The Suspect’s Wife and Her Authority to Consent a Laptop Search

After being convicted of bank fraud, conspiracy to commit bank fraud and aggravated identity theft, Jeffrey Groover appealed.  U.S. v. Groover, 2015 WL 5011658 (U.S. Court of Appeals for the 11th Circuit 2015).  Prior to his trial, Groover

moved to suppress evidence obtained by law enforcement as a result of a warrantless search of [his] password-protected computer, and other items in his home. . . . After holding an evidentiary hearing, the district court denied the motion to suppress in a two-page order. . . .

Brief of the Appellant, Jeffrey E. Groover, U.S. v. Groover, 2015 WL 1803410 (U.S. Court of Appeals for the 11^th Circuit 2015).

You can, if you are interested, read more about the charges and allegations in this case in the news stories you can find here, here and here.  To understand the issue involved here, you need to understand how the search of his laptop came about and why the issue of “consent” is the pivotal issue.

The appellate brief Groover filed with the Court of Appeals as part of his appeal explains how the issue of his wife’s consent to the search of the laptop arose:

In November 2013, Robert Agent Acuna, the Internal Revenue Service Agent leading the investigation decided to contact Groover's wife, Svitlana Molina. . . . Agent Acuna `wanted to get her consent to search for some of Mr. Groover's items for evidence.’ . . . Agent Acuna did not attempt to obtain a search warrant. . . . Agent Acuna knew the address of Groover's residence as a result of [his] involvement in a case in which Groover had been out on bond. . . . The residence was apartment D209 at 2025 Lavers Circle, in Delray Beach, Florida. . . . Acuna went to the apartment Molina shared with Groover and, not finding her there, left a note for her to call. . . . Molina did not call back. . . .  Instead, on November 18, 2013, an individual initially claiming to be Jeffrey Groover, but who later turned out to be Gus Kloszewski, called back. . . . That evening, with two other agents, Andrea Nemati and Ahmad Hadi, Agent Acuna went to the apartment. . . .

The agents met Kloszewski at the apartment complex, and walked with him upstairs to the apartment. . . . Agent Acuna explained that he was investigating Groover, and at Agent Acuna's request, Molina signed a consent form to search the apartment. . . .

In response to the agents' question about where they could find `Groover's possessions,’ Molina walked them to an office room, in which Agent Acuna `immediately grabbed the laptop computer and put it aside, since it was an item we intended to seize.’ . . .  The laptop computer belonged to Groover. . . . The officers went through the desk and seized its contents. . . . The officers noticed a locked briefcase, asked Molina for the combination; she said she didn't know it, and the officers left the briefcase there. . . . The officers seized folders, CDs and a USB port. . . .

Agent Acuna asked Molina to sign a consent form for the search of the laptop computer, and Molina signed the form. . . .. Agent Acuna gave his phone number to Molina to make arrangements for the return of the laptop computer once he had made an image of it. . . .  The computer was then seized and transported to IRS offices for forensic analysis. . . .

Brief of the Appellant, Jeffrey E. Groover, supra at *7 - *9.

The brief goes on to explain what happened next and how Molina knew the password for the laptop:

The following day . . . Special Agent Neville Barrant, a computer expert at Agent Acuna's office, informed Acuna that the laptop computer was `password-protected.’ . . . He asked Agent Acuna to call Molina to ask her for the password. . . . With his analysis software, Barrant did not need the password to access and see the data on the computer. . . . Barrant asked for the password because, without a warrant, he needed to establish that the person who gave consent `had authority to give consent.’ . . . Based on his training, a person would have this authority if they had access to the password-protected account. . . . Agent Acuna spoke to Molina on the phone and asked her whether she knew the password. She told Agent Acuna the password was `lemans.’ Agent Acuna was not sure whether Molina had to check first before telling him the password; `it didn't take long’ for her to give it to him. . . . Agent Acuna then gave the password to the computer expert, who confirmed that it was the correct password. . . .

Agent Barrant searched the computer and informed Agent Acuna that the computer had a Windows operating system with two separate user accounts: one was `Lana’ and the other `Jeff.’ . . . The Lana user account was not password protected; the `Jeff’ user account was password-protected by the password Agent Acuna had just given Agent Barrant. . . . Once one entered the password, there was no encryption in the `Jeff’ user account, though there may have been other secondary password-protected applications. . . . Once imaged, if an operating system is not encrypted, Agent Barrant's analysis software accesses the entire contents of a drive. . . . In addition to a Windows operating system, the computer also had a Linux operating system that did not have a separate password, and in which no items or documents were located. . . .

Agent Acuna reviewed the files in the password-protected Jeff user account path. The items included business documents, immigration forms, and emails. . . . On November 21, 2013, Agent Acuna, having imaged the laptop computer, returned it to Molina. . . .

Agent Acuna asked Molina how she had obtained the password for the `Jeff' user account path of the computer. . . . Molina told Acuna that once, when `she was having a printer problem,’ she called Groover to solve the problem; Groover gave her the password, and it worked. . . . Molina told Agent Acuna that Kloszewski never used the computer. . . .

Brief of the Appellant, Jeffrey E. Groover, supra at *9 - *11.

