VT: Custody does not make consent invalid

While defendant was in custody, it was not custodial. “Defendant’s encounter with the trooper was, by comparison, a much less coercive situation. Although in custody for purposes of Miranda during the trooper’s explanation of consent, defendant was unrestrained. Always polite, the trooper applied no force or threat whatsoever, aside from outlining the necessity and delay of towing the car and obtaining a warrant.” State v. Sole, 2009 VT 24, 185 Vt. 504, 974 A.2d 587 (2009).*

Seizure of keys to a car were proper as evidence of a crime, although the search of the car did not occur until cause developed. United States v. Stewart, 315 Fed. Appx. 554 (6th Cir. 2009) (unpublished).*

In a suit under the Stored Communications Act, a person accidentally leaving his e-mail password available was not consent to accessing his e-mail account. Pure Power Boot Camp, Inc. v. Warrior Fitness Boot Camp, 587 F. Supp. 2d 548 (S.D. N.Y. 2008):

Because Fell had a reasonable expectation of privacy in his e-mail accounts, Brenner could only be authorized to access those accounts if Fell had given consent. She argues that Fell gave her implied consent to search his e-mails because he left his login information stored on PPBC’s computers where it could be discovered and used by Brenner. The Court does not accept Plaintiffs’ argument.

There is no sound basis to argue that Fell, by inadvertently leaving his Hotmail password accessible, was thereby authorizing access to all of his Hotmail e-mails, no less the e-mails in his two other accounts. If he had left a key to his house on the front desk at PPBC, one could not reasonably argue that he was giving consent to whoever found the key, to use it to enter his house and rummage through his belongings. And, to take the analogy a step further, had the person rummaging through the belongings in Fell’s house found the key to Fell’s country house, could that be taken as authorization to search his country house. We think not. The Court rejects the notion that carelessness equals consent. See Lipin v. Bender, 193 A.D.2d 424, 426, 597 N.Y.S.2d 340, 341 (1st Dep’t 1993) (rejecting the argument that because documents “had been left unsecured, directly in front of the plaintiff, in a public area, … plaintiff had been ‘invited’ to read the documents”).

Implied consent, at a minimum, requires clear notice that one’s conduct may result in a search being conducted of areas which the person has been warned are subject to search. Cf. United States v. Workman, 80 F.3d 688, 694 (2d Cir. 1996) (holding that a posted sign and an inmate handbook, providing notice that telephone calls would be monitored, together with inmate’s “plain awareness that his conversations were subject to monitoring,” amounted to implied consent to surveillance); United States v. Amen, 831 F.2d 373, 378-79 (2d Cir. 1987) (prisoners gave implied consent to interception of telephone calls because they were on notice from at least four sources, including actual direct notice); Sec. and Law Enforcement Employees v. Carey, 737 F.2d 187, 202 n.23 (2d Cir. 1984) (noting that an important consideration in determining whether a person has consented to being searched is “evidence that the person had knowledge of the right to refuse to give consent;” and rejecting the argument that correction officers consented to being strip-searched “merely by accepting employment and by receiving [a] rule book [giving notice that the Department’s employees, while on correctional facility property, were subject to being searched]”); Anobile v. Pelligrino, 303 F.3d 107, 124-25 (2d Cir. 2002) (rejecting an assertion that racetrack employees, by signing a license with “a blanket waiver of the right to object to any future searches,” gave an effective consent to search their dormitory rooms, because “there [was] no evidence demonstrating that the plaintiffs were aware of their right to refuse to give consent to this unconstitutional search or indeed whether they could refuse and still obtain employment).

In this case, Fell only had notice that PPBC’s computers could be searched for evidence of personal e-mail use, not that his Hotmail, Gmail, or WFBC e-mail accounts would also be searched. He was also never given the opportunity to refuse Brenner any authorization to search his e-mails. At most, one could argue that Fell had consented to Brenner viewing his password. But he did not consent to her to using it. Absent clear knowledge of the extent of what could be searched, and the opportunity to refuse or withdraw his consent, the Court rejects Plaintiffs’ argument that Fell gave implied consent to Brenner to search his Hotmail account simply by leaving his password on her computer.