dissenting.
This case concerns the reasonable expectation of privacy associated with password-protected computers. In examining the contours of a third party’s apparent authority to consent to the search of a home computer, the majority correctly indicates that the extent to which law enforcement knows or should reasonably suspect that password protection is enabled is critical. We differ, however, over the extent to which the burden of inquiry should rest with law enforcement personnel. More specifically, I take issue with the majority’s implicit holding that law enforcement may use software deliberately designed to automatically bypass computer password protection based on third-party consent without the need to make a reasonable inquiry regarding the presence of password protection and the third party’s access to that password.
Given the majority’s correct decision to categorize computers as containers, with all the attendant protections afforded under the case law, whether a computer search is objectively reasonable depends upon fact-specific determinations in individual cases with no bright-line rules. The few cases confronting this issue pay particular attention to the presence or absence of password protection.1 See ante at 719 (collecting cases).
*723The presence of security on Defendant’s computer is undisputed.2 (Suppression Hr’g Tr. at 89.) Yet, the majority curiously argues that Defendant’s use of password protection is inconsequential because Defendant failed to argue that computer password protection is “commonplace.” Ante at 721-22. Of course, the decision provides no guidance on what would constitute sufficient proof of the prevalence of password protection, nor does it explain why the court could not take judicial notice that password protection is a standard feature of operating systems. Despite recognizing the “pervasiveness of computers in American homes,” ante at 718, and the fact that the “personal computer is often a repository for private information the computer’s owner does not intend to share with others,” id., the majority requires the invocation of magical language in order to give effect to Defendant’s subjective intent to exclude others from accessing the computer.
The development of computer password technology no doubt “presents a challenge distinct from that associated with other types of’ locked containers. Ante at 718. But this difficulty does not and cannot negate Fourth Amendment protection to computer storage nor render an expectation of computer privacy unreasonable. Cf. United States v. Salinas-Cano, 959 F.2d 861, 864 (10th Cir.1992) (considering, in assessing appeal of suppression motion, “the precautions taken by the owner to manifest his subjective expectation of privacy, for example locking the container”); see also Georgia v. Randolph, 547 U.S. 103, 126 S.Ct. 1515, 1535, 164 L.Ed.2d 208 (2006) (Roberts, C.J., dissenting) (“To the extent a person wants to ensure that his possessions will be subject to a consent search only due to his own consent, he is free to place these items in an area over which others do not share access and control, be it a private room or a locked suitcase under a bed.”). The unconstrained ability of law enforcement to use forensic software such as the EnCase program to bypass password protection without first determining whether such passwords have been enabled does not “exacerbate! ]” this difficulty, ante at 719 n. 5; rather, it avoids it altogether, simultaneously and dangerously sidestepping the Fourth Amendment in the process. Indeed, the majority concedes that if such protection were “shown to be commonplace, law enforcement’s use of forensic software like EnCase ... may well be subject to question.” Ante at 722 n. 8. But the fact that a computer password “lock” may not be immediately visible does not render it unlocked. I appreciate that unlike the locked file cabinet, computers have no handle to pull. But, like the padlocked footlocker, computers do exhibit outward signs of password protection: they display boot password screens, username/password log-in screens, and/or screen-saver reactivation passwords.3
The fact remains that EnCase’s ability to bypass security measures is well known to law enforcement. Here, ICE’s forensic computer specialist found Defendant’s computer turned off. Without turning it on, he hooked his laptop directly to the hard drive of Defendant’s computer and *724ran the EnCase program. The agents made no effort to ascertain whether such security was enabled prior to initiating the search. The testimony makes clear that such protection was discovered during additional computer analysis conducted at the forensic specialist’s office. Cf. United States v. Buckner, 473 F.3d 551, 555 & n. 3 (4th Cir.2007) (hinting that objectively reasonable belief in valid third-party consent could be tainted by unnoticed presence of password protection and therefore limiting its holding to prevent “[reliance] upon apparent authority to search while simultaneously using mirroring or other technology to intentionally avoid discovery of password or encryption protection put in place by the user”).
The majority points out that law enforcement “did not ask specific questions” about Dr. Andrus’ use of the computer or knowledge of Ray Andrus’ use of password protection, ante at 720, but twice criticizes Dr. Andrus’ failure to affirmatively disclaim ownership of, control over, or knowledge regarding the computer. Of course, the computer was located in Ray Andrus’ very tiny bedroom, but the majority makes no effort to explain how this does not create an ambiguous situation as to ownership. Cf. Buckner, 473 F.3d at 555 (computer located in common living area); United States v. Morgan, 435 F.3d 660, 662, 663 (6th Cir.2006) (same); United States v. Aaron, 33 Fed.Appx. 180, 182 (6th Cir.2002) (unpublished) (computer located in unlocked spare bedroom); Trulock v. Freeh, 275 F.3d 391, 398 (4th Cir.2001) (computer located in consenter’s bedroom); United States v. Smith, 27 F.Supp.2d 1111, 1116 (C.D.Ill.1998) (computer located in master bedroom alcove that defendant shared with consenter and consenter’s children).
