Petition for Writ of Certiorari — Brian Harling, Petitioner v. United States

No. _ _ _

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BRIAN HARLING,

Petitioner,

Versus

UNITED STATES OF AMERICA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

MARK O'BRIEN, ESQUIRE

Counsel of Record

Attorney at Law

O'BRIEN HATFIELD, P.A.

511 West Bay Street

Suite 330

Tampa, Fl,orida 33606

(813) 228-6989

mjo@markjobrien.com

QUESTION PRESENTED

This Court’s opinion in United States v. Jacobsen, 466 U.S. 109, 104 S.Ct. 1652,

80 L.Ed.2d 85 (1984), established that the Fourth Amendment applies only to

governmental action and is “wholly inapplicable to a search or seizure, even an

unreasonable one, effected by a private individual not acting as the agent of the

Government or with the participation or knowledge of any governmental official.” The

questions presented are:

Whether the private party exception to Fourth Amendment violations allows

law enforcement officers to view files on an electronic device, i.e. a laptop, USB thumb

drive, etc., that have not been viewed by a private party so long as that private party

has viewed other files on the same electronic device?

i

PARTIES TO THE PROCEEDING

All the parties to this proceeding are named in the caption.

ii

TABLE OF CONTENTS

QUESTION PRESENTED…….……………………………………………………….……..i

PARTIES TO THE PROCEEDING…………………………………………..………….….ii

TABLE OF CONTENTS………………………………………………….…………….……iii

INDEX TO APPENDICES………………………….………………………………..…..…..v

TABLE OF AUTHORITIES………………………..………………………………………..vi

PETITION FOR WRIT OF CERTIORARI…………………………………………………1

OPINIONS BELOW………………………………………………………………..………….1

JURISDICTION………………………………………………………………………………..1

RELEVANT CONSTITUTIONAL AND STATUTORY PROVISIONS………..………2

STATEMENT OF THE CASE…………………………………………………………..……2

A. Statement of jurisdiction in the lower courts, in accordance with

this Court’s Rule 14(1)(g)(ii), and suggestion of justification for

consideration, as suggested under Rule 10……………………...…………………2

B. Factual Background………………………………………………………………..….3

C. Procedural History in the District Court……………………………………..…….5

D. Eleventh Circuit’s Consideration of the Matter……………………….…………..6

REASONS FOR GRANTING THE PETITION……………………….…………………..7

A. There is Acknowledged Conflict Amongst Appellate Courts on

Whether the Private Party Exception to the Fourth Amendment

Applies to Agents of the Government’s Searches of Electronic

Devices that Exceeds the Original Search Conducted by the

Private Party……………………………………………………………………………7

B. In Light of United States v. Jacobsen, 466 U.S. 109 (1984), the

Eleventh Circuit’s Position is Wrong………………………………………………11

iii

C. This Case Squarely Presents a Likely Recurring Issue of

Substantial Legal and Practical Importance…………………………………..…14

CONCLUSION………………………………………………………………………………17

iv

INDEX TO APPENDICES

APPENDIX A

OPINION AND JUDGMENT OF THE UNITED

STATES COURT OF APPEALS FOR THE ELEVENTH

CIRCUIT (8/28/2017)………………………………………………...A1

APPENDIX B

ORDER DENYING MOTION FOR REHEARING OF

THE UNITED STATES COURT OF APPEALS FOR THE

ELEVENTH CIRCUIT (11/27/2017)………………………….….A22

APPENDIX C

JUDGMENT OF THE UNITED STATES DISTRICT

COURT FOR THE MIDDLE DISTRICT OF FLORIDA,

FORT MYERS DIVISION, Doc. # 154 (3/3/2015)……………...A24

APPENDIX D

ORDER DENYING MOTION TO SUPPRESS OF THE

UNITED STATES DISTRICT COURT FOR THE MIDDLE

DISTRICT OF FLORIDA, FORT MYERS DIVISION,

