United States v. Eric Thomas

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-14680
________________________
D.C. Docket No. 8:13-cr-00462-VMC-TBM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ERIC THOMAS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(April 1, 2016)
Before HULL, JULIE CARNES, and CLEVENGER, * Circuit Judges.
HULL, Circuit Judge:
*
Honorable Raymond C. Clevenger, III, United States Circuit Judge for the Federal
Circuit, sitting by designation.
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After a jury trial, Eric Thomas, a federal prisoner, is serving a 96-month
sentence, followed by a life term of supervised release, on his conviction for
knowingly accessing with the intent to view child pornography. On appeal,
Thomas challenges the district court’s denial of his motion to suppress evidence
discovered on a HP desktop computer in his home. After a careful review of the
record and with the benefit of oral argument, we affirm.
I. PROCEDURAL OVERVIEW
On September 25, 2013, following a police search of Eric Thomas’s home
computers, a federal grand jury indicted Thomas for one count of knowingly
accessing with the intent to view child pornography, in violation of 18 U.S.C.
§ 2252(a)(4)(B) and (b)(2). Thomas filed a motion to suppress evidence gathered
from the HP desktop computer at his home. A magistrate judge held three hearings
on the motion to suppress, on December 20 and 23, 2013 and February 5, 2014,
and issued a report and recommendation (“R&R”), recommending a denial of
Thomas’s motion. The district court adopted the R&R and denied the motion to
suppress.
After a three-day trial, the jury found Thomas guilty of knowingly accessing
with the intent to view child pornography. On September 29, 2014, the district
court sentenced him to 96 months’ imprisonment followed by a life term of
supervised release. Thomas does not appeal his sentence but only his conviction
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based on the denial of his suppression motion. We thus review the evidence
adduced at the suppression hearings, the arguments on the suppression motion, and
the district court’s ruling.
II. MOTION TO SUPPRESS
A. December 20, 2013 Suppression Hearing
At the December 20, 2013 hearing, Officer Matt Steiner of the Largo Police
Department testified that he was the first officer to arrive at Thomas’s house on
July 21, 2012. Officer Steiner stated that he arrived at approximately 11:11 a.m.,
in response to a telephone report that there was child pornography on a computer
within the home. He spoke to Caroline Olausen, Thomas’s then-wife, who had
contacted the police.
According to Officer Steiner, Olausen told him that, on the previous night,
Thomas had appeared nervous and his heart was racing. That morning, Olausen
discovered eight to ten child pornography websites on a computer in their shared
home. She explained that she found the pictures after turning on the computer
monitor and clicking “yes” when asked if she wanted to “restore the previous
Internet Explorer session.” Olausen explained that the websites featured naked
prepubescent and pubescent girls, some of whom were performing oral sex on
adult men.
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Officer Steiner testified that he learned that Thomas was sleeping, so he
asked Olausen for consent to search the computers in the residence. Olausen told
him that she and Thomas both used the computers, but Thomas used the computers
more often than she did and used them for work purposes. Olausen then gave oral
and written consent to search all of the electronic media in the residence, which
included an HP desktop computer, a Dell desktop computer, a Toshiba tablet, and a
Maxtor internal hard drive. She also consented in writing to the removal of “any
property” from the home. Officer Steiner believed that Olausen had the authority
to consent to a search and seizure because the computers were in an unlocked
home office within the residence and Olausen used at least the HP desktop
computer that had allegedly displayed the child pornography.
According to Officer Steiner, when he approached the HP desktop computer,
two websites were in plain view and he could use the mouse to move between the
sites. The websites were called “NNLollys” and “HDSchoolTeens,” and both
featured “pictures of young girls that had only their underwear on.” The girls were
not engaged in any sexual activity. Officer Steiner did not have to type in a
password to view the computer screen. Officer Steiner stated that he did not
conduct any forensic analysis of the computers. After viewing the websites on the
HP computer, he provided “scene security” and “officer safety” while other agents
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performed forensic analyses of the electronic media. He departed from the
Thomas residence at 1:37 p.m.
Detective Nathan Dix testified that he was a cybercrimes detective for the
Largo Police Department and an agent on the Federal Bureau of Investigation’s
(“FBI”) Child Exploitation Task Force. He arrived at Thomas’s house at
12:18 p.m., after Officer Steiner had begun the initial investigation. Detective Dix
stated that he received a briefing and then examined the home office area and the
HP desktop computer, which was easily accessible within the office. He
concluded that there was child erotica, but no child pornography, on the two
websites visible on the HP computer. Notably though, Officer Steiner testified that
the “NNLollys” website visible on the computer had links to other websites with
terms indicative of child pornography.
