Passwords, Friends and Assumption of Risk

As Wikipedia notes, the 4^th Amendment creates a right to be free from “unreasonable” searches and seizures conducted by law enforcement officers.

As Wikipedia also explains, to be “reasonable” a search or seizure has to meet certain requirements, the default requirement being that it was conducted to a warrant based on probable cause and issued in accordance with certain procedures.

Another way a search or seizure can be reasonable is if the person whose property is being searched and/or seized consents to the search/seizure. As I noted in a post I did last year, consent substitutes for a warrant because it constitutes your waiving your 4^th Amendment rights.

This post is about a case in which the issue was whether a computer was lawfully searched under the consent exception to the 4^th Amendment’s warrant requirement. The case is U.S. v. Stanley, __ F.3d __, 2011 WL 3275959 (U.S. Court of Appeals for the 9^th Circuit 2011), and it involves one of the more convoluted set of facts I’ve seen in a consent case.

Here, according to the 9^th Circuit’s opinion, is how the case and the issue arose:

[While] [Kevin] Stanley and his girlfriend Tiana Stockbridge lived together . . ., [they] jointly owned and used the computer. Each had his and her own directories and folders on the computer which were tied to individual user names, `Kevin’ for Stanley and `Tiana’ for Stockbridge. Stanley had his material `password protected’ . . . and took steps to hide his cache of child pornography in the computer's subsystems. . . .

When [they] ended their relationship in 2004, Stanley moved and took the computer with him. Subsequently, he removed the password-protection from the computer, leaving Stockbridge's files intact.

In 2004, after Stanley was arrested on state child molestation charges, Stockbridge went to [his] residence and took . . . the computer, at the behest of Stanley's parents. Stanley acquiesced in her acquisition and possession of it, expecting he would get it back after serving his sentence, presumably with the child pornography intact. . . Neither Stanley nor his parents placed any restrictions on [her] use of or access to the computer.

About one and one-half years later, [it] `crashed’. . . Stockbridge gave it to a friend to fix, but he failed. . . . [I]n early 2006, [she] gave it to [David Trimm] . . . to repair. . . . As Trimm examined the . . . the computer, he noticed files suggesting child pornography. This posed problems for Trimm because he was on federal probation for a drug felony, so he called Stockbridge, advised her of his predicament, and asked permission to turn the computer over to his probation officer. . . . Trimm . . . gave him permission to do so, and he did. . . .

U.S. Probation Officer Daniel Vianello called Immigration and Customs Enforcement Special Agent Michael Prado . . . and told him Trimm, one of his supervises, had given him a hard drive that possibly contained child pornography. A few days later, Prado met with Trimm, who filled him in on the computer's history and what he believed it contained. Trimm told Prado Stanley and Stockbridge were joint owners of the device. Agent Prado then took possession of it. . . .

Prado [called] Stockbridge. . . . to determine . . . that she was a joint owner of the computer and thus could consent to its search. . . . Stockbridge confirmed that she `jointly owned’ it and consented to its search for illicit material.

U.S. v. Stanley, supra.

According to Stanley’s brief on appeal, at this point

despite claiming to have consent, the agents sought a search warrant, which a magistrate in Fresno, California did issue, in September 2006. . . . The search warrant required the agents to search the computer within ten days, . . . but the agents completely ignored this requirement. Instead, they searched the computer nine months later.

Appellant’s Opening Brief, U.S. v. Stanley, 2010 WL 6762760 (emphasis in the original). The other agent was ICE Agent Solorio, who actually examined the computer. U.S. v. Stanley, supra, Government’s Answering Brief, 2010 WL 6762761. According to the prosecution’s brief, Solorio

did not begin his forensic examination of the computer prior to the expiration date of the search warrant, because he was busy conducting forensic examinations in other investigations and because he believed he nevertheless had authority to search the computer hard drive pursuant to Ms. Stockbridge's consent.

U.S. v. Stanley, supra, Government’s Answering Brief, supra. When he examined it, Solorio found “numerous images and videos depicting child pornography”, which led to Stanley’s being indicted for possessing and receiving child pornography in violation of 18 U.S. Code § 2252A. U.S. v. Stanley, supra, Government’s Answering Brief, supra.

Stanley moved to suppress the evidence, arguing that the warrant was void by the time the search was conducted. Appellant’s Opening Brief, U.S. v. Stanley, supra. The district court judge agreed, but denied the motion to suppress on the grounds that Stockbridge’s consent authorized a complete search of the computer. Appellant’s Opening Brief, U.S. v. Stanley, supra. As part of Stanley’s motion to suppress, Stockbridge submitted a “declaration” in which she said she “did not recall the agent ever asking her if she would consent to let the hard drive be searched and he said something that gave her the impression he or other agents had already begun searching the computer.” Appellant’s Opening Brief, U.S. v. Stanley, supra.

