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Wife's Consent to Search Computer for Child Porn OK, 11th Cir. Rules

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By Jonathan R. Tung, Esq. on April 08, 2016 7:00 AM

The Florida man who was sentenced to eight years for knowingly accessing a computer with intent to view child pornography got no relief from the Eleventh Circuit, which recently affirmed the lower court's decision.

The decision expands current law as to who may consent to give access to your materials in the face of a warrantless search.

Wife Gave Password Access

Eric Thomas's wife accessed the couple's computer and found child pornography. She called the local police and gave them the password to access the computer. Police analysis uncovered over 850 deleted files of child pornography and a deleted Internet search history. Eventually, Thomas was indicted and convicted for child pornography related crimes.

Thomas appealed his conviction on several Fourth Amendment theories including an argument that his wife could not render consent to search his files. On appeal, the circuit court noted that it was "particularly significant" that Thomas did not partition his files as his own on the couple's computer with a separate login, password, or encryption.

Georgia v Randolph: To Sleep, to Dream

The circuit did not analyze whether or not Georgia v. Randolph would have mattered had Thomas been there to object. In Randolph, the court found that if two co-occupants are present, one occupant's objection to a warrantless search will generally trump the consent of the other. In the Thomas case, Eric Thomas was asleep at the time of the police arriving at his residence.

But the circuit did mention that even if Randolph were extended to require Thomas's being woken up before seizing the computer, the search would have still been cured under the "independent source doctrine," the exclusionary rule exemption that holds that probable cause before the Fourth Amendment violation can still support a lawful search.

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