09/26/2016
Kev’s Criminal Law Conundrums - 2016, 11th Circuit Case:
Facts: A few minutes before the noon hour, Caroline went downstairs to her husband’s home-office, while her husband was still sleeping. She turned on the computer, and pressed the “restore previous internet session” tab. To her surprise, websites showing child po*******hy began to flood the screen. She was obviously disgusted, and decided to call the authorities immediately. The Largo Police Department in Florida quickly arrived at the house. Caroline told detectives that her husband, Eric Thomas, was on the computer the previous evening. She also explained that both she and her husband knew the passwords to the computer but that Eric was “primary user” of the computer. Detectives asked Caroline for her consent to search the computer. She consented and provided the password to get in to begin a forensic sweep of the computer. During the forensic sweep, Eric woke up and was soon intercepted by the police. The police asked for his consent to search the computer (even though they had already started). He agreed, but then retracted. He demanded to talk to a lawyer. Police stopped the forensic sweep and seized the computer, and a few days later, applied a received a search warrant to conduct the sweep without consent. Police found close to one thousand images of child po*******hy.
Eric Thomas argued that since he was the primary user of the computer, the police were required to wake him and ask for his consent. He said that his wife did not have the legal authority to consent to the search. At the very least, they needed “co-consent.” Since the police used what they found at the house unlawfully as the basis for the search warrant, the evidence should be suppressed and the charges dismissed.
What do you think? Should his wife be allowed to consent to a search that will incriminate her husband? Does it matter who owns the computer? Does ownership trigger consent or does access? Does it matter if it is community property? What if the husband purchased the computer before they got married? Would your opinion change if Caroline and Eric were live-in boyfriend/girlfriend? What if they were a gay couple? What if they were non-romantic roommates? What if Caroline was just visiting when she discovered it? Does Caroline need to be on the lease or mortgage? Does it matter how Caroline knew the password? Does it matter whether she was told the password by Eric voluntarily, or clandestinely discovered it without Eric’s knowledge.
What do you think the court said? Suppress the evidence or convict?
