant to share with a consultant in order to pursue the case. After West Virginia had withdrawn from the Consortium with no final product, investigators went through official channels to inquire about the availability of use cases and source code, presumably seeking copies from another source to supplement or replace the versions previously provided by Mr. Keene. But again, when those efforts were unavailing, the attorneys moved forward and presented Mr. Keene’s evidence to the grand jury, and they now seek to use it at trial.
This scenario is precisely what the exclusionary rule is designed to address: willful, inexplicable, repeated violations of the Defendants’ constitutional right to be free of unreasonable searches and seizures.