Doc. # 92 (8/5/2014)………………………………………………...A29

APPENDIX E

REPORT AND RECOMMENDATION AS TO MOTION

TO SUPPRESS OF THE UNITED STATES DISTRICT

COURT FOR THE MIDDLE DISTRICT OF FLORIDA,

FORT MYERS DIVISION, Doc. # 74 (4/29/2014)…………..….A47

v

TABLE OF AUTHORITIES

CASES

Rann v. Atchison, 689 F.3d 832 (7th Cir. 2012)………………………………..………….8

Riley v. California, -- U.S. --, 134 S.Ct. 2473 (2014)……………………………….passim

United States v. Andrus, 483 F.3d 711 (10th Cir. 2007)…………………………...…….7

United States v. D’Andrea, 648 F.3d 1 (1st Cir. 2011)……………………….………….11

United States v. Donnes, 947 F.2d 1430 (10th Cir. 1991)………………...…………….15

United States v. Goodale, 738 F.3d 917 (8th Cir. 2013)…………………..…………….10

United States v. Heckenkamp, 482 F.3d 1142 (9th Cir. 2007)……………….………….7

United States v. Jacobsen, 466 U.S. 109 (1984)…………………………………….passim

United States v. Lichtenberger, 786 F.3d 478 (6th Cir. 2015)…………….…….9, 10, 12

United States v. Lifshitz, 369 F.3d 173 (2d Cir. 2004)……………………...…………….7

United States v. Moore, 943 F.2d 884 (8th Cir. 1991)……………………..…………….15

United States v. Oliver, 630 F.3d 397 (5th Cir. 2011)……………………..…………….15

United States v. Richards, 301 Fed. Appx. 480 (6th Cir. 2008)……...……...…..…….15

United States v. Ross, 456 U.S. 798 (1982)……………….………………………….…….7

United States v. Runyan, 275 F.3d 449 (5th Cir. 2001)……………………………….8, 9

United States v. Story, 327 Fed. Appx. 422 (4th Cir. 2009)…………………………….14

United States v. Tosti, 733 F.3d 816 (9th Cir. 2013)…………………………………….10

United States v. Walser, 275 F.3d 981 (10th Cir. 2001)……………..………………….16

Walter v. United States, 447 U.S. 649 (1980)………………………………….………….12

STATUTES

vi

18 U.S.C. § 2252……………………….……………………………………………………….5

18 U.S.C. § 3231……………………….……………………………………………………….2

18 U.S.C. § 3742……………………….……………………………………………………….2

28 U.S.C. § 1254……………………….……………………………………………………….1

28 U.S.C. § 1291……………………….……………………………………………………….2

U.S. Const., amend. IV……………………….……………………….……………….passim

RULES

Eleventh Circuit Rule 35……………………….……………………….…………….………1

Federal Rule of Appellate Procedure 35……………………….…………………..……….1

Supreme Court Rule 14……………………….………………………………………………2

vii

PETITION FOR WRIT OF CERTIORARI

Brian Harling respectfully petitions for a writ of certiorari to review the

opinion of the United States Court of Appeals for the Eleventh Circuit entered in this

matter on August 28, 2017, affirming the judgment of the United States District

Court for Middle District of Florida, Fort Myers Division.

OPINIONS BELOW

The opinion of the United States Court of Appeals for the Eleventh Circuit is

unpublished and appears at United States v. Harling, 705 Fed. Appx. 911 (11th Cir.

2017). It is also attached as Appendix A.

The judgment of the United States District Court for the Middle District of

Florida, Fort Myers Division, is unpublished and is attached at Appendix C. The

district court’s findings on this matter, also unpublished, appear in the records

attached as Appendix D-E.

JURISDICTION

The court of appeals entered its order on August 28, 2017. Pursuant to Federal

Rule of Appellate Procedure 35 and 11th Circuit Rule 35, a timely petition for

rehearing and rehearing en banc was filed on September 18, 2017. Ultimately, the

United States Court of Appeals for the Eleventh Circuit denied the petition on

November 27, 2017. The jurisdiction of this Court is invoked under 28 U.S.C. §

1254(1).

