The defendant’s wife consented to a seizure of a computer rented by her but used primarily by her husband. She did not, however, have the alleged password to his files on the computer. The police could rely on her apparent authority to seize the computer. The forensic examination did not reveal any password protection, so the totality of circumstances showed she could consent. United States v. Buckner, 473 F.3d 551 (4th Cir. January 11, 2007):
Whether the officers reasonably believed that Michelle had authority to consent to a search of all the contents of the computer’s hard drive, however, depends on viewing these facts in light of the totality of the circumstances known to the officers at the time of the search. At that time, the officers knew that the computer was located in a common living area of the Buckners’ marital home, they observed that the computer was on and the screen lit despite the fact that Frank Buckner was not present, and they had been told that fraudulent activity had been conducted from that computer using accounts opened in Michelle’s name. The officers also knew that the machine was leased solely in Michelle’s name and that she had the ability to return the computer to the rental agency at any time, without Frank Buckner’s knowledge or consent.
Furthermore, the officers did not have any indication from Michelle, or any of the attendant circumstances, that any files were password-protected. Cf. Trulock, 275 F.3d at 398 (noting that the searching officers were explicitly told that the computer contained password-protected files to which the consenting party did not have access). Even during the mirroring and forensic analysis processes, nothing the officers saw indicated that any computer files were encrypted or password-protected. Despite Michelle’s suggestion that she lacked deep familiarity with the computer, the totality of the circumstances provided the officers with the basis for an objectively reasonable belief that Michelle had authority to consent to a search of the computer’s hard drive. Therefore, the police were justified in relying on Michelle’s consent to search the computer and all of its files, such that no search warrant was required.
Randolph does not require the police to first ask the target of a search whether he will consent. The police can arrest the target and then move to another with apparent authority and ask. United States v. Wilburn, 473 F.3d 742 (7th Cir. January 11, 2007):
Randolph holds that police violate the Fourth Amendment when they conduct a search, authorized by a person with apparent authority to consent, over the objection of a physically present potential defendant who shares the premises and declines to offer his consent. But Randolph is a rather narrow holding, and no matter how hard Wilburn wiggles–like the stepsisters trying to squeeze into Cinderella’s glass slipper–he can’t fit within its embrace.
. . .
In trying to wedge himself under Randolph, Wilburn says the police, knowing he would object to the search, deliberately kept him in the squad car away from Taylor while she was giving her consent. But even if the police were clairvoyant–Randolph was decided 2 years and 15 days after the search of the Taylor/Wilburn apartment–the police here were not doing an end run around its holding. Wilburn was validly arrested (even he admits this inconvenient truth) and he was lawfully kept in a place–the back seat of a squad car–where people under arrest are usually held. Given these facts, the police were not obligated to bring Wilburn to Taylor so he could be a party to the discussion regarding consent.
Knock and talk that occurred outside motel room was noncoercive, and officers, while armed, patiently waited while the occupants made up their mind and came outside. Then, one consensual produced a syringe. United States v. Crapser, 472 F.3d 1141 (9th Cir. January 10, 2007):
Here, similarly, there was a single, polite knock on the door. The police did not demand that Twilligear open the door; they asked, she nodded an affirmative response, and the police waited patiently and silently for her to decide that she (and Defendant, as it turned out) were ready to come outside about two minutes later. Although the officers were armed, they made no effort to draw Defendant’s attention to their weapons, nor did they use any form of physical force. The police made no effort to enter the motel room. The encounter occurred in the middle of the day, on a sidewalk in public view. The entire event, up to the time Defendant produced the syringe, lasted about five minutes. Although there were four officers present, most of the time only two talked to Defendant, while two talked to Twilligear, and part of the time only Galloway was with Defendant. The police did not block Defendant or Twilligear, suggest that they could not leave or return to their room, give them orders, or affirmatively assert authority over their movements.
Border patrol had reasonable suspicion to stop defendant’s vehicle near the border because of suspicious activity. Once stopped, the officers could smell the marijuana, and that gave probable cause. United States v. Delaney, 216 Fed. Appx. 674(9th Cir. 2007)* (unpublished):
The police officer had reasonable suspicion to stop the car based on: the location of the car very near the border; the timing of its travel in the border area during the period when border agents change shifts and are likely to be less attentive; the indications that the car had recently crossed the border at other than the designated border crossing; the fact that the vehicle — an SUV with a large luggage carrier — is of the type often used to smuggle narcotics; and the occupants’ purported birdwatching accomplished by pointing opera glasses at the sky while driving at fifty miles per hour. These factors, taken together, provided the officer with a particularized and objective basis for suspecting legal wrongdoing. See United States v. Arvizu, 534 U.S. 266, 273, 122 S. Ct. 744, 151 L. Ed. 2d 740 (9th Cir. 2002).
With regard to the search, we doubt that there was consent to search the locked luggage carrier that held the drugs. See United States v. Shaibu, 920 F.2d 1423, 1426 (9th Cir. 1990). Nonetheless, there was adequate probable cause to search the carrier due to the odor of marijuana and the alerting of the drug-detecting canine. See United States v. Barron, 472 F.2d 1215, 1216 (9th Cir. 1973). Probable cause was sufficient for the search under the automobile exception; a warrant was not necessary. California v. Acevedo, 500 U.S. 565, 579, 111 S. Ct. 1982, 114 L. Ed. 2d 619 (1991).
(Note: If birdwatching is your excuse, at least get real binoculars and stop once and awhile. Here, they only drew the officer’s attention to themselves.)
More to follow in the afternoon. Many cases today, and some may even have to go over until tomorrow.
