United States v. Daren Phillips ( 2022 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 20-10304
Plaintiff-Appellee,
D.C. No.
v. 3:18-cr-00101-
MMD-WGC-1
DAREN W. PHILLIPS,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the District of Nevada
Miranda M. Du, Chief District Judge, Presiding
Argued and Submitted November 15, 2021
San Francisco, California
Filed April 29, 2022
Before: Richard A. Paez and Michelle T. Friedland, Circuit
Judges, and Edward R. Korman, * District Judge.
Opinion by Judge Korman
*
The Honorable Edward R. Korman, United States District Judge
for the Eastern District of New York, sitting by designation.
2 UNITED STATES V. PHILLIPS
SUMMARY **
Criminal Law
The panel affirmed a judgment of conviction in a case in
which Daren Phillips entered a conditional guilty plea to
possession of child pornography, reserving the right to
appeal the denial of his motion to suppress evidence found
on his laptop computer.
After calling off her engagement to Phillips, Amanda
Windes discovered child pornography on his computer,
which she then brought to the Washoe County Sheriff’s
Office. While Windes was there, Detective Gregory Sawyer
asked her to show him only images that she had already
viewed when she had accessed the laptop by herself. Windes
complied with that request.
Phillips moved to suppress on the ground that, because
Sawyer directed Windes to access the computer without
Phillips’s permission to show Sawyer what she had already
seen, Windes’s search of the computer at the sheriff’s office
was an unlawful law-enforcement search.
Because the U.S. Attorney does not dispute Phillips’s
assertion that Windes acted as a state agent when she
accessed the computer at the sheriff’s office, the panel
assumed that this was a government search.
But applying United States v. Jacobsen, 466 U.S. 109(1984), and United States v. Bowman, 215 F.3d 951 (9th Cir.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
UNITED STATES V. PHILLIPS 3
2000), the panel held that the search was permissible
because, as the parties agree, when Windes accessed the
child pornography on Phillips’s computer at the sheriff’s
office, she merely mimicked her earlier private search. The
panel rejected Phillips’s argument that Jacobsen imposes
requirements tied to law enforcement’s subjective
knowledge. The panel distinguished United States v. Young,
573 F.3d 711 (9th Cir. 2009), on the ground that this case
does not involve a warrantless entry into a home or its
equivalent. The panel rejected Phillips’s argument that the
“common-law trespassory test” set forth in United States v.
Jones, 565 U.S. 400 (2012), requires suppression in this
case.
Noting that in light of Phillips’s valid appeal waiver he
may argue on appeal only that the supervised-release
conditions he challenges exceed the permissible statutory
penalty or violate the Constitution, the panel wrote that this
court’s precedents establish the legality of all the challenged
conditions (risk notification, prohibiting access to sexually
explicit conduct material involving adults, polygraph
testing).
COUNSEL
Aarin E. Kevorkian (argued), Assistant Federal Public
Defender; Rene L. Valladares, Federal Public Defender;
Office of the Federal Public Defender, Las Vegas, Nevada;
for Defendant-Appellant.
William R. Reed (argued), Assistant United States Attorney;
Elizabeth O. White, Appellate Chief; Christopher Chiou,
Acting United States Attorney; United States Attorney’s
Office, Reno, Nevada; for Plaintiff-Appellee.
4 UNITED STATES V. PHILLIPS
OPINION
KORMAN, District Judge:
In early 2018, Amanda Windes decided to call off her
engagement to Daren Phillips. She believed Phillips had
been lying to her about his alcohol use and financial troubles.
She had also found “very inappropriate” text messages
between Phillips and other women. Windes informed
Phillips that he was no longer welcome in the house they
shared. Two days later Phillips acknowledged that he needed
help for his alcoholism, and Windes drove Phillips to a
hospital, which arranged for a one-month stay at a residential
treatment center. Windes had custody of many of Phillips’s
possessions while he was away, including his laptop
computer. Windes was contacted by Phillips’s ex-wife,
Kelly Greek, who was worried about how Phillips would pay
child support while he was in treatment. Greek also told
Windes that she suspected that Phillips had watched child
pornography and that Phillips may have been sexually
interested in a friend of Greek’s daughter.
