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From: LindyBill	5/24/2007 8:02:51 PM
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Bad decision. Dangerously sidestepping the fourth amendment? RADNEY BALKO BLOG As something of a complement to Radley's recent update on the Supreme Court's recent Hudson decision, Wired has an interesting article on a 10th Circuit Court of Appeals decision related to the limits police search warrants. In United States v. Andrus, police suspected the eponymous man of possessing child pornography. But after 8 months of investigation police didn't have probable cause for a warrant. So they decided to swing by the house. The defendant wasn't home but his 91-year-old father was. He let the cops upstairs and said they could search his son's computer which was password protected. Here's where it gets sticky: The Fourth Amendment generally prohibits warrant less searches of an individuals home or possessions. There is an exception to the warrant requirement when someone consents to the search. Consent can be given by the person under investigation, or by a third party with control over or mutual access to the property being searched. Because the Fourth Amendment only prohibits "unreasonable searches and seizures," permission given by a third party who lacks the authority to consent will nevertheless legitimize a warrant less search if the consenter has "apparent authority," meaning that the police reasonably believed that the person had actual authority to control or use the property. Under existing case law, only people with a key to a locked closet have apparent authority to consent to a search of that closet. Similarly, only people with the password to a locked computer have apparent authority to consent to a search of that device. In Andrus, the father did not have the password (or know how to use the computer) but the police say they did not have any reason to suspect this because they did not ask and did not turn the computer on. Then, they used forensic software that automatically bypassed any installed password. The majority held that the police officers not only weren't obliged to ask whether the father used the computer, they had no obligation to check for a password before performing their forensic search. In dissent, Judge Monroe G. McKay criticized the agents' intentional blindness to the existence of password protection, when physical or digital locks are such a fundamental part of ascertaining whether a consenting person has actual or apparent authority to permit a police search. "(T)he unconstrained ability of law enforcement to use forensic software such at the EnCase program to bypass password protection without first determining whether such passwords have been enabled ... dangerously sidestep(s) the Fourth Amendment."

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