Lichtenberger, Sparks, and Wicks: the Future of the Private Search Doctrine

• Publication year: 2017

Lichtenberger, Sparks, and Wicks: The Future of the Private Search Doctrine

Alexandra Gioseffi

LICHTENBERGER, SPARKS, AND WICKS: THE FUTURE OF THE PRIVATE SEARCH DOCTRINE

Abstract

Electronic devices are becoming increasingly prevalent in our daily lives, simultaneously replacing photo albums, address books, printed documents, and other, previously indispensable items. Electronic devices have even invaded a controversial area of Fourth Amendment jurisprudence: the private search doctrine. However, this doctrine's application to electronic devices suffered from a dearth of existing law. Courts sought to fill this gap using two primary approaches: the container approach and the particularity approach. The container approach ignores the modern realities of electronic devices and the related privacy concerns. In contrast, the particularity approach accommodates these contemporary realities and increased privacy interests. This Comment concludes that courts should adopt the particularity approach to protect individuals from invasive government searches, in the true spirit of the Fourth Amendment.

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Introduction..............................................................................................397

I. Background of the Fourth Amendment and the Private Search Doctrine.............................................................................401

A. The History of the Fourth Amendment ...................................... 402
B. The History of the Private Search Doctrine .............................. 405

II. The Container Approach...............................................................408

A. Description of the Container Approach .................................... 408
B. The Fifth Circuit's Application of the Container Approach...... 411
C. The Seventh Circuit's Application of the Container Approach . 413

III. The Particularity Approach........................................................414

A. Description of the Particularity Approach ................................ 415
B. The Sixth Circuit's Application of the Particularity Approach . 416
C. The Eleventh Circuit's Application of the Particularity Approach ................................................................................... 418
D. The Court of Appeals for the Armed Forces's Application of the Particularity Approach ........................................................ 421

IV. The Particularity Approach is Superior...................................423

A. The Container Approach Ignores the Unique Characteristics of Electronic Devices ................................................................. 423

1. Arguable Positives of the Container Approach ................... 424
2. Numerous Shortcomings of the Container Approach .......... 426

B. The Particularity Approach Properly Considers the Practical Realities of Twenty-First Century Technology.......................... 431

1. Abundant Strengths of the Particularity Approach ............. 432
2. Argued Limitation of the Particularity Approach and Its Refutation ............................................................................ 437

V. Implications of the Particularity Approach as the Leading Approach..........................................................................439

A. Implications for Courts .............................................................. 439
B. Implications for Searchers ......................................................... 440
C. Implications for Electronic Device Users .................................. 441

Conclusion..................................................................................................441

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Introduction

The Supreme Court set the stage for modern Fourth Amendment analysis in the paramount electronic device case Riley v. California.¹ The Court observed that cell phones are now so commonplace that "the proverbial visitor from Mars might conclude they were an important feature of human anatomy."² It is clear to see why the Court made such an observation, as electronic devices³ are essentially extensions of their owners.⁴ In addition to holding digital imprints of electronic device users' lives, in effect representing an annex of the memory, the Court noted that "more than 90% of American adults" have cell phones.⁵ Thus, the vast majority of Americans uses electronic devices and inherently recognizes the convenience and power of these devices as the norm in our society.⁶ However, the unique Fourth Amendment consequences associated with these devices are not as facially obvious.⁷ The constitutional

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implications of this widespread technological phenomenon are at the heart of the Riley opinion and this comment.

The Riley majority analyzed the constitutional impact of the electronic device era by identifying two inherent differences between electronic devices and other types of possessions.⁸ First, the Court distinguished electronic devices based on the qualitative disparity between electronic devices and other items.⁹ The Court's analysis of the quantitative inequality centered on the "immense storage capacit[ies]" of electronic devices.¹⁰ In particular, the "immense storage capacit[ies]" of electronic devices far exceed the previous physical restrictions on what an individual could carry with them.¹¹ Smart phones in 2014 could store "millions of pages of text, thousands of pictures, or hundreds of videos."¹² In comparison, an individual would be hard pressed to carry around physical copies of that quantity.¹³ Second, the Supreme court noted that electronic devices present distinct Fourth Amendment issues to the extent that they are qualitatively different from other items.¹⁴ Unlike other items, electronic devices concentrate various categories of personal information on one device, including "Internet search[es] and browsing history,"¹⁵ location tracking data,¹⁶ medical records,¹⁷ and many other types of

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personal information.¹⁸ These features make electronic devices convenient and valuable to users, but they also implicate Fourth Amendment issues concerning the amount and types of data that searches of these devices may reveal.¹⁹

The unique nature of electronic devices has particular impact on one area of Fourth Amendment law: the private search doctrine. The private search doctrine provides that government agents may, without first obtaining a warrant, reproduce a search performed by a private individual.²⁰ However, courts faced abundant litigation regarding whether a subsequent government search exceeded the scope of an initial private search, even in the pre-electronic device context.²¹ The distinctive characteristics of electronic devices create an additional challenge for courts determining the scope of private searches. Courts have developed two dominant approaches for confronting this challenge: the container approach and the particularity approach. This divergence has created a split among the circuits.

The Fifth and Seventh Circuits utilize the container approach, which analogizes technological devices to static closed containers such as suitcases, duffle bags, and camera cases.²² The Fifth Circuit in United States v. Runyan and the Seventh Circuit in Rann v. Atchison analogized media disks to traditional containers and determined that "the police . . . did not exceed the scope of the private search if they examined more files on the privately-

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searched disks than [the private searchers] had."²³ The Fifth and Seventh Circuits' interpretations of the container approach define the scope so broadly that they permit intrusive government searches that far exceed the literal reach of the private search.

The Sixth Circuit, the Eleventh Circuit, and the U.S. Court of Appeals for the Armed Forces opt for the particularity approach, an approach specifically designed to accommodate the unique characteristics and privacy concerns of electronic devices.²⁴ The common thread among applications of the particularity approach is the conclusion that government searches of electronic devices should be narrowly tailored to the precise scope of the private search.²⁵ The Sixth Circuit in United States v. Lichtenberger, like the Supreme Court in Riley, emphasized the privacy concerns associated with electronic devices²⁶ and concluded that an officer exceeded the scope of the private search by viewing more images than the private searcher.²⁷ Similarly, in United States v. Sparks, the Eleventh Circuit determined that a government searcher exceeded the scope of the private search when he viewed a video that the private searcher had not viewed.²⁸ The U.S. Court of Appeals for the Armed Forces also applied the particularity approach in United States v. Wicks when it held that a subsequent government search should be limited to the specific text messages viewed during the private search.²⁹ These applications of the particularity approach refine the concept of scope and prevent unjustified invasions of privacy.

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This Comment focuses on the two approaches mentioned briefly above and proceeds in five parts. Part I lays the foundation for contemporary application of the private search doctrine by discussing the history of the Fourth Amendment and the development of the private search doctrine. Part II discusses the Fifth Circuit's container approach, which analogizes electronic devices to static closed containers, thereby giving the government access to data outside the literal scope of the private search. Part III examines the approach adopted by the Sixth Circuit, the Eleventh Circuit, and the Court of Appeals for the Armed Forces—the particularity approach. The particularity approach is specifically tailored towards the complexities and capacities of electronic devices. Part IV argues that the particularity approach is the superior approach. Accordingly, the central recommendation of this Comment is that the particularity approach best accommodates the unique...