United States v. Rivera-Morales, 2020 WL 2781636 (1st Cir. 2020)
Jean Carlos Rivera-Morales’ wife borrowed his mobile phone to use in a video game. She took the opportunity to scroll through his pictures to look at photos of their family pets. She found a photo of Rivera-Morales’ penis next to a pair of blurry hands. He told her it was an old photo.
Later that night, the wife retrieved the Rivera-Morales’ phone again. She looked through his recently deleted files and found the same photo. She also found a video of their six-year-old daughter masturbating Rivera-Morales. She kicked him out of the house, but kept his cellphone. She called her uncle, a police officer, for advice.
The wife took the phone to the police on the following day and showed the penis photo and masturbation video to an officer. She later met with an investigator and shared the same files with her. Shortly thereafter, investigators interviewed Rivera-Morales at the police station and he admitted to recording the video. He was charged with production of child pornography.
The police exercised no control over the search, nor did the police exercise control when the wife brought the phone to the police station and showed officers the video.
Rivera-Morales asked the court to suppress the video and his confession. He claimed the officers unlawfully accessed the video because he did not consent to the search and they had no search warrant. The court held that the private search doctrine applied and the officers lawfully viewed the incriminating evidence. The wife was clearly not acting as a government agent when she viewed the images in their home. When she called her uncle, she was consulting with him as a family member, not a police officer. Moreover, he simply told her how to report the matter. He did not view the video nor did he instruct the wife to show it to investigators. When the wife reached the police station, “out of anger and upset,” she showed the video to officers there. The officers never handled the phone.
The court relied on three factors to determine whether a person is acting as an agent of the police when conducting a search: “the extent of the government’s role in instigating or participating in the search, its intent and the degree of control it exercises over the search and the private party, and the extent to which the private party aims primarily to help the government or to serve its own interests.”
In Rivera-Morales’ case, the police had no role in instigating the wife’s search of the phone. She was simply angry and distrustful. The police exercised no control over the search, nor did the police exercise control when the wife brought the phone to the police station and showed officers the video. Though the government has a strong interest in combatting child sexual exploitation, it was clear Rivera-Morales’ wife’s motivations were “purely personal” and “out of pique.” The court upheld Rivera-Morales’ conviction and the 30-year prison sentence.
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