Pierre Grosdidier in Law360 - After Riley, Circuits Narrow Private Search Doctrine


Recently, the Sixth and Eleventh Circuits narrowly construed the scope of the private search doctrine as it applies to electronic devices, such as computers, cellphones and storage media.[1] The private search doctrine permits a warrantless government search of a person’s effects subsequent to their search by a private third-party, within limits. This doctrine provides an exception to the Fourth Amendment’s prohibition on warrantless searches. These two 2015 decisions are at odds with two earlier ones by the Fifth and the Seventh Circuits that had broadly construed the doctrine under the same fact patterns.[2] The recent narrow decisions follow the U.S. Supreme Court’s Riley v. California ruling, which stressed the very private nature of the contents of cellphones.[3] Following Riley, therefore, circuit courts are split regarding how broadly the private search of an electronic device opens the door to a subsequent government search of the same device.

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