10th Circuit limits scope of its Andrus opinion dealing with apparent authority of homeowner to consent to search of computer

SEARCH & SEIZURE United States v. Andrus, 06-3094, ___ F.3d ___ (10th Cir. Aug. 24, 2007)(Kansas). Order denying defendant’s petition for rehearing of decision affirming conviction for possession of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B). While denying rehearing, the order explains nevertheless, that its opinion is “limited to the narrow question of the apparent authority of a homeowner to consent to a search of a computer on premises in the specific factual setting presented, including the undisputed fact that the owner had access to the computer, paid for internet access, and had an e-mail address used to register on a website providing access to the files of interest to law enforcement.” The original opinion, issued April 25, 2007, 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; and (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. After acquired factual knowledge that might undermine initial reasonable conclusion of third-party apparent authority is generally immaterial. Read the order denying rehearing here. Read the opinion here.