Scope of Consent (2)

This post is a follow up to a post I did last year, which dealt with consents to search a person or property. In that post, I explained that consent is an exception to the 4th Amendment’s requirement that officers get a warrant to search a person or a place.

In that post, I also explained that consent acts like a contract: the officer’s search will not violate the 4th Amendment as long as the search stays within the scope of what I consented to. So if an officer stops my car and says, “Can I search your car for a stolen rifle?” and I say “yes,” the officer can search the car only in places where a rifle could be. The officer could not, for example, open the glove compartment. If the officer goes outside the scope of the search I consented to, that portion of the search violates the 4th Amendment and any evidence the officer found will be suppressed.

This post is about a recent opinion that considered whether the search of a computer exceeded the scope of the owner’s consent to the search. The case is U.S. v. Luken, 2009 WL 875033 (U.S. Court of Appeals for the Eighth Circuit 2009). Here are the facts that led to the court’s considering the scope of consent issue:

An Immigration and Customs Enforcement investigation revealed that two credit card numbers believed to be Luken's were used in 2002 and 2003 to purchase child pornography from a website in Belarus. On July 25, 2006, three law-enforcement officers visited Luken at his place of employment. One of the officers, Agent Troy Boone of the South Dakota Department of Criminal Investigation, informed Luken that the officers believed Luken's credit card had been used to purchase child pornography. Boone told Luken the officers wanted to speak with Luken privately about the matter and look at his home computer. Luken agreed to speak with them at his home and drove himself to his house to meet them.

Upon arriving at Luken's home, Luken allowed the officers to enter his house. Luken's wife was home, so Boone offered to speak with Luken privately in Boone's car. Luken agreed. Once inside the car, Boone informed Luken that Luken did not have to answer any questions, was not under arrest, and was free to leave. Luken nevertheless agreed to speak with Boone. Luken discussed the nature of his computer use and knowledge. He admitted to purchasing and downloading child pornography for several years. He also admitted to looking at child pornography within the previous month. He stated, however, that he believed he had no child pornography saved on his computer.

After Luken admitted to viewing child pornography, Boone asked Luken if officers could examine Luken's computer. Boone explained the nature of computer searches to Luken and told Luken that, even if files had been deleted, police often could recover them with special software. Boone asked Luken if a police search would reveal child pornography in Luken's deleted files. Luken stated that there might be `nature shots’ on his computer, i.e., pictures of naked children not in sexually explicit positions, that he recently viewed for free. Boone then asked Luken to consent to a police search of Luken's computer, and Boone drafted a handwritten consent agreement stating, `On 7-25-06, I, Jon Luken, give law enforcement the permission to seize & view my Gateway computer.’ Luken signed and dated the agreement.

After seizing Luken's computer, Boone obtained a state search warrant to examine it. Boone . . . sought a warrant because he feared Luken would revoke his consent. That warrant, which . . . was good for ten days, gave police permission to search the computer for `[c]ontraband, the fruits of crime, or things otherwise criminally possessed’. . . . Boone removed the hard drive from Luken's computer and sent it to a state laboratory for analysis. He then left the state for computer-forensics training.

When Boone returned to South Dakota in late August, he discovered the state crime lab was backlogged and had not yet analyzed Luken's hard drive. At Boone's request, the lab returned the hard drive to Boone and Boone used forensic software to analyze it. Boone discovered approximately 200 pictures he considered child pornography. After speaking with a federal prosecutor, Boone randomly selected 41 of those pictures for which to prosecute Luken. Based on those 41 pictures, a grand jury indicted Luken for possession of child pornography.

U.S. v. Luken, supra.

Luken moved to suppress the evidence found on his computer, arguing that Boone’s search of the computer hard drive violated the 4th Amendment for either or both of two reasons: (i) It exceeded the scope of the consent he gave Bone; and/or (ii) it was not justified by the search warrant because Boone’s search was conducted weeks after the search warrant expired. Appellant’s Brief, U.S. v. Luken, 2008 WL 822651.

