# United States Court of Appeals **for the Fifth Circuit**

No. 20-40752

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-sev en years old, used a Facebook messaging application to discuss with A.A., a fifteen-year-o ld, their previous sexual encounters and their plans for future encounters. Facebook discovered these conversations and for warded a cyber tip to the National Center for Missing and Exploited Ch ildren (NCMEC). NCMEC reported to local law enforcement, which then obtained a warrant for Meals’s United States Court of Appeals Fifth Circuit 

### FILED December 30, 2021 Lyle W. Cayce Clerk Case: 20-40752 Document: 00516149382 Page: 1 Date Filed: 12/30/2021No. 20-40752

2 electronic devices and found child pornog raphy. Meals, charged with several counts relating to his child exploitati on, 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 ac t 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 priv ate 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 fede ral law. In November 2018, after a Facebook employee reviewed the message s, 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. Dete ctive Escobar then obtained a second warrant with the additional evidence to search Meals’s electronic devices, Case: 20-40752 Document: 00516149382 Page: 2 Date Filed: 12/30/2021No. 20-40752

3 home, and a trailer. That search un covered child pornography on Meals’s devices, consisting prim arily 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 ev idence. He argued that he had an expectation of privacy in his Facebook chats; that Facebook and NCMEC violated his Fourth Amendment rights as governmen t agents when they searched his messages without a warrant; and that th e exclusionary rule’s good-faith exception was inapplicable. Following an evidentiary hearing, the district court denied Meals’s motion under the pr ivate search doctrine. Specifically, the district court held that the sear ch 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 ex ceeded 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). Case: 20-40752 Document: 00516149382 Page: 3 Date Filed: 12/30/2021No. 20-40752

4 II. Standard of Review “When reviewing a denial of a mo tion to suppress evidence, [this court] review[s] the district court’s fa ctual 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 preva iling 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 di strict court’s ruling on a motion to suppress ‘based on any rational e 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 so meone else’s person , house, papers, and effects without a warrant, the gove rnment can use the evidence, privacy expectations notwithstanding. United States v. Jacobsen , 466 U.S. 109, 117, 104 S. Ct. 1652, 1658 (1984). In ot her words, if a non-government entity violates a person’s privac y, finds evidence of a cr ime, 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 obvi ous. The Fourth Amendment restrains the government, not private citizens. Burdeau v. McDowell , 256 U.S. 465, 475, 41 S. Ct. 574, 576 (1921). Case: 20-40752 Document: 00516149382 Page: 4 Date Filed: 12/30/2021No. 20-40752

5 There are two exceptions to the pr ivate 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 acto r was such an agen t 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 ma y 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 defendan t 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 doctri ne permits use of the evidence privately gathered. See Jacobsen , 466 U.S. at 117, 104 S. Ct. at 1658.
Meals contends that the district co urt erred by refusing to find that (1) Facebook was a government agent wh en 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. Case: 20-40752 Document: 00516149382 Page: 5 Date Filed: 12/30/2021No. 20-40752

6 A.
Meals first contends that Facebo ok was a governmen t 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 ch ild 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 enco urages internet companies to search actively for such evidence. In fact, su bparagraph (f) of § 2258A states that “nothing in [§ 2258A] shall be co nstrued to require a provider to— (1) monitor any user, subscriber, or cu stomer 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).” Gi ven this forceful statutory disclaimer that any search mandate is placed on internet companies, Meals’s effort to

1 “[E]lectronic communication service mean s 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). Case: 20-40752 Document: 00516149382 Page: 6 Date Filed: 12/30/2021No. 20-40752

7 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 ag ent 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) (usi ng a three-factor test to determine whether a private actor acte d 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 ap plicable to the government agent exception because Meals offered no evid ence suggesting that Facebook may be a government agent. There is no reason to hypothesize standards that could pertain to evaluating non-existe nt evidence. Because Meals’s reliance on § 2258A(a) is misplaced, this contention fails.

2 Section 2258A(e) reinforces this interp retation 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 in ternet companies who refrain from searching through their users’ data to learn such knowledge.

3 The Fifth Circuit has not adopted a govern ment 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 th ey searched the defendant’s bags). Case: 20-40752 Document: 00516149382 Page: 7 Date Filed: 12/30/2021No. 20-40752

8 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 sear ch by merely reviewing the identical evidence that Facebook revi ewed 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 instance s, the additional evidence must be suppressed unless the government was “s ubstantially 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 Case: 20-40752 Document: 00516149382 Page: 8 Date Filed: 12/30/2021No. 20-40752

9 reviewed and forwarded by a Facebook employee. In a cr itical distinction from the Ackerman case on which Meals relies, NCMEC did not and could not open any non-existent unopened co ntainers, 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 governmen t agent, its review of information obtained by a “search conducted by pr ivate citizens [did] not constitute a ‘search’ within the meaning of the Fo urth 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 re view of Facebook’s cyber tip did not violate his Fourth Amendment rights.
C. Finally, Meals contends that the dist rict 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 vi olated Meals’s Fourth Amendment rights. Meals urges that the dist rict court should have relied on Ackerman , 831 F.3d at 1307-08, in which the Te nth Circuit evaluate d the applicability of the chattel trespass test to the open ing of a previously unopened e-mail attachment. Case: 20-40752 Document: 00516149382 Page: 9 Date Filed: 12/30/2021No. 20-40752

10 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 ac ted 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 “trespassi ng of a chattel” lik e the court found in Ackerman . In Ackerman, as was just explained, NCMEC op ened 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 burd en to show that Facebook is a government agent or instrument, the priv ate 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

. Case: 20-40752 Document: 00516149382 Page: 10 Date Filed: 12/30/2021