FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

No. 10-50206 Plaintiff-Appellee,

D.C. No.

v.  2:09-cr-00486-

KEVIN LLOYD STANLEY, AKA ODW-1

Kevin Stanley, OPINION Defendant-Appellant. 

Appeal from the United States District Court

for the Central District of California

Otis D. Wright, District Judge, Presiding

Argued and Submitted

June 7, 2011—Pasadena, California

Filed August 2, 2011

Before: Robert R. Beezer, Stephen S. Trott, and

Pamela Ann Rymer, Circuit Judges.

Opinion by Judge Trott;

Dissent by Judge Beezer

9915
COUNSEL

Carlton F. Gunn, Federal Public Defender’s Office, Los

Angeles, California, for the defendant-appellant.

Yvonne L. Garcia, United States Attorney’s Office, Los

Angeles, California, for the plaintiff-appellee. 

OPINION

TROTT, Circuit Judge:

Kevin Stanley conditionally pleaded guilty pursuant to Federal Rule of Criminal Procedure 11(a)(2) to one count of possession of child pornography, in violation of 18 U.S.C.

§ 2252A(a)(5)(B). As part of his plea, he reserved the right to

appeal the denial of his motion to suppress the offending

material located during a search of his computer, a search

conducted by federal agents led by Agent Michael Prado pursuant to the alleged consent of his one-time friend and now

fiancee, Tiana Stockbridge. We have jurisdiction over this

timely appeal in accord with 28 U.S.C. § 1291, and we affirm.

I

The Computer’s History

The computer on which Stanley kept his collection of child

pornography had a complicated history of ownership, custody, and control. During the time Stanley and his girlfriend

Tiana Stockbridge lived together before he was imprisoned in

2004 for child molestation, Stockbridge and Stanley jointly

owned and used the computer. Each had his and her own

directories and folders on the computer which were tied to

individual user names, “Kevin” for Stanley and “Tiana” for

Stockbridge. Stanley had his material “password-protected”

9918 UNITED STATES v. STANLEY
during that time and took steps to hide his cache of child pornography in the computer’s subsystems.

We predicate our statement that the computer was jointly

owned on the district court’s factual finding that Stockbridge

was a “co-owner,” a finding that necessarily rejected Stanley’s and Stockbridge’s protestations to the contrary. The district court’s findings regarding the computer are supported by

(1) Stockbridge’s earlier statements to Agent Prado and to

David Trimm, (2) Trimm’s statements to Agent Prado, and

(3) Stanley’s original statement to Agent Prado that he and

Stockbridge jointly owned it. More about this issue in Part IV

of this opinion.

When Stanley and Stockbridge ended their relationship in

2004, Stanley moved and took the computer with him. Subsequently, he removed the password-protection from the computer, leaving Stockbridge’s files intact.

In 2004, after Stanley was arrested on state child molestation charges, Stockbridge went to Stanley’s residence and

took possession of the computer, at the behest of Stanley’s

parents. Stanley acquiesced in her acquisition and possession

of it, expecting that he would get it back after serving his

prison sentence, presumably with the child pornography intact

— which he says caused him to engage in conduct resulting

in his conviction of child molestation. Neither Stanley nor his

parents placed any restrictions on Stockbridge’s use of or

access to the computer. 

About one and one-half years later, the computer “crashed”

and ceased to function, as computers are wont to do. Stockbridge gave it to a friend to fix, but he failed to do so. Thus,

in early 2006, Stockbridge gave it to another friend to repair,

one David Trimm. By education and experience Trimm was

qualified to take on this task.

As Trimm examined the unprotected contents of the computer, he noticed files on it clearly suggesting child pornograUNITED STATES v. STANLEY 9919
phy. This discovery posed serious problems for Trimm

because he was on federal probation himself for a drug felony, so he called Stockbridge, advised her of his predicament,

and asked her permission to turn the computer over to his probation officer. According to Trimm, she gave him permission

to do so, and he did.

Next, U.S. Probation Officer Daniel Vianello called Immigration and Customs Enforcement Special Agent Michael

Prado who handles these matters and told him that Trimm,

one of his supervisees, had given him a computer hard drive

that possibly contained child pornography.

A few days later, Agent Prado met with Trimm, who filled

him in on the computer’s history and what he believed it contained. Trimm told Agent Prado that Stanley and Stockbridge

were joint owners of the device. Agent Prado then took possession of it.

The next day, Agent Prado contacted Stockbridge by telephone. His purpose was to determine — as Trimm had told

him — that she was a joint owner of the computer and thus

could consent to its search. According to Agent Prado’s sworn

declaration, Stockbridge confirmed that she “jointly owned”

it and consented to its search for illicit material. She said (1)

that because of his conviction for child molestation, she was

concerned that Stanley was involved in the possession and

distribution of child pornography, and (2) that she wished to

have it examined to see if there was illegal material on it. She

was correct in her assumptions, and the contents of the computer became the basis for Stanley’s conditional plea and conviction.

II

Consent to Search1

1Although Agent Prado believed he had appropriately secured Stockbridge’s consent to search the computer, “in an abundance of caution” he

9920 UNITED STATES v. STANLEY
A.

The district court denied Stanley’s motion to suppress his

cache of illicit material. In so ruling, the court implicitly and

understandably rejected Stockbridge’s declaration prepared

for the suppression hearing. In the declaration, she partially

contradicted Agent Prado’s recitation of their telephone conversation. Now, she could not remember whether or not she

consented to the search, but she denied telling Agent Prado

that she suspected Stanley of harboring pornography.

