576 S.W.3d 826
Tex. App.2019Background
- Troy Levi Burwell was convicted of four counts of possession of child pornography after images were recovered from his Adobe Photoshop storage account.
- An Adobe employee viewed flagged images in Burwell’s account, reported them to the National Center for Missing and Exploited Children (NCMEC), which forwarded CyberTips to the Houston Police Department (HPD).
- HPD used subscriber and IP information from the CyberTips to obtain subpoenas, identify Burwell, secure a warrant, and seize additional images from his Adobe account and residence.
- Burwell moved to suppress evidence, arguing Adobe acted as a government agent (via NCMEC) and that Adobe’s warrantless search violated the Fourth Amendment and analogous Texas constitutional and statutory provisions.
- At the suppression hearing, HPD testified it neither requested nor knew of Adobe’s search beforehand; Adobe’s Terms of Use permitted automated or manual screening for illegal content and disclosure to authorities.
- The trial court found Adobe was a private actor acting on its own interests, not an agent of the government; the court denied suppression and Burwell was convicted. The court of appeals affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Adobe’s warrantless search of Burwell’s stored files and its report to NCMEC rendered subsequent law-enforcement searches unconstitutional | Burwell: Adobe acted as a government agent (through NCMEC), so its search was government action triggering Fourth Amendment protection | State: Adobe is a private, for-profit company that searched under its Terms of Use and acted on its own interests; HPD did not know of or direct the search | Court: Adobe was not a government agent; the private-search doctrine applies and no Fourth Amendment violation occurred |
Key Cases Cited
- United States v. Jacobsen, 466 U.S. 109 (privately discovered evidence may be used by government absent governmental participation)
- Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602 (agency analysis requires evaluating government participation and control)
- Rodriguez v. State, 521 S.W.3d 1 (Tex. Crim. App.) (overview and application of private-party-search doctrine)
- United States v. Ackerman, 831 F.3d 1292 (10th Cir.) (NCMEC found to be governmental/agent in that case; distinguishes facts where NCMEC opened/viewed content)
- United States v. Reddick, 900 F.3d 636 (5th Cir.) (private-company hash-based identification and subsequent law-enforcement review did not implicate Fourth Amendment)