U.S. v. Andrus

• Decision Date: 25 April 2007
• Docket Number: No. 06-3094.,06-3094.
• Citation: 483 F.3d 711
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ray ANDRUS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

483 F.3d 711

UNITED STATES of America, Plaintiff-Appellee, v. Ray ANDRUS, Defendant-Appellant.

No. 06-3094.

United States Court of Appeals, Tenth Circuit.

April 25, 2007.

Melissa Harrison, Assistant Federal Public Defender (David J. Phillips, Federal Public Defender, with her on the briefs), Kansas City, KS, for Defendant-Appellant.

Leon J. Patton, Assistant United States Attorney (Eric F. Melgren, United States Attorney, with him on the brief), Kansas City, KS, for Plaintiff-Appellee.

Before MURPHY, McKAY, and GORSUCH, Circuit Judges.

MURPHY, Circuit Judge.

I. Introduction

Defendant-Appellant Ray Andrus was indicted on one count of possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B). Agents of the Bureau of Immigration and Customs Enforcement ("ICE") found pornographic images of children on Andrus' home computer after Andrus' father, Dr. Bailey Andrus, consented to a search of the Andrus home and Andrus' computer. Andrus moved to suppress the inculpatory evidence found on his computer during the search, arguing Dr. Andrus' consent was not voluntary and that Dr. Andrus lacked both actual and apparent authority to consent to a search of the computer. The district court determined Dr. Andrus' consent was voluntary and that Dr. Andrus had apparent authority to consent to the search. The district court, accordingly, denied Andrus' motion to suppress.

After the district court's denial of his motion, Andrus pleaded guilty to the charge against him but retained the right to appeal the district court's denial of his suppression motion. He was sentenced to seventy months' imprisonment followed by three years' supervised release. In this appeal, Andrus challenges the district court's denial of his suppression motion. Exercising jurisdiction under 28 U.S.C. § 1291, this court concludes Dr. Andrus had apparent authority to consent to a search of Ray Andrus' computer. We therefore affirm the district court's denial of Andrus' motion to suppress.

II. Background

Federal authorities first became interested in Ray Andrus during an investigation of Regpay, a third-party billing and credit card aggregating company that provided subscribers with access to websites containing child pornography. The investigation of Regpay led to an investigation of Regpay subscribers. One of the subscribers providing personal information and a credit card number to Regpay was an individual identifying himself as "Ray Andrus" at "3208 W. 81st Terr., Leawood, KS." The Andrus Regpay subscription was used to access a pornographic website called www.sunshineboys.com. Record checks with the drivers license bureau and post office indicated Ray Andrus, Bailey Andrus, and a third man, Richard Andrus, all used the West 81st Terrace address. The credit card number provided to Regpay was determined to belong to Ray Andrus. The email address provided to Regpay, "bandrus@kc.rr.com," was determined to be associated with Dr. Bailey Andrus.

The federal investigation into the Andrus household began in January 2004 and focused primarily on Ray Andrus. At least one agent conducted surveillance on the Andrus residence and knew Ray Andrus worked at the Shawnee Mission School. Eight months into the investigation, agents believed they did not have enough information to obtain a search warrant for the Andrus residence. They, therefore, attempted to gather more information by doing a "knock and talk" interview with the hope of being able to conduct a consent search. ICE Special Agent Cheatham and Leawood Police Detective Woollen arrived at the Andrus house at approximately 8:45 a.m. on August 27, 2004. ICE Special Agent Kanatzar, a forensic computer expert, accompanied Cheatham and Woollen to the residence, but waited outside in his car for Cheatham's authorization to enter the premises.

Dr. Andrus, age ninety-one, answered the door in his pajamas. Dr. Andrus invited the officers into the residence and, according to the testimony of Cheatham and Woollen, the three sat in Dr. Andrus' living room, where the officers learned that Ray Andrus lived in the center bedroom in the residence. In response to the officers' questions, Dr. Andrus indicated Ray Andrus did not pay rent and lived in the home to help care for his aging parents. Cheatham testified he could see the door to Ray Andrus' bedroom was open and asked Dr. Andrus whether he had access to the bedroom. Dr. Andrus testified he answered "yes" and told the officers he felt free to enter the room when the door was open, but always knocked if the door was closed.

