The eDiscovery Resource Center™ is Bloomberg BNA’s comprehensive research solution for litigators and in-house counsel who require authoritative guidance on the handling,...
April 4 — A wife had the authority to consent to the search and seizure of her husband's electronic devices that contained child pornography, the Eleventh Circuit held April 1.
The court denied a prisoner's appeal challenging the district court's denial of his motion to suppress evidence found on his desktop computer. The court agreed that the prisoner's then-wife shared authority and access over the home and computers inside, and that any search performed prior to the prisoner revoking consent was acceptable under the Fourth Amendment.
“We find it particularly significant that Thomas did not protect his Internet history from [his wife] by maintaining a separate login name and password or by encrypting his files,” the court noted.
In July 2012, the police searched Eric Thomas's home in response to a telephone report from Thomas's then-wife Caroline Olausen. Olausen informed the police that there was child pornography on a computer within the home. When the police arrived at the house, Thomas was asleep. Olausen gave consent to search the home's computers, telling the police that both she and her then-husband used the computers.
A forensic analysis of several electronic devices from the home was done after the officers found plain-view evidence of suspicious websites. While the forensic analysis was underway, Thomas awoke. He initially consented to the search but then told the detectives that he no longer consented to the search and refused to sign a consent-to-search form. The search was then stopped and the devices seized under the theory that there was a high risk that evidence could be destroyed if left in the home.
Thomas moved to suppress, arguing that under Georgia v. Randolph, 547 U.S. 103 (2006), he negated his then-wife's consent to search. He also argued that all of the evidence obtained was fruit of the poisonous tree. The government disagreed, arguing the withdrawal of consent did not require the police to give back the already gathered evidence.
The district court denied the motion and Thomas was convicted. He appealed.
On appeal, Thomas argued that Olausen didn't have authority to consent to a forensic search of the computer. But the Eleventh Circuit wasn't swayed, citing Georgia v. Randolph, which addressed the issue of when a co-tenant is asleep when the police arrive, and therefore doesn't participate in the consent to search scenario.
“[T]he Supreme Court expressly declined to require police to wake a sleeping co-tenant,” the court said.
The court said that the detectives didn't continue searching after Thomas expressed uncertainty about signing a form, thus complying with . In addition, the court said that despite the fact that Thomas was the primary user of the computer and frequently used pop-up-ware and spam filters, Olausen still had the requisite common authority to provide consent. The court was struck by the lack of measures Thomas took to prevent his wife from viewing the evidence before it was seized.
“Without separate passwords, encryption, or like measures, Olausen and Thomas shared access to the HP computer and all its data, and by doing so, assumed the risk that the other would allow the police to view the computer's contents,” the court said.
Judge Frank M. Hull wrote the order.
Linda Julin McNamara and James A. Muench, of the U.S. Attorney's Office in Tampa, Fla., represented the United States.
Adeel Bashir, of the Federal Public Defender's Office in Tampa, Fla., represented Thomas.
To contact the reporter on this story: Tera Brostoff in Washington at email@example.com.
To contact the editor responsible for this story: Carol Eoannou at firstname.lastname@example.org.
The full text of United States v. Thomas is available at http://www.bloomberglaw.com/public/document/United_States_v_Thomas_No_1414680_2016_BL_103144_11th_Cir_Apr_01_
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to email@example.com.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to firstname.lastname@example.org.
Put me on standing order
Notify me when new releases are available (no standing order will be created)