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 11th 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 11th
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.
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