RELEVANT CONSTITUTIONAL AND STATUTORY PROVISIONS

1

This case involves application of the Fourth Amendment to the United States

Constitution, providing that: “The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches and seizures shall not be

violated, and no Warrants shall issue, but upon probable cause, supported by Oath

or affirmation, and particularly describing the place to be searched, and the persons

or things to be seized.”

STATEMENT OF THE CASE

A. Statement of jurisdiction in the lower courts, in accordance with this

Court’s Rule 14(1)(g)(ii), and suggestion of justification for

consideration, as suggested under Rule 10.

The Petitioner, Brian Harling, faced federal criminal charges in the district

court under 18 U.S.C. § 3231, which grants exclusive original jurisdiction to district

courts over offenses against the laws of the United States. The district court entered

judgment on March 3, 2015. Mr. Harling filed a timely notice of appeal on March 3,

2015. The Eleventh Circuit exercised jurisdiction over Mr. Harling’s appeal under 28

U.S.C. § 1291, which authorizes review of final judgments of the district courts, and

18 U.S.C. § 3742(a), which authorizes review of sentences.

This case concerns an important Fourth Amendment question that is the

subject of an acknowledged conflict among federal courts of appeals and also an

important federal question that conflicts with the Court’s decision in United States v.

Jacobsen, 466 U.S. 109, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984): whether the recognized

private search exception to Fourth Amendment violations allows for law enforcement

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officers to exceed the scope of a private party search by viewing files on an electronic

device that were not the same files previously viewed by the private party?

B. Factual Background.

Before his arrest, Mr. Harling was the owner of a residence located at 4790

Cleveland Avenue in Fort Myers, Florida. Mr. Harling ultimately entered into an

agreement to lease his residence to a tenant based upon an advertisement he placed

in Craigslist. The agreed move-in date was July 1, 2013. Mr. Harling finished moving

out of his apartment on the same day that the tenant was scheduled to move in. Prior

to leaving the apartment, Mr. Harling texted the tenant and advised her that if forgot

any of his belongings, to please let him know. During the next two days, the tenant

completed her move-in. Pet. App. A48, 51.

Nicole Dunwody (hereafter referred to as “Nicole”) was the new tenant that

had entered into the agreement with Mr. Harling. While Nicole was unpacking her

belongings at the condo on July 4, 2013, she bumped the interior door frame of the

hall closet with a large drawing pad, causing three USB thumb drives to fall from

above the interior door frame. Rather than calling Mr. Harling and advising him that

he had accidentally left something behind, Nicole took the three drives over to her

mother’s house, Ada Dunwody (hereafter referred to as “Ada”). Pet. App. A52.

Upon arriving at her mother’s house, Nicole gave the three drives to her

mother and Ada put the first one in the computer. When accessing the drives,

thumbnail images were generated and Nicole testified that they did not make them

any larger. Nicole saw the images on the first thumb drive and then stepped away.

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Nicole did not view any more of the drives or their contents. Ada, on the other hand,

continued to look and ultimately put the second and third thumb drives into the

computer. Ada put in the second drive and observed pictures and videos of more

children that appeared to be minors. Ada did open one of the videos to see if she could

identify who the adult was in the video, but immediately closed it. Ada then put in

the third drive, but was unable to see anything. While Ada continued to look at the

drives, Nicole had stepped away and contacted law enforcement. Pet. App. A53.

Nicole returned to the condo where she met Officer Domonic Zammit of the

Fort Myers Police Department, to whom she described what she and her mother had

seen on the first USB thumb drive and what her mother had viewed on the others.

