IL: Splitting hairs on consent by trickery to find child porn

Police who were actually investigating the possibility child porn was on defendant’s computer did not misrepresent what they were looking for when they said credit card fraud, but they really knew that defendant had used his credit card on a child porn website. Possibility of credit card fraud was enough. [HA!] People v. Prinzing, 389 Ill. App. 3d 923, 907 N.E.2d 87, 329 Ill. Dec. 768 (2009):

We find this case distinguishable from Daugherty and the other cases cited by defendant. It was undisputed that Detective Smith was informed by defendant’s credit card company that there was a disputed charge that had been resolved by crediting back the charge and a new card number having been issued. It was also undisputed that the disputed charge in June 2003 was around the time that the child pornography Web site charges had been incurred. While Detective Smith did not mention the potential for child pornography purchases, he was not required to provide defendant with every piece of information that he possessed while investigating the matter. In Daugherty, the theft case had been resolved and the police employed purely deceptive tactics to obtain consent whereas, in this case, the police had not resolved whether the disputed credit card charge was related to the child pornography Web site charges. The remaining cases cited by defendant involved the police affirmatively misrepresenting the defendants’ rights whereas here, the police made no such misrepresentations. Therefore, it was not against the manifest weight of the evidence to find that when Detective Smith asked for consent to search defendant’s computer for viruses that may have compromised his credit card information, Detective Smith did not engage in trickery, deceit or subterfuge, but, rather, he had a twofold purpose in his visit. Even if Detective Smith did use trickery, that would not necessarily render defendant’s consent involuntary, as trickery is just one factor the court may consider in determining the validity of consent. See People v. Minniti, 373 Ill. App. 3d 55, 69, 867 N.E.2d 1237, 311 Ill. Dec. 251 (2007) (discussing effect of police trickery on voluntariness of confession).

Having determined that defendant’s consent was voluntary, we now examine whether the police exceeded the scope of the consent. When determining whether a search is reasonable under the fourth amendment, we must determine first whether the officer’s action was justified at its inception and second whether it was reasonably related in scope to the circumstances that justified the intrusion in the first place. People v. Lampitok, 207 Ill. 2d 231, 241, 798 N.E.2d 91, 278 Ill. Dec. 244 (2003). In evaluating the scope of a defendant’s consent, the court considers what a reasonable person would have understood by the exchange between the officer and the defendant. People v. James, 163 Ill. 2d 302, 314, 645 N.E.2d 195, 206 Ill. Dec. 190 (1994). “[T]he parameters of a search are usually defined by the purpose of the search.” James, 163 Ill. 2d at 314.

In this case, principles of law and technology collide. The court in People v. Berry, 314 Ill. App. 3d 1, 11-12, 731 N.E.2d 853, 247 Ill. Dec. 80 (2000), addressed the scope of consent with respect to electronic devices, specifically a cellular phone. Relying on various federal cases, the Berry court stated that the lack of knowledge of what the officer is searching for does not change the effect of a “general” consent. Berry, 314 Ill. App. 3d at 12. If a consent to search is entirely open-ended, a reasonable person would have no cause to believe that the search will be limited in some way, and the consent would include consent to search the memory of electronic devices. Berry, 314 Ill. App. 3d at 12. The Berry court then considered the totality of the circumstances, which involved a detective asking to look at the defendant’s cell phone and the defendant responding “‘go right ahead.'” Berry, 314 Ill. App. 3d at 12. The officer, after receiving the defendant’s response, opened the phone and retrieved the phone number of the phone by pressing a button. Berry, 314 Ill. App. 3d at 13. The defendant knew when the detective asked to search the phone that he was investigating a murder and that he was trying to determine whether the defendant owned the phone, and the defendant placed no explicit limitations on the scope of the search, either when he gave his general consent or while the officer examined the phone. Berry, 314 Ill. App. 3d at 14. Therefore, the court determined that, based on the totality of the circumstances, the detective did not exceed the scope of the defendant’s general consent to search his phone when the detective activated the phone and retrieved the phone number. Berry, 314 Ill. App. 3d at 14.

Federal courts have also considered the scope of electronic device searches. …