11th Circuit deepens the circuit split on applying the private search doctrine to computers

[Commentary] On Dec 1, the 11th Circuit handed down a new computer search decision, "United States v. Johnson", that both sharpens and deepens the circuit split on how the private search doctrine of the Fourth Amendment applies to computers. "Johnson" isn’t a likely candidate for Supreme Court review. But it does leave the private search doctrine in computer searches ripe for Supreme Court review in other cases working their way through the courts. Here’s a quick summary of the issue:

Because the Fourth Amendment applies only to the government and its agents, the Fourth Amendment is not triggered when private parties not associated with the government conduct searches. When a private party conducts a search and finds evidence of crime, the private party often goes to the police and voluntarily shows the police what she has found. The Supreme Court uses what I have called the “private-search reconstruction” doctrine to regulate what the police are allowed to see without a warrant. The police can reconstruct the private party search, seeing what the private party saw, but they can’t exceed the search the private party conducted. The 11th Circuit went on to conclude that the violation made no difference because the warrant eventually obtained was based on the other evidence and not that one video. But "Johnson" further deepens the split on how the private search doctrine applies, making it now pretty ripe for Supreme Court review in another case in the not-too-distant future.

[Orin Kerr is the Fred C. Stevenson Research Professor at The George Washington University Law School]