Child Porn Search on Home Computer OK

By Tera Brostoff

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.

Wife Gives Permission to Search Computer

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.

No Suppression of Evidence

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 tbrostoff@bna.com.

To contact the editor responsible for this story: Carol Eoannou at ceoannou@bna.com.

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