Be careful what you consent to

In this post, I want to talk, again, about how courts are struggling to define the permissible scope of a consent search when that search involves a computer or other digital storage media.

More precisely, I want to use a Michigan case to illustrate the issues that can arise when someone consents to a search of their property.

As I’ve said before, the Fourth Amendment’s default position is that police must obtain a search warrant (actually a search and seizure warrant, since it lets police seize any evidence they find while searching) before they can lawfully search a place in which someone has a reasonable expectation of privacy.

As I’ve also said before, this default position is subject to a number of exceptions, each of which eliminates the need for police to obtain a search (and seizure) warrant.

One of these exceptions, which I’ve talked about before, is consent. Consent is basically a waiver of your Fourth Amendment right to privacy. If a police officer, say, stops you as you are walking down the street carrying an opaque bag and says, “Hey, can I search your bag?” and you say “sure,” then you’ve waived your Fourth Amendment right to privacy in the bag. You’ve also implicitly consented to let the officer seize any evidence of a crime he finds there. Evidence of a crime conceptually falls into two categories: contraband (things, like drugs and child pornography, the possession of which is prohibited, so they are illegal in themselves) and non-contraband items that are evidence of the commission of a particular crime (a murder weapon, for example).

So, if you consent to a search of a thing or a place under your possession and control, your consent substitutes for a search (and seizure) warrant). Consent, though, works a little differently than the other exceptions (and search warrants too, for that matter). The other exceptions (and search warrants) are based on probable cause, and that defines the scope of a search. So, if an officer has a warrant to search your home for 2 stolen big-screen TVs (of a particular, described type), she can search your home (i) only for those TVs and (ii) only until she finds both of them. So probable cause both authorizes and limits the scope of the search.

Consent is different, and can be trickier. Consent is basically a contract between you and the state. The officer, representing the state, asks for consent to conduct a specific search, as in my example above. In that example, the police officer asked for consent to search the bag and you, hypothetically, said “yes” (often a bad idea, btw). The contract that arose between you and the government allowed the officer to search this bag, and only this bag, and to search it for . . . whatever, basically, . . . since the object of the search was not specified.

And that’s an important aspect of consent. If you decide to consent to a search, you should think about precisely what you are consenting to. You can set limits on a search. If, say, an officer asks for consent to search your car, you can say something like, “all right, but you can only search the passenger compartment.” By doing that, you’ve limited how far the officer can go. And, too, remember that you can always call off the contract. That is, you can always revoke your consent to search (at least, until they find something, then other exceptions might kick in).

Okay, with that as background, let’s talk about a car consent search.

Here are the essential initial facts in People v. Dagwan, 269 Mich. App. 338, 711 N.W.2d 386 (Mich. App. 2005):

[Michael Dagwan] entered the Michigan State Police post in St. Ignace and asked Sergeant Amy Pendergraff how he could transfer his Michigan sex offender registration to Massachusetts. Pendergraff contacted Trooper Elaine Bitner at the State Police post in Sault Ste. Marie. Trooper Bitner told Sergeant Pendergraff that [Dagwan] was being investigated for a possible sex offender registry violation. . . .Trooper Bitner asked Sergeant Pendergraff to detain [Dagwan], so she searched [him[ for weapons, then placed him in a holding cell. Soon thereafter, Trooper Bitner told Sergeant Pendergraff that the Chippewa County prosecutor had authorized a complaint for an arrest warrant charging [Dagwan] with a sex offender registry violation and asked her to arrest [him] on the basis of this probable cause

People v. Dagwan, supra.

Sergeant Pendergraff told Dagwan he was under arrest and, according to the opinion, he “then consented to a search of his car. Sergeant Pendergraff stated that when she asked [Dagwan] if he was freely giving consent and . . . would sign a written consent form, he said yes. . . . Sergeant Pendergraff testified [at the suppression hearing that]: `He said yes. I got the form, filled it out. He read it over. He signed it.’” People v. Dagwan, supra. The consent form Dagwan signed gave the Michigan State Police his consent to “`conduct a complete search of the motor vehicle owned by me and/or under my care, custody, and control, including the interior, trunk, engine compartment, and all containers therein[.]’” People v. Dagwan, supra.

Sergeant Pendergraff took Dagwan outside; he unlocked the car so she could search it. She found a laptop in the car and gave it to Detective Sergeant Robin Sexton to search. People v. Dagwan, supra. Detective Sexton, “who had special training in computer data recovery,” did a quick search of the contents of the laptop and found child pornography on it. People v. Dagwan, supra. This, of course, resulted in Dagwan’s being charged with possessing child pornography, which only compounded the legal problems he had to face.

Dagwan moved to suppress the child pornography, arguing that the search of his computer exceeded the scope of his consent to search the car. In other words, he argued that his “consent contract” encompassed only the car, not the laptop. And the trial court agreed. It “granted the motion, concluding, in essence, that `containers,’ as referred to in the consent form, did not include `the inner workings of the computer.’” People v. Dagwan, supra.

The prosecution appealed, and the Michigan Court of Appeals reversed the trial court’s decision. Here is the appellate court’s reasoning:

[W]e conclude that it was objectively reasonable for the police to believe that defendant's consent included consent to examining data stored within the laptop found in defendant's car. First, the object of the police search was broad: to look for anything illegal, including stolen property. We conclude that a reasonable person would know that computers may be used to commit crimes. . . . Further, we conclude that a reasonable person would know that computers can contain illegal child sexually abusive material in the form of stored electronic images. . . . Second, the written consent to search that defendant signed. . . . agreed to permit the police to `conduct a complete search of [his] motor vehicle ..., including the interior, trunk, engine compartment, and all containers therein[.]’

The wording of the written consent is plain and unambiguous, so the police were objectively reasonable in believing that defendant consented to their examining data stored on the laptop. . . . `Complete’ is defined as “having all parts or elements; lacking nothing; whole; entire; full; ... thorough; total; undivided, uncompromised, or unqualified[.]” Random House Webster's College Dictionary (1992). A `container’ is “`anything that contains or can contain something. . . .’ Id. . . . Because a computer can store data in its memory, and thus act as a container, here of illegal child sexually abusive material, it was objectively reasonable for the police to believe that the scope of defendant's consent permitted them to examine the contents of the computer found inside the automobile. . . . Consequently, we conclude that a reasonable person would have understood that defendant's consent was broad enough to encompass a review of the computer's stored data. . . .

People v. Dagwan, supra. The appellate court also found it significant that Dagwan never either revoked the consent he had given to search the car or tried to limit the scope of the search. So, it reversed the trial court, which means the images found on the laptop could be used against him.

I don’t know what happened to Dagwan, other than that the prosecution apparently was resumed.

What I think is interesting, and instructive, about this case is that it illustrates the difficulties courts are having with the concept of computers as “containers.” Courts generally agree that computers are “containers” of a sort, as indeed they are. They contain “data.” Courts struggle, though, with whether computers are “containers” like the traditional, tangible, real-world containers we’ve always dealt with or whether they are different, somehow. . . . whether, basically, they represent an incremental container, one that encompasses a greater level of privacy than do conventional, physical containers. You can see that theory in the trial court’s opinion, noted above.

The other, I think, instructive aspect of this case goes back to the title of this post: Be careful about consenting to a search under any circumstances, but be particularly careful if a search could encompass a laptop or other computer device. If you have no problem with police’s searching your laptop or desktop computer or Blackberry or cell phone or whatever, then go ahead. But if you are at all concerned about their doing so, keep this decision in mind. The decision to consent, or not to consent, is entirely up to you, as is the scope and the duration of the search that results from your consent.