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-seven years old, used a Facebook 

messaging application to discuss with A.A., a fifteen-year-old, their previous 

sexual encounters and their plans for future encounters. Facebook 

discovered these conversations and forwarded a cyber tip to the National 

Center for Missing and Exploited Children (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 

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electronic devices and found child pornography. Meals, charged with several 

counts relating to his child exploitation, 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 act 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 private 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 federal law. In November 2018, after a 

Facebook employee reviewed the messages, 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. Detective Escobar then obtained a second 

warrant with the additional evidence to search Meals’s electronic devices, 

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home, and a trailer. That search uncovered child pornography on Meals’s 

devices, consisting primarily 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 evidence. He argued that he had an expectation of 

privacy in his Facebook chats; that Facebook and NCMEC violated his 

Fourth Amendment rights as government agents when they searched his 

messages without a warrant; and that the exclusionary rule’s good-faith 

exception was inapplicable. Following an evidentiary hearing, the district 

court denied Meals’s motion under the private search doctrine. Specifically, 

the district court held that the search 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 exceeded 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). 

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II. Standard of Review 

“When reviewing a denial of a motion to suppress evidence, [this 

court] review[s] the district court’s factual 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 prevailing 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 district court’s ruling on a motion to 

suppress ‘based on any rationale 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 someone else’s person, house, papers, 

and effects without a warrant, the government can use the evidence, privacy 

expectations notwithstanding. United States v. Jacobsen, 466 U.S. 109, 117, 

104 S. Ct. 1652, 1658 (1984). In other words, if a non-government entity 

violates a person’s privacy, finds evidence of a crime, 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 obvious. The Fourth 

Amendment restrains the government, not private citizens. Burdeau v. 

McDowell, 256 U.S. 465, 475, 41 S. Ct. 574, 576 (1921). 

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 There are two exceptions to the private 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 actor was such an agent 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 may 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 defendant 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 doctrine permits use of the evidence privately 

gathered. See Jacobsen, 466 U.S. at 117, 104 S. Ct. at 1658. 

 Meals contends that the district court erred by refusing to find that 

(1) Facebook was a government agent when 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. 

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A. 

 Meals first contends that Facebook was a government 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 child 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 encourages internet companies to search 

actively for such evidence. In fact, subparagraph (f) of § 2258A states that 

“nothing in [§ 2258A] shall be construed to require a provider to—

(1) monitor any user, subscriber, or customer 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).” Given this forceful statutory disclaimer 

that any search mandate is placed on internet companies, Meals’s effort to 

1

 “[E]lectronic communication service means 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). 

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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 agent 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) (using a three-factor test to determine 

whether a private actor acted 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 applicable to the government agent 

exception because Meals offered no evidence suggesting that Facebook may 

be a government agent. There is no reason to hypothesize standards that 

could pertain to evaluating non-existent evidence. Because Meals’s reliance 

on § 2258A(a) is misplaced, this contention fails. 

2

 Section 2258A(e) reinforces this interpretation 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 internet companies who refrain from searching 

through their users’ data to learn such knowledge. 

3

 The Fifth Circuit has not adopted a government 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 they searched the defendant’s bags). 

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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 search by merely reviewing the identical 

evidence that Facebook reviewed 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 instances, the additional evidence must be 

suppressed unless the government was “substantially 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 

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reviewed and forwarded by a Facebook employee. In a critical distinction 

from the Ackerman case on which Meals relies, NCMEC did not and could 

not open any non-existent unopened containers, 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 government agent, its review of information 

obtained by a “search conducted by private citizens [did] not constitute a 

‘search’ within the meaning of the Fourth 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 review of Facebook’s cyber tip did not 

violate his Fourth Amendment rights. 

C. 

Finally, Meals contends that the district 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 violated Meals’s Fourth Amendment 

rights. Meals urges that the district court should have relied on Ackerman, 

831 F.3d at 1307-08, in which the Tenth Circuit evaluated the applicability of 

the chattel trespass test to the opening of a previously unopened e-mail 

attachment. 

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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 acted 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 “trespassing of a chattel” like the court found in Ackerman. In 

Ackerman, as was just explained, NCMEC opened 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 burden to show that Facebook is a 

government agent or instrument, the private 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. 

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