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Police blotter: When can cops seize your computer?

In this week's installment, appeals court rules that police cannot search a home computer when one spouse refuses.

Declan McCullagh Former Senior Writer
Declan McCullagh is the chief political correspondent for CNET. You can e-mail him or follow him on Twitter as declanm. Declan previously was a reporter for Time and the Washington bureau chief for Wired and wrote the Taking Liberties section and Other People's Money column for CBS News' Web site.
Declan McCullagh
4 min read
"Police blotter" is a weekly CNET News.com report on the intersection of technology and the law.

What: Police seize computer without a warrant after husband declines permission but then wife consents.

When: 8th Circuit Court of Appeals rules on Aug. 25.

Outcome: Court decides that computer seizure was illegal and sends case back to trial judge for further proceedings.

What happened, according to court documents:
In July 2002, the Missouri State Highway Patrol was investigating Handi-Rak Service as part of an investigation into the sale of large quantities of pseudoephedrine-based cold and allergy tablets, which can be used to make the illegal drug methamphetamine. They searched the company's offices and found, in CEO Roy Hudspeth's office, some hand-labeled CDs that appeared to contain child pornography.

Missouri State Trooper Cpl. Daniel Nash asked for permission to search the computer at Hudspeth's home, but Hudspeth refused.

Four police officers went to his home anyway and identified themselves to his wife, who was at home with the couple's children. Nash did not say that her husband refused permission for a search, and, after an unsuccessful attempt to contact her lawyer, the wife eventually granted permission for the police to seize the home computer.

The wife later testified that she consented to police taking the home computer only because Nash "began to get upset" and she feared her children "might have a big fit."

This is where the case becomes relevant to Police Blotter. It nicely frames the question: Can a spouse let police search (or take) a computer when the other has refused permission?

The trial court sided with the police over the wife and ruled that her consent was voluntary, freely given, and not coerced--even though she was outnumbered four-to-one and the police officers threatened to stay there until a search warrant could be obtained.

The appeals court agreed that she voluntarily gave consent. But then it analyzed whether the consent was legal, based on a long line of cases dealing with whether co-tenants can give permission for a search of a home when the other is opposed.

A 2-1 majority of the 8th Circuit sided with the defendant, saying: "We believe that the Supreme Court has made it clear that the police must get a warrant when one co-occupant denies consent to search. In this case, that would not have been a significant burden. Therefore, we conclude that Mrs. Hudspeth's consent does not overrule Hudspeth's denial."

But one judge, dissenting, said that the U.S. Supreme Court cases dealt with whether the tenants were physically present and that because Hudspeth was being held in police custody elsewhere, his refusal shouldn't matter.

The dissenter said: "Hudspeth was not physically present and objecting when Mrs. Hudspeth gave her voluntary and noncoerced consent; therefore, (a recent Supreme Court decision) does not apply. Nor does any other decision by the Supreme Court or this circuit apply and make Mrs. Hudspeth's consent invalid simply because the officers knew Hudspeth earlier had refused consent."

Hudspeth had entered a conditional guilty plea (meaning he can withdraw it) to possession of child pornography and had been sentenced to 60 months of imprisonment. By a 2-1 majority, the court ruled that the computer had been seized illegally and sent the case back to the trial court.

Excerpts from the majority opinion:
Even though Mrs. Hudspeth's consent was voluntary and not coerced, the consent to the seizure of the home computer was not valid because her consent cannot "overrule" Mr. Hudspeth's denial of consent. Our holding here flows from the Supreme Court's jurisprudence regarding co-tenants' ability to consent to searches, as seen in United States v. Matlock, and most recently in Georgia v. Randolph.

The Supreme Court held in Matlock, "the consent of one who possesses common authority over premises or effects is valid against the absent, nonconsenting person with whom that authority is shared." In that case, officers arrested Matlock in the yard of his residence, detained him in a squad car nearby, and then obtained permission to search the house from one of Matlock's co-tenants. The officers in Matlock did not ask Matlock whether he would consent to a search...

The Court stated: "In sum, there is no common understanding that one co-tenant generally has a right or authority to prevail over the express wishes of another, whether the issue is the color of the curtains or invitations to outsiders."

Georgia v. Randolph does not directly address the situation present in this case, in which a co-tenant is not physically present at the search but expressly denied consent to search prior to the police seeking permission from the consenting co-tenant who is present on the property. Nevertheless, the same constitutional principles underlying the Supreme Court's concerns in Randolph apply regardless of whether the nonconsenting co-tenant is physically present at the residence, outside the residence in a car, or, as in our case, offsite at his place of employment...

We believe that the Supreme Court has made it clear that the police must get a warrant when one co-occupant denies consent to search. In this case, that would not have been a significant burden. Therefore, we conclude that Mrs. Hudspeth's consent does not overrule Hudspeth's denial.