Wednesday, October 05, 2016

The Desktop Computer, “Authority” and the Consent to Search

This post examines an opinion from the U.S. Court of Appeals for the 7th Circuit:  U.S. v. Wright, 2016 WL 5338528.  The court begins by explaining that a
day after police responded to a domestic dispute between Talon Wright and Leslie Hamilton, an investigator returned to the couple's apartment to follow up on suspicions that Wright was in possession of child pornography. With Hamilton's consent, the investigator searched the apartment and conducted a forensic preview of a desktop computer found in the living room. The preview revealed images of child pornography on the hard drive. Wright was indicted on child-pornography and child-exploitation charges.

He moved to suppress the evidence recovered from the warrantless search of his computer, arguing that Hamilton lacked authority to consent. The district judge denied the motion. Wright pleaded guilty but reserved his right to appeal the denial of suppression and now does so.
U.S. v. Wright, supra.
(A procedural note:  U.S. District Court Judges preside over trials, and hearings and other related matters, involving federal civil and criminal cases.  U.S. Circuit Court of Appeals, like the 7th Circuit, rule on appeals from decisions made by District Court Judges.)
The court then explained how, and why, the prosecution arose:
On July 31, 2014, police officers in Urbana, Illinois, responded to a domestic dispute between Wright and Hamilton. In their incident report, the responding officers noted that Hamilton called Wright a `pedophile’ during the altercation. Apparently no arrests were made that day.

The following morning Urbana Police Investigator Tim McNaught, who specializes in handling crimes against children, reviewed the officers' report as a matter of course. Concerned about Hamilton's use of the word `pedophile,’ Investigator McNaught contacted her and requested a meeting. Hamilton arrived at the police station that same morning. In this initial interview, Investigator McNaught sought Hamilton's permission to search the couple's apartment and computers for evidence of child pornography. Hamilton agreed and took McNaught to the apartment.

During the search, McNaught seized a desktop computer he found in the living room; forensic analysis revealed images of child pornography on the hard drive. Wright was charged with one count of possessing child pornography,18 U.S. Code § 2252A, and two counts of sexually exploiting a minor, id. § 2251. He moved to suppress the evidence recovered from the desktop computer, arguing that Hamilton lacked authority to consent to the warrantless search.
U.S. v. Wright, supra.
The opinion then goes on to explain that the U.S. District Court who had the case held an evidentiary hearing, at which
Investigator McNaught testified about three different encounters with Hamilton on the day of the search: (1) the initial interview conducted prior to the search; (2) a discussion that occurred during the search itself; and (3) a lengthier post-search interview.

First, Investigator McNaught described the brief interview with Hamilton that took place at the Urbana police station before the search of the apartment and computer. In that interview McNaught asked Hamilton why she called Wright a pedophile. Hamilton responded that Wright had used his cellphone to visit a website called `Jailbait.’ Investigator McNaught recognized `Jailbait’ as a site that features pornographic images of underage girls. Hamilton also mentioned seeing a video with a disturbing title on the family's home computer. Based on this information, McNaught asked Hamilton for permission to search the couple's apartment and computers for evidence of child pornography, and Hamilton agreed.

Next, Investigator McNaught testified about the search itself. He explained that Hamilton took him to the apartment that she shared with Wright and let him in using her key. Once inside McNaught spotted a desktop computer on the living-room floor. The computer wasn't attached to a keyboard or traditional monitor, but it was connected to a flat-screen TV. According to Investigator McNaught, Hamilton described the computer as `kind of a family computer’ and said that `[a]nytime she or her kids wanted to use it, they did.’ She explained that they used the computer to watch movies, play games, check the children's grades, and store work-related documents. However, since the apartment's wireless Internet service had been discontinued about a month earlier, they could only access the Internet when Wright was around to use his cellphone as a wireless hotspot. Hamilton also pointed out her own laptop computer; she told the investigator that with the exception of her personal laptop, Wright owned the rest of the computer equipment in the apartment.
U.S. v. Wright, supra.
The Court of Appeals goes on to note that
Investigator McNaught then `previewed’ the desktop computer's hard drive by connecting it to his own laptop, a standard forensic procedure that allows investigators to view the drive's contents without altering it. This preview revealed images of child pornography, so McNaught asked Hamilton for permission to seize the computer along with the rest of the electronic devices in the apartment for further investigation. She agreed. Off-site forensic analysis of the computer revealed additional pornographic images as well as video and still images of Wright engaging in sexually explicit conduct with a minor.