Windes decided to examine Phillips’s laptop. She said
that her primary purpose was to examine his financial
documents but that she also wanted to see if Phillips had
been contacting other women and whether he had been
viewing child pornography. She explained that she was also
trying “to determine what other issues there w[ere] on top of
[Phillips’s] alcohol problem for the safety of my children
and myself.” The laptop was password protected, and
Windes first tried the password for Phillips’s Netflix
account, which he had given to her. That password didn’t
work, so Windes clicked on the laptop’s “forgot your
password” function, which prompted her to answer
Phillips’s security questions. She successfully guessed the
answers to those questions, which allowed her to send a
UNITED STATES V. PHILLIPS 5
temporary password to her own email account. She was then
able to reset the password and enter Phillips’s computer.
As Windes browsed Phillips’s computer, she came
across a folder entitled “phone.” She saw that it was several
hundred megabytes in size and opened the folder. The folder
displayed the names of all the files in the folder and their
associated “thumbnail illustration[s]” (a small photo which
indicated what each file contained). There were thousands of
such thumbnail illustrations in the folder. They included
“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.” As she
scrolled down through the folder, she saw that many of the
file names indicated how old the children were (from infants
to teenagers). Windes saw that this “phone” folder contained
only child pornography. She testified that the images were
“highly graphic” and left her “disgusted.” She “felt law
enforcement needed to further investigate.”
Windes first took the laptop to Police Services at the
University of Nevada (where she worked) and told them
only that she had a computer that she needed somebody to
look at. Police Services told her to take the computer to the
Washoe County Sheriff’s Office (“sheriff’s office”) because
it did not belong to the university. At the sheriff’s office,
Windes told the front desk deputy that she had a computer
that she suspected contained a significant amount of child
pornography. She was then interviewed by Detective Arick
Dickson for about two-and-a-half hours. Windes told
Dickson what she had found and how she had accessed the
computer. She described in detail many of the thumbnail
images of child pornography she had seen. She also relayed
to Dickson her “concerns for . . . [her] children’s safety,
6 UNITED STATES V. PHILLIPS
especially due to the nature of the material on Phillips’[s]
laptop.”
Dickson then brought in Detective Gregory Sawyer, who
asked Windes to show him only images that she had already
viewed when she had accessed the laptop by herself. Windes
and Sawyer testified—and the district court found—that
Windes complied with that request and showed the
detectives only the thumbnail images and accompanying file
names she had previously seen while scrolling through the
“phone” folder. Only Windes operated the computer while
she showed Sawyer the images. Sawyer recognized some of
the thumbnail images from prior child pornography
investigations. Sawyer then seized the laptop and applied for
and obtained a search warrant. The application included a
brief written description of two thumbnail images that
Windes had shown him and the associated file names. A
subsequent forensic search of the laptop found over 4,750
images of child pornography and 538 child pornography
videos.
Phillips was indicted for one count of transportation of
child pornography, in violation of 18 U.S.C. § 2252A(a)(l),
and one count of possession of child pornography, in
violation of 18 U.S.C. § 2252A(a)(5)(B). He moved to
suppress the evidence from the laptop on the ground that,
because Sawyer directed Windes to access Phillips’s
computer without his permission to show Sawyer what she
had already seen, Windes’s search of the computer at the
sheriff’s office was an unlawful law-enforcement search.
After holding a hearing, the district judge denied the motion.
Phillips then entered a conditional guilty plea to one
count of possessing child pornography, reserving the right to
appeal the denial of his motion to suppress. Phillips was
sentenced to 63 months’ incarceration and 20 years of
UNITED STATES V. PHILLIPS 7
supervised release subject to certain conditions that he also
challenges on appeal.
DISCUSSION
The Supreme Court has long held that it does not violate
the Fourth Amendment for a law enforcement officer to
accept and use evidence that a private party discovers
pursuant to its own private search, even if that private search
was unlawful. See Burdeau v. McDowell, 256 U.S. 465,
475–76 (1921); Coolidge v. New Hampshire, 403 U.S. 443,
485–90 (1971). This rule is based on the principle that “[t]he
Fourth Amendment[’s ]protection against unlawful searches
and seizures . . . applies to governmental action” and “was
not intended to be a limitation upon other than governmental
agencies.” Burdeau, 256 U.S. at 475. Moreover, “the
consequences of Burdeau do not offend the more modern
rationale of the Fourth Amendment exclusionary rule . . .
