W.D.Pa.: Search of computer by consent was a ruse, and it violated scope of consent

Consent to search a computer for evidence that defendant was a victim of identity theft was a ruse to look at his hard drive for child pornography. The search thus exceeded the consent. United States v. Richardson, 583 F. Supp. 2d 694 (W.D. Pa. October 31, 2008):

Quite simply, the agents in the case sub judice made an assumption that the Defendant’s computers would contain child pornography because the evidence from Operation Emissary indicated that the Defendant made two failed attempts to access “ILLEGAL.CP”. Their assumption proved correct, but only after consent to search the computers was obtained in order to look for evidence of unspecified “[‘illegal’] credit card activity over the Internet”, not images of child pornography or any images for that matter. Kilpatrick did not look for catalogued evidence of Internet activity as stored upon the two personal computers. Kilpatrick searched for images, images that could not have been on the computers as a result of the two known failed attempts to access a child pornography Web site. These failed attempts were the basis for the agents’ vague and unspecified Internet activity described to the Defendant and his wife. The search for images proceeded to look for evidence of another instance of crime different from the failed attempts to access the “ILLEGAL.CP” Web site. The search that was conducted was not only outside of the scope permitted by the Defendant, but also outside of the scope of what the agents were aware of after a review of the evidence received from Newark ICE.

. . . A search for images of child pornography is beyond the scope of the vagaries of the “[‘illegal’] credit card activity over the Internet” and seeks one thing, the presence of child pornography that the agents knew was not related to the information of the January and February 2006 attempts presented to Lieb by ICE Newark. This search for images was beyond the scope of the consent granted. Searching for images of child pornography relates to a separate crime, one unrelated to the ruse which was presented and for which the ruse did not provide a basis for the consensual search. Lieb and the other agents thus used the vagueness of their request based upon evidence of an undisclosed, attempted crime to obtain a voluntary consent in order to search for evidence of a separate crime, one for which they did not believe the Defendant was a victim, but in fact the sole perpetrator. The search for images of child pornography was far afield from the voluntary consent to search for evidence of “[‘illegal’] credit card activity over the Internet”, activity which unbeknownst to the Defendant was the two failed attempts to purchase access to the “ILLEGAL.CP” Web site.