32 F.4th 865
9th Cir.2022Background
- Amanda Windes, after ending her engagement with Daren Phillips, accessed his password‑protected laptop (by using a ‘‘forgot password’’ flow and answering security questions) to check finances and suspected sexual misconduct.
- On the laptop she found a large "phone" folder whose thumbnails and filenames showed numerous graphic images and videos of child pornography.
- Windes took the laptop to the Washoe County Sheriff’s Office, told detectives what she had found, and—at Detective Sawyer’s request—recreated, using only what she had previously viewed, the scrolling through the same thumbnails and filenames she had already seen.
- Sawyer seized the laptop, obtained a warrant based on the thumbnails Windes showed him, and a forensic search later recovered thousands of child‑pornography images and videos.
- Phillips moved to suppress, arguing the sheriff’s‑office search was an unlawful government search (claiming Windes acted as a state agent and invoking Jones/Young and heightened privacy for electronic devices). The district court denied suppression; Phillips pleaded guilty conditionally and appealed, also challenging three supervised‑release conditions.
Issues
| Issue | Phillips' Argument | Government's Argument | Held |
|---|---|---|---|
| Validity of the officers’ warrantless re‑access after a private search | Windes was a state agent; the sheriff’s‑office re‑access was a government search violating the Fourth Amendment | Even if state action, Jacobsen permits a government actor to reexamine only what a private searcher already revealed | Court assumed state action but applied Jacobsen; search permissible because Sawyer limited viewing to what Windes had seen |
| Does Jacobsen require officer’s subjective "virtual certainty" about scope | Jacobsen requires subjective virtual certainty/knowledge that re‑search will reveal only contraband | The test is objective: compare the scope of the government search to the antecedent private search | Rejected subjective requirement; scope is an objective inquiry and here searches matched |
| Applicability of Jones/Stoner/Young and heightened privacy for laptops | Laptop is like a home; Jones trespass/Stoner/Young bar warrantless government intrusions despite private search exception | Jacobsen (and circuit precedent) govern follow‑on searches of items, including digital devices; Tosti and others apply Jacobsen to computers | Court held Jones/Young do not defeat Jacobsen here; digital device exception applied and precedent supports admission |
| Challenge to supervised‑release conditions | Conditions (risk notification, prohibition on explicit material, polygraph) exceed penalty or are unconstitutional | Precedent upholds such conditions for child‑pornography offenders | Conditions affirmed as lawful under binding Ninth Circuit precedent |
Key Cases Cited
- Burdeau v. McDowell, 256 U.S. 465 (private searches not constrained by the Fourth Amendment)
- Coolidge v. New Hampshire, 403 U.S. 443 (discussing private search exception and admissibility)
- United States v. Jacobsen, 466 U.S. 109 (government reexamination is permissible when it does not exceed antecedent private search)
- United States v. Young, 573 F.3d 711 (distinguishing private‑search situations involving residences/hotel rooms)
- Stoner v. California, 376 U.S. 483 (warrant requirement for entries into lodgings)
- United States v. Jones, 565 U.S. 400 (trespassprinciple and GPS tracking; discussed as inapposite to Jacobsen private‑search context)
- United States v. Tosti, 733 F.3d 816 (applying Jacobsen to technician’s discovery of child pornography on a computer)
- Riley v. California, 573 U.S. 373 (noting extensive private data on digital devices; court explains private‑search limitation mitigates Riley concerns)
- United States v. Bowman, 215 F.3d 951 (Ninth Circuit application of Jacobsen scope principle)