Facts
In November 2019, Sarah and her two minor children, Jane and John, lived with Sarah’s boyfriend, William Jeffrey Knight, who was not the biological father of either child. Sarah had begun to suspect Knight was cheating on her, so she resolved to search his cell phone for evidence of infidelity.
Although Sarah paid for her, Knight’s, and her children’s phones, she needed an excuse to access Knight’s since it was his personal device and was passcode protected. As Knight slept through the early hours of November 7, Sarah turned off her phone and concealed it under their bed. She then woke Knight and claimed that she needed to use his phone to locate her own and to check Facebook. Knight gave Sarah his phone and passcode, but he frantically helped Sarah search the house for her “lost” phone.
Eventually Knight went back to sleep and Sarah began scouring his phone for evidence. During her search, she came across an unfamiliar application—Vaulty—which was protected by a passcode different from the one that unlocked the phone. Sarah researched how to break through the app’s passcode protection. On YouTube, she located a video that instructed her how to do so.
After breaking into the app, she discovered a pornographic video of her twelve-year-old daughter, Jane. The video depicted Jane inserting a sex toy into her vagina. Distraught by her discovery, Sarah quickly and quietly woke Jane and John and took them and Knight’s phone to the Petal Police Department.
Upon arrival, she was greeted by Sergeant David Courtney. Sarah displayed the video for Sergeant Courtney and gave him Knight’s phone and passcode. Sergeant Courtney then contacted the detective on call that night, Sammy Ray. Detective Ray ordered Sergeant Courtney to activate the phone’s airplane mode and to place the phone on a charger. Sergeant Courtney followed the orders and did not search the phone further.
When Detective Ray arrived at the station, he secured Knight’s phone. Sarah told Detective Ray that she had permission to use Knight’s phone and that she paid the bill for the phone. Detective Ray was aware, however, that the phone was Knight’s personal device. He was also aware that Sarah had broken into Vaulty instead of accessing it with a passcode. Sarah gave Detective Ray the phone’s passcode, and once the phone was unlocked, she told Detective Ray how to break into Vaulty and view the video. Detective Ray followed Sarah’s instructions, broke into Vaulty, accessed the video, and viewed it.
After viewing the video, Detective Ray interviewed Jane with Sarah’s permission. In the interview, Jane levied multiple allegations of sexual abuse against Knight. Detective Ray also had Sarah write a statement detailing the events of the morning of November 7 and sign a “Consent to Search” form for her and Knight’s residence. Detective Ray contacted a judge, seeking three warrants—one for Knight’s arrest, one to search Sarah’s and Knight’s residence, and one to search Knight’s phone and laptop. To all three, Detective Ray appended identical underlying facts and circumstances, which chronicled Sarah’s discovery of the video, Detective Ray’s viewing the video and Jane’s allegations. The judge subsequently granted the three warrants.
Detective Ray executed the search warrant for Sarah and Knight’s residence on November 7. At the residence, he seized Knight’s laptop computer. Subsequent forensic analysis of the laptop revealed that it lacked evidentiary value. Forensic analysis of Knight’s phone, however, revealed multiple items of evidence that the State later introduced at trial.
The jury found Knight guilty of two counts of exploitation of a child and for one count of touching a child for lustful purposes., and the circuit court sentenced him to 95 years. On appeal, he argued the phone should have been suppressed and the search warrants were invalid. MSC affirmed.
Analysis
A. Private search doctrine for phone
In the trial court, the State argued that both the third-party consent exception and the private search doctrine applied to the warrantless search of Knight’s cell phone. Because we find that the private search doctrine allows the search, we will not address third-party consent.
SCOTUS first considered the warrantless search of a cell phone in U.S. v Riley, 573 U.S. 373 (2014). Recognizing the unique properties of cell phones, the Court held that the government was prohibited from the warrantless search of cell phones incident to arrest. The Court did, however, leave open the possibility that other exceptions to the warrant requirement may apply to cell phones.
