Case: 20-40752 Document: 00516149382 Page: 1 Date Filed: 12/30/2021
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
December 30, 2021
No. 20-40752 Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Stephen Scott Meals, Jr.,
Defendant—Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:19-CR-36-1
Before Owen, Chief Judge, and Jones and Wilson, Circuit Judges.
Edith H. Jones, Circuit Judge:
Stephen Meals, then thirty-seven years old, used a Facebook
messaging application to discuss with A.A., a fifteen-year-old, their previous
sexual encounters and their plans for future encounters. Facebook
discovered these conversations and forwarded a cyber tip to the National
Center for Missing and Exploited Children (NCMEC). NCMEC reported
to local law enforcement, which then obtained a warrant for Meals’s
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No. 20-40752
electronic devices and found child pornography. Meals, charged with several
counts relating to his child exploitation, moved to suppress the evidence on
the ground that Facebook and NCMEC are government agents. The district
court denied his motion, and Meals pled guilty to production and possession
of child pornography. On appeal, Meals persists in his contention that the
court should suppress the messages and images. The conviction is
Affirmed, because Facebook did not act as a government agent and
NCMEC’s search, assuming that it is a government agent, did not exceed the
scope of Facebook’s cyber tip.
I. Background
Meals’s run-in with the law began when Facebook decided on its own
to surveil, collect, and review his private messages with fifteen-year-old A.A.,
which indicated that Meals and A.A. were in an active sexual relationship.
Facebook decided that the messages violated its terms of service, its
community standards, and probably federal law. In November 2018, after a
Facebook employee reviewed the messages, Facebook sent copies to the
NCMEC via a “cyber tip”.
NCMEC reviewed the cyber tip before forwarding the messages to
local law enforcement in Corpus Christi, Texas, where both Meals and A.A.
lived. Detective Alicia Escobar of the Corpus Christi Police Department
used the messages to obtain a search warrant for the Facebook accounts of
Meals and A.A. The search revealed more conversations confirming Meals’s
sexual relationship with A.A. Detective Escobar then obtained a second
warrant with the additional evidence to search Meals’s electronic devices,
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home, and a trailer. That search uncovered child pornography on Meals’s
devices, consisting primarily of images of A.A. that Meals apparently
produced.
A grand jury indicted Meals in December 2019 on four counts of
production of child pornography, in violation of 18 U.S.C. §§ 2251(a) and
2251(e) (Counts 1–4); and one count of possession of child pornography, in
violation of
18 U.S.C. §§ 2252(a)(4)(B) and 2252(b)(2) (Count 5). Meals
moved to suppress all the evidence. He argued that he had an expectation of
privacy in his Facebook chats; that Facebook and NCMEC violated his
Fourth Amendment rights as government agents when they searched his
messages without a warrant; and that the exclusionary rule’s good-faith
exception was inapplicable. Following an evidentiary hearing, the district
court denied Meals’s motion under the private search doctrine. Specifically,
the district court held that the search did not violate appellant’s Fourth
Amendment rights because Facebook was not the government or one of its
agents, and even if NCMEC were a government agent, neither its conduct
nor local law enforcement’s review of Meals’s messages exceeded the scope
of Facebook’s initial search.
Ultimately, Meals pled guilty on the condition he could appeal the
denial of his suppression motion. The district court sentenced Meals to 600
months of imprisonment, followed by lifetime supervised release. Meals
timely appealed. See Fed. R. App. P. 4(b)(1)(A).
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II. Standard of Review
“When reviewing a denial of a motion to suppress evidence, [this
court] review[s] the district court’s factual findings for clear error and its
legal conclusions, including the ultimate constitutionality of the actions of
law enforcement, de novo.” United States v. Williams, 880 F.3d 713, 717 (5th
Cir. 2018). The facts underlying the suppression determination are reviewed
in the light most favorable to the prevailing party, which in this case is the
Government. United States v. Powell,
732 F.3d 361, 369 (5th Cir. 2013).
Generally, the court “may affirm the district court’s ruling on a motion to
suppress ‘based on any rationale supported by the record.’” United States v.
