UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DAREN W. PHILLIPS, Defendant-Appellant.
No. 20-10304
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
April 29, 2022
D.C. No. 3:18-cr-00101-MMD-WGC-1. Argued and Submitted November 15, 2021, San Francisco, California. Before: Richard A. Paez and Michelle T. Friedland, Circuit Judges, and Edward R. Korman, District Judge.
Opinion by Judge Korman
OPINION
Appeal from the United States District Court for the District of Nevada Miranda M. Du, Chief District Judge, Presiding
Opinion by Judge Korman
* The Honorable Edward R. Korman, United States District Judge for the Eastern District of New York, sitting by designation.
Criminal Law
The panel affirmed a judgment of conviction in a case in which Daren Phillips entered a conditional guilty plea to possession of child pornography, reserving the right to appeal the denial of his motion to suppress evidence found on his laptop computer.
After calling off her engagement to Phillips, Amanda Windes discovered child pornography on his computer, which she then brought to the Washoe County Sheriff‘s Office. While Windes was there, Detective Gregory Sawyer asked her to show him only images that she had already viewed when she had accessed the laptop by herself. Windes complied with that request.
Phillips moved to suppress on the ground that, because Sawyer directed Windes to access the computer without Phillips‘s permission to show Sawyer what she had already seen, Windes‘s search of the computer at the sheriff‘s office was an unlawful law-enforcement search.
Because the U.S. Attorney does not dispute Phillips‘s assertion that Windes acted as a state agent when she accessed the computer at the sheriff‘s office, the panel assumed that this was a government search.
But applying United States v. Jacobsen, 466 U.S. 109 (1984), and United States v. Bowman, 215 F.3d 951 (9th Cir. 2000), the panel held that the search was permissible because, as the parties agree, when Windes accessed the child pornography on Phillips‘s computer at the sheriff‘s office, she merely mimicked her earlier private search. The panel rejected Phillips‘s argument that Jacobsen imposes requirements tied to law enforcement‘s subjective knowledge. The panel distinguished United States v. Young, 573 F.3d 711 (9th Cir. 2009), on the ground that this case does not involve a warrantless entry into a home or its equivalent. The panel rejected Phillips‘s argument that the “common-law trespassory test” set forth in United States v. Jones, 565 U.S. 400 (2012), requires suppression in this case.
Noting that in light of Phillips‘s valid appeal waiver he may argue on appeal only that the supervised-release conditions he challenges exceed the permissible statutory penalty or violate the Constitution, the panel wrote that this court‘s precedents establish the legality of all the challenged conditions (risk notification, prohibiting access to sexually explicit conduct material involving adults, polygraph testing).
COUNSEL
Aarin E. Kevorkian (argued), Assistant Federal Public Defender; Rene L. Valladares, Federal Public Defender; Office of the Federal Public Defender, Las Vegas, Nevada; for Defendant-Appellant.
William R. Reed (argued), Assistant United States Attorney; Elizabeth O. White, Appellate Chief; Christopher Chiou, Acting United States Attorney; United States Attorney‘s Office, Reno, Nevada; for Plaintiff-Appellee.
KORMAN, District Judge:
In early 2018, Amanda Windes decided to call off her engagement to Daren Phillips. She believed Phillips had been lying to her about his alcohol use and financial troubles. She had also found “very inappropriate” text messages between Phillips and other women. Windes informed Phillips that he was no longer welcome in the house they shared. Two days later Phillips acknowledged that he needed help for his alcoholism, and Windes drove Phillips to a hospital, which arranged for a one-month stay at a residential treatment center. Windes had custody of many of Phillips‘s possessions while he was away, including his laptop computer. Windes was contacted by Phillips‘s ex-wife, Kelly Greek, who was worried about how Phillips would pay child support while he was in treatment. Greek also told Windes that she suspected that Phillips had watched child pornography and that Phillips may have been sexually interested in a friend of Greek‘s daughter.
