Sammy Lamb

Balancing Executive Discretion and Judicial Review:

The Importance of Factual Analysis for Private Search Doctrine

The Fourth Amendment was designed to protect citizens from unbridled government

intrusion into their personal lives.1 The Framers instituted a particularized warrant requirement in

order to search a person and seize his effects.2 This requirement was created to protect against

government power while preserving individual freedom and privacy.3 Historically, Fourth

Amendment protections have been split into two categories for determining violations -

residences and physical containers. 4 The home is typically afforded more protection because of

its capacity to store large quantities of private information as compared to a suitcase or

something similar.5 However, with the ever-changing modern world, all three branches of the

government are having to grapple with the development of technological devices that have the

logical qualities of a home yet have the physical qualities of a container.6

The judiciary specifically has been trying to determine the extent to which warrant

exceptions should apply to electronic devices.7 In Riley v. California, the Supreme Court

determined that the search incident to arrest exception will not allow a police officer to search

through the data on a phone without obtaining a warrant.8 Its ruling was decided based off the

extensive privacy interest at stake as compared to the government interest of protecting the

officer’s safety and preventing the destruction of evidence.9 The Court held that a government

official should not be able to exploit this exception in an attempt to skirt obtaining a warrant for

searching through an individual’s private information.10 Although the law has been determined

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regarding the search incident to arrest exception for electronic devices, the private search

doctrine has not yet been handled by the Supreme Court for cell phones and computers, leading

to a circuit split regarding how the warrant exception should be applied.11

The Sixth Circuit has determined its stance on the private search doctrine in U.S. v.

Lichtenberg. 12 According to this court, for an officer to take advantage of not obtaining a warrant

and using the private search exception, he must have “virtual certainty” that what he will

discover from his search is what the private party informed him about.13 The court determined

that an officer will never be substantially certain that his search follows the private search

because of the vast amounts of information that an electronic device may hold.14 This analysis

strays from the design of the Fourth Amendment, and it prizes a technicality over securing

individual freedom and advancing government interests congruently.

This comment explains how the private search doctrine should be applied using a factual

analysis of the scope of the agent’s search of an electronic device to ensure the Fourth

Amendment protects against general searches while advancing the interest of the government.

Part A will discuss the background of the private search doctrine as applied to physical

containers, allowing a further understanding of its purpose. Part B will describe how the facts

were erroneously construed in Lichtenberger to allow fear of government intrusion to cloud the

opinion of the Sixth Circuit. Part C will offer the standard for analyzing private searches of

electronic devices that creates a system of efficient government practices which balances the

power appropriate amongst the government branches.

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A. History of the Private Search Doctrine as Applied to Physical Containers

The private search doctrine is an exception to the Fourth Amendment’s warrant

requirement.15 This exception allows government officials to examine evidence already

discovered by a private individual without obtaining a warrant.16 The design of the private search

doctrine enables law enforcement agents to use evidence that has been delivered or shown to

them from private actors.17 The law has determined that after one’s privacy has been infringed

upon by another private individual, law enforcement should be allowed to use the evidence

discovered to prevent crime and promote safety.18

The private search doctrine is clearly defined by the two original cases espousing it: U.S.

v. Walter and U.S. v. Jacobsen. In Walter, the Court determined that the FBI agents went outside

the scope of the initial search by projecting the films discovered by the private individuals.19 The

private party only observed the suggestive drawings and explicit names in the box with the films,

but they never actually viewed what was on the films.20 Because the government officials

conducted a search that went beyond the scope of the initial private search, it was deemed

unconstitutional without a warrant.21

In Jacobsen, on the other hand, the Court held that the DEA agent possessed “virtual

certainty” the items in the package were what the private individuals had observed, and,

therefore, he was just confirming their description.22 The Jacobsen court focused on the fact that

the private search doctrine should only be used to re-examine evidence as to ensure a warrant is

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not being obtained from false or mistaken testimony by witnesses.23 This means that the scope of

the government search is crucial because it should just be confirming what was already described

to the agent and not frustrating the individual’s privacy anymore than it has already been

frustrated.24

U.S. v. Bowers helps further clarify the private search doctrine, especially in the context

of child pornography. The roommates of Bowers discovered a photo album in his room that

contained photos depicting sexually explicit children.25 The roommate notified the local law

enforcement officials who came to the apartment to confirm that the album was in fact child

pornography. 26 The court determined that the law enforcement was allowed to view the contents

of the album without obtaining a warrant because they learned nothing beyond what the private

party had already explained and infringed no legitimate expectation of privacy that had not

already been infringed upon.27 The government was not breaking the seal between private and

public because it had already been broken by the roommates.28

The private search doctrine essentially allows a government agent to duplicate a search

conducted by a private individual to confirm the private party’s examination and conclusions

regarding the evidence.29 The scope is defined by what the initial party discovered and what an

agent would need to confirm the evidence was not false or misrepresented. 30 The courts should

always be considering the reasonableness of the search and the balance between the privacy

rights of the individual with the interest of the government.31

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B. The Paralysis of Fear - Erroneous Decision Making in Lichtenberger’s Application of the

