[Infowarrior] - Police blotter: When can cops seize your computer?

[Richard Forno]

Police blotter: When can cops seize your computer?

By Declan McCullagh
http://news.com.com/Police+blotter+When+can+cops+seize+your+computer/2100-10
30_3-6121210.html

Story last modified Fri Sep 29 09:47:47 PDT 2006

What: Police seize computer without a warrant after husband declines
permission but then wife consents.

When: 8th Circuit Court of Appeals rules on Aug. 25.

Outcome: Court decides that computer seizure was illegal and sends case back
to trial judge for further proceedings.

What happened, according to court documents:
In July 2002, the Missouri State Highway Patrol was investigating Handi-Rak
Service as part of an investigation into large quantities of
pseudoephedrine-based cold tablets being sold. They searched the company's
offices and found, in CEO Roy Hudspeth's office, some hand-labeled CDs that
appeared to contain child pornography.

Missouri State Trooper Cpl. Daniel Nash asked for permission to search the
computer at Hudspeth's home, but Hudspeth refused.

Four police officers went to his home anyway and identified themselves to
his wife, who was at home with the couple's children. Nash did not say that
her husband refused permission for a search, and, after an unsuccessful
attempt to contact her lawyer, the wife eventually granted permission for
the police to seize the home computer.

The wife later testified that she consented to police taking the home
computer only because Nash "began to get upset" and she feared her children
"might have a big fit."

This is where the case becomes relevant to Police Blotter. It nicely frames
the question: Can a spouse let police search (or take) a computer when the
other has refused permission?

The trial court sided with the police over the wife and ruled that her
consent was voluntary, freely given, and not coerced--even though she was
outnumbered four-to-one and the police officers threatened to stay there
until a search warrant could be obtained.

The appeals court agreed that she voluntarily gave consent. But then it
analyzed whether the consent was legal, based on a long line of cases
dealing with whether co-tenants can give permission for a search of a home
when the other is opposed.

A 2-1 majority of the 8th Circuit sided with the defendant, saying: "We
believe that the Supreme Court has made it clear that the police must get a
warrant when one co-occupant denies consent to search. In this case, that
would not have been a significant burden. Therefore, we conclude that Mrs.
Hudspeth's consent does not overrule Hudspeth's denial."

But one judge, dissenting, said that the U.S. Supreme Court cases dealt with
whether the tenants were physically present and that because Hudspeth was
being held in police custody elsewhere, his refusal shouldn't matter.

The dissenter said: "Hudspeth was not physically present and objecting when
Mrs. Hudspeth gave her voluntary and noncoerced consent; therefore, (a
recent Supreme Court decision) does not apply. Nor does any other decision
by the Supreme Court or this circuit apply and make Mrs. Hudspeth's consent
invalid simply because the officers knew Hudspeth earlier had refused
consent."

Hudspeth had entered a conditional guilty plea (meaning he can withdraw it)
to possession of child pornography and had been sentenced to 60 months of
imprisonment. By a 2-1 majority, the court ruled that the computer had been
seized illegally and sent the case back to the trial court.

Excerpts from the majority opinion:
Even though Mrs. Hudspeth's consent was voluntary and not coerced, the
consent to the seizure of the home computer was not valid because her
consent cannot "overrule" Mr. Hudspeth's denial of consent. Our holding here
flows from the Supreme Court's jurisprudence regarding co-tenants' ability
to consent to searches, as seen in United States v. Matlock, and most
recently in Georgia v. Randolph.

The Supreme Court held in Matlock, "the consent of one who possesses common
authority over premises or effects is valid against the absent,
nonconsenting person with whom that authority is shared." In that case,
officers arrested Matlock in the yard of his residence, detained him in a
squad car nearby, and then obtained permission to search the house from one
of Matlock's co-tenants. The officers in Matlock did not ask Matlock whether
he would consent to a search...

The Court stated: "In sum, there is no common understanding that one
co-tenant generally has a right or authority to prevail over the express
wishes of another, whether the issue is the color of the curtains or
invitations to outsiders."

Georgia v. Randolph does not directly address the situation present in this
case, in which a co-tenant is not physically present at the search but
expressly denied consent to search prior to the police seeking permission
from the consenting co-tenant who is present on the property. Nevertheless,
the same constitutional principles underlying the Supreme Court's concerns
in Randolph apply regardless of whether the nonconsenting co-tenant is
physically present at the residence, outside the residence in a car, or, as
in our case, offsite at his place of employment...

We believe that the Supreme Court has made it clear that the police must get
a warrant when one co-occupant denies consent to search. In this case, that
would not have been a significant burden. Therefore, we conclude that Mrs.
Hudspeth's consent does not overrule Hudspeth's denial.