Opposition Brief — Tywan Sykes, Petitioner v. United States
Supreme Court briefNov 22, 2023
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No. 23-5429
________________________________________________________________
________________________________________________________________
IN THE SUPREME COURT OF THE UNITED STATES
_______________
TYWAN SYKES, PETITIONER
v.
UNITED STATES OF AMERICA
_______________
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_______________
BRIEF FOR THE UNITED STATES IN OPPOSITION
_______________
ELIZABETH B. PRELOGAR
Solicitor General
Counsel of Record
NICOLE M. ARGENTIERI
Acting Assistant Attorney General
W. CONNOR WINN
Attorney
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217
________________________________________________________________
________________________________________________________________
QUESTIONS PRESENTED
1.
Whether Facebook, a private company, acted as an agent
of the government when it monitored and reviewed petitioner’s
sexually
explicit
conversations
with
a
minor
on
Facebook’s
messaging platform, which Facebook then reported to the National
Center for Missing and Exploited Children.
2.
Whether petitioner’s Tennessee convictions for statutory
rape and aggravated statutory rape qualify as offenses “relating
to the sexual exploitation of children” for purposes of the second
sentencing enhancement in 18 U.S.C. 2251(e).
(I)
ADDITIONAL RELATED PROCEEDINGS
United States District Court (E.D. Tenn.):
United States v. Sykes, No. 18-cr-178 (Nov. 10, 2021)
United States Court of Appeals (6th Cir.):
United States v. Sykes, No. 21-6067 (Apr. 24, 2023)
(II)
IN THE SUPREME COURT OF THE UNITED STATES
_______________
No. 23-5429
TYWAN SYKES, PETITIONER
v.
UNITED STATES OF AMERICA
_______________
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_______________
BRIEF FOR THE UNITED STATES IN OPPOSITION
_______________
OPINIONS BELOW
The opinion of the court of appeals is reported at 65 F.4th
The order of the district court denying petitioner’s motion
867. 1
to suppress is not published in the Federal Reporter but is
available at 2021 WL 165122. The district court’s order overruling
petitioner’s objection to the recidivist sentencing enhancement
under 18 U.S.C. 2251(e) is unreported.
As filed on the Court’s electronic docket, the appendix
to the petition for a writ of certiorari (“Appendix 1”) is not
separately labeled. In addition, the appendix does not contain
the entirety of the court of appeals’ opinion and does not contain
the opinion of the district court regarding the motion to suppress.
For ease of reference, this brief refers to the reported version
of those opinions throughout.
1
2
JURISDICTION
The judgment of the court of appeals was entered on April 24,
2023.
A petition for rehearing was denied on June 16, 2023 (2023
WL 4111475).
The petition for a writ of certiorari was filed on
August 22, 2023.
The jurisdiction of this Court is invoked under
28 U.S.C. 1254(1).
STATEMENT
Following a jury trial in the United States District Court
for the Eastern District of Tennessee, petitioner was convicted on
one count of enticing a minor to engage in sexually explicit
conduct for the purpose of producing a visual depiction of such
conduct, in violation of 18 U.S.C. 2251(a); one count of attempting
to entice a minor to engage in sexual activity, in violation of 18
U.S.C. 2422(b); one count of committing a felony offense against
a minor while subject to a requirement to register as a sex
offender, in violation of 18 U.S.C. 2260A; and one count of
possessing
child
2252A(a)(5)(B).
pornography,
Judgment 1-2.
in
violation
of
18
U.S.C.
The district court sentenced
petitioner to 45 years of imprisonment, to be followed by 30 years
of supervised release.
affirmed.
1.
with
a
Judgment 3-4.
The court of appeals
65 F.4th 867.
In 2018, petitioner entered into a sexual relationship
15-year-old
girl
named
M.D.
65
F.4th
Presentence Investigation Report (PSR) ¶ 18.
at
873,
882;
They had multiple
sexual encounters, and at petitioner’s request, M.D. sent him
3
several sexually explicit photographs of herself.
873-875, 881-882.
65 F.4th at
Petitioner and M.D. often discussed their past
encounters and future plans through text messages and through
private messages sent over the Facebook messaging platform.
Id.
at 873, 881-882.
Facebook monitors its online platform for harmful content
involving children, including child pornography, for the “business
purpose” of “keeping its platform safe and free from harmful
content and conduct.”