Detective Dix spoke with Olausen after viewing the webpages. Olausen
confirmed that she had provided consent to search the computers and repeated why
she had contacted the police. According to Detective Dix, Olausen told him that
she had arrived home earlier than expected the previous night. She saw Thomas
get up “very quickly” from “the area of his computer desk.” He was acting
nervous and strange, and when she hugged him his heart was pounding.
Olausen continued that, when she woke up that morning, she turned on the
monitor of the HP computer, restored the previous browsing history, and watched
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eight to ten Internet windows appear. The windows contained child pornography,
in Olausen’s opinion. She saw nude pictures of 4-to-13-year old children and
some of the children were in “sex poses” or being “sexually abused.” In one
instance, there was an image with “an adult male penis and a completely nude
child’s vagina.” Detective Dix testified that the described images constituted child
pornography. He assumed that there were only two webpages left open on the HP
computer when the police arrived because Olausen had mistakenly closed some of
the tabs or was wrong about how many webpages she had seen.
Detective Dix further testified that Olausen stated that she and Thomas both
used the computers, though “Thomas was the primary user of the computers
because he worked from home and utilized them through his work.” Olausen
explained that Thomas was normally “compulsive” about properly shutting down
the computers, using pop-up-ware and spam filters, and deleting his Internet
cookies. At the end of Detective Dix’s conversation with Olausen, Olausen again
orally consented to a search of the computers and said that Thomas was asleep.
After this conversation, Detective Dix returned to the home office and
conducted a forensic search of the Dell desktop computer. He explained that he
used a “forensic scan on-site preview tool to scan that hard drive for video and
image files.” Eventually, Detective Corey Monaghan arrived in the room to scan
the HP desktop computer using the “OS Triage” forensic search tool.
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While Detective Dix was conducting the scan, Thomas woke up. Detective
Dix saw Thomas walk toward the home office area, but Officer James Shinn
intercepted him before he could enter. Officer Shinn told Thomas to go to the
living room and he would explain what was happening. Detective Monaghan also
left the home office to interview Thomas.
Detective Dix testified that Detective Monaghan was gone from the home
office for about 40 to 45 minutes. During that time, Detective Dix completed the
forensic scan of the Dell computer and began scanning the Toshiba tablet. When
Detective Monaghan returned, he told Detective Dix that Thomas had revoked
consent and they had to stop the search. Both officers stopped their forensic search
tools. They seized all of the electronic media in the residence. Detective Dix
believed that there was probable cause to seize the evidence and that there was a
“high risk that evidence could be destroyed or deleted” if left in the Thomas
household. Detective Dix testified that he did not discover any child pornography
pursuant to his preliminary forensic reviews of the Dell computer and Toshiba
tablet.
Officer James Shinn of the Largo Police Department testified that he arrived
at the Thomas residence at 1:31 p.m. He was instructed by officers already present
at the house that Thomas was sleeping in a bedroom and he should keep watch to
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see if Thomas wakes up. Officer Shinn positioned himself so that he could see the
bedroom.
From his post, Officer Shinn observed Thomas leave the bedroom and walk
toward the office. According to Officer Shinn, Detective Monaghan spoke to
Thomas and asked Thomas to go to the living room. Thomas, however, continued
walking toward the office, so Officer Shinn blocked the doorway to the office and
told Thomas to speak to Detective Monaghan. Officer Shinn testified that he was
concerned about Thomas going into the office because there were tools in that
room that could be used as weapons.
Thomas complied with Officer Shinn’s directions and went to the living
room to talk to Detective Monaghan. Officer Shinn could hear Detective
Monaghan and Thomas’s conversation from where he was standing. Officer Shinn
testified that Detective Monaghan asked Thomas to consent to a search of the
computers and Thomas replied, “Yes, that would be fine.” Detective Monaghan
then asked Thomas to fill out a consent-to-search form. Thomas agreed and began
writing on the form, but then stopped and asked to see his wife. Detective
Monaghan replied that Thomas could speak to Olausen after they dealt with the
form.
