No Easy Answers

Thursday, January 11, 2007

Computer Drive Privacy and Spousal Consent

Hat tip to howappealing


Evidence on a husband's password-protected computer is not to be suppressed when his wife (who does not know or have the password) gives custody of the computer to authorities.


                FOR THE FOURTH CIRCUIT

                 v.                               No. 06-4399

            Appeal from the United States District Court
       for the Western District of Virginia, at Harrisonburg.
                Samuel G. Wilson, District Judge.

                      Argued: November 29, 2006

                      Decided: January 11, 2007

   Before WIDENER, NIEMEYER, and MOTZ, Circuit Judges.

Affirmed by published opinion. Judge Motz wrote the opinion, in
which Judge Widener and Judge Niemeyer joined.


ARGUED:William Kent Bowers, Harrisonburg, Virginia, for Appel-
lant. Joseph William Hooge Mott, Assistant United States Attorney,
ginia, for Appellee. ON BRIEF: John L. Brownlee, United States
Attorney, Ashley Nicole Reynolds, Third Year Practice Student,
ginia, for Appellee.

2                     UNITED STATES v. BUCKNER



   Frank Gary Buckner appeals from an order denying his motion to
suppress evidence gathered from password-protected files on the hard
drive of a computer police seized from his home. The officers seized
and searched the computer, without a warrant, on the basis of oral
consent granted by Buckner's wife, Michelle. On appeal, Buckner
contends that although Michelle's consent sufficed to give the officers
permission to search the computer itself, her consent could not extend
to his password-protected files. Because Michelle Buckner did have
apparent authority to consent to the search of these files, we affirm.


   This criminal investigation began when the Grottoes, Virginia
police department received a series of complaints regarding online
fraud committed by someone using AOL and eBay accounts opened
in the name Michelle Buckner. On July 28, 2003, police officers went
to the Buckner residence to speak with Michelle, but only Frank
Buckner was at home. The officers then left, asking Frank to have
Michelle contact them. A short while later, Frank Buckner himself
called the police, seeking more information about why they wanted
to speak with Michelle. The police responded that they wanted to talk
with her about some computer transactions. That evening, Michelle
Buckner went to the police station and told officers that she knew
nothing about any illegal eBay transactions, but that she did have a
home computer leased in her name. She further stated that she only
used the home computer occasionally to play solitaire.

   The next day, July 29, police returned to the Buckner residence to
speak further with Michelle about the online fraud. Frank Buckner
was not present. Michelle again cooperated fully, telling the officers
"to take whatever [they] needed" and that she "want[ed] to be as
cooperative as she could be." The computer Michelle had indicated
was leased in her name was located on a table in the living room, just
inside the front door of the residence. Pursuant to Michelle's oral con-
sent, the officers seized the leased home computer.

                       UNITED STATES v. BUCKNER                      3

   At the time the officers seized the computer, it was turned on and
running, with the screen visibly lit. The officers did not, at this time,
open any files or look at any information on the computer. Instead,
with Michelle's blessing, they shut down the computer and took its
data-storage components for later forensic analysis. This analysis con-
sisted of "mirroring" -- that is, creating a copy of -- the hard drive
and looking at the computer's files on the mirrored copy.

   Ultimately, a grand jury indicted Frank Buckner on twenty counts
of wire fraud, see 18 U.S.C. § 1343 (2000), and twelve counts of mail
fraud, see 18 U.S.C. § 1341 (2000). At a suppression hearing, Frank
Buckner offered the only affirmative evidence on the password issue,
testifying that a password was required to use the computer. Buckner
stated that he was the only person who could sign on to the computer
and the only person who knew the password necessary to view files
that he had created. Nothing in the record contradicts this testimony.
Nor, however, is there any record evidence that the officers knew this
information at the time they seized or searched the computer. Indeed,
the evidence indicates that no officer, including the officer who con-
ducted the search of the mirrored hard drive, ever found any indica-
tion of password protection. The Government's evidence was that its
forensic analysis software would not necessarily detect user passwords. ^1

   The district court denied Buckner's motion to suppress and Buck-
ner entered a conditional plea of guilty under Federal Rule of Crimi-
nal Procedure 11(a)(2) (2003), reserving the right to appeal the denial
of the suppression motion. In the district court, Buckner challenged
both the officers' seizure of the computer and the subsequent search
of password-protected files located on the computer's hard drive. On
appeal, he challenges only the search.


