Hastings Constitutional Law Quarterly


The Private Search Doctrine permits the government to search property that a private citizen previously gained access to and searched, resulting in discovery of contraband. This Doctrine provides that the subsequent search by the government does not constitute a Fourth Amendment "search." Thus, the government does not need to obtain a warrant prior to examining the property and only infringes on an individual's Fourth Amendment rights if the scope of the search exceeds the bounds permitted by the court in that jurisdiction. Different circuits have taken conflicting approaches in determining the appropriate scope of a follow-up search under the Private Search Doctrine-some circuits use the "closed container" approach, which permits the government to examine all the contents of a "container" including items that the private citizen did not see; other circuits use the "duplicate search" approach, which limits the scope of what the government can examine to only the items the private citizen originally saw. Due to the development of modem technology and the Supreme Court's recent holding in Riley v. California, it is imperative that courts agree on an approach applied when the search involves an electronic device.

This Note argues that the duplicate search approach should be adopted by all courts when examining electronic devices-limiting the scope of a warrantless, follow-up search to only a duplicate search of what the private citizen conducted. Part I of this Note provides the background of the Private Search Doctrine. Part II describes, in detail, the conflicting approaches circuit courts have used when addressing the scope of a follow-up search under the Private Search Doctrine: "closed container" versus "duplicate search." Part III ultimately advocates that courts should adopt the duplicate search approach because a narrower reading of the Private Search Doctrine as it applies to electronic devices is consistent with the sentiments expressed in Riley.