Page 67 - Police Officer's Guide 2013

knowledge of computers, he did nothing to protect the contents of his thumb drive. Telling his lieutenant that he
could return the drive to his inbox if it was found indicated that the defendant expected his co-workers to
determine whether the drive belonged to him, presumably by opening it.

Even if the accused had a subjective expectation of privacy, it was not one that society would recognize
as reasonable. Other than by having a property interest in the thumb drive, the defendant did not establish a
privacy interest in the drive. He didnt maintain control over the drive, or mark it as his, or attempt to password-
protect it. He did leave it in the patrol room computer where it was accessible to others. As to defendants consent
to search his drive and home computers, that consent was voluntary and freely given. While some factors would
support the defendants claim that he was in custody during the interview, no coercion, duress, or physical force
was used or threatened during the interview.

The defendant was not handcuffed, and he was told he could leave at any time. During the interview, he
was allowed to go to his car and retrieve his reading glasses so he could sign the consent to search form. With
22 years of law enforcement experience and training, it was reasonable for the trial judge to find that the officer
knew the legal consequences of consenting. Finally, defendant contended that seizure of the
evidence on his thumb drive violated Section 33.02(a) of the Texas Penal Code, which provides that it is a crime
to access a computer without the effective consent of the owner. This argument also failed because defendant
effectively consented to others accessing his drive by leaving it in a publicly available computer.

Miller v. State, 335 S.W.3d 847 (Tex. App. Austin 2011).

CONSENT SEARCH: CONSENT BY MINOR.

A minor teenager, with her relatives, reported to police a long and continuous series of sexual assaults by
her biological father (Green) with whom she lived. The teen was escorted to the apartment she shared with the
father to gather her things and, while there, she showed the officer evidence which would contain DNA samples
as evidence of the past assaults. The father was not present at the time. The father moved to suppress the evidence
claiming the minor had no capacity to consent to the entry and search of the apartment by the officer. The motion
was denied and a conviction was followed by an appeal.

The Court of Appeals recognized these principles: Consent to enter and search property can be given
either by the individual whose property is searched or by a third party who possesses common authority over the
premises. Illinois v. Rodriguez, 497 U.S. 177, 181, 110 S. Ct. 2793, 2797 (1990); Patrick v. State, 906 S.W.2d
481, 490 (Tex. Crim. App. 1995), cert. denied, 517 U.S. 1106 (1996). The third party may, in her own right, give
valid consent when she and the absent, non-consenting person share common authority over the premises or
property. Citation omitted. Common authority derives from the mutual use of the property, not the ownership or
lack thereof. Citation omitted. The validity of an alleged consent to search is a question to be determined from
all the circumstances. Citation omitted.

The apartment had two bedrooms, one of which had a king-sized bed in it and the other had a baby bed
in it.3 The room with the king-sized bed, which was the room from which Officer Newman took the towels and
sheet, was both H.G.s and Greens bedroom; according to Green, it was H.G.s room when Green was out of
town during the week, and it was his room when he was at home on the weekends. Thus, based on the record
from the suppression hearing, the trial court could have found that H.G. had authority to consent to the removal
of these items from the bedroom because, at a minimum, she shared common authority over the bedroom.
Citation omitted. Thus, the question becomes whether the fact that H.G. was a minor prevented her from being
able to consent to the removal of items from the bedroom that she shared with her father. The court of criminal
appeals recently rejected a per se rule that children may, or may not, consent to entry into a residence. Citation

A Peace Officer’s Guide to Texas Law 60 2013 Edition