The burden on law enforcement to identify ownership of the computer was minimal. A simple question or two would have sufficed. Prior to the computer search, the agents questioned Dr. Andrus about Ray Andrus’ status as a renter and Dr. Andrus’ ability to enter his 51-year-old son’s bedroom in order to determine Dr. Andrus’ ability to consent to a search of the room, but the agents did not inquire whether Dr. Andrus used the computer, and if so, whether he had access to his son’s password. At the suppression hearing, the agents testified that they were not immediately aware that Defendant’s computer was the only one in the house, and they began to doubt Dr. Andrus’ authority to consent when they learned this fact. The record reveals that, upon questioning, Dr. Andrus indicated that there was a computer in the house and led the agents to Defendant’s room. The forensic specialist was then summoned. It took him approximately fifteen to twenty minutes to set up his equipment, yet, bizarrely, at no point during this period did the agents inquire about the presence of any other computers. The consent form, which Dr. Andrus signed prior to even showing the agents Defendant’s computer, indicates that Dr. Andrus consented to the search of only a single “computer,” rather than computers. In addition, the local police officer accompanying the ICE agents heard Dr. Andrus tell his wife that the agents wanted to search Defendant’s computer, which would have caused a reasonable law enforcement official to question Dr. Andrus’ ownership and use of the computer.
The record reflects that, even prior to the agent’s arrival at the target home, the agents were cognizant of the ambiguity surrounding the search.4 The agents testi-*725fled that they suspended their search due to doubts regarding Dr. Andrus’ ability to consent only after they learned that the internet service used by Defendant came bundled with the cable television service and was paid by Dr. Andrus. The district court noted, however, that the agents were aware of this fact prior to the search, having subpoenaed the internet/cable records from the service provider prior to their “knoek-and-talk.” Given the inexcusable confusion in this case, the circumstantial evidence is simply not enough to justify the agents’ use of EnCase software without making further inquiry.
Accordingly, in my view, given the case law indicating the importance of computer password protection, the common knowledge about the prevalence of password usage, and the design of EnCase or similar password bypass mechanisms, the Fourth Amendment and the reasonable inquiry-rule, see Illinois v. Rodriguez, 497 U.S. 177, 188, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990); United States v. Kimoana, 383 F.3d 1215, 1222 (10th Cir.2004) (collecting cases), mandate that in consent-based, warrantless computer searches, law enforcement personnel inquire or otherwise check for the presence of password protection and, if a password is present, inquire about the consenter’s knowledge of that password and joint access to the computer.
This decision requires resolution of the voluntariness of Defendant’s consent. In my mind, the critical inquiry is whether Defendant was in fact informed before giving consent that the officers had already examined his password-protected computer and found incriminating evidence. The district court failed to adequately resolve this dispute. It “note[d] for the record” the contradictory testimony, “considered the contradictions,” and found that “the agents fully advised [Defendant] of the circumstances facing him.” (Suppression Hr’g Tr. at 171 (emphasis added).) Absent further consideration and elaboration regarding exactly what facts comprised those “circumstances,” I cannot determine whether Defendant’s consent was imper-missibly tainted. I would, therefore, reverse the district court’s ruling on the issue of apparent authority and remand for further consideration of the voluntariness of Defendant’s consent.
. This scenario appears to present itself infrequently, likely because the majority of com*723puter searches occur pursuant to a search warrant.
. The majority suggests otherwise at certain points in its opinion, only to recognize the existence of password protection at other points. See ante at 714 n. 1, 720-22.
. I recognize that the ability of users to program automatic log-ins and the capability of operating systems to ''memorize” passwords poses potential problems, since these only create the appearance of a restriction without actually blocking access.
. The lead ICE agent testified that he did not believe sufficient evidence existed to obtain a search warrant. Given the evidence available to ICE in this case, acquired not only from *725initial records arising out of a large-scale, nationwide investigation but also subsequent investigation including surveillance and subpoenas for Defendant’s records, I remain skeptical of ICE’s belief that it lacked sufficient justification to obtain a search warrant. Nevertheless, the agent's opinion illustrates the apparent ambiguity presented by the circumstances of this case.