Finally, Investigator McNaught testified about a second interview that he conducted with Hamilton after he completed his search of the apartment. During this longer follow-up interview, Hamilton described the living arrangements at the apartment, which was leased in her name. She explained that she and Wright had been in a tumultuous, `on-and-off’ relationship for the last two years and had broken up several days earlier. Prior to the breakup, the couple had been living together in the apartment along with their six-month old son, three of Hamilton's children from another relationship, and two of Wright's children from another relationship. Since the breakup Wright and his two daughters were temporarily staying with his mother while Hamilton and her children prepared to move out of the apartment permanently.
U.S. v. Wright, supra (emphasis in the original).
The court then explains that
Hamilton also talked about the desktop computer during the second interview. She mentioned a long password that her children knew but she did not. She suggested that the password was somehow associated with the computer but was unable to say if it was required to gain access to the computer itself or only to access the Internet via the apartment's wireless connection. Hamilton also reiterated that she and her children regularly used the computer to watch movies, play games, and access the Internet. The forensic analysis of the computer did not reveal any sign of password protection, but it did confirm that Hamilton and her children had used the computer recently: The browser history revealed frequent visits to kid-friendly websites, online videos relating to women's and mothers' issues, and the homepage for the children's school.

Based on Investigator McNaught's testimony, the judge concluded that Hamilton exercised common authority over the desktop computer and could give valid consent to the warrantless search. Accordingly, the judge denied Wright's motion to suppress. Wright pleaded guilty to one count of sexual exploitation of a minor and one count of possessing child pornography but reserved his right to appeal the ruling on his suppression motion.
U.S. v. Wright, supra.
The Court of Appeals then took up the arguments Wright made on appeal, beginning with his challenging “the district court's denial of suppression.” U.S. v. Wright, supra. The court began its analysis of his arguments by noting that
[w]e review the judge's legal conclusions de novo and factual findings for clear error. U.S. v. James, 571 F.3d 707, 713 (U.S. Court of Appeals for the 7th Circuit 2009). Wright's challenge is limited to the search of the desktop computer, which was conducted without a warrant but with Hamilton's consent.

The Fourth Amendment guarantees the `right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.’ U.S. CONST. amend. IV. A warrantless search of property is per se unreasonable unless an established exception applies. U.S. v. Henderson, 536 F.3d 776, 779 (U.S. Court of Appeals for the 7th Circuit 2008) (citing Katz v. U.S., 389U.S. 347, 357 (1967)). Searches conducted with consent are one such exception. Fernandez v. California, 134 S.Ct. 1126, 1132 (2014); see also U.S. v. James, supra (`Because a person may voluntarily waive his Fourth Amendment rights, no warrant is required where the defendant consents to a search’).
U.S. v. Wright, supra.
The opinion then takes up the issue of consent, noting that it
may be obtained either from the defendant or from a third party who exercises common authority over the property to be searched. U.S. v. Matlock, 415 U.S. 164, 170–71(1974). Common authority does not require the existence of an ownership interest in the property; it `rests rather on mutual use of the property by persons generally having joint access or control for most purposes.’ U.S. v Matlock, supra. The premise of this rule is that a defendant who permits another person to use his property assumes the risk that that person will allow others to access the property in his absence.  U.S. v Matlock, supra.see also U.S. v. Jackson, 598 F.3d 340, 347 (U.S. Court of Appeals for the 7th Circuit 2010). And because `the ultimate touchstone of the Fourth Amendment is reasonableness,’ Fernandez v. California, supra (quotation marks omitted), either actual authority or apparent authority is enough to support third-party consent. Illinois v. Rodriguez, 497 U.S. 177,188–89 (1990)see also U.S. v. James, supra. The government bears the burden of proving authority to consent, whether actual or apparent, by a preponderance of evidence. U.S. v. James, supra.
U.S. v. Wright, supra.
The 7th Circuit then analyzed whether the evidence supported a finding that Hamilton had authority to consent to the search, either actual authority or apparent authority. U.S. v. Wright, supra. It began with actual authority, explaining that
Wright concedes that Hamilton exercised common authority over the couple's apartment, but it doesn't necessarily follow that her authority extended to the desktop computer found inside. `The key to consent is actual or apparent authority over the area to be searched.’ U.S. v. Basinski, 226 F.3d 829, 834 (7th Cir. 2000) (emphasis added). As several of our sister circuits have observed, in this context computers are akin to closed containers: The information that they `contain’ is usually not readily observable without some further investigation. See U.S. v., 483 F.3d 711, 718 (U.S. Court of Appeals for the 10th Circuit 2007); U.S. v. Buckner, 473 F.3d 551, 554 (U.S. Court of Appeals for the 4th Circuit 2007); cf. U.S. v. Rodriguez, 888 F.2d 519, 523 (7th Cir.  1989) (`Many a closed container is accessible; opening it requires justification. . . .’). So Hamilton's authority over the computer turns on whether she enjoyed mutual use of, access to, and control over the computer itself.