Nicole turned over all three USB thumb drives in a Ziploc bag. The drives were not

marked in any way to decipher which drive was which. Nicole then showed Officer

Zammit where the three USB thumb drives had fallen from and Officer Zammit

discovered two additional USB thumb drives. Pet. App. A53. Officer Zammit put the

two new drives in a plastic bag, separate from those given to him by Nicole. Pet App.

A60.

Officer Zammit then met FMPD Sergeant Doro at the Sergeant’s office and

they both reviewed the two new thumb drives to see if they could locate who they

belonged to. They also reviewed all five USB thumb drives “to make sure that what

Ms. Nicole Dunwody said she observed on them actually [was] accurate and on the

thumb drives. … The officers accessed only one picture and one video on each of the

five USB drives.” Pet. App. A60-61.

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C. Procedural History in the District Court.

On July 24, 2013, a federal grand jury returned in the Middle District of

Florida, Ft. Myers Division, a one count indictment charging that from an unknown

date but by at least May 2, 2011 through on or about July 4, 2013, in Lee County,

Florida, the Appellant did knowingly possess one or more matters which contained a

visual depiction that had been transported in interstate and foreign commerce, and

which had been produced using materials which had been transported, by any means

including by computer, where the production of such visual depiction involved the use

of a minor engaging in sexually explicit conduct, and such visual depiction is of such

conduct, in violation of Title 18 United States Code, Sections 2252(a)(4)(B) and

2252(b)(2). (Doc. 14).

On November 8, 2013, the Appellant filed a Motion to Suppress wherein the

Appellant sought to suppress all evidence obtained from five certain USB drives, the

Appellant’s residences, and all evidence and statements which resulted from the

search of those devices. Pet. App. A47. On April 29, 2014, Honorable Judge Carol

Mirando issued a Report and Recommendation as to the Appellant’s Motion to

Suppress, wherein it was recommended that the motion be denied. Pet. App. A47.

Ultimately, on August 5, 2014, the district court adopted the Report and

Recommendations and denied the Appellant’s Motion to Suppress. Pet. App. A29.

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D. Eleventh Circuit’s Consideration of the Matter.

On appeal, a three-judge panel of the Eleventh Circuit held that no Fourth

Amendment violation occurred when law enforcement searched the contents of all

five USB thumb drives. As it related to the first two USB thumb drives, the Court

found that Nicole and Ada were private citizens who acted in their own accord when

they viewed the contents of the drives. Pet. App. A10. The Court found that law

enforcement’s subsequent search of those two USB thumb drives was not in violation

of the Fourth Amendment because law enforcement “replicated a search already

conducted by private citizens who acted independently, observed what they thought

to be child pornography, and shared their concerns with the officers, who then

confirmed that the drives contained what Nicole and Ada reported.” Pet. App. A1011. As it relates to the third, fourth and fifth USB thumb drives, the Court found that

the initial search by law enforcement was in violation of the Fourth Amendment

because Nicole and Ada had not viewed any content on the drives prior to the

warrantless search. Pet. App. A11. However, the Court found that the evidence was

still admissible under the independent-source doctrine. Pet. App. A11-13.

Mr. Harling moved for a Petition for Rehearing and Rehearing En Banc after

the Eleventh Circuit rendered its decision. Mr. Harling argued that the panel’s

decision was contrary to precedent of the United States Supreme Court as it related

to private party searches. However, Mr. Harling’s petitions were ultimately denied.

No Judge in regular active service on the Eleventh Circuit panel requested that the

Court be polled on rehearing en banc. Pet. App. A22.

6

REASONS FOR GRANTING THE PETITION

A. There is Acknowledged Conflict Amongst Appellate Courts on

Whether the Private Party Exception to the Fourth Amendment

Applies to Agents of the Government’s Searches of Electronic Devices

that Exceeds the Original Search Conducted by the Private Party.

