Roommate’s general access to defendant’s computer gave roommate authority to consent, even though subject files were encrypted

Service member’s roommate had sufficient common access to his computer that he could consent to a search of it, even though the files at issue were encrypted (and contained child porn). United States v. Rader, 65 M.J. 30 (C.A. A.F. 2007):

Appellant nonetheless contends that A1C Davis could not consent to the search of Appellant’s computer because he had only limited use and access to it. Consequently, his argument goes, the search was illegal, the images derived from it inadmissible, and the findings and sentence should be set aside. See Wong Sun v. United States, 371 U.S. 471, 485-86 (1963); M.R.E. 311(a).

The control a third party exercises over property or effects is a question of fact. See, e.g., Rodriguez, 497 U.S. at 180 (detailing record facts evidencing control over the premises, and lack thereof). We will not disturb the military judge’s findings of fact unless they are clearly erroneous or unsupported by the record. Reister, 44 M.J. at 413.

In this case, the findings of fact include the following: (1) Appellant’s computer was physically “located in [A1C] Davis’ bedroom”; (2) “[N]either the accused’s computer nor the My Music folder on the accused’s computer was protected by a password”; (3) “[T]he accused never told Davis not to access his computer or any files within the computer”; (4) A1C Davis and Airman Thacker “used the accused’s computer to play computer games” with Appellant’s “knowledge and consent”; (5) A1C Davis “accessed the accused’s computer approximately every two week[s] to perform routine maintenance on that computer”; and (6) Appellant “never told Davis not to access his computer or any files within the computer.”

We agree with the lower court that the military judge’s findings of fact “were well-grounded in the facts developed on the record,” Rader, 2006 CCA LEXIS 164, at *4, 2006 WL 1976603, at *2, and Appellant has not demonstrated that they are clearly erroneous. See United States v. Springer, 58 M.J. 164, 167 (C.A.A.F. 2003) (“If the military judge makes findings of fact, we review the findings under a clearly erroneous standard of review.”); United States v. Owens, 51 M.J. 204, 209 (C.A.A.F. 1999) (“We review a military judge’s evidentiary ruling for abuse of discretion.”). Whether these facts rise to the level of “‘joint access or control for most purposes,'” is a question of law. Reister, 44 M.J. at 415 (citation omitted). In this case, the military judge concluded that A1C Davis’ consent was valid; that it would be “difficult to imagine how there could have been a greater degree of joint access, mutual use, or control.” We agree.

We reject Appellant’s argument that A1C Davis did not have control over or authority to consent to a search of the “My Music” files within the computer because he only had permission to use the computer to play games or conduct maintenance. First, the military judge’s finding that Appellant did nothing to communicate a restriction regarding access to his computer files to anyone is amply supported by the record. Second, to the extent there was an understanding regarding restricted access to Appellant’s computer it was tacit and unclear, as evidenced by A1C Davis and Airman Thacker’s use of the computer. This is further illustrated by Appellant’s response to A1C Davis’ phone call to him.

Comment: This is not the first case to find common authority over a computer with encrypted files that only the encrypter can access. The issue as it deveops is access to the computer, not just the files.

Officers had exigent circumstances for opening a padlocked dufflebag when they were searching defendant’s premises for a meth lab on consent of the landlord. When the bag was picked up, it made noises that indicated that the contents may be parts of a meth lab. (The defendant waived the landlord consent issue by not raising it in the trial court.) State v. Gomez, 2007 MT 111, 337 Mont. 219, 158 P.3d 442 (2007).*

Officer’s entry into property under foreclosure and occupied by repairmen and boxes of defendant’s property was unreasonable. His later spontanous statement to the officer would be admitted. People v. Kunz, 2007 NY Slip Op 27183, 16 Misc. 3d 312 (Erie Co. 2007).*

The fact the trial court may have used the wrong burden of proof in suppressing a search does not mandate reversal for the state because the appellate court is obligated to review the suppression order de novo. State v. Labine, 2007 SD 48, 733 N.W.2d 265 (2007).