White Collar Criminal Defense Group

Sixth Circuit Reins In Private Search Doctrine For Computers

The Sixth Circuit recently reined in the private search doctrine as applied to computer searches in United States v. Lichtenberger, No. 14-3540.  Under the private search doctrine, if a private party conducts a search, without the participation or encouragement of law enforcement, then the private party may show police what was found during the private search.  United States v. Jacobsen, 466 U.S. 109 (1984).  Police may not, however, exceed the scope of the private party’s initial search without first obtaining a warrant.  In Lichtenberger, the Sixth Circuit held that a police officer’s warrantless review of a laptop containing child pornography violated an Ohio man’s constitutional rights against unreasonable search and seizure.

Lichtenberger involved the suppression of evidence discovered during a private search and reviewed shortly thereafter by a police officer without a warrant. The defendant, Aron Lichtenberger, was arrested at the home he shared with his girlfriend, Karley Holmes, for failing to register as a sex offender with the local authorities.  Following his arrest, Holmes searched his computer on her own and found several images of child pornography.  Holmes promptly contacted the police to report her discovery.  The police officer responding to the call asked her to turn on the laptop and show him the images.  Holmes did as she was directed, entered Lichtenberger’s password, and “opened several folders and began clicking on random thumbnail images to show him.”  When the police officer saw that some of the images were, in fact, child pornography, he instructed her to shut down the computer.  A warrant, based on what Holmes had shown the police officer, was later obtained to search the computer and its contents. 

Lichtenberger was indicted on three counts of receipt, possession, and distribution of child pornography under 18 U.S.C. §§ 2252(a)(2), (a)(4)(B), and (b).  Before trial, Lichtenberger filed a motion to suppress the laptop evidence, arguing that Holmes was “acting as an agent of the government such that the search was impermissible under the Fourth Amendment.” The government argued that the police officer’s review of the laptop evidence was valid under the private search doctrine.  Critically, Holmes testified at the suppression hearing that she was not sure whether she showed the officer the same images she saw during her initial search, and the district court granted Lichtenberger’s motion to suppress.

The Sixth Circuit affirmed the lower court’s ruling, noting that the laptop evidence must be suppressed because the police officer who conducted the search exceeded the scope of Holmes’ initial search because there was no “virtual certainty” that his inspection of the photos would reveal only what Holmes had previously discovered.  In reaching its decision, the Sixth Circuit relied heavily on Riley v. California, 134 S. Ct. 2473 (2014), explaining that courts must balance government interests against individual privacy interests, and that “the nature of the electronic device greatly increases the potential privacy interests at stake, adding weight to one side of the scale while the other remains the same.”

Supreme Court Of Pennsylvania Affirms Conviction Of Monsignor William Lynn For Endangering Welfare Of Child

On April 27, 2015, the Pennsylvania Supreme Court, in a four to one opinion with Justice Castille abstaining from participation, reversed the Superior Court’s dismissal of the criminal charges against Monsignor Lynn, affirmed the conviction, and remanded the matter to the district court for appropriate disposition.  Monsignor Lynn was on bail, pending appeal, having served 18 months of his three- to six-year term.  The trial court subsequently revoked Monsignor Lynn’s bail.  

In its decision, the Supreme Court focused on whether Monsignor Lynn was responsible for the supervision of the welfare of a child.  The Superior Court had held that Monsignor Lynn could not have been responsible for the supervision of the welfare of a child as he did not have any direct duty to supervise the individual children at issue in the criminal matter.  The Supreme Court disagreed, determining that the phrase “supervision of the welfare of a child” was more expansive that the Superior Court found, and did not require a duty to directly supervise the children at issue.

The Supreme Court, citing a voluminous record that Monsignor Lynn was responsible for supervising the welfare of children through his role as Secretary of Clergy, including an acknowledgment of this responsibility by Monsignor Lynn himself, determined that the record supported Monsignor Lynn’s duty to supervise children.  In this direct circumstance, under the facts of this case, the Supreme Court determined that the Commonwealth had met its burden beyond a reasonable doubt.  The Supreme Court also affirmed the trial court’s interpretation of the Endangering the Welfare of Children statute in effect during the relevant time period.

Monsignor Lynn’s counsel argued that District Attorney Abraham first conducted the grand jury investigation into this matter, and determined that the statute did not apply to Monsignor Lynn’s conduct. Therefore her office issued a report explaining that the office was not charging any individuals.  Monsignor Lynn’s counsel argued that this was determinative of the issue.  The Supreme Court disagreed, indicating that a particular District Attorney’s reasoned decision does not bind the Court in interpreting the statute.

While this case is of strict interest because Monsignor Lynn was the first high-ranking Catholic official to be charged, prosecuted, and convicted in the United States, it will have little precedential value, as The Commonwealth of Pennsylvania’s legislature has amended the

Endangering the Welfare of a Child statute to make it clear that those who supervise employees who are responsible for the welfare of children can also be held responsible under the statute.