2021 WL 165122, at *6; see D. Ct. Doc. 56
(Aug. 17, 2020) (declaration from Facebook employee).
requires
and
other
“electronic
Federal law
communication
service
provider[s]” who become aware of content indicating a violation of
certain federal offenses involving children to report that content
to the National Center for Missing and Exploited Children (NCMEC),
a private, nonprofit entity.
18 U.S.C. 2258E(6); see 18 U.S.C.
2258A(a), 2258D(a). NCMEC then makes a report to a federal, state,
or local law enforcement agency.
18 U.S.C. 2258A(c).
The law,
however, disclaims any “require[ment]” that a service provider
“monitor any user, subscriber, or customer,” “monitor the content
of any” of those persons’ “communication[s],” or “affirmatively
search” for any apparent or planned violations of federal law.
18
U.S.C. 2258A(f).
In October 2018, Facebook detected and then manually reviewed
petitioner’s
communications
with
M.D.
and
determined
that
petitioner had possibly committed federal crimes against children.
4
65 F.4th at 873.
Facebook sent the messages to NCMEC, which
examined the messages and forwarded them to local law enforcement.
Ibid.
Law enforcement officers then interviewed M.D., executed
search warrants on M.D.’s and petitioner’s Facebook accounts and
petitioner’s cell phone, and arrested petitioner.
Id. at 873,
878.
2.
A federal grand jury in the Eastern District of Tennessee
charged petitioner with one count of enticing a minor to engage in
sexually explicit conduct for the purpose of producing a visual
depiction of such conduct, in violation of 18 U.S.C. 2251(a); one
count of attempting to entice a minor to engage in sexual activity,
in violation of 18 U.S.C. 2422(b); one count of committing a felony
offense against a minor while subject to a requirement to register
as a sex offender, in violation of 18 U.S.C. 2260A; and one count
of
possessing
child
pornography,
in
violation
of
18
U.S.C.
2252A(a)(5)(B). 65 F.4th at 873-874. Petitioner moved to suppress
the evidence obtained as a result of Facebook’s review of his
Facebook account on the theory that NCMEC is a government entity
and that Facebook acted as a government agent when reviewing his
account without a warrant.
2021 WL 165122, at *2.
The district court denied the suppression motion.
2021 WL
165122, at *2-*7, *9.
It assumed without deciding that NCMEC is
a government entity.
Id. at *3.
But the court applied Sixth
Circuit precedent in United States v. Miller, 982 F.3d 412 (2020),
cert. denied, 141 S. Ct. 2797 (2021), to find that Facebook acted
5
as a private actor when it detected, reviewed, and forwarded
petitioner’s
and
165122, at *3-*6.
M.D.’s
sexually
explicit
messages.
2021
WL
The court accordingly found no Fourth Amendment
violation in Facebook’s initial review, or in NCMEC’s and law
enforcement’s subsequent review, of those messages.
Id. at *6-
*7.
3.
counts.
After a jury trial, petitioner was convicted on all
65 F.4th at 875.
One of petitioner’s counts of conviction, 18 U.S.C. 2251, has
a
sentencing
provision
setting
forth
a
default
sentencing range of 15-30 years of imprisonment.
statutory
See 18 U.S.C.
2251(e). Section 2251(e) also contains two enhancements that apply
based on a defendant’s criminal history.
The first enhancement
provides that if the defendant:
has one prior conviction under this chapter [chapter 110 of
title 18], section 1591, chapter 71, chapter 109A, or chapter
117, or under section 920 of title 10 (article 120 of the
Uniform Code of Military Justice), or under the laws of any
State relating to aggravated sexual abuse, sexual abuse,
abusive sexual contact involving a minor or ward, or sex
trafficking of children, or the production, possession,
receipt,
mailing,
sale,
distribution,
shipment,
or
transportation of child pornography, such person shall be
fined under this title and imprisoned for not less than 25
years nor more than 50 years[.]
18 U.S.C. 2251(e).
The second enhancement states that if the
defendant:
has 2 or more prior convictions under this chapter, chapter
71, chapter 109A, or chapter 117, or under section 920 of
title 10 (article 120 of the Uniform Code of Military
Justice), or under the laws of any State relating to the
sexual exploitation of children, such person shall be fined
6
under this title and imprisoned not less than 35 years nor
more than life.
Ibid.
