Seventh Circuit holds warrantless search of digital storage devices after private "search" did not violate Fourth Amendment

In Rann v. Atchinson, __ F.3d __ (7th Cir. 2012), the Seventh Circuit held that a law enforcement search of two digital storage devices for child pornography which were handed over by the defendant/offender's wife and daughter, respectively, did not violate the Fourth Amendment. The defendant was arguing ineffective assistance of counsel (by way of federal habeas), based on his lawyer's failure to attempt to suppress the child pornography evidence obtained from the digital devices when the police searched them without a warrant.

After the victim (age 15) reported sexual assault by her biological father to the police and was interviewed, she returned home and obtained a digital camera memory card and returned it to the police. The card contained images of her own sexual assault. Subsequent to this, the mother of the victim turned in a zip disk with additional images of her daughter being sexually assaulted, along with images of her other daughter being assaulted as well. According to the police, neither individual was prompted to bring these digital devices to them, nor were any law enforcement offers present when each individual retrieved the devices.

The defendant's main contention was that:

when the police searched the digital storage devices and viewed the images on them, they exceeded the scope of the private search conducted by [the victim] and her mother. Since the subsequent search by the police exceeded the scope of the initial private search, so his argument runs, the police needed a warrant to “open” the digital storage devices and search them because the record contains no evidence that [the victim] or her mother knew the digital storage devices contained images of child pornography prior to the police viewing. Since the police did not obtain a warrant prior to opening the digital storage devices and viewing the images, he claims their doing so constituted an unconstitutional warrantless search in violation of the Fourth Amendment.

Now, I'm going to stop here for a second. The court states that the defendant and mother conducted a "private search."  By this, I would argue, one would assume that such a search would include viewing the files on the digital devices to determine if they did in fact contain child pornography. However, there is no indication anywhere in this case that such a search took place. Granted, there is an assumption made that they would not have turned in the devices if they did not know there was CP on the devices, but I just want to point out that nowhere is there evidence that either individual described to the police what exactly was on the devices (or described a single picture contained on them).

Back to the case - the court states that private searches are not subject to the Fourth Amendment, and police do not need to "avert their eyes" to the evidence obtained from such searches. However, police cannot exceed the scope of the original private search to obtain evidence. The standard from Jacobsen relating to private searches is "individuals retain a legitimate expectation of privacy even after a private individual conducts a search, and 'additional invasions of privacy by the government agent must be tested by the degree to which they exceeded the scope of the private search.'"

The question of how to handle police searches of digital devices searched privately, first, was one of first impression for the court. However, the court adopted the Fifth Circuit's approach in Runyan, a 2001 case with similar factual circumstances. Runyan held that "a search of any material on a computer disk is valid if the private party who conducted the initial search had viewed at least one file on the disk." The Fifth Circuit "analogiz[ed] digital media storage devices to containers" and "ruled that 'police exceed the scope of a prior private search when they examine a closed container that was not opened by the private searches unless the police are already substantially certain of what is inside that container based on the statements of the private searches, their replication of the private search, and their expertise.'" In Runyan, multiple digital devices were turned over to the police, not all of which had been looked at by the personal who was the "private searcher," so only those devices that the searcher had looked at one or more files on, were admitted.

Here, the court held that the victim and mother essentially had to know what was on the disks when they turned them in, and thus the police could be substantially certain what they contained. The court held this over the objection of the defendant that there was no direct evidence of this, and it was purely conjecture:

[The defendant] argues that the Illinois Appellate Court relied on conjecture when it found that [the victim] and her mother knew the contents of the devices they delivered to the police, pointing to the Illinois Appellate Court's finding that “[a]lthough no testimony exists regarding how the images on the zip drive came to be there, it seems highly likely that [the victim's] mother [compiled] the images on the zip drive herself, downloading them from the family computer.” Rann argues that this is conjecture, yet he offers nothing but conjecture and speculation in its place.

The court justified its holding by stating that "the contrary conclusion—that [the victim] and her mother brought digital media devices to the police that they knew had no relevance to [the victim's] allegations—defies logic."

The court went on to state that:

even if the police more thoroughly searched the digital media devices than S.R. and her mother did and viewed images that S.R. or her mother had not viewed, per the holding in Runyan, the police search did not exceed or expand the scope of the initial private searches. Because S.R. and her mother knew the contents of the digital media devices when they delivered them to the police, the police were “substantially certain” the devices contained child pornography.

I've seen some chatter on Twitter that this case is #Troubling. I agree and disagree. I disagree, in that Easterbrook wrote this opinion, in a typical judicially restrained manner - cabining it to the particular circumstances of this case, and especially to the fact that the victim and the mother only turned in two devices, both of which were assumed to have CP (whereas in Runyan, many devices were turned in, in a sort of "grab bag" of evidence.")

I agree that it is troubling because I can't see how you can use the analogy of a container with respect to digital devices. Sure, it is easy when it comes to camera memory cards, but how about hard drives? If the wife had turned in the entire computer hard drive, could the police have searched the entire thing, if she said she had opened a single picture and found CP?

Another very good point to be made in regards to this case is this - what would have been so challenging about getting a warrant to search these devices, based on the information provided by the mother and victim?

Lastly, I put "search" in the title in quotations, and had an aside above about the lack of explicit evidence of the mother or victim viewing the files on the digital device because I think a flaw in the case is the absence of any elaboration on how turning those devices in was the search.