Stockbridge’s credibility in connection with her declaration

was seriously — if not fatally — undermined by her recent

engagement to be married to Stanley, his record as a child

molester notwithstanding. The circumstance of her engagement was brought to the court’s attention both in her declaration and by the prosecution during its argument on the issue

of consent. This factor plainly falls into the category of potential witness bias.

The Supreme Court has said that 

Bias is a term used in the “common law of evidence”

to describe the relationship between a party and a

witness which might lead the witness to slant,

unconsciously or otherwise, his [or her] testimony in

favor of or against a party. . . . Proof of bias is

almost always relevant because the [factfinder] and

then secured a federal search warrant authorizing a forensic examination

of it. Agent Prado gave the computer and a copy of the warrant to Special

Agent Ulises Solorio for just such an examination. But because of the

press of official business, Agent Solorio did not examine the computer

until after the warrant expired. However, this circumstance is not germane

to our disposition of this case, because as Stanley’s counsel conceded during oral argument, if the agents had consent, then the warrant is irrelevant.

Agent Solorio was aware of Stockbridge’s consent when he finally

searched the computer and found Stanley’s contraband. 

UNITED STATES v. STANLEY 9921
weigher of credibility, has historically been entitled

to assess all evidence which might bear on the accuracy and truth of a witness’ testimony. 

United States v. Abel, 469 U.S. 45, 52 (1984). The Court said

also that “[a] successful showing of bias on the part of a witness would have a tendency to make the facts to which he [or

she] testified less probable in the eyes of the [factfinder] than

it would be without such testimony.” Id. at 51.

After a lengthy hearing which included the testimony of

Agent Prado and Stanley plus the admission in evidence of

Stockbridge’s declaration as direct testimony, the court made

these findings of fact:

[F]rom all objective indicia, the government was certainly reasonable in concluding that . . . Stockbridge

had authority to consent and, in fact, did give consent and that the search was done pursuant to that

consent.

The court also held that Stanley had no reasonable expectation of privacy in the computer while for two years it was in

Stockbridge’s possession and control, and found that she was

a “co-possessor, a co-owner, a common user and therefore

had the authority to give consent to the search.” The factual

record sufficiently supports the district court’s findings and

conclusions.

B.

Stanley argues unconvincingly that because his pornographic material was “password-protected” before he went to

prison, and that prior to going to prison his files and hers were

segregated from each other, Stockbridge did not and could not

have had the authority two years later to consent to the search.

This argument fails. Among other deficiencies in this argument, when the computer came into Stockbridge’s sole pos9922 UNITED STATES v. STANLEY
session and custody after Stanley went to prison, his material

was no longer password-protected, as his attorney conceded

during oral argument. Cf. Trulock v. Freeh, 275 F.3d 391, 403

(4th Cir. 2001) (although a third party may have had authority

to consent to a general search of a jointly-used computer, that

authority did not extend to another user’s password-protected

files).

Moreover, at the time she consented to the search, Stockbridge had had total and unfettered control of the unprotected

computer for all purposes for two uninterrupted years during

Stanley’s time in prison, as demonstrated by her statements to

Agent Prado and her delivery of it to two different friends for

repair. Stanley’s own testimony confirms this arrangement:

Q. (to Stanley) And with respect to the computer that

both you and Ms. Stockbridge used, did you at times

allow Ms. Stockbridge to access files in your portion

of the computer?

A. (by Stanley) Yes.

Q. And was your portion of the computer password

protected?

A. Earlier on it was but not at the time.

Q. Not at what time?

A. The time when I moved to Porterville, California.

Q. So even though you placed your trust in Ms.

Stockbridge, she could have accessed your files

when you were in prison?

A. Yes.

UNITED STATES v. STANLEY 9923
C.

[1] “A third party has actual authority to consent to a

search of a container if . . . the third party has mutual use of

the container and joint access or control over [it.]” United

States v. Ruiz, 428 F.3d 877, 880 (9th Cir. 2005) (quoting

United States v. Fultz, 146 F.3d 1102, 1105 (9th Cir. 1998)).

Although Stanley cannot be said under these circumstances to

have abandoned the computer, he certainly cannot have entertained a legitimate expectation of privacy in it once it was

delivered unconditionally and without password-protection to

its co-owner, knowing that she could access his files. As the

Supreme Court held in United States v. Matlock, 415 U.S.

164, 170 (1974), “the consent of one who possesses common

authority over premises or effects is valid as against the

absent, nonconsenting person with whom that authority is

shared.” Expanding on this holding, the Court also said,

Common authority is, of course, not to be implied

from the mere property interest a third party has in

the property. The authority which justifies the thirdparty consent does not rest upon the law of property,

with its attendant historical and legal refinements,

but rests rather on mutual use of the property by persons generally having joint access or control for

most purposes, so that it is reasonable to recognize

that any of the co-inhabitants has the right to permit

the inspection in his own right and that the others

have assumed the risk that one of their number might

permit the common area to be searched.