In this case, the Probation Office determined that petitioner
had
two
prior
state
offenses
recidivist enhancements.
relevant
to
Section
2251(e)’s
In 1998, petitioner was convicted of
statutory rape under Tenn. Code Ann. § 39-13-506(a) (1997), after
he had sex with a minor more than four years his junior.
see 65 F.4th at 875, 888.
PSR ¶ 67;
And in 2012, petitioner was convicted
of aggravated statutory rape under Tenn. Code Ann. § 39-13-506(c)
(Supp. 2008), after he had sex with a minor more than ten years
his junior.
PSR ¶ 82; see 65 F.4th at 875, 888.
Based on those
convictions, the Probation Office recommended that petitioner be
subject to Section 2251(e)’s second enhancement.
PSR ¶ 111.
Petitioner objected on the theory that his Tennessee convictions
were not for offenses “relating to the sexual exploitation of
children,” which in his view was limited solely to state offenses
relating to the production of child pornography.
Sent. Tr. 7-9,
25.
The
district
court
overruled
petitioner’s
objection
and
applied Section 2251(e)’s second enhancement, noting that multiple
courts
of
appeals
had
petitioner proposed.
rejected
the
narrow
Sent. Tr. 23-28.
construction
that
The court ultimately
sentenced petitioner to a total of 45 years of imprisonment, to be
followed
by
30
years
of
supervised
release.
Id.
at
39-40.
7
Specifically, the court imposed two concurrent 35-year prison
terms for petitioner’s Sections 2251 and 2422(b) convictions; a
concurrent 10-year prison term for his Section 2252A conviction;
and a mandatory, consecutive ten-year term of imprisonment for his
Section 2260A conviction.
4.
Id. at 43.
The court of appeals affirmed petitioner’s convictions
and sentence.
a.
65 F.4th 867.
The court of appeals determined that the district court
correctly denied petitioner’s motion to suppress the evidence
derived from Facebook’s review of his Facebook account.
at 876-877.
without
Like the district court, the court of appeals assumed
deciding
nonetheless
65 F.4th
found
that
that
NCMEC
is
a
governmental
“Facebook’s
private
attributable to the government.”
Id. at 876.
three
tests
alternative
state-action
entity,
search
was
but
not
The court applied
outlined
in
its
prior
decision in Miller -- “a function test,” “a compulsion test”, and
“a nexus test” -- to determine whether Facebook had acted as an
agent of the government in reviewing the contents of petitioner’s
account on Facebook’s platform.
Id. at 876-877 (citations and
internal quotation marks omitted).
The court concluded that
Facebook had conducted a private search under any of these tests,
because its review of petitioner’s account was not carrying out “a
‘traditional and exclusive’ government function,” not compelled by
the reporting requirement in 18 U.S.C. 2258A, and not the product
of anything other than Facebook’s “independent business purpose
8
[of] keeping its platform safe and free of child-exploitation
content.”
b.
65 F.4th at 877.
The court of appeals also agreed with the district court
that the second recidivist enhancement in Section 2251(e) applied.
65 F.4th at 884-889.
Noting that the phrase “sexual exploitation
of
defined
children”
is
not
for
purposes
of
Section
2251’s
sentencing provision or otherwise, see id. at 885, the court
observed that the “plain meaning of ‘sexual exploitation’ is broad
and
covers
‘the
prostitution,
activity.’”
use
of
a
person,
pornography,
or
esp[ecially]
other
a
sexually
child,
in
manipulative
Id. at 887 (quoting Black’s Law Dictionary (11th ed.
2019)) (brackets in original).
The court of appeals also found that statutory structure
supports
reading
the
phrase
to
encompass
more
than
child-
pornography crimes, observing that the listed federal predicates
that likewise subject a defendant to the second enhancement include
“a variety of sexual abuse offenses,” including rape and sexual
assault.
65 F.4th at 887.
list of federal offenses
The court reasoned that such a “broad
* * *
suggests a congressional intent
to focus on a broad array of state sexual offenses” as well.
Ibid.
The court also observed that, among other relevant features of
Section 2251(e)’s background and history, Congress had amended
Section 2251(e) in other respects in 2006, while leaving the
relevant
phrase
intact,
and
that
elsewhere
in
the
same
2006
legislation, Congress had defined the term “offenses relating to
9
the sexual exploitation of children” to include “sexual abuse of
a minor” and other “offenses that go beyond the production of child
pornography.”
Id. at 888.
The court of appeals thus recognized that offenses “relating
to the sexual exploitation of children” include “child-sexualabuse offenses” like petitioner’s Tennessee rape convictions.
