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United States of America v. Ray Andrus

No. 06-3094 (10th Cir., April 25, 2007)

Affirming the decision of the District Court below, the Tenth Circuit, by a 2-1 margin, holds that the defendant’s ninety-one year old father had apparent authority to consent to the government’s warrantless search of defendant’s password protected computer.  The computer was located in defendant’s bedroom in his father’s house.  The Court reached this result notwithstanding the fact that defendant’s father neither used the computer, nor knew the password thereto.  As a result, the Tenth Circuit affirmed the denial of defendant’s motion to suppress the evidence of child pornography found during the resulting search, and affirmed defendant’s conviction for violation of 18 U.S.C. Section 2252(a)(4)(B), which prohibits the possession of materials depicting minors engaged in explicit sexual conduct.

The Tenth Circuit holds that an individual with apparent (but not actual) authority can give valid consent for a warrantless governmental search of another’s computer.  An individual has such apparent authority when, examining the totality of the circumstances, the facts available to the officers at the time they commenced their search would lead a reasonable officer to believe that that individual had authority to consent to such a search based on that individual’s relationship to the object searched.

There was a strong dissent by Judge McKay, who would have held, under the circumstances, that the officers had a duty to inquire as to whether the computer was password protected and, if so, whether the party consenting to the search knew the password or had access to the computer in question.  As the government neither made such inquiry, nor knew the password in question, the dissent would hold that defendant’s father did not have apparent authority to consent to the alleged search.

As a result of their investigation of an entity that provided billing services for websites containing child pornography, federal authorities learned that an account registered to “Ray Andrus” at 3208 W. 81st Terrace, Leawood, Kansas, was used to access a pornographic website called  The credit card associated with this account belonged to defendant Ray Andrus, who worked at the Shawnee Mission School.  The email account associated with this account –, belonged to Bailey Andrus, defendant’s father.

Unable to develop sufficient evidence to obtain a search warrant, the government decided to conduct a “knock and talk” interview in the hopes of furthering their investigation, and gaining consent to search Ray Andrus’ computer.

Agents of the Bureau of Immigration and Customs Enforcement (“ICE”) visited defendant’s home at 3208 W. 81st Terrace, where they encountered defendant’s father, the 91 year old Bailey Andrus.  Defendant was not present.  In response to their questions, the agents were informed that defendant Ray Andrus lived in a bedroom in the father’s house.  The father further advised the officers that he felt free to enter his son’s room when the door was open, but knocked when it was shut. 
The Agents asked and received consent from Bailey Andrus to search the defendant’s room and the computer located therein.  The Agents then contacted a third agent – a forensic computer expert – who entered defendant’s unlocked room and began a search of his computer.  This agent used the forensic program “EnCase” which allowed him to by-pass any password protected security features resident on the subject’s computer.  During this search, the agent discovered evidence of illicit child pornography on the computer.  Because he used “EnCase” the Agent did not know when he commenced his search whether the computer was password protected.  After this evidence was discovered, the agent was directed to cease his computer search.  This occurred because the agents had learned, from further discussions with Bailey Andrus, that the computer located in his son’s room was the only computer located in the house, and that Bailey Andrus obtained and paid for internet access as part of his cable TV package.

Defendant Ray Andrus was subsequently contacted, and consented to a search of his computer after being advised that his father had already consented to such a search, and that a computer technician was already at his residence.

Defendant moved to suppress the evidence discovered during the government’s warrantless search of his computer.  The District Court held that defendant’s father did not have actual authority to consent to a search of defendant’s computer, given, inter alia, that he neither knew how to use his son’s computer, nor had the password necessary to access it.  The District Court nonetheless denied defendant’s motion, holding his father had apparent authority to consent to the government’s search.

As a result of the evidence found on his computer, defendant plead guilty to possession of child pornography in violation of 18 U.S.C. Section 2252(a)(4)(B).  He preserved his right to appeal the denial of his suppression motion.

