Most readers of this blog know (1) that a search done pursuant to consent doesn’t violate the Fourth Amendment, but (2) that the scope of search is limited by the terms of the consent. Thus, if Ollie Officer asks Sam Suspect whether he can search Sam’s house for the body of Vickie Victim, and Sam says, “OK, but you can’t look in the basement,” then Ollie can’t look in the basement, unless he has some other basis, besides consent, to do so. Furthermore, Ollie can’t look in, say, a shoebox in Sam’s closet, beacuse Sam only agreed to let Ollie look for Vickie’s body, and Vickie’s body couldn’t reasonably be in a shoebox.
The scope of a person’s consent is determined under an objective test: “[w]hat would the typical reasonable person have understood by the exchange between the officer and the suspect?” Florida v. Jimeno, 500 U.S. 248, 250 (1991). Sometimes that’s an easy question, and sometimes it isn’t. An example of the latter is State v. Stone, 362 N.C. 50 (2007), in which a divided North Carolina Supreme Court held that a drug suspect’s general consent to a search of his person didn’t allow officers to look inside his underwear.
Difficult questions about the scope of consent arise particularly often in connection with computer searches. For example, in State v. Prinzing, __ N.E. 2d. __, 2009 WL 1099774 (Ill. Ct. App. Apr. 21, 2009), officers went to the home of a person they suspected of possessing child pornography. The officers told the suspect that they believed that he may have been the victim of fraudulent credit card charges — the record is mixed as to the truth of the officers’ statements — and asked to search his computer for evidence of the fraud, including computer viruses. The suspect agreed, and the officers then searched the computer, finding images of child pornography. The defendant moved to suppress, arguing that he gave the officers consent to search for viruses and evidence of credit card fraud, and that his consent did not include consent to look at image files, which would not be likely to contain the things for which the officers said they wanted to look. Although the trial court denied his motion, the appellate court reversed, finding that the officers exceeded the scope of the defendant’s consent.
By comparison, in United States v. Luken, 560 F.3d 741 (8th Cir. 2009), officers likewise went to the home of a person they suspected of possessing child pornography and asked for consent to search his computer. He agreed in writing, authorizing the officers to “seize and view” his computer. The officers seized the computer, and one of them later examined its contents using special forensic software, finding child pornography. After he was charged with child pornography-related offenses, the defendant moved to suppress, arguing that the comprehensive forensic examination conducted by the officer went beyond “view[ing]” the computer. Neither the trial court nor the appellate court agreed, in part because the officers told the defendant that they had access to forensic tools that allowed them to recover deleted files, etc. Defendant’s consent was thus in the context of a conversation that suggested a thorough examination of the computer.
The North Carolina appellate courts have decided surprisingly few cases involving contested computer searches, and none, as far as I can tell, involving scope-of-consent issues. I imagine that we’ll see more and more cases involving these issues. A fact pattern I expect to see is: (1) an officer obtains consent to search a suspect’s computer for evidence of, say, financial crimes; (2) the officer looks at JPEG files (a particular type of image file) and finds child pornography; and (3) the suspect (now defendant) argues that the officer exceeded the scope of consent by looking at JPEG files. Whether the defendant is correct depends on whether evidence of financial crimes could reasonably be found in JPEG files, and that isn’t an easy question. A tax return, for example, could be stored as a JPEG file, though it would more likely be stored as a PDF file. The preparation of the lawyers, officers, and (perhaps) expert witnesses involved will make the difference in how a case like this turns out.
