Search and Seizure - Private Search

United States v. Lichtenberger, 786 F.3d 478 (6th Cir. 2015)

The defendant’s girlfriend viewed child pornography on the defendant’s computer. The police were summoned and the girlfriend showed the officer the contents of the computer, but not just the portion that she had previously viewed. The search of the computer with the girlfriend was not valid under the “private search” doctrine, which only allows the police to view what the private searcher has already viewed. The Sixth Circuit held that the police may only view what they know “to a virtual certainty” was viewed by the private searcher.

United States v. Booker, 728 F.3d 535 (6th Cir. 2013)

The defendant was arrested on charges that he possessed marijuana. The police became suspicious that he was hiding drugs in his rectum and brought him to a hospital. There, a doctor administered drugs that paralyzed the defendant for a few minutes, during which time a rectal examination was conducted that yielded crack cocaine. The Sixth Circuit held that this search shocked the conscience, just as the search in Rochin v. California 342 U.S. 165 (1942) and Winston v. Lee, 470 U.S. 753 (1985) did, and held that the evidence should have been suppressed. The doctor was acting as an agent of the police (he did not obtain consent to perform the medical procedure and did not give the defendant the option of simply using the toilet).

United States v. D’Andrea, 648 F.3d 1 (1st Cir. 2011)

If the defendant’s computer was “hacked,” this does not qualify as a prior “private search” that deprives the defendant of a reasonable expectation of privacy in the contents of the computer. In this case, a tipster called law enforcement officers to inform them that a person had uploaded child pornography to a cell phone. It was not clear how the tipster was able to view the images, however. Though the defendant had apparently uploaded the images and had attempted to share the images with her “partner,” she had inadvertently sent the images to the tipster. The tipster somehow got a hold of the password that enabled her to view the images. The defendant and her partner, however, did not knowingly share the password with the tipster. The agents then investigated by accessing the cell phone website and also viewed the images. The First Circuit remanded the case to the trial court to determine how the tipster initially viewed the images. If the defendant did not “share” the information with the tipster, or “assume the risk” that the tipster would share the information that the defendant shared with her, this did not qualify as a private search that would authorize a subsequent law enforcement search under Jacobsen.

United States v. Oliver, 630 F.3d 397 (5th Cir. 2011)

If a private person opens a container belonging to the defendant and views the contents and then calls the police, who also view the contents, the “private search” doctrine provides that the search conducted by the police does not violate the Fourth Amendment, because the defendant no longer has a reasonable expectation of privacy in the container. In this case, the court holds that this doctrine applies, even if the police were not aware that the private party had previously searched the container. The expectation of privacy evaporates by virtue of the private search, not the police officer’s awareness of the private search.

United States v. Hardin, 539 F.3d 404 (6th Cir. 2008)

The police wanted to determine if a suspect was located in a particular apartment. They asked a maintenance man to go to the apartment and inform the occupants that he needed to enter to fix a plumbing problem. He did not obtain the occupants’ consent – he simply entered. He then left and told the police that the suspect was there. The Sixth Circuit held that this was not valid consent. First, there was, as a matter of fact, no consent given. Second, the use of a ruse, such as this, is not appropriate, because there was no need to use a ruse to avoid violence or danger. This is not a case in which the police already had probable cause to enter the house and used the ruse for safety purposes. Moreover, the apartment manager was acting as an agent of the police, so it triggered the exclusionary rule.

United States v. Williams, 354 F.3d 497 (6th Cir. 2003)

The landlady of the defendant’s residence was concerned that there might be a water leak at the premises because of the high water bill. The landlady went to the premises and walked around, but found no leak – though she did find some suspicious plants. She called the DEA and they came back with her to the apartment and then claimed to go inside with her a second time to look again for a water leak. Of course, they found no leak, but did find a substantial quantity of marijuana. The Sixth Circuit rejected the government’s argument that this was a “private search.” First, the court held that it would extend Jacobsen to a private residence. That is, even if a private search has resulted in the discovery of contraband, the police may not follow up by conducting a subsequent search which exceeded the search undertaken by the private searchers, and thus was not legitimated by the prior private search.

