FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DAREN W. PHILLIPS,

Defendant-Appellant.

No. 20-10304

D.C. No.

3:18-cr-00101-

MMD-WGC-1

OPINION

Appeal from the United States District Court

for the District of Nevada

Miranda M. Du, Chief District Judge, Presiding

Argued and Submitted November 15, 2021

San Francisco, California

Filed April 29, 2022

Before: Richard A. Paez and Michelle T. Friedland, Circuit 

Judges, and Edward R. Korman,* District Judge.

Opinion by Judge Korman

* The Honorable Edward R. Korman, United States District Judge 

for the Eastern District of New York, sitting by designation.
2 UNITED STATES V. PHILLIPS

SUMMARY**

Criminal Law

The panel affirmed a judgment of conviction in a case in 

which Daren Phillips entered a conditional guilty plea to 

possession of child pornography, reserving the right to 

appeal the denial of his motion to suppress evidence found 

on his laptop computer.

After calling off her engagement to Phillips, Amanda 

Windes discovered child pornography on his computer, 

which she then brought to the Washoe County Sheriff’s 

Office. While Windes was there, Detective Gregory Sawyer 

asked her to show him only images that she had already 

viewed when she had accessed the laptop by herself. Windes

complied with that request.

Phillips moved to suppress on the ground that, because 

Sawyer directed Windes to access the computer without 

Phillips’s permission to show Sawyer what she had already 

seen, Windes’s search of the computer at the sheriff’s office 

was an unlawful law-enforcement search. 

Because the U.S. Attorney does not dispute Phillips’s 

assertion that Windes acted as a state agent when she 

accessed the computer at the sheriff’s office, the panel 

assumed that this was a government search. 

But applying United States v. Jacobsen, 466 U.S. 109 

(1984), and United States v. Bowman, 215 F.3d 951 (9th Cir. 

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

has been prepared by court staff for the convenience of the reader.
UNITED STATES V. PHILLIPS 3

2000), the panel held that the search was permissible 

because, as the parties agree, when Windes accessed the 

child pornography on Phillips’s computer at the sheriff’s 

office, she merely mimicked her earlier private search. The 

panel rejected Phillips’s argument that Jacobsen imposes 

requirements tied to law enforcement’s subjective 

knowledge. The panel distinguished United States v. Young, 

573 F.3d 711 (9th Cir. 2009), on the ground that this case 

does not involve a warrantless entry into a home or its 

equivalent. The panel rejected Phillips’s argument that the 

“common-law trespassory test” set forth in United States v. 

Jones, 565 U.S. 400 (2012), requires suppression in this 

case.

Noting that in light of Phillips’s valid appeal waiver he 

may argue on appeal only that the supervised-release 

conditions he challenges exceed the permissible statutory 

penalty or violate the Constitution, the panel wrote that this 

court’s precedents establish the legality of all the challenged 

conditions (risk notification, prohibiting access to sexually 

explicit conduct material involving adults, polygraph 

testing).

COUNSEL

Aarin E. Kevorkian (argued), Assistant Federal Public 

Defender; Rene L. Valladares, Federal Public Defender; 

Office of the Federal Public Defender, Las Vegas, Nevada; 

for Defendant-Appellant.

William R. Reed (argued), Assistant United States Attorney; 

Elizabeth O. White, Appellate Chief; Christopher Chiou, 

Acting United States Attorney; United States Attorney’s 

Office, Reno, Nevada; for Plaintiff-Appellee.
4 UNITED STATES V. PHILLIPS

OPINION

KORMAN, District Judge:

In early 2018, Amanda Windes decided to call off her 

engagement to Daren Phillips. She believed Phillips had 

been lying to her about his alcohol use and financial troubles. 

She had also found “very inappropriate” text messages 

between Phillips and other women. Windes informed 

Phillips that he was no longer welcome in the house they 

shared. Two days later Phillips acknowledged that he needed 

help for his alcoholism, and Windes drove Phillips to a 

hospital, which arranged for a one-month stay at a residential 

treatment center. Windes had custody of many of Phillips’s 

possessions while he was away, including his laptop 

computer. Windes was contacted by Phillips’s ex-wife, 

Kelly Greek, who was worried about how Phillips would pay 

child support while he was in treatment. Greek also told 

Windes that she suspected that Phillips had watched child 

pornography and that Phillips may have been sexually 

interested in a friend of Greek’s daughter.

