Actual and Apparent Authority to Consent to Search

Police seize computer for forensics

 

Police seize computer for forensics
FBI, police seize computer, common place occurrence.

Apparent and actual authority to search a computer to allow forensics, Darren Chaker reviews, are judged in the same scope as any other legal test. In general the Fourth Amendment prohibits a warrantless search of a person’s home or possessions. Illinois v. Rodriguez, 497 U.S. 177, 181 (1990); U.S.C.A Const. Amend. 4. One commonly recognized exception to the warrant requirement is a search conducted pursuant to the voluntary consent of a person with authority over the property. United States v. Matlock, 415 U.S. 164, 165-66 (1974). Where it is a person other than the target of the investigation who gives consent, that person must have actual or apparent authority over the property to validate the warrantless search. Id.

An individual has actual authority to consent to a search where she “(1) has access to the area searched and (2) has either (a) common authority over the area, or (c) permission to gain access to that area.” Moore v. Andreno, 505 F.3d 203, 208-09 (2d Cir. 2007) citing United States v. Davis, 967 F.2d 84, 87 (2d Cir. 1992); United States v. Gradowski, 502 F.2d 563, 564 (2d Cir.1974)(per curiam).

Computers have been analogized to containers in which a higher expectation of privacy is had. See United States v. Andrus, 483 F.3d 711, 718 (10th Cir. 2007)(“Because intimate information is commonly stored on computers, it seems natural that computers should fall into the same category as suitcases, footlockers, or other personal items that ‘command[ ] a high degree of privacy.’”) quoting United States v. Salinas-Cano, 959 F.2d 861, 865-66 (10th Cir.1992); see also United States v. Aaron, 33 Fed.Appx. 180, 184 (6th Cir.2006)(a computer is analogous to a “suitcase or briefcase”); Trulock v. Freeh, 275 F.3d 391, 403 (4th Cir.2001)(password protected computer files compared to a “locked footlocker inside the bedroom.”).

Even when an individual may have actual authority over a computer because she has shared use of the machine, she does not have actual authority to consent to password protected areas of that computer to which she does not normally have access. Trulock, supra., 275 F.3d at 403 (live-in girlfriend who jointly used boyfriend’s computer but did not have access to his password protected files “had authority to consent to a general search of the computer, [but] her authority did not extend to [] password-protected files.”).

A third party does not have authority over a home, car or briefcase just because the owner fails to lock it on one occasion. The relevant inquiry is the level of expectation of privacy in the item. See c.f. Salinas-Cano, supra. at 865 (search of unlocked suitcase in girlfriend’s apartment, by girlfriend, unconstitutional because a “suitcase [is] a type of container long associated with privacy expectations.”)

A consent search may be valid when the consenting party does not have actual authority, but at the time of the search, she possessed apparent authority over the item. See Illinois v. Rodriguez, 497 U.S. 177 (1990). Apparent authority is judged by the reasonable belief of the officers’ who searched or seized an item at the time of the intrusion. Id. at 188. Such searches are only upheld when “the facts available to the officer[s] … [would] warrant a man of reasonable caution in the belief that the consenting party had authority over the [item].” Ibid. as quoted in Andreno, supra. at 209. It is the duty of the officers to resolve reasonable ambiguities regarding the consenting party’s authority before going forward with a search. See United States v. Whitfield, 939 F.2d 1071, 1075 (D.C. Cir. 1991)(“The burden [of proving effectiveness of consent] cannot be met if agents, faced with an ambiguous situation, nevertheless proceed without making further inquiry.”); see also United States v. Kimoana, 383 F.3d 1215, 1222 (10th Cir.2004). (“[W]here an officer is presented with ambiguous facts related to authority, he or she has a duty to investigate further before relying on the consent.”). This analysis applies only to mistakes of fact, not of law. Andreno, supra. at 209 citing United States v. Brown, 961 F.2d 1039, 1041 (2d Cir.1992) (per curiam).

