Consent Computer Search

by Charles Gillingham

Frequently, officers are concerned or confused about Fourth Amendment issues when dealing with electronic devices.  Remember your Fourth Amendment fundamentals when dealing with a computer.  Ultimately, what legal right do you have to be on the computer, viewing its contents?  A computer search is like any other closed container search. Keep your fundamentals in mind and you will be fine. An example from the Ninth Circuit is illustrative.

U.S. v. Tosti 733 F.3d 816.

Defendant took his computer to CompUSA to be repaired.  Defendant understood that a technician would take custody of the computer and inspect it as needed to repair.  The technician was working on the machine when he discovered child pornography.  When a detective arrived there were thumbnail images up on the screen that were easily identifiable as child pornography.  The detective directed the technician to make the images larger so they were easily viewed. The technician complied.  Another detective arrived, viewed the images and an affidavit for search warrant was issued for the computer, home, office and two cars. 

A few days later, FBI agents were contacted by the defendant's wife. She provided documents related to child pornography and an external and internal hard drive.  A  couple of days later she turned over a computer, hard drives and DVD's.  She stated that she lived in the residence, had full access throughout the residence and that she was responsible for cleaning the room where the computers were located.  None of the electronic material was password protected. 

Ms. Tosti signed a consent to search the items she turned over and officers never noticed locks, signs or anything else indicating the room where the items were kept was anything other than common areas. 



The defendant moved to suppress the evidence from the home based on the allegation that he and Ms. Tosti agreed that the room was a private area and that the two of them would not enter each other's private areas without permission.  He also moved to suppress the search from CompUSA.



The court summarily dealt with the CompUSA search by noting it was a private search. The agent's viewing of what a private party, CompUSA technician, had freely made available does not violate the Fourth Amendment.  The record here was that the officers looked at nothing more than the technician viewed.  The expanding the thumbnails to look at a clearer view is not advisable once it is clear that the images are child pornography.  The defendant challenged the expansion of the thumbnails. The record though showed that the officers looked at nothing more than the technician viewed, so upheld the search.



The court also rejected the contention that Ms. Tosti did not have apparent or actual authority to consent to the search of the items she provided law enforcement.  Here, the officers did a good job of determining what the nature of the wife's access was to the room in the home where the items were kept, documenting that there was nothing to indicate she could not enter the room. The officers took a statement from the wife wherein she stated she was entitled to go into the room to clean and perform other functions associated with the room that was used as a home office. They also noted there were no locks on the doors, no encryption on the hard drives, and no outward signs limiting her access.  The documentation that the officers did when receiving the evidence gave them no reason to believe that Ms. Tosti did not have authority to give consent to search.




By going back to basics, the basics of a public search and apparent authority to consent, and documenting the evidence that you gather to support your actions, a computer search is no different than any other search you already perform.