10th Cir.: Elderly father who had no knowledge of computers had apparent authority to consent to search son’s password protected computer

From a reader, a seriously troubling case from the Tenth Circuit not supplied by Lexis this morning:

The police conducted a knock-and-talk in a child porn case based on an investigation of a child porn website, and defendant’s 91 year old father was the only person at home. A few leading questions later, nothing pertaining to equal access to the computer, the father was asked to consent to a search of his 51 year old son’s bedroom where, with his government computer equipped with EnCase, the officer opened child porn pictures. The Tenth Circuit found the officers reasonably could rely on the father’s apparent authority to consent to a search of his adult son’s room, a finding that defies common sense (few 91 year olds know a thing about computers, and the record shows that this one did not). The son was contacted, and the police stopped the search and waited for him and then arrested him. The court noted that EnCase enables the officers to by-pass all passwords on the computer. This computer was password protected, but that did not bother the court. The majority of the court essentially puts the burden on the defendant to show that password protection of computers is common and shows an expectation of privacy like a locked container, and finds that he did not in this case. United States v. Andreas, 2007 WL 1207081, 483 F.3d 711 (10th Cir. 2007) (2-1).

Wife had common authority to consent to a search of the attic. United States v. George, 232 Fed. Appx. 392 (5th Cir. 2007)* (unpublished).

Search issue was outside the COA, so it would not be considered. Menendez v. United States, 228 Fed. Appx. 897 (11th Cir. 2007)* (unpublished).

Officers in near hot pursuit had exigent circumstances to enter plaintiff’s house looking for a shooter just hours after the occurrence. Stoute v. Mink, 232 Fed. Appx. 881 (11th Cir. 2007)* (unpublished):

Here, Plaintiffs do not dispute that officers had probable cause to arrest Devon. n2 Therefore, the remaining issue is whether exigent circumstances justified the initial entry into Theola’s home to complete the arrest. We conclude that exigent circumstances existed. Devon was suspected of attempted murder; and, because he was accused of shooting the victim just hours before his arrest, it was not unreasonable for officers to believe that Devon was armed and posed a danger to them and to the public. Officers had probable cause to believe that Devon committed the crime because the victim identified him by name and in a photograph line-up. In addition, the victim told officers that Devon was living at the address of Theola’s house, which police research confirmed, and that he suspected Devon would attempt to flee. In the light of all of these circumstances, the district court did not err in concluding that exigent circumstances justified the initial entry into Theola’s home to arrest Devon.