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.”