United States v. Lichtenberger: the Sixth Circuit Improperly Narrowed the Private Search Doctrine of the Fourth Amendment in a Case of Child Pornography on a Digital Device

• Publication year: 2022

49 Creighton L. Rev. 177. UNITED STATES V. LICHTENBERGER: THE SIXTH CIRCUIT IMPROPERLY NARROWED THE PRIVATE SEARCH DOCTRINE OF THE FOURTH AMENDMENT IN A CASE OF CHILD PORNOGRAPHY ON A DIGITAL DEVICE

UNITED STATES V. LICHTENBERGER: THE SIXTH CIRCUIT IMPROPERLY NARROWED THE PRIVATE SEARCH DOCTRINE OF THE FOURTH AMENDMENT IN A CASE OF CHILD PORNOGRAPHY ON A DIGITAL DEVICE

Katie Matejka-'17

I. INTRODUCTION

Expansive use of technology and increased storage capacity on digital devices are posing new questions for law enforcement in terms of how to handle searches of private digital devices under the Fourth Amendment of the United States Constitution.(fn1) In United States v. Jacobsen,(fn2) the United States Supreme Court established the private search doctrine, permitting government agents to perform warrantless searches of items in situations where they were merely replicating a previous search performed by a private individual and had virtual certainty of what repeating that search would reveal to them.(fn3) Since then, courts have adapted a doctrine originally applied to the search of a box to increasingly complex digital devices.(fn4) Specifically, in cases where allegations of child pornography invoked the doctrine, an officer's knowledge that a specific area of a device contained pornography was sufficient to meet the standard set forth in the private search doctrine.(fn5)

However, in United States v. Lichtenberger,(fn6) the United States Court of Appeals for the Sixth Circuit applied the private search doctrine and found extensive privacy interests were offended by the officer's warrantless search of a digital device due to his lack of virtual certainty.(fn7) This holding resulted in suppressing from evidence a laptop containing child pornography during litigation over child pornography charges.(fn8) In Lichtenberger, a woman replicated for a police officer her prior search of her boyfriend's laptop computer, which had revealed folders containing images of child pornography.(fn9) At trial, it came to light that the woman could not guarantee she had shown the officer the exact thumbnail images she had viewed in her initial private search.(fn10) Despite the fact that all the images she showed the officer were of child pornography, the Sixth Circuit reasoned that without such a guarantee of exact thumbnail images, the officer did not have enough virtual certainty of finding child pornography to justify his warrantless search.(fn11)

This Note will first review the facts and holding of Lichtenberger.(fn12) This Note will then discuss the development of the private search doctrine, particularly as it relates to digital devices in child pornography cases.(fn13) This Note will argue the Sixth Circuit inappropriately emphasized protection of data privacy, resulting in an improper application of the element of virtual certainty to this private search doctrine scenario.(fn14) This Note will show why the Sixth Circuit should have aligned with the United States Courts of Appeals for the Fifth and Seventh Circuits by adopting a more balanced approach in applying the private search doctrine to digital devices.(fn15) This Note will also demonstrate how the Sixth Circuit contradicted itself in its own analysis, leading to an incorrect application of the traditional elements of the private search doctrine.(fn16) Finally, this Note will conclude that, in Lichtenberger, the Sixth Circuit improperly narrowed the private search doctrine, resulting in a wrongful suppression of evidence relating to child pornography charges.(fn17)

II. FACTS AND HOLDING

In United States v. Lichtenberger,(fn18) a police officer's reconstructed search of a laptop computer was suppressed as evidence because the United States Court of Appeals for the Sixth Circuit determined that when the officer was shown thumbnail images of child pornography, he did not have adequate virtual certainty to perform the search because the thumbnails he was shown were different from those viewed in the original private search.(fn19)