At that point, according to Officer Shinn, Thomas started to equivocate
about filling out the form. Thomas said that he would sign the form if he could
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speak to Olausen. Detective Monaghan urged Thomas to “make a clear decision,”
and when Thomas again asked to talk to Olausen, Detective Monaghan instructed
him to make an “informed decision.” According to Officer Shinn, Thomas became
increasingly upset and asked again to speak with Olausen. Officer Shinn tried to
explain to him that Detective Monaghan was attempting to protect his rights by
soliciting a clear answer concerning consent to search.
Officer Shinn testified that Detective Monaghan left the living room to ask
Olausen if she was willing to talk to Thomas. Detective Monaghan came back and
informed Thomas that Olausen did not want to speak to him. Thomas then stated
that his sister was a lawyer and he wanted to talk to her. At that point, Detective
Monaghan stopped the conversation, and Officer Shinn escorted Thomas to the
front patio. Officer Shinn thought the conversation between Thomas and Detective
Monaghan lasted about five or six minutes.
B. December 23, 2013 Suppression Hearing
Detective Monaghan was the sole witness at the second suppression hearing.
Detective Monaghan testified that he was part of the Largo Police Department’s
Investigative Services Division and worked on cybercrimes. He also worked on
the FBI’s Innocent Images Task Force, investigating online child exploitation.
According to Detective Monaghan, when he arrived at the Thomas residence
at approximately 12:55 p.m., Detective Dix briefed him on what was happening
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and informed him that Olausen had consented to a search of the computers.
Detective Monaghan was under the impression that Thomas was asleep in a
bedroom, so he proceeded to the office area. He observed that access to the HP
computer was unrestricted and there were already two websites containing child
erotica displayed on the computer monitor. At least one of the websites appeared
to contain links to child pornography.
Detective Monaghan stated that he initiated his use of the OS Triage forensic
preview tool at approximately 1:01 p.m. The forensic tool completed a scan of the
HP computer’s Internet history and computer registry within a minute. 1 Detective
Monaghan reviewed the Internet history immediately and saw “websites with
names indicative of child pornography” and browser history consistent with what
Olausen had described. The OS Triage tool saved the Internet history results to a
thumb drive.
Detective Monaghan testified that he left the forensic search running and
spoke to Olausen. Olausen told him that the images she saw on the computer were
of “prepubescent” children. Olausen also stated that she used the HP computer to
“Google” the Largo Police Department earlier that morning. Detective Monaghan
1
The OS Triage forensic preview tool was on a thumb drive, which Detective Monaghan
plugged into the HP desktop computer. The tool immediately gathered information from the
computer’s Internet history and registry. It also did a more time-consuming secondary scan of
the computer for images, videos, and “key words that match[ed] a list within the software of
names indicative of child pornography.” Detective Monaghan ultimately cancelled the
secondary search before that portion of the scan was complete. The Internet history relied upon
in the search warrant was available after the first scan.
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hypothesized that the other six to eight child erotica/pornography websites Olausen
had seen were not on the screen when the police arrived because Olausen had
inadvertently closed the websites when she used Google that morning before
calling the police. Finally, Olausen stated that the HP computer was password
protected and she and Thomas shared access to the password.
After Detective Monaghan turned his attention back to analyzing the Internet
history, Thomas came out of the bedroom. Detective Monaghan testified that he
left the home office and met Thomas in the living room to explain why the police
were in the house. Thomas denied viewing child pornography, but admitted to
accessing adult pornography, and immediately gave oral consent to search the
computers in the home office.
Detective Monaghan asked Thomas to sign a consent-to-search form to
memorialize his oral consent. Thomas, instead of signing, asked to speak to
Olausen. Detective Monaghan testified that he “again asked [Thomas] if he
wanted to sign the consent to search.” Thomas responded a second time that he
wanted to speak to his wife. Detective Monaghan walked away from Thomas to
locate Olausen, who was waiting outside of the house. Olausen did not want to
speak with Thomas, so Detective Monaghan returned to the living room to convey
this information to Thomas. Thomas said that he would not sign the consent-to-
search form until he talked to his wife.
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After this ultimatum, Detective Monaghan attempted to “clarify” whether
Thomas was consenting to the search, but Thomas continued to insist on talking to
Olausen. Thomas also mentioned that his sister was an attorney and he wanted to
speak to her. Detective Monaghan testified that, at that point, he determined that
Thomas was revoking his oral consent. Detective Monaghan went to the office
area and told Detective Dix that consent had been withdrawn, and he shut down the
OS Triage tool. Data from the forensic scan showed that Detective Monaghan
terminated the search at 1:50 p.m. Detective Monaghan stated that he seized the
computer media and planned to obtain a search warrant. He did not want to leave
the computers at the Thomas residence because, in his experience, the evidence
would be destroyed.
