Victor Bermudez

1045 Commons Circle, Naples, FL 34119

(951) 970-9406 • VBermudez@avemarialaw.edu

Writing Sample: Appellate Brief for UCLA Cyber Crimes Appellate Competition

The following brief was awarded second place at UCLA Cyber Crimes Appellate

Competition. I served as the brief writer for the team. Apart from one student team member,

competition rules disallowed edits or review by faculty, students, or anyone else. Thus, this

writing sample has minimal grammatical corrections after review by a student team member. For

the purpose of a writing sample, and as a means of reducing its length, this submission only

includes the first argument. A copy of the original brief, in its entirety, is available upon request.
 TEAM 2

DOCKET NO. 10-1011

____________________________________________

IN THE

Supreme Court of The United States

____________________________________________

ELIZABETH JENNINGS,

PETITIONER,

V.

UNITED STATE OF AMERICA,

RESPONDENT.
____________________________________________

ON WRIT OF CERTIORARI FROM THE UNITED STATES COURT OF APPEALS,

FOURTEENTH CIRCUIT
______________________________________________________________________________

BRIEF FOR RESPONDENTS

______________________________________________________________________________

COUNSEL FOR RESPONDENTS

FEBRUARY 16, 2018

i
 ARGUMENT

The Fourth Amendment protects individuals against unreasonable searches. U.S. Const.

amend. IV. A search occurs when the government either: (1) obtains information by physically

trespassing on a constitutionally protected area, or (2) “violates a subjective expectation of

privacy that society recognizes as reasonable.” United States v. Jones, 565 U.S. 400, 404-13

(2012). The first type of search derives from common-law trespass jurisprudence, while the

second, established in Katz v. United States, is focused on individual privacy expectations. Id. at

406, 409 (citing Katz v. United States, 389 U.S. 347, 351 (1967)).

The present case involves electronic information: photos stored on a cell phone and cell-

site location information (CSLI). (R. at 1132-34). Facts concerning electronic information rather

than a physical trespass require the Katz analysis. See Id. at 411 (“Situations involving merely

the transmission of electronic signals without trespass would remain subject to Katz analysis.”).

Under the expectation of privacy analysis applied by the Supreme Court, “a Fourth Amendment

search does not occur ... unless ‘the individual manifested a subjective expectation of privacy in

the object of the challenged search,’ and ‘society is willing to recognize that expectation as

reasonable.’” Kyllo v. United States, 533 U.S. 27, 33 (2001) (quoting California v. Ciraolo, 476

U.S. 207, 211 (1986).

I. THIS COURT SHOULD AFFIRM BECAUSE OFFICER KRAMER DID NOT

IMPLICATE THE FOURTH AMENDMENT WHEN VIEWING PHOTOS ON
JENNINGS’S MOBILE DEVICE.

A. Under the private search doctrine, Officer Kramer’s interaction with the photos on
Jennings’s phone did not exceed the scope of the previous private search.

The Fourth Amendment proscribes governmental action and is inapplicable to searches,

whether reasonable or not, by private citizens not acting with the participation or knowledge of

any government official. United States v. Jacobsen, 466 U.S. 109, 113 (1984). The Constitution
1
does not prohibit the government from using information that has been rendered “non-private” as

a result of a non-governmental search. Jacobsen, 466 U.S. at 116. Instead, the Fourth

Amendment “is implicated only if the authorities use information with respect to which the

expectation of privacy has not already been frustrated.” Id. at 117. Thereby, subsequent law

enforcement searches violate the Fourth Amendment only to “the degree to which they exceeded

the scope of the private search.” Id. at 115. Indeed, if a private party presents law enforcement

authorities with evidence obtained during an unlawful search, it is “not incumbent on the police

to stop her or avert their eyes.” Coolidge v. New Hampshire, 403 U.S. 443, 489 (1971).

This Court’s decision in Jacobsen articulated the private search doctrine. United States v.