The Eleventh Circuit’s decision in this case widens the conflict over whether,

or in what circumstances, a private party’s search of electronic devices then provides

law enforcement with the ability to conduct a search of the same device, and to what

extent, without being seen as a violation of the Fourth Amendment. This split arises

after courts have analogized the files on an electronic device to closed containers such

as suitcases or briefcases. By looking at the files on a device in that manner, the

courts have found that individuals have a reasonable expectation of privacy within

those electronic files because they would have an expectation of privacy in the

contents of a closed container. See, United States v. Ross, 456 U.S. 798, 822-23 (1982).

As a result, it has been consistently found that accessing information stored in a

computer or similar electronic storage device will implicate the owner’s reasonable

expectation of privacy in the information. See, United States v. Heckenkamp, 482 F.3d

1142, 1146 (9th Cir. 2007) (finding there is a reasonable expectation of privacy in a

personal computer); United States v. Lifshitz, 369 F.3d 173, 190 (2d Cir. 2004)

(holding that individuals generally possess a privacy interest in their home

computers); United States v. Andrus, 483 F.3d 711, 718 (10th Cir. 2007) (“finding that

“[a] personal computer is often a repository for private information the computer’s

owner does not intend to share with others. For most people, their computers are

their most private spaces.” (internal quotation omitted)). Unfortunately, because

7

there are also distinguishing features between an electronic device and a closed

physical container, such as the depth of information contained inside an electronic

device, issues surrounding an individual’s privacy interest in the separate files within

an electronic device have begun to surface.

The Eleventh Circuit joins the Fifth and Seventh Circuit in holding that police

officers do not exceed the scope of a private party search if officers examine an

electronic device after the private party did, even if the officers examine more files on

the device than the private party previously had. In the first of these decisions, United

States v. Runyan, 275 F.3d 449 (5th Cir. 2001), the Fifth Circuit entertained a case

after the defendant’s wife provided law enforcement with several computer disks

containing child pornography. The Fifth Circuit compared the computer disks to

“containers” for purposes of analyzing them under the Fourth Amendment. Id. The

Fifth Circuit ultimately found that the wife had viewed some files on one of the disks,

and as a result, law enforcement’s subsequent viewing of that specific computer disk

was not a violation of the defendant’s Fourth Amendment right, even if the officers

examined more files than the wife had. Id. at 464-65. (Emphasis added). The

Fifth Circuit did find the officers exceeded the private party search when they viewed

additional computer disks the wife had not personally viewed because the officers

could not have concluded with “substantial certainty” that all disks contained child

pornography. Id.

The second of these decisions, Rann v. Atchison, 689 F.3d 832 (7th Cir. 2012),

adopted the holding in Runyan after finding that its holding was persuasive and

8

finding that the Seventh Circuit had not yet ruled on the application of Jacobsen to

searches of digital storage devices. The Seventh Circuit cited to the opinion in Runyan

and found its holding was

Sensible because it preserves the competing objectives underlying the

Fourth Amendment’s protections against warrantless police searches. A

defendant’s expectation of privacy with respect to a container unopened

by the private searchers is preserved unless the defendant’s expectation

of privacy in the contents of the container has already been frustrated

because the contents were rendered obvious by the private search.

Moreover, this rule discourages police from going on “fishing

expeditions” by opening closed containers.

Atchison, 689 F.3d at 837 (citing Runyan, 275 F.3d at 463-64).

The Eighth, Sixth, Ninth and First Circuits have taken the contrary position.

In United States v. Lichtenberger, 786 F.3d 478 (6th Cir. 2015), the Sixth Circuit

ultimately found that police officer’s warrantless search of the defendant’s laptop

computer exceeded the scope of his girlfriend’s search earlier that day, because there

was no “virtual certainty” that the officer’s review of the files was limited to the files

that the girlfriend had viewed earlier that day. Id. at 485. The Sixth Circuit’s holding

was based, in large part, on “the extensive privacy interests at stake in a modern

electronic device like a laptop…” Id. The Sixth Circuit relied heavily on the Supreme

Court’s decision in Riley v. California, -- U.S. --, 134 S.Ct. 2473, 189 L.Ed.2d 430

(2014).