Detective Monaghan testified that he later, on August 22, 2012, reviewed the
results of the OS Triage forensic scan, looked at the websites listed in the Internet
history, and discovered that at least one of the websites had an image of child
pornography. On August 24, 2012, Detective Monaghan obtained a federal search
warrant. 2 Detective Monaghan stated that he would have pursued a search warrant
even without the forensic evidence. After Detective Monaghan obtained the search
2
The State Attorney’s Office advised Detective Monaghan that the evidence he gathered
at the house and from the forensic scan were insufficient to obtain a search warrant for any state
offense.
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warrant, he conducted a complete forensic analysis of the HP computer and found
about 860 images of child pornography.
After the testimony concluded, Thomas argued that, under Georgia v.
Randolph, 547 U.S. 103, 126 S. Ct. 1515 (2006), he negated Olausen’s consent to
search the computers, and therefore the officers acted illegally when they removed
the thumb drive of forensic evidence and the computers from his home without his
consent. Thomas also claimed that all of the evidence obtained pursuant to the
federal search warrant was fruit of the poisonous tree, as the warrant application
included the results of the OS Triage forensic scan.
The government responded that the withdrawal of consent does not require
police officers to give back the evidence they have already gathered. It
emphasized that Detective Monaghan obtained a search warrant based solely on
the information stored on the thumb drive and did not search the HP computer
again until he had the warrant. Additionally, the government asserted that there
was probable cause to seize the computers, and the officers did not need a warrant
because there were legitimate concerns that Thomas would destroy the evidence if
they left the computers at the residence.
C. February 5, 2014 Oral Argument on Motion to Suppress
When the magistrate judge called for additional argument on the suppression
motion, Thomas broadened his position and claimed that Randolph should be
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expanded to require police officers to obtain both spouses’ consent before
searching a shared home when both spouses are present. Thomas also argued that:
(1) the officers did not have probable cause to seize the HP computer because
Olausen’s tip was unsubstantiated at the time of the seizure and the officers did not
observe any child pornography on the HP computer; (2) Thomas “veto[ed]”
Olausen’s consent, so the police could not rely on her signed consent form
authorizing them to seize any item in the house to justify removing the HP
computer; (3) the police could not justify the seizure based on a disappearing-
evidence exception to the warrant requirement because they had ample time to
secure the premises and obtain a search warrant if they were truly concerned about
the destruction of evidence; and (4) the warrant affidavit, even as written, did not
establish probable cause because Detective Monaghan visited the websites over a
month after Thomas allegedly opened them, and the contents may have changed
during that time, or Thomas may have accessed the websites inadvertently.
The government argued three theories in support of the search and seizure.
First, the government claimed that Olausen’s consent allowed the officers to search
and seize the computers and take the thumb drive. Second, the government
contended that the exigent circumstances exception to the warrant requirement
allowed them to seize the computers to prevent Thomas from destroying the
evidence. Third, the government stated that under the plain view doctrine, officers
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can seize obviously incriminating items without a warrant when they have lawful
access to the items. It argued that there was no dispute that the officers were
lawfully within the Thomas residence, and it maintained that it was clear that the
computers contained incriminating evidence based on (1) Olausen’s statements,
which were consistent on key points, (2) the visible child erotica websites, and
(3) the initial results of the OS Triage forensic scan.
D. R&R and District Court’s Ruling
The magistrate judge filed an R&R, recommending denial of Thomas’s
motion to suppress. The magistrate judge found that Olausen “shared authority
and access over the home, the home-office area, and the computers found therein.”
The magistrate judge also found that Thomas “verbally consented to the search of
the computers when first asked but shortly thereafter balked at signing a written
consent to search form.” The forensic data that Officer Monaghan relied on to
obtain the search warrant had been downloaded for nearly 50 minutes before
Thomas withdrew his consent to search.
Based on these factual findings, the magistrate judge determined that the
officers had Olausen’s consent to enter the house and search and seize the
computers. Olausen’s consent was valid because she shared control of the home
and the computers, and even if she did not, the officers had a reasonable good-faith
belief that she had the authority to consent to a search. Therefore, the search and
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seizure of data from the HP computer was consistent with the Fourth Amendment.
