United States v. Wilson, No. 18-50440 (9th Cir. 2021)
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Google, as required by 18 U.S.C. 2258A(f), reported to the National Center for Missing and Exploited Children (NCMEC) that Wilson had uploaded images of apparent child pornography to his email account as attachments. No one at Google had opened or viewed Wilson’s attachments; its report was based on an automated assessment that the images Wilson uploaded were the same as images other Google employees had earlier viewed and classified as child pornography. Someone at NCMEC then, also without opening or viewing them, sent Wilson’s email attachments to the San Diego Internet Crimes Against Children Task Force, where an officer viewed the attachments without a warrant. The officer then applied for warrants to search Wilson’s email account and Wilson’s home, describing the attachments in detail in the application.
The Ninth Circuit reversed the denial of Wilson’s motion to suppress. The government’s warrantless search of Wilson’s email attachments was not justified by the private search exception to the Fourth Amendment. The government search exceeded the scope of the antecedent private search because it allowed the government to learn new, critical information that it used first to obtain a warrant and then to prosecute Wilson; the government agent viewed email attachments even though no Google employee had done so. The government has not established that what a Google employee previously viewed were exact duplicates of Wilson’s images.
Court Description: Criminal Law The panel vacated a conviction for possession and distribution of child pornography, reversed the district court’s denial of a motion to suppress, and remanded for further proceedings in a case in which the panel addressed whether the government’s warrantless search of the defendant’s email attachments was justified by the private search exception to the Fourth Amendment. As required by federal law, Google reported to the National Center for Missing and Exploited Children (NCMEC) that the defendant had uploaded four images of apparent child pornography to his email account as email attachments. No one at Google had opened or viewed the defendant’s email attachments; its report was based on an automated assessment that the images the defendant uploaded were the same as images other Google employees had earlier viewed and classified as child pornography. Someone at NCMEC then, also without opening or viewing them, sent the defendant’s email attachments to the San Diego Internet Crimes Against Children Task Force, where an officer ultimately viewed the email attachments without a warrant. The officer then applied for warrants to search both the defendant’s email account and his home, describing the attachments in detail in the application. UNITED STATES V. WILSON 3 The private search doctrine concerns circumstances in which a private party’s intrusions would have constituted a search had the government conducted it and the material discovered by the private party then comes into the government’s possession. Invoking the precept that when private parties provide evidence to the government on their own accord, it is not incumbent on the police to avert their eyes, the Supreme Court formalized the private search doctrine in Walter v. United States, 447 U.S. 649 (1980), which produced no majority decision, and United States v. Jacobson, 466 U.S. 109 (1984), which did. The panel held that the government did not meet its burden to prove that the officer’s warrantless search was justified by the private search exception to the Fourth Amendment’s warrant requirement. The panel wrote that both as to the information the government obtained and the additional privacy interests implicated, the government’s actions here exceed the limits of the private search exception as delineated in Walter and Jacobsen and their progeny. First, the government search exceeded the scope of the antecedent private search because it allowed the government to learn new, critical information that it used first to obtain a warrant and then to prosecute the defendant. Second, the government search also expanded the scope of the antecedent private search because the government agent viewed the defendant’s email attachments even though no Google employee—or other person—had done so, thereby exceeding any earlier privacy intrusion. Moreover, on the limited evidentiary record, the government has not established that what a Google employee previously viewed were exact duplicates of the defendant’s images. And, even if they were duplicates, such viewing of others’ digital communications would not have violated the defendant’s expectation of privacy in his images, as Fourth Amendment 4 UNITED STATES V. WILSON rights are personal. The panel concluded that the officer therefore violated the defendant’s Fourth Amendment right to be free from unreasonable searches when he examined the defendant’s email attachments without a warrant.
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