INTERNET LAW - Search and Seizure of Home Computers in Virginia

Martha L. Arias, Immigration and Internet Law Attorney, Miami; IBLS Director
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It may not be scientifically proven yet, but home computers definitely provide solitude enjoyed by those who commit online crimes. In contrast, it is not always easy for authorities investigating cybercrimes to obtain a warrant to search and seize home computers; thus, relatives' or roommates' consent to these search and seizures have become a legal challenge for defense attorneys and judges ruling on motions to suppress evidence. The following Fourth Circuit Court of Appeals case illustrates how relatives' consent in home computer searches has been addressed in the state of Virginia.

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It may not be scientifically proven yet, but home computers definitely provide solitude enjoyed by those who commit online crimes.  In contrast, it is not always easy for authorities investigating cybercrimes to obtain a warrant to search and seize home computers; thus, relatives' or roommates' consent to these search and seizures have become a legal challenge for defense attorneys and judges ruling on motions to suppress evidence. The following Fourth Circuit Court of Appeals case illustrates how relatives' consent in home computer searches has been addressed in the state of Virginia.

In United States v. Buckner, 473 F.3d 551 (8th Cir. 2007), the US Court of Appeals for the Fourth Circuit affirmed the District Court's decision denying a motion for suppression of evidence.  The evidence was found in a home computer that the police searched and seized without warrant but with the defendant's wife consent.

The defendant, Buckner, was involved in fraudulent online transactions using AOl and eBay accounts.  The police initially contacted Bucker's wife because her name appeared as the name involved in these online companies' accounts.  When the police visited the Bucker's house, defendant opened the door and said his wife was not at home.  The police left a message for the wife to call the police. The wife later contacted the police.  The police informed her that her name was involved in multiple online fraud complaints related to an AOL and eBay account.  The wife replied she had nothing to do with these transactions and admitted she had a home computer leased under her name which she only used to play solitaire.  The police visited the Bucker's home again the following day.  The wife was at home but not the defendant.  The wife told the officers that she wanted to cooperate as much as possible and that they could "take whatever [they] needed."  The home computer was on a table in the living room that could be seen from the front door.  Even though the police did not have a warrant, the wife consented to the search and seizure of the computer.  The computer was running at that time, with the screen lit.  The police took its data-storage components for forensic analysis. 

Defendant was later indicted with 20 counts of wire fraud and 12 counts of mail fraud and the seized evidence was used for this purpose.  As affirmative defense, defendant argued that the computer was password-protected and that nobody could access those password-protected files; not even his wife.   The forensic analysis did not show any password protection and the police testified they did not require any password to access the data-storage component. Indeed, the record shows that defendant's files were not encrypted and that there was no contention that the police used a technological method to avoid the password requirement.  The District Court then denied Defendant's motion to suppress this evidence. On appeal, defendant challenged the police's seizure of the home computer and the subsequent search of his password-protected files.       

"Valid consent" is a well-known exception to warrantless search and seizures.  The government has the burden to prove that a "valid consent" was obtained.  Third party's consent is valid when there is "common authority over or other sufficient relationship to the ...effects sought to be inspected." United States v. Matlock, 415 U.S. 164, 171, 94 S. Ct. 988, 39 L. Ed. 2d 242 (1975).  It was undisputed that defendant's wife had common authority over the computer; yet, defendant contended she had not authority to consent over his password-protected files.  Under the "totality of the circumstances" approach, the Court of Appeals held that the wife had authority to consent over "all files" in the home computer because she had common access to the computer; the computer was located in the home's living room; the computer was turned-on when the police arrived to the Bucker's home despite defendant's absence; and the computer was leased solely under the wife's name, this means the wife could return this computer to the lease office at any time. 

Judgment affirmed and wife's consent sustained. Therefore, under Virginia law, the totality-of-the circumstances approach is determinative of the validity of third party's consent in warrantless search and seizure.  In this case, the fact that the files were not encrypted or subject to additional protection, and the ownership of the computer proved critical against the defendant.

Martha L. Arias, Immigration and Internet Law Attorney, Miami; IBLS Director

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