FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JAMES BRIAN KLEISER; 

ADVANCED ELECTRICAL 

CONCEPTS, INC., DBA Mr. Electric 

of Clark County, 

Plaintiffs-Appellants,

 v. 

BENJAMIN CHAVEZ; STEPHEN 

THORNTON; FAITH JEFFREY; 

WASHINGTON STATE 

DEPARTMENT OF LABOR AND 

INDUSTRIES, 

Defendants-Appellees.

No. 21-36029 

D.C. No. 3:20-cv06079-BJR 

OPINION

Appeal from the United States District Court

for the Western District of Washington

Barbara Jacobs Rothstein, District Judge, Presiding

Argued and Submitted October 17, 2022

Seattle, Washington

Filed December 9, 2022

Before: Richard C. Tallman, Ryan D. Nelson, and Danielle 

J. Forrest, Circuit Judges.
2 KLEISER V. CHAVEZ

Opinion by Judge Tallman

SUMMARY*

Civil Rights

The panel affirmed the district court’s grant of summary 

judgment for defendants in an action brought pursuant to 42 

U.S.C. § 1983 alleging Fourth Amendment and state law 

violations when the Washington State Department of Labor 

and Industries wrote citations and assessed administrative 

fines against plaintiffs based on information obtained, 

without a warrant, from plaintiffs’ disgruntled employees 

which provided cell site location information for plaintiffs’ 

company vehicles.

Plaintiffs argued that Carpenter v. United States, 138 S. 

Ct. 2206 (2018), and Wilson v. United States, 13 F.4th 961 

(9th Cir. 2021), foreclosed the Department’s use of 

plaintiffs’ location information because, when read together, 

the cases extinguished the applicability of the private search 

exception to the Fourth Amendment to location 

information.

The panel noted that although Carpenter held that the 

third-party doctrine does not apply as an exception to the 

Fourth Amendment’s warrant requirement when the 

government seeks cell site location information, the private 

search exception is an altogether separate exception to the 

* This summary constitutes no part of the opinion of the court. It has 

been prepared by court staff for the convenience of the reader.
KLEISER V. CHAVEZ 3

Fourth Amendment. The panel joined other sister circuits 

and held that the dicta from Wilson coupled with the holding 

in Carpenter did not foreclose the availability of the private 

search exception when location information is 

involved. The panel therefore affirmed the district court’s 

ruling finding Carpenter inapplicable in private search 

exception cases. Plaintiffs’ additional argument that the 

Department failed to show that the requirements for the 

private search exception were established was waived 

because it was not raised before the district court. The panel 

addressed plaintiffs’ remaining contentions in a 

contemporaneously filed memorandum disposition.

COUNSEL

Rachel J. Goldfarb (argued), Praedium Law Group PLLC, 

Vancouver, Washington, for Plaintiffs-Appellants. 

Tera M. Heintz (argued), Deputy Solicitor General, Office 

of the Washington Attorney General, Olympia, Washington; 

Jeffrey C. Grant, Assistant Attorney General; Robert W. 

Ferguson, Attorney General; Office of the Washington 

Attorney General, Seattle, Washington; for DefendantsAppellees.
4 KLEISER V. CHAVEZ

OPINION

TALLMAN, Circuit Judge:

Plaintiffs-Appellants James Kleiser and Mr. Electric 

(jointly “Mr. Electric”) challenge the district court’s grant of 

summary judgment in this 42 U.S.C. § 1983 action in favor 

of Defendants-Appellees Benjamin Chavez, Stephen 

Thornton, Faith Jeffrey, and the Washington State 

Department of Labor and Industries (together “the 

Department”).1 Two disgruntled Mr. Electric employees 

provided the Department with copious amounts of 

Mr. Electric’s data, particularly printouts of cell site location

information that provided GPS coordinates for company 

vehicles which showed all movement of electricians in the 

field. The Department used the data to write citations and 

assess administrative fines against Mr. Electric for violations 

of Washington’s electrical code stemming from improper 

supervision of journeymen electricians in Clark County. 

Mr. Electric filed this § 1983 action against the 

Department alleging (1) that a Fourth Amendment violation 

occurred when the Department obtained the data without a 

warrant and (2) that the Department violated the Washington 

State Privacy Act when it received a copy of Mr. Electric’s 

data that it then saved to its computer. We AFFIRM.

1 We resolve an issue of first impression in our Circuit in this published 

opinion and file a contemporaneous memorandum disposition of the 

remaining issue in this case.
KLEISER V. CHAVEZ 5

I

A

Mr. Electric contends that Carpenter v. United States, 

138 S. Ct. 2206 (2018), and Wilson v. United States, 13 F.4th 

961 (9th Cir. 2021), foreclose the Department’s use of Mr. 

Electric’s location information because, when read together, 

the cases extinguish the applicability of the private search 

exception to the Fourth Amendment to location information. 

This argument overreads the case law. 

Carpenter held that the third-party doctrine does not 

apply as an exception to the Fourth Amendment’s warrant 

requirement when the government seeks cell site location 

information. 138 S. Ct. at 2219–21. The private search 

exception is an altogether separate exception to the Fourth 

Amendment. And while we have recognized in dicta that 

these two exceptions rest “on the same precepts concerning 

the equivalence of private intrusions by private parties,” 

Wilson, 13 F.4th at 971 n.9, Carpenter forecloses the 

expansion sought by Plaintiffs-Appellants. The Court 

emphasized that the holding in Carpenter was a “narrow 

one,” 138 S. Ct. at 2220, and the opinion never once 

mentions the private search exception. 

The United States Courts of Appeal for both the Sixth 

and the Eighth Circuits have found that Carpenter does not 

apply in private search exception cases. United States v. 

Miller, 982 F.3d 412, 431 (6th Cir. 2020) (finding 

“Carpenter asked only whether the government engaged in 

a ‘search’ when it compelled a carrier to search its records 

for certain information that the government demanded” and 

“did not cite [United States v. Jacobsen, 466 U.S. 109 

(1984)], let alone address its private-search doctrine”); 

United States v. Ringland, 966 F.3d 731, 737 (8th Cir. 2020) 
6 KLEISER V. CHAVEZ

(finding Carpenter did not apply in a case involving the 

private search exception).

We join our sister circuits and hold that the dicta from 

Wilson coupled with the holding in Carpenter does not 

foreclose the availability of the private search exception 

when location information is involved. We AFFIRM the 

district court’s ruling finding Carpenter inapplicable in 

private search exception cases.

B

Mr. Electric next argues that if the private search 

exception is found to apply, then the district court erred 

when it granted the Department’s motion for summary 

judgment as the Department failed to show that the 

requirements for the private search exception were 

established. We agree with the Department that Mr. Electric 

waived this argument by failing to raise it before the district 

court. The record reveals that Mr. Electric made the strategic 

decision to focus exclusively on the third-party search 

doctrine and did not brief the private search exception. 

Therefore, Mr. Electric waived this argument on appeal. We 

AFFIRM the district court’s opinion applying the private 

search exception in this case.

AFFIRMED.