65
F.4th at 889; see ibid. (noting that such crimes entail “tak[ing]
sexual advantage of a child or early teen”) (citation omitted).
In doing so, the court aligned itself with the Third, Fourth, and
Eighth Circuits.
Id. at 885, 887-888 & n.6; see United States v.
Winczuk, 67 F.4th 11, 17-18 (1st Cir. 2023) (adopting similar
definition of statutory phrase), petition for cert. pending, No.
23-5619 (filed Sept. 14, 2023); United States v. Moore, 71 F.4th
392, 399 (5th Cir. 2023) (same), petition for cert. pending, No.
23-219 (filed Sept. 5, 2023).
that
the
Ninth
Circuit
had
And while the court acknowledged
adopted
the
narrow
reading
that
petitioner favored, see United States v. Schopp, 938 F.3d 1053,
1069 (2019), it found the Ninth Circuit’s analysis -- and in
particular that court’s heavy reliance on Section 2251’s title,
notwithstanding other relevant indications of statutory meaning -unpersuasive.
See 65 F.4th at 886-887.
ARGUMENT
Petitioner seeks review of whether NCMEC is a governmental
entity and whether, “[i]f the NCMEC is a Governmental Entity,” an
internet service provider should itself be treated as a government
10
agent for Fourth Amendment purposes when the provider reviews
content on its platform to detect child pornography and other
harmful content.
Pet. A; see Pet. 12-21.
But the court of appeals
did not decide the former question, and its determination that
acted
as
a
private
actor
messages
is
correct
and
in
does
reviewing
not
conflict
decision of this Court or another court of appeals.
has
denied
review
in
other
cases
petitioner’s
presenting
with
any
This Court
similar
Fourth
Amendment questions, see Rosenow v. United States, 143 S. Ct. 786
(2023) (No. 22-609); Powell v. United States, 139 S. Ct. 616 (2018)
(No. 18-6505); Richardson v. United States, 562 U.S. 982 (2010)
(No. 10-352), and it should follow the same course here.
Petitioner also renews his contention (Pet. 21-27) that the
second enhancement in 18 U.S.C. 2251(e) applies only to convictions
for state offenses involving the production of child pornography.
Petitioner’s arguments are similar to those raised in the petition
for a writ of certiorari in Moore v. United States, No. 23-219
(filed
Sept.
5,
2023).
For
the
reasons
explained
in
the
government’s brief in opposition in Moore, those contentions lack
merit and this question presented does not warrant further review.
See Br. in Opp. at 6-16, Moore, supra (No. 23-219). 2
We have served petitioner with a copy of the government’s
brief in opposition in Moore. The same question is also presented
in the pending petition in Winczuk v. United States, No. 23-5619
(filed Sept. 14, 2023).
2
11
1.
Petitioner first contends (Pet. 13-15) that this Court
should grant certiorari to decide whether NCMEC is a governmental
entity.
As he acknowledges, however (Pet. 12), the court of
appeals did not decide that question.
See 65 F.4th at 876; see
also 2021 WL 165122, at *3 (district court likewise declining to
decide that issue).
a
government
That is because, even assuming that NCMEC is
actor,
the
private-search
doctrine
would
still
foreclose petitioner’s Fourth Amendment claim so long as Facebook
is held to be a private actor.
See generally United States v.
Jacobsen, 466 U.S. 109 (1984); see also United States v. Miller,
982 F.3d 412, 426 (6th Cir. 2020), cert. denied, 141 S. Ct. 2797
(2021).
was
the
first
entity
to
examine
petitioner’s
messages with M.D., 65 F.4th at 873, such that (so long as Facebook
was not acting as a government agent, see pp. 12-15, infra) the
“initial invasions of” petitioner’s assumed privacy interest “were
occasioned by private action” and therefore did not implicate the
Fourth
Amendment, Jacobsen,
466
U.S.
at
115.
then
forwarded those messages to NCMEC, whose review “enabled [it] to
learn
nothing
that
had
not
previously
been
learned
during
[Facebook’s] private search.”
Id. at 120.
Accordingly, even if
NCMEC were a governmental entity, its review would have “infringed
no legitimate expectation of privacy” and would not have amounted
to a Fourth Amendment search. Ibid.; see
United States v. Powell,
925 F.3d 1, 6 (1st Cir.) (holding that the private search doctrine
12
applied where “[t]he images of the screenshots that NCMEC viewed
* * *
were precisely the ones that had already been viewed by the
private actor”), cert. denied, 139 S. Ct. 616 (2018).
