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, supra; see
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.
Interesting read.
ReplyDelete