BB&K Police Bulletin: Private Search: Search of Computer Images Previously Viewed by Repair Technician Lawful

by Best Best & Krieger LLP
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Overview: The Ninth Circuit Court of Appeals recently upheld evidence of child pornography obtained from two searches of a defendant’s computer and home office. In the first search, a CompUSA service technician called police after finding child pornography on the defendant’s computer. The court found that the Fourth Amendment did not protect searches by private parties and that “additional” privacy invasions were lawful if they did not exceed the scope of the original search. By voluntarily relinquishing custody of his computer to CompUSA, the owner lost any reasonable expectation of privacy in the discovered images. The court found that the second search was also valid because the defendant’s estranged wife had apparent authority to grant police access to the home office and storage devices they shared.

Training Points: This decision is the latest in a series involving seizure of electronic evidence in child pornography cases (U.S. v. Schesso, U.S. v. Needham, and Dougherty v. City of Covina, et al.) Despite the high tech subject, the legal reasoning consistently has been “old school” and this case is no different. A law enforcement search following a private search likely is permissible if the law enforcement search has the same scope. Second, spouses—even estranged ones—can provide consent for searches and seizures of community property if they have the apparent authority to do so. This case illustrates that the basics of search and seizure are foundational and apply regardless of the technology involved.     

Summary Analysis: In U.S. v. Tosti, Donald Tosti brought his computer to a CompUSA store for service. The technician called police when he discovered images of child pornography. Police seized Tosti’s computer and obtained a warrant to search Tosti’s computer, residence and office. Tosti was convicted of possessing child pornography. He argued that the evidence derived from both searches should have been suppressed. The court disagreed, finding that the first search did not exceed the scope of the permissible search already conducted by a private party. Under the Fourth Amendment, Tosti had no reasonable expectation of privacy in images already viewed by the CompUSA technician. The second search was lawful because Tosti’s estranged wife had signed a consent form to search items she had turned over to FBI agents, including a computer, several hard drives and DVDs. Officers could reasonably believe that Mrs. Tosti had apparent authority to grant consent because she still lived in the home and had unlimited access to the computer and converted home office, thus the search was valid.

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