Normally, the Fourth Amendment requires that police obtain a search warrant before officers may search a person’s phone or computer. But the person can waive his or her Fourth Amendment rights by consenting to a search without a warrant. The scope of a person’s consent is determined by what a “typical reasonable person [would] have understood by the exchange between the officer and the suspect.” Florida v. Jimeno, 500 U.S. 248 (1991). Applying that test, if an officer asks a suspect for consent to search the suspect’s home, and the suspect agrees, does that allow the officer to search any digital devices located inside the residence?
No controlling authority. As far as I know, no published decision from North Carolina’s appellate courts, and no opinion of the Supreme Court of the United States, addresses this question. If you’re aware of any controlling authority, please let me know.
Some courts have said yes, at least under certain circumstances. An illustrative opinion is United States v. Berger, 823 F.3d 1174 (8th Cir. 2016). The defendant in that case was on supervised release as a result of a prior conviction for soliciting a minor for sexual activity. It was a condition of his release that he not access the internet, but his supervising officer suspected that he was online. The officer went to his home and he signed a form granting her consent “to conduct a complete search of [the] premises and curtilage.” She and other officers then searched the defendant’s home and found various electronic devices including a hard drive. A forensic examination of the drive revealed child pornography. The defendant was charged with possession of the images and moved to suppress, arguing that the forensic search exceeded the scope of his consent. The matter eventually reached the Eighth Circuit, which disagreed:
While the consent to search form did not specifically mention a computer or hard drive, the form clearly authorized the probation officers to “conduct a complete search” of the premises and elsewhere a “complete search of the property herein described” and informed Berger that any evidence found as a result of the search can be seized and used against him in a court of law. Berger could not have reasonably believed that the search he authorized did not encompass seizure of an external hard drive and a forensic examination of its contents as an examination of the files contained on the device would logically be necessary to determine whether any internet usage had occurred. A reasonable person would have understood that consent to search the “premises” for evidence of violations of the conditions of supervised release, including internet usage, extended to a forensic examination of any devices found in such search.
As the passage above shows, the court relied in part on the object of the search to illuminate the scope of consent: the officer was looking for evidence of internet usage, so it should have been apparent to everyone that she would want to search the defendant’s digital devices. The court also noted that the defendant didn’t “object or limit his consent” when he learned of the forensic examination, which the court viewed as evidence that he saw that as within the scope of his consent.
Another case in a similar vein is United States v. Lucas, 640 F.3d 168 (6th Cir. 2011), which began when officers investigating reports of marijuana activity at a suspect’s home conducted a knock and talk. The suspect consented to a search “for illegal controlled substances, drug paraphernalia, and ‘other material or records pertaining to narcotics.’” During the search, the officers found a handwritten “grow chart” sitting atop a computer, leading to a search of the computer for other evidence of drug activity. The search revealed child pornography. The defendant later argued that the search exceeded the scope of his consent, but the Sixth Circuit disagreed. It emphasized the connection between the drug activity and the computer, and noted that the defendant did not object to the search. Still, the court cautioned that its opinion “should not be read as a grant of broad authority to the police to open a suspect’s non-secured computer and examine at will all of the electronic files stored there.” See also United States v. Suing, 712 F.3d 1209 (7th Cir. 2013) (holding that the defendant’s general consent to the search of his vehicle, including its “luggage, containers, and contents,” supported an officer’s search of an external hard drive located in a bag on the front passenger seat).
But other courts have said no. Recently, the Sixth Circuit returned to this issue in United States v. Lewis, 81 F.4th 640 (6th Cir. 2023). Officers in that case received information suggesting that the defendant was involved in child pornography. They went to his home and told him that they were investigating reports of federal crimes committed via the internet. He signed consent to “a complete search of the premises [and] property,” including a “Samsung Galaxy Note 9 [phone and a] HP Pavilion Laptop.” The officers called out a forensic examiner, who found evidence of child pornography. Both the district court and the reviewing court found that the seizure and forensic search exceeded the scope of the defendant’s consent, focusing on the seizure of the devices: “Nothing in Lewis’s exchange with [the officers] or in the law-enforcement officers’ actions would suggest to a reasonable person that Lewis had consented to the seizure of all the electronic devices in his home. The officers did not ask for his consent to seize, and the consent form Lewis signed did not authorize a seizure.” The court’s ruling is especially noteworthy given that the consent form specifically referenced the defendant’s digital devices.
Additional cases finding that officers exceeded the scope of consent include:
- United States v. Turner, 169 F.3d 84 (1st 1999) (officers were investigating a break-in and assault at a woman’s apartment; the defendant lived in a neighboring apartment, and officers asked him for consent to “look around” his apartment for evidence, which he granted; officers saw potential evidence of the defendant’s involvement in the assault and obtained a more formal, written consent to search “the premises” and the defendant’s “personal property”; in the course of the search, officers noticed adult pornography on the defendant’s computer, then searched the computer further, finding child pornography; the First Circuit ultimately ruled that the search exceeded the scope of the defendant’s consent: “an objectively reasonable person assessing in context the exchange between Turner and these detectives would have understood that the police intended to search only [for] physical evidence of the [neighbor’s] assault . . . [such as] a knife or bloody clothing [and] . . . it obviously would have been impossible to abandon physical evidence of this sort in a personal computer hard drive”)
- United States v. Carey, 172 F.3d 1268 (10th 1999) (officers arrested the defendant at his home based on a warrant charging him with drug activity; they saw additional evidence in the home and asked the defendant for consent to search; he signed a form granting consent to a “complete search of the premises and property”; the officers found evidence of drug activity and also found and seized two computers; they obtained a warrant to search the computers and found child pornography, but the warrant was later deemed invalid; the government argued that the search was valid anyhow, based on the defendant’s consent, but the Tenth Circuit disagreed, ruling that “the scope of the consensual search was confined to the apartment itself” and did not extend to the contents of the computers)
- United States v. Church, 232 F.Supp.3d 831 (E.D. Va. 2017) (the wife of a suspected child sex offender signed a consent to search form allowing a “complete search of [her] residence” and permitting officers to seize “any letters, papers, paraphernalia, material or other items they have reason to believe are connected with a crime”; officers seized, inter alia, a tablet and a laptop on which they found child pornography; the court ruled that the seizure and search of digital devices exceeded the scope of her consent, which she gave based on the officers’ representation that they suspected her husband of a forcible sex offense; in that context, her agreement allowed only a search for physical evidence)
Conclusion and practical suggestions. This issue is not settled. In fact, it may be incapable of categorical resolution given the importance of the particular facts of each case. While we await controlling case law on this issue, I suggest that an officer who wants to search any digital devices located in a home make clear when obtaining consent that digital devices are included. For example, the officer could obtain consent to “a complete search of the premises, including any containers and digital devices present therein.” It may also be helpful for the officer to make clear that he or she is investigating a crime that may be committed electronically or documented on digital media. Finally, the officer should memorialize in his or her report whether the suspect objected when the officer began examination of the suspect’s devices. (If a suspect objects, that would likely be considered withdrawal of consent, so the officer should stop the search and consider seizing the device and seeking a search warrant.)