Windes decided to examine Phillips‘s laptop. She said that her primary purpose was to examine his financial documents but that she also wanted to see if Phillips had been contacting other women and whether he had been viewing child pornography. She explained that she was also trying “to determine what other issues there w[ere] on top of [Phillips‘s] alcohol problem for the safety of my children and myself.” The laptop was password protected, and Windes first tried the password for Phillips‘s Netflix account, which he had given to her. That password didn‘t work, so Windes clicked on the laptop‘s “forgot your password” function, which prompted her to answer Phillips‘s security questions. She successfully guessed the answers to those questions, which allowed her to send a
As Windes browsed Phillips‘s computer, she came across a folder entitled “phone.” She saw that it was several hundred megabytes in size and opened the folder. The folder displayed the names of all the files in the folder and their associated “thumbnail illustration[s]” (a small photo which indicated what each file contained). There were thousands of such thumbnail illustrations in the folder. They included “pictures of infants and all of their exposed genitalia” and “images of young females” who were “very scantily clad and [were in] extremely sexually provocative poses.” As she scrolled down through the folder, she saw that many of the file names indicated how old the children were (from infants to teenagers). Windes saw that this “phone” folder contained only child pornography. She testified that the images were “highly graphic” and left her “disgusted.” She “felt law enforcement needed to further investigate.”
Windes first took the laptop to Police Services at the University of Nevada (where she worked) and told them only that she had a computer that she needed somebody to look at. Police Services told her to take the computer to the Washoe County Sheriff‘s Office (“sheriff‘s office“) because it did not belong to the university. At the sheriff‘s office, Windes told the front desk deputy that she had a computer that she suspected contained a significant amount of child pornography. She was then interviewed by Detective Arick Dickson for about two-and-a-half hours. Windes told Dickson what she had found and how she had accessed the computer. She described in detail many of the thumbnail images of child pornography she had seen. She also relayed to Dickson her “concerns for . . . [her] children‘s safety,
Dickson then brought in Detective Gregory Sawyer, who asked Windes to show him only images that she had already viewed when she had accessed the laptop by herself. Windes and Sawyer testified—and the district court found—that Windes complied with that request and showed the detectives only the thumbnail images and accompanying file names she had previously seen while scrolling through the “phone” folder. Only Windes operated the computer while she showed Sawyer the images. Sawyer recognized some of the thumbnail images from prior child pornography investigations. Sawyer then seized the laptop and applied for and obtained a search warrant. The application included a brief written description of two thumbnail images that Windes had shown him and the associated file names. A subsequent forensic search of the laptop found over 4,750 images of child pornography and 538 child pornography videos.
Phillips was indicted for one count of transportation of child pornography, in violation of
Phillips then entered a conditional guilty plea to one count of possessing child pornography, reserving the right to appeal the denial of his motion to suppress. Phillips was sentenced to 63 months’ incarceration and 20 years of
DISCUSSION
The Supreme Court has long held that it does not violate the Fourth Amendment for a law enforcement officer to accept and use evidence that a private party discovers pursuant to its own private search, even if that private search was unlawful. See Burdeau v. McDowell, 256 U.S. 465, 475-76 (1921); Coolidge v. New Hampshire, 403 U.S. 443, 485-90 (1971). This rule is based on the principle that “[t]he Fourth Amendment[‘s] protection against unlawful searches and seizures . . . applies to governmental action” and “was not intended to be a limitation upon other than governmental agencies.” Burdeau, 256 U.S. at 475. Moreover, “the consequences of Burdeau do not offend the more modern rationale of the Fourth Amendment exclusionary rule . . . [which] is most often explained on grounds of deterrence.” 1 Wayne R. LaFave, Search & Seizure § 1.8(a) (6th ed. 2021). Specifically, “extension of the exclusionary rule to all private illegal searches for purposes of deterrence would be difficult to justify” because “the private searcher . . . is often motivated by reasons independent of a desire to secure criminal conviction and . . . seldom engages in searches upon a sufficiently regular basis to be affected by the exclusionary sanction.” Id.; see also United States v. Janis, 428 U.S. 433, 455 n.31 (1976) (“[T]he exclusionary rule, as a deterrent sanction, is not applicable where a private party . . . commits the offending act.“). Still, “the issue of precisely what it takes to put a search outside the ‘private’ category is frequently litigated in a wide variety of settings.” 1 LaFave, supra, § 1.8.
