PUNTING THE PRIVATE SEARCH DOCTRINE: How THE GOOD FAITH EXCEPTION IMPEDES FOURTH AMENDMENT JURISPRUDENCE.

• Author: Delrocini, Kevin

1. INTRODUCTION 95 II. THE PRIVATE SEARCH DOCTRINE AND SEARCHES OF DIGITAL DEVICES 97 III. UNITED STATES V. FALL AND THE GOOD FAITH EXCEPTION 104 A. Origins of the Good Faith Exception 106 IV. CRITICISMS OF THE GOOD FAITH EXCEPTION 109 V. THE GOOD FAITH EXCEPTION, THE PRIVATE SEARCH DOCTRINE, AND SEARCHES OF DIGITAL DEVICES 114 I. INTRODUCTION

   This Note seeks to demonstrate how the good faith exception to the Fourth Amendment's exclusionary rule slows progress in Fourth Amendment jurisprudence. It will do so by using, as a case study, an area of Fourth Amendment law in acute need of development: searches of digital devices.

   Translating the Fourth Amendment's assurances against unreasonable searches and seizures into the context of modern digital devices has proven challenging. (1) Courts, as well as other commentators, have repeatedly recognized the distinct features of these devices, such as the storage capacity that far outpaces their physical size and the exceedingly personal nature of the data often stored in them. (2) These features make them wholly unlike other "containers" that case law has considered in the past. (3) As a result, digital devices implicate highly significant privacy rights under the Fourth Amendment. (4)

   The private search doctrine is one area of Fourth Amendment jurisprudence that is particularly ambiguous in the context of digital devices. This doctrine allows authorities to conduct warrantless searches roughly coextensive with those previously conducted by private individuals without contravening the Fourth Amendment. (5) This doctrine has, in recent years, raised thorny issues for courts seeking to apply it to searches of digital devices. For example, if a private individual searches a laptop, does that give authorities Fourth Amendment clearance to search the entire laptop without a warrant, or only the specific files that the private individual searched? The circuits are split on this issue. (6)

   Rather than taking a side in this debate, the Fourth Circuit, in its recent decision in United States v. Fall, chose instead to employ a different--and more expansive--exception to the Fourth Amendment's exclusionary rule: the good faith exception. (7) This exception protects evidence obtained in objectively good-faith reliance on a warrant from Fourth Amendment exclusion, even if the warrant is later held to be invalid. (8) Commentators have recently called this doctrine into question, particularly in the context of electronic devices, where it has been used to excuse deficiently overbroad warrants. (9)

   This Note examines the relationship between the good faith exception and the private search doctrine in the context of searches of digital devices. This discussion serves as a jumping-off point to consider the role of the good faith exception more broadly, particularly as it relates to the constantly evolving Fourth Amendment jurisprudence around digital technology. Ultimately, this Note argues that the good faith exception stunts Fourth Amendment jurisprudence, exacerbating ambiguity and confusion on the part of law enforcement, and posing a danger to individuals' Fourth Amendment rights.

   Section I begins with a discussion of the private search doctrine. It considers the doctrine's origins as well as the circuit split in the context of digital devices. Section II focuses on the Fall decision, the good faith exception more broadly, and where Fall fits into good faith exception jurisprudence. Section III examines criticisms of the good faith exception, particularly as it relates to searches of digital devices. Section IV examines how the good faith exception and Fall intersect with the private search doctrine and with Fourth Amendment jurisprudence.

2. THE PRIVATE SEARCH DOCTRINE AND SEARCHES OF DIGITAL DEVICES

   The Fourth Amendment of the U.S. Constitution guarantees persons living in the US the right to be free from "unreasonable searches and seizures." (10) Under the Fourth Amendment, warrantless searches are per se unreasonable. (11) There are, however, certain "specifically established and well-delineated exceptions" to this rule. (12) For example, these protections only prevent unreasonable searches conducted by government officials; therefore, searches conducted by private individuals are always permissible under the Fourth Amendment. (13)

