CONSTITUTIONAL LAW Consent SearchPosted by BS - 10/06/10 at 01:06 pm
State v. Bailey, 2010 ME 15, 989 A.2d 716, Gorman, J.
The defendant was charged with and convicted of a number of sexual contact crimes. The evidence supporting his guilt of those crimes was given to the police by the defendant after an officer had searched his computer and found child pornography on it. The officer who searched the computer represented to the defendant that he was looking into a problem in the neighborhood with people gaining access to others’ computers and that he wanted to make sure that the defendant did not have that problem. The defendant led him to his computer and booted it up for him, after which the officer found an icon associated with file sharing of child pornography and ultimately found files containing child pornography. The officer then questioned the defendant about the files, and he admitted that he had a “problem” with child pornography and consented to a search of his apartment, which revealed tapes of child pornography that the defendant had made himself.
The Law Court vacated the defendant’s conviction on the ground that the Superior Court erred in applying a subjective test in determining the scope of the defendant’s consent. The proper test was one of objective reasonableness. Thus, the defendant’s subjective knowledge that he had been using his neighbor’s router without permission was irrelevant to determining the scope of his consent. The question was whether a reasonable person observing the exchange between the officer and the defendant would have concluded that the defendant was consenting to a search for the purpose stated by the officer, that is, to determine whether someone had been accessing his computer without his permission. The search of all of the video files on the defendant’s computer exceeded the scope of that consent.
The Law Court also addressed a number of preliminary issues. It found that the defendant had standing to contest the search because he had a reasonable expectation of privacy in the computer and its contents when it was not being accessed through a peer-to-peer network. Case law has held that, under certain circumstances, people with files on their computer that can be accessed through a peer-to-peer network do not have a reasonable expectation of privacy in those files because they can be accessed by others.
The Law Court rejected the argument that the defendant did not consent to the search because he gave no verbal response. His non-verbal actions of leading the officer to his computer and booting it up for him supported a finding of consent to the initial search.
The Court also rejected the argument that the consent was void because the officer deceived the defendant by telling him that he was looking for problems involving accessing of other person’s computers rather than child pornography. The Court observed that, in other areas, courts have recognized the “practical necessity for the use of deception in criminal investigations,” but the effect of deception as to purpose is an issue of first impression. The Court adopted the test that whether police misrepresentation of the purpose of a search invalidates consent is a question of fact based on the totality of the circumstances. Here, the Court determined that the suppression court did not err in determining that the defendant voluntarily consented in light of all the circumstances.