United States v. Donald Tosti
2013 WL 5433756, 733 F.3d 816, 2013 U.S. App. LEXIS 20008 (2013)
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Rule of Law:
A government search does not violate the Fourth Amendment if its scope does not exceed that of a prior search by a private party who has already extinguished the defendant's expectation of privacy. Additionally, a warrantless search is permissible if based on consent from a third party whom police reasonably believe has common authority over the property.
Facts:
- In January 2005, Donald Thomas Tosti brought his computer to a CompUSA store for repairs, understanding that a technician would need to inspect it.
- While working on the computer, CompUSA technician Seiichi Suzuki discovered files containing child pornography and contacted the police.
- When police arrived, Suzuki showed them the images, which were visible as thumbnails. An officer directed Suzuki to open the images in a larger slideshow format.
- Another officer scrolled through the thumbnail images that Suzuki had already opened.
- In October 2009, Tosti's estranged wife, Annette Tosti, was living in their shared home when Tosti asked her to find financial records in a room he used as an office.
- While looking for the records, Ms. Tosti discovered hard drives and a computer containing what appeared to be pornography.
- Ms. Tosti contacted the FBI and voluntarily turned over the items, signing a consent form stating she and her husband both used them.
- Ms. Tosti informed the agent she had full access to the residence, including the office, which had no locks or other signs restricting her access.
Procedural Posture:
- The United States prosecuted Tosti in federal district court for possession of child pornography.
- Tosti filed motions to suppress evidence obtained from the 2005 search of his computer at CompUSA and the 2009 search of his home office.
- The district court denied the motions to suppress the key evidence at issue.
- After a bench trial on stipulated facts, the district court found Tosti guilty.
- Tosti (appellant) appealed his conviction and sentence to the United States Court of Appeals for the Ninth Circuit, arguing the searches were unconstitutional.
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Issue:
Does a warrantless government search violate the Fourth Amendment when it is based on (1) an examination of digital files that does not exceed the scope of a prior private search or (2) the consent of a spouse who has apparent authority over the premises and items searched?
Opinions:
Majority - Callahan, Circuit Judge
No. A warrantless government search does not violate the Fourth Amendment when it does not expand upon a prior private search and is lawful when conducted pursuant to the consent of a third party with apparent authority. The 2005 search was lawful because Tosti's expectation of privacy in the images was extinguished by the private search conducted by the CompUSA technician, and the police did not exceed the scope of that private search. Merely enlarging the thumbnails that the technician had already viewed and identified as contraband did not reveal any new private information. The 2009 search was lawful under the apparent authority doctrine. It was objectively reasonable for the FBI agent to believe Ms. Tosti had the authority to consent to the search because she was his wife, shared the residence, stated she had full access to the office, and there were no objective indicators like locks to suggest her access was restricted.
Analysis:
This decision solidifies the application of the private search doctrine in the digital age, clarifying that minor manipulations of already-discovered digital evidence, such as enlarging an image, do not necessarily exceed the scope of the initial private search if no new private information is revealed. It also provides a straightforward application of the apparent authority doctrine to shared marital residences, emphasizing that objective indicators of access and control outweigh any private, unstated agreements between cohabitants. The ruling reinforces that law enforcement can rely on the reasonable appearance of authority when obtaining consent, which simplifies the inquiry for officers in the field when dealing with shared premises.
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