   In considering a ruling on a motion to suppress, we review conclu-
sions of law de novo and underlying factual findings for clear error.
United States v. Jarrett, 338 F.3d 339, 343-44 (4th Cir. 2003).

  The parties agree that none of Frank Buckner's files were encrypted.
Nor is there any contention that the police officers deliberately used soft-
ware that would avoid discovery of any existing passwords.

4                      UNITED STATES v. BUCKNER

   Although the Fourth Amendment generally prohibits warrantless
searches, see Maryland v. Dyson, 527 U.S. 465, 466 (1999), valid
consent to seize and search items provides an exception to the usual
warrant requirement, see Schneckloth v. Bustamonte, 412 U.S. 218
(1973). In responding to a defendant's motion to suppress, the Gov-
ernment bears the burden of establishing, by a preponderance of the
evidence, that it obtained valid consent to search. See United States
v. Block, 590 F.2d 535, 539 (4th Cir. 1978).

   Consent to search is valid if it is (1) "knowing and voluntary,"
Trulock v. Freeh, 275 F.3d 391, 401 (4th Cir. 2001) (citing United
States v. Mendenhall, 446 U.S. 544, 557 (1980)), and (2) given by one
with authority to consent, Trulock, 275 F.3d at 402-03 (citing Stoner
v. California, 376 U.S. 483 (1964)). There is no question in this case
that Michelle Buckner's consent was knowing and voluntary; Frank
Buckner challenges only her authority to consent. Because the Gov-
ernment has never contended that Michelle had primary ownership of,
or sole access to, these files, this case presents an issue of third-party

   A third-party has authority to consent to a search of property when
she possesses "common authority over or other sufficient relationship
to the . . . effects sought to be inspected." United States v. Matlock,
415 U.S. 164, 171 (1975). "Common authority" in this context is not
merely a question of property interest. Rather, it requires evidence of
"mutual use" by one generally having "joint access or control for most
purposes." Id. at 171, n.7. Such use makes it "reasonable to recognize
that any of the co-[users] has the right to permit the inspection in h[er]
own right and that the others have assumed the risk that one of their
number might permit the common [effects] to be searched." Id.

   We have previously considered whether a computer user has actual
authority to consent to a warrantless search of the password-protected
files of a co-user. In Trulock, when considering whether FBI agents
were entitled to qualified immunity in a suit alleging a Fourth
Amendment violation, we held that a co-resident of a home and co-
user of a computer, who did not know the necessary password for her
co-user's password-protected files, lacked the authority to consent to
a warrantless search of those files. 275 F.3d at 403. Borrowing an
analogy from United States v. Block, 590 F.2d 535, 539 (4th Cir.

                       UNITED STATES v. BUCKNER                     5

1978), we likened these private files to a "locked box" within an area
of common authority. Trulock, 275 F.3d at 403-04. Although com-
mon authority over a general area confers actual authority to consent
to a search of that general area, it does not "automatically . . . extend
to the interiors of every discrete enclosed space capable of search
within the area." Block, 590 U.S. at 541.

