EnCase, Consent & Kyllo (2)

Someone sent me two really good questions:

What about someone who consents to a search of his computer without a warrant, but the officer uses Encase by surprise without telling the owner of the computer first? Does this constitute an illegal search because he used technology not available to the general public without the owner's consent?

The questions are a follow-up to my post “EnCase, Consent & Kyllo.”

That post was about whether the use of EnCase to read encrypted files on a computer violated the 4th Amendment as interpreted by the U.S. Supreme Court in the Kyllo case. As I explained in that post and in a prior post, in the Kyllo case the Supreme Court held it is a search under the 4th Amendment for police to use technology that is “not in general public use” essentially to do something they couldn’t without it. In the Kyllo case, the Supreme Court said it was a search for an officer to stand across the street from a home and use a thermal imager to detect the amount of heat emanating from parts of the home; the Court said the officer could not have gotten that information otherwise except by going into the house, which is obviously a search.

So, if police were to use EnCase to find and read files they could not read otherwise, this would be a 4th Amendment search if EnCase is a technology that is not in general public use under Kyllo. If such a use of EnCase is a search, then it would be constitutional only if it were authorized either by a search warrant or by an exception to the search warrant requirement . . . an exception like consent.

So let’s go back to the questions above. To analyze how they should be answered, I need to explain a little about the consent exception, what it is and how it works.

As I said, consent is an exception to the 4th Amendment’s requirement that police must get a search warrant to conduct a search of private places, like homes, offices, cars and computers. Some of the exceptions – like the exigent circumstances exception – track the 4th Amendment by requiring that officers have probable cause to believe they will find evidence in a particular place if they search it.

These exceptions, most notably the exigent circumstances exception, simply excuse the officers from getting a warrant on the theory that it’s not practicable to get a warrant when you’re dealing with an exigency. The exigencies the exception encompass go to things like entering to prevent the destruction of evidence or save a hostage or prevent a suspect from fleeing. The notion that is if officers took time to get a warrant in situations like this, evidence might be lost, a suspect might get away and/or someone might be injured because officers waited too long to enter.

The consent exception is different. It does not require that officers have probable cause to conduct a search because it’s based on the notion of waiver. Each of us has certain constitutional rights – like the 5th Amendment right not to be compelled to incriminate yourself or the 4th Amendment right to be free from unreasonable searches and seizures – that, in effect, “belong” to us. That means they don’t apply if we don’t want them to apply. It’s up to me whether I want to give up my 4th Amendment right and let police search my house or give up my 5th Amendment right and talk to the police or to a grand jury. The consent exception is based on waiver; I waive – give up – my 4th Amendment rights.

For a search based on the consent exception to be valid, the person who gave the consent must have done so voluntarily; police can’t coerce you into giving up your 4th Amendment or other rights. And the consent exception is to some extent analogous to a contract; that is, the exception applies only as long as and to the extent that you gave up your 4th Amendment rights and allowed the police to search for, and seize, evidence.

That second issue goes to what is known as scope. To be constitutional, an officer’s search of a person or a place or a thing must remain within the scope of the consent the person gave. As federal district court noted, a “search conducted pursuant to consent may not exceed the scope of the consent sought and given.” U.S. v. Benezario, 339 F. Supp.2d 361 (D. Puerto Rico 2004). Here is how one court explained the scope aspect f consent searches:

[T]he scope of the permissible search is limited to the consent given. . . . When the state relies on consent to support a search, it must prove . . . that officials complied with any limitations on the scope of the consent. . . .The scope of a person's consent does not turn on what the person subjectively intended. . . . [I]t turns on what a reasonable person would have intended. . . .The specific request that the officer made, the stated object of the search, and the surrounding circumstances all bear on our determination of the scope of a person's consent.

State v. Fugate, 210 Or.App. 8, 150 P.3d 409 (Or. App. 2006).

So let’s go back to the questions we started with. Let’s assume the officer says to the owner of the computer, “Can I search your computer of (let’s say) fraud?” The owner of the computer says, “yes, you can.” So the owner of the computer consents to a search of his computer, the scope of which is limited to finding evidence of fraud. (That MIGHT somehow limit the files the officer could look at, but probably not; courts have generally found that because files can be re-named, it’s not necessarily a problem if the officer looks at jpg and other files that might not seem to be related to fraud.)

Now let’s assume the officer uses EnCase (which he just happens to have with him and whips out, somehow) in the search. Let’s further assume that because the officer uses EnCase he is able to find evidence of fraud he would not otherwise have been able to find; as I noted in the earlier post, he’s able to read password-protected files because he’s using EnCase.

The question is whether the incremental use of EnCase to conduct the search exceeds the scope of the consent given. The computer owner could argue that he implicitly consented to a traditional search – a visual and tangible inspection by a human being acting without the assistance of special technology (technology not in general public use under Kyllo). The computer owner would say implicitly assumed this was the kind of search he was consenting to because he was not aware of EnCase or of the possibility it could be used to let the officer find things he could not have found if he only used his own senses and skills to conduct the search.

The officer could argue, in response, that the computer owner consented to a search of the computer that was designed to locate fraud, and that the search he conducted – with EnCase – did not exceed the scope of that consent. The officer would point out that this was not a case in which a police officer was given consent to search for X but instead proceeded to search for Y (maybe in addition to X). The officer might also say that the use of EnCase goes not to the SCOPE of the search but to its thoroughness, i.e., it did not let him search for more than he was authorized to search for; it simply let him conduct a better search for the item(s) he was authorized to search for given the cowner’s consent.