   It is from this principle that the Supreme Court derived the private search doctrine. In United States v. Jacobsen, workers at a FedEx facility examined a damaged package in accordance with the company's insurance policy. (14) In the package, they found a sealed tube made of duct tape. (15) The FedEx workers opened the tube and discovered several plastic bags filled with white powder. (16) The employees notified the Drug Enforcement Agency (DEA), which sent an agent to investigate. (17) When the DEA agent arrived, the employees had returned the bags to the tube and the tube to the box. (18) The agent looked in the box, saw that the tube had been opened, and removed the bags. (19) The agent performed a field test on the white powder, which showed that it was cocaine. (20) More DEA agents followed and confirmed the results of the first test. (21)

   Based on the DEA agents' findings, the DEA obtained and executed a warrant to search the delivery address. (22) The would-be recipient was then charged with possession of an illegal substance with intent to distribute. (23) Following a conviction in the United States District Court for the district of Minnesota, the recipient appealed, and the Eighth Circuit reversed. (24) It held that, while private searches had long been permissible under the Fourth Amendment, the agents' search went beyond the scope of the FedEx employees' search:

   The governmental activity [here] represents a significant extension of the private searches because it revealed... the composition of the powder. In the absence of exigent circumstances, which the government does not allege, we hold the agents were required to obtain a warrant authorizing the taking of samples and analysis thereof. (25) The Supreme Court reversed. (26) Writing for the majority, Justice Stevens explained that "the package could no longer support any expectation of privacy" under the circumstances upon which the DEA agents found it. (27) At that point, package had already been opened and explored by private individuals, who then told the agents of their findings. (28) Additionally, the plain view of the package corresponded with everything that the FedEx employees told the agents. (29) The Court further declared that "[a] chemical test that merely discloses whether or not a particular substance is cocaine does not compromise any legitimate interest in privacy." (30) Consequently, the fact that the agents went further than the private individuals in testing the white powder was immaterial. (31) Thus, the modern private search doctrine was born. Under this doctrine, government agents may conduct searches coextensive with that of a previously conducted private search, and they may go further where reasonable. The Supreme Court, rather enigmatically, provided that the additional search "must be tested by the degree to which [it] exceeded the scope of the private search." (32) In recent years, the doctrine has proven difficult to apply to digital devices, where privacy rights are of particular concern. Consider, for example, a case in which a private individual conducts a search of a laptop, finds incriminating information, and turns it over to the authorities. How much of the laptop can the authorities search under the private search doctrine? The same files that the private individual searched? The entire laptop? Something in between?

   The Sixth Circuit, presented with this challenging question, elected to take the narrowest approach. In United States v. Lichtenberger, a woman accessed her boyfriend's computer, found child pornography on it, and called the police to report it. (33) A police officer arrived at her residence, where she showed him some of the incriminating pictures on the laptop. (34) In affirming the Northern District of Ohio's suppression of the laptop evidence obtained by that second search, the Sixth Circuit drew on Jacobsen to support the proposition that a government agent must be "virtually certain" that a search pursuant to the private search doctrine will contain only those items previously viewed by the private individual. (35)

   Under this new standard, the Lichtenberger court found several indications that the officer could not have been virtually certain regarding the items he would be shown. (36) For one, the court noted that even the woman who notified the police was not completely certain that she had shown the officer the same files she originally stumbled upon. (37) Similarly, and more importantly for future cases, the court noted the fundamental differences between a laptop and a non-digital vessel like the box in Jacobsen, which was merely "an ordinary cardboard box wrapped in brown paper." (38) Because of the sheer quantity of information that could be stored on a laptop or similar digital device, the potential for infringement of privacy was far greater in the digital context than under facts like those in Jacobsen. (39) Thus, the court established a strict standard for the private search doctrine in the context of digital devices--the searching officer must be "virtually certain" that he is viewing not just the same device searched by the private individual, but the same files. (40)

   The Eleventh Circuit also indicated its support for this narrow approach in United States v. Sparks. (41) In that case, defendants left a phone in a Walmart store, which a Walmart employee subsequently found. (42) The phone was not password-protected, and the employee decided to look through it. (43) In doing so, she found several photographs and videos depicting child pornography. (44) She turned it over to the police, who conducted a more...