UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 20-10304 Plaintiff-Appellee, D.C. No. v. 3:18-cr-00101- MMD-WGC-1 DAREN W. PHILLIPS, Defendant-Appellant. 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; Christo