Password protection is key factor in assessing third-party’s apparent authority to consent to computer search

SEARCH & SEIZURE United States v. Andrus, No. 06-3094, ___ F.3d ___ (10th Cir. Apr. 25, 2007)(Kansas). Appeal of conviction for possession of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B). HELD: (1) Personal computers fall into same category as suitcases, footlockers, or other personal items that command high degree of privacy because intimate information is commonly stored on computers. Computer password functions as lock, much like lock on suitcase or footlocker. Key factor in assessing third party’s apparent authority to consent to search of home computer, therefore, is whether law enforcement knows or reasonably suspects because of surrounding circumstances that computer is password protected. Court relies on Oxford English Dictionary Online for definition of “password.” Court of appeals will not take sua sponte judicial notice of facts that: (a) password protection is standard feature of most operating systems; (b) most users activate standard password-protection feature; and (c) these are matters of such common knowledge that reasonable officer would make further inquiry. (2) Under totality of circumstances, facts known to agents at time of computer search began created objectively reasonable perception that defendant’s father was at least one user of computer. Therefore, defendant’s father had apparent authority to consent to search of computer in defendant’s bedroom. Fact that agents’ software search tool automatically bypassed password protection, and agents later learned that computer was password protected, did not negate father’s apparent authority to consent to search. Afteracquired factual knowledge that might undermine initial reasonable conclusion of third-party apparent authority is generally immaterial. Read the opinion here.