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All posts for the month January, 2015

Were the San Francisco police allowed to arrest a public defender in the courthouse hallway?

Posted by simmons.239@osu.edu on January 30, 2015

Posted in: Uncategorized. Tagged: Jamie Tillotson, public defender arrest, seizure, Tillotson. 2 comments

Yesterday the public defender’s office in San Francisco published a video (which has since gone viral) that shows police officers arresting a public defender inside a San Francisco courthouse. The police were attempting to take photos of an individual in the hallway of the courthouse, apparently because the police suspected him in another crime. The public defender, Jamie Tillotson, who was at the courthouse representing another client at the time, intervened in the situation and told the police not to take pictures. A plainclothes police officer asked her to move aside, asking for “two minutes so that we can take photos,” and Tillotson refused. The police officer then threatened to arrest her, and she responded “Please do.” The police then arrested her, handcuffed her, and took her to a police station where she was held for an hour and then released, apparently without being charged, though a police spokesman later said that the case was still “under investigation.”

Unsurprisingly, the public reaction to this incident has been overwhelmingly against the police action. Whether or not the police officers’ action was in fact legally justified, I have no doubt that the police are going to end up on the losing end of this battle. The optics of the video are incredibly damaging, and the bumper-sticker version of the event (“Police arrest defense lawyer in a courthouse for representing her client”) will drown out any legitimate argument the police may have for their actions. To make matters worse, the arresting officer in the incident was the subject of a federal civil rights investigation for racial profiling in 2013. Meanwhile the public defender comes off very well in the video– she appears calm, reasonable, and brave during her arrest. So even if the police did act within the law, there is no question that this was–to put it bluntly–a very stupid thing to do.

But as in the Google Glass case, there are some interesting legal issues lurking behind all of this media frenzy. Did the public defender have the legal right prevent the police from taking photographs? And were the police legally authorized to arrest her for her actions?

In response to the first question, the police argue (correctly) that they are perfectly entitled to take photos of individuals who are in a public place–as was the case here. The public defender has a couple of responses to this argument:

First, the public defender could argue that the photo-taking here was just a pretext so that the police could begin to interact with the suspect and ultimately ask questions of the suspect as part of their investigation. There is some evidence to support this–the police said that the photo session would take “about two minutes,” which seems unduly long if all they wanted to do was take pictures. Indeed, witnesses report that after the defense attorney was led away in handcuffs, the police did in fact ask questions of the suspect. But legally, none of that matters. Under McNeil v. Washington and Texas v. Cobb, the Sixth Amendment right to counsel is offense-specific: that is, even if an individual is represented by an attorney on one case, the police can still ask the individual questions about an unrelated case. And the Fifth Amendment right to remain silent does not exist unless the suspect is in custody (more on that in a second). Thus, the police were legally entitled to ask questions of the suspect (though of course the suspect was free to refuse to answer). Furthermore, whether or not the photo shoot was a pretext for questioning is irrelevant in this case, because the defense attorney intervened before the police began asking questions–she was objecting to the mere taking of the pictures. And on top of all of that, the defense attorney could not “order” the police to not take photos or not ask questions–all she could legally do was to advise the suspect to not stand still for the photos or to not answer any questions. From the video, it is a bit unclear exactly what the defense attorney was doing that offended the police officers, but it appears that she was standing in between the police officer and his camera, thus making it more difficult for the police to take their photos–an action which they were clearly legally allowed to do.

The second response to the police argument is a bit more subtle, but in the end may have merit: although the police were allowed to take photos and ask questions, it appears they may have been conducting an illegal seizure. Early on in the video the police officer tells the public defender “I just want to take some pictures, OK, and then he will be free to go.” Of course, the suspect should always be “free to go” unless the police have reasonable suspicion to detain him under Terry v. Ohio. Perhaps the suspect was not truly being seized–perhaps the statement “and then he will be free to go” was meant to be a figure of speech–but when police officers use that kind of language, a suspect could reasonably believe that he was in fact not free to go, thus creating a seizure according to United States v. Mendenhall. So the public defender was (arguably) correct to intervene, but not for the reason she stated–that is, not because the photos (or the possible questioning) was illegal, but because the police statements (and possibly actions) were creating an illegal seizure. Of course, if the police did have reasonable suspicion to detain the suspect, then the seizure was proper–this is a fact that we would need to know in order to correctly evaluate the police action.

