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36. How should the court rule on the defendant's motion to suppress?
The man was charged with multiple counts of violating federal child pornography statutes. He has moved to suppress the photographs that the woman discovered on his computer. The motion is based on both the Fourth Amendment and a federal statute forbidding interception of electronic communication without permission. The parties have stipulated that the woman's conduct in downloading photographs from the man's computer violated the interception statute.
A woman who is a computer expert decided to dedicate herself to exposing persons who trafficked in child pornography. She posted a number of sexually oriented photographs on her website. The file for each photograph contained an embedded Trojan horse program (a program that would allow the woman to enter the computer of anyone who downloaded the photograph). A man downloaded one of those photographs onto his personal computer. Using the embedded program, the woman entered the man's computer and found a file containing a pornographic photograph of a child. She copied the file and turned it over to a federal law enforcement agency. A federal agent told her that a successful prosecution would require more than one photograph and offered her a monetary reward for additional photographs leading to the man's conviction. The woman entered the man's computer again, and this time she found hundreds of child pornography photographs, which she turned over to the federal agency.
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D is correct. The court should grant the defendant's motion to suppress only as to the second set of photographs, which were obtained in violation of his Fourth Amendment rights. As to the first set of photographs, the woman was acting on her own accord, not as a government agent. This renders the Fourth Amendment inapplicable, as there was no state action. As to the second set of photographs, however, the police encouraged the woman and even offered her a reward for conducting the search, which triggers Fourth Amendment protections for the defendant as he was essentially subjected to a bona fide government search without a warrant.
A is incorrect. This answer is only partially correct. Although the court should deny the motion as to the first set of photographs, it should grant it as to the second set. As explained above, the search that uncovered the second set of photographs was conducted by an actor (the woman) acting on behalf of the government, subject to Fourth Amendment protections.
B is incorrect. This answer is also only partially correct. The woman's first entry of the computer and copying of the file constituted an entirely private search and did not trigger Fourth Amendment protections. However, because she was acting as a government agent in conducting the second (warrantless) search, it was unconstitutional.
C is incorrect. A person's private violation of a statute is not a per se violation of the Fourth Amendment, which requires a separate analysis. As explained above, because authorities encouraged and offered to reward the woman for the second computer search, she was acting as a government agent, in violation of the Fourth Amendment.