United States Court of Appeals for the Second Circuit August Term 2024

(Submitted: November 5, 2024 Decided: June 11, 2025)

Docket No. 23-7032-cr

_______________________________________

UNITED STATES OF AMERICA,

Appellee,

v.

WILLIAM HINES,

Defendant-Appellant.

_______________________________________ Before:

SACK, CARNEY, and BIANCO, Circuit Judges.

Defendant-Appellant William Hines appeals from the judgment entered by the United States District Court for the Northern District of New York (Mae A. D’Agostino, Judge), convicting him, pursuant to a guilty plea, on one count of receipt of child pornography, in violation of 18 U.S.C. §§ 2252A(a)(2)(A), (b)(1) (“Count One”); and two counts of possession of child pornography, in violation of 18 U.S.C. §§ 2252A(a)(5)(B), (b)(2), based on child pornography found on his cellphone (“Count Two”), and on his laptop computer (“Count Three”). As part of his plea agreement, Hines reserved the right to challenge the district court’s denial of his motion to suppress evidence obtained from the search of his cellphone and any subsequent evidence derived from that search.

On appeal, Hines argues that his girlfriend, K.S., acted as an agent of the police when she used his password to unlock his cellphone, observed child pornography on that cellphone, and showed those images to a police officer at the police station, and thus, that the evidence obtained during that warrantless search violated his Fourth Amendment rights and should have been suppressed. Hines further contends that, because the probable cause in the subsequent application to obtain a search warrant for his cellphone, laptop, and other electronic devices was based on the initial allegedly unconstitutional search of his phone by the police officer who was present with K.S., the evidence obtained from the execution of that warrant also should have been suppressed.

As a threshold matter, we hold that when a defendant challenges a search conducted by a private party, the burden lies with the defendant to show that the search constituted governmental action implicating the Fourth Amendment—not with the government to show the absence of governmental action. Here, we conclude that the district court did not err in determining, after conducting an evidentiary hearing, that Hines failed to meet his burden of demonstrating that his girlfriend acted as a de facto government agent when she unlocked his cellphone and showed the images of child pornography to the police officer. Moreover, because that private search of his cellphone did not implicate the Fourth Amendment, the district court correctly determined that the use of evidence derived from that private search in a subsequent search warrant application does not provide a basis to suppress evidence obtained from devices searched pursuant to that warrant.

Accordingly, we AFFIRM the judgment of the district court.

Jonathan S. Reiner, Assistant United States Attorney, Of Counsel for Carla B. Freedman, United States Attorney for the Northern District of New York, Albany, New York, for Appellee. Julie A. Nociolo, E. Stewart Jones Hacker Murphy LLP, Troy, New York, for Defendant-Appellant.

JOSEPH F. BIANCO, Circuit Judge:

Defendant-Appellant William Hines appeals from the judgment entered by the United States District Court for the Northern District of New York (Mae A. D’Agostino, Judge), convicting him, pursuant to a guilty ple