Groover’s brief on appeal went on to explain that

Barrant found materials on the `Jeff’ user account of Groover's computer, which were introduced in evidence at trial. One item was a document entitled `Keithley R. Miller Living Trust Agreement, dated September 20, 2013.’ . . . Keithley Miller was the victim of identity theft in this case. . . . The `Living Trust’ named Svitlana Molina, Groover's spouse, as a beneficiary of Miller's trust, even though Miller did not know Molina, and had not, in reality, authorized her assets to go to Molina. . . .

Barrant also found photographs of drivers' licenses on the `Jeff’ user account of Groover's computer. . . . These documents appeared to have been created by using `Photoshop.’ . . . Barrant also found emails with attachments on `how to make i.d. cards’ and `how to make holograms.’ . . .

In opening argument, the prosecution highlighted the incriminatory nature of the items found on the `Jeff’’ user account of Groover's computer:

Brief of the Appellant, Jeffrey E. Groover, supra at *11 - *12.

As Wikipedia notes, “consent” is one of the examples to the Fourth Amendment’s default requirement that law enforcement officers obtain a search warrant that authorizes them to search a place of thing.  As Wikipedia also notes, for a consent to substitute for a search warrant, it must be given voluntarily and it must be given by someone who has the “authority” to consent to the search of the property.  As Wikipedia also notes, the “authority” to consent to a search falls into either of two categories:  Actual authority is given by someone who owns the property; here, consent is essentially a waiver of the person’s right to control what happens to the property.

The other type of consent is known as “apparent authority”, i.e., the person who consents does not actually have the authority to consent to the search, but in Illinois v.Rodriguez, 497 U.S. 177 (1990), the Supreme Court held that if someone who does not actually have authority to consent to the search of a place of thing gives such consent, the search is valid IF law enforcement officers “reasonably” believe the person had the authority to give a lawful consent.  In other words, a “reasonable” mistake as to authority does not violate the Fourth Amendment.

Getting back to Groover, in his appellate brief he also argued that,

by placing a password on his user account, [Groover] `manifested his intent to keep [his] files private. U.S. v. Hyatt, 383 Fed. Appx. 900 (U.S. Court of Appeals for the 11<sup>th</sup> Circuit 2010) (unpublished). Further, by creating separate user accounts on his computer, one for his wife, named `Lana,’ and another for himself, named `Jeff,’  Groover manifested his intent not to share the items on the computer with his wife, but to maintain them separately, with password-protected access to his items. There was no “mutual use” to suggest apparent authority to consent. See [U.S. v. Peyton, 745 F.3d 546 (U.S. Court of Appeals for the D.C. Circuit 2014) (`Apparent authority does not exist where it is uncertain that the property is in fact subject to mutual use’)). In Peyton, the D.C. Circuit found that a great-grandmother's statement to police that the defendant kept his personal property in the area around his bed strongly suggested that she did not use the shoebox found near this bed, or have permission to do so, and therefore lacked apparent authority to consent to its search. See U.S. v. Peyton, supra.

Thus, here, as in U.S. v. Peyton, it was `obvious’ to the IRS agents that Groover had manifested a privacy interest specific to himself in his computer files. Even taking account of Molina's knowledge of the password to Groover's user account, there was ambiguity -- at most -- about Molina's authority to consent to a search of this user account. This ambiguity defeats a reasonably cautious belief in apparent authority. See U.S. v. Peyton, supra (`ambiguity is enough to defeat apparent authority in cases involving closed containers in shared spaces’). . . .

Brief of the Appellant, Jeffrey E. Groover, supra at *12.

Unfortunately for Groover, the Court of Appeals did not buy his argument.  U.S. v. Groover, supra.  It began its analysis of the issue by explaining that

Groover argues that the district court erred when it found that his wife had actual or apparent authority to consent to law enforcement's warrantless search of his password-protected user account on his computer. Groover argues that he and his wife used different accounts on the same laptop and that his was password protected. His wife only knew the password because he had given it to her for the limited purpose of resolving a printer problem. By password-protecting his account, Groover argues, he demonstrated his Fourth Amendment expectation of privacy and he did not give that up when he provided the password to his wife.

U.S. v. Groover, supra.

The Court of Appeals went on to explain that

[i]n United States v. Matlock, 415 U.S. 164 (1974), the Court held consent to search may be provided by a third party who possesses common authority over the premises. It further refined this statement by noting that `”[c]ommon authority” rests “on mutual use of the property by persons generally having joint access or control for most purposes.”’ Illinois v. Rodriguez, 497 U.S. 177 (1990). . . . Even if the consenting party does not in fact have the required relationship to the premises, if the officer has an objectively reasonable, though mistaken, good-faith belief that the consent was a valid consent, there is no Fourth Amendment violation. Rodriguez, 497 U.S. at 186; see also U.S. v. Brazel, 102 F.3d 1120 (U.S. Court of Appeals for the 11th Circuit 1997).

Here, the officers first encountered Groover's wife after going to Groover's apartment and obtaining her consent to search their shared home. During that search, the agents found Groover's laptop and seized it. However, the agent assigned to searching the computer's contents told the lead agent that he needed consent to search Groover's password-protected account. That agent then contacted Groover's wife, who provided the password without hesitation. It was objectively reasonable for the agent to believe that Groover's wife had authority to consent to the search given the close marital relationship, their shared use of the computer, and her knowledge of the password; therefore, there was no Fourth Amendment violation.

U.S. v. Groover, supra.

The Court of Appeals therefore rejected Groover’s appeal and affirmed his convictions. U.S. v. Groover, supra.