This is one such setting. Windes, on her own volition, searched Phillips‘s laptop and uncovered child pornography.
1
Phillips asserts that Windes acted as a state agent when she completed the second search because she took cues from Sawyer when doing so. This argument is premised on Sawyer‘s effort to ensure that in viewing the materials that Windes had already seen and wished to show him, there would be no greater invasion of Phillips‘s privacy than had already occurred. Because the U.S. Attorney does not dispute Phillips‘s somewhat counterintuitive assertion that Windes acted as a state agent when she accessed the computer at the sheriff‘s office, we assume that this was a government search.
Nevertheless, this search was permissible. United States v. Jacobsen illustrates “the appropriate analysis of a governmental search which follows on the heels of a private one.” 466 U.S. 109, 115 (1984). There, FedEx employees opened a package, saw it contained a white powdery substance, repacked the materials, and alerted the Drug Enforcement Administration (“DEA“). See id. at 111. Then, a DEA agent reopened the package, removed its contents without obtaining a warrant, and found that the white powder it contained was cocaine. See id. at 111-12. The Supreme
That is precisely what occurred here. Windes went to the sheriff‘s office to alert law enforcement to what she uncovered on Phillips‘s laptop. Sawyer testified that he told Windes to “[j]ust do what you had done and show me what you saw.” Windes testified that she “opened up the computer and turned it on, used the same password to log into Phillips‘[s] user name, and then opened up the same Phone folder.” She then scrolled down and showed him “the same files that [she] saw” the previous night with the same names that she had remembered. Id. She “did not access anything that [she] had not previously seen.” A video was also admitted into evidence of Sawyer recreating the search he conducted with Windes, which showed that she did not have to “scroll down very far in the ‘phone’ folder before locating
Although it is possible that—unlike a stagnant container—the folder on Phillips‘s computer could have automatically updated with new material from his phone between Windes‘s searches at her home and the sheriff‘s office or that a previously unviewed notification or alert could have popped up on the screen, Phillips does not allege that his devices were set to do so. Indeed, he concedes that the scope of the two searches was the same. Accordingly, we accept the district court‘s conclusion that, when Windes accessed the child pornography on Phillips‘s computer at the sheriff‘s office, she merely “mimicked [her earlier] private search.” Bowman, 215 F.3d at 963.1
2
Nevertheless, Phillips argues that the evidence uncovered pursuant to Windes‘s actions at the sheriff‘s office must be suppressed for reasons tied to law
As Phillips points out, Jacobsen states that “[w]hen the first federal agent on the scene initially saw the package, he knew it contained nothing of significance except a tube containing plastic bags and, ultimately, white powder” and that, “[e]ven if the white powder was not itself in ‘plain view,’ . . . there was a virtual certainty that nothing else of significance was in the package and that a manual inspection of the tube and its contents would not tell him anything more than he already had been told.” 466 U.S. at 118-19; see id. at 120 n.17 (“[T]he precise character of the white powder‘s visibility to the naked eye is far less significant than the facts that the container could no longer support any expectation of privacy, and that it was virtually certain that it contained nothing but contraband.“).
But read in context, Jacobsen‘s “virtual certainty” references—and other similar language—do not create any
Respondents do not dispute that the Government could utilize the Federal Express employees’ testimony concerning the contents of the package. If that is the case, it hardly infringed respondents’ privacy for the agents to reexamine the contents of the open package by brushing aside a crumpled newspaper and picking up the tube. The advantage the Government gained thereby was merely avoiding the risk of a flaw in the employees’ recollection, rather than in further infringing respondents’ privacy. Protecting the risk of misdescription hardly enhances any legitimate privacy interest, and is not protected by the Fourth Amendment.