Cheatham asked Dr. Andrus for consent to search the house and any computers in it. Dr. Andrus signed a written consent form indicating his willingness to consent to a premises and computer search. He led Cheatham into Ray Andrus' bedroom to show him where the computer was located. After Dr. Andrus signed the consent form, Cheatham went outside to summon Kanatzar into the residence. Kanatzar went straight into Andrus' bedroom and began assembling his forensic equipment. Kanatzar removed the cover from Andrus' computer and hooked his laptop and other equipment to it. Dr. Andrus testified he was present at the beginning of the search but left the bedroom shortly thereafter. Kanatzar testified it took about ten to fifteen minutes to connect his equipment before he started analyzing the computer. Kanatzar used EnCase forensic software to examine the contents of the computer's hard drive. The software allowed him direct access to the hard drive without first determining whether a user name or password were needed. He, therefore, did not determine whether the computer was protected by a user name or password prior to previewing the computer's contents. Only later, when he took the computer back to his office for further analysis, did he see Ray Andrus' user profile.¹

Kanatzar testified he used EnCase to search for .jpg picture files.² He explained that clicking on the images he retrieved allowed him to see the pathname for the image, tracing it to particular folders on the computer's hard drive. This process revealed folder and file names suggestive of child pornography. Kanatzar estimated it took five minutes to see depictions of child pornography. At that point, however, Cheatham came back into the room, told Kanatzar that Ray Andrus was on his way home, and asked Kanatzar to stop the search. Kanatzar testified he shut down his laptop computer and waited in Ray Andrus' bedroom with the computer until Cheatham came back into the room to tell him Andrus had personally consented to the search and Kanatzar could continue.

Cheatham testified he asked Kanatzar to stop the computer search because of information revealed through his continuing conversation with Dr. Andrus. Cheatham explained he asked Dr. Andrus if there were other computers in the house and Dr. Andrus replied the computer in Ray Andrus' room was the only one. Cheatham then asked Dr. Andrus about the internet service and Dr. Andrus indicated it was part of the cable package. At that point, Ray Andrus was telephoned at his workplace. There is conflicting evidence concerning whether Dr. Andrus or Cheatham suggested calling Andrus. Dr. Andrus dialed Andrus' work number, spoke briefly with his son, and handed the phone to Cheatham.³ At the conclusion of his conversation with Cheatham, Ray Andrus agreed to return to the Andrus residence. He arrived ten to twenty minutes later. He parked his car in the garage and was met by Cheatham, Woollen, and ICE Agent Smith, who arrived on the scene after the agents' initial entry into the Andrus residence. Cheatham testified he told Andrus that officers had already been inside the residence and had looked through his room. Cheatham's written report also indicates he told Andrus he had a computer technician at the residence and that Dr. Andrus had consented to a search of the house and the computer in Andrus' bedroom. Cheatham said he then verbally asked Andrus for consent to search his room and his computer. After obtaining Andrus' consent, Cheatham went back inside to authorize Kanatzar to continue his search.

Ray Andrus was indicted on one count of knowingly and intentionally possessing pornographic images of minors in violation of 18 U.S.C. § 2252(a)(4)(B).⁴ Claiming a Fourth Amendment violation, Andrus moved to suppress the evidence gathered from his residence and his computer. In the memorandum supporting his motion to suppress, Andrus argued: (1) Dr. Andrus' consent was not voluntary; (2) Dr. Andrus lacked actual authority to consent to a search of the computer, even if he had authority to consent to a search of Ray Andrus' room; and (3) Dr. Andrus could not reasonably be seen as having authority to consent to a search of the computer and, thus, lacked apparent authority.

The district court held an evidentiary hearing at which Detective Woollen, Agent Cheatham, Agent Kanatzar, Agent Smith, Dr. Andrus, and Ray Andrus testified. At the conclusion of the hearing, the court determined Dr. Andrus' consent was voluntary, but concluded Dr. Andrus lacked actual authority to consent to a computer search. The court based its actual authority ruling on its findings that Dr. Andrus did not know how to use the computer, had never used the computer, and did not know the user name that would have allowed him to access the computer.

The district court then proceeded to consider apparent authority. It indicated the resolution of the apparent authority claim in favor of the government was a "close call." The court concluded the agents' belief that Dr. Andrus had, authority to consent to a search of the computer was reasonable up until the time they learned there was only one computer in the house. Because Cheatham instructed Kanatzar to suspend the search at that point, there was no Fourth Amendment violation. The court based its conclusion that Dr. Andrus had apparent authority on the following factual findings: (1) the email address...