July 5, 2022

Volume XII, Number 186

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Circuits Split on Government Warrantless Search of Electronic Data

Companies and other private parties acting on their own are not regulated by the Fourth Amendment’s restriction on search and seizure.  A company can reconstruct a prior computer search for the government, without implicating the Fourth Amendment, to show the police what the company observed on the device.  However, if the government asks the company to conduct a search that goes beyond the prior one, it must have a warrant or be in violation of the Fourth Amendment.

A split among the circuit courts has arisen over the measuring unit in reconstructing the search – by the data, the file, the folder, the physical device, or some other criteria? The Fifth Circuit, the first federal circuit court to decide this issue, decided that the unit of measure was the physical computer, and that a private search allowed the private party to turn over the entire computer to the government for a warrantless search.

The Sixth Circuit, however, in United States v. Lichtenberger, No. 14-3540 (May 20, 2015), has held the proper search unit is the data or the file, not the physical device.

After Karley Homes discovered that her boyfriend was an unregistered sex offender, she contacted the police to have him arrested. Holmes then found hundreds of images of child pornography on his laptop. Upon arrival at the Holmes residence, a police officer asked her to show him the images.  She “opened several folders and began clicking on random thumbnail images to show him.”  When the officer saw that some of the images were child pornography, he told her to shut down the computer.  A warrant was obtained to search the computer based on what the officer had seen.  Holmes later testified that while the same physical device was searched, she was not sure that the files she showed the officer were the same ones she had seen earlier.

The Sixth Circuit suppressed the images, ruling the Fourth Amendment was violated when Holmes opened up the new files, which she had not seen before, at the officer’s direction.  The Court said “[s]earches of physical spaces and the items they contain differ in significant ways from searches of complex electronic devices under the Fourth Amendment” in light of the Supreme Court’s decision in Riley v. California in which the Court in 2014 held that the warrantless search and seizure of digital contents of a cell phone during an arrest was unconstitutional.

The Sixth Circuit held that a permissible government search of the laptop must stay within the scope of the initial private search. The officer must proceed with “virtual certainty” that the “inspection of the [laptop] and its contents would not tell [him] anything more than he already had been told [by Holmes.]”  The Sixth Circuit held that considering the extent of information that can be stored on a laptop computer—a device with even greater capacity than the cell phones at issue in Riley—the “virtual certainty” threshold requires more than was present in this case.  The Sixth Circuit noted:

“All the photographs Holmes showed Officer Huston contained images of child pornography, but there was no virtual certainty that would be the case.  The same folders—labeled with numbers, not words—could have contained, for example, explicit photos of Lichtenberger himself: legal, unrelated to the crime alleged, and the most private sort of images.  Other documents, such as bank statements or personal communications, could also have been discovered among the photographs.  So, too, could internet search histories containing anything from Lichtenberger’s medical history to his choice of restaurant.  The reality of modern data storage is that the possibilities are expansive.”

This case is instructive to companies that allow their employees to use their own personal laptops or other electronic devices to conduct work.  If a company discovers illegal material on an employee’s personal laptop, it is important for that company record exactly how the discovery was made so the police may search that laptop without running afoul of the Fourth Amendment. Jackson Lewis attorneys are available to advise companies on the Fourth Amendment and their rights if they discover illegal material on their employees’ electronic devices.

Jackson Lewis P.C. © 2022National Law Review, Volume V, Number 168
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About this Author

Ramsay C. McCullough, Jackson Lewis, Affirmative Action Counseling Lawyer, Employment Discrimination Attorney
Associate

Ramsay C. McCullough is an Associate in the Norfolk, Virginia, office of Jackson Lewis P.C. His labor and employment counseling and litigation practice includes wage and hour laws, employment discrimination laws, the National Labor Relations Act, affirmative action and OFCCP counseling, white collar defense, False Claims Act and Qui Tam/Whistleblower defense, internal investigations, corporate governance and compliance issues, regulatory training, and asset recovery.

Mr. McCullough is an experienced trial attorney. He...

757-648-1444
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