Of particular relevance to our inquiry, the Supreme Court discussed the

particular qualities of electronic devices that must be considered. Cell

phones, the Court noted, “are in fact minicomputers that also happen to

have the capacity to be used as a telephone … One of the most notable

distinguishing features of modern cell phones is their immense storage

capacity.” Id. at 2489. That storage capacity

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“Has several interrelated consequences for privacy. First, a cell

phone collects in one place many distinct types of information –

an address, a note, a prescription, a bank statement, a video –

that reveal much more in combination than any isolated record.

Second, a cell phone’s capacity allows even just one type of

information to convey far more than previously possible. The sum

of an individual’s private life can be reconstructed through a

thousand photographs labeled with dates, locations, and

descriptions; the same cannot be said of a photograph or two of

loved ones tucked into a wallet. Third, the data on a phone can

date back to the purchase of the phone, or even earlier. A person

might carry in his pocket a slip of paper reminding him to call Mr.

Jones; he would not carry a record of all his communications with

Mr. Jones for the past several months, as would routinely be kept

on a phone.”

[Riley, 134 S.Ct. at 2489]. Thus, the likelihood that an electronic device

will contain 1) many kinds of data, 2) in vast amounts, and 3)

corresponding to a long swath of time, convinced the Riley Court that

officers must obtain a warrant before searching such a device incident

to arrest. Id.

Lichtenberger, 786 F.3d at 487-88 (citing Riley). The Sixth Circuit found that when

considering the extent of information that can be stored on an electronic device such

as a laptop computer, the “virtual certainty” threshold in Jacobsen applies to whether

there was virtual certainty that the police officers were viewing the same files as the

private party and that there was virtual certainty that the remaining files would have

the exact same content. Id.

In sync with the Lichtenberger holding, the Eighth, Ninth and First Circuits

adopted similar rulings. See, United States v. Goodale, 738 F.3d 917 (8th Cir. 2013)

(finding that the private search exception applied because the officer’s search of the

defendant’s computer internet history did not go beyond or further than the private

party’s search); United States v. Tosti, 733 F.3d 816 (9th Cir. 2013) (holding that

detectives did not exceed scope of prior private search of defendant’s computer

10

because detectives viewed same photographs previously viewed); United States v.

D’Andrea, 648 F.3d 1 (1st Cir. 2011) (finding the same).

Although there is a clear split amongst the circuits, all decisions that discuss

the private search exception rely on the United State Supreme Court decision in

United States v. Jacobsen, 466 U.S. 109 (1984). The problem with applying Jacobsen

in these cases revolves around the fact that the search of electronic devices and the

privacy rights that attach to said devices is much more complicated than the search

of a physical package. Only this Court’s review can establish a national rule that

eliminates inconsistent views about how far government agents can search an

electronic device before that search is deemed as going beyond the scope of an original

private search.

B. In Light of United States v. Jacobsen, 466 U.S. 109 (1984), the Eleventh

Circuit’s Position is Wrong.

The Eleventh Circuit opinion held that the Petitioner’s Fourth Amendment

rights had not been violated when law enforcement searched the USB thumb drives

because their search fell within the private search doctrine. The opinion relies on the

opinion in United States v. Jacobsen, 466 U.S. 109 (1984) as its sole basis for coming

to this conclusion.

In United States v. Jacobsen, 466 U.S. 109 (1984), the United States Supreme

Court was faced with the question as to whether a governmental search of a private

package violated the Fourth Amendment after a private party had searched that

same private package. The Court discussed how the first clause of the Fourth

Amendment protects people from several things, including unreasonable searches by

11

governmental action. Id. at 1656. However, the Fourth Amendment does not protect

people from a search “effected by a private individual not acting as an agent of the

Government or with the participation or knowledge of any governmental official.” Id.