The district court judge denied the motion to suppress, in part, because he rejected the credibility of Stockbridge’s declaration, since her “credibility in connection with” it was “seriously . . . undermined by her recent engagement to be married to Stanley.” U.S. v. Stanley, supra. Stanley then conditionally pled guilty, which meant he reserved his right to appeal the denial of his motion to suppress. U.S. v. Stanley, supra.

As I explained in an earlier post, to be valid consent to search a place or thing must be given by someone who either has actual authority to consent or whom the officers that are seeking consent reasonably believe has authority to consent. The latter is known as apparent authority. If you’d like to read more about that, check out this Wikipedia entry.

Stanley argued, on appeal, that “because his pornographic material was `password-protected’ before he went to prison, and that prior to going to prison his files and hers were segregated from each other, Stockbridge did not and could not have had the authority two years later to consent to the search.” U.S. v. Stanley, supra. The 9^th Circuit didn’t agree: “Among other deficiencies in this argument, when the computer came into Stockbridge's sole possession and custody after Stanley went to prison, his material was no longer password-protected, as his attorney conceded during oral argument.” U.S. v. Stanley, supra. The court also noted that “at the time she consented to the search, Stockbridge had had total and unfettered control of the unprotected computer . . . for two uninterrupted years during Stanley's time in prison”. U.S. v. Stanley, supra.

The 9^th Circuit then explained, as I noted in an earlier post, that someone who has “common authority” over property can consent to law enforcement’s searching it without a warrant. U.S. v. Stanley, supra. In U.S. v. Matlock, 415 U.S. 164 (1974), the Supreme Court said “common authority” is based “on mutual use of the property by persons generally having joint access for most purposes, so” others who have access to it “have assumed the risk that one of their number might permit” the property to be searched. U.S. v. Matlock, supra. The 9^th Circuit found that “when Stanley and his parents turned over possession, use, and control of the computer to Stockbridge, [he] . . . assumed the risk that she would allow someone else to look inside.” U.S. v. Stanley, supra.

Alternatively, the majority of the 9^th Circuit (there was a dissent) also found that even if Stockbridge didn’t have actual authority to consent to the search based on common authority over the computer, Prado was “`reasonable in concluding’ `from all objective indicia’ in the record that `Stockbridge had authority to consent.’ In other words, the doctrine of apparent authority suffices . . . to render this search reasonable.” U.S. v. Stanley, supra (quoting the district court judge). As the Wikipedia entry cited above notes, apparent authority exists when officers reasonably believe that the person giving consent has actual authority to consent to the search. On that issue, the 9^th Circuit also noted that

Prado and his assistants `did not have any indication’ from Stockbridge, `or any of the attendant circumstances,’ that Stanley's child pornography files were password-protected. Indeed, they were not. Thus, the agents were justified in relying on Stockbridge's consent.

U.S. v. Stanley, supra (quoting U.S. v. Buckner, 473 F.3d 551 (4^th Cir. 2007)).

The 9^th Circuit majority therefore rejected Stanley’s arguments and upheld his conviction. U.S. v. Stanley, supra.

Circuit Judge Beezer dissented. He pointed out (i) that while the two were living together, Stanley’s files on the computer were password-protected, while Stockbridge’s were not, and (ii) that Stanley only removed the password protection after he moved out. U.S. v. Stanley, supra. He also noted that when Stockbridge later took possession of the computer, Stanley’s files weren’t password-protected but “the computer still had to separate accounts Stanley had created for himself and Stockbridge.” U.S. v. Stanley, supra. The dissenting judge then asks, “[i]f she were a co-owner, why would her access be so limited?” U.S. v. Stanley, supra.

Finally, the dissenter also rejected the applicability of the apparent authority doctrine:

[W]hat is it the agents knew at the time of consent? . . . . [They] knew Stockbridge had once dated Stanley, but the couple had broken up and had not lived together for two years. The agents also knew Stockbridge was currently dating someone else at the time (David Trimm . . . ). The[y] knew Stockbridge was holding the computer while Stanley was in prison. . . . And finally, the agents knew the computer had two separate usernames, one for Stanley and another for Stockbridge.

There is no way any reasonable person would believe that, under these circumstances, Stockbridge had the authority to consent to a search of Stanley's property. How is it reasonable to conclude that an ex-girlfriend has authority to consent to a search of her ex-boyfriend's computer while he is in prison and while she is dating someone else? It's not. And, of course, that is why the agents sought a search warrant in the first place.

U.S. v. Stanley, supra (emphasis in the original).