Windes decided to examine Phillips’s laptop. She said 

that her primary purpose was to examine his financial 

documents but that she also wanted to see if Phillips had 

been contacting other women and whether he had been 

viewing child pornography. She explained that she was also 

trying “to determine what other issues there w[ere] on top of 

[Phillips’s] alcohol problem for the safety of my children 

and myself.” The laptop was password protected, and 

Windes first tried the password for Phillips’s Netflix 

account, which he had given to her. That password didn’t 

work, so Windes clicked on the laptop’s “forgot your 

password” function, which prompted her to answer 

Phillips’s security questions. She successfully guessed the 

answers to those questions, which allowed her to send a 
UNITED STATES V. PHILLIPS 5

temporary password to her own email account. She was then 

able to reset the password and enter Phillips’s computer.

As Windes browsed Phillips’s computer, she came 

across a folder entitled “phone.” She saw that it was several 

hundred megabytes in size and opened the folder. The folder 

displayed the names of all the files in the folder and their 

associated “thumbnail illustration[s]” (a small photo which 

indicated what each file contained). There were thousands of 

such thumbnail illustrations in the folder. They included 

“pictures of infants and all of their exposed genitalia” and 

“images of young females” who were “very scantily clad and 

[were in] extremely sexually provocative poses.” As she 

scrolled down through the folder, she saw that many of the 

file names indicated how old the children were (from infants 

to teenagers). Windes saw that this “phone” folder contained 

only child pornography. She testified that the images were 

“highly graphic” and left her “disgusted.” She “felt law 

enforcement needed to further investigate.”

Windes first took the laptop to Police Services at the 

University of Nevada (where she worked) and told them 

only that she had a computer that she needed somebody to 

look at. Police Services told her to take the computer to the 

Washoe County Sheriff’s Office (“sheriff’s office”) because 

it did not belong to the university. At the sheriff’s office, 

Windes told the front desk deputy that she had a computer 

that she suspected contained a significant amount of child 

pornography. She was then interviewed by Detective Arick 

Dickson for about two-and-a-half hours. Windes told 

Dickson what she had found and how she had accessed the 

computer. She described in detail many of the thumbnail 

images of child pornography she had seen. She also relayed 

to Dickson her “concerns for . . . [her] children’s safety, 
6 UNITED STATES V. PHILLIPS

especially due to the nature of the material on Phillips’[s] 

laptop.”

Dickson then brought in Detective Gregory Sawyer, who 

asked Windes to show him only images that she had already 

viewed when she had accessed the laptop by herself. Windes 

and Sawyer testified—and the district court found—that 

Windes complied with that request and showed the 

detectives only the thumbnail images and accompanying file 

names she had previously seen while scrolling through the 

“phone” folder. Only Windes operated the computer while 

she showed Sawyer the images. Sawyer recognized some of 

the thumbnail images from prior child pornography 

investigations. Sawyer then seized the laptop and applied for 

and obtained a search warrant. The application included a 

brief written description of two thumbnail images that 

Windes had shown him and the associated file names. A 

subsequent forensic search of the laptop found over 4,750 

images of child pornography and 538 child pornography 

videos.

Phillips was indicted for one count of transportation of 

child pornography, in violation of 18 U.S.C. § 2252A(a)(l), 

and one count of possession of child pornography, in 

violation of 18 U.S.C. § 2252A(a)(5)(B). He moved to 

suppress the evidence from the laptop on the ground that, 

because Sawyer directed Windes to access Phillips’s 

computer without his permission to show Sawyer what she 

had already seen, Windes’s search of the computer at the 

sheriff’s office was an unlawful law-enforcement search. 

After holding a hearing, the district judge denied the motion.

Phillips then entered a conditional guilty plea to one 

count of possessing child pornography, reserving the right to 

appeal the denial of his motion to suppress. Phillips was 

sentenced to 63 months’ incarceration and 20 years of 
UNITED STATES V. PHILLIPS 7

supervised release subject to certain conditions that he also 

challenges on appeal.

DISCUSSION

The Supreme Court has long held that it does not violate 

the Fourth Amendment for a law enforcement officer to 

accept and use evidence that a private party discovers 

pursuant to its own private search, even if that private search 

was unlawful. See Burdeau v. McDowell, 256 U.S. 465, 

475–76 (1921); Coolidge v. New Hampshire, 403 U.S. 443, 

485–90 (1971). This rule is based on the principle that “[t]he 

Fourth Amendment[’s ]protection against unlawful searches 

and seizures . . . applies to governmental action” and “was 

not intended to be a limitation upon other than governmental 

agencies.” Burdeau, 256 U.S. at 475. Moreover, “the 

consequences of Burdeau do not offend the more modern 

rationale of the Fourth Amendment exclusionary rule . . .

