CARPENTER'S LEGACY: LIMITING THE SCOPE OF THE ELECTRONIC PRIVATE SEARCH DOCTRINE.

AuthorMezera, Sarah A.
PositionNOTE

One of the most significant challenges confronting courts and legal scholars in the twenty-first century is the application of Fourth Amendment doctrine to new technology. The circuit split over the application of the private search doctrine to electronic devices exemplifies how courts struggle to apply old doctrines to new circumstances. Some courts take the position that the old doctrine should apply consistently in the new context. Other courts have changed the scope of the old doctrine in order to account for the change in circumstances. The Supreme Court took the latter position in Carpenter v. United States and held that the third-party doctrine does not apply to cell-site location information records. The Court's willingness to limit the scope of an established doctrine to preserve fundamental privacy interests suggests that Carpenter is just the beginning of a dramatic shift in Fourth Amendment law. This Note argues that the circuit split over the private search doctrine should be resolved by creating a narrow electronic private search doctrine based on the logic of Carpenter.

TABLE OF CONTENTS INTRODUCTION I. THE DIFFICULTY OF DEFINING AN ELECTRONIC "CONTAINER" II. QUANTITATIVE AND QUALITATIVE DIFFERENCES: CARPENTER'S DIVIDING LINE III. CREATING A NARROW ELECTRONIC PRIVATE SEARCH DOCTRINE CONCLUSION INTRODUCTION

Recent and rapid advances in technology challenge traditional legal doctrines. The Fourth Amendment is one particular area of law facing such challenges. (1) The animating principle behind the Fourth Amendment has not changed in light of the digital age--individual privacy interests are weighed against important government interests. (2) But the fundamental and pervasive changes that accompany technological advances potentially alter the way that balance is struck. As technology continues to evolve, courts and legal scholars face important questions of how to preserve, amend, or reject existing Fourth Amendment doctrine.

One of the most notable recent changes to Fourth Amendment doctrine occurred in Carpenter v. United States. (3) In Carpenter, the Supreme Court protected individual privacy interests by declining to extend the third-party doctrine to cell-site location information (CSLI). (4) The third-party doctrine has been a part of Fourth Amendment law since 1976, (5) and it has been extended numerous times by the Court. (6) Yet the Court in Carpenter found that CSLI is a qualitatively different category of information to which the third-party doctrine does not apply. (7) This limitation of the third-party doctrine raises an important question: Should the capability of technology to amass incredible amounts of information similarly limit the scope of other doctrines under the Fourth Amendment?

The private search doctrine is closely related to the third-party doctrine at issue in Carpenter (8) and is a microcosm of the challenges the Fourth Amendment faces in the twenty-first century. Under the Fourth Amendment, government agents are generally required to get a warrant based on probable cause to conduct a search of persons or property. (9) There are, how ever, several exceptions to the warrant requirement, including the private search doctrine. (10) The private search doctrine can be traced to Walter v. United States, in which the Supreme Court hinted that police may be allowed to reexamine materials searched by a private person without first obtaining a warrant. (11) Later, in United States v. Jacobsen, the Court officially announced that the private search doctrine was a formal exception to the warrant requirement. (12)

Under the private search doctrine, the police may reconstruct a private search without obtaining a warrant in advance. (13) The Court reasoned that because the owner's expectation of privacy was already frustrated by a private search, the subsequent government search did not implicate the Fourth Amendment. (14) The government search must remain within the same scope as the original private search unless the officer is "virtually certain" they will find similar evidence beyond the scope of the private search. (15) In Jacobsen, the scope of the government search was limited to the physical container searched by private parties. (16) But with new technology, the permissible scope of an electronic government search under the private search doctrine has become a contested question among federal circuits. (17)

Federal courts disagreed on the doctrine's scope even before cases applied the private search doctrine to electronic devices. (18) The dispute over the scope of the doctrine intensified when searches became electronic in nature. (19) Computers, smartphones, and various other electronic devices are like digital containers that can store an immense amount of information. (20) The difference in nature between an electronic device, such as a computer, and a physical container, such as a cardboard shipping box, has renewed the debate over how courts should strike the balance between individual privacy interests and important government interests under the private search doctrine. If the Jacobsen container-based approach is to be preserved, the fundamental question is: What is the electronic equivalent of a physical container?