Defendant Aron Lichtenberger ("Lichtenberger") shared a home with his girlfriend, Karley Holmes ("Holmes"), and Holmes's mother in Cridersville, Ohio.(fn20) One afternoon in November of 2011, Holmes and her mother were informed by friends that Lichtenberger had past convictions for child pornography offenses, and they immediately called the police.(fn21) Douglas Huston ("Huston") was the officer at the scene who arrested Lichtenberger for failing to register as a sex offender.(fn22) When Holmes hacked into Lichtenberger's laptop later that day and discovered a folder containing thumbnail images of sexually explicit acts involving minors, she called Huston back to their residence, set up the laptop in the kitchen, and explained to Huston how and why she had searched Lichtenberger's laptop.(fn23) Huston asked Holmes to show him what she had found, so she opened folders on Lichtenberger's laptop and randomly clicked through thumbnail images.(fn24) Recognizing the images as being child pornography, Huston told Holmes to stop and power down the laptop; he consulted with his chief police officer over the phone and then left the residence with the laptop among a few other items.(fn25)

In the United States District Court for the Northern District of Ohio, the government charged Lichtenberger with possession and distribution of child pornography.(fn26) Lichtenberger filed a motion to suppress evidence of his laptop containing the child pornography, and the district court granted his motion on the grounds that by directing Holmes's search, Huston made her an agent of the government under the protections of the Fourth Amendment of the Constitution of the United States.(fn27) In this way, her second search was no longer considered a private search but a government search, and since it was done without a warrant, the district court decided Huston had breached Lichtenberger's reasonable expectation of privacy with respect to his laptop's contents.(fn28) The government appealed to the Sixth Circuit the granting of the motion to suppress the laptop as evidence.(fn29)

The Sixth Circuit affirmed the motion for suppressing the laptop evidence but on different grounds than the district court.(fn30) Instead of finding an issue of agency, the Sixth Circuit stated that Huston did not have enough virtual certainty of the outcome of the search to justify breaching privacy interests in the laptop's contents.(fn31) The Sixth Circuit agreed with the district court that the private search doctrine for Fourth Amendment searches applied, but rejected the district court's agency analysis, determining the proper issue in the case was a matter of scope, not of agency.(fn32) The court reasoned the issue of agency arises when a private party's initial search is conducted in the presence of law enforcement, but since the first search was private, the proper question for the second search was whether Huston exceeded the scope of Holmes's private search.(fn33)

In order to remain inside the scope of the initial private search, the government agent must have virtual certainty that reproducing the search will not reveal anything the agent did not already know.(fn34) Since Huston was not shown exactly the same thumbnail images on which Holmes had initially clicked, the court asserted that Huston was not proceeding with virtual certainty because he could have seen something unrelated to what Holmes initially saw.(fn35) The Sixth Circuit supported this application of the virtual certainty requirement by adopting the deference to digital privacy that was c entral to the opinion in Riley v. California,(fn36) in which the United States Supreme Court held law enforcement could not perform a warrantless search of a suspect's cell phone at the time of arrest.(fn37) Given the complexity of modern electronic devices, the Sixth Circuit reasoned the threshold of necessary virtual certainty must be at a level matching the sheer volume of data they hold.(fn38) Under the threshold the Sixth Circuit applied, showing Huston anything other than the exact thumbnails viewed in the initial search violated Lichtenberger's privacy inter-ests.(fn39) The court opined that when considering the virtual certainty requirement for the private search doctrine of digital devices, a search would not be permissible if there was a chance the officer would discover something unrelated to the allegations for the search.(fn40)

III. BACKGROUND

A. FOURTH AMENDMENT AND THE PRIVATE SEARCH DOCTRINE

The Fourth Amendment of the United States Constitution protects citizens from unreasonable searches and seizures of their property by the government, granting government agents the power to conduct reasonable searches only after receiving a proper warrant.(fn41) In United States v. Jacobsen,(fn42) the United States Supreme Court developed the concept of the private search doctrine, in which a government agent's warrantless search does not violate the Fourth Amendment if it is simply a replication of a search already conducted by a private party.(fn43)

Jacobsen involved a search of a package by a government agent after employees of the Minneapolis-St. Paul Airport Federal Express ("FedEx") office searched the same package upon noticing a suspicious white powder.(fn44) In addition to replicating the same observations of the package as the FedEx employees, the Drug Enforcement Administration agent...