United States v. Stanley

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 10-50206
Plaintiff-Appellee,
D.C. No.
v.
 2:09-cr-00486-
KEVIN LLOYD STANLEY, AKA ODW-1
Kevin Stanley,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Central District of California
Otis D. Wright, District Judge, Presiding

Argued and Submitted
June 7, 2011—Pasadena, California

Filed August 2, 2011

Before: Robert R. Beezer, Stephen S. Trott, and
Pamela Ann Rymer, Circuit Judges.

Opinion by Judge Trott;
Dissent by Judge Beezer

9915
9918 UNITED STATES v. STANLEY
COUNSEL

Carlton F. Gunn, Federal Public Defender’s Office, Los
Angeles, California, for the defendant-appellant.

Yvonne L. Garcia, United States Attorney’s Office, Los
Angeles, California, for the plaintiff-appellee.

OPINION

TROTT, Circuit Judge:

Kevin Stanley conditionally pleaded guilty pursuant to Fed-
eral Rule of Criminal Procedure 11(a)(2) to one count of pos-
session of child pornography, in violation of 18 U.S.C.
§ 2252A(a)(5)(B). As part of his plea, he reserved the right to
appeal the denial of his motion to suppress the offending
material located during a search of his computer, a search
conducted by federal agents led by Agent Michael Prado pur-
suant to the alleged consent of his one-time friend and now
fiancee, Tiana Stockbridge. We have jurisdiction over this
timely appeal in accord with 28 U.S.C. § 1291, and we affirm.

I

The Computer’s History

The computer on which Stanley kept his collection of child
pornography had a complicated history of ownership, cus-
tody, and control. During the time Stanley and his girlfriend
Tiana Stockbridge lived together before he was imprisoned in
2004 for child molestation, Stockbridge and Stanley jointly
owned and used the computer. Each had his and her own
directories and folders on the computer which were tied to
individual user names, “Kevin” for Stanley and “Tiana” for
Stockbridge. Stanley had his material “password-protected”
 UNITED STATES v. STANLEY 9919
during that time and took steps to hide his cache of child por-
nography in the computer’s subsystems.

We predicate our statement that the computer was jointly
owned on the district court’s factual finding that Stockbridge
was a “co-owner,” a finding that necessarily rejected Stan-
ley’s and Stockbridge’s protestations to the contrary. The dis-
trict court’s findings regarding the computer are supported by
(1) Stockbridge’s earlier statements to Agent Prado and to
David Trimm, (2) Trimm’s statements to Agent Prado, and
(3) Stanley’s original statement to Agent Prado that he and
Stockbridge jointly owned it. More about this issue in Part IV
of this opinion.

When Stanley and Stockbridge ended their relationship in
2004, Stanley moved and took the computer with him. Subse-
quently, he removed the password-protection from the com-
puter, leaving Stockbridge’s files intact.

In 2004, after Stanley was arrested on state child molesta-
tion charges, Stockbridge went to Stanley’s residence and
took possession of the computer, at the behest of Stanley’s
parents. Stanley acquiesced in her acquisition and possession
of it, expecting that he would get it back after serving his
prison sentence, presumably with the child pornography intact
— which he says caused him to engage in conduct resulting
in his conviction of child molestation. Neither Stanley nor his
parents placed any restrictions on Stockbridge’s use of or
access to the computer.

About one and one-half years later, the computer “crashed”
and ceased to function, as computers are wont to do. Stock-
bridge gave it to a friend to fix, but he failed to do so. Thus,
in early 2006, Stockbridge gave it to another friend to repair,
one David Trimm. By education and experience Trimm was
qualified to take on this task.

As Trimm examined the unprotected contents of the com-
puter, he noticed files on it clearly suggesting child pornogra-
9920 UNITED STATES v. STANLEY
phy. This discovery posed serious problems for Trimm
because he was on federal probation himself for a drug fel-
ony, so he called Stockbridge, advised her of his predicament,
and asked her permission to turn the computer over to his pro-
bation officer. According to Trimm, she gave him permission
to do so, and he did.

Next, U.S. Probation Officer Daniel Vianello called Immi-
gration and Customs Enforcement Special Agent Michael
Prado who handles these matters and told him that Trimm,
one of his supervisees, had given him a computer hard drive
that possibly contained child pornography.

A few days later, Agent Prado met with Trimm, who filled
him in on the computer’s history and what he believed it con-
tained. Trimm told Agent Prado that Stanley and Stockbridge
were joint owners of the device. Agent Prado then took pos-
session of it.

The next day, Agent Prado contacted Stockbridge by tele-
phone. His purpose was to determine — as Trimm had told
him — that she was a joint owner of the computer and thus
could consent to its search. According to Agent Prado’s sworn
declaration, Stockbridge confirmed that she “jointly owned”
it and consented to its search for illicit material. She said (1)
that because of his conviction for child molestation, she was
concerned that Stanley was involved in the possession and
distribution of child pornography, and (2) that she wished to
have it examined to see if there was illegal material on it. She
was correct in her assumptions, and the contents of the com-
puter became the basis for Stanley’s conditional plea and con-
viction.

II

Consent to Search1
1
Although Agent Prado believed he had appropriately secured Stock-
bridge’s consent to search the computer, “in an abundance of caution” he
 UNITED STATES v. STANLEY 9921
A.

The district court denied Stanley’s motion to suppress his
cache of illicit material. In so ruling, the court implicitly and
understandably rejected Stockbridge’s declaration prepared
for the suppression hearing. In the declaration, she partially
contradicted Agent Prado’s recitation of their telephone con-
versation. Now, she could not remember whether or not she
consented to the search, but she denied telling Agent Prado
that she suspected Stanley of harboring pornography.

Stockbridge’s credibility in connection with her declaration
was seriously — if not fatally — undermined by her recent
engagement to be married to Stanley, his record as a child
molester notwithstanding. The circumstance of her engage-
ment was brought to the court’s attention both in her declara-
tion and by the prosecution during its argument on the issue
of consent. This factor plainly falls into the category of poten-
tial witness bias.

