The Private Search Doctrine and the Evolution of Fourth Amendment Jurisprudence in the Face of New Technology: A Broad or Narrow Exception?

The advent of new technology has presented courts with unique challenges when analyzing searches and seizures under the Fourth Amendment. Out of necessity, the application of the Fourth Amendment has evolved to address privacy issues stemming from modern technology that could not have been anticipated by the Amendment’s drafters. As part of this evolution, the Supreme Court devised the “private search” doctrine, which upholds the constitutionality of warrantless police searches of items that were previously searched by a private party, so long as the police search does not exceed the scope of the private-party search. However, courts have struggled to uniformly apply the private search doctrine to technology because of the sheer volume of information that many technological devices can store and the fundamental differences between these devices and ordinary physical items. As a result, a circuit split has emerged that produces different results depending on how the scope of the initial private party search is defined. This Comment begins by introducing the Fourth Amendment as informed by its history and meaning at common law. It then traces the development of the Court’s Fourth Amendment doctrine from an approach that focused primarily on an individual’s property rights to one that is more concerned with an individual’s personal rights. This Comment then briefly examines the privacy rights that are protected under the Fourth Amendment and the challenges that modern technology presents for those rights. Next, this Comment introduces the private search doctrine, examines how it applies to searches of physical items, and reviews the analysis used by courts to identify whether a police search violated the Fourth Amendment. Furthermore, this Comment describes the circuit split that exists between the Fifth and Seventh Circuits, which adopt the broad view, and the Sixth and Eleventh Circuits, which adopt the narrow view, and the different results that are produced by each approach. Next, it discusses a problem that arises when the private party acts under direction of a government agent to conduct a subsequent search. Finally, this Comment argues that, should the Supreme Court be faced with resolving this circuit split, it should adopt the broad view because it is more in line with the underlying principles of the private search doctrine and the Fourth Amendment