Id. at 172 n.7 (internal citations omitted). We reiterated this

principle in United States v. Brannan, 898 F.2d 107, 108 (9th

Cir. 1990), saying, “ ‘Common authority’ rests upon mutual

use of the property by those generally having joint access or

control such that it is reasonable to recognize that each of the

parties has the right to permit inspection and has assumed the

risk that the other party might consent to a search.” 

9924 UNITED STATES v. STANLEY
[2] Finally, we follow the Supreme Court’s guidance in

Frazier v. Cupp, 394 U.S. 731 (1969). In that case, Frazier

and his cousin Rawls had both been using Frazier’s duffle

bag. Id. at 740. In dismissing Frazier’s Fourth Amendment

claim that Rawls had no authority to consent to a search of the

bag, which turned up incriminating evidence against Frazier,

the Court said,

Petitioner argues that Rawls only had actual permission to use one compartment of the bag and that he

had no authority to consent to a search of the other

compartments. We will not, however, engage in such

metaphysical subtleties in judging the efficacy of

Rawls’ consent. Petitioner, in allowing Rawls to use

the bag and in leaving it in his house, must be taken

to have assumed the risk that Rawls would allow

someone else to look inside. We find no valid search

and seizure claim in this case.

Id. Here, we conclude similarly that when Stanley and his parents turned over possession, use, and control of the computer

to Stockbridge, Stanley — like Frazier — assumed the risk

that she would allow someone else to look inside.

III

Apparent Authority

[3] In any event, even if we were to agree with our dissenting colleague that Stockbridge was not a co-owner of the

computer, the district court also held that Agent Prado “was

certainly reasonable in concluding” “from all objective indicia” in the record that “Stockbridge had authority to consent.”

In other words, the doctrine of apparent authority suffices in

Fourth Amendment terms to render this search reasonable.2

2Given the district court’s explicit conclusion in support of its denial of

Stanley’s motion to suppress, Stanley’s objection to our consideration of

the doctrine of apparent authority is not well-taken. 

UNITED STATES v. STANLEY 9925
On de novo review of this mixed question of fact and law, we

agree.

[4] The Supreme Court spelled out the relevant inquiry in

Illinois v. Rodriguez, 497 U.S. 177, 188 (1990):

As with other factual determinations bearing upon

search and seizure, determination of consent to enter

must “be judged against an objective standard:

would the facts available to the officer at the

moment . . . ‘warrant a man of reasonable caution in

the belief’ ” that the consenting party had authority

over the premises?

(quoting Terry v. Ohio, 392 U.S. 1, 21-22 (1968) (omission

in original).

[5] Here, without revisiting them at this juncture, the totality of the facts and circumstances known to Agent Prado at

the time of the search satisfy this test. As in the case of United

States v. Buckner, 473 F.3d 551 (4th Cir. 2007), Agent Prado

and his assistants “did not have any indication” from Stockbridge, “or any of the attendant circumstances,” that Stanley’s

child pornography files were password-protected. Id. at 555.

Indeed, they were not. Thus, the agents were justified in relying on Stockbridge’s consent.

IV

The Dissenting Opinion

[6] Our respected colleague’s dissenting opinion takes

issue with the district court’s resolution in favor of the prosecution of competing factual scenarios, one from the prosecution, and another from the defense. The dissenting opinion

overlooks a difference between our legal responsibility as an

appellate court, on one hand, and the factfinding prerogative

of a trial court, on the other. Our function does not entail

9926 UNITED STATES v. STANLEY
retrying the factual issues in a case — here, primarily (1)

whether Stockbridge was the co-owner in possession of the

computer, (2) whether she factually consented to the search of

the computer, or not, and (3) whether she displayed the indicia of authority to do so. On appeal, we accept a district

court’s findings of fact unless they are clearly erroneous. As

we said in Rand v. Rowland, 154 F.3d 952, 957 n.4 (9th Cir.

1998) (en banc) (quoting Epstein v. MCA, Inc., 126 F.3d

1235, 1253 n.18 (9th Cir. 1997)), “[f]indings of fact are made

on the basis of evidentiary hearings and usually involve credibility determinations, which explains why they are reviewed

deferentially under the clearly erroneous standard.” This rule

follows Federal Rule of Civil Procedure 52(a), which provides that “[f]indings of fact, whether based on oral or other

evidence, must not be set aside unless clearly erroneous, and

the reviewing court must give due regard to the trial court’s

opportunity to judge the witnesses’ credibility.” For these reasons, the Supreme Court has given us this directive:

But when a trial judge’s finding is based on his decision to credit the testimony of one of two or more

witnesses, each of whom has told a coherent and

facially plausible story that is not contradicted by

extrinsic evidence, that finding, if not internally

inconsistent, can virtually never be clear error.

Anderson v. Bessemer City, 470 U.S. 564, 575 (1985). See

also United States v. Working, 224 F.3d 1093, 1102 (9th Cir.

2000) (en banc) (“ ‘Where there are two permissible views of

the evidence, the factfinder’s choice between them cannot be

clearly erroneous.’ ”) (quoting Anderson, 470 U.S. at 574).

[7] As applied to this case, the dissent’s reliance on “facts”

plainly rejected by the district court — and for good reason

— is misplaced. Invoking what Stockbridge claimed in her

declaration is now irrelevant, as are her denials and contradictions of Agent Prado’s testimony prepared for the suppression

hearing. The district court plainly did not credit her testimony.