The Supreme Court has said that

Bias is a term used in the “common law of evidence”
to describe the relationship between a party and a
witness which might lead the witness to slant,
unconsciously or otherwise, his [or her] testimony in
favor of or against a party. . . . Proof of bias is
almost always relevant because the [factfinder] and

then secured a federal search warrant authorizing a forensic examination
of it. Agent Prado gave the computer and a copy of the warrant to Special
Agent Ulises Solorio for just such an examination. But because of the
press of official business, Agent Solorio did not examine the computer
until after the warrant expired. However, this circumstance is not germane
to our disposition of this case, because as Stanley’s counsel conceded dur-
ing oral argument, if the agents had consent, then the warrant is irrelevant.
Agent Solorio was aware of Stockbridge’s consent when he finally
searched the computer and found Stanley’s contraband.
9922 UNITED STATES v. STANLEY
weigher of credibility, has historically been entitled
to assess all evidence which might bear on the accu-
racy and truth of a witness’ testimony.

United States v. Abel, 469 U.S. 45, 52 (1984). The Court said
also that “[a] successful showing of bias on the part of a wit-
ness would have a tendency to make the facts to which he [or
she] testified less probable in the eyes of the [factfinder] than
it would be without such testimony.” Id. at 51.

After a lengthy hearing which included the testimony of
Agent Prado and Stanley plus the admission in evidence of
Stockbridge’s declaration as direct testimony, the court made
these findings of fact:

[F]rom all objective indicia, the government was cer-
tainly reasonable in concluding that . . . Stockbridge
had authority to consent and, in fact, did give con-
sent and that the search was done pursuant to that
consent.

The court also held that Stanley had no reasonable expecta-
tion of privacy in the computer while for two years it was in
Stockbridge’s possession and control, and found that she was
a “co-possessor, a co-owner, a common user and therefore
had the authority to give consent to the search.” The factual
record sufficiently supports the district court’s findings and
conclusions.

B.

Stanley argues unconvincingly that because his porno-
graphic material was “password-protected” before he went to
prison, and that prior to going to prison his files and hers were
segregated from each other, Stockbridge did not and could not
have had the authority two years later to consent to the search.
This argument fails. Among other deficiencies in this argu-
ment, when the computer came into Stockbridge’s sole pos-
 UNITED STATES v. STANLEY 9923
session and custody after Stanley went to prison, his material
was no longer password-protected, as his attorney conceded
during oral argument. Cf. Trulock v. Freeh, 275 F.3d 391, 403
(4th Cir. 2001) (although a third party may have had authority
to consent to a general search of a jointly-used computer, that
authority did not extend to another user’s password-protected
files).

Moreover, at the time she consented to the search, Stock-
bridge had had total and unfettered control of the unprotected
computer for all purposes for two uninterrupted years during
Stanley’s time in prison, as demonstrated by her statements to
Agent Prado and her delivery of it to two different friends for
repair. Stanley’s own testimony confirms this arrangement:

Q. (to Stanley) And with respect to the computer that
both you and Ms. Stockbridge used, did you at times
allow Ms. Stockbridge to access files in your portion
of the computer?

A. (by Stanley) Yes.

Q. And was your portion of the computer password
protected?

A. Earlier on it was but not at the time.

Q. Not at what time?

A. The time when I moved to Porterville, California.

Q. So even though you placed your trust in Ms.
Stockbridge, she could have accessed your files
when you were in prison?

A. Yes.
9924 UNITED STATES v. STANLEY
C.

[1] “A third party has actual authority to consent to a
search of a container if . . . the third party has mutual use of
the container and joint access or control over [it.]” United
States v. Ruiz, 428 F.3d 877, 880 (9th Cir. 2005) (quoting
United States v. Fultz, 146 F.3d 1102, 1105 (9th Cir. 1998)).
Although Stanley cannot be said under these circumstances to
have abandoned the computer, he certainly cannot have enter-
tained a legitimate expectation of privacy in it once it was
delivered unconditionally and without password-protection to
its co-owner, knowing that she could access his files. As the
Supreme Court held in United States v. Matlock, 415 U.S.
164, 170 (1974), “the consent of one who possesses common
authority over premises or effects is valid as against the
absent, nonconsenting person with whom that authority is
shared.” Expanding on this holding, the Court also said,

Common authority is, of course, not to be implied
from the mere property interest a third party has in
the property. The authority which justifies the third-
party consent does not rest upon the law of property,
with its attendant historical and legal refinements,
but rests rather on mutual use of the property by per-
sons generally having joint access or control for
most purposes, so that it is reasonable to recognize
that any of the co-inhabitants has the right to permit
the inspection in his own right and that the others
have assumed the risk that one of their number might
permit the common area to be searched.

Id. at 172 n.7 (internal citations omitted). We reiterated this
principle in United States v. Brannan, 898 F.2d 107, 108 (9th
Cir. 1990), saying, “ ‘Common authority’ rests upon mutual
use of the property by those generally having joint access or
control such that it is reasonable to recognize that each of the
parties has the right to permit inspection and has assumed the
risk that the other party might consent to a search.”
 UNITED STATES v. STANLEY 9925
[2] Finally, we follow the Supreme Court’s guidance in
Frazier v. Cupp, 394 U.S. 731 (1969). In that case, Frazier
and his cousin Rawls had both been using Frazier’s duffle
bag. Id. at 740. In dismissing Frazier’s Fourth Amendment
claim that Rawls had no authority to consent to a search of the
bag, which turned up incriminating evidence against Frazier,
the Court said,

Petitioner argues that Rawls only had actual permis-
sion to use one compartment of the bag and that he
had no authority to consent to a search of the other
compartments. We will not, however, engage in such
metaphysical subtleties in judging the efficacy of
Rawls’ consent. Petitioner, in allowing Rawls to use
the bag and in leaving it in his house, must be taken
to have assumed the risk that Rawls would allow
someone else to look inside. We find no valid search
and seizure claim in this case.

Id. Here, we conclude similarly that when Stanley and his par-
ents turned over possession, use, and control of the computer
to Stockbridge, Stanley — like Frazier — assumed the risk
that she would allow someone else to look inside.