[which] is most often explained on grounds of deterrence.” 

1 Wayne R. LaFave, Search & Seizure § 1.8(a) (6th ed. 

2021). Specifically, “extension of the exclusionary rule to all 

private illegal searches for purposes of deterrence would be 

difficult to justify” because “the private searcher . . . is often 

motivated by reasons independent of a desire to secure 

criminal conviction and . . . seldom engages in searches 

upon a sufficiently regular basis to be affected by the 

exclusionary sanction.” Id.; see also United States v. Janis, 

428 U.S. 433, 455 n.31 (1976) (“[T]he exclusionary rule, as 

a deterrent sanction, is not applicable where a private party 

. . . commits the offending act.”). Still, “the issue of precisely 

what it takes to put a search outside the ‘private’ category is 

frequently litigated in a wide variety of settings.” 1 LaFave, 

supra, § 1.8.

This is one such setting. Windes, on her own volition, 

searched Phillips’s laptop and uncovered child pornography. 
8 UNITED STATES V. PHILLIPS

While she may not have had the authority to conduct the 

search on that password-protected laptop, she was clearly 

acting as a private party. Having discovered child 

pornography, and thus finding herself in possession of 

contraband, she decided to take and show it to law 

enforcement authorities. And when she was informed by a 

law enforcement officer that she should access the computer 

so that he could see what she wanted to show him, he made 

it clear that he did not wish to see anything more than what 

she had already seen, and she acted in line with those 

instructions.

1

Phillips asserts that Windes acted as a state agent when 

she completed the second search because she took cues from 

Sawyer when doing so. This argument is premised on 

Sawyer’s effort to ensure that in viewing the materials that 

Windes had already seen and wished to show him, there 

would be no greater invasion of Phillips’s privacy than had 

already occurred. Because the U.S. Attorney does not 

dispute Phillips’s somewhat counterintuitive assertion that 

Windes acted as a state agent when she accessed the 

computer at the sheriff’s office, we assume that this was a 

government search.

Nevertheless, this search was permissible. United States 

v. Jacobsen illustrates “the appropriate analysis of a 

governmental search which follows on the heels of a private 

one.” 466 U.S. 109, 115 (1984). There, FedEx employees 

opened a package, saw it contained a white powdery 

substance, repacked the materials, and alerted the Drug 

Enforcement Administration (“DEA”). See id. at 111. Then, 

a DEA agent reopened the package, removed its contents 

without obtaining a warrant, and found that the white powder 

it contained was cocaine. See id. at 111–12. The Supreme 
UNITED STATES V. PHILLIPS 9

Court held that the FedEx employees’ earlier private search 

and their decision to alert law enforcement to their findings 

made the agent’s warrantless search permissible. The Court 

explained that “the legality of the governmental search must 

be tested by the scope of the antecedent private search.” Id.

at 116. “[I]t hardly infringed respondents’ privacy for the 

[DEA] agent to reexamine the contents of the open package” 

because “the Federal Express employees had just examined 

the package and had, of their own accord, invited the federal 

agent to . . . view[] its contents.” Id. at 119; see id. at 120 

(“Similarly, the removal of the plastic bags from the tube and 

the agent’s visual inspection of their contents [were 

permissible actions because they] enabled the agent to learn

nothing that had not previously been learned during the 

private search.”). We have thus held that Jacobsen 

establishes that, where a private party notifies law 

enforcement of its private search, a state “agent’s 

[subsequent] search is permissible, and constitutional, to the 

extent that it mimic[s the earlier] private search.” United 

States v. Bowman, 215 F.3d 951, 956, 963 (9th Cir. 2000).

That is precisely what occurred here. Windes went to the 

sheriff’s office to alert law enforcement to what she 

uncovered on Phillips’s laptop. Sawyer testified that he told 

Windes to “[j]ust do what you had done and show me what 

you saw.” Windes testified that she “opened up the computer 

and turned it on, used the same password to log into 

Phillips’[s] user name, and then opened up the same Phone 

folder.” She then scrolled down and showed him “the same 

files that [she] saw” the previous night with the same names 

that she had remembered. Id. She “did not access anything 

that [she] had not previously seen.” A video was also 

admitted into evidence of Sawyer recreating the search he 

conducted with Windes, which showed that she did not have 

to “scroll down very far in the ‘phone’ folder before locating 
10 UNITED STATES V. PHILLIPS

the thumbnails corresponding to the filenames and 

descriptions he included in his search warrant affidavit.” 