So the police may or may not have been acting legally with regards to the suspect, depending on whether they had reasonable suspicion to detain him. But what about their actions towards the defense attorney herself–that is, their decision to arrest her? Was she committing a crime?

Once again, the public reaction to this question is overwhelmingly opposed to the arrest. Part of this is because the video shows the police officer telling the public defender that she is being “arrested for resisting arrest,” which sounds like an absurd tautology–what is the original basis of the arrest that she is allegedly “resisting?” But as it turns out, the California law known as “resisting arrest” (California Penal Code Section 148) is actually quite broad, and allows police officers to arrest anyone who “willfully resists, delays, or obstructs any public officer, peace officer, or an emergency medical technician . . . in the discharge or attempt to discharge any duty of his or her office or employment….” In other words, what most states call “Obstruction of Justice,” California includes as part of the crime “Resisting Arrest.”

So was Ms. Tillotson “resisting arrest?” First we have to know whether the police officers were “lawfully performing” their duties. As discussed above, this depends on (1) whether they actually seized the suspect; and (2) if so, whether they had reasonable suspicion that he was involved in criminal activity. If the police officers were illegally seizing the suspect, then there is no way the public defender could have been committing a crime by intervening. However, if the suspect had not been “seized,” or if the police had the right to seize him, then we need to ask whether the public defender was willfully delaying or obstructing the police officer’s actions. This seems to be a relatively easy element to prove. She was both delaying and obstructing the police officers from taking photographs and asking questions from the suspect, and her actions were certainly “willful”–she acted with the purpose of preventing the police officers from carrying out their duty.

Although this is a reasonable interpretation of the statute, its application in this context is worrisome, to say the least. Ms. Tillotson may not have had the right to interfere with the police investigation in this instance, but there is a strong public policy argument for giving defense attorneys wide latitude in these situations. As noted above, if the public defender had merely advised the suspect to walk away from the photo shoot and to refuse to answer questions, she would have merely been giving good advice to the suspect–in fact, she would have been doing her duty as the suspect’s attorney by protecting his rights. If she instead confronts the police (peacefully), tells them to cease their activities, and blocks their attempts to take a photo, has she really crossed the line from dutiful advocate into obstructer of justice?

And so in the end, the legal analysis brings us back to the same equitable considerations that we started with. It is certainly feasible that under a technical reading of the law, the public defender overstepped her bounds and the police had the legal authority to arrest her. But even if the police could win the legal battle, they are certain to lose the broader war. Given the inevitable (and easily foreseen) political and public relations disaster that the police are now facing, it is inconceivable that the need to take photos of this suspect was worth the repercussions that the police department will now face. Police officers have to remember: it is 2015; cameras are everywhere, and videos go viral.

United States Marshals ignore Kyllo and look through the walls of a house

Posted by simmons.239@osu.edu on January 23, 2015

Posted in: Circuit Court Cases, Searches of New Technologies. Tagged: Fourth Amendment, Jardines, Kyllo, radar device, Range-R. 1 comment

Last year, the United States Marshal’s Service tracked down a fugitive named Steven Denson to a house in Witchita, Kansas. Before they stormed the house, however, they took a sensible precaution and placed a radar device on the outside of the wall to determine the location of the individual in the house. They then entered the house, arrested the fugitive, and found a number of illegal guns as well.

The marshals had a warrant for Denson’s arrest, but they did not have a search warrant for the home. Thus, they were only permitted to enter the home if they had “reason to believe” that Denson was inside the home at the time. Denson challenged the entry into the home, arguing that the police officers only developed a reason to believe he was inside after using the radar device, which violated his Fourth Amendment rights.