III

Apparent Authority

[3] In any event, even if we were to agree with our dissent-
ing colleague that Stockbridge was not a co-owner of the
computer, the district court also held that Agent Prado “was
certainly reasonable in concluding” “from all objective indi-
cia” in the record that “Stockbridge had authority to consent.”
In other words, the doctrine of apparent authority suffices in
Fourth Amendment terms to render this search reasonable.2
2
Given the district court’s explicit conclusion in support of its denial of
Stanley’s motion to suppress, Stanley’s objection to our consideration of
the doctrine of apparent authority is not well-taken.
9926 UNITED STATES v. STANLEY
On de novo review of this mixed question of fact and law, we
agree.

[4] The Supreme Court spelled out the relevant inquiry in
Illinois v. Rodriguez, 497 U.S. 177, 188 (1990):

As with other factual determinations bearing upon
search and seizure, determination of consent to enter
must “be judged against an objective standard:
would the facts available to the officer at the
moment . . . ‘warrant a man of reasonable caution in
the belief’ ” that the consenting party had authority
over the premises?

(quoting Terry v. Ohio, 392 U.S. 1, 21-22 (1968) (omission
in original).

[5] Here, without revisiting them at this juncture, the total-
ity of the facts and circumstances known to Agent Prado at
the time of the search satisfy this test. As in the case of United
States v. Buckner, 473 F.3d 551 (4th Cir. 2007), Agent Prado
and his assistants “did not have any indication” from Stock-
bridge, “or any of the attendant circumstances,” that Stanley’s
child pornography files were password-protected. Id. at 555.
Indeed, they were not. Thus, the agents were justified in rely-
ing on Stockbridge’s consent.

IV

The Dissenting Opinion

[6] Our respected colleague’s dissenting opinion takes
issue with the district court’s resolution in favor of the prose-
cution of competing factual scenarios, one from the prosecu-
tion, and another from the defense. The dissenting opinion
overlooks a difference between our legal responsibility as an
appellate court, on one hand, and the factfinding prerogative
of a trial court, on the other. Our function does not entail
 UNITED STATES v. STANLEY 9927
retrying the factual issues in a case — here, primarily (1)
whether Stockbridge was the co-owner in possession of the
computer, (2) whether she factually consented to the search of
the computer, or not, and (3) whether she displayed the indi-
cia of authority to do so. On appeal, we accept a district
court’s findings of fact unless they are clearly erroneous. As
we said in Rand v. Rowland, 154 F.3d 952, 957 n.4 (9th Cir.
1998) (en banc) (quoting Epstein v. MCA, Inc., 126 F.3d
1235, 1253 n.18 (9th Cir. 1997)), “[f]indings of fact are made
on the basis of evidentiary hearings and usually involve credi-
bility determinations, which explains why they are reviewed
deferentially under the clearly erroneous standard.” This rule
follows Federal Rule of Civil Procedure 52(a), which pro-
vides that “[f]indings of fact, whether based on oral or other
evidence, must not be set aside unless clearly erroneous, and
the reviewing court must give due regard to the trial court’s
opportunity to judge the witnesses’ credibility.” For these rea-
sons, the Supreme Court has given us this directive:

But when a trial judge’s finding is based on his deci-
sion to credit the testimony of one of two or more
witnesses, each of whom has told a coherent and
facially plausible story that is not contradicted by
extrinsic evidence, that finding, if not internally
inconsistent, can virtually never be clear error.

Anderson v. Bessemer City, 470 U.S. 564, 575 (1985). See
also United States v. Working, 224 F.3d 1093, 1102 (9th Cir.
2000) (en banc) (“ ‘Where there are two permissible views of
the evidence, the factfinder’s choice between them cannot be
clearly erroneous.’ ”) (quoting Anderson, 470 U.S. at 574).

[7] As applied to this case, the dissent’s reliance on “facts”
plainly rejected by the district court — and for good reason
— is misplaced. Invoking what Stockbridge claimed in her
declaration is now irrelevant, as are her denials and contradic-
tions of Agent Prado’s testimony prepared for the suppression
hearing. The district court plainly did not credit her testimony.
9928 UNITED STATES v. STANLEY
We do not comprehend the import of the dissent’s statement
that “[b]ecause the government chose not to cross-examine
Stockbridge, her testimony went unchallenged.” This asser-
tion trespasses upon the factfinding and credibility preroga-
tives of the district court and is not consistent with Rule 52(a),
Anderson v. Bessemer City, and our own standard of review
jurisprudence. Moreover, the government did challenge her
testimony — with contradictory evidence from Agent Prado.
We understand how the district court looked askance at her
newly-minted declaration in favor of her recently engaged to
be spouse.

AFFIRMED.

BEEZER, Circuit Judge, dissenting:

The court provides two separate rationales for affirming the
district court’s denial of Stanley’s motion to suppress: (1) the
district court properly concluded that Stanley’s ex-girlfriend
at the time, Tiana Stockbridge (“Stockbridge”), had common
authority to consent to the search, or apparent authority to do
so; and (2) the district court properly concluded that Stanley
had no expectation of privacy in the computer’s contents. I
respectfully disagree.

In this case, law enforcement agents relied on an invalid
warrant to search a criminal defendant’s computer without his
consent. The government’s reliance on the defendant’s ex-
girlfriend’s consent is terribly flawed and cannot justify an
otherwise invalid search under the Fourth Amendment. As I
explain below, the district court’s factual findings were
clearly erroneous.

Accordingly, I would reverse the district court’s decision
not to suppress this evidence.
 UNITED STATES v. STANLEY 9929
I

Consent

The “cardinal principle” in Fourth Amendment search and
seizure jurisprudence is that “ ‘searches conducted outside the
judicial process, without prior approval by judge or magis-
trate, are per se unreasonable under the Fourth Amend-
ment.’ ” Mincey v. Arizona, 437 U.S. 385, 390 (1978)
(quoting Katz v. United States, 389 U.S. 347, 357 (1967)
(footnotes omitted)). This rule, however, is not ironclad, and
like most constitutional edicts, there are exceptions. Id. One
such exception to the warrant requirement is consent, given
either by the defendant himself or by a third party who has
“common authority” over the property. Schneckloth v. Busta-
monte, 412 U.S. 218, 222 (1973). But if the government
wishes to introduce evidence seized during a warrantless
search, it has the burden of demonstrating that an exception
to the cardinal principle exists. Id.; see also Vale v. Louisiana,
399 U.S. 30, 34 (1970); United States v. Davis, 332 F.3d
1163, 1168 n.3 (9th Cir. 2003).