   The logic of Trulock applies equally here. "By using a password,"
Frank Buckner, like Trulock, "affirmatively intended to exclude . . .
others from his personal files." Trulock, 275 F.3d at 403. For this rea-
son, "it cannot be said that" Buckner, any more than Trulock, "as-
sumed the risk" that a joint user of the computer, not privy to
password-protected files, "would permit others to search his files."
See id. Thus, under the Trulock rationale, Michelle Buckner did not
have actual authority to consent to a search of her husband's
password-protected files because she did not share "mutual use, gen-
eral access or common authority" over those files, ^2 United States v.
Kinney, 953 F.2d 863, 866 (4th Cir. 1992).

   Michelle's lack of actual authority, however, does not end our
inquiry. The Government need not establish that Michelle Buckner
had actual authority to consent to a search of Buckner's password-
protected files in order to succeed on appeal. Rather, it would be suf-
ficient that Michelle had apparent authority to consent to the search
at issue. See Illinois v. Rodriguez, 497 U.S. 177, 188 (1990). As long
as "the facts available to the officer at the moment . . . `warrant a [per-
son] of reasonable caution in the belief' that the consenting party had
authority," apparent authority to consent exists, and evidence seized
or searched pursuant to that consent need not be suppressed. Id. (quot-
ing Terry v. Ohio, 392 U.S. 1, 21-22 (1968)); see also Kinney, 953
F.2d at 866.

   The Government argues that because the computer was leased only in
Michelle's name, Buckner had no reasonable expectation of privacy in
his password-protected files. To be sure, this fact does bear on the rea-
sonableness of an expectation of privacy; but in this case, the district
court expressly found that Buckner did have a reasonable expectation of
privacy in his password-protected files, see United States v. Buckner, 407
F.Supp.2d 777, 779 (W.D.Va. 2006), a finding that we cannot hold
clearly erroneous.

6                     UNITED STATES v. BUCKNER

   Michelle gave the officers consent to "take whatever [they] needed
[and] whatever [they] found that [they] thought was important to the
investigation." This unquestionably provided the officers with valid
consent to seize and search any items in the home over which
Michelle had common authority. Nevertheless, Frank Buckner con-
tends that Michelle did not have common authority over his computer
files -- a fact that the officers must have known, according to Buck-
ner, because Michelle had told them that she was not computer-savvy
and that she only used the computer to play games.

   Whether the officers reasonably believed that Michelle had author-
ity to consent to a search of all the contents of the computer's hard
drive, however, depends on viewing these facts in light of the totality
of the circumstances known to the officers at the time of the search.
At that time, the officers knew that the computer was located in a
common living area of the Buckners' marital home, they observed
that the computer was on and the screen lit despite the fact that Frank
Buckner was not present, and they had been told that fraudulent activ-
ity had been conducted from that computer using accounts opened in
Michelle's name. The officers also knew that the machine was leased
solely in Michelle's name and that she had the ability to return the
computer to the rental agency at any time, without Frank Buckner's
knowledge or consent.

  Furthermore, the officers did not have any indication from
Michelle, or any of the attendant circumstances, that any files were
password-protected. Cf. Trulock, 275 F.3d at 398 (noting that the
searching officers were explicitly told that the computer contained
password-protected files to which the consenting party did not have
access). Even during the mirroring and forensic analysis processes,
nothing the officers saw indicated that any computer files were
encrypted or password-protected. ^3 Despite Michelle's suggestion that
she lacked deep familiarity with the computer, the totality of the cir-
cumstances provided the officers with the basis for an objectively rea-
sonable belief that Michelle had authority to consent to a search of the

   We do not hold that the officers could rely upon apparent authority
to search while simultaneously using mirroring or other technology to
intentionally avoid discovery of password or encryption protection put in
place by the user. See supra note 1.

                      UNITED STATES v. BUCKNER                       7

computer's hard drive. Therefore, the police were justified in relying
on Michelle's consent to search the computer and all of its files, such
that no search warrant was required.


   For the foregoing reasons, we hold that the officers acted pursuant
to a reasonable belief that Michelle Buckner had authority to consent
to the contested search. Therefore, the district court's judgment deny-
ing Frank Buckner's motion to suppress is


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