On May 20, 2015, the Sixth Circuit ruled that the warrantless search of a laptop exceeded the scope of a preceding private search, and was therefore unconstitutional.
The case involved Aron Lichtenberger who lived with his girlfriend Karley Holmes and Holmes’ mother in the Holmes residence. Ms. Holmes discovered that Lichtenberger was an unregistered sex offender and contacted the police to arrest Lichtenberger. Ms. Holmes then accessed Lichtenberger’s laptop, which he had always guarded closely, and found hundreds of images of child pornography. Upon arrival at the Holmes residence, a police officer asked Ms. Holmes to show him the contents of Lichtenberger’s laptop. Ms. Holmes did so, randomly clicking on a few pictures from the same folder she had viewed, all of which involved child pornography. The police officer then seized the laptop together with several other belongings of Lichtenberger.
The question before the Court was whether the police officer’s search of Lichtenberger’s laptop violated the Fourth Amendment, or whether it was justifiable under the private search doctrine.
In making its decision, the Court first recalled United States v. Jacobsen, 466 U.S. 109 (1984), where a FedEx package that was damaged in transit was found to contain bags of a white powder. The FedEx employees handling the package contacted the Drug Enforcement Agency (“DEA”) whose agents went to the FedEx premises, acquired trace amounts of the white powder, and conducted an on-site field test. The field test identified the substance as cocaine, which led to the arrest of the addressees of the package.
In the Jacobsen case, the Supreme Court held that the invasion of privacy resulted from the FedEx employees’ search of the package, and subsequently the government should not be prohibited from using the “now-nonprivate information” as long as the subsequent government search did not exceed the scope of the private search. The DEA agent acted within the scope of the private search because he had “virtual certainty” that the package contained contraband—certainty that the officer’s inspection would not tell him anything more than he had already been told by the private party. The field test merely confirmed the identity of the powder, and was not an intrusion upon any legitimate privacy interest.
The Court also looked to a more recent case, United States v. Tosti, 733 F.3d 816 (9th Cir. 2013), where a computer repairman discovered images of child pornography on a client’s computer. He contacted the police department and showed the arriving officer the exact same photos that he had previously seen. Even though the repairman had only seen thumbnails of the photos, and the officer later requested to enlarge the photos, both persons testified that they could tell from the thumbnails alone that the images were of child pornography. The Ninth Circuit considered this reasonable, as enlarging the photos did not reveal more to the police officer than what he had already known.
Accordingly, in the Lichtenberger case, the Court held that because Holmes did not show the officer the exact same photos that she had viewed previously, the officer had no “virtual certainty” of the criminal nature of the laptop content prior to viewing the previously unseen images. Therefore, the Court, echoing the Supreme Court’s concern of great privacy interests in electronic devices (Riley v. California, 134 S. Ct. 2473 (2014)), held that the Lichtenberger search was unconstitutional.