ME: Officer exceeded scope of consent to look at computer by searching for .avi files

Through creative police work, the police came to defendant’s house looking for a person who used another person’s wireless Internet connection. He did not tell the defendant that he was looking for child pornography. Defendant admitted the officer and let him on the computer to look at the screen and admitted using a neighbor’s wireless. The officer then searched for .avi files and found apparent child pornography just from the file names, and they were not opened on the computer. The use of deception did not render the consent by action invalid. However, the officer exceeded the scope of the consent to check about wireless usage when he looked at the .avi files, and that was suppressed. State v. Bailey, 2010 ME 15, 989 A.2d 716 (2010):

[*P23] We have recognized the “practical necessity for the use of deception in criminal investigations,” State v. Carey, 417 A.2d 979, 981 (Me. 1980), but the effect of deception as to purpose is an issue of first impression. 8 Case law from federal and other state jurisdictions on the effect of deception is necessarily fact driven, but in cases where courts have found that deception alone vitiates consent, there has been an express and affirmative misrepresentation by the authorities as to the purpose of the search or investigation. 9 Most frequently, police deception as to purpose is viewed among all of the circumstances surrounding the individual’s consent in a voluntariness analysis. See United States v. Carter, 884 F.2d 368, 375 (8th Cir. 1989) (noting that deception is one relevant inquiry within the totality of the circumstances); United States v. Romero, No. 05-10080-01-WEB, 2005 U.S. Dist. LEXIS 26000, at *11-*16 (D. Kan. Oct. 19, 2005) (analyzing the voluntariness of a consensual search by considering deception along with other factors including custody, language barrier, force, and coercion); Commonwealth v. Gaynor, 443 Mass. 245, 820 N.E.2d 233, 242 (Mass. 2005) (stating that deception as to purpose is one factor to consider in the totality of the circumstances).

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[*P28] The suppression court concluded that “[a]t the time [Bailey] consented, [he] knew that it was highly probable that the detective wanted to look at his computer to see if he had accessed his neighbor’s wireless router” by considering the dialogue between Bailey and Beaulieu, Bailey’s subjective knowledge “that he had been accessing his neighbor’s wireless router without permission,” and the fact that Bailey did not have his own wireless router. The consideration of subjective factors in determining the scope of Bailey’s consent was error under the objective reasonableness standard. See Jimeno, 500 U.S. at 251; Sanders, 424 F.3d at 775. Here, pursuant to the objective reasonableness standard, Beaulieu’s search exceeded the scope of Bailey’s consent. A reasonable person observing the exchange would have concluded that Bailey was consenting to a search for the purpose indicated by Beaulieu: to see if someone had been accessing his computer without his permission. See Jimeno, 500 U.S. at 251 (“The scope of a search is generally defined by its express object.”). The officer clearly exceeded that scope when he ran a general search for all of the video files on Bailey’s computer. See Koucoules, 343 A.2d at 868 (“Where permission has been given to search for a particular object, the ensuing search remains valid as long as its scope is consistent with an effort to locate that object.”). Beaulieu’s search was not consistent with his stated purpose, and for that reason the detective’s search for AVI files violated Bailey’s Fourth Amendment rights.