Id. at 119. The Court‘s explanation confirms that a government search that does not exceed the bounds of a private one is not an invasion of privacy under the Fourth Amendment. The only advantage gained by the government‘s own search is avoiding the private party‘s “misdescription” and that is a permissible advantage. What was important to the Jacobsen Court was that the DEA agent‘s search “enabled [him] to learn nothing that had not previously been learned during the private search,” not that
Here, as in Jacobsen, Windes‘s accessing the computer in Sawyer‘s presence “enabled [Sawyer] to learn nothing that had not previously been learned during the private search” and was therefore permissible. Id. at 120. But unlike Jacobsen, our conclusion regarding the equivalence between the scope of the searches arises because the record demonstrates that Sawyer instructed Windes to recreate her prior search so he only saw what she had already seen, and Windes abided by those instructions.3
Our opinion in Young, 573 F.3d 711, does not change this conclusion. It simply represents an application of the Supreme Court‘s decision in Stoner v. California, 376 U.S. 483 (1964). Stoner held that “[n]o less than a tenant of a
The language in Young upon which Phillips relies appears in our discussion rejecting “[t]he Government[‘s] argu[ment],” which it had raised “for the first time on appeal, that United States v. Jacobsen . . . should be extended to
While the two cases were distinguishable in the manner Young suggested, it is unlikely this distinction was crucial to our decision. Surely, we did not mean to suggest that our decision would have been different had the hotel security in Young been “virtually certain” as to the nature of the items the second search of Young‘s hotel room would uncover. Indeed, it could not have been. Unlike this case, Young concerned the unique privacy interests an individual has in his residence (and, by extension, a temporary residence like a hotel room). See United States v. Lichtenberger, 786 F.3d 478, 484 (6th Cir. 2015) (“Homes are a uniquely protected space under the Fourth Amendment.“). Under Stoner, no prior private search and no level of certainty regarding what the second search would uncover could have allowed state actors to enter Young‘s hotel room without a warrant or his consent. Young relied expressly on well-settled Supreme Court law that “[b]elief, however well founded, that an article sought is concealed in a dwelling house, furnishes no justification for a search of that place without a warrant. And such searches are held unlawful notwithstanding facts unquestionably showing probable cause.” 573 F.3d at 721 (emphasis added) (quoting Johnson v. United States, 333 U.S. 10, 14 n.14 (1948))).4 Unlike Young, but like Jacobsen, this case does not involve a warrantless entry into a home or its equivalent. Accordingly, Young does not alter the current inquiry.
Phillips also argues that the extensive amount of personal information contained in a laptop makes it similar to a private residence, meaning that the private search doctrine should not apply. An analysis of this argument depends on to which of the two aspects of the doctrine it refers. The first involves an intrusion—even an extraordinarily invasive intrusion—by a private party who gives the contents discovered pursuant to that intrusion to law enforcement. Burdeau v. McDowell, 256 U.S. at 475-76. The validity of this conduct does not depend on the extent of the private information contained in the object or location on which the private party intruded. If there is no state action, there is no Fourth Amendment violation. Id.
By contrast, the second aspect of the private search doctrine involves “a governmental search which follows on the heels of a private one,” Jacobsen, 466 U.S. at 115, and it is to this aspect of the doctrine that Phillips‘s argument refers. While it is true that modern computers contain so much personal information that a search of one could
3
Phillips additionally argues that the Supreme Court‘s decision in United States v. Jones, 565 U.S. 400 (2012), supports reversing the district court‘s decision. In Jones, police attached a GPS tracking device to a car owned by the defendant‘s wife without a valid warrant. Id. at 402-03. The
According to Phillips, Jones‘s “common-law trespassory test” for Fourth Amendment violations requires suppression in this case. Id. at 409. Jacobsen, Phillips says, merely stands for the proposition that a private search eliminates an individual‘s reasonable expectation of privacy with respect to an item‘s contents. Thus, the fact that Windes had previously viewed the files containing child pornography on Phillips‘s computer only eliminated his reasonable expectation of privacy with respect to those files. It did not, Phillips argues, give Sawyer the license to instruct Windes to again “physically intrude[]” on Phillips‘s property—i.e., his computer—by “open[ing] the laptop computer, enter[ing] the password . . . navigat[ing] to the ‘phone folder’ and scroll[ing] through the images.” And, under Jones, that intrusion violated Phillips‘s Fourth Amendment rights.