The Tenth Circuit rejected Denson’s argument and held that the officers did not violate the Fourth Amendment. According to the court, the officers already had reason to believe that Denson was inside even before they used the radar device. Thus, the court applied the independent source doctrine from the Supreme Court’s holding in Murray v. United States and allowed the search to stand without resolving the question of whether the radar device violated Denson’s Fourth Amendment rights. Here is the Tenth Circuit’s description of the device:

the government brought with it a Doppler radar device capable of detecting from outside the home the presence of “human breathing and movement within.” All this packed into a hand-held unit “about 10 inches by 4 inches wide, 10 inches long.” The government admits that it used the radar before entering — and that the device registered someone’s presence inside. It’s obvious to us and everyone else in this case that the government’s warrantless use of such a powerful tool to search inside homes poses grave Fourth Amendment questions. New technologies bring with them not only new opportunities for law enforcement to catch criminals but also new risks for abuse and new ways to invade constitutional rights. See, e.g., Kyllo v. United States, 533 U.S. 27, 33-35 (2001) (holding that using warrantless thermal imaging to show activity inside a home violated the Fourth Amendment). Unlawful searches can give rise not only to civil claims but may require the suppression of evidence in criminal proceedings. We have little doubt that the radar device deployed here will soon generate many questions for this court and others along both of these axes. At the same time, in a criminal proceeding like ours the government is free to rely on facts gleaned independently from any Fourth Amendment violation.

This analysis seems cautious to a fault. There is no conceivable way that the use of the radar device is consistent with the Kyllo case. If law enforcement officers are conducting a Fourth Amendment search when they use a thermal imager to detect the emanations of heat inside of a home, then they are certainly conducting a Fourth Amendment search when they use a radar to detect the presence, movement, and location of individuals inside a house. And although these devices are apparently becoming more and more popular among law enforcement, they have certainly not risen to the level of being “in general public use,” as required by Kyllo.

The use of the radar device to establish probable cause is even more clearly unconstitutional given the Supreme Court’s recent case of Florida v. Jardines, which held that a drug-dog sniff at the front door of a house constituted a Fourth Amendment search. In Jardines, the court held that the use of a surveillance tactic which ordinarily does not implicate the Fourth Amendment becomes an unconstitutional search when it is used at the front door of a home. In the Tenth Circuit’s case, the court was reviewing a surveillance tactic that is more intrusive than the thermal imager in Kyllo and which involved a United States Marshall placing the device directly on the outer wall of a home–a location where an individual arguably has a greater expectation of privacy than the front door.

Regardless, the Tenth Circuit’s holding in this case was almost certainly correct. Even without the information from the radar device, the United States Marshals had sufficient evidence to establish probable cause (or at least “reason to believe,” which may be an even lower standard) that Denson was in the home. Denson was the primary account holder on the utility for the home; and he was unemployed and running from the police, and the electric meter was “going faster than normal”–all of which would lead the officers to believe that someone was home at the time. Furthermore, the use of the radar device by the marshals seems perfectly legitimate in this case–once the marshals had established probable cause to believe that Denson was inside, they used the device to ensure their safety for when they entered the house. This is a perfectly reasonable, non-investigatory use of the technology.

But even though the marshals acted properly and the Tenth Circuit reached the proper result, one could still hope that the court had been a little bolder with its dicta regarding the radar device. Surely the question of whether the use of the radar gun was consistent with Kyllo had been fully briefed and argued by both sides, and thus there was no reason not to firmly state that the use of this device to establish probable cause violates the Fourth Amendment. Instead, the court decided to avoid the issue and save it for another day. This inevitably means that in some future case, a law enforcement officer will use a radar device to establish probable cause in the fruitless hope that this kind of surveillance is constitutional–with the result that the defendant’s conviction will be overturned and a criminal will walk free. Stronger guidance on this point might have avoided that unfortunate result.

