Friday, December 05, 2008

Scope of Consent

As I explained in an earlier post, consent is an exception to the 4th Amendment’s requirement that law enforcement officers get a search warrant before searching your property for evidence of a crime. As an exception, consent eliminates the need to get a warrant.

As I also explained, it’s essentially a waiver. I give up my right not to have my property searched.

But as I think I’ve noted before, consent acts like a contract. That is, my consent to search substitutes for a warrant as long as the officer’s search stays within the scope of what I’ve consented to.

So, if officers stop me and say, “Can we search for car for a stolen rifle”? and I say, “yes,”, they can search my car only in places where a rifle can be. My consent to their searching for a rifle defines the scope of my consent, That means they can’t search in the glove compartment, say.

And that brief introduction leads us to U.S. v. Richardson, 2008 WL 4761735 (U.S. District Court for the Western District of Pennsylvania 2008). The facts in the opinion are too detailed to describe here, so I’ll just summarize essentially what happened.

Law enforcement agents monitoring a website called ILLEGAL.CP, which the court says is “a website that published child pornography,” came to believe that Jamie Richardson had tried to log onto the ILLEGAL.CP site from his home. U.S. v. Richardson, supra. Since they didn’t have the probable cause to get a search warrant for Mr. Richardson’s home computer, three agents decided to go to his house and see if they could get him to consent to a search of the computer. The opinion notes that at least one of them was wearing blue jeans and other civilian clothing, including a jacket that “obscured” his gun “from view.” U.S. v. Richardson, supra.

When they got to the house, they knocked on the front door and Richardson answered. They told him they were “looking into” the possible theft of his identity, including the misuse of one or more of his credit cards. U.S. v. Richardson, supra. They explained all this to Mr. Richardson and his wife while they were all sitting at the Richardson’s kitchen table. In its recitation of the facts, the federal judge notes that the “only purpose of the agents in referring to the fact that someone had improperly used” Richardson’s “credit card was to secure his cooperation; and the content of what was told to the Defendant was not false.” U.S. v. Richardson, supra. They never told him that someone using “his bank account, physical address, email address, IP addresses and . . . phone number” had tried to access the ILLEGAL.CP website. U.S. v. Richardson, supra.

During the course of this discussion, the Richardsons told the agents that “certain occurrences, including previously unauthorized charges to their `credit cards and bank accounts’ and a previous telephone call from a `telemarketer’ may have resulted in theft of their identities.” U.S. v. Richardson, supra. So they were buying the story the agents were giving them. Richardson would later say he never felt he was a suspect in criminal activity, and the court notes that one of the agents “made an inference to the Richardsons that they were victims of identity theft `thoughout the entire time that [the agents] were there.” U.S. v. Richardson, supra.

The agents finally got around to asking about computers in the home. Mr. Richardson apparently told them they had two computers, only one of which worked. U.S. v. Richardson, supra. The agents then asked Mr. Richardson if they could make a mirror image of the hard drive on that computer, and he “orally consented.” U.S. v. Richardson, supra. They left the room and then came back, with a consent to search form, which he signed. U.S. v. Richardson, supra.

During all of this, the agent who taken the lead in the conversation and the effort to get consent, “indicated that the purpose of searching the hard drives was to search `[f]or Internet activity’” but she did not tell “the Richardsons which `violation of law’ she was investigating”. U.S. v. Richardson, supra. She also later admitted that “`I may have used a ruse in the initiation of the interview’ and described her tactic as such: `I explained to him that there was some credit card activity over the Internet and it was his credit card, however, I didn't explain exactly what it was for, what the activity was or the website that was accessed.’” U.S. v. Richardson, supra. I could go on, but it seems pretty clear that Mr. Richardson was consenting to what he thought was a search of his computer for evidence that he’d been the victim of identity theft (when, in fact, he was consenting to its being searched for evidence relating to child pornography).

I’ll skip over the detailed facts in the opinion that describe what follow, and just note that they did, in fact, find child pornography on the mirror image they took of the Richardson computer. Richardson moved to suppress the evidence, arguing that the search the agents conducted was outside the scope of what he had consented to.

The court agreed: “It is clear that in this instance, a search for [child pornography] images on the hard disc drives was outside of the scope of the Defendant's consent to search.” U.S. v. Richardson, supra.
Lieb and the other agents let the vagueness of their reference to `[“llegal”]' credit card activity over the Internet’ permit the Defendant's concern for himself or his wife being a victim of illegal use of their credit card to result in the Defendant's consent to search the two computers for such evidence. . . . However, Lieb's vague description also resulted in the unintended restriction of what one could consider was the objectively reasonable scope of the search.
U.S. v. Richardson, supra. In reaching this conclusion, the court quoted from a Seventh Circuit Court of Appeals decision: “Government agents may not obtain consent to search on the representation that they intend to look only for certain specified items and subsequently use that consent as a license to conduct a general exploratory search.” U.S. v. Dichiarinte, 445 F.2d 126 (7th Cir. 1971).

The court held, therefore, that because “the ICE agents searched for matters beyond the scope of the consensual search, the images of child pornography revealed from the forensic examinations of all computer equipment seized or imaged and obtained must be suppressed as being beyond the scope of the oral and written voluntary consent granted by the Defendant.” U.S. v. Richardson, supra.

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