EnCase, Consent & Kyllo

This is a follow-up to the post I did on Monday (“Encase and Consent to Search a Computer”). It’s actually a follow-up to the thoughtful and thought-provoking comments sankyu contributed to that post.

The issue I raised in my post was whether the police’s using EnCase to search a hard drive – with the consent of someone who owned/had legitimate access to the hard drive – violated the 4th Amendment insofar as the search bypassed password protected files on the hard drive.

As sankyu correctly pointed out, the case I wrote about in the post – People v. Brown – didn’t really raise that issue because the password protected data on Brown’s hard drive consisted of e-mail data, not files created and stored directly on the computer.

I’d like to speculate a bit about how I think that issue should be resolved, once it’s finally raised in a state or federal case. To do that, I need to recap several principles of 4th Amendment law.

As I’ve noted repeatedly in posts on this blog, the 4th Amendment creates a right to be free from “unreasonable” searches and seizures. To be “reasonable,” a search and/or seizure has to be predicated in a search warrant or on an exception to the search warrant requirement, such as consent. A “search” violates a reasonable expectation of privacy in a place or a thing; as I explained in an earlier post, to have a reasonable expectation of privacy in a place or thing (i) you must subjectively believe that place or thing is private and (ii) society must accept your subjective belief in its privacy as being reasonable. So, if I were to conduct an incriminating conversation on my cellphone while standing in the waiting area of a gate at an airport, I couldn’t successfully argue that it was a search for law enforcement officers to listen to what I said. I might say that I, personally, thought my conversation was private (however incredible that assertion might be), but a court would simply hold that no reasonable person – i.e., society as a whole – would not have though it was.

One of the exceptions to the search warrant requirement is consent. As I noted in the post I did Monday, to be able to consent to a search of a place or thing, you must have the authority to do so. As I explained in the past, the U.S. Supreme Court has held that authority to consent derives from “common use and access” to the place or thing to be searched; for more on that, see my “Encase and Consent to Search a Computer” post.

The Supreme Court has also held, though, that consent to search will be valid if police reasonably BELIEVE someone has authority to consent to a search, even though they actually do not. In Illinois v. Rodriguez, 497 U.S. 177 (1990), Chicago police met with

Gail Fischer, who showed signs of a severe beating. She told the officers she had been assaulted by Edward Rodriguez earlier that day in an apartment on South California. Fischer stated that Rodriguez was asleep in the apartment, and she consented to travel there with the police . . . to unlock the door with her key so the officers could enter and arrest him. . . . Fischer . . . referred to the apartment . . . as `our’ apartment, and said she had clothes and furniture there. It is unclear whether she indicated that she currently lived at the apartment, or . . . used to live there.

The officers drove to the apartment . . . accompanied by Fischer. They did not obtain . . . a search warrant for the apartment. At the apartment, Fischer unlocked the door . . . and gave the officers permission to enter. They moved . . . into the living room, where they observed . . . cocaine. They proceeded to the bedroom, where they found Rodriguez asleep. . . .. The officers arrested [him] and seized the drugs and related paraphernalia.

Illinois v. Rodriguez, supra. Rodriguez moved to suppress the evidence seized from his apartment on the grounds that Fischer, who had moved out of the apartment weeks earlier, did not have authority to consent to the search. The U.S. Supreme Court agreed that she did not have actual authority, but held that if the police reasonably believed she did have such authority, based on her having a key to the apartment and referring to it as “our” apartment, the search was “reasonable” under the 4th Amendment. This is one of several cases in which the Court has held that “reasonable” mistakes do not violate the 4th Amendment.

The final 4th Amendment principle is the Kyllo holding, which I wrote about a couple of months ago. In Kyllo, the U.S. Supreme Court said it is a 4th Amendment search for police to use technology that is “not in general public use” to discover evidence from inside a home. The Kyllo case was about a search of a home, so that last part may be irrelevant; we’re really not sure yet. But we do know that law enforcement’s using technology which is “not in general public use” to find evidence is a search; the premise is that it lets officers do something the general public cannot. So if the police have, say, a super-advanced radiation detector that lets them look through the walls of my house to see what nefarious activities I’m up to inside, that’s a search . . . as long as the general public doesn’t have access to these detectors. (As I explained in my earlier post, we have no idea what happens once a technology moves into general public use; in terms of this hypothetical, it probably means privacy is dead.)

Now, let’s finally get back to hard drives and EnCase. Assume a variation of the Brown scenario: John and Jane Doe are married and jointly use a desktop computer that sits in their family room. Police suspect John is downloading child pornography, but don’t have enough probable cause to get a warrant to search the house and the computer. So they come to the house and ask Jane if she will consent to their searching the computer. She agrees (maybe she’s mad at John, maybe she doesn’t realize this probably isn’t a very good idea).

Assume, as I said, that John and Jane both use the computer. Further assume that each “protected their personal files with passwords,” so that Jane “did not have access to” John’s files and vice versa. This was the situation in Trulock v. Freeh, 275 F.3d 391 (4th Cir. 2001). In Trulock, Conrad, Trulock’s roommate, consented to a search of the computer they jointly used, though as you can perhaps tell from the quoted passages above, neither knew the other’s passwords.

The Court of Appeals held that the search of Trulock’s files violated the 4th Amendment because (i) Conrad did not have actual authority to consent to the search, since she could not access those files and (ii) the agents who conducted the search could not have believed she had actual authority to consent to the search because she did not know Trulock’s passwords.

So what do we do with the Jane and John Doe hypothetical? Assume, first, that the police try to access John’s password-protected files and are unable to do so; they ask Jane for his password and she says she doesn’t know it (and it isn’t written nearby on a post-it or whatever). Further assume that the agents seize the computer and the facts play out as they did in the Brown case, i.e., use EnCase to copy the hard drive and then search it for incriminating evidence. The search bypasses John’s password. Does this search violate the 4th Amendment? The agents know Jane doesn’t have authority to consent to a search of the hard drive, so the search cannot be justified on the basis of the consent exception.

Is the officer’s using EnCase to copy and then search the data on the hard drive a 4th Amendment “search”? One could argue, I suppose, that it’s not a search because it’s not conducted by a human being; the program does all the work. I’m pretty dubious that this argument will ever fly.

I think the critical issue here is the Kyllo issue: Is EnCase a technology that is “not in general public use”? If it is, then there’s an argument – maybe a good argument – that this is not a search; if it is not, then there’s an equally good argument that it is a search. (As to the implications of the whole “in general public use” requirement, see my earlier post on that topic.)

I keep waiting for a Kyllo argument to be made with regard to the use of EnCase. As sankyu noted, last year the U.S. Court of Appeals for the Tenth Circuit ruled on an appeal (U.S. v. Andrus) that involved the validity of a third-party consent search case – a father’s consent to search a son’s computer. There was an EnCase issue, but as the Tenth Circuit noted in denying Andrus’ request for rehearing on the appeal, Andrus did not raise the Kyllo issue until he asked for rehearing . . . which was just too late. He forfeited his right to have the issue considered by waiting so long to raise it.