JAMES KLEISER V. BENJAMIN CHAVEZ ( 2022 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
No. 21-36029
JAMES BRIAN KLEISER;
ADVANCED ELECTRICAL
D.C. No. 3:20-cv-
CONCEPTS, INC., DBA Mr. Electric
06079-BJR
of Clark County,
Plaintiffs-Appellants,
OPINION
v.
BENJAMIN CHAVEZ; STEPHEN
THORNTON; FAITH JEFFREY;
WASHINGTON STATE
DEPARTMENT OF LABOR AND
INDUSTRIES,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Washington
Barbara Jacobs Rothstein, District Judge, Presiding
Argued and Submitted October 17, 2022
Seattle, Washington
Filed December 9, 2022
Before: Richard C. Tallman, Ryan D. Nelson, and Danielle
J. Forrest, Circuit Judges.
2 KLEISER V. CHAVEZ
Opinion by Judge Tallman
SUMMARY *
Civil Rights
The panel affirmed the district court’s grant of summary
judgment for defendants in an action brought pursuant to 42
U.S.C. § 1983 alleging Fourth Amendment and state law
violations when the Washington State Department of Labor
and Industries wrote citations and assessed administrative
fines against plaintiffs based on information obtained,
without a warrant, from plaintiffs’ disgruntled employees
which provided cell site location information for plaintiffs’
company vehicles.
Plaintiffs argued that Carpenter v. United States, 138 S.
Ct. 2206 (2018), and Wilson v. United States, 13 F.4th 961(9th Cir. 2021), foreclosed the Department’s use of
plaintiffs’ location information because, when read together,
the cases extinguished the applicability of the private search
exception to the Fourth Amendment to location
information.
The panel noted that although 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, the private
search exception is an altogether separate exception to the
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
KLEISER V. CHAVEZ 3
Fourth Amendment. The panel joined other sister circuits
and held that the dicta from Wilson coupled with the holding
in Carpenter did not foreclose the availability of the private
search exception when location information is
involved. The panel therefore affirmed the district court’s
ruling finding Carpenter inapplicable in private search
exception cases. Plaintiffs’ additional argument that the
Department failed to show that the requirements for the
private search exception were established was waived
because it was not raised before the district court. The panel
addressed plaintiffs’ remaining contentions in a
contemporaneously filed memorandum disposition.
COUNSEL
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.
4 KLEISER V. CHAVEZ
OPINION
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”). 1 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.
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.
1
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.
KLEISER V. CHAVEZ 5
I
A
Mr. Electric contends that Carpenter v. United States,
138 S. Ct. 2206 (2018), and Wilson v. United States, 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(1984)], let alone address its private-search doctrine”);
United States v. Ringland, 966 F.3d 731, 737 (8th Cir. 2020)
6 KLEISER V. CHAVEZ
(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.
AFFIRMED.