Lichtenberger, 786 F.3d 478, 481 (6th Cir. 2015); See Jacobsen, 466 U.S. at 116. In Jacobsen,

FedEx employees inspected a damaged box. Id. at 111. The employees opened the box and

discovered a tube covered in sheets of newspaper. Id. The employees then cut open the tube and

found zip-lock bags containing a white, powdery substance. Id. Next, the employees placed the

bags back in the tube, put the tube back in the box, and called the authorities. Id. An agent

arrived, observed that the tube inside had a slit cut into it, and removed the bags from the

tube. Id. After seeing the white powder, the agent tested the substance for the presence of

cocaine. Id. This Court held that the agent’s replication of the search done by FedEx employees

did not exceed the scope of the original private search. Id. at 119. As for the testing, the court

found that although it was an additional intrusion not carried out by the private party, it was de

minimis and constitutionally reasonable. Id.

In the years following the Jacobsen decision, several Circuit Courts have indicated that

police do not exceed the scope of a prior private search until they examine objects or containers

that the private searchers did not examine. See, e.g., United States v. Rouse, 148 F.3d 1040, 1041

2
(8th Cir. 1998); United States v. Kinney, 953 F.2d 863, 866 (4th Cir. 1992); United States v.

Donnes, 947 F.2d 1430, 1434 (10th Cir. 1991).

When applying the private search doctrine to digital containers storing data, such as

photos, videos, music, and documents, courts should look to whether the digital storage device

was “opened” by a private party and therefore subject to examination by the authorities.

Jacobsen, 466 U.S. at 121. Accordingly, the Fifth and Seventh Circuits have held that once a

private party opens and views data in a digital container, police may subsequently view the data

because the owner no longer has a reasonable expectation of privacy in the container. Rann v.

Atchison, 689 F.3d 832, 838 (7th Cir. 2012); United States v. Runyan, 275 F.3d 449, 464 (5th

Cir. 2001).

In Runyan, the defendant’s wife and her friend searched roughly twenty of the

defendant’s CDs and floppy disks and discovered child pornography. Id. at 453. The wife and

friend then turned over these electronic containers and additional ones to law enforcement. Id.

Officers viewed images on the devices the wife and her friend had searched, along with images

on the devices that they had not searched. Id. The Fifth Circuit, applying Jacobsen, held that

police did not exceed the scope of a prior private search when they examined the storage devices

that the friend and wife had opened and viewed. Id. at 465. Moreover, the court held that it made

no difference whether the police viewed images on the storage device that the wife and friend

had not themselves seen. Id. The court reasoned that once the device was opened and its contents

viewed, the privacy expectation in the entire device became frustrated. See Id.

The Seventh Circuit adopted the Fifth Circuit’s approach. Rann v. Atchison, 689 F.3d at

834. In Rann, the defendant’s biological daughter reported to the police that the defendant

sexually assaulted her and took pornographic pictures of her. Id. Later, the daughter and her

3
mother gave the police a computer zip drive that contained pornographic images of the daughter

and her half-sister. Id. The court held that police did not exceed the scope of the private searches

performed by the daughter and her mother when they subsequently viewed the images contained

on the digital media devices. Id. The court’s holding was not affected by whether the police

searched the devices more thoroughly than did the daughter and mother, nor was it swayed by

whether the police viewed images unseen by the daughter and her mother. Id. at 836.

Respondent asks this Court to affirm a case with facts similar to Runyan and Rann. Mr.

Nightingale opened Jennings’s phone, opened the photos folder within the phone, and scrolled

through the album, albeit not the entire album. (R. at 1132-33). He saw several photos within the

album before handing over the phone to Officer Kramer for examination. (R. at 1132). At that

point, not only did Nightingale open the digital container, but also the photos folder inside. (R. at

1132-33). Cf. Rann, 689 F.3d at 834; Runyan, 275 F.3d at 465. Consequentially, Jennings’s

expectation of privacy in the contents of her phone was frustrated by Nightingale’s intrusion. See

Id. Without an expectation of privacy, a subsequent search of Jennings’s phone by Officer

Kramer did not implicate the Fourth Amendment. See Id.