The magistrate judge concluded that Thomas’s later revocation of consent did not
require suppression of the evidence the officers had already lawfully obtained:
“neither the information obtained by the osTriage device nor the information
developed from review of that information was the fruit of the poisonous tree.”
The magistrate judge further found that the officers lawfully seized and HP
computer and removed it from Thomas’s house.3 According to the magistrate
judge, there was probable cause to believe that there was child pornography on the
HP computer based on the totality of: (1) Olausen’s statement that she saw images
that constituted child pornography; 4 (2) the officers’ observation of child erotica on
the computer with links to websites indicative of child pornography; (3) the
Internet history displayed by the OS Triage device, which suggested that a user
visited child pornography or child erotica websites the previous night;
(4) Thomas’s admission that he viewed adult pornography; and (5) Detective
Monaghan’s experience with child pornography investigations. Furthermore,
3
The magistrate judge found that there was not probable cause to seize Thomas’s other
electronic media. However, there was nothing to suppress as a result of this finding because the
police did not discover child pornography on the Dell computer or Toshiba tablet during their
initial search of the Thomas residence, and they did not search the Dell or Toshiba again after the
seizure.
4
The magistrate judge remarked that Olausen’s written statement concerning her
discovery of child pornography on the HP computer, which she provided to Officer Steiner
during the search, was “fairly consistent” with what each officer testified she said in
conversation.
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given the portable nature of the computer and its contents, and the fact that Thomas
was aware of the nature of the police investigation, the magistrate judge concluded
that it was reasonable for the officers to fear that the evidence would be destroyed
and seize the HP computer without a warrant.
Finally, after finding that the search and seizure were lawful, the magistrate
judge concluded that probable cause supported the search warrant, and the 860
images of child pornography were admissible. After Thomas filed objections and
the government responded, the district court adopted the magistrate judge’s R&R
and denied Thomas’s motion to suppress. This appeal followed.
III. DISCUSSION
On appeal, Thomas argues that Olausen did not have the authority to consent
to a forensic search of the HP computer, and, in the absence of her consent, the
police did not have a lawful ground for conducting a warrantless forensic scan of
the computer. Accordingly, Thomas maintains that the results of the forensic
search and all of the evidence discovered after the police obtained a search warrant
(based on an affidavit including the results of the OS Triage scan) must be
suppressed as fruit of the poisonous tree. Thomas also argues that Randolph was
wrongly decided and should be revisited. 5
5
Additionally, Thomas appears to argue, in a single sentence unsupported by any
citations, that Olausen’s consent was invalid because it was not informed. Thomas asserts that
Olausen was unaware when she consented to a search of the computers that the police would use
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A. Standard of Review
The denial of a motion to suppress is a mixed question of fact and law.
United States v. Laist, 702 F.3d 608, 612 (11th Cir. 2012). We review questions of
law de novo and questions of fact for clear error, construing the facts in the light
most favorable to the prevailing party below. Id. We will reverse for clear error
only when we are “left with a definite and firm conviction that a mistake has been
committed.” United States v. Rothenberg, 610 F.3d 621, 624 (11th Cir. 2010)
(quotation marks omitted).
B. Third-Party Consent Rule
The Fourth Amendment guarantees people the right to be “secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures.”
U.S. Const. amend. IV. Without a warrant, “a search is reasonable only if it falls
within a specific exception to the warrant requirement.” Riley v. California, 573
U.S. ___, ___, 134 S. Ct. 2473, 2482 (2014). One exception is that a warrantless
search is lawful when a person with actual or apparent authority voluntarily
consents to law enforcement officers conducting a search. United States v.
a forensic tool to reach back into the Internet browser history. Thomas’s one conclusory
sentence, however, is insufficient to raise the issue of knowing consent by Olausen. See United
States v. Jernigan, 341 F.3d 1273, 1283 n.8 (11th Cir. 2003) (“[A] party seeking to raise a claim
or issue on appeal must plainly and prominently so indicate . . . . At the very least, he must
devote a discrete, substantial portion of his argumentation to that issue.”). We also note that
Thomas did not raise this argument below.
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Watkins, 760 F.3d 1271, 1279 (11th Cir. 2014); Bates v. Harvey, 518 F.3d 1233,
1243 (11th Cir. 2008).
When two people share common authority over “premises or effects,” the
consent of one person “is valid as against the absent nonconsenting person with
whom the authority is shared.” United States v. Matlock, 415 U.S. 164, 170, 94 S.