UNITED STATES v. STANLEY 9927
We do not comprehend the import of the dissent’s statement

that “[b]ecause the government chose not to cross-examine

Stockbridge, her testimony went unchallenged.” This assertion trespasses upon the factfinding and credibility prerogatives of the district court and is not consistent with Rule 52(a),

Anderson v. Bessemer City, and our own standard of review

jurisprudence. Moreover, the government did challenge her

testimony — with contradictory evidence from Agent Prado.

We understand how the district court looked askance at her

newly-minted declaration in favor of her recently engaged to

be spouse.

AFFIRMED.

BEEZER, Circuit Judge, dissenting:

The court provides two separate rationales for affirming the

district court’s denial of Stanley’s motion to suppress: (1) the

district court properly concluded that Stanley’s ex-girlfriend

at the time, Tiana Stockbridge (“Stockbridge”), had common

authority to consent to the search, or apparent authority to do

so; and (2) the district court properly concluded that Stanley

had no expectation of privacy in the computer’s contents. I

respectfully disagree.

In this case, law enforcement agents relied on an invalid

warrant to search a criminal defendant’s computer without his

consent. The government’s reliance on the defendant’s exgirlfriend’s consent is terribly flawed and cannot justify an

otherwise invalid search under the Fourth Amendment. As I

explain below, the district court’s factual findings were

clearly erroneous.

Accordingly, I would reverse the district court’s decision

not to suppress this evidence.

9928 UNITED STATES v. STANLEY
I

Consent

The “cardinal principle” in Fourth Amendment search and

seizure jurisprudence is that “ ‘searches conducted outside the

judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment.’ ” Mincey v. Arizona, 437 U.S. 385, 390 (1978)

(quoting Katz v. United States, 389 U.S. 347, 357 (1967)

(footnotes omitted)). This rule, however, is not ironclad, and

like most constitutional edicts, there are exceptions. Id. One

such exception to the warrant requirement is consent, given

either by the defendant himself or by a third party who has

“common authority” over the property. Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973). But if the government

wishes to introduce evidence seized during a warrantless

search, it has the burden of demonstrating that an exception

to the cardinal principle exists. Id.; see also Vale v. Louisiana,

399 U.S. 30, 34 (1970); United States v. Davis, 332 F.3d

1163, 1168 n.3 (9th Cir. 2003). 

Because Stanley himself never gave consent to search his

computer, the government had the burden to prove that a

third-party — in this case, Stockbridge, who was Stanley’s

ex-girlfriend at the time — had actual or apparent authority to

consent to the search, and did in fact consent to the search.

For her part, Stockbridge unequivocally denies that she

ever provided consent in the first place, an assertion that the

court dismisses out of hand.1 But even if Stockbridge did consent to the search, the question remains whether she had the

authority do so. The court concludes that she did for three reasons. First, the court concludes that Stockbridge was a co1Although Stockbridge was present and available for cross-examination,

the government decided not to question her, meaning her testimony went

uncontested. 

UNITED STATES v. STANLEY 9929
owner of the computer, which enabled her to consent to the

search. Second, even if Stockbridge was not a co-owner, the

court argues that her joint-use of the computer gave her common authority to consent to a search of its files. And finally,

even if Stockbridge was not a co-owner or did not have common authority to consent, the court believes that the agents

properly relied upon her apparent authority to consent to the

search.

As explained below, the court’s reasoning finds no support

either in the record or in this court’s precedent. 

A. Co-Ownership

The court writes that while Stanley and Stockbridge lived

together (before they broke up), they “jointly owned and used

the computer.” This claim cannot be squared with the facts.

To begin, there is no factual basis for this conclusion anywhere in the record. The district court’s conclusion that

Stockbridge was a co-owner was clearly erroneous.

Between 1996 and 2004, Stanley and Stockbridge were in

a romantic relationship. During their relationship, they lived

together in Barstow, California. In 2001, as a gift, Stanley’s

father gave him the laptop computer in question. There is no

evidence whatsoever that Stanley’s father gave the laptop to

both of them; indeed, it is clear from the record that the gift

was for Stanley alone.

Although the computer was his alone, Stanley allowed

Stockbridge to use the laptop while they were living together.

However, Stanley made sure to limit Stockbridge’s access.

Two different user accounts were set up on the computer, and

during their cohabitation Stanley’s account was password protected, while Stockbridge’s account was not password protected. Stockbridge only used the computer to store her music

files; she did not access Stanley’s files because she did not

9930 UNITED STATES v. STANLEY
believe she had the right to do so. Stanley also did not believe

Stockbridge had any right to access his files.

In 2004 the couple broke up, and Stanley moved to Porterville, California, taking his computer with him. After he

stopped living with Stockbridge, Stanley removed the password protection that locked his user account. 

Later that year, while he was living in Porterville, Stanley

was arrested and sent to state prison for an unrelated criminal

charge. Before his arrest Stanley kept his personal property

(including his laptop computer) at a friend’s house, where he

had been staying. After his arrest, the property was moved to

Stanley’s parents’ home. While Stanley was in prison Stockbridge went to his parents’ home and took possession of some

of his property to hold while Stanley was in prison, including:

music discs, video games, clothing, and his laptop computer.