Noteworthily, Officer Kramer did not view the phone’s contacts, internet browser history,

emails, call log, text messages, or anything else other than the contents of the album opened by

Nightingale. (See R. at 1132-33). Thus, even if this Court were to take a narrower approach to

the private search doctrine—that the phone’s folders themselves are containers—Officer Kramer

stayed within the folder to which Nightingale gained access. Cf. People v. Emerson, 766

N.Y.S.2d 482, 489 (N.Y. Sup. Ct. 2003) (even if police viewed several more files in the folder

than did the private party, there was no incremental expectation of privacy that the Fourth

Amendment protects). Once Jennings’s expectation of privacy in the photos disappears, whether

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Office Kramer viewed the photos in the thumbnail format or as an enlargement does not matter.

See United States v. Tosti, 733 F.3d 816, 822 (9th Cir. 2013); See also United States v. Sparks,

806 F.3d 1323, 1331 (11th Cir. 2015). Therefore, the Fourteenth Circuit correctly determined

that Officer Kramer did not exceed the scope of the private search.

After this Court’s decision in Riley v. California, 134 S. Ct. 2473 (2014), the Eleventh

and Eighth Circuits improperly applied Riley’s reasoning to the private search doctrine. Cf.

Sparks, 806 F.3d at 1336 (Analyzing the private search doctrine with special recognition to this

Court’s note that cell phones “hold for many Americans ‘the privacies of life’”) (Quoting, Riley,

134 S. Ct. at 2494-95); Lichtenberger, 786 F.3d at 488 (“[U]nder Riley, the nature of the

electronic device greatly increases the potential privacy interests at stake, adding weight to one

side of the scale while the other remains the same”). Citing Riley’s privacy concerns, these courts

restrict the private search doctrine to its narrowest interpretation, holding that the government

search improperly exceeds the scope of a private search if the government sees anything that

private searcher did not. Sparks, 806 F.3d at 1336; Lichtenberger, 786 F.3d at 488.

Riley requires a warrant for a cell phone search incident to arrest because of the vast

amount of sensitive private information that phones can contain. See Riley, 134 S. Ct. at 2489.

Applying Riley’s concern to the private search doctrine in this case poses two problems. First,

the argument that a cell phone may contain a vast amount of diverse private information is

entirely inconsequential in this case, because Officer Kramer did not access nor attempt to access

this type of information. (See R. at 1132-33). Second, when analyzing the private search

doctrine, Riley’s reasoning is inapposite. The doctrine does not concern the Fourth Amendment

searches that Riley does. Rather, it focusses on what is not a search under the Fourth

Amendment. Jacobsen, 466 U.S. at 117. Accordingly, the “heightened privacy stakes” discussed

5
in Riley are not present in cases where expectations of privacy have disappeared. See Id. The

Fourteenth Circuit properly applied the private search doctrine to this case because Nightingale

frustrated Jennings’s expectation of privacy when he accessed her phone. Consequently, Officer

Kramer’s subsequent search remained within the scope of Nightingale’s private search.

Therefore, this Court should affirm.

B. Officer Kramer’s viewing of the cell phone did not violate the Fourth Amendment
because Jennings made the phone freely available for his inspection.

The Fourth Amendment also does not prohibit government examination of information

revealed to a third party and later conveyed to the government thanks to the actions or

communications of the third party. See Jacobsen, 466 U.S. at 117. When an individual reveals

information to another, she runs the risk that the information will make its way to the

government. United States v. Miller, 425 U.S. 435, 443 (1976). Moreover, taking actions that

expose information to the public eye, whether or not done intentionally, destroys a legitimate

expectation of privacy under the Fourth Amendment. E.g., United States v. Weast, 811 F.3d 743,

748 (5th Cir. 2016) cert. denied, 137 S. Ct. 126 (2016).

For example, when an individual exposes her information in an area she knows the public

may access, she lacks an objective expectation of privacy in that information. California v.

