CA4: Police exceeding private search of a computer isn’t treated the same as other private searches

The police likely exceeded the private search of a computer, but the product will not be suppressed. A search warrant was issued, and the police relied on it in good faith. The private search doctrine as to computers is more relaxed. United States v. Fall, 2020 U.S. App. LEXIS 10589 (4th Cir. Apr. 3, 2020):

While we have not addressed the private search doctrine in the context of electronic devices, our sister circuits have utilized varying approaches when confronted with this issue. The Eleventh and Sixth Circuits have held that there must be an exact one-to-one match between electronic files viewed by a private party and files later examined by police. Even if the police’s extension of the search is de minimis, it loses the protection of the private search exception. See United States v. Sparks, 806 F.3d 1323 (11th Cir. 2015); United States v. Lichtenberger, 786 F.3d 478 (6th Cir. 2015).

But, as the government points out, other circuits have allowed a more permissive application of the private search doctrine to electronic searches. The Seventh and Fifth Circuits have held that with respect to officers searching containers that were not examined by the private party, a more expansive officer search “would not necessarily be problematic if the police knew with substantial certainty, based on the statements of the private searches, their replication of the private search, and their expertise, what they would find inside.” United States v. Runyan, 275 F.3d 449, 464 (5th Cir. 2001); see Rann v. Atchison, 689 F.3d 832, 838 (7th Cir. 2012). Runyan also held that the police do not exceed the private search when they examine more items within a closed container than did the private searchers. Runyan, 275 F.3d at 464. The reasoning behind this view relates more to access to the device in general than the specific information reviewed. Since the private party accessed the device, these courts reason that so too can the police. Id.

We need not determine today the outer boundaries of the private search doctrine in the context of electronic searches for this Circuit because even if the search was not proper under the private search exception, the denial of the motion to dismiss should be affirmed under the good faith exception to the exclusionary rule. Under that exception, “evidence obtained by an officer who acts in objectively reasonable reliance on a search warrant will not be suppressed, even if the warrant is later deemed invalid.” United States v. Thomas, 908 F.3d 68, 72 (4th Cir. 2018) (citing United States v. Leon, 468 U.S. 897, 922, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984)). “[E]vidence obtained from an invalidated search warrant will be suppressed only if ‘the officers were dishonest or reckless in preparing their affidavit or could not have harbored an objectively reasonable belief in the existence of probable cause.'” United States v. Lalor, 996 F.2d 1578, 1583 (4th Cir. 1993) (quoting Leon, 468 U.S. at 926). Further, the exception may apply even where a search warrant is “facially deficient” as long as “the warrant … was not so facially deficient as to preclude reasonable reliance upon it ….” United States v. Dickerson, 166 F.3d 667, 694-95 (4th Cir. 1999), reversed on other grounds by Dickerson v. United States, 530 U.S. 428, 120 S. Ct. 2326, 147 L. Ed. 2d 405 (2000). “[U]ncontroverted facts known to [the officer] but inadvertently not presented to the magistrate” are an important part of this inquiry. United States v. Lyles, 910 F.3d 787, 797 (4th Cir. 2018) (internal quotation marks omitted).

The warrant here is not facially deficient, much less to the extent required to preclude reasonable reliance on it. …