SCOTUS established the private search doctrine in United States v. Jacobsen, 466 U.S. 109 (1984). In Jacobsen, FedEx employees opened an accidentally damaged package to examine its contents pursuant to a company policy regarding insurance claims. They found a suspicious white powdery substance inside, put the substance back into the container (but did not re-seal it), and summoned DEA agents. DEA agents came, took the substance out of the box again, and removed a trace of it for a field test, which revealed that it was cocaine. The Court held that once frustration of the original expectation of privacy occurs, the Fourth Amendment does not prohibit governmental use of the now-non private information. Because the DEA agents did not exceed the scope of the search first conducted by the FedEx employees, the Court held that the agents did not infringe any constitutionally protected privacy interest that had not already been frustrated as a result of private conduct.
Thus, the Court laid the foundation for the private search doctrine, providing that the government does not conduct a search that implicates the protections of the Fourth Amendment when (1) a private individual—not acting as the government’s agent—first conducts the search or seizure, and (2) the government does not thereafter exceed the scope of the private citizen’s initial search or seizure.
A number of jurisdictions derive a third requirement for the private search doctrine to apply from language in Jacobsen. In Jacobsen, the Court remarked that even if the white powder was not itself in “plain view” because it was still enclosed in so many containers and covered with papers, 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 the federal agent anything more than he already had been told. This statement forms the basis for jurisdictions that find that the government must have repeated or built upon the private search with a virtual certainty that information beyond the original search would not be revealed.
The record confirms that Sarah conducted her private search free of government influence and that neither Sergeant Courtney nor Detective Ray exceeded the scope of Sarah’s private search. Whether the actions Sarah took to obtain access to the phone and Vaulty were reasonable or authorized by Knight have no bearing on our analysis of the search conducted by the officers since she was not acting as an agent of the government when she searched the phone.
Sarah brought the phone to the Petal Police Department and showed the video to Sergeant Courtney. Because Sarah showed Sergeant Courtney exactly what she had found and nothing more, Sergeant Courtney would be virtually certain that he would obtain no additional information from the phone’s contents. Likewise, Detective Ray followed Sarah’s specific instructions on how to access the phone and view the video. He did not view any content aside from the video that Sarah previously viewed nor did he attempt to access any other portion of the phone prior to receiving the search warrant. If Detective Ray followed Sarah’s explicit instructions and only viewed the content that Sarah previously viewed, as the record reveals he did, then how could he be anything but virtually certain not to view content beyond what the original search revealed? He could not.
Whether virtual certainty of not viewing any additional content outside what the original search revealed is a requirement or not, we find that it has been satisfied in this case. Therefore, we find that the private search doctrine applies and that the warrantless search of Knight’s phone by Sergeant Courtney and Detective Ray was permissible.
B. Search warrant
The affidavits and the search warrants obtained by Detective Ray contained multiple typographical errors. Knight argues that these errors demonstrate that the judge was not a neutral and detached magistrate. He also argues that the variance between the search warrants and affidavits render the warrants void.
The affidavit for the search warrant for Knight’s cell phone and laptop stated that both electronic devices were located at his residence. In fact, Knight’s phone was already in police custody at the time. The affidavit also stated that the phone and laptop “were used in the death of Franklin Clark,” but no person named Franklin Clark was involved in Knight’s case. The search warrant for his cell phone and laptop indicated the place to be searched as the evidence room at the Petal Police Department, not Knight’s residence like the affidavit stated. The search warrant for Knight’s residence indicated that both his phone and laptop were at the residence when his phone was already in the custody of the Petal police. The affidavit for the search warrant of the home also had an incorrect year, reading November 7, 2018, instead of 2019. The date on the search warrant return was also incorrect, reading 2020 when it should have been 2019.
Knight argues that the judge failed to notice and correct these errors and therefore acted as a rubber stamp for the police. Generally, however, minor clerical errors are not fatal to a search warrant. As a neutral and detached magistrate, the judge’s main inquiry is whether the affidavits and underlying facts and circumstances demonstrated probable cause to grant the warrants. Whether probable cause existed is not challenged by Knight, and it is clear from the testimony at the suppression hearing that the discrepancies were adequately addressed by the trial court. Furthermore, these errors were minor and did not impact the main inquiry whether probable cause existed. Therefore, we find that this issue lacks merit.