As I explained in an earlier post, consent is a valid exception to the 4th Amendment’s warrant requirement.
As I’ve also noted before, the 4th Amendment requires that a search or a seizure must be “reasonable;” the default way a search or seizure can be reasonable is for it to be conducted pursuant to a search and/or seizure warrant.
Consent substitutes for a warrant because a consent for police to search or seize is a waiver of your right to have them not do so. The Supreme Court has long held that our constitutional rights are personal rights, which means it’s up to us as to whether or not we want to exercise a particular right (like the right not to be searched) or waive it, i.e., give it up.
As I also explained in that earlier post, you can revoke your consent to have the police search you or a place or seize something. In other words, you can change your mind.
As I noted in that post, a revocation of consent to search a place is prospective; that is, the officers have to stop searching once you revoke your consent. Whatever they saw while your consent to search was in effect is still information they validly acquired; they don’t have to forget that, say, they saw drugs on your coffee table or what looks like stolen diamonds in a dresser drawer. A revocation of consent for officers to seize something is also prospective, which means they can keep any items they seized while your consent to seize was in effect (absent, as I noted in an earlier post, your successfully filing a motion for the return of the property).
So if you consented to a search and seizure of your house and while the consent is in effect the officers see stolen diamonds on a table and seize them, revoking your consent only stops them from searching further and seizing any more evidence. The officers can keep the information they acquired while they were searching your house (e.g., they saw a pile of cash in a desk drawer but don’t have probable cause to seize it) and they can keep the diamonds. All your revocation of consent does is to stop them from going any further.
That brings me to the case I want to talk about: U.S. v. Megahed, 2009 WL 722481 (U.S. District Court for the Middle District of Florida 2009). According to a news story, on August 4, 2007, University of South Florida students Youssef Megahed and Ahmed Mohamed were driving along U.S. 176 near Goose Creek, South Carolina. A deputy sheriff stopped them for going 60 mph in a 45 mph zone and “became suspicious” when Mohamed closed a laptop computer as the officer approached the car. He asked if he could search the car and they agreed. The deputy found what law enforcement officers say were pipe bombs and an unidentified liquid inside the car’s trunk. He arrested them and both men are facing federal charges of possessing an explosive device.
On August 6, FBI agents came to the Tampa home where Megahed’s parents lived and asked if they would consent to a search of their home “for (among other things) bombs, bomb-making materials, and anything that could be used to manufacture or build a bomb.” U.S. v. Megahed, supra. Samir Megahed (who I assume is Youssef’s father) signed “English and Arabic consent forms (Forms FD-26 and FD-26.1)” allowing them to search. U.S. v. Megahed, supra.
FBI agents searched the house and seized a computer, among other things. U.S. v. Megahed, supra. They apparently seized it, at least in part, because Youssef’s sister told them he used it for “Internet shopping.” U.S. v. Megahed, supra. Since Mr. Megahed consented to a search of the home for “bombs, bomb-making materials, and anything that could be used to manufacture . . . a bomb,” the FBI agents construed his consent as encompassing the possibility that bomb-related information (e.g., plans, purchases of bomb-making materials) would be on the computer. After they finished searching the home, the agents took the computer and whatever else they seized and left.
The next day – August 7, 2007 – Samir Megahed called one of the FBI agents and asked that the agents return the computer to the family after they finished copying the hard drive. U.S. v. Megahed, supra. The very next day – August 8 – Mr. Megahed “voluntarily authorized a complete search of the computer by executing a `consent to search computer’ (Form FD-941).” U.S. v. Megahed, supra. The agent Mr. Megahed dealt with on August 8 later testified at a suppression hearing “that after he explained to Samir Megahed that the executed consent forms would authorize a search of the mirror image copy [of the home computer’s hard drive], Samir Megahed not only failed to object but also expressed a continued desire to cooperate.” U.S. v. Megahed, supra.
I don’t know what the agents and their computer forensics experts found on the imaged hard drive, but Youssef subsequently filed two motions to suppress “Illegally Searched and Seized Computer Hard Drives”. U.S. v. Megahed, supra. The focus of the second motion was “certain internet [sic] history recovered from” a search of the mirror image of the hard drive of the computer seized at the Megahed home. U.S. v. Megahed, supra. In moving to suppress the Internet history, Youssef Megahed argued, in part, that “the FBI discovered the internet [sic] history in the course of a search conducted after revocation” of Samir Megahed’s consent to search the computer. U.S. v. Megahed, supra.
Youssef Megahed based his motion to suppress on the premise I outlined above. He argued that the consent to seize and search the computer had been revoked and the revocation of consent barred the FBI from searching the computer’s hard drive and/or the mirror image they had made of the hard drive. The argument was based on “the October, 2007 revocation of consent by” Samir Megahed. U.S. v. Megahed, supra.
