United States v. Phillips

32 F.4th 865

UNITED STATES of America, Plaintiff-Appellee,

v.Daren W. PHILLIPS, Defendant-Appellant.

No. 20-10304

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 15, 2021 San Francisco, California

Filed April 29, 2022

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.

Before: Richard A. Paez and Michelle T. Friedland, Circuit Judges, and Edward R. Korman,^* District Judge.

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 temporary password to her own email account. She was then able to reset the password and enter Phillips's computer.

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, especially due to the nature of the material on Phillips'[s] laptop."

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 18 U.S.C. § 2252A(a)(l), and one count of possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B). He moved to suppress the evidence from the laptop on the ground that, because Sawyer directed Windes to access Phillips's computer without his 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. After holding a hearing, the district judge denied the motion.

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 supervised release subject to certain conditions that he also challenges on appeal.

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, 41 S.Ct. 574, 65 L.Ed. 1048 (1921) ; Coolidge v. New Hampshire , 403 U.S. 443, 485–90, 91 S.Ct. 2022, 29 L.Ed.2d 564 (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, 41 S.Ct. 574. 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, 96 S.Ct. 3021, 49 L.Ed.2d 1046 (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. While she may not have had the authority to conduct the search on that password-protected laptop, she was clearly acting as a private party. Having discovered child pornography, and thus finding herself in possession of contraband, she decided to take and show it to law enforcement authorities. And when she was informed by a law enforcement officer that she should access the computer so that he could see what she wanted to show him, he made it clear that he did not wish to see anything more than what she had already seen, and she acted in line with those instructions.

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, 104 S.Ct. 1652, 80 L.Ed.2d 85 (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, 104 S.Ct. 1652. 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, 104 S.Ct. 1652. The Supreme Court held that the FedEx employees' earlier private search and their decision to alert law enforcement to their findings made the agent's warrantless search...