United States v. Lichtenberger

• Court: U.S. Court of Appeals — Sixth Circuit
• Writing for the Court: BERNICE BOUIE DONALD, Circuit Judge.
• Citation: United States v. Lichtenberger, 786 F.3d 478 (6th Cir. 2015)
• Decision Date: 20 May 2015
• Docket Number: No. 14–3540.,14–3540.
• Parties: UNITED STATES of America, Plaintiff–Appellant, v. Aron LICHTENBERGER, Defendant–Appellee.

786 F.3d 478

UNITED STATES of America, Plaintiff–Appellant

v.Aron LICHTENBERGER, Defendant–Appellee.

No. 14–3540.

United States Court of Appeals, Sixth Circuit.

Argued: Jan. 20, 2015.

Decided and Filed: May 20, 2015.

ARGUED:Gene Crawford, United States Attorney's Office, Toledo, Ohio, for Appellant. Joel C. Bryant, University of Michigan Law School Federal Appellate Litigation Clinic, Ann Arbor, Michigan, for Appellee. ON BRIEF:Gene Crawford, United States Attorney's Office, Toledo, Ohio, for Appellant. Joel C. Bryant, University of Michigan Law School Federal Appellate Litigation Clinic, Ann Arbor, Michigan, Melissa M. Salinas, Gregory Geist, Office of the Federal Public Defender, Toledo, Ohio, for Appellee.

Before: MERRITT, STRANCH, and DONALD, Circuit Judges.

OPINION

BERNICE BOUIE DONALD, Circuit Judge.

This case deals with the suppression of evidence discovered during a private search and reviewed shortly thereafter by a police officer without a warrant. In 2011, defendant Aron Lichtenberger (“Lichtenberger”) was arrested at the home he shared with his girlfriend, Karley Holmes (“Holmes”), for failing to register as a sex offender with the local authorities. After his arrest, Holmes hacked into Lichtenberger's personal laptop computer, where she discovered a number of images of child pornography. Holmes contacted the police, and when an officer arrived, Holmes showed the officer some of the images on the laptop. The officer then obtained a warrant for the laptop and its contents, which led to the present charges against Lichtenberger. Before trial, Lichtenberger filed a motion to suppress the laptop evidence, which the district court granted. The government appeals. As there are extensive privacy interests at stake in searches of a laptop, and as the officer had far less than “virtual certainty” regarding what he was going to see when Holmes showed him the results of her search, we AFFIRM.

I.

The facts, as presented in the district court's suppression order, are undisputed.

On November 26, 2011, in the afternoon, Lichtenberger was with Karley Holmes, his girlfriend, at their shared home in Cridersville, Ohio. They lived there with Holmes's mother, who owned the residence. That day, two friends of Holmes's mother came over to the residence and told both Holmes and her mother that Lichtenberger had been previously convicted of child pornography offenses.

One of the mother's friends then called the police. Several officers, including Douglas Huston, from the Cridersville Police Department[,] came to the residence. Holmes requested that the police escort Lichtenberger off the property because she did not want him living there anymore. Officer Huston determined that Lichtenberger had an active warrant for his arrest for failing to register as a sex offender, arrested him, and removed him from the property.

Later that day, Holmes went into the bedroom she shared with Lichtenberger and retrieved his laptop. At the suppression hearing, she testified that she wanted to access his laptop because defendant “would never let me use it or be near him when he was using it and I wanted to know why.” The laptop was password protected, but Holmes hacked the laptop by running a password recovery program. She then changed the password.

Once she accessed the laptop, she clicked on different folders and eventually found thumbnails [sic ] images of adults engaging in sexual acts with minors. She clicked on one of the thumbnails to see the larger image. When she found the first image, she took the laptop to the kitchen to show her mother. There, they clicked through several more sexually-explicit images involving minors. She closed the laptop and called the Cridersville Police Department.

Officer Huston returned to the residence. In the kitchen, Holmes told the officer that she found child pornography on the defendant's laptop. She also told him that the laptop belonged to the defendant and that he was the only one who would access and use it. She explained that one time she tried to use the laptop and the defendant immediately became upset and told her to stay away from it. Lastly, Holmes told Officer Huston that she hacked the laptop to access it because it was password protected.

Officer Huston then asked Holmes if she could boot up the laptop to show him what she had discovered. Holmes opened the laptop lid and booted it up to take it out of sleep mode. She then reentered the new password she created. Officer Huston asked her to show him the images. Holmes opened several folders and began clicking on random thumbnail images to show him. Officer Huston recognized those images as child pornography. He then asked Holmes to shut down the laptop.

