The 4th Circuit Court of Appeals (VA, WV, MD, NC, SC) recentlyruled thatpolice had a right to search Frank Buckner's password protected files basedon his wife's consent to the search. Buckner claims that his wife did nothave the authority to grant permission to search these files.
Buckner's wife, Michelle granted police permission to seize and search theirhome computer. Although the police did not have a warrant, Michelle hadsufficient authority to grant the search of the household computer.
Buckner, however, claims that, although she had authority to grant permission toa search of the computer, she did not have authority to consent to a search ofhis personal password protected files.
Read why after the jump...
Authorities may search common areas in a household based on the authority ofthose who have possession of that area, and they may also search areas based on"apparent authority" of a resident. Although this is not a fail-safeexcuse for law enforcement, if law enforcement officers had reason to believethat person had authority to consent to the search, usually the evidence will beadmissible, even without a warrant.
In this case, the computer was common to Frank and his wife, so she did havethe authority to grant the search of the computer (with this, Frank agrees).
However, Frank contended that certain files that were protected by passwordsonly known to him were clearly not "common" files and that his wife did not havethe authority to consent to a search of his files. He pleaded that hisunique password made it sufficiently clear that these were not common files overwhich she had authority.
The court, however, disagreed finding that Michelle did have "apparentauthority" over all the files on the computer, even those to which only Frankhad a password. This creates a precedent, at least in the 4th Circuit,
that spouses may consent to a search of all files on a family computer, nomatter how personally separated.