Probationers may have some Fourth Amendment rights after all

Posted by simmons.239@osu.edu on January 20, 2015

Posted in: Circuit Court Cases, Special Needs. Tagged: circuit split, Fourth Amendment, probationers, special needs, Warrantless search. 1 comment

In Griffin v. Wisconsin and United States v. Knights, the Supreme Court upheld warrantless searches of the homes of probationers as justified by the Fourth Amendment’s “special needs” doctrine. According to the Court, probation conditions served two purposes: rehabilitation and protecting society from future criminal violations by the probationer. Under the creative logic of the special needs doctrine, these are purposes unrelated to crime control and thus the usual requirements of warrants and probable cause to not apply to law enforcement searches of probationers. Also, probationers (like school children) have a lesser Fourth Amendment privacy interest than ordinary citizens. The Supreme Court also noted that in both Griffin and Knights, the sentencing court had explicitly set out a probation condition that allowed the police to conduct a warrantless search the probationer’s home. But the Court left open the question as to whether or not the constitutionality of the warrantless search depended on such an explicit condition, or whether the non-law enforcement purpose and reduced privacy interests of probationers alone was sufficient to permit such searches.

The Fifth and Eleventh Circuits ruled that probationers could not object to warrantless searches of their home even if this was not an explicit condition of their probation, but recently the Fourth Circuit came down on the other side of this issue. In United States v. Hill, 13-4806 (4th Cir. 2015), the court held that the probationers’ knowledge of the warrantless search condition in Griffin and Knights were “critical” to the Supreme Court’s determination that the probationers had a diminished expectation of privacy in their home. (A pre-Griffin case in the Fourth Circuit had already come to this conclusion, and the Fourth Circuit determined that none of the Supreme Court case law since then had explicitly overruled this principle). Thus, the police officers violated his rights when (acting with what was likely only reasonable suspicion) they entered his home with a drug dog and found narcotics behind a ceiling tile in the bathroom.

This creates a circuit split on this issue, though the issue is narrow enough that it seems doubtful that the Supreme Court will take notice. Meanwhile, the Fourth Circuit decision is unlikely to result in a significant setback for the government; the most probable effect of the ruling will be that prosecutors in the Fourth Circuit will now simply seek to add a warrantless search condition to every probationary sentence.

Can the government conduct warrantless overseas hacking? The Dread Pirate Roberts won’t let us find out.

Posted by simmons.239@osu.edu on January 14, 2015

Posted in: Searches of New Technologies. Tagged: Fourth Amendment, hacking, Silk road. 1 comment

For two years beginning in 2011, Ross William Ulbricht (using the pseudonym Dread Pirate Roberts) ran the Silk Road, an illicit web-based marketplace which specialized in selling illegal drugs. The FBI eventually caught up with Ulbricht and arrested him, and he is now on trial in the Southern District of New York. Ulbricht’s defense attorneys have been arguing that the government violated Ulbricht’s Fourth Amendment rights during their investigation. Specifically, the defense argues that the government hacked into a Silk Road server in Iceland, and from there obtained information which lead to various pen-trap orders and warrants to seize servers in the United States, as well as Ulbricht’s laptop and Facebook accounts. But without the initial access to the Iceland server, the government would not have been able to proceed with its investigation. In other words, the defense alleges, all of the evidence against Ulbricht is fruit of a poisonous tree.

The government responded with an affidavit from an FBI agent which held that the government investigators found the Iceland server through perfectly lawful means. The affidavit states that “the Internet protocol (“IP”) address of the [Iceland] Server was ‘leaking’ from the site due to an apparent misconfiguration of the user login interface by the site administrator”–that is, a bug in the login interface led the police to the server’s IP address. The government also argued in its brief that the search of the server was carried out by Icelandic authorities, so the Fourth Amendment does not apply, and that even if the Fourth Amendment did apply, a search of an American citizen’s property overseas need only be “reasonable”–which this was. Thus, the trial court had a number of interesting factual and legal questions to resolve.