The federal judge didn’t buy Youssef’s argument:
[T]he October, 2007, revocation of consent . . . does not require suppression of the internet history. After agents searched the Megahed residence, seized the computer, captured a mirror image copy of the hard drive, and returned the hard drive to Samir Megahed, the evidence was discovered in the course of an examination of the FBI mirror image copy. In October, 2008, neither the defendant nor Samir Megahed retained a reasonable expectation of privacy in the mirror image copy the FBI had obtained already with Samir Megahed's consent and had begun already to search. The revocation did not operate retroactively to nullify this history.U.S. v. Megahed, supra. In arriving at this conclusion (which I think is correct), the court cited a couple of cases that dealt with revoking consent for officers to seize hard copy documents. The defendants in those cases wanted to prevent the government from using the original documents federal agents had seized pursuant to the consent and/or the copies the agents subsequently made of the documents. Those courts held that the revocation of consent to seize documents did not affect the 4th Amendment permissibility of copying the documents; in other words, when the agents copied the documents, the consent to seize (and search) was still in effect, so the copying was reasonable under the 4th Amendment.
The Megahed case is the only reported case I can find in which someone revoked their consent to the seizure of a computer after it had been seized and after its hard drive had been imaged and searched. Obviously, the revocation of consent cannot bar officers from examining a hard drive/mirror image of a hard drive that was conducted, or even initiated, while the consent was still in effect. If the officers have the 4th Amendment right to possess the hard drive (and, by extension, a copy of the hard drive), they also have the 4th Amendment right to search its contents. The hard drive/image of the hard drive is in effect the government’s property.
If we analogize the imaging of a hard drive to the process of copying paper documents, then we reach the same conclusion even when the officers did not begin to examine the hard drive/mirror image of the hard drive until after the person who owned the computer had revoked his/her consent to its seizure. In the latter scenario, their acquiring possession of the hard drive was reasonable under the 4th Amendment because they seized it with the consent of the person who owned it. Since their acquiring possession of the hard drive was reasonable, it was also reasonable for them to made a copy of it; that is, they constitutionally had possession of the hard drive, so they had the constitutional authority to make a copy of it. As noted above, the copy of the hard drive then effectively became the government’s property, which meant the agents could constitutionally search it.
What about the residual scenario . . . the scenario in which the person who owns the computer revokes her consent for the agents to seize it BEFORE they make a copy of its hard drive? Assume officers come to my house and ask if they can seize my laptop; I give my consent for them to seize my laptop, so they take it away. The next day, before they have imaged the hard drive, I call them and say, “I’ve changed my mind. I want my laptop back.” I’m not sure what the correct outcome is here.
There’s a case from the U.S. Court of Appeals for the Sixth Circuit in which a taxpayer voluntarily gave the IRS his business records, i.e., consented to the seizure of the records by the IRS. He later asked to have them returned, the IRS refused, he sued, and the Sixth Circuit held that since the IRS’s possession of the documents was based on consent, “the government had no right to possession after consent was withdrawn.” Richard A. Vaughn, DDS, P.C. v. Baldwin, 950 F.3d 331 (U.S. Court of Appeals for the Sixth Circuit 1991). It also held that since the government had no constitutional right to possess the documents, it had no right to copy them after the consent had been withdrawn. So if we go with that theory, the officers have to give me my laptop and can no longer image its hard drive.
The U.S. Court of Appeals for the Ninth Circuit took a different view of revocation of consent to seize items in Jones v. Berry, 772 F.2d 443 (1983). In that case, IRS agents searched a couple’s home with Mrs. Jones’ consent and seized a number of items; after they’d taken the stuff away, Mr. Jones “revoked the consent granted by his wife.” Jones v. Berry, supra. He wanted the stuff returned. The Ninth Circuit held that the items did not have to be returned: “No claim can be made that items seized in the course of a consent search . . .must be returned when consent is revoked. Such a rule would lead to the implausible result that incriminating evidence seized in . . . a consent search could be retrieved by a revocation of consent.” Jones v. Berry, supra. That’s what I’ve always thought the rule was; once the government seizes evidence pursuant to a consent to search for and seize items, they get to keep what they seized. The only way the owner of the property can get the items back is, as I explained in an earlier post, by filing a motion for return of the property with the court.
There’s another line of cases which hold that if the government develops probable cause to believe that the item seized pursuant to consent from its owner is evidence of a crime while it’s in the government’s possession, the government doesn’t have to return the item if the owner revokes his/her consent. State v. Lane, 328 N.C. 598, 403 S.E.2d 267 (North Carolina Supreme Court 1991). So under this theory if in the scenario above the officers looked through the files on my laptop while my consent to its seizure was still in effect and discovered it contained evidence of a crime (drug records, say), they would not have to return the laptop to me and could presumably image its hard drive even after I tried to revoke my consent to its seizure.
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