Ex-Fiancé and Ex-Wife Talk; Trouble Follows

by | May 16, 2022

United States v. Daren Phillips, 2022 WL 1279042 (9th Cir. 2022)

Daren Phillips had problems with alcohol and relationships. Amanda Windes, Phillips’ now ex-fiance, believed Phillips had been lying to her about his alcohol use and money troubles. She had also found “very inappropriate” text messages between Phillips and other women. Windes told Phillips to hit the road. Two days later, Phillips told Windes he needed help with his alcoholism and she helped him get to a hospital and then to in-patient treatment.

Phillips left property, including his computer, behind at Windes’ house. Phillips’ ex-wife called Windes and expressed concern that Phillips was sexually interested in her daughter’s friend. Windes did some mild hacking to get past the password on Phillips’ computer. She discovered a file with thousands of “pictures of infants and all of their exposed genitalia” and “images of young females” who were “very scantily clad and were in extremely sexually provocative poses.” Some of the file names indicated the pictures portrayed children as young as infants.

Windes took the computer to the police and told a detective what she had seen. Another detective joined the conversation and asked Windes to show him only the images she had already viewed on the laptop. Windes opened the file and showed the detective just those images. The detective recognized some of the images as child pornography he’d seen in other investigations and seized the laptop, obtaining a warrant for a further search. A subsequent forensic search of the laptop found over 4,750 images of child pornography and 538 child pornography videos.

Phillips was indicted on child pornography charges. He asked the trial court to suppress the evidence, claiming the detective’s request for Windes to show him the images without Phillips’ consent was an unlawful search. The court denied his motion. Phillips pled guilty, reserving the right to appeal the denial of his suppression motion.

Where a private party informs the police of the results of a private search, an officer’s “subsequent search is permissible, and constitutional, to the extent that it mimics the earlier private search.”

The court of appeals affirmed Phillips’ conviction. Though the Fourth Amendment does not apply to a search—even an obviously illegal search—by a private person, the court assumed there was a police search when the detective asked Windes to show him the images she had already viewed. The court acknowledged Windes did not have consent or authority to breach Phillips’ password and search his computer, accepting that the initial search was a private party search.

The detective was clear in asking Windes to show him only what she had already seen, or essentially to do no more than repeat her private (but improper) search. In United States v. Jacobsen (466 U.S. 109 (1984)), FedEx employees opened a package and discovered white powder. They resealed the package and alerted a DEA agent, who searched the package and confirmed that it contained cocaine. The Supreme Court explained, “The legality of the governmental search must be tested by the scope of the antecedent private search.” The DEA agent did nothing more than the FedEx workers had done. Thus, where a private party informs the police of the results of a private search, an officer’s “subsequent search is permissible, and constitutional, to the extent that it mimics the earlier private search” (United States v. Bowman, 215 F.3d 951 (9th Cir. 2000)).

Phillips also argued Justice Scalia’s opinion in United States v. Jones (565 U.S. 400 (2012)) meant that he only lost his reasonable expectation of privacy with respect to the files Windes had already viewed, but not the right to prevent Windes from “trespassing” on his computer by once again opening the files. Justice Scalia’s majority opinion in Jones cited a long line of property rights precedent dating back to 1886. The Jones majority held the search occurred because agents “physically occupied private property for the purpose of obtaining information,” essentially trespassing on property rights when they attached a GPS tracker underneath Jones’ car. However, concurring justices rejected this “trespass-based theory.” Justice Alito, for example, indicated the mere trespass on Jones’ car was not, by itself, sufficient to be a “search.”

In the Phillips case, the appellate court also rejected the trespass-based argument. In United States v. Jacobsen, it found that officers “do not violate the Fourth Amendment when, as Phillips claims occurred here, they mimic the trespass a private individual visited on another’s possessions after being alerted to the information uncovered pursuant to that trespass.” The court observed that the Supreme Court’s more recent decision in United States v. Jones did not address the private search doctrine. Thus, the appellate court was free to follow its own directly controlling precedent on the private search doctrine.

Phillips will have 63 months in a federal prison to help overcome his alcohol problems, followed by 20 years of supervised release. One doubts that Windes will be waiting for him.

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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