This Note argues that the scope of the private search doctrine as applied to electronics should be limited to only the exact data viewed by the private searcher. Part I discusses the current circuit split over how the private search doctrine applies to electronic devices and contrasts how different circuits have defined an electronic "container." Part II analyzes how Carpenter s limitation on the third-party doctrine will affect the private search doctrine's scope. Part III argues that the Court should resolve the circuit split by adopting a narrow rule that defines an electronic "container" as only the exact data viewed by the private searcher and limits the scope of the government search to just the data exposed on a device's screen.

  1. THE DIFFICULTY OF DEFINING AN ELECTRONIC "CONTAINER"

    When the Supreme Court established the private search doctrine in 1984, it did not consider how the doctrine would apply to electronic devices. (21) This lack of foresight left lower courts to decide how to apply the doctrine to electronic devices as technology developed rapidly. The Fifth and Seventh Circuits have adopted a rule that allows the government to search the entire electronic device after a private search. (22) The Sixth and Eleventh Circuits have adopted a rule that allows the government to search only the data that a private searcher viewed. (23) This Part will discuss the two approaches to defining an electronic "container"--a bright-line rule and a more flexible standard.

    The Fifth Circuit's opinion in United States v. Runyan outlines one side of the circuit split. (24) The Fifth Circuit was the first to apply the private search doctrine to electronic devices, doing so in 2001. (25) The Fifth Circuit took the view that an electronic device (in this case, a CD or floppy disk) is a "container," similar to the physical shipping box at issue in Jacobsen. (26) The court treated each CD or floppy disk as a separate "container." (27) Once a private searcher accessed the disk, the government could search the entire device. (28) The court reasoned that defining an entire device as a "container" created a clear and administrable rule. (29) Additionally, this rule would "preserve[] the competing objectives underlying the Fourth Amendment's protections against warrantless police searches." (30) The court's approach protects a defendant's expectation of privacy in containers unopened by a private searcher (31) and "discourages police from going on 'fishing expeditions' by opening closed containers." (32) The Runyan rule is clear and administrable, but it is loosely tailored and exposes excess data to government searches. (33)

    The Runyan rule has been cited as persuasive precedent in other federal courts. The rule created in Runyan was explicitly adopted by the Seventh Circuit in Rann v. Atchison, (34) In Rann, the court held that the police would not exceed the scope of a private search if they viewed the entire contents of a zip drive and a camera memory card. (35) The Runyan rule has also been adopted by district courts outside the Fifth and Seventh Circuits. For example, the Northern District of California cited the Runyan rule as persuasive precedent in United States v. Guindi. (36) The court in Guindi, however, refrained from fully adopting the Runyan rule and emphasized that the private searcher in that case had viewed almost every file on the CDs before the government search. (37) Thus, the Runyan rule embodies one side of the circuit split over how the private search doctrine applies to electronic devices.

    The Sixth Circuit articulates the other side in United States v. Lichtenberger. (38) The court in Lichtenberger found that the police exceeded the scope of a private search when they searched an entire laptop. (39) Instead of applying the container-based approach from Jacobsen, the court focused on the "virtual certainty" language used in Jacobsen. (40) The Lichtenberger court reasoned that because a laptop has the capacity to hold vast amounts of information, the threshold of "virtual certainty" to search beyond what the private searcher viewed was a high bar to meet. (41) Additionally, the court argued that the larger storage capacity of the laptop greatly increased the privacy interests of the defendant. (42) The Lichtenberger standard limits the government search to just the data viewed by a private searcher, and the government cannot search beyond that data without a warrant unless they are "virtually certain" of what they will find. (43) This standard provides more protection for individual privacy interests but lacks the clarity of the Runyan rule because it requires a fact-intensive analysis into what a private searcher actually...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT