Citation Edit

United States v. Andrus, 483 F.3d 711 (10th Cir. 2007) (full-text).

Factual Background Edit

Defendant Ray Andrus was indicted on one count of possession of child pornography, in violation of 18 U.S.C. §2252(a)(4)(B). Federal authorities first became interested in Andrus during an investigation of Regpay, a third-party billing and credit card aggregating company that provided subscribers with access to child pornography websites. The investigation of Regpay led to an investigation of Regpay subscribers, which led to a subscriber identifying himself as "Ray Andrus".

The Bureau of Immigration and Customs Enforcement ("ICE") agents found pornographic images of children on Andrus’ home computer after Andrus’ father, Dr. Bailey Andrus, consented to a search of the Andrus' home and Andrus’ computer. Record checks with the drivers license bureau and post office indicated Ray Andrus, Bailey Andrus, and a third man, Richard Andrus, all used the same address, the address where the defendant resided. Also, the email address provided to Regpay, "," was determined to be associated with Dr. Bailey Andrus, the defendant’s father.

After eight months of investigation, agents believed they did not have enough information to obtain a search warrant for the Andrus residence. As an alternative, agents attempted to gather more information by doing a "knock and talk" interview with the hope of being able to conduct a consented search. An ICE agent, police detective, and forensic computer expert went to the residence. Dr. Andrus invited the officers into his home. Dr. Andrus indicated Ray Andrus did not pay rent and lived in the home to help care for his aging parents. Officers saw the door to Ray Andrus’ bedroom was open and asked Dr. Andrus whether he had access to the bedroom. Dr. Andrus told officers that he did have access and told them he felt free to enter the room when the door was open, but always knocked if the door was closed. Then, officers asked Dr. Andrus for consent to search the house and any computers in it. He then signed a written consent form indicating his willingness to consent to a premises and computer search and led the forensic computer expert into Ray Andrus' bedroom to show him where the computer was located.

The forensic computer expert used EnCase forensic software and a laptop to examine the contents of the computer’s hard drive which allowed him direct access to the hard drive without first determining whether a user name or password were needed. Moreover, he did not need to determine whether the computer was protected by a user name or password prior to previewing the computer's contents. Then he used EnCase to search for .jpg picture files in which he clicked on the images retrieved to see the pathname for the image, tracing it to particular folders on the computer's hard drive. About five minutes later, the process revealed folder and file names which were suggestive of child pornography. After that, officers shut down the laptop computer and waited in Ray Andrus' bedroom with the computer until Andrus had personally consented to the search and the forensic computer expert could continue.

After continuing a conversation with Dr. Andrus, officers discovered that the computer in Ray Andrus' room was the only one in the home. Dr. Andrus also indicated that the internet service was part of the cable package in the home.

Consequently, Ray Andrus was indicted on one count of knowingly and intentionally possessing pornographic images of minors in violation of 18 U.S.C. §2252(a(4)(B). Andrus then moved to suppress the evidence gathered from his residence and his computer. Andrus argued that Dr. Andrus' consent was not voluntary, Dr. Andrus lacked actual authority to consent to a search of the computer, even if he had authority to consent to a search of Ray Andrus' room, and Dr. Andrus could not reasonably be seen as having authority to consent to a search of the computer and, thus, lacked apparent authority.

Appellate Court Proceedings Edit

The court examines the consent to the search under the Fourth Amendment. Valid third party consent can arise either through the third party's actual authority or the third party's apparent authority. And a third party has actual authority to consent to a search if that third party has either (1) mutual use of the property by virtue of joint access, or (2) control for most purposes. Even where actual authority is lacking, a third party has apparent authority to consent to a search when an officer reasonably, even if erroneously, believes the third party possesses authority to consent.

Whether apparent authority exists is an objective, totality-of-the-circumstances inquiry into whether the facts available to the officers at the time they commenced the search would lead a reasonable officer to believe the third party had authority to consent to the search. The court held that the ICE agents could reasonably have believed defendant's father had authority to consent to search of defendant's home computer, and thus, his father had apparent authority to consent. And although the computer was in defendant's bedroom in his father's home rather than in common area, the father had unlimited access to the bedroom. Moreover, the agents knew that father owned the home and paid for the home's internet service, and that the email address associated with the father was used to register on a website that provided access to child pornography. Further, the computer was in plain view on the desk and appeared available for use by household members, and although agents did not ask the father about his use of computer, the father said nothing indicating need for such questions.

