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Defense win – COA holds police exceeded scope of consent to search computer

State v. Kevin M. Jereczek, 2021 WI App 30; case activity (including briefs)

Police suspected Jereczek’s son in a sexual assault and thought there might be evidence on the family desktop computer. They asked Jereczek if they could search the machine; he agreed but limited his permission to the son’s account. The examiner, Behling, didn’t adhere to this restriction: he instead began his search in the recycle bin, which contains files deleted from any of the computer’s accounts. There he found child pornography apparently associated with Jereczek’s account, which led him to seek a warrant to search the entire computer. Execution of this warrant turned up more images, leading to the charges against Jereczek. Jereczek moved to suppress the images, saying the initial search had exceeded the scope of his consent. The circuit court denied suppression; Jereczek pleaded no contest to one count and appealed.

The court of appeals notes that the scope of consent given is objective: “‘what would the typical reasonable person have understood by the exchange between the officer and the suspect?’ [Florida v.] Jimeno, 500 U.S. 248, 251.” Starting from there–and with a little understanding of how the user profiles and the recycle bin appear to a user of the computer–the answer is pretty clear:

We conclude Behling plainly violated the scope of Jereczek’s consent, which gave police authority to search only his son’s user account. Despite this clear limitation, Behling began his search of the computer in the recycle bin, a location where he knew he was likely to find—and did find—not just files deleted from the son’s user account, but the deleted files of the computer’s other users as well. Indeed, further investigative efforts were necessary to determine precisely from which account each item of child pornography in the recycle bin had come. A search of the shared recycle bin container was therefore not a search of “the son’s account,” and it exceeded the scope of the consent that Jereczek had given law enforcement.

….

The recycle bin, to be sure, was accessible from the son’s user account, but only in a limited manner. Behling testified that when a particular user deletes a file from his or her account, that user would be able to see the deleted file, but other users logged into different accounts would not. On this record, there is no basis to conclude that Jereczek reasonably believed the consent he provided would allow law enforcement to access data from other user accounts, whether located in the recycle bin or elsewhere on the hard drive disk. Moreover, Jereczek authorized police to search within the recycle bin only to the extent the search was of data from the son’s user account. Behling’s review of the recycle bin’s aggregate contents from all users exceeded the explicit limitations Jereczek placed on the search.

The State’s argument is, essentially, that the limitation Jereczek imposed “authorized [Behling] to access data associated with his son’s user profile.” (Emphasis added.) In the State’s view, this consent meant Behling “could access and search any area of Jereczek’s hard drive where his son’s user profile data could be found, including shared common areas of the computer.” (Emphasis added.) As we have explained, interpreting the scope of consent in this fashion relies on an overly technical understanding of how data is stored on a hard drive disk and how that data is accessed by law enforcement’s forensic software. It is not what a typical reasonable person would have understood, nor is it necessarily consistent with the specific limitation Jereczek imposed. The State’s assertion that it is entitled to search anywhere that the son’s user data could be stored is therefore not objectively reasonable.

(¶¶21-24).

The state’s response to this straightforward logic aligns with Behling’s testimony on the search: he looked in the recycle bin because that’s where he thought any pornography was likely to be–he didn’t feel the search would be “complete” without it. (¶12). He also testified there were “difficulties” to searching a multi-account computer in a way that would limit the search to only one account. (¶11). There’s an easy answer to that: he had consent to search a certain area; it doesn’t matter that he wanted to search somewhere else:

[T]he State’s argument proceeds from a faulty premise divorced from the context of electronic devices. By stipulation, the consent Jereczek provided was limited to his son’s user account—not to, in the State’s formulation, any “data associated with his son’s user profile.” We perceive the latter scope of consent to be much broader, and law enforcement certainly could have sought that degree of authorization. Having failed to do so, though, police were not entitled to search other areas of the hard drive merely because it was convenient for them to do so, or because they believed evidence they desired might be located there.

(¶26).

The circuit court actually admitted the evidence on an inevitable discovery theory which, the court of appeals notes, doesn’t seem to align with the facts Behling testified to. (¶14 n.4). Nevertheless, the court leaves open the possibility that the state will be able to satisfy this doctrine on remand. (¶¶30-31).

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