[which] is most often explained on grounds of deterrence.”
1 Wayne R. LaFave, Search & Seizure § 1.8(a) (6th ed.
2021). Specifically, “extension of the exclusionary rule to all
private illegal searches for purposes of deterrence would be
difficult to justify” because “the private searcher . . . is often
motivated by reasons independent of a desire to secure
criminal conviction and . . . seldom engages in searches
upon a sufficiently regular basis to be affected by the
exclusionary sanction.” Id.; see also United States v. Janis,
428 U.S. 433, 455 n.31 (1976) (“[T]he exclusionary rule, as
a deterrent sanction, is not applicable where a private party
. . . commits the offending act.”). Still, “the issue of precisely
what it takes to put a search outside the ‘private’ category is
frequently litigated in a wide variety of settings.” 1 LaFave,
supra, § 1.8.
This is one such setting. Windes, on her own volition,
searched Phillips’s laptop and uncovered child pornography.
8 UNITED STATES V. PHILLIPS
While she may not have had the authority to conduct the
search on that password-protected laptop, she was clearly
acting as a private party. Having discovered child
pornography, and thus finding herself in possession of
contraband, she decided to take and show it to law
enforcement authorities. And when she was informed by a
law enforcement officer that she should access the computer
so that he could see what she wanted to show him, he made
it clear that he did not wish to see anything more than what
she had already seen, and she acted in line with those
instructions.
1
Phillips asserts that Windes acted as a state agent when
she completed the second search because she took cues from
Sawyer when doing so. This argument is premised on
Sawyer’s effort to ensure that in viewing the materials that
Windes had already seen and wished to show him, there
would be no greater invasion of Phillips’s privacy than had
already occurred. Because the U.S. Attorney does not
dispute Phillips’s somewhat counterintuitive assertion that
Windes acted as a state agent when she accessed the
computer at the sheriff’s office, we assume that this was a
government search.
Nevertheless, this search was permissible. United States
v. Jacobsen illustrates “the appropriate analysis of a
governmental search which follows on the heels of a private
one.” 466 U.S. 109, 115 (1984). There, FedEx employees
opened a package, saw it contained a white powdery
substance, repacked the materials, and alerted the Drug
Enforcement Administration (“DEA”). See id. at 111. Then,
a DEA agent reopened the package, removed its contents
without obtaining a warrant, and found that the white powder
it contained was cocaine. See id. at 111–12. The Supreme
UNITED STATES V. PHILLIPS 9
Court held that the FedEx employees’ earlier private search
and their decision to alert law enforcement to their findings
made the agent’s warrantless search permissible. The Court
explained that “the legality of the governmental search must
be tested by the scope of the antecedent private search.” Id.
at 116. “[I]t hardly infringed respondents’ privacy for the
[DEA] agent to reexamine the contents of the open package”
because “the Federal Express employees had just examined
the package and had, of their own accord, invited the federal
agent to . . . view[] its contents.” Id. at 119; see id. at 120(“Similarly, the removal of the plastic bags from the tube and
the agent’s visual inspection of their contents [were
permissible actions because they] enabled the agent to learn
nothing that had not previously been learned during the
private search.”). We have thus held that Jacobsen
establishes that, where a private party notifies law
enforcement of its private search, a state “agent’s
[subsequent] search is permissible, and constitutional, to the
extent that it mimic[s the earlier] private search.” United
States v. Bowman, 215 F.3d 951, 956, 963 (9th Cir. 2000).
That is precisely what occurred here. Windes went to the
sheriff’s office to alert law enforcement to what she
uncovered on Phillips’s laptop. Sawyer testified that he told
Windes to “[j]ust do what you had done and show me what
you saw.” Windes testified that she “opened up the computer
and turned it on, used the same password to log into
Phillips’[s] user name, and then opened up the same Phone
folder.” She then scrolled down and showed him “the same
files that [she] saw” the previous night with the same names
that she had remembered. Id. She “did not access anything
that [she] had not previously seen.” A video was also
admitted into evidence of Sawyer recreating the search he
conducted with Windes, which showed that she did not have
to “scroll down very far in the ‘phone’ folder before locating
10 UNITED STATES V. PHILLIPS
the thumbnails corresponding to the filenames and
descriptions he included in his search warrant affidavit.”