Both agree that Stockbridge was to hold Stanley’s property

while he was in prison, but that he was to receive all of it back

once he was released. 

But because Stanley did not anticipate his arrest, he did not

have a chance to reinstall his password before entering prison.

As a result, when Stockbridge took possession of the computer, Stanley’s files and directories were not password protected. However, the computer still had two separate accounts

that Stanley had created for himself and Stockbridge.

Two critical facts from this record demonstrate that Stanley

did not co-own his computer with Stockbridge. First, the computer was a gift to Stanley from his father. Second, Stanley

affirmed his sole ownership by taking the computer with him

when the couple split up and he moved to Porterville. The district court never explains how an ex-girlfriend can jointly own

a gift that her ex-boyfriend’s father gave to him, not to her.

Additionally, even when the couple was living together,

Stanley only gave Stockbridge limited access to the computer.

UNITED STATES v. STANLEY 9931
Throughout their joint use, Stanley and Stockbridge had an

understanding that Stockbridge could not access Stanley’s

files; there is no evidence that this understanding changed

when Stanley went to prison. If she were a co-owner, why

would her access be so limited?

Given these facts, it’s hard to find that Stockbridge was a

co-owner. Instead of considering these details before settling

on its co-ownership theory, the court’s decision relies almost

entirely on Agent Prado’s declaration. However, in his testimony, Agent Prado never said that Stockbridge used the word

“owned,” and Agent Prado himself equivocated on whether

he used the word “ownership,” or whether he used the word

“possess” or “use” when he was questioning Stockbridge.

That Agent Prado later clarified that he “most likely” used

“ownership” is not particularly availing, especially in light of

Stockbridge’s unequivocal, and uncontested, statements to the

contrary.

Additionally, the court’s reliance on Agent Prado’s testimony is out of context. The court’s decision relies on Agent

Prado’s use of the following phrase: “the computer [Stanley]

jointly owned with Tiana Stockbridge.” But the entire statement is part of Agent Prado’s declaration about what Stanley

admitted and includes Agent Prado’s characterization of ownership, not Stanley’s. The entire statement, in context, reads

as follows: “Defendant used the computer he jointly owned

with Tiana Stockbridge to view images of child pornography.” If one were to read the whole sentence, and not just that

isolated phrase, one would discover that the operative declaration there is what Stanley admitted he used the computer for

— that is, he confessed to storing child pornography on it —

not who owned the computer. By selectively reading the statement out of context, the court fails to realize that the ownership reference is an after-the-fact characterization that Agent

Prado inserted himself.

Essentially, the government wants us to believe that Stanley co-owned a computer that his father gave to him, with his

9932 UNITED STATES v. STANLEY
ex-girlfriend who he hadn’t lived with for years, and who was

currently dating somebody else. The absurdity of this logic

would be comical if it were not so tragic for Mr. Stanley and

so detrimental to this court’s future precedent.

The co-ownership theory isn’t just clearly erroneous — it’s

patently false. Because the record does not support a coownership theory of consent, the only way this warrantless

search can pass muster under the Fourth Amendment is if

Stockbridge had either common authority or apparent authority to consent.

B. Common Authority

The court also agrees with the government’s assertion that

Stockbridge had common authority over the laptop because of

her previous joint use while she was living with Stanley, and

because Stanley allowed her to hold the laptop while he was

in prison. Citing United States v. Matlock, 415 U.S. 164, 170

(1974), the court points out that “the consent of one who possesses common authority over premises or effects is valid

against the absent, nonconsenting person with whom that

authority is shared.” The problem, however, is that here the

authority was not shared. The court’s conclusion that Stockbridge, through her most recent possession and limited past

joint use, had common authority over the computer is inconsistent with Ninth Circuit precedent. 

It is by now axiomatic that possession does not confer

“common authority.” For example, we have previously held

that a girlfriend does not cede authority to her boyfriend to

consent to a search of a purse that she left in the trunk of his

car. United States v. Welch, 4 F.3d 761, 764 (9th Cir. 1993).

Similarly, a defendant does not authorize his friend to consent

to a search of his boxes simply because that friend agreed to

store the defendant’s boxes in his garage. United States v.

Fultz, 146 F.3d 1102, 1105 (9th Cir. 1998); see also United

States v. Basinski, 226 F.3d 829, 834 (7th Cir. 2000) (same

UNITED STATES v. STANLEY 9933
reasoning and similar facts). And a friend does not have the

authority to consent to a search of a prisoner’s computer discs

simply because that friend was given those discs to hold while

the defendant was in prison. James, 353 F.3d 606, 614 (8th

Cir. 2003). “Put another way, one does not cede dominion

over an item to another just by putting him in possession [of

it].” Id. 

The record shows that Stockbridge possessed Stanley’s

computer — along with his clothing, video games, and other

items — only because Stanley was in prison, and they both

expected Stanley to re-possess the computer once he got out.

This arrangement did not somehow give Stockbridge the right

to allow law enforcement to mosey around Stanley’s computer files anymore than it gave her the right to allow law

enforcement to sift through Stanley’s underwear. That Stockbridge possessed the computer does not mean she had common authority over it.

