Opinion
No. 21-36029
12-09-2022
James Brian KLEISER; Advanced Electrical Concepts, Inc., DBA Mr. Electric of Clark County, Plaintiffs-Appellants, v. Benjamin CHAVEZ ; Stephen Thornton; Faith Jeffrey; Washington State Department of Labor and Industries, Defendants-Appellees.
Rachel J. Goldfarb (argued), Praedium Law Group PLLC, Vancouver, Washington, for Plaintiffs-Appellants. Tera M. Heintz (argued), Deputy Solicitor General, Office of the Washington Attorney General, Olympia, Washington; Jeffrey C. Grant, Assistant Attorney General; Robert W. Ferguson, Attorney General; Office of the Washington Attorney General, Seattle, Washington; for Defendants-Appellees.
Rachel J. Goldfarb (argued), Praedium Law Group PLLC, Vancouver, Washington, for Plaintiffs-Appellants.
Tera M. Heintz (argued), Deputy Solicitor General, Office of the Washington Attorney General, Olympia, Washington; Jeffrey C. Grant, Assistant Attorney General; Robert W. Ferguson, Attorney General; Office of the Washington Attorney General, Seattle, Washington; for Defendants-Appellees.
Before: Richard C. Tallman, Ryan D. Nelson, and Danielle J. Forrest, Circuit Judges.
TALLMAN, Circuit Judge:
Plaintiffs-Appellants James Kleiser and Mr. Electric (jointly "Mr. Electric") challenge the district court's grant of summary judgment in this 42 U.S.C. § 1983 action in favor of Defendants-Appellees Benjamin Chavez, Stephen Thornton, Faith Jeffrey, and the Washington State Department of Labor and Industries (together "the Department"). Two disgruntled Mr. Electric employees provided the Department with copious amounts of Mr. Electric's data, particularly printouts of cell site location information that provided GPS coordinates for company vehicles which showed all movement of electricians in the field. The Department used the data to write citations and assess administrative fines against Mr. Electric for violations of Washington's electrical code stemming from improper supervision of journeymen electricians in Clark County.
We resolve an issue of first impression in our Circuit in this published opinion and file a contemporaneous memorandum disposition of the remaining issue in this case.
Mr. Electric filed this § 1983 action against the Department alleging (1) that a Fourth Amendment violation occurred when the Department obtained the data without a warrant and (2) that the Department violated the Washington State Privacy Act when it received a copy of Mr. Electric's data that it then saved to its computer. We AFFIRM.
I
A
Mr. Electric contends that Carpenter v. United States , ––– U.S. ––––, 138 S. Ct. 2206, 201 L.Ed.2d 507 (2018), and United States v. Wilson , 13 F.4th 961 (9th Cir. 2021), foreclose the Department's use of Mr. Electric's location information because, when read together, the cases extinguish the applicability of the private search exception to the Fourth Amendment to location information. This argument overreads the case law.
Carpenter held that the third-party doctrine does not apply as an exception to the Fourth Amendment's warrant requirement when the government seeks cell site location information. 138 S. Ct. at 2219–21. The private search exception is an altogether separate exception to the Fourth Amendment. And while we have recognized in dicta that these two exceptions rest "on the same precepts concerning the equivalence of private intrusions by private parties," Wilson , 13 F.4th at 971 n.9, Carpenter forecloses the expansion sought by Plaintiffs-Appellants. The Court emphasized that the holding in Carpenter was a "narrow one," 138 S. Ct. at 2220, and the opinion never once mentions the private search exception.
The United States Courts of Appeal for both the Sixth and the Eighth Circuits have found that Carpenter does not apply in private search exception cases. United States v. Miller , 982 F.3d 412, 431 (6th Cir. 2020) (finding " Carpenter asked only whether the government engaged in a ‘search’ when it compelled a carrier to search its records for certain information that the government demanded" and "did not cite [ United States v. Jacobsen , 466 U.S. 109, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984) ], let alone address its private-search doctrine"); United States v. Ringland , 966 F.3d 731, 737 (8th Cir. 2020) (finding Carpenter did not apply in a case involving the private search exception).
We join our sister circuits and hold that the dicta from Wilson coupled with the holding in Carpenter does not foreclose the availability of the private search exception when location information is involved. We AFFIRM the district court's ruling finding Carpenter inapplicable in private search exception cases.
B
Mr. Electric next argues that if the private search exception is found to apply, then the district court erred when it granted the Department's motion for summary judgment as the Department failed to show that the requirements for the private search exception were established. We agree with the Department that Mr. Electric waived this argument by failing to raise it before the district court. The record reveals that Mr. Electric made the strategic decision to focus exclusively on the third-party search doctrine and did not brief the private search exception. Therefore, Mr. Electric waived this argument on appeal. We AFFIRM the district court's opinion applying the private search exception in this case.