E.D.Wis.: Ruse to get consent to look at defendant’s computer was not invalid

Officers used a ruse to get access to defendant’s computer that there had been a computer security breach where family pictures had been posted on the internet. The court finds defendant’s authority, United States v. Richardson, sufficiently different that the consent was valid. United States v. Krueger, 2009 U.S. Dist. LEXIS 130067 (E.D. Wis. July 22, 2009):

Relying on United States v. Richardson, 583 F. Supp. 2d 694 (W.D. Pa. 2008), defendant argues that the police caused him to believe that he was a victim of a computer security breach, that his consent was limited to investigating such a breach, and that the search for images of child pornography thus exceeded the scope of his consent. Like the magistrate judge, I reject the argument.

In Richardson, officers conducting a child pornography investigation obtained consent to search the defendant’s computers by leading him to believe that he had been a victim of credit card fraud. Id. at 698-701. The officers then conducted a forensic examination of the computers, which revealed images of child pornography. Id. at 703-04. The lead officer admitted that she used a ruse to obtain consent, which she maintained throughout her dealings with the defendant. Id. at 701-05. The court found that, based on the officers’ artifice in approaching the defendant as a potential crime victim, his consent was limited to evidence of illegal credit card activity over the internet. Id. at 718.

The present case involves no similar trickery. Andrews told defendant:

I was following up on a computer investigation in which images of his family members had been posted to the Internet. And I told him that I was concerned because they were images of his family members. And, that’s why I had come to his house for the investigation, and that it involved computers in his house.

(Tr. at 11.) Andrews may not have fully disclosed the nature of her investigation, but she made no false or misleading statements. She did not lead defendant to believe that he — as opposed to his family members — was a victim, or suggest that the officers would refrain from searching the computers for any evidence of his potential wrongdoing. Further, unlike in Richardson, nothing in Andrews’s preliminary statements suggested a limitation on the scope of the search. In Richardson, the court found the forensic search for images wholly unrelated to the expressed object of the search — illegal, on-line use of credit cards. See id. at 720-21. Here, the conversation between defendant and Andrews, although general, pertained to “images” of defendant’s family members, and Andrews specifically advised defendant that the computers would be removed from the residence for a forensic exam. (Tr. at 16.) Finally, as the magistrate judge explained, an investigation into how the images Andrews mentioned ended up on the internet “would naturally include a review of image files on [defendant’s] computer to determine, for example, if the specific photographs were on [defendant’s] computer, as well as internet protocol data to determine, for example, which computer might have posted the photographs.” (R. 24 at 11.)