The court also agrees with the government that Stockbridge

had common authority through her joint use because she

could have accessed Stanley’s files at any time. This circuit’s

precedent and other circuit court decisions, demonstrate that

even if a bailee (Stockbridge) can potentially access the contents of an item or container (that is, the bailee can break the

seal, turn the knob, lift the top, or in this case, click on a username), this potential access does not mean that the bailee has

the authority to do so, much less the authority to consent for

law enforcement to do so. Ninth Circuit cases subsequent to

Matlock have emphasized that a joint-user with limited permission to the searched property lacks common authority to

consent to a search. See, e.g., United States v. Warner, 843

F.2d 401, 402 (9th Cir. 1988); United States v. Impink, 728

F.2d 1228, 1233 (9th Cir. 1984). In those cases where we

have found that the consent-giver had common authority, we

relied on the consent-giver’s unlimited access to the property

to find that the joint-user had common authority to consent to

a search. See, e.g., United States v. Guzman, 852 F.2d 1117,

9934 UNITED STATES v. STANLEY
1122 (9th Cir. 1988); United States v. Sealey, 830 F.2d 1028,

1031 (9th Cir. 1987). Additionally, in those cases where we

found that the joint-user had common authority, the consentgiver was a spouse who had been living with the defendant.

Here, we have an ex-girlfriend who hadn’t lived with the

defendant for years. To meet its burden of showing “common

authority,” the government needed to introduce evidence

beyond simply that Stockbridge had used the computer and

that she was once again in possession of it. But that’s all the

government showed, which isn’t enough to establish common

authority.

For instance, in Fultz the defendant asked his friend to store

some boxes in a garage that the friend owned. 146 F.3d at

1105. The government asserted that the friend had actual

authority to consent to a search of the defendant’s boxes

because the friend had “full access to the garage, thereby

negating any expectation of privacy that Fultz might have had

in his cardboard boxes.” Id. at 1106. The Ninth Circuit

rejected the government’s argument, pointing out that the

friend did not use the boxes, nor did he claim to have a right

to access the boxes. Id. Additionally, the court emphasized

that the boxes “were segregated in one area of the garage.” Id.

“Thus, [the friend] lacked actual authority to consent to the

search.” Id. at 1106. Similarly, here the government asserts

that Stockbridge had authority to consent to a search, even

though Stockbridge adamantly denies ever having such

authority. Like the friend in Fultz, Stockbridge did not use

Stanley’s files or access them in any way. Like the boxes in

Fultz, Stanley’s files were segregated in one area of the computer — that is, under his username. Like the defendant in

Fultz, Stanley expected Stockbridge to leave his files alone.

Yet, without any explanation, the court disregards Fultz altogether.

Furthermore, in United States v. Davis, the Ninth Circuit

concluded that a roommate could not consent to the search of

a bag belonging to her roommate’s boyfriend, even if the boyUNITED STATES v. STANLEY 9935
friend left the bag at the apartment. 332 F.3d 1163, 1169 (9th

Cir. 2003). Applying the “container within a container” logic

from Welch and Fultz, we reasoned that the key inquiry was

not whether the consent-giving roommate had joint access to

the apartment, but whether she had joint access to that particular bag. Id. Applied here, the question is not whether Stockbridge simply had joint use of the computer, but whether she

had joint use and access to Stanley’s files. “The shared control

of ‘host’ property does not serve to forfeit the expectation of

privacy of containers within that property.” Id. (emphasis

added). 

Like the apartment in Davis, in this case the computer functions as the “host” property; Stanley’s username, directories,

and files, are the separate containers within that property. The

computer hard drive is a modern-day “container within a container.” Stockbridge could no more consent to a search of

these files than the roommate in Davis could lawfully consent

to the search of the duffle bag. Indeed, an unlocked duffle bag

can be just as easily unzipped as an unlocked username can

be accessed through the click of a mouse. Yet, if the former

is protected, there is little reason not to protect the latter.

Additionally, there is no evidence in the record that Stanley

ever gave Stockbridge permission to exercise control over his

hard drive, or to consent to a search of the hard drive. Stanley,

like all prisoners, had no choice but to allow someone to hold

onto his property for him while he served his sentence. When

Stockbridge received the computer, Stanley’s files were

behind a sealed username that she had to “breach.” Stanley

marked these files confidential by placing them under his

username, and by previously password-protecting them, evidencing a desire that no one, including Stockbridge — but

especially law enforcement — view the files. 

That Stanley allowed Stockbridge to access her music on

the computer does not change this calculus: when accessing

those files, Stockbridge was acting pursuant to an express

9936 UNITED STATES v. STANLEY
authorization that was narrowly tailored. It strains credulity to

expand this limited instruction into an all-purpose license that

includes not only full access, but also “common authority.” If

Stanley had intended to grant Stockbridge common authority

over his files, why would he segregate them? Why would he

set up a password while living with her? Why would he hide

them deep within the computer directories? Every action that

Stanley took, from setting up separate usernames to taking the

computer with him when he moved out, indicates that he

never intended for anyone but him to access his files. Taken

together, the totality of the circumstances demonstrates that

Stanley did not cede any authority to Stockbridge to view his

files, much less consent to a search. I would follow this circuit’s guidance in Fultz, Davis, and Welch, and reverse the

district court’s decision not the suppress this evidence.

