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6th Cir. Creates Split in Private Searches on Computers

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By Mark Wilson, Esq. on May 27, 2015 3:53 PM

What are the limits of the "private search doctrine" when it comes to a computer? The Sixth Circuit answered that question last week in a case that is sure to make it to the Supreme Court.

Aaron Lichtenberger was arrested for failing to register as a sex offender. His girlfriend, wondering why she was never allowed to use his computer, hacked into it and found images of child pornography. She notified the authorities, police obtained a warrant to search the computer, which led to more pornography. The Sixth Circuit, however, suppressed all this evidence as the product of an unconstitutional search.

The Private Search Doctrine

Once a private individual searches someone else's stuff, that other person's stuff is fair game for law enforcement, as the reasonable expectation of privacy is gone.

The limit of a private search, though, is that law enforcement needs to have a "virtual certainty" that they'll discover only evidence of criminality. This was pretty easy to ensure in the seminal private search case, U.S. v. Jacobsen, which dealt with a FedEx package containing only cocaine.

A computer, though, is different. When police asked Lichtenberger to show them the files she previously saw, she couldn't remember which folders she had looked through. As a result, police had to look through folders that Lichtenberger's girlfriend may not have previously disclosed to police, creating a danger that they "could have discovered something else on Lichtenberger's laptop that was private, legal, and unrelated to the allegations prompting the search."

Circuit Split

This case, Eugene Volokh noted, has created a circuit split. The Fifth and Seventh Circuits consider the entire computer to be within the scope of a private search. With Lichtenberger, the Sixth seems to have taken a file- or folder-level approach. The Fifth and Seventh, however, didn't have Riley v. California in their back pocket. In that case, from last year, the Supreme Court concluded that smart phones -- and computers in general -- were different from other containers due to the amount of information they can hold -- and very personal information, at that.

The Sixth Circuit interpreted Riley to change the calculus when it comes to balancing privacy interests in warrantless searches. "That the item in question is an electronic device does not change the fundamentals of this inquiry," the court said. "But under Riley, the nature of the electronic device greatly increases the potential privacy interests at stake, adding weight to one side of the scale while the other remains the same."

Expect this case to hit the High Court in order to determine not just the scope of the private search doctrine on a computer, but the scope of other things like the plain view doctrine.

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