Cyber Tips Are Subject to the Private Search Doctrine

by | January 26, 2022

United States v. Meals, 2021 WL 6143550 (5th Cir. 2021)

At 37 years old, Stephen Scott Meals carried on a sexual relationship with A.A., a 15-year-old. Meals used Facebook to chat with A.A. about their previous sexual experiences and plans for future encounters. Facebook discovered these conversations and forwarded a cyber tip to the National Center for Missing and Exploited Children (NCMEC).

Detective Alicia Escobar received the NCMEC cyber tip and went to work. Detective Escobar first obtained a search warrant for the Facebook accounts of Meals and A.A., then used information gleaned from the first search warrant to obtain a search warrant for Meals’ electronic devices, home and trailer. The second search uncovered child pornography on Meals’ devices, consisting primarily of explicit images of A.A. created by Meals.

Meals was charged with five counts of production or possession of child pornography. Meals asked the trial court to suppress all the evidence. Meals claimed he had an expectation of privacy in his Facebook chats and that Facebook and the NCMEC jointly violated his Fourth Amendment rights by acting as government agents when they searched his account without a warrant. The trial court denied the motion, ruling that neither the NCMEC nor Facebook were government agents. The court also ruled that even if the NCMEC was a government agent, neither the NCMEC review nor Detective Escobar’s review of the cyber tip exceeded the scope of Facebook’s initial private party search. Meals appealed.

If the officer’s search goes beyond the private party’s search, the private search doctrine does not apply to any new evidence found.

The Fourth Amendment does not restrict private citizens. Under the private search doctrine, when a private actor finds evidence of criminal conduct after searching someone else’s person, house, papers and effects without a warrant, the government can use the evidence, privacy expectations notwithstanding (United States v. Jacobsen, 466 U.S. 109 (1984)). As long as the private actor is not acting at an officer’s invitation or direction, items seized by the citizen may be used as evidence even if they are located during a search that would have been unlawful if it had been conducted by an officer: “Whether a private party should be deemed an agent or instrument of the Government for Fourth Amendment purposes necessarily turns on the degree of the Government’s participation in the private party’s activities” (Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602 (1989)). When a private party, such as Facebook, informs the police about the contents of an account or item the private party has searched, an officer may conduct a search that is strictly limited to the scope of the private party’s search (Walter v. United States, 447 U.S. 649 (1980)). If the officer’s search goes beyond the private party’s search, the private search doctrine does not apply to any new evidence found.

Federal law requires electronic communication service providers to send a cyber tip to the NCMEC whenever the service provider discovers evidence of child exploitation on the provider’s platform (18 U.S.C. § 2258A(a)). Meals argued this law transformed Facebook into a government agent when the company found child pornography on his account and reported it. The court of appeals rejected the argument, noting the law does not require or encourage service providers to actively search for evidence of child exploitation.

Meals also claimed that the NCMEC is a government agent that exceeded the scope of Facebook’s search by reviewing the messages Facebook provided. Therefore, Meals claimed, the NCMEC could not rely on the private search doctrine to send the cyber tip to Detective Escobar. Meals failed to convince the court of appeals. The court noted that “NCMEC is a private, nonprofit corporation, not a government entity.” However, even if the NCMEC were a government agent, it did nothing more than transmit information from Facebook to Detective Escobar.

Officers should remember two vital elements of the private search doctrine:

  1. The doctrine only applies when the initial search is made by a non-governmental actor; officers can’t ask or encourage private actors to search for them.
  2. When a private party does pass on potential evidence, the officer’s search (if any) must be limited to the scope of the private party’s search unless the officer has another basis to search, such as a warrant.

The court of appeals rejected all of Meals’ arguments and he is left to spend the next 50 years as the guest of a truly public entity, the Federal Bureau of Prisons.

KEN WALLENTINE is the Chief of the West Jordan (Utah) Police Department and former Chief of Law Enforcement for the Utah Attorney General. He has served over three decades in public safety, is a legal expert and editor of Xiphos, a monthly national criminal procedure newsletter. He is a member of the Board of Directors of the Institute for the Prevention of In-Custody Death and serves as a use of force consultant in state and federal criminal and civil litigation across the nation.

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