Consent, the External Hard Drive and the 4th Amendment

Paul Beckmann

pled guilty to one count of possession of child pornography after having been previously convicted and sentenced for possession of child pornography in 2001. See 18 U.S. Code §2252A(a)(5)(B), (b)(2). The [U.S. District Court Judge] sentenced Beckmann to 120 months of imprisonment, a lifetime of supervised release, and ordered him to pay $9,000 of restitution.

U.S. v. Beckman, 786 F.3d 672 (U.S. Court of Appeals for the 8^th Circuit 2015).

Beckman appealed, arguing, among other things, that the U.S.District Court Judge erred by “denying his motion to suppress evidence found on an external hard drive as the result of an illegal search under the 4th Amendment.”  U.S. v. Beckman, supra.  The Court of Appeals began its analysis of his argument by explaining what happened in the investigation that led to his being charged and convicted:

Since Beckmann's conviction for possession of child pornography in 2001, Beckmann has been required to register as a sex offender. On August 2, 2011, as part of a routine sex offender verification through the United States Marshal's Office, Jefferson County Deputies Barbato and Thebeau visited Beckmann's home. The purpose of the visit was to verify Beckmann's address and to ensure that he was complying with any conditions related to his status as a sex offender. Upon arrival, the deputies knocked on Beckmann's door, told him they were there for sex offender verification and asked to enter his home. Beckmann consented. Once inside, the deputies observed a laptop computer on the coffee table. Beckmann informed the officers that he was under no supervised release conditions and that he was lawfully allowed to have a computer and internet access. Deputy Barbato asked to look through the contents of Beckmann's laptop in order to `make sure he was not accessing any content he's not supposed to be accessing.’ Beckmann consented.
 While Deputy Barbato searched the laptop, Beckmann showed Deputy Thebeau around the rest of the residence. Deputy Thebeau alerted Deputy Barbato that there was another computer in the upstairs office. He then obtained permission to use the upstairs restroom. Deputy Barbato proceeded upstairs partially for safety reasons and partially because he wanted to make sure Defendant was not `going through anything he shouldn't be.’ When Deputy Barbato arrived upstairs and looked into the office where Beckmann went, he saw a computer desk with a monitor on it and Beckmann underneath messing with wires/cords. To alert Beckmann to his presence, Deputy Barbato asked Beckmann if this was the `other’ computer. Beckmann seemed startled and responded yes. Deputy Barbato then asked if he could take a look at that computer, as well. Beckmann consented. Deputy Barbato sat down and observed one computer tower and two external hard drives underneath the desk. Both of the external hard drives were connected to the tower but the power cord to one of them was unplugged from the wall. Deputy Barbato believed that these were the cords Beckmann was manipulating, and he believed that Beckmann had been trying to shut off the computer. The deputy plugged the power cord to the unplugged external hard drive back into the wall and began to search the computer, including the external hard drives.
 By this time, Beckmann had exited the office. The deputy admitted he did not get specific consent to search the external hard drives nor did he get consent to plug the one external hard drive back into the wall; however, he considered the external drives to be a part of the `computer’ because they were plugged into the computer. During his search, Deputy Barbato discovered file names suggesting child pornography. The deputy asked Beckmann about the suspicious files and Beckmann stated that he did not wish to answer. The officers then placed Beckmann into investigative detention. After speaking with his attorney, Beckmann signed a consent form allowing the officers to seize the laptop, computer, and external hard drives pending application for a search warrant.

U.S. v. Beckman, supra.  You can, if you are interested, find a law enforcement consent to search form here, as a sample. Beckman would have signed a similar form. t

The Court of Appeals goes on to explain that the

government obtained a search warrant on August 15, 2011 to copy and search the property seized. The warrant specified that it was to be executed on or before August 29, 2011. `Execution’ of the search warrant required a forensic analyst to copy and search existing and deleted computer files. The investigator began analyzing the seized computers in November of 2011 and the external hard drives on January 24, 2012.
 The analyst located over 2,000 images of child pornography on the external hard drive. On April 25, 2012, a report was prepared documenting what was found on the computer media. A return of inventory was filed with the district court on November 15, 2013. The sergeant handling the case stated that he did not intend to prejudice Beckmann or delay the proceedings but merely forgot to return the warrant.

U.S. v. Beckman, supra.   Rule41(f)(1)(D) of the Federal Rules of Criminal Procedure, which you can find here, explains what “executing” a warrant and “returning” an inventory mean.

