On April 29, 2022, the Ninth Circuit Court of Appeals decided the United States v. Phillips[i], which serves as an excellent review of the private search exception to the warrant requirement. The relevant facts of Phillips are as follows:
In early 2018, Amanda Windes decided to call off her engagement to Daren Phillips. She believed Phillips had been lying to her about his alcohol use and financial troubles. She had also found “very inappropriate” text messages between Phillips and other women. Windes informed Phillips that he was no longer welcome in the house they shared. Two days later Phillips acknowledged that he needed help for his alcoholism, and Windes drove Phillips to a hospital, which arranged for a one-month stay at a residential treatment center. Windes had custody of many of Phillips’s possessions while he was away, including his laptop computer. Windes was contacted by Phillips’s ex-wife, Kelly Greek, who was worried about how Phillips would pay child support while he was in treatment. Greek also told Windes that she suspected that Phillips had watched child pornography and that Phillips may have been sexually interested in a friend of Greek’s daughter.
Windes decided to examine Phillips’s laptop. She said that her primary purpose was to examine his financial documents but that she also wanted to see if Phillips had been contacting other women and whether he had been viewing child pornography. She explained that she was also trying “to determine what other issues there w[ere] on top of [Phillips’s] alcohol problem for the safety of my children and myself.” The laptop was password protected, and Windes first tried the password for Phillips’s Netflix account, which he had given to her. That password didn’t work, so Windes clicked on the laptop’s “forgot your password” function, which prompted her to answer Phillips’s security questions. She successfully guessed the answers to those questions, which allowed her to send a temporary password to her own email account. She was then able to reset the password and enter Phillips’s computer.
As Windes browsed Phillips’s computer, she came across a folder entitled “phone.” She saw that it was several hundred megabytes in size and opened the folder. The folder displayed the names of all the files in the folder and their associated “thumbnail illustration[s]” (a small photo that indicated what each file contained). There were thousands of such thumbnail illustrations in the folder. They included “pictures of infants and all of their exposed genitalia” and “images of young females” who were “very scantily clad and [were in] extremely sexually provocative poses.” As she scrolled down through the folder, she saw that many of the file names indicated how old the children were (from infants to teenagers). Windes saw that this “phone” folder contained only child pornography. She testified that the images were “highly graphic” and left her “disgusted.” She “felt law enforcement needed to further investigate.”
Windes first took the laptop to Police Services at the University of Nevada (where she worked) and told them only that she had a computer that she needed somebody to look at. Police Services told her to take the computer to the Washoe County Sheriff’s Office (“sheriff’s office”) because it did not belong to the university. At the sheriff’s office, Windes told the front desk deputy that she had a computer that she suspected contained a significant amount of child pornography. She was then interviewed by Detective Arick Dickson for about two-and-a-half hours. Windes told Dickson what she had found and how she had accessed the computer. She described in detail many of the thumbnail images of child pornography she had seen. She also relayed to Dickson her “concerns for . . . [her] children’s safety, especially due to the nature of the material on Phillips'[s] laptop.”
Dickson then brought in Detective Gregory Sawyer, who asked Windes to show him only images that she had already viewed when she had accessed the laptop by herself. Windes and Sawyer testified—and the district court found—that Windes complied with that request and showed the detectives only the thumbnail images and accompanying file names she had previously seen while scrolling through the “phone” folder. Only Windes operated the computer while she showed Sawyer the images. Sawyer recognized some of the thumbnail images from prior child pornography investigations. Sawyer then seized the laptop and applied for and obtained a search warrant. The application included a brief written description of two thumbnail images that Windes had shown him and the associated file names. A subsequent forensic search of the laptop found over 4,750 images of child pornography and 538 child pornography videos.”[ii]
Phillips was subsequently indicted on multiple child pornography violations under federal law. He filed a motion to suppress and argued that Detective Sawyer violated the Fourth Amendment when he asked Windes to show him the images that she had seen on Phillip’s computer. The district court denied the motion. Phillips pleaded guilty with the right to appeal the denial of the motion to suppress. He then filed an appeal with the Ninth Circuit Court of Appeals.
The issue on appeal was whether Detective Sawyer violated the Fourth Amendment when he asked Windes to show him only the images that she had already viewed on Phillip’s computer.
The court of appeals began by examining the applicable legal principles related to this issue. The court stated
The Supreme Court has long held that it does not violate the Fourth Amendment for a law enforcement officer to accept and use evidence that a private party discovers pursuant to its own private search, even if that private search was unlawful. See Burdeau v. McDowell, 256 U.S. 465, 475-76, 41 S. Ct. 574, 65 L. Ed. 1048 (1921); Coolidge v. New Hampshire, 403 U.S. 443, 485-90, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971). This rule is based on the principle that “[t]he Fourth Amendment[‘s ]protection against unlawful searches and seizures . . . applies to governmental action” and “was not intended to be a limitation upon other than governmental agencies.” Burdeau, 256 U.S. at 475.[iii]
In Phillips’ case, the court noted that Windes conducted a search, of her own volition, of Phillips’s computer. The court noted that although the computer was password protected, and she likely lacked the authority to conduct the search, she was clearly doing so as a private party. She observed apparent images of child pornography and took the computer to the sheriff’s department. The detective then asked Windes to show him only the images that she had already viewed, and made it clear that he did not want to see anything more than she had already seen. She complied with his instructions. The court stated that this was clearly a private search.
Phillips argued that the detective made Windes a “state agent” when he instructed her to show him the images in the computer that she had already seen. He argued that because the detective gave Windes instructions, she was his “agent.” However, the court noted those instructions were to limit what she showed him, to ensure that there was no greater intrusion into Phillips’s privacy than what had already occurred. Further, even if Windes became a state agent, as she likely did, the detective ensured she stayed within the permissible scope of what the law allowed him to view.
The court also examined the Supreme Court’s decision in the United States v. Jacobsen.[iv] In Jacobsen, FedEx employees opened a package and observed a white, powdery substance. They notified a DEA agent, and the agent reopened the package and removed it’s contents without first obtaining a warrant. The substance was determined to be cocaine. The Supreme Court held that
[T]he FedEx employees’ earlier private search and their decision to alert law enforcement to their findings made the agent’s warrantless search permissible. The Court explained that “the legality of the governmental search must be tested by the scope of the antecedent private search.” Id. at 116. “[I]t hardly infringed respondents’ privacy for the [DEA] agent to reexamine the contents of the open package” because “the Federal Express employees had just examined the package and had, of their own accord, invited the federal agent to . . . view its contents.” Id. at 119; see id. at 120[v]
Therefore, the as long as the government’s search does not exceed the scope of the previous, private search, the government did not infringe on the person’s reasonable expectation of privacy.
Regarding Jacobsen, the Ninth Circuit then stated
We have thus held that Jacobsen establishes that, where a private party notifies law enforcement of its private search, a state “agent’s [subsequent] search is permissible, and constitutional, to the extent that it mimic[s the earlier] private search.” United States v. Bowman, 215 F.3d 951, 956, 963 (9th Cir. 2000).[vi]
The court then held that this is precisely what occurred in Phillips’s case. Even using Windes as a “state agent’ complied with rule above from Jacobsen, and as such, did not violate the Fourth Amendment as the detective did not exceed the scope of the private search that Windes had already conducted.
Therefore, the court of appeals affirmed the denial of the motion to suppress.
[i] No. 20-10304 (9th Cir. Decided April 29, 2022)
[ii] Id. at 3-7
[iii] Id. at 7-8
[iv] 466 U.S. 109 (1984)
[v] Phillips at 10
[vi] Id. at 11 (emphasis added)