Based on this evidence, the district court judge found that 

“Sawyer told [Windes] to not show him anything she had not 

already seen, she understood his instruction, and she did not 

show anything she had not already seen.” Indeed, the judge 

“infer[red]” from Sawyer’s admonition that “Sawyer was 

aware of the private search exception and was trying to 

operate within it.”

Although it is possible that—unlike a stagnant 

container—the folder on Phillips’s computer could have 

automatically updated with new material from his phone 

between Windes’s searches at her home and the sheriff’s 

office or that a previously unviewed notification or alert 

could have popped up on the screen, Phillips does not allege 

that his devices were set to do so. Indeed, he concedes that 

the scope of the two searches was the same. Accordingly, we 

accept the district court’s conclusion that, when Windes 

accessed the child pornography on Phillips’s computer at the 

sheriff’s office, she merely “mimicked [her earlier] private 

search.” Bowman, 215 F.3d at 963.1

2

Nevertheless, Phillips argues that the evidence 

uncovered pursuant to Windes’s actions at the sheriff’s 

office must be suppressed for reasons tied to law 

1 Even if Sawyer had inadvertently seen more of Phillips’s computer 

than Windes originally had, at least one circuit has held—as then-Judge 

Sotomayor explained—that “only the information attributable to that 

additional ‘search’ would require suppression,” not the information the 

private individual already uncovered. United States v. $557,933.89, 

More or Less, in U.S. Funds, 287 F.3d 66, 87–88 (2d Cir. 2002) 

(Sotomayor, J.) (emphasis in original).
UNITED STATES V. PHILLIPS 11

enforcement’s subjective knowledge. For example, Phillips 

argues that Jacobsen does not apply because: “Sawyer 

lacked virtual certainty a subsequent search of Phillips’s 

computer would reveal only contraband” or “virtual 

certainty that a subsequent search of the item [would] 

compromise no remaining privacy interest”; and “Sawyer 

did not know the details of Windes’s [prior] search or full 

contents of the folder” containing the child pornography 

before Windes accessed the computer in his presence.2

Phillips relies on language in the Supreme Court’s decision 

in United States v. Jacobsen—language that we repeated in 

United States v. Young, 573 F.3d 711 (9th Cir. 2009). But 

neither case ultimately supports his arguments.

As Phillips points out, Jacobsen states that “[w]hen the 

first federal agent on the scene initially saw the package, he 

knew it contained nothing of significance except a tube 

containing plastic bags and, ultimately, white powder” and 

that, “[e]ven if the white powder was not itself in ‘plain 

view,’ . . . there was a virtual certainty that nothing else of 

significance was in the package and that a manual inspection 

of the tube and its contents would not tell him anything more 

than he already had been told.” 466 U.S. at 118–19; see id.

at 120 n.17 (“[T]he precise character of the white powder’s 

visibility to the naked eye is far less significant than the facts 

that the container could no longer support any expectation of 

privacy, and that it was virtually certain that it contained 

nothing but contraband.”).

But read in context, Jacobsen’s “virtual certainty” 

references—and other similar language—do not create any 

2 Phillips argues that, before Windes accessed the computer in 

Sawyer’s presence, she had only told Detective Dickson what she had 

found and Dickson had not relayed that information to Sawyer.
12 UNITED STATES V. PHILLIPS

subjective requirements for the application of its holding. 

Instead, the language to which Phillips points simply 

articulates an objective test pertaining to the scope of the 

searches. The Court described the DEA agent’s prior 

knowledge of the entire package, as conveyed by the Fedex 

employees, because that knowledge made clear that the 

package had already been thoroughly examined and thus the 

government search could not exceed the scope of those 

employees’ prior one. Indeed, the Court went on to explain:

Respondents do not dispute that the 

Government could utilize the Federal 

Express employees’ testimony concerning 

the contents of the package. If that is the case, 

it hardly infringed respondents’ privacy for 

the agents to reexamine the contents of the 

open package by brushing aside a crumpled 

newspaper and picking up the tube. The 

advantage the Government gained thereby 

was merely avoiding the risk of a flaw in the 

employees’ recollection, rather than in 

further infringing respondents’ privacy. 

