A recent federal case from the Eighth Circuit Court of Appeals -- United States v. Hudspeth, 459 F.3d 922 (8th Cir. 2006) – illustrates the issues that can arise when one person consents to law enforcement’s searching a computer owned/used by someone else.
In 2002, “as part of an investigation into the sale . . . of pseudoephedrine-based cold tablets, the Missouri State Highway Patrol . . . executed a search warrant at Handi-Rak Service, Inc.
As the officers searched the Handi-Rak office computers for evidence within the scope of the warrant, e.g., "papers and/or documents" related to the "inventory of pseudoephedrine based cold tablets”, they ran across a “homemade CD with a handwritten label.” When one officer opened a folder on the CD, he saw child pornography. The Sergeant in charge stopped the officers from searching further and called the U.S. Attorney’s office “for guidance.”
While that was going on, Hudspeth (a) consented to the search of his office computer, in writing and orally and (b) refused to consent to a search or seizure of his home computer. The officers then arrested Hudspeth, believing they had probable cause to believe he possessed child pornography.
They also believed they would find child pornography on his home computer, so they went to his home. The officers introduced themselves to Mrs. Hudspeth, told her they had arrested her husband and asked for consent to search the home computer. She asked “what would happen if she did not consent” and the officer in charge told her “he would leave an armed uniformed officer at the home to prevent destruction of the computer and other evidence while he applied for a search warrant.” After trying unsuccessfully to contact her attorney, Mrs. Hudspeth told the officers they could take the computer. They seized it, took it to their offices, obtained a warrant to search it and found more child pornography on the home computer.
Hudspeth moved to suppress the images found on his home computer, arguing that his refusal to consent to the seizure of his home computer trumped his wife’s subsequent consent to the seizure. To understand his argument, we need to examine consent for a moment.
Consent is an exception to the 4th Amendment’s requirement that police have a warrant to search or seize property. Consent is essentially a waiver of one’s 4th Amendment rights. The Supreme Court held, in United States v. Matlock, 415 U.S. 164 (1974), that co-users of property can each consent to the search or seizure of that property. So here, if Mrs. Hudspeth was a co-user of the home computer, she had the authority to consent to the search or seizure of that computer.
The Matlock Court held that the authority to consent derives not only from sharing ownership of property (thought that works, too), but also from sharing the use of property. Since it seems likely that Mrs. Hudspeth was both a co-owner and a co-user of the property, she had the authority to consent to the seizure of the home computer, which means her consent to the seizure would have been valid . . . had Mr. Hudspeth not refused to consent to that seizure earlier.
A year or three ago, his refusal might not have been important. It’s very likely that, a year or three ago, the Eighth Circuit would have held that Mrs. Hudspeth was a co-owner/co-user of the home computer and so could consent, in her own right, to its seizure. That’s where the law had been. The understanding was that as long as A co-owner/co-user of property consented to a search/seizure of the property, the consent (and the resulting search/seizure) was valid, even though the other owner/user of the property had refused to consent.
That changed, though, earlier this year when the Supreme Court decided Georgia v. Randolph, 126 S.Ct. 1515 (2006). The Randolph Court held that “a physically present inhabitant's express refusal of consent to a police search is dispositive as to him, regardless of the consent of a fellow occupant.” More precisely, Supreme Court held that the consent Scott Randolph’s estranged wife, Janet, gave to the search of the home she still shared with Scott was invalid because her consent came after Scott had refused to consent. (Essentially, the officer asked Scott to consent to a search of the home and, when Scott refused, “turned to Janet Randolph for consent to search, which she readily gave.”)
The Supreme Court held that a co-owner’s/co-user’s consent cannot overrule another “physically present” co-owner’s/co-user’s refusal to consent. In other words, the Court held that police cannot play one "physically present" owner/user off against another, obtaining consent from one in the face of another’s denial.
The Hudspeth Court applied the Randolph holding to the facts before it even though Mr. Hudspeth was not “physically present” when his wife was asked to consent to the search he had rejected. The Eighth Circuit found there are reasons to enforce the refusal to consent of an absent co-owner/co-user, as well as of one who is physically present when the issue of consent is raised and resolved. It therefore held that Mrs. Hudspeth’s consent to the seizure of the home computer was invalid under the 4th Amendment, which may result in the suppression of evidence obtained from that computer.
• If you give others access to your computer (as well as to your other personal possessions or your home or your car), you have assumed the risk they will consent to allow law enforcement officers to search the property in your absence (and, inferentially, when you have not refused to consent to the search). (Since only owners and co-owners can consent to the seizure of property, you assume this risk only if you jointly own the property with someone else, who is present when you are not.)
• If you follow the Eighth Circuit’s rationale, police cannot obtain valid consent from a co-owner/co-user of the property in your absence if you have already refused to provide consent. . . even though you are not "physically present" where the computer is.
• If you read the Randolph Court’s holding strictly – as some will do – then the fact that you have refused to consent may not matter if you refused when you were not physically proximate to the property they want to search. It MAY be (and I emphasize “may”) that the Randolph Court’s holding only applies when you have two co-owners/co-users of property confronting each other, one consenting and one refusing to do so.
What do you think?