Because Stanley himself never gave consent to search his
computer, the government had the burden to prove that a
third-party — in this case, Stockbridge, who was Stanley’s
ex-girlfriend at the time — had actual or apparent authority to
consent to the search, and did in fact consent to the search.

For her part, Stockbridge unequivocally denies that she
ever provided consent in the first place, an assertion that the
court dismisses out of hand.1 But even if Stockbridge did con-
sent to the search, the question remains whether she had the
authority do so. The court concludes that she did for three rea-
sons. First, the court concludes that Stockbridge was a co-
1
Although Stockbridge was present and available for cross-examination,
the government decided not to question her, meaning her testimony went
uncontested.
9930 UNITED STATES v. STANLEY
owner of the computer, which enabled her to consent to the
search. Second, even if Stockbridge was not a co-owner, the
court argues that her joint-use of the computer gave her com-
mon authority to consent to a search of its files. And finally,
even if Stockbridge was not a co-owner or did not have com-
mon authority to consent, the court believes that the agents
properly relied upon her apparent authority to consent to the
search.

As explained below, the court’s reasoning finds no support
either in the record or in this court’s precedent.

A. Co-Ownership

The court writes that while Stanley and Stockbridge lived
together (before they broke up), they “jointly owned and used
the computer.” This claim cannot be squared with the facts.
To begin, there is no factual basis for this conclusion any-
where in the record. The district court’s conclusion that
Stockbridge was a co-owner was clearly erroneous.

Between 1996 and 2004, Stanley and Stockbridge were in
a romantic relationship. During their relationship, they lived
together in Barstow, California. In 2001, as a gift, Stanley’s
father gave him the laptop computer in question. There is no
evidence whatsoever that Stanley’s father gave the laptop to
both of them; indeed, it is clear from the record that the gift
was for Stanley alone.

Although the computer was his alone, Stanley allowed
Stockbridge to use the laptop while they were living together.
However, Stanley made sure to limit Stockbridge’s access.
Two different user accounts were set up on the computer, and
during their cohabitation Stanley’s account was password pro-
tected, while Stockbridge’s account was not password pro-
tected. Stockbridge only used the computer to store her music
files; she did not access Stanley’s files because she did not
 UNITED STATES v. STANLEY 9931
believe she had the right to do so. Stanley also did not believe
Stockbridge had any right to access his files.

In 2004 the couple broke up, and Stanley moved to Porter-
ville, California, taking his computer with him. After he
stopped living with Stockbridge, Stanley removed the pass-
word protection that locked his user account.

Later that year, while he was living in Porterville, Stanley
was arrested and sent to state prison for an unrelated criminal
charge. Before his arrest Stanley kept his personal property
(including his laptop computer) at a friend’s house, where he
had been staying. After his arrest, the property was moved to
Stanley’s parents’ home. While Stanley was in prison Stock-
bridge went to his parents’ home and took possession of some
of his property to hold while Stanley was in prison, including:
music discs, video games, clothing, and his laptop computer.
Both agree that Stockbridge was to hold Stanley’s property
while he was in prison, but that he was to receive all of it back
once he was released.

But because Stanley did not anticipate his arrest, he did not
have a chance to reinstall his password before entering prison.
As a result, when Stockbridge took possession of the com-
puter, Stanley’s files and directories were not password pro-
tected. However, the computer still had two separate accounts
that Stanley had created for himself and Stockbridge.

Two critical facts from this record demonstrate that Stanley
did not co-own his computer with Stockbridge. First, the com-
puter was a gift to Stanley from his father. Second, Stanley
affirmed his sole ownership by taking the computer with him
when the couple split up and he moved to Porterville. The dis-
trict court never explains how an ex-girlfriend can jointly own
a gift that her ex-boyfriend’s father gave to him, not to her.

Additionally, even when the couple was living together,
Stanley only gave Stockbridge limited access to the computer.
9932 UNITED STATES v. STANLEY
Throughout their joint use, Stanley and Stockbridge had an
understanding that Stockbridge could not access Stanley’s
files; there is no evidence that this understanding changed
when Stanley went to prison. If she were a co-owner, why
would her access be so limited?

Given these facts, it’s hard to find that Stockbridge was a
co-owner. Instead of considering these details before settling
on its co-ownership theory, the court’s decision relies almost
entirely on Agent Prado’s declaration. However, in his testi-
mony, Agent Prado never said that Stockbridge used the word
“owned,” and Agent Prado himself equivocated on whether
he used the word “ownership,” or whether he used the word
“possess” or “use” when he was questioning Stockbridge.
That Agent Prado later clarified that he “most likely” used
“ownership” is not particularly availing, especially in light of
Stockbridge’s unequivocal, and uncontested, statements to the
contrary.

Additionally, the court’s reliance on Agent Prado’s testi-
mony is out of context. The court’s decision relies on Agent
Prado’s use of the following phrase: “the computer [Stanley]
jointly owned with Tiana Stockbridge.” But the entire state-
ment is part of Agent Prado’s declaration about what Stanley
admitted and includes Agent Prado’s characterization of own-
ership, not Stanley’s. The entire statement, in context, reads
as follows: “Defendant used the computer he jointly owned
with Tiana Stockbridge to view images of child pornogra-
phy.” If one were to read the whole sentence, and not just that
isolated phrase, one would discover that the operative declara-
tion there is what Stanley admitted he used the computer for
— that is, he confessed to storing child pornography on it —
not who owned the computer. By selectively reading the state-
ment out of context, the court fails to realize that the owner-
ship reference is an after-the-fact characterization that Agent
Prado inserted himself.