The next thing that happened was that, on July 24, 2013, a Missouri federal grand jury

returned a one-count indictment against Beckmann for possession of child pornography. Beckmann filed a motion to suppress certain evidence and statements. The magistrate judge held two evidentiary hearings on Beckmann's motion before issuing a report and recommendation.  Beckmann filed objections to the report and recommendation, and the district judge reviewed the issues de novo.
 The district judge sustained, adopted, and incorporated the magistrate's report and recommendation with the exception of two factual findings. The district court granted Beckmann's motion to suppress certain statements made by Beckmann but denied the motion as to other statements and the physical evidence. Beckmann elected not to proceed to trial and instead entered a plea of guilty, reserving his right to appeal the order on his motion to suppress.

U.S. v. Beckman, supra. 

As Wikipedia explains, in the federal system U.S. Magistrate Judges “are appointed to assist United States district court judges in the performance of their duties” by, for example, holding hearings on motions to suppress.  The magistrate judge then issues a “report and recommendation” which does just that, i.e., it reports on the evidentiary and other factual issues the magistrate investigated and reports his/her conclusion as to how an outstanding issue (such as suppression) should be resolved.

Getting back to the appeal, Beckman argued that the District Court Judge

erred by denying his motion to suppress the incriminating evidence found on his external hard drive as the fruit of an illegal search under the 4th Amendment. `When reviewing the denial of a motion to suppress, we review the district court's factual findings for clear error and its legal conclusions de novo.’ U.S. v. Anderson, 688 F.3d 339, 343 (U.S. Court of Appeals for the 8<sup>th</sup> Circuit 2012). We will affirm the denial of a motion to suppress unless we find that the district court's decision `is unsupported by the evidence, based on an erroneous view of the law, or the Court is left with a firm conviction that a mistake has been made.’ U.S. v. Riley, 684 F.3d 758 (U.S. Court of Appeals for the 8th Circuit 2012).

U.S. v. Beckman, supra.  

The Court of Appeals went on to explain that the District Court Judge

found that Beckmann gave the officers consent to search his computer. Consensual searches are reasonable under the 4th Amendment. Florida v. Jimeno, 500 U.S. 248 (1991). The standard for measuring the scope of a person's consent is `objective reasonableness,’ which asks what the typical, reasonable person would have understood from the exchange between the officer and the suspect. Florida v. Jimeno, supra. While the voluntariness of a defendant's consent to search is a question of fact that is reviewed for clear error, U.S. v. Quintero, 648 F.3d 660 (U.S. Court of Appeals for the 8th Circuit 2011), the reasonableness of an officer's reliance on such consent is a question of law that is reviewed de novo. U.S. v. James, 353 F.3d 606 (U.S. Court of Appeals for the 8th Circuit 2003).

U.S. v. Beckman, supra.  

As Wikipedia explains, if someone consents to a law enforcement officer’s searching his or her property, such as a computer, then the officer can proceed without having to have probable cause or a search warrant, because the consent effectively waives the person’s 4^th Amendment right to privacy in his/her property.  As Wikipedia also explains, officers do not have to tell someone that he/she has the right not to consent to a search for a consent to be valid.

In this case, Beckman argued that it was

unreasonable for Deputy Barbato to rely on Beckmann's consent to search the computer in order to justify his search of the external hard drive. The scope of a consensual search is “generally defined by its expressed object.” Florida v. Jimeno, supra. For example, where an officer asks to search a car for suspected narcotics, and the occupant agrees without explicit limitation on the scope of the search, the officer may search the entire car including containers therein that may hold narcotics. Florida v. Jimeno, supra.
 If the consent `would reasonably be understood to extend to a particular container’ then `the 4th Amendment provides no grounds for requiring a more explicit authorization.’ Florida v. Jimeno, supra. Reasonableness is measured in objective terms based on the totality of the circumstances. Ohio v. Robinette, 519 U.S. 33 (1996). Where a person is present and fails to object to the continuation of a search, courts consider such circumstantial evidence to provide proof that the search conducted was within the scope of consent. See  U.S. v. Lopez–Mendoza, 601 F.3d 861 (U.S. Court of Appeals for the 8th Circuit 2010).

U.S. v. Beckman, supra.  

The Court of Appeals than began its analysis of Beckman’s argument:

Applying these standards, Deputy Barbato's belief that consent to search the computer included consent to search the connected but unplugged external hard drive was not objectively unreasonable. Deputy Barbato testified that he believed he had consent to search the external hard drive based on his understanding of the word `computer’ and the fact that the external drive was attached to the computer tower. The deputy's belief is not objectively unreasonable in light of the common understanding that the term `computer’ encompasses the collection of component parts involved in a computer's operation. See, e.g., U.S. v. Herndon, 501 F.3d 683 (U.S. Court of Appeals for the 6th Circuit 2007).
 Beckmann did not explicitly limit the scope of his consent to search the computer, nor did he object when Deputy Barbato plugged the external hard drive into the electrical outlet and began searching. Based on the totality of the circumstances presented here, Deputy Barbato had an objectively reasonable basis to conclude that Beckmann consented to the search of the external hard drive.

