Does Georgia v. Randolph Apply to Computers?

In Georgia v. Randolph, the Supreme Court held that the government cannot search the premises based on the consent of one occupant if another occupant of the same premises is present and objects to the search.   The Third Circuit recently decided an interesting question: Does Randolph apply to a seizure of a computer found in the home?  In other words, if no occupant objects to the search of the home, but an occupant objects to the taking away of a shared computer found in the home, can the occupant block the seizure of the shared computer?

No, said the Third Circuit in United States v. King.     Expressly disagreeing with the Ninth Circuit, the Third Circuit ruled that Randolph applies only to  homes and does not extend to personal effects.    Because a computer is a personal effect, not a home, Randolph doesn’t apply:

Because Randolph does not apply to personal effects, King’s suppression argument necessarily fails. A computer is a personal effect, see, e.g, Andrus, 483 F.3d at 718-20 (analogizing a computer to a container). Therefore, we apply the Matlock rule and ask whether King relinquished his privacy in the hard drive with respect to Larkin. Here, King placed his hard drive inside the computer Larkin owned and that the two of them shared, without any password protection. As a result, he assumed the risk that Larkin would consent to its seizure. Accordingly, the District Court did not err in holding that the seizure of Larkin’s computer did not violate the Fourth Amendment and evidence derived therefrom was admissible against King.

I’m not sure  what I think of this, but I don’t think I buy the court’s approach.  Here are some very tentative thoughts, offered in lieu of a more sustained analysis that would be better but take a lot more time.

As I understand the facts of King (trust me, you don’t want to read them — Lordy, you really don’t want to read them), one occupant objected to the seizure of a shared computer in the home as the investigators were taking the computer away.  The court treats this as a case involving personal effects in the home rather than the home itself.   It limits Randolph to the home; notes that a computer is an effect; and then concludes that Randolph doesn’t apply because the computer is just an effect.

That reasoning seems pretty tenuous to me, though.  A home generally is filled with personal effects.   What’s the difference between searching a home and searching personal effects in a home?   I suppose you could try to create doctrinal distinctions to recognize such a difference — classifying searches of cabinets, searches under mattresses, and the opening of drawers as either “home” cases or “effects” cases — but it seems quite complicated.

I think the easier way to distinguish Randolph would have been to say that Randolph applies to searches but not seizures.   The legally contested act here was a warrantless seizure but not a warrantless search. The government obtained a warrant to search the computer afterwards, so the subsequent search was justified by the warrant.   As a result, the only issue in the case was whether the computer, once found, could be seized.  I suspect the better argument to distinguish Randolph would have been that Randolph is about searches, not seizures:  That is, it is about the entry into the space, not the taking away of property found there.

I’m not sure that argument Randolph actually works, I should note.  And I’ll have to apologize to readers for not offering a view on that question:  If it comes up again, I’ll return to it, but I don’t know how often these facts will occur enough to spend the time coming up with a view on it.  But it seems like if you’re going to distinguish Randolph in this case, the way to do it is through a search/seizure distinction not a home/effects distinction.    Such an approach also would have the benefit of not creating an acknowledged circuit split with the Ninth Circuit: The Ninth Circuit case involved a search, not a seizure.

I should add that in many cases, a consent search that leads to the discovery of evidence won’t raise the application of Randolph to seizures thanks to the plain view exception.  The plain view exception permits the seizure of the discovered item if its incriminating nature is immediately apparent.  But that normally won’t be the case with a computer, given that the incriminating nature of what is inside the computer normally won”t be apparent  from the outside of it.