Private Search

by Charles Gillingham

An interesting article about a child pornography prosecution in Los Angeles was published last week and it raises the issue of when does someone become a government "agent."  It becomes important when officers are asking the public to take an action or using evidence discovered by the public to further an investigation. 

Best Buy has a central computer repair location in Kentucky.  Technicians work to retrieve data on disabled or damaged hard drives sent there from everywhere in the country.  Prior to sending the hard drive, the local Best Buy store has the customer sign a waiver that states in part, "authorities will be notified if child pornography is discovered on the hard drive."  In recent years multiple workers have notified the FBI when they see signs of child pornography and they get paid for their information.

The defendant here gave his hard drive to a local Best Buy in Los Angeles. The hard drive was sent to Kentucky. At the repair location, it turns out that eight technicians operated as confidential informants to the FBI.  All received payments for their information. 

It is clear that a private search is legal. The defendant authorized it and it is a private search. At what point does a civilian become a government agent?

Multiple cases have upheld civilian searches turning over information to law enforcement.  United States v. Hall, 142 F.3d 988, 993 (7th Cir. 1998)

If you are given information from a civilian, a wife, a friend, a child, a computer repairman, all of whom are not government agents, the receipt of that information is legal.  Look at one or two images and get a warrant.  That is the safest procedure.  There are cases which say you may search everywhere the civilian did but why take a chance?  The safe route is to briefly look at the evidence and then use probable cause to obtain a warrant. 

What if the civilian is judged a government agent?  In other words, someone working at the direction of or in concert with, law enforcement?  You need to ask questions; what is the scope of the consent to the civilian?; what type of access does the civilian have?; are there any limitations on the consent they were given to control the item of location?  The court will look in detail at the relationship between the civilian and the suspect.  You need to ask detailed questions about what the scope of consent is, whether the civilian is taking direction from law enforcement, and whether the civilian intended to assist law enforcement based upon some other inducement. 

The bottom line is, when dealing with civilians who are giving you consent or who have performed a private search, ask a lot of questions and document them in your offense report.  The more answers we have up front, the more likely it is that our evidence can be used at trial. Stay safe.