Protecting the risk of misdescription hardly 

enhances any legitimate privacy interest, and 

is not protected by the Fourth Amendment.

Id. at 119. The Court’s explanation confirms that a 

government search that does not exceed the bounds of a 

private one is not an invasion of privacy under the Fourth 

Amendment. The only advantage gained by the 

government’s own search is avoiding the private party’s 

“misdescription”—and that is a permissible advantage. 

What was important to the Jacobsen Court was that the DEA 

agent’s search “enabled [him] to learn nothing that had not 

previously been learned during the private search,” not that 
UNITED STATES V. PHILLIPS 13

he have subjective knowledge of what was learned during 

the private search. The description of the DEA agent’s 

knowledge simply made clear that he was not exceeding the 

private search. Id. at 120; see also id. at 116 (“[T]he legality 

of the governmental search must be tested by the scope of 

the antecedent private search.”). “As in other Fourth 

Amendment contexts,” then, the inquiry remains “an 

objective one.” Graham v. Connor, 490 U.S. 386, 397 

(1989); cf. Torres v. Madrid, 141 S. Ct. 989, 998 (2021) 

(“[W]e rarely probe the subjective motivations of police 

officers in the Fourth Amendment context.”).

Here, as in Jacobsen, Windes’s accessing the computer 

in Sawyer’s presence “enabled [Sawyer] to learn nothing 

that had not previously been learned during the private 

search” and was therefore permissible. Id. at 120. But unlike 

Jacobsen, our conclusion regarding the equivalence between

the scope of the searches arises because the record 

demonstrates that Sawyer instructed Windes to recreate her 

prior search so he only saw what she had already seen, and 

Windes abided by those instructions.3

Our opinion in Young, 573 F.3d 711, does not change 

this conclusion. It simply represents an application of the 

Supreme Court’s decision in Stoner v. California, 376 U.S. 

483 (1964). Stoner held that “[n]o less than a tenant of a 

3 Moreover, even if Jacobsen’s application depends on the 

subjective knowledge of the person conducting the search, that test was 

satisfied here. Unlike the DEA agent in Jacobsen, who had not 

conducted the initial search but who had learned about the entire contents 

of the package from the FedEx employees, Windes had previously 

accessed the Phone folder of Phillips’s computer and saw that it 

contained child pornography. Thus Windes—the alleged state agent 

conducting the subsequent search in this case—possessed subjective 

knowledge and virtual certainty of what her search would reveal.
14 UNITED STATES V. PHILLIPS

house, . . . a guest in a hotel room is entitled to constitutional 

protection” from a warrantless entry into his room regardless 

of any prior intrusion or permission given by hotel 

employees. Id. at 490. In Young, hotel security initially 

entered the defendant’s room without his permission to 

investigate whether he had stolen items from another guest, 

and they uncovered a gun in his backpack in addition to other 

items. 573 F.3d at 714. This was a private search that did not 

implicate the Warrant Clause of the Fourth Amendment. 

Nevertheless, the issue in Young turned on a second entry 

into and search of the hotel room by hotel security after they 

contacted law enforcement officers. Id. at 715. “The 

Government d[id] not dispute the district court’s conclusion 

that [hotel] security should be considered state actors for the 

purposes of the second search.” Id. at 717. Thus, Young 

involved a warrantless entry into the defendant’s hotel room 

by state actors against which he was protected by the 

Warrant Clause because “a hotel guest’s . . . room is like a 

home . . . [and the] guest has a legitimate and significant 

privacy interest . . . against unlawful government 

intrusions.” Id. at 721. And, absent exigent circumstances, 

such an intrusion is unlawful if undertaken without a warrant 

or consent of the occupant. See Stoner, 376 U.S. at 489–90; 

see also Payton v. New York, 445 U.S. 573, 589–90 (1980) 

(“[A]t the very core of the Fourth Amendment stands the 

right of a man to retreat into his own home and there be free 

from unreasonable governmental intrusion. . . . Absent 

exigent circumstances, that threshold may not reasonably be 

crossed without a warrant.” (alterations and internal 

quotation marks omitted)).