Ct. 988, 993 (1974). The Supreme Court has explained that it is reasonable to
recognize that any co-inhabitant can consent to a search of a jointly-controlled area
because the co-inhabitants assume “the risk that one of their number might permit
the common area to be searched.” Id. at 171 n.7, 94 S. Ct. at 993 n.7.
In order to determine whether a person has the authority to consent to a
search of shared property, courts ask whether there is “mutual use of the property
by persons generally having joint access or control for most purposes.” Id.
Another formulation of this standard is whether the defendant has placed the items
in question “in an area over which others do not share access and control.”
Randolph, 547 U.S. at 135, 126 S. Ct. at 1535 (Roberts, C.J., dissenting).6
C. Randolph Rule
In Georgia v. Randolph, the Supreme Court added an exception to this third-
party consent rule, providing that when a physically present co-inhabitant
expressly refuses to consent to a police search, such refusal is dispositive,
6
Both parties cite Chief Justice Robert’s Randolph dissent in their briefs, and Thomas
uses this formulation.
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regardless of the consent of a fellow co-inhabitant. Id. at 114-17, 126 S. Ct. at
1523-25. In that case, Defendant Randolph’s wife called law enforcement to their
shared home after a domestic dispute and informed the officers that there were
“items of drug evidence” in the house. Id. at 107, 126 S. Ct. at 1519. Both the
defendant and his wife were present when the police asked to search the home. Id.
The wife consented, but the defendant unequivocally refused. Id. The law
enforcement officers searched the house and discovered cocaine. Id. The Supreme
Court suppressed the drug evidence, holding that the warrantless search was
invalid as to Defendant Randolph. Id. at 114-17, 126 S. Ct. at 1523-25. It
provided that “a physically present co-occupant’s stated refusal to permit entry
prevails, rendering the warrantless search unreasonable and invalid as to him.” Id.
at 106, 126 S. Ct. at 1519.
The Supreme Court in Randolph also addressed the situation presented in
this appeal: what to do when a co-tenant is asleep when the police knock on the
door and another co-tenant gives consent to enter and search the residence. 547
U.S. at 121, 126 S. Ct. at 1527. The Supreme Court responded to this scenario by
stating that it was “drawing a fine line” with the Randolph rule, and that “if a
potential defendant with a self-interest in objecting is in fact at the door and
objects, the co-tenant’s permission does not suffice for a reasonable search,
whereas the potential objector, nearby but not invited to take part in the threshold
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colloquy, loses out.” Id. Thus, the Supreme Court expressly declined to require
police to wake a sleeping co-tenant. See id.
D. Applicability of the Randolph Rule to Personal Effects
The Supreme Court crafted the Randolph rule in the context of the search of
a residence. Both Thomas and the government acknowledge that it is an open
question whether Randolph applies to searches of personal effects, such as
computers. Indeed, federal appeals courts have split on this issue. Compare
United States v. King, 604 F.3d 125, 135-37 (3d Cir. 2010) (holding that Randolph
does not apply to searches of personal effects and that the police can search
personal effects with one user’s consent, even if the other user objects), with
United States v. Murphy, 516 F.3d 1117, 1124 (9th Cir. 2008) (“[T]here is no
reason that the rule in Randolph should be limited to residences.”).
We need not settle the issue here, though. We see no error in the district
court’s finding that, in seeking a search warrant, Detective Monaghan relied on
information obtained before Thomas even objected and attempted to revoke
Olausen’s consent to search the HP computer. See Laist, 702 F.3d at 612.
Detective Monaghan did not continue searching after Thomas expressed
uncertainty about signing the written consent form, so assuming that Olausen had
the authority to consent to a search in the first place, the law enforcement officers
complied with the Randolph rule.
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Therefore, whether the applicable rule for searching personal effects is the
Randolph rule or the general principle that anyone with shared control over the
property can consent to a search (regardless of the other’s party’s objection), the
only issue in this case is whether Olausen had actual or apparent authority to
consent to a forensic search of the computer, even though Thomas had taken steps
to prevent her from viewing his Internet history. We answer this question in the
affirmative.
E. Olausen’s Authority to Consent
When the police obtained Olausen’s consent to search the HP computer and
undertook the forensic scan, they knew that: (1) the computer was easily accessible
and located in an unlocked room in the Thomas’s shared residence; (2) Olausen
had access to the computer and had used it that morning; and (3) Olausen and
Thomas shared the password to access the computer. Based on this information, it
appeared that Olausen had control and authority over the HP computer, and could
consent to a forensic search. See Matlock, 415 U.S. at 170, 94 S. Ct. at 993.
