We are working on a federal criminal case here in Atlanta where one of the issues is whether the police broke the law when a wife gave them her husband’s computer and the police then searched through it finding incriminating materials. This is becoming more and more common, questions revolving around whether one person can let the authorities look through a computer belonging to another person.
In our case, the couple were in the middle of a divorce. The husband moved out, but left behind several computers, one for personal use, and others that were apparently for his job. On the personal computer, the wife got her “friend” to hack into it. This is crucial, because when the police showed up, she told them that her husband used a password which previously prevented her from getting into certain parts of the computer. The police took the computers, and later found information that prosecutors want to use in the criminal case. We are in the middle of fighting over whether this was OK.
The general rule is that police can get “consent” from a person who has “common authority” over an area or item, and if the police then seize and search through such an area, their actions are lawful. The United States Court of Appeals for the Eleventh Circuit recently published an opinion on this exact issue. In that case, the Court of Appeals ruled that the police were justified in believing that a motel manager had the authority to allow for the search of a room even though the guest’s time had not yet run out. The reason the police should have believed that the manager had authority to consent to the search was because the guest had just been arrested on other charges and it was unlikely he would get out on bond before morning.
Our case is somewhat similar to a decision issued by the U.S. Supreme Court two years ago. That case involved a wife who gave the police permission to search, but the husband objected. The Supreme Court ruled that when a present occupant objects, the police cannot use the consent given to them by the other occupant to justify their entry and seizure of incriminating evidence.
In our case in Atlanta, we will be fighting over whether the wife’s statement that her husband had prevented her from getting into certain parts of the computer put the police on notice that she did not have authority to hand over that computer. As said previously, this issue is becoming more and more common, and could have an impact on other cases.