The language in Young upon which Phillips relies 

appears in our discussion rejecting “[t]he Government[’s] 

argu[ment],” which it had raised “for the first time on appeal, 

that United States v. Jacobsen . . . should be extended to 
UNITED STATES V. PHILLIPS 15

permit the search of Young’s backpack stored in his hotel 

room.” 573 F.3d at 720. Phillips is correct that in Young we 

discussed language from Jacobsen that, by the time the DEA 

agent arrived, “it was virtually certain that [the package] 

contained nothing but contraband.” Jacobsen, 466 U.S.

at 120 n.17; see Young, 573 F.3d at 721. But when we did 

so, it was merely to explain that Young “[wa]s 

distinguishable from Jacobsen” because the hotel security 

“could not have been ‘virtually certain’ . . . that the gun was 

contraband.” Id. After all, unlike narcotics, “[i]t is not a 

crime in most circumstances for a non-felon to possess a 

gun.” Id.

While the two cases were distinguishable in the manner 

Young suggested, it is unlikely this distinction was crucial to 

our decision. Surely, we did not mean to suggest that our 

decision would have been different had the hotel security in 

Young been “virtually certain” as to the nature of the items 

the second search of Young’s hotel room would uncover. 

Indeed, it could not have been. Unlike this case, Young

concerned the unique privacy interests an individual has in 

his residence (and, by extension, a temporary residence like 

a hotel room). See United States v. Lichtenberger, 786 F.3d 

478, 484 (6th Cir. 2015) (“Homes are a uniquely protected 

space under the Fourth Amendment.”). Under Stoner, no 

prior private search and no level of certainty regarding what 

the second search would uncover could have allowed state 

actors to enter Young’s hotel room without a warrant or his 

consent. Young relied expressly on well-settled Supreme 

Court law that “[b]elief, however well founded, that an 

article sought is concealed in a dwelling house, furnishes no 

justification for a search of that place without a warrant. And 

such searches are held unlawful notwithstanding facts 

unquestionably showing probable cause.” 573 F.3d at 721

(emphasis added) (quoting Johnson v. United States, 
16 UNITED STATES V. PHILLIPS

333 U.S. 10, 14 n.14 (1948))).4 Unlike Young, but like 

Jacobsen, this case does not involve a warrantless entry into 

a home or its equivalent. Accordingly, Young does not alter 

the current inquiry.

Phillips also argues that the extensive amount of personal 

information contained in a laptop makes it similar to a 

private residence, meaning that the private search doctrine 

should not apply. An analysis of this argument depends on

to which of the two aspects of the doctrine it refers. The first 

involves an intrusion—even an extraordinarily invasive 

intrusion—by a private party who gives the contents 

discovered pursuant to that intrusion to law enforcement. 

Burdeau v. McDowell, 256 U.S. at 475–76. The validity of 

this conduct does not depend on the extent of the private 

information contained in the object or location on which the 

private party intruded. If there is no state action, there is no 

Fourth Amendment violation. Id.

By contrast, the second aspect of the private search 

doctrine involves “a governmental search which follows on 

the heels of a private one,” Jacobsen, 466 U.S. at 115, and it 

is to this aspect of the doctrine that Phillips’s argument 

refers. While it is true that modern computers contain so 

much personal information that a search of one could 

4 The leading treatise on the Fourth Amendment cites Young

correctly for the proposition that “it is to be doubted that if a private 

person searched the premises of another and then reported to police what 

he had found . . . that the police could then make a warrantless entry of 

those premises and seize the named evidence.” 1 LaFave, supra, § 1.8(b) 

& n.97. Indeed, Young was guided by the analytic framework of the Sixth 

Circuit in United States v. Allen, 106 F.3d 695, 698–99 (6th Cir. 1997),

which specifically rejected the argument that Jacobsen could permit a 

“warrantless search of [a defendant’s] motel room.” See Young, 573 F.3d

at 720–21.
UNITED STATES V. PHILLIPS 17

“expose to the government far more than the most 

exhaustive search of a house,” Riley v. California, 573 U.S. 

373, 396 (2014), and more than the private party had 

previously uncovered, we have already held that the private 

search doctrine does apply to them, see United States v. 