Based on this evidence, the district court judge found that
“Sawyer told [Windes] to not show him anything she had not
already seen, she understood his instruction, and she did not
show anything she had not already seen.” Indeed, the judge
“infer[red]” from Sawyer’s admonition that “Sawyer was
aware of the private search exception and was trying to
operate within it.”
Although it is possible that—unlike a stagnant
container—the folder on Phillips’s computer could have
automatically updated with new material from his phone
between Windes’s searches at her home and the sheriff’s
office or that a previously unviewed notification or alert
could have popped up on the screen, Phillips does not allege
that his devices were set to do so. Indeed, he concedes that
the scope of the two searches was the same. Accordingly, we
accept the district court’s conclusion that, when Windes
accessed the child pornography on Phillips’s computer at the
sheriff’s office, she merely “mimicked [her earlier] private
search.” Bowman, 215 F.3d at 963. 1
2
Nevertheless, Phillips argues that the evidence
uncovered pursuant to Windes’s actions at the sheriff’s
office must be suppressed for reasons tied to law
1
Even if Sawyer had inadvertently seen more of Phillips’s computer
than Windes originally had, at least one circuit has held—as then-Judge
Sotomayor explained—that “only the information attributable to that
additional ‘search’ would require suppression,” not the information the
private individual already uncovered. United States v. $557,933.89,
More or Less, in U.S. Funds, 287 F.3d 66, 87–88 (2d Cir. 2002)
(Sotomayor, J.) (emphasis in original).
UNITED STATES V. PHILLIPS 11
enforcement’s subjective knowledge. For example, Phillips
argues that Jacobsen does not apply because: “Sawyer
lacked virtual certainty a subsequent search of Phillips’s
computer would reveal only contraband” or “virtual
certainty that a subsequent search of the item [would]
compromise no remaining privacy interest”; and “Sawyer
did not know the details of Windes’s [prior] search or full
contents of the folder” containing the child pornography
before Windes accessed the computer in his presence. 2
Phillips relies on language in the Supreme Court’s decision
in United States v. Jacobsen—language that we repeated in
United States v. Young, 573 F.3d 711 (9th Cir. 2009). But
neither case ultimately supports his arguments.
As Phillips points out, Jacobsen states that “[w]hen the
first federal agent on the scene initially saw the package, he
knew it contained nothing of significance except a tube
containing plastic bags and, ultimately, white powder” and
that, “[e]ven if the white powder was not itself in ‘plain
view,’ . . . there was a virtual certainty that nothing else of
significance was in the package and that a manual inspection
of the tube and its contents would not tell him anything more
than he already had been told.” 466 U.S. at 118–19; see id.at 120 n.17 (“[T]he precise character of the white powder’s
visibility to the naked eye is far less significant than the facts
that the container could no longer support any expectation of
privacy, and that it was virtually certain that it contained
nothing but contraband.”).
But read in context, Jacobsen’s “virtual certainty”
references—and other similar language—do not create any
2
Phillips argues that, before Windes accessed the computer in
Sawyer’s presence, she had only told Detective Dickson what she had
found and Dickson had not relayed that information to Sawyer.
12 UNITED STATES V. PHILLIPS
subjective requirements for the application of its holding.
Instead, the language to which Phillips points simply
articulates an objective test pertaining to the scope of the
searches. The Court described the DEA agent’s prior
knowledge of the entire package, as conveyed by the Fedex
employees, because that knowledge made clear that the
package had already been thoroughly examined and thus the
government search could not exceed the scope of those
employees’ prior one. Indeed, the Court went on to explain:
Respondents do not dispute that the
Government could utilize the Federal
Express employees’ testimony concerning
the contents of the package. If that is the case,
it hardly infringed respondents’ privacy for
the agents to reexamine the contents of the
open package by brushing aside a crumpled
newspaper and picking up the tube. The
advantage the Government gained thereby
was merely avoiding the risk of a flaw in the
employees’ recollection, rather than in
further infringing respondents’ privacy.