Greenwood, 486 U.S. 35, 40 (1988); United States v. Durdley, 436 F. App’x 966, 968 (11th Cir.

2011). In Greenwood, the police searched the contents of a garbage bag. Greenwood, 486 U.S.

at 39. The bag was inside in a garbage can. Id. The garbage can was on the curb in front of the

defendant’s house. Id. at 39. The police discovered narcotics. Id. Despite the defendant’s efforts

to conceal the contents of the trash bag, the court found that the defendant lacked the requisite

objective expectation of privacy because she placed the contents of the bag in a place where the

public had access. Id. at 40.

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 The Eleventh Circuit applied the same reasoning to information stored in digital devices.

Durdley, 436 F. App’x at 968. In Durdley, the defendant plugged a storage device (thumb drive)

into a computer located in a workplace common area. United States v. Durdley, No. 1:09-CR-

00031-MP-AK, 2010 WL 916107, at *1 (N.D. Fla. Mar. 11, 2010). The defendant left the

computer without retrieving his thumb drive. Id. Later, another employee accessed the computer

and searched through the folders and files on the thumb drive. Id. at *1-2. The employee

discovered and accessed several files containing child pornography and notified a supervisor,

who then told the authorities. Id. at *2. The police conducted a complete warrantless search of

the flash drive and discovered child pornography in both photographic and video formats. Id.

The Eleventh Circuit held that the police search was not a Fourth Amendment search because the

defendant extinguished his expectation of privacy by placing his thumb drive in a shared

computer located in a common area. Durdley, 436 F. App’x at 968. Several other circuit courts

have similarly applied this Court’s reasoning in Greenwood to cases where contents of a digital

device were left open to the public. See United States v. Weast, 811 F.3d at 748; United States v.

Borowy, 595 F.3d 1045, 1047 (9th Cir. 2010); United States v. Stults, 575 F.3d 834, 842–43 (8th

Cir. 2009), cert. denied, 130 S.Ct. 1309 (2010); United States v. Perrine, 518 F.3d 1196, 1204–

05 (10th Cir. 2008).

In this case, Jennings took affirmative steps to have the contents of her phone exposed to

the public. Jennings placed her device in the hands of Owens, a stranger she had just met. (R. at

1132). Similar to leaving her information on her front curb, as in Greenwood, or in a public

computer, as in Durdley, Jennings instructed Owens to affix her mobile device to a public park

bench. (R. at 1132). By arranging for her phone to be left in Arcadia Central Park, a park open to

7
and frequented by members of the public, Jennings sacrificed any reasonable expectation of

privacy she had in the contents of her phone. (R. at 1132).

Moreover, her futile attempts to prevent access to her information by utilizing a passcode

and by having it attached to the bottom of the bench did not preserve any expectation of privacy.

Greenwood, 486 U.S. at 39 (used opaque, sealed trash bags to hide contents); See e.g., United

States v. King, 509 F.3d 1338, 1341–42 (11th Cir. 2007) (believed computer was secure enough

to prevent public access); Borowy, 595 F.3d at 1048 (attempted to engage feature of program

software that prevented others from accessing computer files). Jenningss did not protect her

phone with a unique or complex password that would have concealed its contents. (R. at 1132).

Undeniably, her phone required no special technology or hardware to access. (R. at 1132). Yet,

even the phone’s ineffective password is not enough to revive an expectation of privacy in its

contents. Greenwood, 486 U.S. at 39. Thus, she exposed her device to public access just like the

defendant did in Greenwood. Indeed, government “conduct that does not ‘compromise any

legitimate interest in privacy’ is not a search subject to the Fourth Amendment.” Illinois v.

Caballes, 543 U.S. 405, 408 (2005).

As Officer Kramer’s viewing of the pictures on Jennings’s phone was not a search under

the Fourth Amendment, the Fourteenth Circuit properly reversed the suppression of the images

obtained from that phone. Thus, this Court should affirm the Fourteenth Circuit’s ruling.