Article by Darren Chaker
By Darren Chaker
Consent to search is like a buffet. Pick some, leave others, or pick nothing from long line of food. The crux of consent can be found in United States v. Most, 876 F.2d 191, 198 (D.C. Cir. 1989), “[A]n individual need not shut himself off from the world in order to retain his fourth amendment rights. He may invite his friends into his home but exclude the police; he may share his office with co workers without consenting to an official search.” Another way to put it is found in United States v. Lyons, 706 F.2d 321, 325 (D.C. Cir. 1983), where the court held, “One may freely admit guests of one’s choosing–or be legally obligated to admit specific persons–without sacrificing one’s right to expect that a space will remain secure against all others.” The few examples given below are some of the most common when people give up any expectation of privacy with a computer.
Computer Repair. The Lord giveth, the Lord taketh — but if you take your computer to get repaired, the police might be taking you! Private individuals often find contraband or other incriminating evidence on computers and bring that information to law enforcement, and the private search doctrine applies in these cases. In one common scenario, an individual leaves his computer with a repair technician. The technician discovers images of child pornography on the computer, contacts law enforcement, and shows those images to law enforcement. Courts have agreed that such searches by repairmen prior to their contact with law enforcement are private searches and do not implicate the Fourth Amendment. See United States v. Grimes, 244 F.3d 375, 383 (5th Cir. 2001); United States v. Hall, 142 F.3d 988, 993 (7th Cir. 1998); United States v. Anderson, 2007 WL 1121319 at *5-6 (N.D. Ind. Apr. 16, 2007); United States v. Grant, 434 F. Supp. 2d 735, 744-45 (D. Neb. 2006); United States v. Caron, 2004 WL 438685, at *4-5 (D. Me. Mar. 9, 2004); see also United States v. Kennedy, 81 F. Supp. 2d 1103, 1112 (D. Kan. 2000) (concluding that searches of defendant’s computer over the Internet by an anonymous caller and employees of a private ISP did not violate Fourth Amendment because there was no evidence that the government was involved in the search).
Depending on the scope of consent given to the computer technician, the search maybe invalid. Compare United States v. Anderson, 2007 WL 1121319, at *6 (N.D. Ind. Apr. 16, 2007) (technicians had “actual and apparent authority” to consent to a search of computer brought in for repair because they had authority to access the computer), with United States v. Barth, 26 F. Supp. 2d 929, 938 (W.D. Tex. 1998) (repairman lacked actual or apparent authority to consent to search of hard drive because the defendant had given the hard drive to the technician only for a limited purpose unrelated to the specific files and only for a limited period of time).
The reasoning behind allowing these searches is that that the Geek Squad is not a government agent, but can easily be one if given some direction of law enforcement. A good case to refer to is United States v. Souza, 223 F.3d 1197 (10th Cir. 2000), where the Court found that a UPS employee was a government agent. In Souza, the police identified and removed the package from the conveyer belt, submitted it to a canine sniff, and told the UPS employee that they suspected it contained drugs.
Spouse. Sleeping with the enemy is the sum of all fears for some of us. That fear has been embraced multiple courts to include the valid consent of a spouse. Absent an affirmative showing that the consenting spouse has no access to the property searched, the courts generally hold that either spouse may consent to a search of all of the couple’s property. See, Trulock v. Freeh, 275 F.3d 391, 398, 403-04 (4th Cir. 2001) (holding that woman did not have authority to consent to search of computer files of the man with whom she lived, when she had told agents that she did not know the password to access his files). Likewise, in United States v. Smith, 27 F. Supp. 2d 1111 (C.D. Ill. 1998), Smith was living with a woman and her two daughters. Allegations of child molestation were made by the woman, and she consented to the search of Smith’s computer, which was located in the house in an alcove connected to the master bedroom. Although the woman used Smith’s computer only rarely, the district court held that she could consent to the search of Smith’s computer. Simply put, the woman was not prohibited from entering the alcove and Smith had not password-protected the computer, the court reasoned, she had authority to consent to the search. See id. at 1115-16. Even if she lacked actual authority to consent, the court added, she had apparent authority to consent. See id. at 1116 (citing Illinois v. Rodriguez, 497 U.S. 177 (1990)).
Government Workplace. In O’Connor v. Ortega, 480 U.S. 709 (1987), a government employee may, depending on circumstances, enjoy a reasonable expectation of privacy in his workplace. However, even when the employee has a reasonable expectation of privacy, employers can nevertheless conduct warrantless searches provided the searches are work-related, justified at their inception, and permissible in scope. Id. at 725-26. See, Sheppard v. Beerman, 18 F.3d 147, 152 (2d Cir. 1994) (judge’s search through his law clerk’s desk and file cabinets did not violate the clerk’s reasonable expectation of privacy because of the clerk’s close working relationship with the judge); Schowengerdt v. United States, 944 F.2d 483, 488 (9th Cir. 1991) (civilian engineer employed by the Navy who worked with classified documents at an ordinance plant had no reasonable expectation of privacy in his office because investigators were known to search employees’ offices for evidence of misconduct on a regular basis). Note, in either government or private sector employment, efforts to obtain an employee’s files and email from the employer’s network server raise issues under the Stored Communications Act, 18 U.S.C. 2701-2712.
Private Workplace. In United States v. Ziegler, 474 F.3d 1184, 1189-90 (9th Cir. 2007), the court held that the employee in fact retained a reasonable expectation of privacy in his workplace computer. United States v. Longo, 70 F. Supp. 2d 225, 256 (W.D.N.Y. 1999) (allowing secretary to consent to search of employer’s computer). See also, United States v. Buitrago Pelaez, 961 F. Supp. 64, 67-68 (S.D.N.Y. 1997) (holding that a receptionist could consent to a general search of the office, but not of a locked safe to which receptionist did not know the combination). However, what is common in response to Ziegler is for employees to sign a form acknowledging they have no expectation of privacy on his or her work computer, the computer is company property, and to not do anything on the computer that is not work related. See, United States v. Matlock, 415 U.S. at 171. agents can often overcome the warrant requirement by obtaining the consent of the target’s employer or supervisor.
Darren Chaker 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