Protecting the risk of misdescription hardly
enhances any legitimate privacy interest, and
is not protected by the Fourth Amendment.
Id. at 119. The Court’s explanation confirms that a
government search that does not exceed the bounds of a
private one is not an invasion of privacy under the Fourth
Amendment. The only advantage gained by the
government’s own search is avoiding the private party’s
“misdescription”—and that is a permissible advantage.
What was important to the Jacobsen Court was that the DEA
agent’s search “enabled [him] to learn nothing that had not
previously been learned during the private search,” not that
UNITED STATES V. PHILLIPS 13
he have subjective knowledge of what was learned during
the private search. The description of the DEA agent’s
knowledge simply made clear that he was not exceeding the
private search. Id. at 120; see also id. at 116 (“[T]he legality
of the governmental search must be tested by the scope of
the antecedent private search.”). “As in other Fourth
Amendment contexts,” then, the inquiry remains “an
objective one.” Graham v. Connor, 490 U.S. 386, 397
(1989); cf. Torres v. Madrid, 141 S. Ct. 989, 998 (2021)
(“[W]e rarely probe the subjective motivations of police
officers in the Fourth Amendment context.”).
Here, as in Jacobsen, Windes’s accessing the computer
in Sawyer’s presence “enabled [Sawyer] to learn nothing
that had not previously been learned during the private
search” and was therefore permissible. Id. at 120. But unlike
Jacobsen, our conclusion regarding the equivalence between
the scope of the searches arises because the record
demonstrates that Sawyer instructed Windes to recreate her
prior search so he only saw what she had already seen, and
Windes abided by those instructions. 3
Our opinion in Young, 573 F.3d 711, does not change
this conclusion. It simply represents an application of the
Supreme Court’s decision in Stoner v. California, 376 U.S.
483 (1964). Stoner held that “[n]o less than a tenant of a
3
Moreover, even if Jacobsen’s application depends on the
subjective knowledge of the person conducting the search, that test was
satisfied here. Unlike the DEA agent in Jacobsen, who had not
conducted the initial search but who had learned about the entire contents
of the package from the FedEx employees, Windes had previously
accessed the Phone folder of Phillips’s computer and saw that it
contained child pornography. Thus Windes—the alleged state agent
conducting the subsequent search in this case—possessed subjective
knowledge and virtual certainty of what her search would reveal.
14 UNITED STATES V. PHILLIPS
house, . . . a guest in a hotel room is entitled to constitutional
protection” from a warrantless entry into his room regardless
of any prior intrusion or permission given by hotel
employees. Id. at 490. In Young, hotel security initially
entered the defendant’s room without his permission to
investigate whether he had stolen items from another guest,
and they uncovered a gun in his backpack in addition to other
items. 573 F.3d at 714. This was a private search that did not
implicate the Warrant Clause of the Fourth Amendment.
Nevertheless, the issue in Young turned on a second entry
into and search of the hotel room by hotel security after they
contacted law enforcement officers. Id. at 715. “The
Government d[id] not dispute the district court’s conclusion
that [hotel] security should be considered state actors for the
purposes of the second search.” Id. at 717. Thus, Young
involved a warrantless entry into the defendant’s hotel room
by state actors against which he was protected by the
Warrant Clause because “a hotel guest’s . . . room is like a
home . . . [and the] guest has a legitimate and significant
privacy interest . . . against unlawful government
intrusions.” Id. at 721. And, absent exigent circumstances,
such an intrusion is unlawful if undertaken without a warrant
or consent of the occupant. See Stoner, 376 U.S. at 489–90;
see also Payton v. New York, 445 U.S. 573, 589–90 (1980)
(“[A]t the very core of the Fourth Amendment stands the
right of a man to retreat into his own home and there be free
from unreasonable governmental intrusion. . . . Absent
exigent circumstances, that threshold may not reasonably be
crossed without a warrant.” (alterations and internal
quotation marks omitted)).
