Last week, the Sixth Circuit handed down a decision in closely-watched criminal case that potentially has significant ramifications for the Fourth Amendment’s protection of digital data from warrantless searches, and possibly creates a space for the Supreme Court to again weigh in on this issue. In United States v. Lichtenberger, the Sixth Circuit largely removed the government’s case against a sex offender when it affirmed the suppression of the main evidence against him (pornographic images) on the grounds that they were unconstitutionally obtained during a search of the defendant’s computer by police.
Lichtenberger started when the defendant failed to register as a sex offender while living with his girlfriend’s mother. After police arrested Lichtenberger for this, his girlfriend hacked into his laptop and discovered pornographic images of minors. The girlfriend called the police, and she subsequently showed the some of the images (hidden in various nested folders with cryptic numeric names) to an officer at the officer’s direction.
Declining to extend the Fourth Amendment’s stalwart protection of the home to laptops, the Sixth Circuit nonetheless affirmed the district court’s suppression of the images and other evidence gained based on the laptop’s contents. However, the Court disagreed with the district court’s reasoning: after an extensive explanation of how the Supreme Court’s landmark case in this regard—United States v. Jacobsen—applied, the Sixth Circuit held that the proper metric for evaluating the alleged infringement of Fourth Amendment rights in the case was the extent to which the police officer’s search stayed within the confines of the girlfriend’s private search (not, as the district court held, whether the girlfriend acted as an agent of law enforcement in showing the officer the images).
Relying heavily on the Supreme Court’s recent decision in Riley v. California (holding that officers may not conduct warrantless searches of cell phone data incident to arrest) for its balancing of the intrusion of individual privacy against governmental interests, the Sixth Circuit held that the police officer’s search in Lichtenberger had exceeded the scope of the girlfriend’s prior search of the defendant’s laptop because there was no “virtual certainty” that the subsequent demonstration of photos would reveal only what the girlfriend had already seen. (In fact, she herself could not recall which photos she had seen or shown the officer.)
The Sixth Circuit also reasoned that its own precedent supported its holding this case, as did its sister circuits’ cases. However, some have noted that this case creates a possible split with the Fifth Circuit insofar as that Circuit has held that the private search of a single file on a device will open the entire device to government scrutiny. In any event, with Lichtenberger, the Sixth Circuit has weighed in on a hotly-contested area of constitutional law in a notable case worth following.