Third party consent to non-password protected files on a jointly used computer was valid

The Seventh Circuit held that non-password protected files on a jointly used computer were subject to consent by the third person. [The court erroneously shifts the burden to the defense to show the third party consent was invalid.] Antonelli v. Sherrow, 246 Fed. Appx. 381 (7th Cir. 2007)* (unpublished):

Several other circuits have addressed the issue of a third party’s authority to consent to a search of a shared computer when the third party does not have access to all areas of the computer. In general, these courts have decided that when one user has protected files with a password that the other user does not know, the second user cannot consent to a search of the password-protected files. United States v. Buckner, 473 F.3d 551, 554 (4th Cir.), cert. denied, 127 S. Ct. 2119, 167 L. Ed. 2d 830 (2007) (No. 06-10245); Trulock v. Freeh, 275 F.3d 391, 403 (4th Cir. 2001). On the other hand, when the joint users share access to the computer’s files, either one can consent to a search of the whole computer. See United States v. Morgan, 435 F.3d 660, 663-64 (6th Cir. 2006); United States v. Andrus, 483 F.3d 711, 719-22 (10th Cir. 2007).

Antonelli, who has the burden of showing that his ex-wife’s consent was invalid, see Valance v. Wisel, 110 F.3d 1269, 1279 (7th Cir. 1997), has presented no evidence that there were password-protected files on the computer or that he even told Mrs. Antonelli that certain files were private. Instead, he suggests that Mrs. Antonelli’s failure to detect unspecified files when she searched the computer is evidence of their inaccessibility. But without even an assertion that Antonelli password-protected files, her failure shows only the incompleteness of her search, not the inaccessibility of files. Because Antonelli gave his ex-wife use of the computer without password-protecting files or even informing her that any files were off-limits, he could not reasonably expect that she would recognize them as private. See United States v. Shelton, 337 F.3d 529, 536-37 (5th Cir. 2003) (defendant gave up his reasonable expectation of privacy in his house with respect to his estranged wife when defendant did not change locks or do anything to restrict her access to house). And Antonelli’s written objections to the ATF after the computer’s seizure cannot overcome qualified immunity to constitutional liability because the then clearly established law was that a timely objection by a non-consenting joint user who is actually present does not override the other user’s consent. See Georgia v. Randolph, 547 U.S. 103, 126 S. Ct. 1515, 1520 n.1, 164 L. Ed. 2d 208 (2006).

Traffic stop was not unduly long as officer completed initial investigation. Also, defendant lacked standing in search of rental car, but he could be asked for consent to look for the rental agreement [go figure!]. United States v. Fristoe, 2007 U.S. Dist. LEXIS 48859 (N.D. Okla. July 5, 2007):

Owen’s [the officer’s] request for Fristoe to look for the rental agreement was within the scope of the traffic stop, and the Court has not found precedent suggesting that Owen could not ask Fristoe to produce the rental agreement. Based on existing case law, the Court concludes that Owen did not violate the Fourth Amendment by asking a passenger to produce the rental agreement.