In analogizing computers to other containers, individuals' expectations of privacy in computers have been likened to their expectations of privacy in "a suitcase or briefcase."[1] and password-protected files have been compared to a "locked footlocker inside the bedroom."[2]

In determining whether a computer is "locked," or whether a reasonable officer should know a computer may be locked, presented a challenge distinct from that associated with other types of closed containers. Unlike footlockers or suitcases, where the presence of a locking device are generally apparent by looking at the item, a "lock" on the data within a computer is not apparent from a visual inspection of the outside of the computer, especially when the computer is in the "off" position prior to the search. Further, data on an entire computer may be protected by a password, with the password functioning as a lock, or there may be multiple users of a computer, each of whom has an individual and personalized password-protected "user profile." The presence of a password that limits access to the computer's contents may only be discovered by starting up the machine or attempting to access particular files on the computer as a normal user would.

However, the difficulty with seeing a "lock" on computer data is exacerbated by the forensic software sometimes used by law enforcement to conduct computer searches. Software like the EnCase software used by the agent, allows user profiles and password protection to be bypassed. Following, the Court stated that a critical issue in assessing a third party's apparent authority to consent to the search of a home computer is whether law enforcement knows or should reasonably suspect because of surrounding circumstances that the computer is password protected.

In addition to password protection, courts also consider the location of the computer within the house and other indicia of household members' access to the computer in assessing third party authority. Third party apparent authority to consent to a search has generally been upheld when the computer is located in a common area of the home that is accessible to other family members under circumstances indicating the other family members were not excluded from using the computer. In contrast, where the third party has affirmatively disclaimed access to or control over the computer or a portion of the computer's files, even when the computer is located in a common area of the house, courts have been unwilling to find third party authority.[3]

Although Andrus' computer was located in a bedroom occupied by the homeowner's fifty-one year-old son rather than in a true common area, Dr. Andrus, had unlimited access to the room. Moreover, law enforcement officers did not ask specific questions about Dr. Andrus' use of the computer, and Dr. Andrus said nothing indicating the need for such questions. And if the circumstances reasonably indicated Dr. Andrus had mutual use of or control over the computer, the officers were under no obligation to ask clarifying questions.

Further, officers knew Dr. Andrus owned the house and lived there with family members. The officers knew Dr. Andrus' house had internet access and that Dr. Andrus paid the Time Warner internet and cable bill. They knew the email address had been activated and used to register on a website that provided access to child pornography. And although the officers knew Ray Andrus lived in the center bedroom, they also knew that Dr. Andrus had access to the room at will. In addition, the officers saw the computer in plain view on the desk in Andrus' room and it appeared available for use by other household members.

Furthermore, Dr. Andrus did not say or do anything to indicate his lack of ownership or control over the computer when the agent asked for his consent to conduct a computer search. Also, Dr. Andrus remained silent about any lack of authority he had over the computer while agents were using the forensic program. Even if Ray Andrus' computer was protected with a user name and password, there was no indication in the record that the officers knew or had reason to believe such protections were in place.

The court held under the totality-of-the-circumstances analysis, the facts known to the officers at the time the computer search commenced created an objectively reasonable perception that Dr. Andrus was, at least, one user of the computer. In addition, that the objectively reasonable belief would have been enough to give Dr. Andrus apparent authority to consent to a search. Moreover, even if Dr. Andrus had no actual ability to use the computer and the computer was password-protected, these mistakes of fact did not negate a determination of Dr. Andrus' apparent authority.

The court concluded that the agent properly halted the search when further conversation with Dr. Andrus revealed he did not use the computer and that Andrus' computer was the only computer in the house. These later revelations had no bearing on the reasonableness of the officers' belief in Dr. Andrus' authority at the outset of the computer search.

References Edit

  1. United States v. Aaron, 33 Fed. Appx. 180, 184 (6th Cir. 2006) (unpublished).
  2. Trulock v. Freeh, 275 F.3d 391, 403 (4th Cir. 2001)(full-text).
  3. Trulock, 275 F.3d at 403.

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