On appeal, the Tenth Circuit affirmed the District Court’s decision, agreeing with its holding that the defendant’s father had apparent authority to consent to the search of his computer.

Consent to a search, either given by the defendant or a third party with authority over the subject property, permits government officials to conduct warrantless searches that do not run afoul of the prohibitions of the Fourth Amendment.  “A third party has actual authority to consent to a search ‘if that third party has either (1) mutual use of the property by virtue of joint access or (2) control for most purposes.’”

Moreover, the government can proceed with a valid search if the officer reasonably, yet erroneously believes that the individual authorizing the search has actual authority to consent thereto. Determining whether this third party has the apparent authority to authorize such a search “is an objective, totality of the circumstances inquiry into whether the facts available to the officers at the time they commenced the search would lead a reasonable officer to believe the third party had authority to consent to the search.”  If the facts as to the individual’s authority are unambiguous, the officer has no further duty to inquire.  But, if the facts are ambiguous, the officers must make further inquiry as to the individual’s actual authority before undertaking his search.

The Court held that personal computers were containers in which their owners had a high expectation of privacy.  The Court further noted that in determining whether a third party has authority to consent to the search of a computer, it is appropriate to look at whether the computer is password protected and whether the third party knows the password.  It is also appropriate to look at the location of the subject computer – whether it is in a common area in the house, or a private area.

Bailey Andrus did not know the password to defendant’s computer, which he had never used, and which was located in defendant’s bedroom.  The agents conducting the investigation did not ask him if he had use of, or control over the computer.  Nor did they look to see if it was password protected.  Nonetheless, the Tenth Circuit, by a 2-1 majority, held that Bailey Andrus had apparent authority to consent to the search of his son’s computer.  Said the Court:

We therefore, accept the following facts as true.  First, the officers knew Dr. Andrus owned the house and lived there with family members.  Second, the officers know Dr. Andrus’ house had internet access and that Dr. Andrus paid the Time Warner internet and cable bill.  Third, the officers knew the email address had been activated and used to register on a website that provided access to child pornography.  Fourth, although the officers knew Ray Andrus lived in the center bedroom, they also knew that Dr. Andrus had access to the room at will.  Fifth, the officers saw the computer in plain view on the desk in Andrus’ room and it appeared available for use by other household members.  Furthermore, the record indicates Dr. Andrus did not say or do anything to indicate his lack of ownership or control over the computer when Cheatham asked for his consent to conduct a computer search.  It is uncontested that Dr. Andrus led the officers to the bedroom in which the computer was located, and, even after he saw Kanatzar begin to work on the computer, Dr. Andrus remained silent about any lack of authority he had over the computer.  Even if Ray Andrus’ computer was protected with a user name and password, there is no indication in the record that the officers knew or had reason to believe such protections were in place.

*                                                        *                                                         *

Viewed under the requisite totality of the circumstances analysis, the facts known to the officers at the time the computer search commenced created an objectively reasonable perception that Dr. Andrus was, at least, one user of the computer.  That objectively reasonable belief would have been enough to give Dr. Andrus apparent authority to consent to a search.  (citation omitted)  Even if Dr. Andrus had no actual ability to use the computer and the computer was password protected these mistakes of fact do not negate a determination of Dr. Andrus’ apparent authority.

The majority accordingly affirmed the District Court’s denial of defendant’s suppression motion.  Because of this decision, the Court did not address defendant’s efforts to invalidate his own consent to the search of his computer.

In a strong dissent, Judge McKay stated that he would invalidate the search insofar as it was based on Bailey Andrus’ consent.  Because of the prevalence of password protections, the dissent would “mandate that in consent-based, warrantless computer searches, law enforcement personal inquire or otherwise check for the presence of password protection and, if a password is present, inquire about the consenter’s knowledge of that password and joint access to the computer.”  As no such inquiry was undertaken here, Judge McKay would hold that Bailey Andrus did not have apparent authority to consent to a search of his son’s computer.

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