Essentially, the government wants us to believe that Stan-
ley co-owned a computer that his father gave to him, with his
 UNITED STATES v. STANLEY 9933
ex-girlfriend who he hadn’t lived with for years, and who was
currently dating somebody else. The absurdity of this logic
would be comical if it were not so tragic for Mr. Stanley and
so detrimental to this court’s future precedent.

The co-ownership theory isn’t just clearly erroneous — it’s
patently false. Because the record does not support a co-
ownership theory of consent, the only way this warrantless
search can pass muster under the Fourth Amendment is if
Stockbridge had either common authority or apparent author-
ity to consent.

B. Common Authority

The court also agrees with the government’s assertion that
Stockbridge had common authority over the laptop because of
her previous joint use while she was living with Stanley, and
because Stanley allowed her to hold the laptop while he was
in prison. Citing United States v. Matlock, 415 U.S. 164, 170
(1974), the court points out that “the consent of one who pos-
sesses common authority over premises or effects is valid
against the absent, nonconsenting person with whom that
authority is shared.” The problem, however, is that here the
authority was not shared. The court’s conclusion that Stock-
bridge, through her most recent possession and limited past
joint use, had common authority over the computer is incon-
sistent with Ninth Circuit precedent.

It is by now axiomatic that possession does not confer
“common authority.” For example, we have previously held
that a girlfriend does not cede authority to her boyfriend to
consent to a search of a purse that she left in the trunk of his
car. United States v. Welch, 4 F.3d 761, 764 (9th Cir. 1993).
Similarly, a defendant does not authorize his friend to consent
to a search of his boxes simply because that friend agreed to
store the defendant’s boxes in his garage. United States v.
Fultz, 146 F.3d 1102, 1105 (9th Cir. 1998); see also United
States v. Basinski, 226 F.3d 829, 834 (7th Cir. 2000) (same
9934 UNITED STATES v. STANLEY
reasoning and similar facts). And a friend does not have the
authority to consent to a search of a prisoner’s computer discs
simply because that friend was given those discs to hold while
the defendant was in prison. James, 353 F.3d 606, 614 (8th
Cir. 2003). “Put another way, one does not cede dominion
over an item to another just by putting him in possession [of
it].” Id.

The record shows that Stockbridge possessed Stanley’s
computer — along with his clothing, video games, and other
items — only because Stanley was in prison, and they both
expected Stanley to re-possess the computer once he got out.
This arrangement did not somehow give Stockbridge the right
to allow law enforcement to mosey around Stanley’s com-
puter files anymore than it gave her the right to allow law
enforcement to sift through Stanley’s underwear. That Stock-
bridge possessed the computer does not mean she had com-
mon authority over it.

The court also agrees with the government that Stockbridge
had common authority through her joint use because she
could have accessed Stanley’s files at any time. This circuit’s
precedent and other circuit court decisions, demonstrate that
even if a bailee (Stockbridge) can potentially access the con-
tents of an item or container (that is, the bailee can break the
seal, turn the knob, lift the top, or in this case, click on a user-
name), this potential access does not mean that the bailee has
the authority to do so, much less the authority to consent for
law enforcement to do so. Ninth Circuit cases subsequent to
Matlock have emphasized that a joint-user with limited per-
mission to the searched property lacks common authority to
consent to a search. See, e.g., United States v. Warner, 843
F.2d 401, 402 (9th Cir. 1988); United States v. Impink, 728
F.2d 1228, 1233 (9th Cir. 1984). In those cases where we
have found that the consent-giver had common authority, we
relied on the consent-giver’s unlimited access to the property
to find that the joint-user had common authority to consent to
a search. See, e.g., United States v. Guzman, 852 F.2d 1117,
 UNITED STATES v. STANLEY 9935
1122 (9th Cir. 1988); United States v. Sealey, 830 F.2d 1028,
1031 (9th Cir. 1987). Additionally, in those cases where we
found that the joint-user had common authority, the consent-
giver was a spouse who had been living with the defendant.
Here, we have an ex-girlfriend who hadn’t lived with the
defendant for years. To meet its burden of showing “common
authority,” the government needed to introduce evidence
beyond simply that Stockbridge had used the computer and
that she was once again in possession of it. But that’s all the
government showed, which isn’t enough to establish common
authority.

For instance, in Fultz the defendant asked his friend to store
some boxes in a garage that the friend owned. 146 F.3d at
1105. The government asserted that the friend had actual
authority to consent to a search of the defendant’s boxes
because the friend had “full access to the garage, thereby
negating any expectation of privacy that Fultz might have had
in his cardboard boxes.” Id. at 1106. The Ninth Circuit
rejected the government’s argument, pointing out that the
friend did not use the boxes, nor did he claim to have a right
to access the boxes. Id. Additionally, the court emphasized
that the boxes “were segregated in one area of the garage.” Id.
“Thus, [the friend] lacked actual authority to consent to the
search.” Id. at 1106. Similarly, here the government asserts
that Stockbridge had authority to consent to a search, even
though Stockbridge adamantly denies ever having such
authority. Like the friend in Fultz, Stockbridge did not use
Stanley’s files or access them in any way. Like the boxes in
Fultz, Stanley’s files were segregated in one area of the com-
puter — that is, under his username. Like the defendant in
Fultz, Stanley expected Stockbridge to leave his files alone.
Yet, without any explanation, the court disregards Fultz alto-
gether.

Furthermore, in United States v. Davis, the Ninth Circuit
concluded that a roommate could not consent to the search of
a bag belonging to her roommate’s boyfriend, even if the boy-
9936 UNITED STATES v. STANLEY
friend left the bag at the apartment. 332 F.3d 1163, 1169 (9th
Cir. 2003). Applying the “container within a container” logic
from Welch and Fultz, we reasoned that the key inquiry was
not whether the consent-giving roommate had joint access to
the apartment, but whether she had joint access to that partic-
ular bag. Id. Applied here, the question is not whether Stock-
bridge simply had joint use of the computer, but whether she
had joint use and access to Stanley’s files. “The shared control
of ‘host’ property does not serve to forfeit the expectation of
privacy of containers within that property.” Id. (emphasis
added).