The language in Young upon which Phillips relies
appears in our discussion rejecting “[t]he Government[’s]
argu[ment],” which it had raised “for the first time on appeal,
that United States v. Jacobsen . . . should be extended to
UNITED STATES V. PHILLIPS 15
permit the search of Young’s backpack stored in his hotel
room.” 573 F.3d at 720. Phillips is correct that in Young we
discussed language from Jacobsen that, by the time the DEA
agent arrived, “it was virtually certain that [the package]
contained nothing but contraband.” Jacobsen, 466 U.S.
at 120 n.17; see Young, 573 F.3d at 721. But when we did
so, it was merely to explain that Young “[wa]s
distinguishable from Jacobsen” because the hotel security
“could not have been ‘virtually certain’ . . . that the gun was
contraband.” Id. After all, unlike narcotics, “[i]t is not a
crime in most circumstances for a non-felon to possess a
gun.” Id.While the two cases were distinguishable in the manner
Young suggested, it is unlikely this distinction was crucial to
our decision. Surely, we did not mean to suggest that our
decision would have been different had the hotel security in
Young been “virtually certain” as to the nature of the items
the second search of Young’s hotel room would uncover.
Indeed, it could not have been. Unlike this case, Young
concerned the unique privacy interests an individual has in
his residence (and, by extension, a temporary residence like
a hotel room). See United States v. Lichtenberger, 786 F.3d
478, 484 (6th Cir. 2015) (“Homes are a uniquely protected
space under the Fourth Amendment.”). Under Stoner, no
prior private search and no level of certainty regarding what
the second search would uncover could have allowed state
actors to enter Young’s hotel room without a warrant or his
consent. Young relied expressly on well-settled Supreme
Court law that “[b]elief, however well founded, that an
article sought is concealed in a dwelling house, furnishes no
justification for a search of that place without a warrant. And
such searches are held unlawful notwithstanding facts
unquestionably showing probable cause.” 573 F.3d at 721(emphasis added) (quoting Johnson v. United States,
16 UNITED STATES V. PHILLIPS
333 U.S. 10, 14 n.14 (1948))). 4 Unlike Young, but like
Jacobsen, this case does not involve a warrantless entry into
a home or its equivalent. Accordingly, Young does not alter
the current inquiry.
Phillips also argues that the extensive amount of personal
information contained in a laptop makes it similar to a
private residence, meaning that the private search doctrine
should not apply. An analysis of this argument depends on
to which of the two aspects of the doctrine it refers. The first
involves an intrusion—even an extraordinarily invasive
intrusion—by a private party who gives the contents
discovered pursuant to that intrusion to law enforcement.
Burdeau v. McDowell, 256 U.S. at 475–76. The validity of
this conduct does not depend on the extent of the private
information contained in the object or location on which the
private party intruded. If there is no state action, there is no
Fourth Amendment violation. Id.By contrast, the second aspect of the private search
doctrine involves “a governmental search which follows on
the heels of a private one,” Jacobsen, 466 U.S. at 115, and it
is to this aspect of the doctrine that Phillips’s argument
refers. While it is true that modern computers contain so
much personal information that a search of one could
4
The leading treatise on the Fourth Amendment cites Young
correctly for the proposition that “it is to be doubted that if a private
person searched the premises of another and then reported to police what
he had found . . . that the police could then make a warrantless entry of
those premises and seize the named evidence.” 1 LaFave, supra, § 1.8(b)
& n.97. Indeed, Young was guided by the analytic framework of the Sixth
Circuit in United States v. Allen, 106 F.3d 695, 698–99 (6th Cir. 1997),
which specifically rejected the argument that Jacobsen could permit a
“warrantless search of [a defendant’s] motel room.” See Young, 573 F.3d
at 720–21.
UNITED STATES V. PHILLIPS 17
“expose to the government far more than the most
exhaustive search of a house,” Riley v. California, 573 U.S.
373, 396 (2014), and more than the private party had
previously uncovered, we have already held that the private
search doctrine does apply to them, see United States v.