When officers rely upon apparent authority of a co-occupant to enter a residence, they may not use that authority to search all items in the residence. See e.g. Georgia v. Randolf, 547 U.S. 103, 122 (2006)(“[W]hen it comes to searching through bureau drawers, there will be instances in which even a person clearly belonging on the premises as an occupant may lack any perceived authority to consent.”); see also Andrus, supra. (computers); Trulock, supra. (password protected computer files); Salinas-Cano, supra. at 865 (suitcases); United States v. Block, 590 F.2d 535, 541 (4th Cir.1978)(suitcases, footlockers, strongboxes).

An officer’s knowledge of a password on a computer vitiates a reasonable belief of apparent authority. See Trulock, supra. (no apparent authority for password protected computer files); see also United States v. Morgan, 435 F.3d 660, 663 (6th Cir.2006)(wife’s statement to police that her husband did not have separate username or password on the computer as factor in validating consent search.); Aaron, supra. at 184 (live-in girlfriend’s consent to search computer valid because boyfriend had not “restricted her access with password protections.”); United States v. Buckner, 473 F.3d 551, 555 (4th Cir. 2007)(search upheld because “the officers did not have any indication from [defendant’s wife], or any of the attendant circumstances, that any files were password-protected.”)

Last, a warrantless search may sometimes be excused if “law enforcement agents were confronted with an ‘urgent need’ to render aid or take action.” United States v. MacDonald, 916 F.2d 766, 769 (2d Cir.1990) (en banc) quoting Dorman v. United States, 435 F.2d 385, 391 (D.C.Cir.1970) (en banc), such as the suspect using counter forensic software, or being able to remotely access the target computer to employ such countermeasures.

© 2011 Darren Chaker. All Rights Reserved.

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Greetings - I am Darren Chaker. I litigated a cutting edge First Amendment case for 7 of its 10 year lifespan. Chaker v. Crogan, 428 F.3d 1215 C.A.9 (Cal.),2005, Cert. denied, 547 U.S. 1128, 126 S.Ct. 2023, invalidated a statute on First Amendment grounds and overruled the California Supreme Court‘s unanimous decision in People v. Stanistreet, 127 Cal.Rptr.2d 633. Soon after Chaker v. Crogan, it was also used to strike down Nevada's analogous statute forcing the legislature to rewrite the law and used as the backbone authority in Gibson v. City of Kirkland, 2009 WL 564703, *2+ (W.D.Wash. Mar 03, 2009). My case is a leading case on viewpoint discrimination. In a recent case, Chaker v. Crogan was used to vindicate people who filed a complaint against police. Those people were arrested and charged with a law Chaker v. Crogan invalidated! They sued for being arrested and charged with an unconstitutional statute, Penal Code 148.6. The federal court denied the City's motion to dismiss and the case settled. See Cuadra v. City of South San Francisco, 2010 WL 55875, *1+ (N.D.Cal. Jan 04, 2010) I love the fight and made cutting edge case law in the end. No doubt without the support of the ACLU (Ramona Ripston, Mark Rosenbaum, Peter Eliasberg, & Dan Tokaji) winning on appeal, and Joshua Rosenkranz www.orrick.com/lawyers/Bio.asp?ID=225990 assembling a small army of the best attorneys to defeat the California Attorney General's efforts to have the U.S. Supreme Court reverse the Ninth Circuit---this case would not have had a backbone to stand on. The case has been cited over 196 times as authority, and written about extensively. * Police Misconduct: Law and Litigation s 2:28, Denial of First Amendment rights (2009) * Smolla & Nimmer on Freedom of Speech s 3:11, Viewpoint discrimination--Cross-burning reprised: Commonwealth of Virginia v. Black--Heavy presumption against viewpoint discrimination (2010) * Smolla & Nimmer on Freedom of Speech s 10:22.50, Brandenburg v. Ohio: Intent and imminence standard--Bond and Watts decisions--"True threats" (2010) * CHAKER V. CROGAN, 5 Cardozo Pub. L. Pol'y & Ethics J. 425, 444+ (2007) My case is active, living and breathing—forever helping people who once felt oppressed.

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