Like the apartment in Davis, in this case the computer func-
tions as the “host” property; Stanley’s username, directories,
and files, are the separate containers within that property. The
computer hard drive is a modern-day “container within a con-
tainer.” Stockbridge could no more consent to a search of
these files than the roommate in Davis could lawfully consent
to the search of the duffle bag. Indeed, an unlocked duffle bag
can be just as easily unzipped as an unlocked username can
be accessed through the click of a mouse. Yet, if the former
is protected, there is little reason not to protect the latter.

Additionally, there is no evidence in the record that Stanley
ever gave Stockbridge permission to exercise control over his
hard drive, or to consent to a search of the hard drive. Stanley,
like all prisoners, had no choice but to allow someone to hold
onto his property for him while he served his sentence. When
Stockbridge received the computer, Stanley’s files were
behind a sealed username that she had to “breach.” Stanley
marked these files confidential by placing them under his
username, and by previously password-protecting them, evi-
dencing a desire that no one, including Stockbridge — but
especially law enforcement — view the files.

That Stanley allowed Stockbridge to access her music on
the computer does not change this calculus: when accessing
those files, Stockbridge was acting pursuant to an express
 UNITED STATES v. STANLEY 9937
authorization that was narrowly tailored. It strains credulity to
expand this limited instruction into an all-purpose license that
includes not only full access, but also “common authority.” If
Stanley had intended to grant Stockbridge common authority
over his files, why would he segregate them? Why would he
set up a password while living with her? Why would he hide
them deep within the computer directories? Every action that
Stanley took, from setting up separate usernames to taking the
computer with him when he moved out, indicates that he
never intended for anyone but him to access his files. Taken
together, the totality of the circumstances demonstrates that
Stanley did not cede any authority to Stockbridge to view his
files, much less consent to a search. I would follow this cir-
cuit’s guidance in Fultz, Davis, and Welch, and reverse the
district court’s decision not the suppress this evidence.

For its part, the court cites the Supreme Court’s decision in
Matlock, as well our decisions in United States v. Ruiz, 428
F.3d 877 (9th Cir. 2005), and United States v. Brannan, 898
F.2d 107 (9th Cir. 1990). However, upon closer inspection,
these cases would not support the court’s conclusion.

Take Brannan, which the court cites for the following prop-
osition: “ ‘Common authority’ rests upon mutual use of the
property by those generally having joint access or control
such that it is reasonable to recognize that each of the parties
has the right to permit inspection and has assumed the risk
that the other party might consent to a search.” 898 F.2d at
108. But here the court’s decision never explains how an ex-
girlfriend who was serving as a bailee was somehow imbued
with the authority to consent to a search of her ex-boyfriend’s
property, when a current girlfriend had no such authority in
Davis. Or why it is “reasonable to recognize” in this instance
that a prisoner “assumes the risk” that a bailee will consent to
a search, but it was not reasonable for the bailee to consent
in Fultz.

In fact, in Brannon the Ninth Circuit concluded that the
defendant’s wife had actual authority to consent to a search of
9938 UNITED STATES v. STANLEY
a house that she jointly-owned, even though she had recently
moved out. 898 F.2d at 108. But the key in Brannon was that
the consent-giver had authority to consent because she (1)
was married to the defendant, and (2) actually owned the
house that was searched (that is, her name was on the title).
Id. The parallel with this case is nonexistent, because Stanley
and Stockbridge were never married, had been broken up for
two years, weren’t living together, and Stockbridge has no
ownership stake in the computer.

With the co-ownership theory void of any factual support,
and the common authority theory void of any precedential
support, the only remaining way to justify the government’s
warrantless search is by finding apparent authority.

C. Apparent Authority

The court also agrees with the government that the agents
were reasonable to conclude that Stockbridge had apparent
authority to consent to the computer search, even if Stock-
bridge was not a co-owner and did not possess common
authority. But here, once again, we are reminded that facts are
stubborn things.

The test for apparent authority is straight forward: whether
the facts available to the agents at the time of the search
would lead a reasonable person to conclude that the consent-
ing party had authority over the property. Illinois v. Rodri-
guez, 497 U.S. 177, 188 (1990) (internal citation omitted); see
also Welch, 4 F.3d at 764 (“Under the apparent authority doc-
trine, a search is valid if the government proves that the offi-
cers who conducted it reasonably believed that the person
from whom they obtained consent had the actual authority to
grant that consent.”).

This, of course, is a fact-based inquiry. Indeed, it’s impos-
sible to apply this test without discussing the facts that the
agents knew at the time of the search. But it’s hard to tell how
 UNITED STATES v. STANLEY 9939
the court concludes that Stockbridge had apparent authority
because it chooses not to “revisit [the facts] at this juncture.”

So what is it that the agents knew at the time of consent?
For starters, the agents knew that Stockbridge had once dated
Stanley, but that the couple had broken up and had not lived
together for two years. The agents also knew that Stockbridge
was currently dating someone else at the time (David Trimm,
the man who tipped off law enforcement about the files in the
first place). The agents knew that Stockbridge was holding the
computer while Stanley was in prison. The agents also knew
that there was reason to suspect that Stanley’s files contained
illicit photographs. And finally, the agents knew that the com-
puter had two separate usernames, one for Stanley and
another for Stockbridge.

There is no way that any reasonable person would believe
that, under these circumstances, Stockbridge had the authority
to consent to a search of Stanley’s property. How is it reason-
able to conclude that an ex-girlfriend has authority to consent
to a search of her ex-boyfriend’s computer while he is in
prison and while she is dating someone else? It’s not. And, of
course, that is why the agents sought a search warrant in the
first place.