It's clear that she did. The desktop computer belonged to Wright, not Hamilton, but it functioned as a family computer. According to Hamilton, she and her children freely used it to watch movies, play games, check the children's grades, and store work-related documents. Forensic analysis bolstered this claim: Investigator McNaught testified that he found `a lot of Internet history’ showing recently viewed children's movies and games as well as the login page for Urbana Middle School's website. Moreover, Wright left the computer in the apartment when he went to stay with his mother, leaving Hamilton with unrestricted access to and control over it in his absence. These facts easily establish that Hamilton exercised common authority over the computer. Cf. Frazier v.Cupp, 394 U.S. 731, 740 (1969) (holding that the defendant's cousin had common authority over a duffel bag that the cousin was allowed to keep at his house and use to store his belongings).
U.S. v. Wright, supra.
The opinion also notes that
Wright's arguments to the contrary are unpersuasive. First, he makes much of the fact that he and Hamilton had ended their relationship shortly before the search occurred. He emphasizes that Hamilton was in the process of moving out of the apartment and that she was not planning to take the desktop computer with her when she left. He argues that any authority over the computer Hamilton once had was revoked when she started packing up her things to move out. But the end of a romantic relationship doesn't automatically mean that common authority over shared property has been revoked. See U.S v. Ryerson, 545 F.3d 483, 488 (7th Cir. 2008). If the ex-partner continue[s] to access, use, or control the property,’ as Hamilton did, she continues to exercise authority regardless of the relationship's status. U.S. v. Ryerson, supra.

Second, Wright points out that the desktop computer had a password associated with it—one that Hamilton admitted she didn't know. He argues that this admission necessarily means that Hamilton lacked common authority over the computer. It's true that ignorance of a computer password may demonstrate a lack of authority under some circumstances. Like a lock on a briefcase or storage trunk, password protection on a computer demonstrates the owner's affirmative intent to limit access to its contents. See, e.g.U.S. v. Andrus, supra; U.S. v. Buckner, supra; Trulock v. Freeh, 275 F.3d 391, 403 (4th Cir. 2001). In other words, a defendant who password-protects his computer does not assume the risk that third parties not privy to the password will permit others to access the computer's contents in his absence. See U.S. v. Buckner, supra. Accordingly, third parties from whom a password has been withheld lack common authority over a computer.
U.S. v. Wright, supra.
Those observations did not end the courts analysis of this issue.  It noted that
[b]ut Hamilton is not in that situation. As an initial matter, there's some ambiguity about whether the desktop computer was actually password-protected. Hamilton was unable to specify whether the long password she mentioned was required to access the computer itself or simply to connect to the apartment's wireless network. Investigator McNaught, on the other hand, testified unequivocally that forensic analysis of the computer revealed no sign of password protection. Given these facts, we think it unlikely that the computer itself was password-protected.