But alas, Ulbricht was unwilling to take the procedural step that is necessary to allow the court to resolve these questions. Throughout the case, he has refused to acknowledge any personal privacy interest in the Iceland server–that is, he has denied any connection to the Iceland server (and to the Dread Pirate Roberts and the Silk Road). Thus, he did not have standing to challenge the government’s conduct–whatever it might have been–when it gained access to the server. In other words, the entire issue ended up being nothing more than a hi-tech version of a defendant’s catch-22–either deny ownership of the contraband and lose your right to challenge the search and/or seizure of the contraband, or admit to owning contraband which establishes your guilt. The Supreme Court has held that the prosecution cannot use that admission against you (except for impeachment, which is a significant exception)–but especially in a high-profile case like this, a defendant may still not be willing to make that admission.

Ulbricht’s unwillingness to take this step is unfortunate (though understandable), since a full analysis of the case could have led to discussions of a number of important issues. For example, if the government did indeed hack into the Silk Road login page (as alleged by the defendant), the government had no idea that the server was located outside the United States when it committed that hacking, and so the lower “international” standard should arguably not have applied to the governments actions.

And what type of “hacking” constitutes a search under the Fourth Amendment? If the government was able to gain access to the server (as it claims) by merely entering random characters into the login until the IP address appeared, wouldn’t this still be a search? Does a website’s server have to be protected by a certain level of security before its owner can claim a reasonable expectation of privacy in it? One the one hand, the defendant could argue that a server is like a home or an office, so the government would be conducting a Fourth Amendment search simply by entering the server without permission, even if there was no security preventing them from doing so. On the other hand, the government could argue that if any Internet user in the world can reach obtain the server’s IP address simply by playing around with the login page for a few minutes, then the owner of the server has revealed the location of the server to the world, and has relinquished all reasonable expectation of privacy in the server. In other words, when does an individual have a reasonable expectation of privacy in his server?

Professor Orin Kerr has argued that the government might have violated the Computer Fraud and Abuse Act (“CFAA”) when it obtained the IP address of the Iceland server. In an earlier prosecution under the CFAA, the Department of Justice argued that a defendant violated the CFAA when he obtained information from an AT&T website that “AT&T had not intended for the public to see” and which was “in a place where an ordinary computer user would likely not find it.” Based on this standard, the FBI in the Silk Road case did violate the CFAA even if we accept the government’s version of how they obtained the IP address. Professor Kerr acknowledges that the CFAA has an exception for lawful government investigations, but notes that there is still a tension between the government’s position in the Silk Road case and its position in the CFAA prosecution.

Supreme Court Preview: City of Los Angeles v. Patel

Posted by simmons.239@osu.edu on January 11, 2015

Posted in: Supreme Court Cases, Third Party Doctrine. 15 comments

City of Los Angeles v. Patel involves a couple of technical but important issues about the scope of Fourth Amendment protections in the context of administrative searches. Los Angeles has passed an ordinance which requires all hotel operators to keep records of all of their guests, and to make those records available for inspection by any member of the Los Angeles Police Department. A hotel operator who fails to comply with this regulation faces up to six months in jail and a $1,000 fine. The Patel family, who run a hotel in Los Angeles, brought a facial challenge to the statute under Section 1983, arguing that the statute violated the Fourth Amendment.

In a split en banc decision, the Ninth Circuit held that the government was indeed conducting a Fourth Amendment search when it looked through the hotel’s records, and that the search should be analyzed as an “administrative search.” The court then held that even under the low standards of administrative searches, the Los Angeles ordinance that authorized these searches was facially invalid because it did not provide the hotel operators an opportunity to challenge the reasonableness of the search request in court before penalties were assessed.

The Supreme Court granted cert on two questions:

First, whether it is ever appropriate to bring a facial challenge based on the Fourth Amendment to an ordinance or a statute; and

Second, whether a hotel has an expectation of privacy under the Fourth Amendment in a hotel guest registry where the guest-supplied information is mandated by law and an ordinance authorizes the police to inspect the registry,

and if so, whether the ordinance is facially unconstitutional under the Fourth Amendment unless it expressly provides for pre-compliance judicial review before the police can inspect the registry.

First we should discuss what is not at stake in Patel: the Supreme Court will not (and should not) use this case to re-visit the third-party doctrine. Some commentators have argued (here and here) that this might be a chance for the Court to reform dismantle or reform this much-maligned doctrine. After all, most individuals would believe that the true victims of the invasion of privacy are the hotel guests, not the hotel itself.

