For most cellphone owners, the pocket-size device has become their address book, photo album, personal journal, bank account, news source, calendar, social network, and a slew of other services. In a recent ruling, U.S. Supreme Court Chief Justice John Roberts pointed out that the “cellphone and its role in today’s society” makes the device “indispensable to participation in modern society.”


Individual privacy is locked, coded, or otherwise secured in virtually all cellphones. Information contained in these rectangular devices is not intended for sharing with anyone other than the owner. The individual privacy features of cellphones even preclude spouses, life-partners, children or best friends from snooping around in the device.


Right to Privacy in Cellphone


But with the right to cellphone privacy is attached an individual responsibility to keep the device secure and inaccessible to public scrutiny. A cellphone left on a restaurant table does not enjoy a constitutionally protected right to privacy. The right to privacy attaches only when the cellphone is under the custody and control of its owner. This was evidenced by a July 6, 2018 decision by the Eighth Circuit Court of Appeals.


Terance Morice Highbull was a live-in partner with a Sioux Falls, South Dakota woman named Michelle Janis. The couple had been having a domestic dispute several days running before Janis’s young son called the Sioux Falls Police Department on February 19, 2015 to report that a man was harassing his mother. Officer Andrew Mattson was dispatched to the scene. The officer’s body microphone picked up Janis telling Officer Mattson: “I wanted to sign a complaint on him (Highbull). He went and had pictures of my daughter naked, and she’s only 13.”


Janis then pointed to a red Ford Taurus whose engine was running and told the officer that the vehicle belonged to Highbull. Mattson ran a license plate check on the vehicle which revealed that the vehicle did in fact belong to Highbull and that it was registered at Janis’s address. The officer then observed Janis enter the vehicle, at which time he asked her if she was “going to get the keys.” Janis simply turned the engine off, leaving the keys in the vehicle.


Janis returned to where Officer Mattson was standing. She informed the officer that during the period in which she and Highbull had been engaged in the domestic dispute she accessed Highbull’s cellphone and discovered naked photos of her teenage daughter. She did not immediately call the police.


“Do you have the phone?” Officer Mattson inquired?


Janis turned and walked back toward the Taurus, stammering (as the appeals court described it) that, “Um, I don’t know if it’s this … I think it’s … I don’t know … I think he does have one. He probably got rid of it or whatever.”


Officer Mattson’s backup arrived. Janis reentered the Taurus at which time she found Highbull’s cellphone after approximately a 30-second search.


Officer Mattson had not directed Janis to either enter the Taurus or conduct the cellphone search.


Neither Janis nor Mattson could find the photos on the phone. Janis explained they were “deeper in the phone.”


Officer Mattson explained to Janis that he did not have probable cause to arrest Highbull based solely on her statements about the nude photos but added that he would take the phone for further investigation. A forensic analysis conducted pursuant to a search warrant discovered the naked photos.


Private Search of Cellphone


Highbull was subsequently indicted for the federal offense of sexual exploitation of a child. His attorney immediately sought to have the photo evidence suppressed because of an illegal search of Highbull’s cellphone. The attorney argued that Janis was acting as an “agent or instrument of the government” when she entered Highbull’s Taurus, searched it, and removed his cellphone from the vehicle, giving it to Officer Mattson.


That became the sole constitutional issue in the case.


Highbull’s attorney strenuously argued that the only reason Janis entered the Taurus a second time was to aid law enforcement by searching for and seizing Highbull’s cellphone she believed contained the unlawful photos. This, the attorney argued, was evidenced by Janis’s initial statement to Officer Mattson’s that she wanted to “sign a complaint” on Highbull, and by the fact that the officer asked her if she knew where the cellphone was.


4th Amendment and Private Actors, Agents of Government


The U.S. Supreme Court has long held that the Fourth Amendment extends only to actions taken by government officials or to those acting as government actors. The Fourth Amendment does not protect against a search by a private party, regardless of its circumstances.


The question of whether a private party is acting as an “agent or instrument of the government” turns, as the Eighth Circuit noted, “on the degree of the government’s participation in the private party’s activities”—a question that can be answered only “in light of the circumstances” of each given case. This factual inquiry, as handed down by the Supreme Court, must focus on the following three factors:


  1. Whether the government had knowledge of and acquiesced in the intrusive conduct;
  2. Whether the citizen intended to assist law enforcement or instead acted to further his own purposes; and
  3. Whether the citizen acted at the government’s request.


There is no question that Janis intended to assist Officer Mattson went she searched for and found Highbull’s cellphone. The record is also equally clear that Janis was not acting at Officer Mattson’s specific request when she conducted the cellphone search. She went to the vehicle on her own.


Case Approached Constitutional Grey Zone


There is a serious gray, however, as to whether Officer’s Mattson’s query “do you have the phone” to Janis created an implied knowledge on the officer’s part that Janis was going to search for the cellphone the second time she entered the Taurus. If that implied knowledge did in fact exist, then Officer Mattson’s decision to let Janis search the Taurus means he acquiesced to her search.


Given the facts laid out by the Eighth Circuit, we believe that Janis was acting as a government agent when she searched Highbull’s vehicle and seized his cellphone because she had a specific intent to aid Officer Mattson; that the officer had sufficient knowledge that Janis entered the Taurus a second time to search for the cellphone; and that he acquiesced to that search. The Eight Circuit disagreed and affirmed the conviction, finding the search was private action and not protected under the Fourth Amendment.


This case could easily be decided differently by another federal appeals court, just as we see it.


But the most significant takeaway in this case is this: a cellphone owner has the responsibility to keep their device under their own personal custody and control at all times, even if it means sleeping with it under their pillow.