(citing, Walter v. United States, 447 U.S. 649, 662, 100 S.Ct. 2395, 2404, 65 L.Ed. 2d

410 (1980) (BLACKMUN, J., dissenting). The facts of Jacobsen, as summarized by

the Sixth Circuit in Lichtenberger, are crucial to the Court’s ultimate holding and

analysis:

In 1981, Federal Express (“FedEx”) employees were inspecting a

package – a box wrapped in brown paper – that had been damaged in

transit. Id. at 111, 104 S.Ct. 1652. The employees opened the box and

discovered that it contained a duct-tape tube about ten inches long

nestled among wadded sheets of newspaper. Id. The employees removed

the tube from the box and cut a slit in the end of the tube. Id. Inside,

they found multiple zip-lock bags of a white, powdery substance. Id. The

employees placed the bags back in the tube, put the tube back in the box,

and called the Drug Enforcement Administration (“DEA”). Id. A DEA

agent arrived and found the box open on a desk. Id. The agent observed

that the tube inside had a slit cut into it, and removed the bags from the

tube. Id. He then opened each bag and removed a trace amount of the

powder for an on-site field test. Id. at 111-12, 104 S.Ct. 1652. The test

positively identified the substance as cocaine. Id. at 112, 104 S.Ct. 1652.

Based on the agent’s findings, the DEA procured a warrant to search the

place to which the package had been addressed and subsequently

arrested the defendants. Id.

Lichtenberger, 786 F.3d at 481-82 (citing Jacobsen, supra). In light of the

circumstances, the Court ultimately found that the DEA’s search was not in violation

of the Fourth Amendment because the search replicated that of the FedEx employees.

466 U.S. at 120. The Court found that once a private individual takes action and

conducts a search, even one that violates an individual’s expectation of privacy, the

Fourth Amendment does not forbid the government from replicating the search, as

12

long as government officials constrain their search to the parameters of the

search conducted by the private individual. Id. at 115. (Emphasis added). The

Court held that the agent’s viewing of “what a private party had freely made available

for his inspection did not violate the Fourth Amendment.” Id. at 119. In other words,

the government’s ability to conduct a warrantless “follow-up” search of this kind is

expressly limited by the scope of the initial private search. Id. at 116.

Pursuant to Jacobsen, a government agent is allowed to replicate the search of

a private party without obtaining a search warrant and without violating the Fourth

Amendment so long as the search does not exceed the scope of the search conducted

by the private party. An electronic device and the files therein are to be looked at as

“closed containers”. As a result, in the instant case, a Fourth Amendment violation

would not have occurred had law enforcement conducted a search within the

parameters of the search conducted by Nicole and Ada, meaning that law

enforcement would have only been allowed to look at the same files opened by Nicole

or Ada (i.e., the same “containers”). In light of the evidence, the government agents

that viewed the thumb drives did not know which of the five thumb drives were

viewed by Nicole or Ada and did not know which files within the thumb drives had

been viewed by either private party. The Eleventh Circuit’s finding that no Fourth

Amendment violation had occurred in light of the Court’s opinion in Jacobsen was

incorrect because per Jacobsen, the search by governmental agents exceeded the

scope of the private search and thus, a violation did occur.

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C. This Case Squarely Presents a Likely Recurring Issue of Substantial

Legal and Practical Importance.

Citizens of the United States have become tech-savvy, as the technology

around us advances every day. Unfortunately, some citizens use that technology to

commit crimes, while others use technology as a convenient storage device for

evidence of their crimes. Regardless, with these new technological advances, the issue

of what privacy rights are protected within those advances continues to surface, as

well as questions about which devices governmental agents are allowed to search

without a warrant.

Our society, as a whole, continues to grow towards a more pro-electronic way

of storing personal effects. When the United States Constitution was created, it

specifically secured the people’s right to be secure in their “papers.” Now that the

people’s “papers” are changing into electronic documents located on laptop computers,

iPads, iPhones, and thumb drives, it is imperative that this Court determine, to what

extent, one “paper” is protected within an electronic device in comparison to other

“papers”.