This argument fails. Even if we attribute Windes‘s action to the officers and assume that those actions constituted a “trespass” of Phillips‘s property, Jacobsen, too, involved a trespass of the defendant‘s property. There, after the FedEx employees had opened the defendant‘s package and found
Moreover, our decision in Tosti, which postdates Jones, is consistent with our rejection of Phillips‘s argument. There, a computer technician uncovered child pornography on the defendant‘s computer and alerted the police. Tosti, 733 F.3d at 818-19. When two detectives arrived, without first obtaining a warrant, one of them “directed [the technician] to open the images in a ‘slide show’ format so that they would appear as larger images viewable one by one.” Id. at 819. The technician then “opened up the individual images” as the detective requested. Id. We held that, in light of the technician‘s prior search, Jacobsen dictated that these actions did not violate the defendant‘s Fourth Amendment rights. Id. at 821-22. Thus, we applied Jacobsen even though the technician, at the “direct[ion]” of the detective, arguably physically intruded on the defendant‘s computer
Indeed, this case may be a stronger case than Tosti for applying Jacobsen. When Windes, acting as a private person, discovered the child pornography on Phillip‘s computer, she had at least two options for bringing it to the attention of law enforcement. First, and impracticably, she could have entered the sheriff‘s office with laptop open and the child pornography displayed in plain view. Second, she could have entered with the laptop closed and waited until she was in a private setting before opening the laptop and navigating to the child pornography. Sensibly, she chose the second option. And the only direction she received from a law enforcement officer was aimed at ensuring that she would not intrude on Phillips’ privacy more than she already had.
In Coolidge v. New Hampshire, the Supreme Court observed in analogous circumstances that had the defendant‘s wife “wholly on her own initiative, sought out her husband‘s guns and clothing and then taken them to the police station to be used as evidence against him, there can be no doubt under existing law that the articles would later have been admissible in evidence.” 403 U.S. at 487 (citing Burdeau, 256 U.S. 465). Phillips argues that because Windes chose the second option, the evidence uncovered pursuant to her actions at the sheriff‘s office must be suppressed. “[I]t would seem strange” if the result in “cases of this kind . . . [would] ‘turn on the fortuity’ of whether and to what extent the private person put the contents back into [or closed] the container before the police appeared,” 1 LaFave, supra, § 1.8(b) (quoting Jacobsen, 466 U.S. at 120 n.17).
Tosti‘s application of Jacobsen to permit “the warrantless searches of [the defendant‘s] computer,” id. at
Phillips‘s objections to the use of evidence obtained from his computer therefore all fail.
We also reject Phillips‘s challenge to three conditions of his supervised release. Because Phillips signed a valid appeal waiver, he may argue on appeal only that those conditions “exceed[] the permissible statutory penalty [for the crime] or violate[] the Constitution.” United States v. Watson, 582 F.3d 974, 981 (9th Cir. 2009). Yet our precedents establish the legality of all the challenged conditions. See United States v. Gibson, 998 F.3d 415, 422-23 (9th Cir. 2021) (risk notification), cert. denied, No. 21-6465 (Jan. 10, 2022); United States v. Ochoa, 932 F.3d 866, 869-71 (9th Cir. 2019) (prohibiting access to material depicting sexually explicit conduct involving adults to
The judgment of conviction is AFFIRMED.