Tosti, 733 F.3d 816 (9th Cir. 2013). We note that unlike in
Riley, which involved a search incident to arrest, the search
here involved a clear limiting principle: the private search
exception allows police to review only the material that a
private actor has already viewed. Because a digital container
like “an email account, cell phone, or laptop” is composed
of many smaller containers, a subsequent government search
of a single file (or even a number of files) will not frustrate
an individual’s privacy interest in the entire device. United
States v. Wilson, 13 F.4th 961, 977 n.13 (9th Cir. 2021). We
acknowledge that it may be more difficult to have “virtual
certainty” that a search of an electronic device does not
reveal more than the private search had already revealed,
given the dynamic nature of such devices. See United States
v. Rivera-Morales, 961 F.3d 1, 13 (1st Cir. 2020) (“The
Court did not define ‘virtual certainty,’ and it is not
immediately apparent how that concept translates from the
context of a static object like a package to the ever-changing
screen on a cellphone.”); see also Lichtenberger, 786 F.3d at
488. In this case, however, all parties agree that the officer
did not see anything more than Windes had previously
viewed, so we need not address this issue.
3
Phillips additionally argues that the Supreme Court’s
decision in United States v. Jones, 565 U.S. 400 (2012),
supports reversing the district court’s decision. In Jones,
police attached a GPS tracking device to a car owned by the
defendant’s wife without a valid warrant. Id. at 402–03. The
18 UNITED STATES V. PHILLIPS
district court denied the defendant’s motion to suppress the
data the police collected from that device, holding that the
defendant lacked a reasonable expectation of privacy with
respect to the car’s movements on public streets. Id. at 403.
The Supreme Court disagreed. It explained that, even if the
defendant lacked a reasonable expectation of privacy with
respect to the car’s public movements, the Fourth
Amendment nonetheless prohibited the police from
physically trespassing on the defendant’s wife’s car by
installing and using the tracking device without a valid
warrant, and the exclusionary rule applied to the fruits of that
unwarranted trespass. Id. at 404–06.
According to Phillips, Jones’s “common-law trespassory
test” for Fourth Amendment violations requires suppression
in this case. Id. at 409. Jacobsen, Phillips says, merely stands
for the proposition that a private search eliminates an
individual’s reasonable expectation of privacy with respect
to an item’s contents. Thus, the fact that Windes had
previously viewed the files containing child pornography on
Phillips’s computer only eliminated his reasonable
expectation of privacy with respect to those files. It did not,
Phillips argues, give Sawyer the license to instruct Windes
to again “physically intrude[]” on Phillips’s property—i.e.,
his computer—by “open[ing] the laptop computer,
enter[ing] the password . . . navigat[ing] to the ‘phone
folder’ and scroll[ing] through the images.” And, under
Jones, that intrusion violated Phillips’s Fourth Amendment
rights.
This argument fails. Even if we attribute Windes’s action
to the officers and assume that those actions constituted a
“trespass” of Phillips’s property, Jacobsen, too, involved a
trespass of the defendant’s property. There, after the FedEx
employees had opened the defendant’s package and found
UNITED STATES V. PHILLIPS 19
white powder, the DEA agent reopened the package and
removed its contents. Yet the Supreme Court permitted the
warrantless search even though the agent physically intruded
onto the package. See Jacobsen, 466 U.S. at 118–22.
Jacobsen thus establishes that law enforcement 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. See
Bowman, 215 F.3d at 956, 963. Jones did not involve any
aspect of the private search exception, nor did it reference
Jacobsen. Under these circumstances, we must follow the
Supreme Court’s instruction that “if a precedent of this Court
has direct application in a case, yet appears to rest on reasons
rejected in some other line of decisions, the Court of Appeals
should follow the case which directly controls, leaving to
this Court the prerogative of overruling its own decisions.”
Agostini v. Felton, 521 U.S. 203, 237 (1997) (internal
quotation marks and citation omitted).
Moreover, our decision in Tosti, which postdates Jones,
is consistent with our rejection of Phillips’s argument. There,
a computer technician uncovered child pornography on the
defendant’s computer and alerted the police. Tosti, 733 F.3d
at 818–19. When two detectives arrived, without first
obtaining a warrant, one of them “directed [the technician]
to open the images in a ‘slide show’ format so that they
would appear as larger images viewable one by one.” Id.
at 819. The technician then “opened up the individual
images” as the detective requested. Id. We held that, in light
of the technician’s prior search, Jacobsen dictated that these
actions did not violate the defendant’s Fourth Amendment
rights. Id. at 821–22. Thus, we applied Jacobsen even
though the technician, at the “direct[ion]” of the detective,
arguably physically intruded on the defendant’s computer
20 UNITED STATES V. PHILLIPS
when he “opened up the individual images.” Id. at 819. If
Jacobsen applied in Tosti, it must also apply here.