Wise,
877 F.3d 209, 215 (5th Cir. 2017) (quoting United States v. Waldorp,
404 F.3d 365, 368 (5th Cir. 2005)).
III. Discussion
Under the private search doctrine, when a private actor finds evidence
of criminal conduct after searching someone else’s person, house, papers,
and effects without a warrant, the government can use the evidence, privacy
expectations notwithstanding. United States v. Jacobsen, 466 U.S. 109, 117,
104 S. Ct. 1652, 1658 (1984). In other words, if a non-government entity
violates a person’s privacy, finds evidence of a crime, and turns over the
evidence to the government, the evidence can be used to obtain warrants or
to prosecute. The rationale for this doctrine is obvious. The Fourth
Amendment restrains the government, not private citizens. Burdeau v.
McDowell,
256 U.S. 465, 475,
41 S. Ct. 574, 576 (1921).
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There are two exceptions to the private search doctrine. First, the
doctrine does not apply if the “private actor” who conducted the search was
actually an agent or instrument of the government when the search was
conducted. See Coolidge v. New Hampshire, 403 U.S. 443, 487,
91 S. Ct. 2022,
2048, 2049 (1971). If the private actor was such an agent or instrument, a
warrant is required to authorize the search.
Id. Second, if the government,
without a warrant, exceeds the scope of the private actor’s original search
and thus discovers new evidence that it was not substantially certain to
discover, the private search doctrine does not apply to the new evidence, and
the new evidence may be suppressed. See Walter v. United States,
447 U.S.
649, 657,
100 S. Ct. 2395, 2402 (1980); United States v. Runyan,
275 F.3d
449, 463 (5th Cir. 2001).
To suppress evidence produced by a private actor’s search under one
of these exceptions, the defendant has the burden of proof by a
preponderance. Runyan, 275 F.3d at 456. If the defendant’s proof fails on
either point, the private search doctrine permits use of the evidence privately
gathered. See Jacobsen,
466 U.S. at 117,
104 S. Ct. at 1658.
Meals contends that the district court erred by refusing to find that
(1) Facebook was a government agent when it reviewed his private messages
and reported them to NCMEC; (2) NCMEC exceeded the bounds of
permissible government action by reviewing the messages; and (3) the
government violated Meals’s Fourth Amendment rights under the chattel
trespass doctrine. We address each argument in turn.
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A.
Meals first contends that Facebook was a government agent, not a
private actor, when it searched his messages, rendering the private search
doctrine inapplicable. He cites no factual evidence in support of this
argument, and it is contradicted by an affidavit of a Facebook officer. Instead,
Meals relies on a statute that requires electronic communication service
providers (“internet companies”)1 and remote computing services to send a
cyber tip to NCMEC for all instances of child exploitation that they discover
on their platforms. See 18 U.S.C. § 2258A(a).
Assuming that merely citing a statute in this context could satisfy his
evidentiary burden, Meals’s citation to § 2258A fails. Section § 2258A(a)
mandates reporting child exploitation on internet platforms to NCMEC, but
it neither compels nor coercively encourages internet companies to search
actively for such evidence. In fact, subparagraph (f) of § 2258A states that
“nothing in [§ 2258A] shall be construed to require a provider to—
(1) monitor any user, subscriber, or customer of that provider; (2) monitor
the content of any communication of any person described in paragraph (1);
or (3) affirmatively search, screen, or scan for facts or circumstances
described in sections (a) and (b).” Given this forceful statutory disclaimer
that any search mandate is placed on internet companies, Meals’s effort to
1
“[E]lectronic communication service means any service which provides to users
thereof the ability to send or receive wire or electronic communications[.]” 18 U.S.C.
§ 2510(15) (internal quotation marks omitted).
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characterize Facebook as a mandatory government agent or instrument falls
flat.2
Meals also asserts that this court has no test for determining whether
a private actor acted as a government agent or instrument, that the district
court chose the wrong test, and that if the district court had used the correct
test it would have found that Facebook was a government agent. Specifically,
Meals argues that the district court incorrectly relied on the First Circuit’s
test rather than that of the Sixth Circuit. Compare United States v. Cameron,
699 F.3d 621, 637 (1st Cir. 2012) (using a three-factor test to determine
whether a private actor acted as a government agent), with United States v.
Hardin,
539 F.3d 404, 419 (6th Cir. 2008) (using a two-factor test to
determine whether a private actor acted as a government agent).3 But we
need not address what factors are applicable to the government agent
exception because Meals offered no evidence suggesting that Facebook may
be a government agent. There is no reason to hypothesize standards that
could pertain to evaluating non-existent evidence. Because Meals’s reliance
on § 2258A(a) is misplaced, this contention fails.