The fact that Thomas was the primary user of the computer, worked from
home, and typically deleted his Internet history, used pop-up-ware and spam
filters, and usually fully shut down the HP computer (although he did not on the
night in question) were insufficient to show that Olausen lacked the requisite
common authority to provide consent. Despite Thomas’s security measures,
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Olausen had “joint access or control [over the computer] for most purposes,” and
Thomas did not isolate his Internet use in a manner that prevented Olausen from
accessing it all together. See Randolph, 547 U.S. at 135, 126 S. Ct. at 1535
(Roberts, C.J., dissenting); Matlock, 415 U.S. at 171 n.7, 94 S. Ct. at 993 n.7.
We find it particularly significant that Thomas did not protect his Internet
history from Olausen by maintaining a separate login name and password or by
encrypting his files. See United States v. Stabile, 633 F.3d 219, 232-33 (3d Cir.
2011) (holding that there was valid consent to search and seize computer hard
drives when the defendant did not password-protect the computers and the
computers were located in a common area of the house); United States v. King,
604 F.3d 125, 137 (3d Cir. 2010) (determining that a defendant who placed his
hard drive in a shared computer that lacked password protection assumed the risk
that the other user would consent to a search); Trulock v. Freeh, 275 F.3d 391, 403
(4th Cir. 2001) (holding that the defendant did not assume the risk that other users
of a shared computer would permit a third-party to search his password-protected
files); see also United States v. Andrus, 483 F.3d 711, 718-20 (10th Cir. 2007)
(stating that password protection and the location of the computer are factors in
determining who has authority to consent to a forensic search of the computer).
Without separate passwords, encryption, or like measures, Olausen and Thomas
shared access to the HP computer and all of its data, and by doing so, assumed the
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risk that the other would allow the police to view the computer’s contents. See
Matlock, 415 U.S. at at 171 n.7, 94 S. Ct. at 993 n.7.
F. Heightened Privacy Interest
We also hold that Olausen had the authority to consent to a forensic search
of the HP computer even in recognition that the Supreme Court, in Riley v.
California, noted a heightened privacy interest in cell phones—which the Supreme
Court called “minicomputers.” The Riley Court held that the search-incident-to-
arrest exception to the warrant requirement does not empower law enforcement
officers to search the contents of an arrestee’s cell phone. Riley, 573 U.S. at ___,
134 S. Ct. at 2484-85. It noted that the typical search incident to arrest turns up a
limited quantity of evidence—namely, those items that are on the arrestee’s person,
such as a wallet—whereas the search of cell phone data could reveal more
information than an “exhaustive search of a house.” Id. at ___, 134 S. Ct. at 2489-
91.
While this reasoning played a central role in the Supreme Court’s analysis of
the search-incident-to-arrest rule, we find it less critical to our analysis because the
Supreme Court has already approved of exhaustive searches in the consent-based
search context. In Matlock itself, for example, the Supreme Court upheld the
consent-based search of a home, including the defendant’s bedroom and closet.
415 U.S. at 166-67, 177, 94 S. Ct. at 991, 996. Again, the touchstone of the third-
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party consent rule is assumption of the risk, and a person sharing access to a
computer, just as a person sharing access to a home, exposes himself to a police
search based on another’s consent.
G. Summary: Fruits of the Search Warrant were Admissible
We hold that Olausen had authority to consent to the forensic search of the
shared HP computer in her home, and thus there was no Fourth Amendment
violation when Detective Monaghan conducted the OS Triage forensic scan based
on Olausen’s consent. Even assuming arguendo that Randolph applied to the
search, there was no Fourth Amendment violation because the officers stopped
their search when Thomas seemed to object.
Furthermore, the only information Detective Monaghan relied on in
obtaining the search warrant was data collected prior to Thomas’s objection.
Therefore, we hold that all of the fruits of the search following the issuance of the
warrant were admissible.7
H. Overturning or Extending Randolph
As a final note, we address Thomas’s argument that Randolph was wrongly
decided. Thomas believes that Randolph should be overturned and replaced with a
flexible rule that analyzes objective indicia of the defendant’s intent to keep
7
Because we find Olausen’s consent to the forensic search was valid until Thomas
objected, we need not examine whether any other warrant exception, such as plain view or
disappearing evidence, would have allowed the police to search the HP computer.
