United States v. Lowers, 2026 WL 667918 (4th Cir. 2026)
The Fourth Amendment does not stop at the cloud. But that didn’t help Nico Lowers. Someone using the email address “harvardeperstein@gmail.com” uploaded child sexual abuse material (CSAM) to a Google Drive cloud storage account. Google detected 156 files in that private account through a process called hash-matching, which compares the digital fingerprint of a file to the fingerprint of previously identified files. Some of the 156 files were actually viewed by Google employees, though most were not. Google reported the account to the National Center for Missing and Exploited Children (NCMEC), which eventually forwarded the information to local law enforcement.
Months later, a detective with the Chesapeake (Virginia) Police Department opened and viewed at least three files that neither Google nor NCMEC had ever opened. She did so without a warrant. Sure enough, those files contained CSAM.
The detective’s warrantless viewing launched a criminal investigation, which eventually led officers to Nico Lowers, then living in North Carolina. The case was transferred out of state and the investigation joined by Homeland Security. Lowers later consented to a search of devices and agreed to interviews. After a search of his phone turned up four videos containing CSAM among the device’s deleted files, Lowers confessed to their possession and directed investigators to a flash drive containing additional CSAM. The flash drive contained 264 images and 17 additional videos, each depicting CSAM. A subsequent search of Lower’s hard drive revealed 764 CSAM images and 11 more CSAM videos.
“Probable cause to believe a container holds contraband may justify seizing it but not opening it without a warrant.”
Did the detective’s warrantless opening of those files violate the Fourth Amendment? The trial court said “no” and Lowers appealed. The court of appeals held that a person has a reasonable expectation of privacy in files stored in a private Google Drive account. Police cannot open and view those files without a warrant simply because Google’s systems flagged them as possible child sexual abuse material.
The court rejected the idea that Google’s privacy policy destroyed Lower’s privacy rights. It is true that Google warns users that it may use “automated systems and algorithms to analyze your content … for spam, malware and illegal content.” According to the court, though, that only means Google may monitor its own platform. It does not mean the government gets the same authority. A private company’s right to look is not the same as the police having a right to look. That is part and parcel of the private search doctrine.
Under the private search doctrine, police may repeat a search already performed by a private party so long as they do not exceed the scope of the original search. But the appellate court held that is not what happened here. No one at Google had opened the specific files the detective later viewed. Google’s hash-matching process generated data suggesting those files matched known CSAM, but the algorithm did not visually inspect the files the way the detective later did. When the detective opened those files, she learned new information — the actual visual contents. According to the 4th Circuit, that went beyond the private search. The court therefore held the warrantless viewing was an unconstitutional search.
That should have been a big win for the defense. But it was not enough. Winning his appeal on the issue of expectation of privacy in a cloud storage account did not mean Lower’s conviction was overturned. The appellate court also held suppression was not warranted. Too much happened between the illegal search and the eventual discovery of the evidence used to convict the defendant. The court of appeals applied the attenuation doctrine, which asks whether the connection between the illegal police conduct and the eventual evidence is too weak to justify suppression. The court said it was.
First, too much time had passed. Roughly seven months separated the illegal search from the final discovery of the evidence used in the prosecution. Second, there were multiple intervening circumstances. Lowers voluntarily agreed to interviews, consented to searches of his phone and laptop, confessed, and told officers where to find additional evidence. Those voluntary acts mattered a great deal. Third, the investigator’s conduct, while unconstitutional, was not flagrant. The court did not see evidence the detective deliberately tried to evade the Constitution or acted in bad faith. It saw a legal mistake, not abusive misconduct.
The appellate court also rejected the trial court’s ruling that because the cloud files likely contained contraband, officers could open them without a warrant. That is not how the Fourth Amendment works. Probable cause to believe a container holds contraband may justify seizing it but not opening it without a warrant unless some exception applies. The appellate court treated digital files like file drawers or containers. One does not get to open the digital equivalent of a locked filing cabinet just because officers strongly suspect what is inside.
Thus, even though the court found a Fourth Amendment violation, it declined to suppress the later evidence. Lower’s conviction stood.
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Here are some takeaways for officers:
- Cloud files carry real Fourth Amendment protection. A private Google Drive account is not a free-search zone.
- A hash match is not a warrant substitute. It may support probable cause, but it does not authorize opening the file.
- The private-search doctrine has limits. Police may repeat what a private party already did. They may not go further.
- Digital files are containers. If you want to open them, the safer course is to get a warrant.
- Attenuation may save a case, but don’t count on it. This case survived because of time, consent, confession, and other intervening events — not because the search was lawful.
A hash match may create suspicion, but opening the file is still a search.
Note: Courts remain divided on whether a hash match alone constitutes a private search under the Fourth Amendment. As discussed in “CSAM and Hash Matching Tech: Tool for Catching Creeps,” some courts treat hash-matching as functionally revealing contraband with near certainty, while others conclude opening a file still exposes new information beyond the scope of any prior private search, creating an ongoing split in how these cases are analyzed. It’s important to know what rules are being applied in your own jurisdiction.
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