2
Section 2258A(e) reinforces this interpretation of § 2258A. Under § 2258A(e),
internet companies face significant fines for failing to report “actual knowledge” of child
exploitation. There are no such fines for internet companies who refrain from searching
through their users’ data to learn such knowledge.
3
The Fifth Circuit has not adopted a government agent test, but the court has used
such tests in similar cases when a guideline was necessary to help sort through the evidence.
See United States v. Pierce, 893 F.2d 669, 673 (5th Cir. 1990) (utilizing a two-factor test to
analyze a case-specific question of whether an airline’s employees were acting as a private
actor or government agent when they searched the defendant’s bags).
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B.
Meals next argues that NCMEC is a government agent that exceeded
the scope of Facebook’s search by reviewing the messages Facebook
provided. Further, NCMEC’s search was excessive because NCMEC was
not substantially certain before reviewing the messages that they were not
products of a reported cyber-attack, nor was it substantially certain that
Meals and A.A. were, respectively, thirty-seven and fifteen years old.
According to Meals’s logic, NCMEC needed a warrant before reviewing
Facebook’s cyber tip.
Contrary to Meals’s supposition, NCMEC is a private, nonprofit
corporation, not a government entity. The government takes no position on
this question, and like the district court, we need not do so either. But
assuming arguendo that NCMEC is a government agent, NCMEC did not
exceed the scope of Facebook’s search by merely reviewing the identical
evidence that Facebook reviewed and placed in a cyber tip. Cyber tips have
“significant indicia of reliability,” and the information contained in such tips
is per se substantially certain. United States v. Landreneau, 967 F.3d 443, 453
(5th Cir. 2020). But regardless of the reliability of cyber tips, substantial
certainty is required only when a government agent opens containers
obtained in the private search but left unopened by the private party. See
Runyan,
275 F.3d at 463. In such instances, the additional evidence must be
suppressed unless the government was “substantially certain” that certain
incriminating evidence would be in the unopened containers. Here, the cyber
tip was the only thing NCMEC “opened,” and it contained only the content
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reviewed and forwarded by a Facebook employee. In a critical distinction
from the Ackerman case on which Meals relies, NCMEC did not and could
not open any non-existent unopened containers, emails, or attachments, and
therefore could not have exceeded the scope of Facebook’s search. See
United States v. Ackerman, 831 F.3d 1292, 1306-07 (10th Cir. 2016). As a
result, even if NCMEC were a government agent, its review of information
obtained by a “search conducted by private citizens [did] not constitute a
‘search’ within the meaning of the Fourth Amendment” because the review
was confined to the scope and product of the initial search. Runyan,
275 F.3d
at 458 (quoting United States v. Bomengo,
580 F.2d 173, 175 (5th Cir. 1978));
see also United States v. Reddick,
900 F.3d 636, 639 (5th Cir. 2018).
Because Meals has not carried his burden concerning NCMEC’s
participation in the search, NCMEC’s review of Facebook’s cyber tip did not
violate his Fourth Amendment rights.
C.
Finally, Meals contends that the district court erred by not applying
the chattel trespass test, as set forth in United States v. Jones, 565 U.S. 400,
132 S. Ct. 945 (2012), rather than the reasonable expectation of privacy test,
when it evaluated whether NCMEC violated Meals’s Fourth Amendment
rights. Meals urges that the district court should have relied on Ackerman,
831 F.3d at 1307-08, in which the Tenth Circuit evaluated the applicability of
the chattel trespass test to the opening of a previously unopened e-mail
attachment.
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The chattel trespass test, like the reasonable expectation of privacy
test, may be relevant when evaluating whether government actions run afoul
of a person’s possessory interests protected by the Fourth Amendment.
Meals has not shown that Facebook acted on behalf of the government.
Thus, the original search was privately conducted. But even if NCMEC is a
government actor, that organization did not access an original file or even a
copy thereof that Meals possessed, consequently, there could be no
governmental “trespassing of a chattel” like the court found in Ackerman. In
Ackerman, as was just explained, NCMEC opened images attached to an
email that had been intercepted before it got to the intended recipient, and
NCMEC’s analyst expanded the scope of the private search by opening those
previously unopened attachments and an unopened email. Id. Accordingly,
the chattel trespass test was not violated in this case.
IV. Conclusion
Because Meals has not carried his burden to show that Facebook is a
government agent or instrument, the private search doctrine applies. Later
investigative techniques employed by NCMEC and government officials did
not impermissibly expand the scope of the original search. The district court
correctly denied Meals’s motion to suppress, and the conviction is
Affirmed.
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