Because the court of appeals had no need to decide the
question of NCMEC’s governmental status, and did not do so, this
Court’s review is unwarranted.
See Cutter v. Wilkinson, 544 U.S.
709, 718 n.7 (2005) (“[W]e are a court of review, not of first
view.”).
2.
Petitioner further contends (Pet. 15-21) that Facebook
acted as a government agent when it viewed his sexually explicit
messages with M.D.
As framed in the petition, however (Pet. A),
petitioner expressly hinges resolution of that second issue on a
prior resolution in his favor on the question whether NCMEC is a
government entity -- a question that, for reasons just discussed,
does not warrant this Court’s review.
See pp. 10-12, supra.
In
any event, the court of appeals, which assumed without deciding
that NCMEC was a governmental entity, 65 F.4th at 876, correctly
rejected his contention that Facebook was a state actor when it
discovered his messages, and the court’s determination of that
issue does not warrant this Court’s review.
a.
While the Fourth Amendment does not apply to searches or
seizures conducted by a private party on its own initiative, see,
e.g., Skinner v. Railway Labor Execs.’ Ass’n, 489 U.S. 602, 614
(1989), it does protect against such searches “if the private party
acted as an instrument or agent of the Government.”
Ibid.
The
13
determination of whether a private party should be deemed an agent
of the government for Fourth Amendment purposes “necessarily turns
on the degree of the Government’s participation in the private
party’s activities,
* * *
a question that can only be resolved
‘in light of all the circumstances.’”
Ibid. (quoting Coolidge v.
New Hampshire, 403 U.S. 443, 487 (1971)) (citations omitted).
Nothing
in
this
case
suggests
that
acted
as
a
government agent when it reviewed petitioner’s messages on its
platform.
Like “shopkeepers investigating theft by shoplifters,”
Miller, 982 F.3d at 423, Facebook monitored petitioner’s account
based on its independent business purpose of “keeping its platform
safe and free of” criminal activity -- here, “child-exploitation
content,” 65 F.4th at 877; see D. Ct. Doc. 56 (declaration from
Facebook employee).
And the company engaged in that monitoring
before law enforcement’s involvement in this matter.
See ibid.
Facebook therefore acted appropriately and “wholly on [its] own
initiative,” Coolidge, 403 U.S. at 487, in reviewing petitioner’s
communications.
See, e.g., United States v. Rosenow, 50 F.4th
715, 732-734 (9th Cir. 2022) (finding no government involvement in
Yahoo’s
and
Facebook’s
privately
initiated
searches
for
the
business purpose of creating safe and desirable platforms), cert.
denied, 143 S. Ct. 786 (2023). 3
Accord United States v. Bebris, 4 F.4th 551, 561-562 (7th
Cir.), cert. denied, 142 S. Ct. 489 (2021); Miller, 982 F.3d at
425-426; United States v. Ringland, 966 F.3d 731, 736 (8th Cir.
2020), cert. denied, 141 S. Ct. 2797 (2021); United States v.
Cameron, 699 F.3d 621, 637-638 (1st Cir. 2012), cert. denied, 569
3
14
b.
Petitioner appears to contend (Pet. 15-17, 20) that
Facebook should be deemed a government agent because 18 U.S.C.
2258A requires Facebook to report apparent instances of federal
crimes involving children to NCMEC and, in his view, encourages
Facebook to conduct private searches that trigger this obligation.
That contention is mistaken.
Section
2258A
imposes
a
limited
reporting
obligation
on
internet service providers like Facebook: when they learn of
“apparent violation[s]” of certain federal laws, they must report
the known facts and circumstances of those crimes to NCMEC.
U.S.C. 2258A(a)(2)(A); see 18 U.S.C. 2258A(a)(1).
18
Providers also
“may” report facts and circumstance that “indicate” a “planned or
imminent” violation of those laws.
and (2)(B).
18 U.S.C. 2258A(a)(1)(A)(ii)
But as the court of appeals observed below, Section
2258A explicitly
“disclaims
any
duty
on
the
part
of
service
providers to ‘monitor any user, subscriber, or customer of that
provider,’ ‘monitor the content of any communication of any [user,
subscriber, or customer],’ or ‘affirmatively search, screen, or
scan for [offending content].’” 65 F.4th at 877 (quoting 18 U.S.C.