As much as this argument has intuitive appeal, Patel appears to be a very weak case for a re-examination of the third-party doctrine. Most of the modern critiques of the third-party doctrine have to do with the “passive” sort of sharing that is the inevitable consequence of using modern technology, such as disclosing the content of your e-mail to your internet service provider or your location to your cell phone company. This sort of “disclosure” to third parties could never have been imagined by the Court that authored Smith v. Maryland; thus, the argument goes, Smith should not apply to this type of third-party disclosure. Other critiques of the third party doctrine revolve around the potential abuse of meta-data: using an algorithm to sift through all the phone numbers that a suspect calls over a multi-year period, or using a computer program to review the recipients of all of your e-mails. Again, this kind of mass processing of meta-data is arguably beyond the scope of the humble pen register used in Smith.

But the third-party disclosure in Patel bears a much stronger resemblance to the phone numbers dialed in Smith than to the passive sharing of data that is inherent in the use of new technologies. In fact, the disclosure in Patel is more like the sharing of bank records in Smith‘s less controversial precursor, Miller v. United States. There is no question that the guests in Patel knew they were giving information to a third party, and no particular reason why they would think that the government would be unable to access that information.

The two issues that the Patel case does involve are important enough, however. The first question is purely procedural: whether a party can bring a facial challenge to a statute under the Fourth Amendment. The dissenters in the Ninth Circuit argued that a statute should survive a facial challenge as long as “a court can find any circumstance in which it could constitutionally be applied.” Thus, in order to succeed in their facial challenge, the Patels must prove that “all requests made under the ordinance must violate the Fourth Amendment.” But, as the dissent pointed out, if the police demanded the records after having obtained a warrant, or pursuant to exigent circumstances, or pursuant to the community caretaking function, the demand would obviously not violate the Fourth Amendment. Thus, there is a strong preference for as-applied challenges, since they are the “basic building blocks of constitutional adjudication.”

The question asked by the Supreme Court goes beyond this argument, however, and asks whether there can ever be a Fourth Amendment facial challenge. It would be logical for the Court to answer this question in the negative and prohibit all such facial challenges, since (as the Ninth Circuit dissent pointed out), courts would otherwise be called upon to give advisory opinions by trying to imagine all possible hypothetical cases in which a law might be applied.

If the Court does indeed prohibit facial challenges, it need not reach the second question, since the Patels did not allege any actual actions by the police which violated their Fourth Amendment rights. If the Court allows these challenges, however, it should have no problem concluding that a demand for information pursuant to the ordinance constitutes a “search” under the Fourth Amendment. The Patels (and other hotel operators) clearly have a reasonable expectation of privacy in this information; even the dissenters in the Ninth Circuit agreed that this was true. The real issue in the second question is its second part, in which the Court must decide whether a demand for this information is a reasonable exercise of police power. The Court’s answer should provide useful guidance regarding the underdeveloped administrative search doctrine, in two ways.

First, the purpose of these searches of hotel registries (according to the government) is to deter drug dealing and prostitution, which sounds much more like a law enforcement purpose than the regulatory purposes usually associated with administrative searches. Administrative searches, like other special needs searches, are supposed to have a non-law enforcement purpose, although the Court has applied the administrative search doctrine to searches which have a distinctively crime-control flavor to them. If the Court upholds this law, it will be taking another unwelcome step towards broadening the allowable purpose of administrative searches.

Second, if the Court does hold that this is a permissible purpose for administrative searches, it will need to decide what procedure is necessary to ensure that the search is “reasonable.” The majority opinion in the Ninth Circuit stated that a demand to inspect should not be “made and enforced by the inspector in the field”–rather, the ordinance must allow for judicial review of the demand for records before any punishment can be imposed. If not, the majority argued that there would be no way of ensuring that the demand is “sufficiently limited in scope, relevant in purpose, and specific in directive so that compliance will not be unreasonably burdensome.” The Supreme Court will probably agree with the Ninth Circuit and require some kind of judicial review of these searches. The sheer breadth of the authorization allowed by the ordinance seems to invite law enforcement abuses, and the narrowness of the administrative search doctrine’s purpose would be gutted even further if there is no judicial oversight of the police action.

