Fire Chief’s Consent Valid For Search of Lieutenant’s Laptop

The US District Court for the Eastern District of Kentucky has denied a motion to suppress a fire department laptop in a child pornography case against a fire lieutenant. Robert Christopher England, a lieutenant with the Middlesboro Fire Department, was accused of exposing himself to a minor in a Walmart bathroom in June 2018.

As police began their investigation into the incident, they learned that Lt. England may have been deleting evidence on his fire department-issued computer. Police reached out to the fire chief, who incidentally was Lt. England’s father, Fire Chief Robbie England. Chief England retrieved the laptop from his son (who lived with him), signed a consent to search form, and turned the device over to the police. A forensic search of the laptop revealed child pornography.

Lt. England was charged with federal child pornography charges, and moved to suppress the laptop because it was seized and examined without a search warrant in violation of the Fourth Amendment. His contention was that he never consented to the search, and that his father

“… did not possess actual or apparent authority to consent to search; … was unable to give valid consent to search because he was a state actor; and … was unable to give valid consent because of the private search doctrine.”

The suppression motion was assigned to Magistrate Judge Hanly A. Ingram, who determined on the facts that despite the lack of a written computer policy, the search was legal because the fire chief had actual and apparent authority to consent to such a search.  Upon Lt. England’s objection, US District Court Judge Claria Horn Boom agreed with Magistrate Ingram and expounded upon grounds for concluding Chief England’s consent to search his son’s laptop was valid. In a decision issued yesterday, Judge Boom concluded:

• Chief England possessed “common authority over or other sufficient relationship to” the city-owned laptop that he himself issued to Defendant.
• [A]lthough there was no evidence of actual “mutual use” by Chief England, the Chief did have “joint access or control for most purposes” such that “it is reasonable to recognize” that Chief England had the “right to permit the inspection in his own right” and that Defendant “assumed the risk” that Chief England might permit the laptop to be searched.
• [W]hile the city owned the laptop, the Chief’s actual authority to consent to the laptop’s search did not spring merely from that property interest.
• Instead, the “culture, customs, and expectations” in the fire department were such that Chief England was ultimately in charge of the laptop and could obtain or use it at any time.
• [A]lthough the fire department lacked a written policy specifically addressing computer use, the fire department had clear written policies concerning fire department equipment and the Chief’s ultimate authority over such equipment, and the firefighters were aware of this policy.
• Moreover, … “the computer is the type of workplace property that remains within the control of the employer ‘even if the employee has placed personal items in.'”
• [T]he laptop’s contents were fire department-related items which were provided to or created by Defendant in his role as an employee.
• The laptop contained policies, procedures, minutes from fire department meetings, training material, HIPAA information, and other documents related to the operation of the fire department.
• Thus, the fire department (and Chief England) had a “sufficient relationship” to and interest in the contents of the laptop.
• [T]here is abundant evidence that [Chief England] in fact had “mutual use of the property” (even if he did not in fact exercise that right to use) and “generally ha[d] joint access or control [over it] for most purposes,” and that this was not derived from mere property interests.
• No one questioned Chief England’s right to assign, re-assign, or control Defendant’s work laptop, not even Defendant: It is undisputed that Chief England assigned the laptops to the Lieutenants, he had the authority to reassign them at any time he saw fit, and he was responsible for Middlesboro Fire Department property. . . . Defendant England has never argued that he had the right or authority to refuse an order from Chief England reassigning the laptop. Defendant England has never argued he could deprive the Fire Department or the City of Middlesboro of ownership of the laptop. He could not do these things.
• If Chief England had the broader right to assign, re-assign, or take back the laptop, as conceded by Defendant, it follows logically that he also had the more limited authority to consent to its search such that the “customary social understanding accords [Chief England] authority powerful enough to prevail over [Defendant’s] objection.”

Here is a copy of the ruling:

Moral to the story: Every fire department needs to have a computer and electronic communications policy that makes it clear whether the firefighter to whom the computer is assigned has or does not have an expectation of privacy in what is on it. I am surprised the debate in the case was not over the Electronic Communication Privacy Act (ECPA) and the Stored Communications Act. These laws, which updated federal wiretapping laws, require consent for anyone seeking to gain access to stored electronic communications. The consent required under the ECPA is more restrictive than under the 4th Amendment, and would have required the specific consent of Lt. England. It is another reason why fire departments need a clear computer policy that extends to electronic communications that are stored on the device.