Tosti, 733 F.3d 816 (9th Cir. 2013). We note that unlike in 

Riley, which involved a search incident to arrest, the search 

here involved a clear limiting principle: the private search 

exception allows police to review only the material that a 

private actor has already viewed. Because a digital container 

like “an email account, cell phone, or laptop” is composed 

of many smaller containers, a subsequent government search 

of a single file (or even a number of files) will not frustrate 

an individual’s privacy interest in the entire device. United 

States v. Wilson, 13 F.4th 961, 977 n.13 (9th Cir. 2021). We 

acknowledge that it may be more difficult to have “virtual 

certainty” that a search of an electronic device does not 

reveal more than the private search had already revealed, 

given the dynamic nature of such devices. See United States 

v. Rivera-Morales, 961 F.3d 1, 13 (1st Cir. 2020) (“The 

Court did not define ‘virtual certainty,’ and it is not 

immediately apparent how that concept translates from the 

context of a static object like a package to the ever-changing 

screen on a cellphone.”); see also Lichtenberger, 786 F.3d at 

488. In this case, however, all parties agree that the officer 

did not see anything more than Windes had previously 

viewed, so we need not address this issue.

3

Phillips additionally argues that the Supreme Court’s 

decision in United States v. Jones, 565 U.S. 400 (2012), 

supports reversing the district court’s decision. In Jones, 

police attached a GPS tracking device to a car owned by the 

defendant’s wife without a valid warrant. Id. at 402–03. The 
18 UNITED STATES V. PHILLIPS

district court denied the defendant’s motion to suppress the 

data the police collected from that device, holding that the 

defendant lacked a reasonable expectation of privacy with 

respect to the car’s movements on public streets. Id. at 403. 

The Supreme Court disagreed. It explained that, even if the 

defendant lacked a reasonable expectation of privacy with 

respect to the car’s public movements, the Fourth 

Amendment nonetheless prohibited the police from 

physically trespassing on the defendant’s wife’s car by 

installing and using the tracking device without a valid 

warrant, and the exclusionary rule applied to the fruits of that 

unwarranted trespass. Id. at 404–06.

According to Phillips, Jones’s “common-law trespassory 

test” for Fourth Amendment violations requires suppression 

in this case. Id. at 409. Jacobsen, Phillips says, merely stands 

for the proposition that a private search eliminates an 

individual’s reasonable expectation of privacy with respect 

to an item’s contents. Thus, the fact that Windes had 

previously viewed the files containing child pornography on 

Phillips’s computer only eliminated his reasonable 

expectation of privacy with respect to those files. It did not, 

Phillips argues, give Sawyer the license to instruct Windes 

to again “physically intrude[]” on Phillips’s property—i.e., 

his computer—by “open[ing] the laptop computer, 

enter[ing] the password . . . navigat[ing] to the ‘phone 

folder’ and scroll[ing] through the images.” And, under 

Jones, that intrusion violated Phillips’s Fourth Amendment 

rights.

This argument fails. Even if we attribute Windes’s action 

to the officers and assume that those actions constituted a 

“trespass” of Phillips’s property, Jacobsen, too, involved a 

trespass of the defendant’s property. There, after the FedEx 

employees had opened the defendant’s package and found 
UNITED STATES V. PHILLIPS 19

white powder, the DEA agent reopened the package and 

removed its contents. Yet the Supreme Court permitted the 

warrantless search even though the agent physically intruded 

onto the package. See Jacobsen, 466 U.S. at 118–22. 

Jacobsen thus establishes that law enforcement officers do 

not violate the Fourth Amendment when, as Phillips claims 

occurred here, they mimic the trespass a private individual 

visited on another’s possessions after being alerted to the 

information uncovered pursuant to that trespass. See 

Bowman, 215 F.3d at 956, 963. Jones did not involve any 

aspect of the private search exception, nor did it reference 

Jacobsen. Under these circumstances, we must follow the 

Supreme Court’s instruction that “if a precedent of this Court 

has direct application in a case, yet appears to rest on reasons 

rejected in some other line of decisions, the Court of Appeals 

should follow the case which directly controls, leaving to 

this Court the prerogative of overruling its own decisions.” 

Agostini v. Felton, 521 U.S. 203, 237 (1997) (internal 

quotation marks and citation omitted).