Indeed, this case may be a stronger case than Tosti for
applying Jacobsen. When Windes, acting as a private
person, discovered the child pornography on Phillip’s
computer, she had at least two options for bringing it to the
attention of law enforcement. First, and impracticably, she
could have entered the sheriff’s office with laptop open and
the child pornography displayed in plain view. Second, she
could have entered with the laptop closed and waited until
she was in a private setting before opening the laptop and
navigating to the child pornography. Sensibly, she chose the
second option. And the only direction she received from a
law enforcement officer was aimed at ensuring that she
would not intrude on Phillips’ privacy more than she already
had.
In Coolidge v. New Hampshire, the Supreme Court
observed in analogous circumstances that had the
defendant’s wife “wholly on her own initiative, sought out
her husband’s guns and clothing and then taken them to the
police station to be used as evidence against him, there can
be no doubt under existing law that the articles would later
have been admissible in evidence.” 403 U.S. at 487 (citing
Burdeau, 256 U.S. 465). Phillips argues that because Windes
chose the second option, the evidence uncovered pursuant to
her actions at the sheriff’s office must be suppressed. “[I]t
would seem strange” if the result in “cases of this kind . . .
[would] ‘turn on the fortuity’ of whether and to what extent
the private person put the contents back into [or closed] the
container before the police appeared,” 1 LaFave, supra,
§ 1.8(b) (quoting Jacobsen, 466 U.S. at 120 n.17).
Tosti’s application of Jacobsen to permit “the
warrantless searches of [the defendant’s] computer,” id. at
UNITED STATES V. PHILLIPS 21
821–22, also disposes of Phillips’s argument, which we have
already addressed, that “given the significant privacy
interests implicated by modern digital devices, [Jacobsen] is
categorically inapplicable to warrantless searches of these
devices, such as Phillips’s personal computer.” Cf. United
States v. Wilson, 13 F.4th 961, 972 (9th Cir. 2021) (declining
to extend Jacobsen to a case where, in response to a Google
report that its algorithm detected a match between images
the defendant had attached to an email and known child
pornography, “the government agent viewed [the] email
attachments even though no Google employee—or other
person—had done so”). Other circuits have also applied
Jacobsen to searches of modern digital devices. See United
States v. Castaneda, 997 F.3d 1318, 1327–29 (11th Cir.
2021); Rivera-Morales, 961 F.3d at 8–11; United States v.
Reddick, 900 F.3d 636, 638–39 (5th Cir. 2018);
Lichtenberger, 786 F.3d at 483–84; United States v.
Goodale, 738 F.3d 917, 921 (8th Cir. 2013); Rann v.
Atchison, 689 F.3d 832, 836–37 (7th Cir. 2012).
Phillips’s objections to the use of evidence obtained from
his computer therefore all fail.
We also reject Phillips’s challenge to three conditions of
his supervised release. Because Phillips signed a valid
appeal waiver, he may argue on appeal only that those
conditions “exceed[] the permissible statutory penalty [for
the crime] or violate[] the Constitution.” United States v.
Watson, 582 F.3d 974, 981 (9th Cir. 2009). Yet our
precedents establish the legality of all the challenged
conditions. See United States v. Gibson, 998 F.3d 415, 422–
23 (9th Cir. 2021) (risk notification), cert. denied, No. 21-
6465 (Jan. 10, 2022); United States v. Ochoa, 932 F.3d 866,
869–71 (9th Cir. 2019) (prohibiting access to material
depicting sexually explicit conduct involving adults to
22 UNITED STATES V. PHILLIPS
defendant convicted of child pornography offense); United
States v. Stoterau, 524 F.3d 988, 1003–04 (9th Cir. 2008)
(polygraph testing).
The judgment of conviction is AFFIRMED.