The Private Search Doctrine and Digital Evidence

By: MRR Law Enforcement Blog

In this current digital era, nearly everyone carries around a small, personal computer at almost all times. With this, evidence of a crime can be captured, and deleted, with just one push of a button. It also means that law enforcement personnel are facing a rapidly evolving environment of digital evidence.

What should an officer do after receiving a phone call from a man concerned about photos he found on his roommate’s computer? Prior to the computer being viewed by a police officer, there have been no violations of the Fourth Amendment right against unreasonable search and seizure. This is because of the private search doctrine. The private search doctrine provides that the Fourth Amendment right to be free from unreasonable search and seizure is inapplicable to a search effectuated by a private person, not acting as an agent of the government. While this rule is not universally applicable, the Northern District of Ohio recently held that the private search doctrine applies to searches of computers.

The question then becomes, how can an officer react to the roommate’s report? Can the officer document the statements made by the concerned roommate? Sure. Should the officer consider the information in the determination of probable cause to secure a search warrant? Yes. If the individual shows the officer a photo, may the officer look at it? Of course. Can the officer ask the roommate to further search the computer to find more information? No. By acting at the instruction of the officer, the roommate would likely be acting as an agent of the government. This would mean that a government search was being conducted, not a private search. And ultimately the evidence found could be ruled inadmissible in a criminal trial. The line when a private search turns into a government search is an important one.

Law enforcement personnel need to stay up-to-date on the various laws applicable to digital evidence, or they risk rulings of inadmissible evidence. The private search doctrine is just one of those laws. It is also important to distinguish between the various formats of digital evidence. Electronic messages, such as emails and text messages, are protected by other laws, including the Stored Communications Act. The landscape of digital evidence will likely continue to evolve and shift for years to come.

For more information on the private search doctrine, see US v. Lichtenberger, 19 F. Supp. 3d. 753 (N.D. Ohio 2014).

For questions or more information on “The Private Search Doctrine and Digital Evidence,” contact:

David M. Smith, Esq.
MRR Law Enforcement Blog Editor