CA11: Def’s wife’s search of his cell phone finding child pornography and then taking the phone to the police was a private search

Defendant’s wife’s search of his cell phone finding child pornography and then taking the phone to the police was a private search for her personal reasons. United States v. Rivera-Morales, 2020 U.S. App. LEXIS 17116 (1st Cir. May 29, 2020):

This leaves, of course, the instances in which Sánchez accessed the defendant’s cellphone in order to show the video to various law enforcement officers. Three such instances occurred before the defendant consented to a search of his cellphone: first, when Sánchez went to the police station and reported the video to the desk officers; second, when Sánchez repeated her story to Officer Pérez the following day; and third, when Sánchez met with several law enforcement officers at the district attorney’s office. Although the parties’ arguments lump these three incidents together, we regard the first incident as analytically distinct — and we start there.

We think it manifest that Sánchez was still acting as a private party when she accessed the video to show it to the desk officers. Even though Sánchez was advised to go to the police station by her uncle (a municipal police officer), he was not acting in an official capacity and did not accompany her on that journey. Nor is there any evidence that he directed her to play the video upon her arrival. For aught that appears, Sánchez sought out the police on her own initiative in order to inform them about her husband’s illegal behavior and protect her daughter. When she arrived at the station, she told the desk officers what she had discovered and then, “out of anger and upset,” showed them the video. The desk officers did not touch the cellphone, which remained in Sánchez’s possession throughout her visit.

Nothing about this series of events indicates that the government instigated, participated in, or controlled Sánchez’s accessing of the cellphone by, for example, asking her to pull up the video. Nor does the record support an inference that Sánchez’s primary intent was to assist the government. To the contrary, she displayed the video to the desk officers out of pique. Her motive was purely personal, and although it may have overlapped with the government’s goal of combatting child pornography, this confluence of interests did not, by itself, transmogrify Sánchez into a government agent. See United States v. Cameron, 699 F.3d 621, 638 (1st Cir. 2012).

To say more about this viewing would be to paint the lily. Because Sánchez was not acting as a government agent when she accessed the video to show it to the desk officers, there is no plausible basis for concluding that those officers violated the Fourth Amendment. Any other conclusion would contravene the settled principle that law enforcement officers are free to accept evidence voluntarily delivered to them by a private party — even evidence for which they would not have been able to search in the absence of a warrant — without crossing the line into forbidden Fourth Amendment territory. See Coolidge v. New Hampshire, 403 U.S. 443, 487 (1971); cf. Spencer v. Roche, 659 F.3d 142, 149 (1st Cir. 2011) (explaining that “a police officer’s observation of an item in plain view does not constitute a search so long as the officer makes his observation from a lawful vantage point”).