That said, we agree with the district judge that Hamilton exercised common authority over the computer even assuming it was password-protected. Hamilton didn't know the password but her children did, which strongly suggests that Wright made no attempt to keep it from her. Cf. U.S. v. Richards, 741 F.3d 843, 850 (7th Cir. 2014) (`[The defendant] had an expectation of privacy in the west bedroom because . . . he alone had access to the room if it was locked.’) (emphasis added). Indeed, there's no indication that Wright made any effort to prevent Hamilton from using the computer despite knowing that she and her children did so frequently. In contrast Wright did take steps to prevent Hamilton from accessing his cellphone: Hamilton told Investigator McNaught that she rarely even got a look at the phone because Wright was constantly changing its passcode. In this context Hamilton's ignorance of whatever password may have been associated with the desktop computer doesn't undercut the common authority that she exercised by virtue of being able to use the computer whenever she wanted. See U.S. v. James, supra (holding that the defendant's mother exercised common authority over a safe left in her possession absent `evidence that [the defendant] attempted to limit or restrict her control over the safe”’. Her consent to the warrantless search of the computer's hard drive was therefore valid, and the judge properly denied Wright's motion to suppress on this basis.
U.S. v. Wright, supra.
The Court of Appeals then took up the related issue of apparent authority, explaining that
[a]lthough the district judge considered only Hamilton's actual authority over the desktop computer, the record establishes that Hamilton also exercised apparent authority, which provides an alternative basis for denying Wright's suppression motion. See U.S. v. Reaves, 796 F.3d 738, 741–42 (7th Cir. 2015) (`[W]e may affirm the judgment of the district court on any ground supported in the record’). Apparent authority exists if `the facts available to an officer at the time of a search would allow a person of reasonable caution to believe that the consenting party had authority’ over the property to be searched. U.S. v. Ryerson, supra (citing Illinois v. Rodriguez, suprasee also U.S. v. Groves, 470 F.3d 311, 319 (U.S. Court of Appeals for the 7th Circuit 2006) (`Facts that came to light after the search began cannot reasonably have influenced the officers' beliefs regarding whether [a third party] possessed apparent authority’).
U.S. v. Wright, supra.
It also pointed out that,
[o]f course `mere possession of [a closed] container by a third party does not necessarily give rise to a reasonable belief that the third party has authority to consent to a search of its contents.’ U.S. v. Basinski, supra. Rather `one must look for indicia of actual authority’ over the container known to the officer at the time of the search. U.S. v. Rosario, 962 F.2d 733, 737 (7th Cir. 1992) (quotation marks omitted); see also U.S. v. Basinski, supra. (`[A]pparent authority turns on the government's knowledge of the third party's use of, control over, and access to the container to be searched, because these characteristics are particularly probative of whether the individual has authority over the property’). Typically this analysis entails considering the nature of the container and its outward appearance, including the presence of any sort of locking mechanism. U.S. v. Basinski, supra.  When the container at issue is a computer, a key consideration is `whether law enforcement knows or should reasonably suspect because of surrounding circumstances that the computer is password protected.’ U.S. v. Andrus, supra.
U.S. v. Wright, supra.
The court went on to articulate its holding on this issue, explaining that the trial court judge
found that before Investigator McNaught searched the desktop computer, Hamilton informed him that it was a family computer that she and her children could use any time. What McNaught observed at the apartment was consistent with this claim. The computer was located on the living-room floor, which was scattered with women's clothes and children's toys, and was also apparently where Hamilton and Wright slept. Although the computer had no keyboard attached to it, it was connected to a flat-screen TV, consistent with Hamilton's earlier claim that she and her children used the computer to watch family movies. Moreover, Hamilton made no mention that the computer might be password-protected until her second interview with Investigator McNaught, which took place after the search.

Given this information, it would have been entirely reasonable for Investigator McNaught to conclude that Hamilton exercised common authority over the desktop computer. See, e.g.U.S. v. Andrus, supra (`Third party apparent authority to consent to a search has generally been upheld when the computer is located in a common area of the home that is accessible to other family members under circumstances indicating the other family members were not excluded from using the computer’); cf. U.S. v. Basinski, 226 F.3d at 835 (holding that the defendant's friend lacked apparent authority over a briefcase because the officers `knew that [the defendant] never gave [his friend] the combination to the lock’). Hamilton's apparent authority provides an additional basis for concluding that her consent was valid and that Wright's suppression motion was properly denied.
U.S. v. Wright, supra.
The court therefore affirmed Wright’s conviction and sentence. U.S. v. Wright, supra.

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