Historically, searches that were subject to potential Fourth Amendment

violations were searches conducted of physical items or places, and the bounds of

what could be searched were quite obvious. For example, if law enforcement searched

a room or container, there has seldom been a question as to what constitutes a

violation of an individual’s privacy interest as it relates to a private search, mainly

because the bounds of what was searched by the private party was obvious. See,

United States v. Story, 327 Fed. Appx. 422 (4th Cir. 2009) (finding that initial search

14

of hotel room by police officer did not exceed scope of search conducted by hotel

employees under private search exception); United States v. Oliver, 630 F.3d 397 (5th

Cir. 2011) (holding that government’s search of a cardboard box was not a violation

of the Fourth Amendment because it did not exceed the scope of private individual’s

search of box); United States v. Richards, 301 Fed. Appx. 480 (6th Cir. 2008)

(concluding that police search of storage unit did not extend beyond scope of private

search and therefore there was no Fourth Amendment violation); United States v.

Donnes, 947 F.2d 1430 (10th Cir. 1991) (officer exceeded scope of private search after

officer opened camera lens case found inside glove when the private party had only

looked inside the glove and not the case); United States v. Moore, 943 F.2d 884 (8th

Cir. 1991) (concluding that DEA’s subsequent search of packing box was not a Fourth

Amendment violation because the search did not exceed the original search by the

private express company employee). However, now that the private search exception

is being applied to the search of electronic devices, the question of when law

enforcement must secure a warrant versus searching the device without one is a

question whose answer is not as clear.

As identified in Riley, the search of an electronic or digital device is

fundamentally different than physical objects because digital devices can contain

“millions of pages of text, thousands of pictures, and hundreds of videos.” Riley, supra,

134 S.Ct. at 2489. The Court also found that electronic or digital devices are different

because they contain highly sensitive data, including “[i]nternet search and browsing

history,” “[h]istoric location information,” “transaction records,” as well as data from

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a variety of new mobile “apps” that relate to private activities and interests. Riley,

supra, 134 S.Ct. at 2490. The difference between electronic devices and physical

objects has been discussed by other courts as well. See, United States v. Walser, 275

F.3d 981, 986 (10th Cir. 2001) (observing that “[t]he advent of the electronic age and

… the development of desktop computers that are able to hold the equivalent of a

library’s worth of information, go beyond the established categories of constitutional

doctrine. Analogies to other physical objects, such as dressers or file cabinets, do not

often inform the situations we now face as judges when applying search and seizure

law”).

Although a thumb drive does not equate to a cell phone, the data contained on

a thumb drive is comparable to that stored on a cell phone. A thumb drive can hold

several gigabytes of data and can store an unlimited amount of information including

medical records, contact lists, personal photos, and other types of confidential

documents. Due to the significant amount of information that can be stored on a

thumb drive or other electronic device, it is imperative that boundaries be established

by the Court as to what government agents are allowed to search after a private

search has been conducted. Does a private person opening one single file that contains

an image of child pornography provide law enforcement with free range to access

every file on an electronic device or does that search of one file only provide law

enforcement with access to that one single file?

This case presents an ideal opportunity to resolve this important and recurring

issue. The issue was squarely presented and thoroughly discussed. The case’s

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procedural history reveals no disputed issues of fact nor any jurisdictional

questions

that would interfere with this Court's resolution of the question. The issue has been

thoroughly

analyzed by numerous federal and state courts. The issue is ripe for

review, and nothing would be gained from delaying review further.

CONCLUSION

For the reasons stated above, the Petitioner

respectfully submits that the

petition for a writ of certiorari should be granted.

Respectfully submitted,

Brian Harling, Petitioner

Date: February 9, 2018

, ESQUIRE

Counsel f Record

Attorney at Law

O'BRIEN HATFIELD, P.A.

511 West Bay Street

Suite 330

Tampa, Fforida 33606

(813) 228-6989

mjo@markjobrien.com

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