For its part, the court cites the Supreme Court’s decision in

Matlock, as well our decisions in United States v. Ruiz, 428

F.3d 877 (9th Cir. 2005), and United States v. Brannan, 898

F.2d 107 (9th Cir. 1990). However, upon closer inspection,

these cases would not support the court’s conclusion.

Take Brannan, which the court cites for the following proposition: “ ‘Common authority’ rests upon mutual use of the

property by those generally having joint access or control

such that it is reasonable to recognize that each of the parties

has the right to permit inspection and has assumed the risk

that the other party might consent to a search.” 898 F.2d at

108. But here the court’s decision never explains how an exgirlfriend who was serving as a bailee was somehow imbued

with the authority to consent to a search of her ex-boyfriend’s

property, when a current girlfriend had no such authority in

Davis. Or why it is “reasonable to recognize” in this instance

that a prisoner “assumes the risk” that a bailee will consent to

a search, but it was not reasonable for the bailee to consent

in Fultz. 

In fact, in Brannon the Ninth Circuit concluded that the

defendant’s wife had actual authority to consent to a search of

UNITED STATES v. STANLEY 9937
a house that she jointly-owned, even though she had recently

moved out. 898 F.2d at 108. But the key in Brannon was that

the consent-giver had authority to consent because she (1)

was married to the defendant, and (2) actually owned the

house that was searched (that is, her name was on the title).

Id. The parallel with this case is nonexistent, because Stanley

and Stockbridge were never married, had been broken up for

two years, weren’t living together, and Stockbridge has no

ownership stake in the computer.

With the co-ownership theory void of any factual support,

and the common authority theory void of any precedential

support, the only remaining way to justify the government’s

warrantless search is by finding apparent authority. 

C. Apparent Authority

The court also agrees with the government that the agents

were reasonable to conclude that Stockbridge had apparent

authority to consent to the computer search, even if Stockbridge was not a co-owner and did not possess common

authority. But here, once again, we are reminded that facts are

stubborn things.

The test for apparent authority is straight forward: whether

the facts available to the agents at the time of the search

would lead a reasonable person to conclude that the consenting party had authority over the property. Illinois v. Rodriguez, 497 U.S. 177, 188 (1990) (internal citation omitted); see

also Welch, 4 F.3d at 764 (“Under the apparent authority doctrine, a search is valid if the government proves that the officers who conducted it reasonably believed that the person

from whom they obtained consent had the actual authority to

grant that consent.”). 

This, of course, is a fact-based inquiry. Indeed, it’s impossible to apply this test without discussing the facts that the

agents knew at the time of the search. But it’s hard to tell how

9938 UNITED STATES v. STANLEY
the court concludes that Stockbridge had apparent authority

because it chooses not to “revisit [the facts] at this juncture.”

So what is it that the agents knew at the time of consent?

For starters, the agents knew that Stockbridge had once dated

Stanley, but that the couple had broken up and had not lived

together for two years. The agents also knew that Stockbridge

was currently dating someone else at the time (David Trimm,

the man who tipped off law enforcement about the files in the

first place). The agents knew that Stockbridge was holding the

computer while Stanley was in prison. The agents also knew

that there was reason to suspect that Stanley’s files contained

illicit photographs. And finally, the agents knew that the computer had two separate usernames, one for Stanley and

another for Stockbridge. 

There is no way that any reasonable person would believe

that, under these circumstances, Stockbridge had the authority

to consent to a search of Stanley’s property. How is it reasonable to conclude that an ex-girlfriend has authority to consent

to a search of her ex-boyfriend’s computer while he is in

prison and while she is dating someone else? It’s not. And, of

course, that is why the agents sought a search warrant in the

first place.

What’s more, the officers knew too much about Stanley’s

manifested desire to keep others out of his files, and about his

ownership of the computer. That is, they knew that the files

were hidden, that the files were saved under Stanley’s username, and that Stanley had taken the computer with him when

he moved to California. See Davis, 332 F.3d at 1170 (noting

that “the officers were aware” that the defendant’s items

“were in a specific area separate from” everything else);

Fultz, 146 F.3d at 1106 (noting that officers were aware that

the defendant’s boxes were segregated into a separate area of

the garage); James, 353 F.3d at 614 (noting that the officers

knew the defendant had placed his discs in separate envelopes

UNITED STATES v. STANLEY 9939
that would have to be opened, thereby undermining the government’s apparent authority claim). 

The court also agrees with the government’s argument that

it was objectively reasonable to conclude that Stockbridge had

apparent authority because she possessed the computer. But

this is a misapplication of the law because possession, in

itself, does not translate to authority. Recall that in Welch the

boyfriend could not consent to a search of his girlfriend’s

purse, even though he possessed it in his car. 4 F.3d at 764.

And in Fultz a friend could not consent to a search of a defendant’s boxes even though the friend possessed the boxes. 146

F.3d at 1105. “An officer’s mistaken belief as to the law, even

if reasonable, cannot establish apparent authority.” Davis, 332

F.3d at 1170 (citing Welch, 4 F.3d at 764-65). By accepting

the government’s apparent authority argument, the court is

rubberstamping the government’s errors and ignoring key precedents.