U.S. v. Beckman, supra.  

In a footnote to the comment about the Deputy’s plugging the external drive into the outlet and searching, the Court of Appeals explains that

Beckmann argues that he was not in the room at the time Deputy Barbato plugged the external hard drive into the wall in order to have had the opportunity to withdraw or limit his consent. The magistrate judge stated: `After he plugged in the power cord, Deputy Barbato got up and sat in the chair at the desk. He then used the computer mouse with the monitor to activate the computer. Barbato thought the computer desktop displayed on the monitor looked normal, although it had icons he was unfamiliar with. By this time Beckmann had walked out of the room.Report & Recommendation ¶ 18.
 Even assuming Beckmann was not present in the room at the time Deputy Barbato plugged the external hard drive's power cord into the wall, `[w]e have not, to date, found that officers have a duty to ensure that an individual has an opportunity to withdraw or limit consent.’ U.S. v. Guevara, 731 F.3d 824 (U.S. Court of Appeals for the 8th Circuit 2013).

U.S. v. Beckman, supra.  

The Court of Appeals goes on to explain that Beckman argued that Deputy Barbato's

belief was unreasonable because an external hard drive cannot reasonably be interpreted to constitute a `component part involved in the computer's operation.’ He argues that merely plugging a device into a computer does not render the device a part of the computer's operation, and he analogizes an external hard drive to a cellular telephone. He warns that the district court's order sets `dangerous precedent for law enforcement to be able to search anything and everything that can be plugged into a computer[.]’ We disagree.
 First and foremost, the scope of the consent to search here, as in all cases, is based on the totality of the circumstances including the interaction between the parties, the purpose of the search, and the circumstantial evidence surrounding the search. Second, a typical, reasonable person is more likely to consider a connected external hard drive a `component part involved in a computer's operation’ as compared to a connected cellular telephone. Unlike a cellular telephone, the sole purpose of an external hard drive is to store computer data. Additionally, external hard drives, unlike cellular telephones, are functionally inoperable—and their contents unreviewable—when unplugged from a computer. Thus, Deputy Barbato's belief that the attached external hard drive constituted a `component part involved in the computer's operation’ was not objectively unreasonable.

U.S. v. Beckman, supra.  

If you wonder why the court repeatedly refers to whether the search was “reasonable,” it does so because “reasonableness” is the touchstone for determining whether the 4^th Amendment has been violated.  As Wikipedia notes, the 4^th Amendment bans “unreasonable” searches and seizures”, which means “reasonable searches and seizures are constitutional.

Getting back to this case, again, Beckman also argued that

Deputy Barbato's belief was unreasonable because the deputy witnessed Beckmann attempt to unplug the external hard drive from its power source, which effectively limited the scope of the consent. The Court finds Beckmann's argument unpersuasive. Beckmann provided explicit, unlimited consent to search his computer after the deputy witnessed him manipulating wires under the desk.
 Beckmann could have denied consent to search the upstairs computer or limited the scope of the consent, but he did not. The evidence demonstrates that Beckmann knew how to limit his consent, and did so during other situations that day, but he did not do so in this instance.
 Where a suspect provides general consent to search, only an act clearly inconsistent with the search, an unambiguous statement, or a combination of both will limit the consent.  See U.S. v. Lopez–Mendoza, 601 F.3d 861 (U.S. Court of Appeals for the 8th Circuit 2010). A subtle indication that a suspect wishes to limit the scope of a search is insufficient to render the search unreasonable. See, e.g., U.S. v. Siwek, 453 F.3d 1079 (U.S. Court of Appeals for the 8th Circuit 2006) (suspect's statement that he lacked key to tonneau cover did not amount to denial of consent); U.S. v. Gray, 369 F.3d 1024 (U.S. Court of Appeals for the 8th Circuit 2004) (suspect's statements that length of search was `ridiculous’ and he was `ready to go now’ did not amount to withdraw of consent). Here, Beckmann provided general consent to search his computer and he did not object when Deputy Barbato plugged the external hard drive into the wall and began searching it. These facts support the conclusion that the search conducted was within the scope of Beckmann's consent.

U.S. v. Beckman, supra.  In a footnote to the court’s comment that Beckman knew how to withdraw consent, it explains that

[a]fter being placed into investigative detention, Beckmann advised that he would answer some questions and not others and he agreed to give certain permissions and not others. For example, he agreed to answer questions about his computer but refused to answer any questions about downloading child pornography. He also refused to allow the computer forensic analyst to verify the titles of the files discovered.

U.S. v. Beckman, supra. 

For these and other reasons, the Court of Appeals affirmed Beckman’s conviction and sentence.  U.S. v. Beckman, supra.