Private Search Doctrine to Electronic Devices

In Lichtenberger, the Sixth Circuit Court decided that for an officer to re-examine

evidence from an initial private search, the law enforcement agent must have “virtual certainty”

that what the individual will show him is exactly what she already saw.32 In this case, Ms.

Holmes, Lichtenberger’s girlfriend, found sexually-explicit photos of minors on Lichtenberger’s

computer after he was arrested earlier that morning due to a warrant being out for his arrest for

failing to register as a sex offender.33 After discovering the pornography, Ms. Holmes contacted

the police department, so she could reveal what she had found.34 Officer Houston arrived shortly

thereafter and asked Ms. Holmes to show him what she had seen on Lichtenberger’s computer.35

Although Ms. Holmes was unsure of whether she showed Officer Houston the same exact photos

as before, she revealed to him only sexually-explicit photos of children on the laptop.36 After

only viewing five to six photos, Officer Houston confirmed Ms. Holmes’ testimony as to the

material on the computer and had probable cause to obtain a warrant to search and seize

Lichtenberger’s electronic devices.37

According to the scope test, the officer should only view material that he is substantially

certain has already been uncovered by the private party’s statements.38 The purpose of the scope

test is to limit the government’s ability to ride on the heels of a private search.39 The courts need

to ensure that government agents are not essentially obtaining general warrants as a result of the

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private search.40 However, the Lichtenberger court took their role as overseer to an extreme by

examining the mere potential for executive offense rather than the reality of it.41

In this case, Officer Houston did not try to search the computer beyond the sexually

offensive material that Ms. Holmes had informed him about.42 Although he might not have seen

the exact photos Ms. Holmes had previously viewed, he only saw pictures of child

pornography. 43 The court stated that the test was “virtual certainty” but in this case, the Sixth

Circuit seemed to require exact certainty.44 It defended its decision based of the privacy interest

at stake due to the presence of an electronic device.45 In reality, this argument served as a mere

facade to force government agents to perform duplicate searches or obtain a search warrant,

thereby limiting their discretion.46 The Litchenberger court considered “how much information

the government stands to gain when it re-examines the evidence” rather than how much

information the government does actually gain by re-examining the evidence. 47 This court feared

what an officer might do with the private search doctrine rather than what the officer actually did

in this scenario.48

C. Application of the Private Search Doctrine to Electronic Devices

Although the Litchenberger court attempted to create a standard for the application of the

private search doctrine for electronic devices, the court essentially destroyed it in regards to

computers because of the potential for discovery of private information.49 The easiest solution is

to force officers to always obtain a warrant before observing any person’s private electronic

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devices;50 another solution is to make officer’s conduct a duplicate search of the initial private

actor.51 However, the most justiciable approach would be to examine the scope of a government

official’s re-examination by whether or not he obtained the information revealed to him by the

private party or more information beyond the scope of the initial search.

A critic of this solution might argue that this will waste the judiciary’s time and resources

because it will require a fact specific analysis.52 Is this not the whole point of the judiciary

though, to determine cases and controversies, not policy? By letting this approach play itself out,

each branch of government will be entitled to its power. The legislature can continue to define

the scope of the government’s interest, the executive can exercise discretion as to its use of

power granted, and the judiciary can ensure that individual rights are not trampled upon.

The courts, however, should not be making it impossible for the other branches to

exercise their rightful authority by making decisions based on mere technicalities, as seen in

Lichtenberger. 53 Instead, courts should determine the application of the private search doctrine

on a fact specific basis, not fearing the potential abuse, but analyzing the decisions made by the

officers and the extent of their search as compared to the private party. 54 Electronic devices may

change the world we live in, but technology does not have to change the balance of powers

amongst the branches of government.

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1 See Riley v. California, 573 U.S. 373, 403 (2014); Walter v. U.S., 447 U.S. 649, 653 (1990);
U.S. v. Lichtenberger, 786 F.3d 478, 482 (6th Cir. 2015). See generally Kendall Van Ameyde,
Note, Defining the Limits of the Private-Search Doctrine in an Expanding Digital Landscape, 10
ALB. GOV’T L. REV. 452, 457 (2017).
2 U.S. CONST. amend. IV. See U.S. v. Jacobsen, 466 U.S. 109, 113 (1984) (“A ‘search’ occurs

when an expectation of privacy that society is prepared to consider reasonable is infringed. A

‘seizure’ of property occurs when there is some meaningful interference with an individual’s
possessory interest in that property.”).
3 See Riley, 573 U.S. at 403; Ameyde, supra note 1, at 482.

