The Private Search Doctrine in Child Pornography Cases

Many child pornography cases begin when someone with access to the defendant’s computer looks through it, finds child pornography, and contacts law enforcement. For example, the recent Raleigh case in which a “Santa for hire” was charged with possessing child pornography began when a computer repair technician contacted police. In this type of case, does the private party’s search of the defendant’s computer destroy the defendant’s privacy interest such that an officer may then search the computer without a search warrant? A recent federal case explores the issue.

The private search doctrine. The Fourth Amendment only limits searches by the government, not private parties. One aspect of the private search doctrine concerns how to analyze a law enforcement search that follows a private search. The seminal case in this area is United States v. Jacobsen, 466 U.S. 109 (1984), where FedEx employees opened a package that had been damaged by a forklift, found bags of white powder inside, and contacted the DEA. DEA agents then opened the bags and conducted a field test that identified the powder as cocaine. The package was then delivered to the defendants, who were charged with a drug offense. They moved to suppress, arguing that the agents’ opening of the bags and testing of the powder were unlawful warrantless searches.

The matter reached the Supreme Court, which ruled that the agents’ actions did not violate the Fourth Amendment, for “[o]nce frustration of the original expectation of privacy occurs [at the hands of a private party], the Fourth Amendment does not prohibit governmental use of the now nonprivate information.” The Court honed in on whether the scope of the agents’ search exceeded the scope of the private search. It found that it did not, as the agents’ manipulation of the bags revealed nothing that was not already known, i.e., that the bags contained white powder, and the agents’ use of the field test revealed only whether the substance was cocaine, and a person cannot have a legitimate expectation of privacy in the possession of a controlled substance.

Recent case applying the private search doctrine to child pornography. The Sixth Circuit recently decided United States v. Lichtenberger, __ F.3d __, 2015 WL 2386375 (6th Cir. May 20, 2015). The defendant’s girlfriend accessed the defendant’s computer, “clicked on different folders and eventually found thumbnail[] images of adults engaging in sexual acts with minors.” She told an officer what she had seen. Then, in the officer’s presence, she “opened several folders and began clicking on random thumbnail images to show him.” The officer recognized the images as child pornography.

The defendant was charged with child pornography offenses in federal court and moved to suppress. He contended that his girlfriend was acting at the officer’s direction when she showed the officer the “random thumbnail images,” and that this search exceeded the scope of her earlier private search. The girlfriend testified that she was “not sure if [the thumbnails she showed the officer] were among the same images she had seen in her original search.” The district court granted the motion to suppress.

The court of appeals affirmed. It reasoned that the scope of the second search exceeded that of the first because it involved, or at least may have involved, images other than the ones the girlfriend viewed initially. The court acknowledged that it had sometimes applied the private search doctrine to allow officers to examine more thoroughly “physical containers and spaces” that had already been searched privately. The court found that such cases typically involve “near-certainty regarding what [the officers] would find and little chance to see much other than contraband.” By contrast, the court noted that electronic devices may contain a vast array of material, contraband and otherwise, and that there is no “virtual certainty” that a second governmental search will turn up only items very similar to those found in an initial private search.

Takeaway. Lichtenberger suggests that, in the digital context, the proper unit of analysis for the private search doctrine is the file (did the private search include that specific document or image?) not the device (did the private search reach that computer or cellular phone?). Of course, Lichtenberger is not binding in North Carolina, but an officer who wants to avoid being part of the test case that determines how the North Carolina appellate courts would rule on this issue should either (1) get a search warrant before searching a digital device based on a private search, or (2) carefully ask the private party to show the officer only files that the private party previously viewed.

Further reading. The topic of private searches is discussed generally starting at page 173 of Bob Farb’s Arrest, Search, and Investigation in North Carolina. It is discussed in the specific context of digital searches starting at page 55 of my book Digital Evidence. Professor Orin Kerr has a post on Lichtenberger here, arguing that Lichtenberger creates a split of authority with two other circuits that have analyzed the private search doctrine using the device as the unit of analysis.

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