Consent Searches

The Seventh Circuit just decided a case involving the scope of a consent form in the context of a computer search.   In United States v. Price, the police suspected that the defendant had child pornography photos on his laptop computer, and they asked him to sign a consent form.  The form was a standardized form (that is, not specifically designed for computer searches), and it stated that the suspect consented to “a complete search of _______ at this time” by a specific police officer.  The investigating officer in the case (Detective Morrow) filled the blank with the words “laptop computer” and listed herself as the officer authorized to conduct the search.   Detective Morrow then took the computer and brought it to forensic experts at the police department, who were able to find the pornographic images on the hard drive.

In front of the Seventh Circuit, the defendant claimed that the words “at this time” and the listing of Detective Morrow as the officer allowed to conduct the search only authorized an immediate search by Detective Morrow herself, not a later search by forensic experts.  The government pointed out that while the defendant was signing the form, Detective Morrow “explained to Price that she wasn’t trained in computer forensics and that other law enforcement officers would have to conduct the search of the laptop.”  The Seventh Circuit had no trouble rejecting the defendant’s argument:

[Defendant’s position] is not what a reasonable person would have understood in these circumstances. Detective Morrow had just explained that she lacked the training to search the laptop herself and would have to take it to other officers with expertise in computer forensics. On Price’s interpretation of the facts, the consent form limited the scope of his consent to a search that he knew could not take place. No reasonable person would share that view, which reduces the consent to a meaningless exercise.

Instead, a reasonable person would have understood the scope of the consent in light of the officer’s request, which sought permission to take the laptop to properly trained officers who would conduct a complete forensic search. The district court did not plainly err in holding that Price voluntarily consented to the search of his laptop; the consent was not limited to an immediate search by Detective Morrow alone. Price’s suppression motion was properly denied.

This is not a surprising ruling…the court is rejecting a formalistic parole-evidence type rule in favor of a more flexible rule that looks at the totality of the circumstances.  By the plain meaning of the consent from, Price would almost certainly win his case, but the court was willing to look beyond the plain meaning.  Of course, there is still a danger to police officers using standardized forms for computer searches.  In this case, the trial court credited Detective Morrow’s testimony that she modified the scope of consent with her verbal statements.  But the entire point of using a written form is to ensure that there is an unimpeachable record that the defendant consented to the search.  The form used by Detective Morrow did the opposite–it created ambiguities in the record as to the scope of the search.  Luckily for the police, in this case the court deemed that the ambiguities were harmless.