As I also explained in that post, to be valid, consent to search has to have been given by someone (i) who had actual authority to consent to the search or (ii) who did not have actual authority to consent but whom officers reasonably (though mistakenly) believed did have such authority.
And as I explained in that post and other posts, to have actual authority to consent to a search of a place or thing, the person giving consent must have joint use and access of the things. So, roommates who share an apartment can each consent to a search of the common areas of the apartment, e.g., the living room, kitchen, etc.
Whether one roommate can consent to a search of the other roommate’s bedroom will depend on the living arrangements, such as whether the roommates have access to each other’s rooms. If, say, one roommate has a lock on his/her door and the other roommate doesn’t have the key to the lock, then the second roommate does not have actual authority to consent to the search, and it would almost certainly be unreasonable for officers to believe he/she did.
One more bit of background and we’ll get to a cybercrime case. In Georgia v. Randolph, 547 U.S. 103 (2006), the U.S. Supreme Court held that if one co-tenant is present and explicitly refuses to consent to a search of property he/she shares with the other tenant, then police cannot search that property based on consent from the other tenant. In the Randolph case, Mr. and Mrs. Randolph were engaged in what seems to have been an ongoing domestic dispute. After one dispute, she called police and when they came to her house, claimed her husband had taken their son without her permission and was a cocaine user. One of the officers turned to the husband and asked him to consent to a search of the house for evidence of cocaine; after the husband refused, the officer turned to the wife and asked her. Not surprisingly, she consented; the police searched, found cocaine and Mr. Randolph was charged with drug possession.
The Supreme Court saidt the consent was not valid: “We hold that a warrantless search of a shared dwelling for evidence over the express refusal of consent by a physically present resident cannot be justified as reasonable as to him on the basis of consent given to the police by another resident.” Georgia v. Randolph, supra.
That brings us to U.S. v. Hudspeth, 518 F.3d 954 (U.S. Court of Appeals for the Eighth Circuit 2008). Here are the facts that led up to the search of the computer:
On July 25, 2002, drug enforcement officers executed a search warrant at Handi-Rak Services, Inc. seeking evidence relating to . . . sales of pseudoephedrine tablets. . . . During . . . the search, officers discovered child pornography on Hudspeth's business computer and homemade compact discs. Hudspeth told Cpl. Nash he downloaded the images from the internet and burned the images onto CDs. Hudspeth was arrested for possession of child pornography. The child pornography discovered on Hudspeth's business computer and the CDs, along with information volunteered by Hudspeth, led Cpl. Nash to believe Hudspeth's home computer also probably contained child pornography. Cpl. Nash asked Hudspeth for permission to search his home computer. Hudspeth refused.U.S. v. Hudspeth, supra. After they arrested Hudspeth, the officers went to his home. They identified themselves, told her Mr. Hudspeth had been arrested for possession of child pornography and told her they believed the family’s home computer also contained child pornography. Corporal Nash asked her for permission to take the home computer so they could search it for child pornography. After trying unsuccessfully to call the family lawyer, Mrs. Hudspeth gave consent for the officers to take the home computer. U.S. v. Hudspeth, supra. Corporal Nash did not tell Mrs. Hudspeth that her husband had denied consent to search the computer. U.S. v. Hudspeth, supra.
They found child pornography on the home computer, which resulted in more charges of possessing child pornography. Hudspeth moved to suppress this evidence, arguing that his wife’s consent to search the computer was not valid under the holding in Georgia v. Randolph. U.S. v. Hudspeth, supra. He lost and appealed the district court judge’s ruling to the U.S. Court of Appeals for the Eighth Circuit. In an appeal, the issue will be heard by a panel of three judges from the Court of Appeals; a majority of the panel that heard Hudspeth’s appeal on this issue held that “Mrs. Hudspeth’s consent did not overrule Hudspeth’s non-contemporaneous objection to the search.” U.S. v. Hudspeth, supra. The government asked the entire Court of Appeals (all of the judges who compromise the Court of Appeals for the Eighth Circuit) to rehear the issue. This post is about their decision, the decision by what is called an en banc panel of a Court of Appeals.
Hudspeth lost. The majority of the en banc panel held that this case differed from Georgia v. Randolph in one important respect: Mr. Hudspeth was not present and objecting when Mrs. Hudspeth consented to the search of the home computer. The en banc panel relied on the language in the quotation from Georgia v. Randolph included above. According to these judges, when the Randolph Court held that the “express refusal of consent by a physically present resident” cannot be overridden by the consent of a co-resident, it meant precisely that. In other words, the en banc panel focused not on the fact that the officers knew Mr. Hudspeth had refused to consent to the search of the computer, but on the fact that he was not present and refusing when his wife was asked to consent to the search.
Three judges dissented. In the dissenting opinion one of them wrote, they cited what they saw as the inherent illogic of the majority’s interpretation of Georgia v. Randolph:
It seems inconceivable to me that a core value of the Fourth Amendment, the expectation of privacy in one's own home, would be dependent upon a tape measure. The objecting co-tenant in Randolph was at the front door. At what point does that co-tenant lose his or her right to object to the search? At the front porch? In the front yard? At the curb? I cannot believe the Supreme Court intended to make one's expectation of privacy dependent upon the happenstance of location.U.S. v. Hudspeth, supra (Melloy, J., dissenting).
For what it’s worth, I tend to agree with the dissenters, at least as long as the officer who is asking a co-tenant for permission to search knows that another tenant has refused to consent.