Law enforcement violated the Fourth Amendment when their warrantless search of a lost cell phone exceeded the scope of an earlier conducted private search, according to the U.S. Court of Appeals for the Eleventh Circuit in United States v. Johnson.In Johnson, the appellate court held that although a private party already searched the phone, the search was illegal because law enforcement viewed more files than the private searcher. Leaders of the ABA Section of Litigation advise that any warrantless reconstruction of a private search should be carefully scrutinized for possible Fourth Amendment violations.
The Johnson decision bolsters a federal circuit split. The Fifth and Seventh Circuits held that a previous private search allows law enforcement to search an entire electronic device without a warrant. In contrast, the Sixth and Eleventh Circuits held law enforcement is limited to viewing files that a private search has already reviewed. Given this disparity, leaders of the Section of Litigation advise that any warrantless reconstruction of a private search should be carefully scrutinized for possible Fourth Amendment violations.
Private Search of Lost Cell Phone
In June 2012, a Wal-Mart employee found a cell phone belonging to defendants Sparks and Johnson. Sparks contacted the employee through text message and arranged for the phone’s return. Before returning it, however, the employee looked through the phone’s photo album and saw several photos of apparent child pornography.
Rather than return the phone, the employee and her fiancée turned it in to police. They showed officers the photos they had viewed and one video. Officers took the phone into evidence, and before obtaining a warrant, viewed a second video that the employee had not seen.
Afterward, officers obtained a warrant to search the cell phone based only on the images viewed by the employee. Based on that search conducted pursuant to the warrant, police obtained a second warrant to search Johnson’s home. After both searches, officers found over 1,800 images and over 100 videos consisting of child pornography.
A grand jury in the U.S. District Court for the Middle District of Florida indicted Sparks and Johnson for possession and production of child pornography. Each moved to suppress evidence because the officer’s warrantless search of the cell phone exceeded the scope of the search performed by the Wal-Mart employee. The district court denied their motions. They later pleaded guilty, and appealed the denial of their motions to suppress to the Eleventh Circuit.
On appeal, “the issue became whether the police officer’s viewing constituted a recreation of the private search by the employee and her fiancée, or exceeded the private search thus violating the Fourth Amendment prohibition on warrantless searches,” explains Katie L. Dysart, New Orleans, LA, vice chair of the Section of Litigation’s Trial Evidence Committee. Based on the “private-search doctrine,” the court ruled that the officer’s search violated the Fourth Amendment.
The court explained that although the Fourth Amendment protects against “unreasonable searches and seizures” conducted by the government, it does not protect against searches conducted by private individuals. Once a private party performs a search, law enforcement can use any information found in that search without violating the Fourth Amendment. Nonetheless, if law enforcement’s search “is broader” than the private search, the Fourth Amendment requires that law enforcement first obtain a warrant.
As applied, the court explained that while the “private search of the cell phone might have removed certain information from the Fourth Amendment’s protections, it did not expose every part of the information contained in the cell phone.” Because law enforcement viewed more content than the Wal-Mart employee, the court ruled the warrantless search violated Spark’s and Johnson’s Fourth Amendment rights. The court held the violations were harmless, however, because law enforcement only relied on lawfully viewed information when it obtained search warrants for the lost phone and Johnson’s home.
The court’s interpretation of the private-search doctrine boosts an apparent split between the Fifth and Seventh Circuits, on the one hand, and the Sixth and Eleventh Circuits, on the other. Due to this split, and the complexity in applying Fourth Amendment doctrine to electronic devices, “courts will continue to grapple with how to define electronic searches until the Supreme Court weighs in,” suggests Emily Crandall Harlan, Washington, DC, cochair of the Section’s Criminal Litigation Committee.
Implications for the Private-Search Doctrine
The Johnson decision highlights the difficult task courts face in balancing the needs of law enforcement against increased privacy interests accompanying advances in technology. “In a world where cell phones and computers have become micro-universes, courts must limit the amount of discretion given to law enforcement agents in searching these devices,” suggests Vadim A. Glozman, Chicago, IL, cochair Young Lawyers Subcommittee of the Section’s Criminal Litigation Committee. Moreover, “as the functionality and storage capability of electronic devices grows, arguably so does a user’s privacy interest in the vast amount of data stored on the phone,” adds Harlan.
In addressing this increased privacy interest, “litigators should emphasize that cell phones ‘hold for many Americans the privacies of life,’ in arguing for the strict application of the private search exception,” suggests Dysart. Moreover, to ensure the private-search doctrine is properly applied, “defense counsel should always carefully examine the circumstances of any search of electronic data, including what instructions, if any, were exchanged between the private party and the government during a reconstruction of the search,” concludes Harlan.
Robert T. Denny is an associate editor for Litigation News.
Keywords: evidence, Fourth Amendment, data, privacy
Copyright © 2017, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).