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Private Search Doctrine Upheld in Ninth Circuit: Wilson

The Ninth Circuit makes an important decision regarding the application of the private search doctrine in child pornography case of Wilson.

Wilson's Case and Procedural History

Google's Awareness of Wilson's Potential Content

Google “became aware” that Wilson attached four files that included apparent child pornography.  It is unclear if the email was sent.  Google automatically classified thee attachments as A1 which meant “content contains a depiction of child pornography” and sent a CyberTipline report to NCMEC, the National Center for Missing and Exploited Children. 

NCMEC then sent the email attachments to the San Diego Internet Crimes Against Children Task Force along with geolocation info associated with the IP addresses.  This tip was forwarded to the San Diego Internet Crimes Against Children Task Force.  An agent received the report and inspected the images without a warrant. This was without knowledge of whether or not a google employee had reviewed them.  No one at google viewed the images before sending the report to NCMEC and no one at NCMEC opened or viewed the images in the report. 

Officer Views Images Without a Warrant

The agent reviewed the attachments without a warrant and secured a search warrant for Wilson’s email account. 

“His affidavit asserted that probable cause for the warrant was based on two facts: first, that “Google became aware of four (4) image files depicting suspected child pornography;” and second, that he had “reviewed the four (4) images reported by Google to NCMEC and determined they depict child pornography.”… The affidavit did not include the fact that Google had originally classified the images as “A1” or provide any detail about how Google had either classified or later automatically identified Wilson’s images as apparent child pornography.”

The Police Search and Find Incriminating Material

The officers searched and found evidence of child pornography at Wilson’s residence.  The search discovered a bag that had a check book and a thumb drive with thousands of images of child pornography.  These images included the four images reported by Google. 

Private Search Doctrine Claim Denied: Wilson's Charge and Suppression Motion

Wilson was charged with distribution and possession of child pornography.  He filed a motion to suppress the search.  The court denied the motion to “suppress on the ground that the government’s warrantless search did not exceed the scope of the antecedent private search and so did not require a warrant.” 

Subsequently, he pled guilty and was sentenced to time.  Following, he filed an appeal. 

The Private Search Doctrine

Burdeau v. McDowell

There is a difference between when a police officer engages in a search and when a private citizen engages in a search.  In Burdeau v. McDowell, 256 U.S. 465,  the Supreme Court determined that the Fourth Amendment gives protection against unlawful searches and seizures.   This protection applies to governmental action, not that by private citizens. 

Coolidge v. New Hampshire

In Coolidge v. New Hampshire, 403 U.S. 443, 489, the Supreme Court had to consider the implications of a private party seeking out her husband’s guns and taking them to the police station to be used as evidence against him.  The court determined that the “relevant inquiry, according to the Court, was whether the suspect’s wife, “in light of all the circumstances of the case, must be regarded as having acted as an instrument or agent of the state when she produced her husband’s belongings.”

The record showed the suspect’s wife had shared the suspect’s guns and clothes with local police “of her own accord,” Coolidge held that “it was not incumbent on the police to stop her or avert their eyes” when offered the critical evidence.” 

Walter v. United States

In Walter v. United States, 447 U.S. 649, 100 S.Ct. 2395, 65 L.Ed.2d 410 (1980), a package of obscene films were delivered to the wrong address.  The recipient opened the packages and examined the boxes and read explicit descriptions of the contents of the film. 

They notified the police who tried to hold the film up to the light and observe it.  They were unable to view the evidence, so the police seized the films and viewed one of them without a warrant. 

A divided court noted that a search of the contents was necessary in order to have cause to believe that a crime was committed.  The police had gone beyond the physical bounds of the private search because the private party never viewed the films: 

“The private search [thus] merely frustrated [the] expectation [of privacy] in part,” not in full…“It did not simply strip the remaining unfrustrated portion of that expectation of all Fourth Amendment protection.

United States v. Jacobsen

In United States v. Jacobsen, 466 U.S. 109 (1984), the Supreme Court evaluated the scope of private searches.  While examining a damaged package, FedEx employees opened the package, cut open the tube within the package and found a series of four zip-lock plastic bags, the three innermost containing a white powder. 

The DEA came next, and  visually inspected the plastic bags, opening each with a knife.  Agents pulled out some of the white powder and did a field test on it. 

The court determined that they could “’reexamine,' that is, examine in the same manner, the package previously examined by FedEx, the private party.”  The court then stated that the private search doctrine exception turns on parity with the private search: 

“[O]nce frustration of the original expectation of privacy occurs, the Fourth Amendment does not prohibit governmental use of the now-nonprivate information.  This meant that the “’removal of the plastic bags from the tube and the [government] agent’s visual inspection of their contents’ did not exceed the scope of the private search as to the information obtained.” 

Then the court noted that:

"the government’s chemical field test of the substance in the properly seized plastic bags was nonetheless not a search within the meaning of the Fourth Amendment, because “governmental conduct that can reveal whether a substance is cocaine, and no other arguably ‘private’ fact, compromises no legitimate privacy interest.””doctrine

Application of the Private Search Doctrine

Next, the court evaluated the circumstances of this case.  The court noted that Google does not keep a repository of child pornography.  Also, Google only communicated to NCMEC there were four photos uploaded that matched images previously identified by some Google employee, some time ago, as child pornography, tagging it as A1. 

Furthermore, Google did NOT view the images.  It was the officer that indicated he opened and reviewed each image to determine whether it was a case that could be investigated.  The government learned far more when the officer viewed the photos and included a detailed description on its search warrant affidavit of each photo.  The court noted that:

“Given the large gap between the information in the CyberTip and the information the government obtained and used to support the warrant application and to prosecute Wilson, the government search in Walter offers a much more apt comparison to the circumstances here than does the government search in  Jacobsen.” 

Also, the court indicated that viewing Wilson’s email attachments expanded the information available to law enforcement far beyond what the label alone conveyed.  No one viewed the attachments until the agent viewed them without a warrant. 

If the evidence of the photos had not been on the search warrant affidavit, there would not have been enough information for probable cause.  The court noted the government viewing the attachments without a warrant was an additional intrusion on Wilson’s privacy interest. 

The prosecutors also argued there was no intrusion because Google had already flagged these sorts of files and classified them already in Google’s database of hash values. As such, the agent’s search did not exceed the bounds of a private search.  But the court disagreed:

“Even if Wilson’s email attachments were precise duplicates of different files a Google employee had earlier reviewed and categorized as child pornography, both  Walter and  Jacobsen—and general Fourth Amendment principles—instruct that we must specifically focus on the extent of Google’s private search of  Wilson’s effects, not of other individuals’ belongings, to assess whether “the additional invasions of [Wilson’s] privacy by the government agent ... exceeded the scope of the private search.””  The court noted that Fourth Amendment rights are personal rights and that while Wilson did not have an expectation of privacy in other individuals files, he had an expectation of privacy in his own files. 

In short, whether Google had previously reviewed at some earlier time, other individual's files, is not pertinent to whether a private search eroded  Wilson’s expectation of privacy.

Under the private search doctrine, the Fourth Amendment remains implicated “if the authorities use information with respect to which the expectation of privacy has not already been frustrated.”

Conclusion: Court Overturned Case, Private Search Doctrine Violation

The court noted that Agent Thompson violated Wilson’s Fourth Amendment right to be free from unreasonable searches when he examined Wilson’s Email attachments without a warrant.  The court reversed the decision to deny Wilson’s motion to suppress. 

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