In moving to suppress, Luken argued that he consented to law enforcement’s “viewing” the computer, not searching it. Neither the federal magistrate nor the federal district court judge who each ruled on Luken’s motion bought his argument:

The magistrate held in his report and recommendation that Luken's consent to a `view’ was sufficient to permit a full forensic examination of his computer's hard drive because that is what Boone, who wrote out the consent, assumed it meant. The district court adopted this reasoning. In judging the scope of Luken's consent, however, it is not what Boone believed that mattered but what Luken reasonably intended. Since Boone chose the language and wrote the consent Luken signed, any ambiguity or discrepancy between what Boone thought he had done and what Luken believed he was permitting must be resolved strictly against Boone as the drafter of the document. . . .

Appellant’s Brief, U.S. v. Luken, 2008 WL 822651. (In the federal system, federal magistrates often make the initial decision on a motion to suppress evidence by writing what's called a report and recommendation; a federal district court judge usually reviews the magistrate’s decision and either accepts it or comes up with an alternative decision.)

Luken appealed the federal district court’s denial of his motion to suppress to the U.S. Court of Appeals for the Eighth Circuit. On appeal, he reiterated his argument that he consented to viewing the hard drive, not searching it:

What Boone meant by his use of the term `view’ was unclear. Though Boone claimed it was obvious because he had been talking to Luken about how deleted images could be retrieved from a computer using special software, Boone, for whatever reasons, chose not to make it clear in the consent he drafted that this was actually what he intended to do. Obviously, Boone could have clearly said what he later claimed to have meant. He did not do so, however.

The words chosen by Boone when he drafted the consent are not just words. Those words have a meaning. In common parlance, the term view normally means nothing more than to `look at.’ Any reasonable person would have understood the term `view’ in this context to mean that Boone wanted to turn on Luken's computer and look through the files readily viewable on the machine.

The prosecution must show a reasonable person in Luken's position would have understood Boone, by use of the term `view,’ meant to conduct a full scale forensic examination of the hard drive in Luken's computer using special software not already on the computer to discover hidden files unknown to Luken. This the prosecution did not do. The subsequent forensic examination of the hard drive and discovery of thumbs.db files cannot, therefore, be justified by Luken's consent for Boone to `view’ his computer.

Appellant’s Brief, U.S. v. Luken, 2008 WL 822651.

The Eighth Circuit didn’t buy Luken’s argument:

[W]e agree with the district court that a typical reasonable person would have understood that Luken gave Boone permission to forensically examine Luken's computer. Boone made it apparent to Luken that police intended to do more than merely turn on Luken's computer and open his easily accessible files. Boone explained that police possessed software to recover deleted files and asked Luken specifically if such software would reveal child pornography on Luken's computer. Luken responded by telling Boone such a search would likely reveal some child pornography. He then gave Boone permission to seize and view the computer. In that context, a typical reasonable person would understand the scope of the search that was about to take place.

U.S. v. Luken, supra. The Eighth Circuit also held that since Luken had consented to the search of his computer, there was no need for it to consider his residual argument, i.e., that the search was invalid because the search warrant expired before it was conducted.

Aside from anything else, this case illustrates how important it is for officers to use very precise language when they ask someone to consent to a search (or, to a lesser degree, to a seizure of property). The consent exception works like a contract: I give up my 4th Amendment rights to the extent -- and only to the extent -- that I specifically surrendered those rights to the officer who asked me to do so. If the officer's request isn't clear, that can cause problems for the prosecution down the road.

Here's the example I use to illustrate this in my criminal procedure class: Officer Doe stops Sam Smith's car because Smith is speeding. After Doe gives Smith a ticket for speeding, the stop should be over, but Doe wonders if Smith might have drugs in his car. Since Doe doesn't have probable cause to search the car under the vehicle exception, the only way he can search it is if Smith consents.

So Doe says to Smith, "Mind if I search your car?" If Smith says "no," has he consented to a search of the car? If Smith says "yes," has he consented to a search of the car?

There are a few state cases that deal with this exact issue. The "Smith" in one of them said that when the officer asked, "mind if I search your car?" he said "no," meaning "no I don't want you to search my car." He said that when the officer went ahead and searched the car, he thought he couldn't stop him, because, he claimed, the officer had ignored his original refusal.

Alternatively, if the person says "yes" when the officer asks if he can search the car, that could mean the person is in effect saying "no -- don't search my car" or it could mean "yes -- you can search my car."

If the officer just asks, "can I search your car for drugs?", that avoids any ambiguity and any need to resolve those ambiguities on a motion to suppress and/or on appeals from the denial of a motion to suppress. And the same principle applies whether the officer is asking for consent to search a car, a house or a computer.