Moreover, our decision in Tosti, which postdates Jones,

is consistent with our rejection of Phillips’s argument. There, 

a computer technician uncovered child pornography on the 

defendant’s computer and alerted the police. Tosti, 733 F.3d 

at 818–19. When two detectives arrived, without first 

obtaining a warrant, one of them “directed [the technician] 

to open the images in a ‘slide show’ format so that they 

would appear as larger images viewable one by one.” Id. 

at 819. The technician then “opened up the individual 

images” as the detective requested. Id. We held that, in light 

of the technician’s prior search, Jacobsen dictated that these 

actions did not violate the defendant’s Fourth Amendment 

rights. Id. at 821–22. Thus, we applied Jacobsen even 

though the technician, at the “direct[ion]” of the detective, 

arguably physically intruded on the defendant’s computer 
20 UNITED STATES V. PHILLIPS

when he “opened up the individual images.” Id. at 819. If 

Jacobsen applied in Tosti, it must also apply here.

Indeed, this case may be a stronger case than Tosti for 

applying Jacobsen. When Windes, acting as a private 

person, discovered the child pornography on Phillip’s 

computer, she had at least two options for bringing it to the 

attention of law enforcement. First, and impracticably, she 

could have entered the sheriff’s office with laptop open and 

the child pornography displayed in plain view. Second, she 

could have entered with the laptop closed and waited until 

she was in a private setting before opening the laptop and 

navigating to the child pornography. Sensibly, she chose the 

second option. And the only direction she received from a 

law enforcement officer was aimed at ensuring that she 

would not intrude on Phillips’ privacy more than she already 

had.

In Coolidge v. New Hampshire, the Supreme Court 

observed in analogous circumstances that had the 

defendant’s wife “wholly on her own initiative, sought out 

her husband’s guns and clothing and then taken them to the 

police station to be used as evidence against him, there can 

be no doubt under existing law that the articles would later 

have been admissible in evidence.” 403 U.S. at 487 (citing 

Burdeau, 256 U.S. 465). Phillips argues that because Windes 

chose the second option, the evidence uncovered pursuant to 

her actions at the sheriff’s office must be suppressed. “[I]t 

would seem strange” if the result in “cases of this kind . . .

[would] ‘turn on the fortuity’ of whether and to what extent 

the private person put the contents back into [or closed] the 

container before the police appeared,” 1 LaFave, supra, 

§ 1.8(b) (quoting Jacobsen, 466 U.S. at 120 n.17).

Tosti’s application of Jacobsen to permit “the 

warrantless searches of [the defendant’s] computer,” id. at 
UNITED STATES V. PHILLIPS 21

821–22, also disposes of Phillips’s argument, which we have 

already addressed, that “given the significant privacy 

interests implicated by modern digital devices, [Jacobsen] is 

categorically inapplicable to warrantless searches of these 

devices, such as Phillips’s personal computer.” Cf. United 

States v. Wilson, 13 F.4th 961, 972 (9th Cir. 2021) (declining 

to extend Jacobsen to a case where, in response to a Google 

report that its algorithm detected a match between images 

the defendant had attached to an email and known child 

pornography, “the government agent viewed [the] email 

attachments even though no Google employee—or other 

person—had done so”). Other circuits have also applied 

Jacobsen to searches of modern digital devices. See United 

States v. Castaneda, 997 F.3d 1318, 1327–29 (11th Cir. 

2021); Rivera-Morales, 961 F.3d at 8–11; United States v. 

Reddick, 900 F.3d 636, 638–39 (5th Cir. 2018); 

Lichtenberger, 786 F.3d at 483–84; United States v. 

Goodale, 738 F.3d 917, 921 (8th Cir. 2013); Rann v. 

Atchison, 689 F.3d 832, 836–37 (7th Cir. 2012).

Phillips’s objections to the use of evidence obtained from 

his computer therefore all fail.

We also reject Phillips’s challenge to three conditions of 

his supervised release. Because Phillips signed a valid 

appeal waiver, he may argue on appeal only that those 

conditions “exceed[] the permissible statutory penalty [for 

the crime] or violate[] the Constitution.” United States v. 

Watson, 582 F.3d 974, 981 (9th Cir. 2009). Yet our 

precedents establish the legality of all the challenged 

conditions. See United States v. Gibson, 998 F.3d 415, 422–

23 (9th Cir. 2021) (risk notification), cert. denied, No. 21-

6465 (Jan. 10, 2022); United States v. Ochoa, 932 F.3d 866, 

869–71 (9th Cir. 2019) (prohibiting access to material 

depicting sexually explicit conduct involving adults to 
22 UNITED STATES V. PHILLIPS

defendant convicted of child pornography offense); United 

States v. Stoterau, 524 F.3d 988, 1003–04 (9th Cir. 2008) 

(polygraph testing).

The judgment of conviction is AFFIRMED.