Back in April, I blogged about the Tenth Circuit's very interesting 2-1 decision in United States v. Andrus, a Fourth Amendment case involving third party consent to search a computer. My post, "Virtual Analogies, Physical Searches, and the Fourth Amendment," is here. Yesterday the Tenth Circuit denied rehearing in the case in an order you can view here. There were several votes for rehearing -- Judges Kelly, Lucero, McConnell and Holmes, in addition to Judge McKay on the original panel -- but not quite enough.

  The two judges in the original panel majority (Murphy and Gorsuch) did add a "note" in the order denying rehearing to clarify that the decision was intended to be very narrow:

  In denying rehearing, however, the panel majority notes that its opinion is limited to the narrow question of the apparent authority of a homeowner to consent to a search of a computer on premises in the specific factual setting presented, including the undisputed fact that the owner had access to the computer, paid for internet access, and had an e-mail address used to register on a website providing access to the files of interest to law enforcement.
  Among the questions not presented in this matter, and for which there is no factual development in the record, are the extent of capability and activation of password protection or user profiles on home computers, the capability of EnCase software to detect the presence of password protection or a user profile, or the degree to which law enforcement confronts password protection or user profiles on home computers.