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Third-Party Consent: Seize and Search Computer

State v. David D. Ramage, 2010 WI App 77; for Ramage: Jevin J. Mulrooney; BiC; Resp.; Reply

Co-tenant’s permissive use of Ramage’s computers conferred on her authority to consent to warrantless police removal of computer and search of their contents. Contrary authority, People v. Blair, 748 N.E.2d 318 (Ill. App. Ct. 2001); State v. Lacey, 204 P.3d 1192 (Mont. 2009), distinguished:

¶12 As Matlock notes, enforcement of a valid third-party consent stems from the property owner’s relinquishment of his or her Fourth Amendment right to privacy in the property by virtue of the third party’s relationship with the property and the owner: “The authority which justifies the third-party consent does not rest upon the law of property, with its attendant historical and legal refinements.” Matlock, 415 U.S. at 172 n.7. The attempt by Blair and Lacey, therefore, to restrict valid third-party consents only to searches does not wash. See United States v. James, 571 F.3d 707, 714 (7th Cir. 2009) (applying to a “seizure” the law governing valid third-party consents to searches) (safe taken from residence; subsequent search warrant authorized opening the safe); State v. Guthrie, 627 N.W.2d 401, 423 (S.D. 2001) (third party with “common authority” over the defendant’s personal property may validly consent to the property’s seizure) (third party brought the property to law enforcement).

¶13 … Folger’s agreement that the detective could take the computers out of the apartment so they could be subject to what the pre-printed form referred to as a “complete search,” and what the detective testified was “further analysis” gave the detective the right under the Fourth Amendment to do what he did.

In the court’s view, the contrary Illinois and Montana cases represent a “crabbed reading of the scope of a valid third-party consent,” ¶10. The court sums it up thusly: “the scope of Folger’s admittedly valid consent to examine and access the computers carried over to where the computers were accessed once the detective took them to the police department,” ¶15. The third-party consent doctrine is based on assumption of risk — by granting use to another, the owner assumes the risk that that person will let still others inspect the property. But assuming the risk that the permissive user will cart the property away? Isn’t that going a bit far? Nonetheless, granting that the court is correct, the crucial factual underpinning is not just that Folger had permission to use the computers, but that they weren’t password protected, ¶2. The circuit court stressed just this fact in denying suppression, ¶6, but the court of appeals’ analysis oddly doesn’t mention it. Here, for example, is a relatively recent law review discussion on the point:

The presence of password-protected files is an important consideration in assessing a third party’s authority to consent. For example, in Trulock v. Freeh, 236 the court held that a resident of a townhouse, Conrad, could not authorize the search of password-protected files of another resident, Trulock, on a computer that was jointly used when Conrad did not have access to the passwords. The court reasoned by analogy to the case of a mother who was found not to have authority to consent to the search of a locked footlocker in her son’s room, which was located in a home they shared, and added: “By using a password, Trulock affirmatively intended to exclude Conrad and others from his personal files.” 237 On the other hand, the lack of passwords to protect files has been held to defeat a claim that the defendant had exclusive control of a computer and that his housemate did not have authority to consent to search. 238

75 Miss. L.J. 193, 256-258.

Somewhat different principle (joint owner can’t object to co-owner’s consent to search computer), but assumption-of-risk discussion relevant, United States v. King, 3d Cir. No. 09-1861, 4/30/10 (“A computer is a personal effect, see, e.g, Andrus, 483 F.3d at 718-20 (analogizing a computer to a container). Therefore, we apply the Matlock rule and ask whether King relinquished his privacy in the hard drive with respect to Larkin.”)

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