After consulting with his police chief over the phone, Officer Huston asked Holmes to retrieve other electronics belonging to Lichtenberger. She gave him Lichtenberger's cell phone, flash drive, and some marijuana. Officer Huston then left the premises with those items, the laptop, and its power cord.

United States v. Lichtenberger, 19 F.Supp.3d 753, 754–55 (N.D.Ohio 2014). Holmes later testified that when she was reviewing Lichtenberger's laptop, she viewed approximately 100 images of child pornography saved in several subfolders inside a folder entitled “private.”¹ Holmes also testified that she showed Officer Huston “a few pictures” from these files, although she was not sure if they were among the same images she had seen in her original search. Officer Huston testified that Holmes showed him “probably four or five” photographs.

Lichtenberger was indicted on December 5, 2012, on three counts of receipt, possession, and distribution of child pornography under 18 U.S.C. §§ 2252(a)(2), (a)(4)(B), and (b). Before trial, Lichtenberger moved to suppress all evidence obtained pursuant to Officer Huston's warrantless review of the laptop with Holmes on November 26, 2011.² Lichtenberger argued that when Officer Huston directed Holmes to show him what she had found, Holmes was acting as an agent of the government such that the search was impermissible under the Fourth Amendment. The government countered that the review Officer Huston conducted was valid under the private search doctrine, which permits a government agent to verify the illegality of evidence discovered during a private search. Following a suppression hearing and additional briefing from the parties, the district court granted Lichtenberger's motion to suppress the laptop evidence. Lichtenberger, 19 F.Supp.3d at 760. The government appeals.

II.

A.

In reviewing a district court's order to suppress evidence, we consider the district court's “conclusions of law and application of the law to the facts ... de novo.” United States v. Bowers, 594 F.3d 522, 525 (6th Cir.2010) (quoting United States v. Hardin, 539 F.3d 404, 416 (6th Cir.2008) ) (internal quotation marks omitted). We review the district court's factual findings for clear error. Id.

B.

The private search doctrine originated from the Supreme Court's decision in United States v. Jacobsen, 466 U.S. 109, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984). As with any Fourth Amendment case, the facts underlying the Jacobsen case are key to its holding. In 1981, Federal Express (“FedEx”) employees were inspecting a package—a box wrapped in brown paper—that had been damaged in transit. Id. at 111, 104 S.Ct. 1652. The employees opened the box and discovered that it contained a duct-tape tube about ten inches long nestled among wadded sheets of newspaper. Id. The employees removed the tube from the box and cut a slit in the end of the tube. Id. Inside, they found multiple zip-lock bags of a white, powdery substance. Id. The employees placed the bags back in the tube, put the tube back in the box, and called the Drug Enforcement Administration (“DEA”). Id. A DEA agent arrived and found the box open on a desk. Id. The agent observed that the tube inside had a slit cut into it, and removed the bags from the tube. Id. He then opened each bag and removed a trace amount of the powder for an on-site field test. Id. at 111–12, 104 S.Ct. 1652. The test positively identified the substance as cocaine. Id. at 112, 104 S.Ct. 1652. Based on the agent's findings, the DEA procured a warrant to search the place to which the package had been addressed and subsequently arrested the defendants. Id.

The question before the Supreme Court was whether the DEA agent's search of the package and field test of its contents—both conducted without a warrant—violated the Fourth Amendment. If so, the package and any evidence obtained pursuant to the warrant based on its contents were inadmissible. The Court began with the fundamental principle that the Fourth Amendment protects “an expectation of privacy that society is prepared to consider reasonable.” Id. at 113, 104 S.Ct. 1652. When a government agent infringes on this reasonable expectation, a “search” occurs for the purposes of the Fourth Amendment, and the government must obtain a warrant or demonstrate that an exception to the warrant requirement applies. However, the Fourth Amendment only protects against “governmental action; it is wholly inapplicable ‘to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the Government or with the participation or knowledge of any governmental official.’ ” Id. at 113–14, 104 S.Ct. 1652 (quoting Walter v. United States, 447 U.S. 649, 662, 100 S.Ct. 2395, 65 L.Ed.2d 410 (1980) (Blackmun, J., dissenting)); see also id. at 115, 104 S.Ct. 1652 (“The initial invasions of [defendants'] package were occasioned by private action.... Whether those invasions were accidental or deliberate, and whether they were reasonable or unreasonable, they did not violate the Fourth Amendment because of their private character.”) (footnote omitted).

Applying these principles, the Supreme Court distinguished between the invasion of privacy that resulted from the FedEx employees' search of the package and the invasion that...