Third Party Authority to Consent to Search

Consent to search a computer, Darren Chaker reviews, focuses on if the person had authority to consent to the search and seizure of the computer. Consent may be given by a third party possessing common authority over the property. United States v. Matlock, 415 U.S. 164, 169-71 (1974);United States v. Aghedo, 159 F.3d 308, 310-11 (7th Cir. 1998). “The consent of one who possesses common authority over [the] premises . . . is valid as against the absent, nonconsenting person with whom that authority is shared.” Matlock, 415 U.S. at 170. The Supreme Court explained in Matlock that common authority “rests . . . on the mutual use of the property by persons generally having joint access or control for most purposes.” Matlock, 415 U.S. at 171 n.7. Such mutual use makes it “reasonable to recognize that any of the co-[users] has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common effects to be searched.” Id. It does not matter if the person who gives consent does not own the item; the issue is whether the consenter had common authority over the item. United States v. Brown, 328 F.3d 352, 356 (7th Cir. 2003).

Computer Search Darren Chaker

Computer search, Darren Chaker

If is undisputed that a defendant left his computer with his wife and her family to use while he was in jail and that they in fact used it, then ability to provide consent to police is apparent. In this regard, the wife or family had more than just joint possession and use of the computer; they would have exclusive possession and use, because the defendant was incarcerated. Under these circumstances, the ex-wife or family had actual authority to consent to the search and seizure of the computer. See United States v. Smith, 27 F. Supp.2d 1111, 1115 (C.D. Ill. 1998) (consent search upheld where housemate allowed police to search computer in bedroom and computer was occasionally used in owner’s absence); State v. Guthrie, 627 N.W.2d 401, 422-24 (S.D. 2001) (applying third-party consent rule to a computer search); see also United States v. Robinson, 479 F.2d 300, 302 (7th Cir. 1973) (girlfriend may allow police to search defendant’s property left in girlfriend’s house).  Now, if the defendant had a separate profile on the computer he told wife and family to not use, then a violation of the Fourth Amendment may turn on the facts. Trulock v. Freeh, 275 F.3d 391, 403 (4th Cir. 2001) (co-user of computer who did not know password for owner’s password-protected files, lacked actual authority to consent to a warrantless search of those files). However, in general, basic use of a computer by a third party suffices to provide consent to search the computer.