CA8: Consent to fully search a home includes forensically searching computers found there

Consent to fully search defendant’s home by PO’s after a computer was found in violation of the terms of his release is consent to forensically analyze the product of the search, here a computer hard drive. United States v. Berger, 2016 U.S. App. LEXIS 9629 (8th Cir. May 26, 2016):

We find the same analysis applicable to this case. The facts of the case and totality of the circumstances justify the scope of the search; the facts here indicate it was objectively reasonable to believe Berger’s consent included consent to forensically examine the hard drive on which the child pornography was discovered. Under the special conditions of Berger’s supervised release, he was barred from accessing the Internet or possessing any internet capable software on any hard drive without prior written approval from his PO. His prior conviction involved his use of the internet to initiate sexual conversations with a minor. Further, he was required to submit to home visit by probation officers and allow the probation officers to seize contraband discovered in plain view. Upon the probation officers’ arrival at Berger’s house on the day in question, Berger took several minutes to answer the door. He then offered, without inquiry by the PO, that he utilized the online site, Craigslist, to purchase a hot tub, a clear violation of his supervised release conditions. A computer tower, monitor, Xbox, and internet capable wireless device were all within plain view of PO McKinney upon her entry into Berger’s spare room/office. Berger even admitted to accessing the Internet over the last several years. After she informed Berger that she was aware of his active Facebook account and saw the computer in plain view, PO McKinney requested Berger’s consent to search the home. Berger acknowledged that he could refuse consent but voluntarily consented nonetheless. Finally, Berger observed the probation officers searching and collecting various items of contraband, including the hard drive at issue in this case. He did not object or protest to the search at any point and signed an acknowledgment that listed the seized items. The interaction concluded with the PO’s explanation that she would file a violation report but that no further action would be taken until the seized items were examined; in response, Berger indicated that he understood.

We conclude that the scope of Berger’s consent to search his home extended to the forensic examination of the hard drive. While the consent to search form did not specifically mention a computer or hard drive, the form clearly authorized the probation officers to “conduct a complete search” of the premises and elsewhere a “complete search of the property herein described” and informed Berger that any evidence found as a result of the search can be seized and used against him in a court of law. Berger could not have reasonably believed that the search he authorized did not encompass seizure of an external hard drive and a forensic examination of its contents as an examination of the files contained on the device would logically be necessary to determine whether any internet usage had occurred. A reasonable person would have understood that consent to search the “premises” for evidence of violations of the conditions of supervised release, including internet usage, extended to a forensic examination of any devices found in such search. Berger’s failure to object or limit his consent after the PO informed him of the need for a forensic examination of the devices prior to any revocation hearing is strong evidence of Berger’s understanding of the scope of his consent at the time.