4 See Orin S. Kerr, Searches and Seizures in a Digital World, 119 HARV. L. REV. 531, 536, 533

(2005); Ameyde, supra note 1, at 482.

5 See Litchenberger, 786 F.3d at 484 (citing Kyllo v. U.S., 533 U.S. 27, 37 (2001)). See generally

Ameyde, supra note 1, at 456.

6 See Dylan Bonfigli, Note, Get A Warrant: A Bright-Line Rule for Digital Searches Under the

Private Search Doctrine, 90 S. CALIF. L. REV. 307, 331 (2017); Taylor J. Pfingst, Note,
Digitizing the Private Search Doctrine: Is a Computer a Container?, 44 HASTINGS CONST. L. Q.
371, 374 (2017).
7 See generally Litchenberger, 786 F.3d at 487.

8 Riley, 573 U.S. at 401.

9 Riley, 573 U.S. at 385. See Bonfigli, supra note 6, at 319; Pfingst, supra note 6, at 384.

10 Riley, 573 U.S. at 392. See Bonfigli, supra note 6, at 318.

11 See Pfingst, supra note 6, at 372.

12 786 F.3d at 485.

13 Id. at 488.

14 Id.

15 See U.S. v. Jacobsen, 466 U.S. 109, 117 (1984).

16 See id. See also Bonfigli, supra note 6, at 316.

17 See Jacobsen, 466 U.S. at 117.

18 See id. See also Ameyde, supra note 1, at 472; Bonfigli, supra note 6, at 313-316.

19 Walter v. U.S., 447 U.S. 649, 651-652 (1990).

20 Id.

21 Id. at 659. See Pfingst, supra note 6, at 375-76.

22 Jacobsen, 466 U.S. at 125.

23 Id. at 119.

24 Id. at 125. See also Pfingst, supra note 6, at 377.

25 U.S. v. Lichtenberger, 786 F.3d 478, 486 (6th Cir. 2015). (citing U.S. v. Bowers, 594 F.3d

524-525 (6th Cir. 2010)).

26 Id. at 486 (citing Bowers, 594 F.3d at 524).

27 Id. at 486 (citing Bowers, 594 F.3d at 526).

28 Id. at 486 (citing Bowers, 594 F.3d at 526). See Kerr, supra note 4, at 549.

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29 Litchenberger, 786 F.3d at 119.

30 See U.S. v. Runyan, 275 F.3d 449, 460 (5th Cir. 2001).
31 See Riley v. California, 573 U.S. 373, 381 (2014); Katz v. U.S., 389 U.S. 347, 359 (1967). See

also Ameyde, supra note 1, at 470; Bonfigli, supra note 6, at 312; Pfingst, supra note 6, at 374.
32 Litchenberger, 786 F.3d at 488-89.

33 Id. at 480.

34 Id.

35 Id.

36 Id. at 480-81.

37 Id. at 481.

38 Id. at 489.

39 Id. at 484.

40 Id. at 489. See also Kerr, supra note 4, at 565.

41 Litchenberger, 786 F.3d at 489. See also Kerr, supra note 4, at 553 (quoting U.S. v. Karo, 468

U.S. 705, 712 (1984) (“[W]e have never held that potential, as opposed to actual, invasions of
privacy constitute searches for purposes of the Fourth Amendment”).
42 Litchenberger, 786 F.3d at 481.

43 Id.

44 Id. at 488.

45 Id. See also Ameyde, supra note 1, at 473-76.

46 Litchenberger, 786 F.3d at 491.

47 Id. at 485-486.

48 Id. at 489; See Brief of Plaintiff-Appellant at 35, U.S. v. Lichtenberger, 786 F.3d 478 (6th Cir.

2015) (No. 14-3540).

49 See Litchenberger, 786 F.3d at 489.

50 Bonfigli, supra note 6, at 309.

51 Ameyde, supra note 1, at 485; Pfingst, supra note 6, at 372.

52 Bonfigli, supra note 6, at 335 (believing that his bright-line rule for obtaining a warrant will

keep the courts from “wading” into complex factual inquiries).

53 See 786 F.3d at 489.

54 See Kerr, supra note 4, at 578 (describing how judges are better at determining when a witness

made a good faith attempt at a search rather than understanding the technicalities of a search).

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