United States v. Runyan, 275 F.3d 449 (5th Cir. 2001)

The defendant’s estranged wife went to the defendant’s house to locate some of her personal items. While there, she found disks that contained pornography, as well as pornographic pictures and a vibrator. The wife took the computer and various disks and gave them to the police. The police then reviewed the disks in great detail. The Tenth Circuit analyzed the Supreme Court decisions in Walter v. United States, 447 U.S. 649 (1980) and United States v. Jacobsen, 466 U.S. 109 (1984) and concluded that the appropriate inquiry is whether the government learned something from the police search that it could not have learned from the private searcher’s testimony. Courts have distinguished cases in which the police examine containers (or the contents of containers) that the private searcher never examined and cases in which the police examine the evidence in greater detail or with greater thoroughness than the previous examination by the private party. Here, the Fifth Circuit holds (1) the police may not examine a closed container that was not opened by the private searchers unless the police are already substantially certain of what is inside that container based on the statements of the private searchers, their replication of the private search, and their expertise. Examining all of the contents of the disks and zip disks in this case amounted to an unlawful search, because the private searchers did not know the contents of those disks. (2) the police may search a container – even more thoroughly than a private searcher previously did – assuming the private searcher previously opened and examined the contents of the container. Compare United States v. Rouse, 148 F.3d 1040 (8th Cir. 1998) (holding that police violated fourth amendment when they discovered more items in traveler’s bag than previously seen by airline employee who initially opened the bag). The court finally remanded the case to the district court to make findings relevant to the government’s claim that the evidence should have been admitted under the independent source / inevitable discovery doctrine. See also United States v. Crist, 627 F.Supp.2d 575 (M.D. Pa. 2008) (prior examination of computer by person who took possession of defendant’s computer did not authorize police to utilize forensic tools to conduct more thorough search of same computer).

United States v. Rouse, 148 F.3d 1040 (8th Cir. 1998)

The defendant checked his luggage at the airport, but then left the airport without boarding the plane. Airline personnel at the arriving city retrieved the baggage and opened the suitcase, discovering blank social security cards and a number of identification cards. The airline employee called the police, who further searched the suitcases, discovering a laminating machine and material for laminating cards. Relying on United States v. Jacobsen, 466 U.S. 109 (1984), the court held that the police lawfully seized the cards, but the defendant retained an expectation of privacy in the bags and the further searching of his baggage by the police violated a reasonable expectation of privacy and the laminating machine and paraphernalia should have been suppressed.

United States v. Knoll, 16 F.3d 1313 (2d Cir. 1994)

A private citizen burglarized an attorney’s office, removing boxes of documents, in order to trade information for a lighter sentence in his case. The burglar brought certain documents to the AUSA, who expressed dissatisfaction. The burglar then went through the boxes again (without returning to the law office) and brought more incriminating documents to the AUSA. It was not disputed that the government was in no way involved in the actual burglary. Nevertheless, the AUSA’s tacit suggestion that a further search of the documents was necessary – assuming this was what happened – might have amounted to a search with sufficient government involvement to come within the Fourth Amendment. A remand to further inquire into the circumstances was necessary. A search is a search by a federal official if he had a hand in it and so long as he was in it before the object of the search was completely accomplished, he must be deemed to have participated in it. It is immaterial whether the government originated the idea for a search or joined it while it was in progress. The government may become a party to a search through nothing more than tacit approval.

United States v. Ross, 32 F.3d 1411 (9th Cir. 1994)

The government’s involvement in promulgating the FAA guidelines to combat hijacking is so pervasive “as to bring any search conducted pursuant to that program within the reach of the Fourth Amendment.” Thus, when an airline employee searches a passenger’s baggage at the ticket counter because of certain characteristics of the traveler (paid in cash, produced no identification) this is a search which must be scrutinized under Fourth Amendment standards.

United States v. Reed, 15 F.3d 928 (9th Cir. 1994)

In determining whether a search was wholly private, or was sufficiently governmental to trigger the Fourth Amendment, the court should consider whether the government knew of and acquiesced in the intrusive conduct; and whether the party performing the search intended to assist law enforcement efforts or further his own ends. In this case, a motel owner called the police and explained that he thought that one of his guests was dealing drugs out of the room. He requested that officers come to the room while he entered the room. They complied. He entered the room and “snooped” through a briefcase and dresser drawers. This was a governmental search. The hotel owner would have been permitted to enter the room to ensure that there was no damage to property; but here, he was clearly looking for evidence and doing so to help the police. The fact that the private person is attempting to ensure that no criminal activity is occurring on the premises is not an “independent motivation” which would make this a private search. Finally, the fact that the police did not instigate, or encourage the search is not consequential. The officers in this case acted as “lookouts.”

United States v. Mulder, 808 F.2d 1346 (9th Cir. 1987)

A hotel security officer searched a bag which was left in a hotel room and seized tablets which were found in the bag. The tablets were turned over to the DEA which conducted tests to determine whether they were an illegal substance. Though a hotel security officer is not part of the government for purposes of the Fourth Amendment, the DEA is. The tests run on the drugs constituted an invalid search of the items and were illegal under the Fourth Amendment.