ComputerForensicsDigest.com

Brief Summary: Defendant who pled guilty to possessing child pornography appealed the denial of his motion to suppress the evidence collected from his home computer on the grounds that his wife did not have authority to consent to a search.

[Editor's Note: The court's opinion names the program installed by Cassie Morgan as "SpectroSpy." In fact, the program was probably one of the products created and sold by SpectorSoft, a manufacturer of surveillance software.]

The computer in question was located in a common area of the basement. Cassie Morgan told police that both she and her husband had access to the computer, and that she occasionally used it. Neither she nor her husband had individual passwords to access material on the computer. Cassie Morgan did not tell police that she had another computer for her primary use.

During the forensic examination of the computer, the police discovered numerous images of child pornography. The images were downloaded from Internet news groups and saved onto the computer hard drive. They were not password-protected or encrypted. The police determined that Michael Morgan had installed an "Internet eraser" program in an effort to prevent recovery of images he downloaded onto the computer. However, the eraser program did not operate properly and police were able to retrieve 148 images.

[Editor's Note: There are numerous programs available on the Web that have that phrase in their title; it's not clear which specific program Morgan was using. Again, the court's opinion is a little ambiguous. If the defendant had not yet deleted the images in question, then the Internet eraser program would not have wiped them out anyway; typically, those programs do not erase valid files. On the other hand, it is not uncommon for Internet eraser programs to operate poorly or incompletely.]

Michael Morgan entered a conditional guilty plea and was ultimately sentenced to twenty-eight months in prison.

Issue(s): Whether the trial court erred in denying Michael Morgan's motion to suppress the results of the computer forensics examination on the grounds that his wife had no authority to consent to the search.

Ruling: No, the trial court did not err.

Reasoning: A search is permissible under the Fourth Amendment without a warrant or probable cause when "free and voluntary" consent is given for the search. Consent may be given by a defendant or by someone "with common authority ... or other sufficient relationship" to the property to be searched. United States v. Matlock, 415 U.S. 164, 171 (1974). Even if the person giving permission for the search does not in fact have the requisite authority, a search may still be valid if the police relied in good faith on the person's apparent authority.

Given the facts of this case, the police reasonably concluded that Cassie Morgan had access to the basement computer and the authority to permit a search. Factors supporting her claim of access and authority included the absence of individual passwords and her ability to install monitoring software on the computer.

The court seems to suggest that the presence of the Internet eraser program would undercut the police's reasonable conclusion that Cassie Morgan had authority to consent to a search of the basement computer. In this case, however, the court noted that the presence of the Internet eraser program was not discovered until after the images of child pornography were located. The subsequent discovery of information that might undercut an individual's apparent authority does not alter the initial determination.

Given that Cassie Morgan had apparent authority to consent to the search and given that the police reasonably relied upon that apparent authority, the search of the basement computer was valid. The defendant's motion to suppress the results of that search was properly denied.