On March 26, 2020, the Eighth Circuit Court of Appeals decided the United States v. Suellentrop[i], in which the court of appeals examined whether evidence obtained in private search of a cellphone and later shown to police was legal under the Fourth Amendment. The relevant facts of Suellentrop, taken directly from the case, are as follows:
In late 2016, Dennis Suellentrop lived in a house owned by his parents with his girlfriend, their infant daughter “Baby M,” and a mutual friend named Matt. An acquaintance, Paul Donnelly, resided in a camper parked in the driveway. Donnelly testified that he freely accessed the home, and that Suellentrop occasionally allowed Donnelly to use Suellentrop’s cell phone.
On the morning of January 1, 2017, Donnelly entered the house while Suellentrop was inside sleeping alone. After knocking on Suellentrop’s bedroom door, Donnelly entered, removed the phone from its charger, and left the room with it. He used the phone to make a call and check Facebook. Donnelly then got “nosey” and looked through the contents of the phone. He observed pornographic images and videos depicting Baby M.
Donnelly attempted to call Baby M’s mother, reached Matt instead, and told Matt what he had found. Matt informed Baby M’s mother and then visited Suellentrop’s property that afternoon. Donnelly showed Matt a few images on Suellentrop’s phone.
Donnelly’s telephone call to Matt apparently prompted someone to notify law enforcement. Deputy Sheriff Dennis Roberts arrived on the property not long after Matt’s arrival. Donnelly walked up to Roberts, recounted what he had found, and handed the phone to Roberts. After seeing an image of child pornography, Roberts turned off the phone and secured it in his pocket without examining it further. Donnelly let officers into the house; they awakened Suellentrop and escorted him to a patrol car for an interview. Suellentrop waived his right to remain silent and spoke to police. He refused permission to search the house or the phone, but admitted that there was possibly methamphetamine and related paraphernalia in the home.
Detective Scott Poe arrived on the scene a few minutes later and took possession of the phone without turning it on. He then called a state prosecutor, informed him that investigators had seized the phone, and requested assistance with obtaining a warrant to search Suellentrop’s residence and the cell phone. The prosecutor eventually signed off on a warrant application and submitted it to a state judge. The judge issued a search warrant.
When officers searched Suellentrop’s residence, they found drug paraphernalia but did not locate more evidence of child pornography. Poe completed an inventory of evidence seized from the residence. He enumerated several drug-related items; on a line set apart from the rest, Poe listed Suellentrop’s cell phone: “One LG Brand Phone provided by Reporting Party upon initial arrival.” Several weeks later, a member of Poe’s investigative task force conducted a forensic examination of the phone and found more images and videos containing child pornography.
Federal investigators joined the case shortly thereafter. A special agent of the FBI determined that federal agents should conduct their own examination of Suellentrop’s cell phone, and he secured a separate federal search warrant for the phone.[ii]
Suellentrop was ultimately charged with federal charges related to child pornography. He filed a motion to suppress and the district court denied the motion. He entered a guilty plea with the right to appeal the denial of the motion to suppress. Suellentrop then filed an appeal of the denial of his motion to the Eighth Circuit Court of Appeals.
The issue on appeal upon which this article will focus is whether the warrantless search of Suellentrop’s phone by the initial officer was a violation of the Fourth Amendment.
The basic facts regarding this initial search are that a private person, Donnelly, who lived on the same property with Suellentrop, was using Suellentrop’s cellphone. Donnelly began looking through the photographs on the phone and saw child pornography. Ultimately, the sheriff’s department was called and a deputy arrived. Donnelly, told the deputy what he had seen and handed him the phone. The deputy looked in the phone and observed the image of child pornography, turned off the phone, and summoned an investigator.
The court of appeals examined the law regarding searches conducted by private persons and subsequent searches by law enforcement and stated
The Fourth Amendment . . . does not extend to private searches that are neither instigated by nor performed on behalf of a governmental entity.” United States v. Starr, 533 F.3d 985, 994 (8th Cir. 2008); see United States v. Jacobsen, 466 U.S. 109, 115 (1984). “When the government re-examines materials following a private search, the government may intrude on an individual’s privacy expectations without violating the Fourth Amendment, provided the government intrusion goes no further than the private search.” Starr, 533 F.3d at 995.[iii]
Thus, there are two requirements that must be met for the search to be legal. First, the search must not be “instigated” by law enforcement or “performed” at the request of or on behalf of law enforcement. Here, the sheriff’s department was not notified of child pornography until after the private search, and there was no evidence to show that law enforcement initiated this search.
The second requirement is that law enforcement cannot search any further than the “search” that was conducted by the private person. Thus, when the sheriff re-examined the phone, he is not allowed to intrude or search any further than the private person searched. Here, their evidence indicated that the deputy turned off the phone as soon as he saw the child pornography and did not continue to search.
Suellentrop argued that when the deputy arrived at the residence, he instigated or requested Donnelly to show him the phone and child pornography on the phone. However, the court stated that this was irrelevant because once Donnelly conducted the first search, the deputy, consistent with the Fourth Amendment, was authorized to look at the phone the same, but no further than Donnelly had already looked. Specifically, the court stated
Suellentrop argues, however, that Donnelly’s subsequent actions in unlocking the phone and showing an image to Deputy Roberts at the scene were undertaken “as an agent of the government.” The character of this second viewing is immaterial. Donnelly’s private search already had occurred, and the Fourth Amendment does not forbid the government to reexamine the same materials as long as agents go no further than the private search. Starr, 533 F.3d at 995; United States v. Miller, 152 F.3d 813, 815 (8th Cir. 1998).[iv]
As such, the deputy’s initial warrantless search of the phone did not violate the Fourth Amendment and did provide probable cause to obtain a search warrant to thoroughly search the phone.
[i] No. 19-1002 (8th Cir. Decided March 26, 2020)
[ii] Id. at 2-3
[iii] Id. at 5
[iv] Id. (emphasis added)