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materials private, not a bright-line rule based on the defendant’s ability to object to
a search. As Thomas acknowledges, however, Randolph is binding precedent, and
we are not free to overturn it and fashion a new rule in its place. See United States
v. Thomas, 242 F.3d 1028, 1035 (11th Cir. 2001) (stating the well-known rule that
we are bound to follow Supreme Court precedent “unless and until the Supreme
Court itself overrules th[e] decision”).8
Thomas also appears to argue that Randolph should be extended to require
the police to wake a sleeping but present co-occupant when there is evidence that
the co-occupant is the primary user of the effect (here a computer) or area to be
searched. We decline to extend Randolph in this fashion when the Supreme Court
made clear that Randolph was a narrow rule, simple and formulaic in application.
See Randolph, 547 U.S. at 122, 126 S. Ct. at 1528. The Supreme Court expressly
declined to require “the police to take affirmative steps to find a potentially
objecting co-tenant before acting on the permission they . . . already received.” Id.
at 122, 126 S. Ct. at 1527.
However, even if there should come a time when the Supreme Court extends
or overrules Randolph in the manner Thomas desires, as we explain below, our
result today would stand under the independent source doctrine, which provides
the basis for an independent and alternative ruling here.
8
Thomas raises this argument primarily to preserve it for further review.
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IV. INDEPENDENT SOURCE DOCTRINE
Under the independent source doctrine, when law enforcement officers use
evidence gathered after an arguable violation of the Fourth Amendment to secure a
warrant, this Court applies a two-part test to determine whether the evidence seized
pursuant to the warrant is admissible. United States v. Albury, 782 F.3d 1285,
1291 (11th Cir. 2015). First, this Court excises from the affidavit filed in support
of the warrant application any information gained from the illegal search and
determines whether the remaining information supports a finding of probable
cause. Id. Probable cause exists where, under the totality of the circumstances,
there is a fair probability that contraband or evidence of a crime will be found in a
particular place. Id. If the remaining information supports a finding of probable
cause, this Court next determines whether the officers’ decision to seek the warrant
was prompted by what they saw during the illegal search. Id. If the warrant would
have been sought without the illegality, then the evidence seized pursuant to the
warrant is admissible. Id. at 1291-92.
As the government argued below and now on appeal, the evidence seized
from Thomas’s computer pursuant to the search warrant was admissible under the
independent source doctrine.9 Thomas does not contend that Olausen lacked
9
The district court did not address the independent source doctrine, but “we may affirm
the denial of a motion to suppress on any ground supported by the record.” United States v.
Caraballo, 595 F.3d 1214, 1222 (11th Cir. 2010).
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authority to invite the police into the home and show them the two websites that
were on the computer screen. He objects only to Olausen’s authority to consent to
a forensic search of the HP computer. Thus, we excise from the warrant the results
of the OS Triage scan and the information that Detective Monaghan later gathered
from analyzing the results. See id. at 1291.
Removing these facts from the affidavit, there was still enough evidence to
support a finding of probable cause. See id. The affidavit provided that:
(1) Olausen observed her husband acting nervous and then discovered images
qualifying as child pornography on the HP computer; (2) the police observed on
the computer two websites containing child erotica, one of which had links with
names indicative of child pornography; and (3) based on training and experience,
the majority of people who view child pornography also collect child erotica, such
that the presence of child erotica suggests the presence of child pornography.
Based on these facts, there was a fair probability that child pornography
would be found on the HP computer. See id. The officers may not have been able
to corroborate Olausen’s statement that she originally viewed eight to ten websites
containing child pornography, but her statement was sufficiently reliable.
Specifically, she risked incriminating herself by contacting the police about illegal
images on a computer she used and, as the magistrate judge found, her written and
oral statements were always consistent on key points. Further, that Olausen saw
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eight to ten images that morning but only two were left when the police arrived
was not inconsistent. Rather, Olausen admitted that she used Google to locate the
Largo Police Department’s contact number, which apparently left only two of the
websites open.
As to the second prong of the independent source doctrine, Agent Monaghan
testified at the suppression hearing that he would have sought a search warrant in
this situation, regardless of the results of the OS Triage scan. Thus, law
enforcement would have sought the search warrant even without the fruits of the
allegedly illegal forensic search, and the evidence ultimately obtained pursuant to
the warrant was admissible under the independent source doctrine. See id. at 1291-
92.
V. CONCLUSION
For all of the foregoing reasons, we affirm the judgment of the district court.
AFFIRMED.
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