2558A(f)) (brackets in original).
As other lower courts have
recognized, such a limited reporting obligation, devoid of any
monitoring or searching requirement, does not convert a private
U.S. 939 (2013); United States v. Richardson, 607 F.3d 357, 364365 (4th Cir.), cert. denied 562 U.S. 982 (2010).
15
party into a government actor for purposes of the Fourth Amendment.
See Rosenow, 50 F.4th at 730-731 (collecting cases).
3.
Petitioner
decision below.
provides
no
sound
reason
to
review
the
Although he suggests (Pet. 13) a circuit conflict
between the decision below and the Tenth Circuit’s decision in
United States v. Ackerman, 831 F.3d 1292 (2016), on whether NCMEC
is a governmental entity, that is not an issue that the decision
below resolves.
Moreover,
See 65 F.4th at 876; see also Pet. 13.
the
overall
consistent with Ackerman.
result
of
the
decision
below
is
There, a NCMEC analyst opened an e-mail
containing four attachments and viewed all four attachments, only
one of which a private party (AOL) had indicated to contain child
pornography.
Ackerman, 831 F.3d at 1294.
The Tenth Circuit took
the view that NCMEC was a government entity, id. at 1295-1299, and
then concluded that a Fourth Amendment violation had occurred on
the ground that “opening the email and viewing the three other
attachments” – i.e., the ones that
AOL had not viewed --
“was
enough to risk exposing private, noncontraband information that
AOL had not previously examined.”
Id. at 1306-1307.
But the Tenth
Circuit expressly declined to resolve the ultimate question at
issue in this case:
whether a government agent violates the Fourth
Amendment by opening an image after a private party already has
determined the file’s contents.
4.
Id. at 1306-1308.
At all events, irrespective of how petitioner’s first
two questions presented are resolved, suppression would not be
16
warranted because the good-faith exception to the exclusionary
rule would apply.
below.
34.
The government invoked the good-faith exception
D. Ct. Doc. 50, at 10-11 (Aug. 7, 2020); Gov’t C.A. Br. 33-
And appellate courts generally “have discretion to affirm on
any ground supported by the law and the record.”
Upper Skagit
Indian Tribe v. Lundgren, 138 S. Ct. 1649, 1654 (2018); see Smith
v. Phillips, 455 U.S. 209, 215 n.6 (1982).
The exclusionary rule is a “‘judicially created remedy’” that
is “designed to deter police misconduct.”
United States v. Leon,
468 U.S. 897, 906, 916 (1984) (citation omitted).
The rule does
not apply “where [an] officer’s conduct is objectively reasonable”
because suppression “cannot be expected, and should not be applied,
to deter objectively reasonable law enforcement activity.”
919.
Id. at
Instead, to justify suppression, “police conduct must be
sufficiently deliberate that exclusion can meaningfully deter it,
and sufficiently culpable that such deterrence is worth the price
paid
by
evidence.
the
justice
system”
for
the
exclusion
of
probative
Herring v. United States, 555 U.S. 135, 144 (2009).
“[E]vidence obtained from a search should be suppressed only if it
can be said that the law enforcement officer had knowledge, or may
properly
be
charged
with
knowledge,
that
unconstitutional under the Fourth Amendment.”
the
search
was
Leon, 468 U.S. at
919 (citation omitted).
In this case, it would have been reasonable for an officer to
believe -- like the district court and the court of appeals --
17
that the Fourth Amendment did not prohibit Facebook, NCMEC, or law
enforcement from reviewing petitioner’s communications with M.D.
“[S]earches
conducted
in
objectively
reasonable
reliance
on
binding appellate precedent are not subject to the exclusionary
rule.”
Davis v. United States, 564 U.S. 229, 232 (2011).
And
here, preexisting circuit precedent indicated that the actions at
issue were permissible.
the
private-search
See Miller, 982 F.3d at 421-431 (applying
doctrine
to
NCMEC’s
and
law
enforcement’s
review of images forwarded by Google); see also 65 F.4th at 876
(stating that “Miller controls [the] analysis here”).
Suppression
of the evidence would therefore be inappropriate in this case
regardless of the answer to petitioner’s first two questions
presented.
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
ELIZABETH B. PRELOGAR
Solicitor General
NICOLE M. ARGENTIERI
Acting Assistant Attorney General
W. CONNOR WINN
Attorney
NOVEMBER 2023
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