21 F.4th 903
5th Cir.2021Background:
- Facebook reviewed private Facebook Messenger exchanges between Stephen Meals (37) and A.A. (15) that indicated an ongoing sexual relationship.
- A Facebook employee sent the messages to the National Center for Missing and Exploited Children (NCMEC) as a "cyber tip."
- NCMEC forwarded the tip to Corpus Christi police; police used the messages to obtain warrants for the Facebook accounts and then for Meals’s devices, home, and trailer.
- The device search uncovered images of A.A. and other child pornography; Meals was indicted on production and possession counts and moved to suppress the evidence.
- Meals argued Facebook and NCMEC were government agents and that subsequent government review exceeded the scope of any private search; the district court denied suppression, Meals pled guilty reserving the right to appeal, and the Fifth Circuit affirmed.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Facebook acted as a government agent when it reviewed messages and sent a cyber tip | Gov't: Facebook is a private provider; §2258A requires reporting but does not compel monitoring or make providers government agents | Meals: §2258A compels reporting and creates a government relationship, so Facebook was an agent | Facebook was not shown to be a government agent; private search doctrine applies |
| Whether NCMEC was a government agent and whether its review exceeded Facebook's private search | Gov't: Even if NCMEC were an agent, it only reviewed material Facebook had provided; cyber tips are reliable and review did not expand the search | Meals: NCMEC acted as an agent and exceeded scope by further reviewing content without warrant and without "substantial certainty" about origins/ages | Assuming arguendo NCMEC were an agent, it did not exceed the scope because it only reviewed the cyber tip; no unopened containers were accessed |
| Whether the chattel-trespass (Jones) test applies to NCMEC's review | Gov't: Jones-type trespass not implicated because no government accessed a defendant's physical chattel or opened previously unopened files beyond what Facebook provided | Meals: Jones (and Ackerman) require applying chattel-trespass test to electronic attachments and government review | Jones/chattel-trespass test was not triggered; Ackerman was distinguishable because no previously unopened attachments or files were opened here |
| Applicability of the private-search doctrine and burden of proof | Gov't: Private-search doctrine permits use of privately discovered evidence; defendant bears burden to prove an exception by preponderance | Meals: Evidence should be suppressed because private actor was effectively a government agent or government later expanded the search | Meals failed to carry his burden to show either exception; suppression denial affirmed |
Key Cases Cited
- United States v. Jacobsen, 466 U.S. 109 (private-search doctrine permits use of privately discovered evidence)
- Burdeau v. McDowell, 256 U.S. 465 (Fourth Amendment restraints apply to government, not private parties)
- United States v. Jones, 565 U.S. 400 (use of chattel-trespass concept in modern Fourth Amendment analysis)
- United States v. Runyan, 275 F.3d 449 (5th Cir.) (government exceeds scope when it opens containers left unopened by private search)
- United States v. Ackerman, 831 F.3d 1292 (10th Cir.) (distinguishable case where analyst opened previously unopened email attachments)
- United States v. Landreneau, 967 F.3d 443 (5th Cir.) (cyber tips have significant indicia of reliability)
- Coolidge v. New Hampshire, 403 U.S. 443 (private actor is treated as government agent when acting as instrument of the government)