But my prediction is that the Court will not even reach the second question. Instead, it will deny the facial challenge and tell plaintiffs who wish to attack statutes on Fourth Amendment grounds that they must wait until the government takes some specific action against them before taking the police to court.

Child pornographers should fix their own computers

Posted by simmons.239@osu.edu on January 6, 2015

Posted in: Circuit Court Cases, Searches of New Technologies, Third Party Doctrine. Tagged: child pornography, computer search, Fourth Amendment, third party doctrine. 1 comment

Like many users of child pornography, Michael Meister kept his photos and videos on his computer. When his computer stopped working, he took it into a computer repair store, True North, to transfer the data from the inoperable hard drive to a new computer. During the transfer process, the technician noticed the child pornography and contacted the police, who immediately seized the computer. The police also looked transferred the offending data–now inside True North’s system–onto two separate DVDs, and conducted two separate searches of that data. Based on the information found on the hard drive, the police obtained a search warrant and then conducted another search of the laptop.

After Meister was arrested, he moved to suppress all the information found on his computer. Unsurprisingly, the District Court denied the motion, and the Eleventh Circuit agreed. The court held that this was a simple application of the third party doctrine: “The Fourth Amendment only applies to governmental action; ‘it is wholly inapplicable to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the Government or with the participation or knowledge of any governmental official.’ Once a private individual, acting of his own accord, conducts a search—even one that frustrates a defendant’s reasonable expectation of privacy—the Fourth Amendment does not forbid the government from replicating the search.” Furthermore, even if the pre-warrant searches by the police were beyond the scope of the third party doctrine, the police would have found all of the contraband images eventually after they obtained their warrant, and so the searches fell under the inevitable discovery doctrine.

On one level, the Meister case is very straightforward. But it also raises an interesting issue regarding the third party doctrine. Today, more and more courts are criticizing the application of the third party doctrine to digital information, arguing that the doctrine should not apply to such data because in modern times so much data is entrusted–sometimes unknowingly, sometimes unavoidably–to third parties. When computer data is stored in the cloud, or when e-mails in transit pass through remote servers on the way to their recipient, the owner of the data may not have consciously entrusted the data to a third party. Thus, the argument goes, entrusting digital data to third parties is not at all like the “assumption of risk” that occurs when you give financial records to a bank or confide to a police informant. This argument was first made well before the computer age, by the dissenting Justices in the much-maligned Smith v. Maryland who decried the application of the third-party doctrine to data about outgoing telephone numbers that were held by a telephone company:

Implicit in the concept of assumption of risk is some notion of choice. At least in the third-party consensual surveillance cases, which first incorporated risk analysis into Fourth Amendment doctrine, the defendant presumably had exercised some discretion in deciding who should enjoy his confidential communications. By contrast here, unless a person is prepared to forgo use of what for many has become a personal or professional necessity, he cannot help but accept the risk of surveillance. It is idle to speak of “assuming” risks in contexts where, as a practical matter, individuals have no realistic alternative.

No doubt Meister’s actions fall under the category of being a “conscious choice”–he physically took his computer to a repair store and asked them to transfer the data. But it is not hard to tweak the facts a bit and make the case more like the scenario described by the Smith v. Maryland dissenters. What if Meister’s data had been corrupted, and so he sent his data electronically to a company to fix it? Probably still a conscious choice. What if he stored it in the cloud, and one of the data storage units in the cloud had become damaged, and a technician (without Meister’s knowledge) had to transfer the data from one storage unit to another? Probably not a conscious choice. Of course, under current Fourth Amendment law, the mere storing of the data in the cloud would trigger the third party doctrine. But as the courts are revising the third party doctrine to exclude data that is automatically stored or transferred by third party actors, they will need to refine exactly when (if ever) repair and maintenance of that data might re-invoke the doctrine.