On December 1, 2015, the 11th Circuit issued its State v. Johnson, No. 14-12143 decision holding that law enforcement’s review of any data or file not actually viewed by the private party exceeds the private search doctrine scope and violates the Fourth Amendment.

In United States v. Jacobsen, 466 U.S. 109 (1984) the United States Supreme Court held that if a private party conducts a search, without the participation or encouragement of law enforcement, then the private party may show police what was found during the private search. However, law enforcement must have “virtual certainty” that their search does not exceed the scope of the private party’s search.

In Johnson, a Walmart employee found a cellphone that was accidentally left at the store. A text message was sent to the phone requesting that the phone be returned. After speaking with the individual associated with the phone number that sent the text message, the Walmart employee looked through the phone that was not password protected for a picture of the woman to whom she was returning the phone.

After viewing sexually explicit images involving a young girl, the phone was taken to local law enforcement, who were shown the same images previously viewed.

Once the phone is in law enforcement custody, without a warrant, a Detective was shown the same images that were originally viewed by the Walmart employee, however, in addition to viewing those images, the detective also viewed two videos the were stored in the same album.

Alan Robert Johnson and Jennifer Sparks were charged with 18 U.S.C. § 2252 Possession of Child Pornography and 18 U.S.C. § 2251 Production of Child Pornography.

On appeal, the Defendants argue that the District Court clearly erred by finding that the warrantless search of the cell phone by law enforcement did not exceed the scope of the search conducted by the Walmart employee.

The 11th Circuit held that the Detective did exceed the scope of the private search when he watched the video that was within the same album but was not viewed by the Walmart employee.

This is a similar holding to Sixth Circuit’s United States v. Lichtenberger, No. 14-3540 decision in which the Sixth Circuit affirmed the District Court’s suppression of child pornography images found on Lichtenberger’s computer after Lichtenberger’s girlfriend testified that she was not sure whether the images she viewed were the same images that she showed the police officer. As a result Lichtenberger’s Fourth Amendment rights were violated when his girlfriend opened up new files that she hadn’t seen before at the policer officer’s direction.

For an in depth analysis of both the 11th Circuit and 6th Circuit decisions discussed above and the Circuit split on the Private Search Doctrine’s application to computers, please read Orin Kerr’s May 20th and December 2nd The Volokh Conspiracy articles.

If you or someone you care about has any questions regarding the private search doctrine, please contact Attorney Michael C. Hennenberg to schedule a consultation.