What’s more, the officers knew too much about Stanley’s
manifested desire to keep others out of his files, and about his
ownership of the computer. That is, they knew that the files
were hidden, that the files were saved under Stanley’s user-
name, and that Stanley had taken the computer with him when
he moved to California. See Davis, 332 F.3d at 1170 (noting
that “the officers were aware” that the defendant’s items
“were in a specific area separate from” everything else);
Fultz, 146 F.3d at 1106 (noting that officers were aware that
the defendant’s boxes were segregated into a separate area of
the garage); James, 353 F.3d at 614 (noting that the officers
knew the defendant had placed his discs in separate envelopes
9940 UNITED STATES v. STANLEY
that would have to be opened, thereby undermining the gov-
ernment’s apparent authority claim).

The court also agrees with the government’s argument that
it was objectively reasonable to conclude that Stockbridge had
apparent authority because she possessed the computer. But
this is a misapplication of the law because possession, in
itself, does not translate to authority. Recall that in Welch the
boyfriend could not consent to a search of his girlfriend’s
purse, even though he possessed it in his car. 4 F.3d at 764.
And in Fultz a friend could not consent to a search of a defen-
dant’s boxes even though the friend possessed the boxes. 146
F.3d at 1105. “An officer’s mistaken belief as to the law, even
if reasonable, cannot establish apparent authority.” Davis, 332
F.3d at 1170 (citing Welch, 4 F.3d at 764-65). By accepting
the government’s apparent authority argument, the court is
rubberstamping the government’s errors and ignoring key pre-
cedents.

In its decision, the court also apparently agrees with the
government’s argument that because Stanley’s files were not
password protected (thereby giving Stockbridge potential
access to his files), the agents were reasonable to conclude
that Stockbridge had authority to consent. But this, too, is a
misapplication of the law. Recall that in Fultz the defendant’s
friend had potential access to the defendant’s boxes, which
were unlocked and sitting in the friend’s garage. We con-
cluded in Fultz that this potential access did not confer author-
ity to consent. 146 F.3d at 1105. Again, conclusions are not
“reasonable” if they are based on misapplications of the law.
Davis, 332 F.3d at 1170.

Additionally, the court’s reliance on the Fourth Circuit’s
decision in United States v. Buckner, 473 F.3d 551 (4th Cir.
2007), is misplaced. In Buckner the defendant’s wife con-
sented to a search of her husband’s computer files that were
stored on a computer that was leased in her name. Id. at 555.
Because the files were password-protected, the court con-
 UNITED STATES v. STANLEY 9941
cluded that she did not have authority to consent to the search.
Id. at 554. The court reasoned that the password protection
indicated the defendant’s intent to exclude others from his
files. Id. However, the court concluded that the wife had
apparent authority to consent based on the information the
officers knew at the time, namely,

that the computer was located in a common living
area of the Buckners’ marital home, [the officers]
observed that the computer was on and the screen lit
despite the fact that Frank Buckner was not present,
and [the officers] had been told that fraudulent activ-
ity had been conducted from that computer using
accounts opened in [the wife’s] name. The officers
also knew that the machine was leased solely in [the
wife’s] name and that she had the ability to return
the computer to the rental agency at any time, with-
out Frank Buckner’s knowledge or consent.

Id. at 555. None of these facts finds any parallel in the present
case. If anything, the reasoning in Buckner counsels against
apparent authority. Unlike the couple in Buckner, Stanley and
Stockbridge were not living together or even dating one
another at the time of the search. Unlike the computer in
Buckner, which was leased in the wife’s name, the computer
here belonged solely to Stanley.

Given what the agents knew at the time of the search, it
cannot be said that they acted pursuant to a reasonable belief
that Stockbridge had authority to consent to the warrantless
search.

II

Password Protection

Alternatively, the court insists that because Stanley’s files
were not password protected when Stockbridge took the com-
9942 UNITED STATES v. STANLEY
puter, Stanley had no reasonable expectation of privacy. But
this myopic focus on whether Stanley’s files were password
protected ignores key facts.

First, Stanley’s username was password protected while he
was living with Stockbridge. Only when Stanley stopped liv-
ing with Stockbridge, and began using his computer by him-
self, did he remove the password. In other words, Stanley
took precautions to protect his files when he knew that others
would have easy access to them.

Second, the computer did not have a password when Stock-
bridge took control of it because Stanley was behind bars.
Stanley did not have the opportunity to reinstall a password
because he did not anticipate the arrest. Prisoners are not
allowed furloughs for the sole purpose of reinstalling a pass-
word on their computers before turning it over to a custodian.
Therefore, Stanley’s failure to install the password does not
speak to whether he had an expectation of privacy.

And third, the court’s reasoning would necessarily mean
that no prisoner would have any reasonable expectation of
privacy in his personal effects the second he enters the jail-
house — unless that property happens to be stored in a locked
container. Under this interpretation of the Fourth Amendment,
a police dragnet could extend to whatever property a prisoner
did not place under lock and key before he entered his jail
cell. Of course, because most prisoners rarely place their
property into storage in anticipation of arrest, this dragnet
would functionally include everything a defendant might own.
As a matter of policy, this argument is troubling; as a matter
of law, it is without support. The court certainly cites no law
or case (from any court) to support this sweeping circumven-
tion of the Fourth Amendment.

The court does cite the Fourth Circuit’s decision in Trulock
v. Freeh, 275 F.3d 391 (4th Cir. 2001), and indeed that case
is instructive. In Trulock the Fourth Circuit considered
 UNITED STATES v. STANLEY 9943
whether one joint-user of a computer can consent to a war-
rantless search of another’s password-protected files. Id. at
403. The Trulock court concluded that the joint-user’s author-
ity did not extend to the password protected files because by
installing a password the defendant had “affirmatively
intended to exclude [the joint-user] and others from his per-
sonal files.” Id. That reasoning is crucial because here Stanley
demonstrated his intention to exclude Stockbridge from his
files when he password protected them while living with her.
He had no reason to keep that password after he moved out
because at that point he was the only user. But that previous
intention to exclude others, such as Stockbridge, never went
away. Stanley’s files were always segregated under his login
name. Password or not, Stanley considered those files his, and
that section of the computer closed off. The mechanical focus
on whether the computer had a password at the very moment
when Stockbridge took the computer strips Trulock of its logi-
cal moorings. To the extent that password-protected files are
more constitutionally private than non-password-protected
files, the key fact is that Stanley did secure his directories
while he was living with Stockbridge. The court’s formalism
misses the forest for the trees.

