9th Circuit finds no good faith exception justifying warrantless examination of contraband images

In criminal cases with search warrants that allow law enforcement to seize phones and other digital devices during investigations for possession and/or distribution of unlawful pornography, it is extremely important to closely examine the stated probable cause. Even when mistakes are identified in the warrant, the fallback argument of the government is the good-faith exception. However, when officers fail to obtain a search warrant before examining private information, the government faces much greater scrutiny in justifying the search and the good faith exception may not apply.

In 2001, the Ninth Circuit held in United States v. Wilson that law enforcement's warrantless opening of electronic files provided to them by third-party internet providers to determine whether they contain child pornography violates the Fourth Amendment, provided that the third-party provider did not open the files themselves. Under the private search doctrine, a private party's prior intrusion into the defendant's belongings frustrates any reasonable expectation of privacy the defendant has in that property, such that a subsequent government search of the same property does not offend the Fourth Amendment. In Wilson, however, the third-party tipster organization merely matched the possible contraband images to a known database of contraband images using a technology known as "hash matching." Put simply, hash matching allows the service provider to be almost certain that a file uploaded to its platform is identical to a previously flagged file without a human having to open the file and actually view its contents. When a law enforcement officer opens the image files and views them, the argument goes that the act impermissibly expands the scope of the private search.

In United States v. Holmes (No. 22-10266), a Ninth Circuit panel confronted a case in which the government conceded that a similar search was unlawful under Wilson, but nevertheless argued that the defendant's motion to suppress should be denied under the good faith or inevitable discovery exceptions to the warrant requirement. The investigation into Holmes began, as it did with Wilson, with a "cybertip" alleging that certain files in Holmes' possession were hash-matched to known child pornography files. The case agent opened the files and viewed their contents, which were in turn relied on in a search warrant affidavit. The investigation took place several months before Wilson was decided.

On appeal, the government conceded the illegality of the search under Wilson, but argued that the officer who conducted the search acted in good faith reliance on the then-existing understanding of the law prior to Wilson. Under Ninth Circuit precedent, to rely on good faith, the government must point to binding circuit precedent which specifically authorizes the challenged conduct. It is not an available exception where the case law is unclear or the government's position is merely plausible.

Prior to Wilson, the two leading precedents were Jacobsen and Walter. In Jacobsen, FedEx employees following company policy regarding damaged packages opened the defendant's parcel and discovered a white powdery substance. They reported the discovery to federal agents who re-opened the package. Though the agents performed a chemical test to confirm the powder was cocaine, the search was upheld on the basis that the testing did not compromise any legitimate issue in privacy which was not already frustrated by the FedEx employees' discovery of the powder by opening the parcel. The Ninth Circuit acknowledged that Jacobsen could provide a plausible basis for the agent to assume that opening Holmes' files was authorized. By analogy, testing what is almost certainly cocaine is akin to viewing hash-matched files which are almost certainly child pornography. In fact, the Fifth and Sixth Circuits have upheld searches that would be unlawful under the Ninth Circuit's rule in Wilson on exactly that basis.

In Walter, FBI agents were provided a package of obscene films by a private party which were mistakenly mailed to the wrong address. The recipients had opened the package and viewed the packaging, which suggested the obscene nature of the films. When the FBI agents warrantlessly watched the films to confirm their nature, however, they impermissibly expanded the scope of the private search. The court there held that looking at the labels provided only "inferences" about their contents.

The Ninth Circuit noted the apparently contradictory holdings of Jacobsen and Walter. It is difficult to reconcile the concept that the confirmatory chemical testing of the cocaine was not a significant expansion of the search while the confirmatory viewing of the obscene videos was. That unclear legal landscape rendered the good faith exception unavailable as there could not be said to have been clear, binding precedent specifically authorizing the viewing of the hash-matched images.

The government's claim of inevitable discovery was equally unavailing. Under that doctrine, an unlawful search may be excused where the government proves that the same evidence would have inevitably been discovered through lawful means. In Nix, a leading case, the court found inevitable discovery where a 200-person search party was canvassing a specific area in search of a body. While the search was ongoing, an officer illegality interrogated a suspect, leading to the location of the body. The court found that the location of the body was the logical next focus of the search and there was no probability that the body would not have been discovered regardless of what the suspect told the officer.

Offending images were discovered on Holmes' cellphone pursuant to the search warrant. The government argued that a second agent, who did not impermissibly open the cybertip files, would have inevitably through the usual investigative process obtained location and user data for Holmes, procured a search warrant, seized Holmes' cellphone, and discovered the images. The Ninth Circuit found the government's proof of the routine procedure supposedly utilized by case agents to be seriously lacking. Agents have high caseloads and many cybertips go without investigation. Case agents have significant autonomy in how to conduct and prioritize investigations. In short, it could not be said that the eventual seizure of contraband from Holmes was inevitable absent the unlawful opening of the cybertip images.

Judge Collins dissented. He argued that the district court, and the Ninth Circuit, should have rejected the government's concession that the search violated Wilson, distinguishing the facts about the investigative techniques utilized in Holmes from those in the prior case. Judge Collins would have found that the search was permissible under both Jacobsen and Wilson, and therefore it was unnecessary to reach the issues of good faith or inevitable discovery.

Dmitry Gorin and Alan Eisner, partners in Eisner Gorin LLP, are State-Bar Certified Criminal Law Specialists and have litigated over 100 criminal jury trials in state and federal courts. Robert Hill is an associate attorney at Eisner Gorin LLP. The firm represents clients in high-stakes matters nationally.