Additionally, the Supreme Court does not make distinctions
between locked and unlocked containers when it comes to
expectations of privacy. In Robbins v. California, the
Supreme Court considered whether police officers who are
conducting a lawful, but warrantless, search of a vehicle dur-
ing a traffic stop, may also search an unlocked container
found within that car. 453 U.S. 420, 425 (1981). In his plural-
ity opinion, Justice Stewart flatly rejected the argument that
there is a constitutional distinction between containers that are
more “secured” than others.

First, it has no basis in the language or meaning of
the Fourth Amendment. . . . The contents of Chad-
wick’s footlocker and Sanders’ suitcase were
immune from a warrantless search because they had
9944 UNITED STATES v. STANLEY
been placed within a closed, opaque container and
because Chadwick and Sanders had thereby reason-
ably “manifested an expectation that the contents
would remain free from public examination.” Once
placed within such a container, a diary and a dishpan
are equally protected by the Fourth Amendment.

Second, even if one wished to import such a distinc-
tion into the Fourth Amendment, it is difficult if not
impossible to perceive any objective criteria by
which that task might be accomplished. What one
person may put into a suitcase, another may put into
a paper bag. And as the disparate results in the
decided cases indicate, no court, no constable, no cit-
izen, can sensibly be asked to distinguish the relative
“privacy interests” in a closed suitcase, briefcase,
portfolio, duffel bag, or box.

Id. at 426-27 (internal citations omitted). The Supreme Court
reiterated this conclusion in United States v. Ross, and clari-
fied that the scope of the Robbins rule is broad:

This rule applies equally to all containers. One point
on which the Court was in virtually unanimous
agreement in Robbins was that a constitutional dis-
tinction between “worthy” and “unworthy” contain-
ers would be improper. Even though such a
distinction perhaps could evolve in a series of cases
in which paper bags, locked trunks, lunch buckets,
and orange crates were placed on one side of the line
or the other, the central purpose of the Fourth
Amendment forecloses such a distinction. For just as
the most frail cottage in the kingdom is absolutely
entitled to the same guarantees of privacy as the
most majestic mansion, so also may a traveler who
carries a toothbrush and a few articles of clothing in
a paper bag or knotted scarf claim an equal right to
conceal his possessions from official inspection as
 UNITED STATES v. STANLEY 9945
the sophisticated executive with the locked attaché
case.

456 U.S. 798, 822 (1982) (emphasis added). A frail cottage
might not have the padlock that a majestic mansion has, but
under the Fourth Amendment, that does not matter. Justice
Stewart’s logic, which applies as equally to locked suitcases
as it does to paper bags (which cannot be “locked” in any
meaningful way), should be applied to our modern-day con-
tainers, such as computer directories. If an individual can
maintain a reasonable expectation of privacy in an unlocked
paper bag that’s stuffed with a toothbrush, then likewise he
can maintain a reasonable expectation of privacy in his
unlocked computer.

Constitutional protections do not turn on the frailty of a
container’s securities because the Fourth Amendment does
not concern itself with passwords or locks. See Miller v.
United States, 357 U.S. 301, 307 n.7 (1958) (quoting William
Pitt’s speech to Parliament in 1763, “ ‘The poorest man may
in his cottage bid defiance to all the forces of the Crown. It
may be frail; its roof may shake; the wind may blow through
it; the storm may enter; the rain may enter; but the King of
England cannot enter-all his force dares not cross the thresh-
old of the ruined tenement.’ ”) (citing THE OXFORD DICTIONARY
OF QUOTATIONS 379 (2d ed. 1953)).

Ultimately, the court’s laser-like focus on whether the com-
puter was password protected is much ado about nothing.

III

Clearly Erroneous

The court argues that I overlook a difference between our
role as an appellate court, and the district court’s role as the
fact finder. The court is quite right that we review the district
court’s factual findings for “clear error.” Indeed, I apply this
9946 UNITED STATES v. STANLEY
standard and conclude that the district court’s conclusion that
Stockbridge was a co-owner of the computer was clearly erro-
neous. An ex-girlfriend does not co-own a computer given to
her ex-boyfriend by his father.

But the issue of consent is not a factual question; it is a
legal question. This entire dissent is predicated on the
assumption that Stockbridge did consent to the search —
thereby deferring to the district court’s conclusion. The issue
is not whether Stockbridge consented, the issue is whether she
had the authority to consent. That is a legal question that we
review de novo. The court’s argument is predicated on the
assumption that this is a factual issue, which misses the point.
Upon review, I conclude that as a matter of law, an ex-
girlfriend, acting as a bailee, cannot consent to a search of her
ex-boyfriend’s property while he is serving a prison sentence.
Additionally, the “apparent authority” question is also a legal
issue, even though it involves a fact-based inquiry. Again, as
a matter of law, I conclude that based on this court’s prece-
dent and Supreme Court precedent, given what the agents
knew at the time, it was unreasonable for them to believe that
an ex-girlfriend had the authority to consent to this search.
Indeed, as stated above, the agents’ conclusion that Stock-
bridge had apparent authority was based on two misapplica-
tions of the law — which can never be reasonable.

Conclusion

After law enforcement agents took possession of Stanley’s
computer, they sought and received a search warrant that
allowed them to search the laptop’s files. But warrants are not
diamonds; they are not forever.

By failing to renew the search warrant, the government had
no choice but to rely on an alternative justification: consent.
But this after-the-fact justification cannot be squared with the
facts, much less the Constitution. I, for one, do not believe
that the Fourth Amendment can be so easily ignored or cir-
 UNITED STATES v. STANLEY 9947
cumvented. Warrantless searches are not trivial events. Seri-
ous events ought to be taken seriously.

An ex-girlfriend has no authority to consent to a search of
her ex-boyfriend’s computer while he is in prison. Under the
cardinal principle embedded in the Fourth Amendment, this
warrantless search was illegal. I would reverse the district
court’s decision not to grant Stanley’s Motion to Suppress.

I dissent.