In its decision, the court also apparently agrees with the

government’s argument that because Stanley’s files were not

password protected (thereby giving Stockbridge potential

access to his files), the agents were reasonable to conclude

that Stockbridge had authority to consent. But this, too, is a

misapplication of the law. Recall that in Fultz the defendant’s

friend had potential access to the defendant’s boxes, which

were unlocked and sitting in the friend’s garage. We concluded in Fultz that this potential access did not confer authority to consent. 146 F.3d at 1105. Again, conclusions are not

“reasonable” if they are based on misapplications of the law.

Davis, 332 F.3d at 1170.

Additionally, the court’s reliance on the Fourth Circuit’s

decision in United States v. Buckner, 473 F.3d 551 (4th Cir.

2007), is misplaced. In Buckner the defendant’s wife consented to a search of her husband’s computer files that were

stored on a computer that was leased in her name. Id. at 555.

Because the files were password-protected, the court con9940 UNITED STATES v. STANLEY
cluded that she did not have authority to consent to the search.

Id. at 554. The court reasoned that the password protection

indicated the defendant’s intent to exclude others from his

files. Id. However, the court concluded that the wife had

apparent authority to consent based on the information the

officers knew at the time, namely,

that the computer was located in a common living

area of the Buckners’ marital home, [the officers]

observed that the computer was on and the screen lit

despite the fact that Frank Buckner was not present,

and [the officers] had been told that fraudulent activity had been conducted from that computer using

accounts opened in [the wife’s] name. The officers

also knew that the machine was leased solely in [the

wife’s] name and that she had the ability to return

the computer to the rental agency at any time, without Frank Buckner’s knowledge or consent.

Id. at 555. None of these facts finds any parallel in the present

case. If anything, the reasoning in Buckner counsels against

apparent authority. Unlike the couple in Buckner, Stanley and

Stockbridge were not living together or even dating one

another at the time of the search. Unlike the computer in

Buckner, which was leased in the wife’s name, the computer

here belonged solely to Stanley.

Given what the agents knew at the time of the search, it

cannot be said that they acted pursuant to a reasonable belief

that Stockbridge had authority to consent to the warrantless

search.

II

Password Protection

Alternatively, the court insists that because Stanley’s files

were not password protected when Stockbridge took the comUNITED STATES v. STANLEY 9941
puter, Stanley had no reasonable expectation of privacy. But

this myopic focus on whether Stanley’s files were password

protected ignores key facts. 

First, Stanley’s username was password protected while he

was living with Stockbridge. Only when Stanley stopped living with Stockbridge, and began using his computer by himself, did he remove the password. In other words, Stanley

took precautions to protect his files when he knew that others

would have easy access to them. 

Second, the computer did not have a password when Stockbridge took control of it because Stanley was behind bars.

Stanley did not have the opportunity to reinstall a password

because he did not anticipate the arrest. Prisoners are not

allowed furloughs for the sole purpose of reinstalling a password on their computers before turning it over to a custodian.

Therefore, Stanley’s failure to install the password does not

speak to whether he had an expectation of privacy.

And third, the court’s reasoning would necessarily mean

that no prisoner would have any reasonable expectation of

privacy in his personal effects the second he enters the jailhouse — unless that property happens to be stored in a locked

container. Under this interpretation of the Fourth Amendment,

a police dragnet could extend to whatever property a prisoner

did not place under lock and key before he entered his jail

cell. Of course, because most prisoners rarely place their

property into storage in anticipation of arrest, this dragnet

would functionally include everything a defendant might own.

As a matter of policy, this argument is troubling; as a matter

of law, it is without support. The court certainly cites no law

or case (from any court) to support this sweeping circumvention of the Fourth Amendment.

The court does cite the Fourth Circuit’s decision in Trulock

v. Freeh, 275 F.3d 391 (4th Cir. 2001), and indeed that case

is instructive. In Trulock the Fourth Circuit considered

9942 UNITED STATES v. STANLEY
whether one joint-user of a computer can consent to a warrantless search of another’s password-protected files. Id. at

403. The Trulock court concluded that the joint-user’s authority did not extend to the password protected files because by

installing a password the defendant had “affirmatively

intended to exclude [the joint-user] and others from his personal files.” Id. That reasoning is crucial because here Stanley

demonstrated his intention to exclude Stockbridge from his

files when he password protected them while living with her.

He had no reason to keep that password after he moved out

because at that point he was the only user. But that previous

intention to exclude others, such as Stockbridge, never went

away. Stanley’s files were always segregated under his login

name. Password or not, Stanley considered those files his, and

that section of the computer closed off. The mechanical focus

on whether the computer had a password at the very moment

when Stockbridge took the computer strips Trulock of its logical moorings. To the extent that password-protected files are

more constitutionally private than non-password-protected

files, the key fact is that Stanley did secure his directories

while he was living with Stockbridge. The court’s formalism

misses the forest for the trees.

Additionally, the Supreme Court does not make distinctions

between locked and unlocked containers when it comes to

expectations of privacy. In Robbins v. California, the

Supreme Court considered whether police officers who are

conducting a lawful, but warrantless, search of a vehicle during a traffic stop, may also search an unlocked container

found within that car. 453 U.S. 420, 425 (1981). In his plurality opinion, Justice Stewart flatly rejected the argument that

there is a constitutional distinction between containers that are

more “secured” than others.

First, it has no basis in the language or meaning of

the Fourth Amendment. . . . The contents of Chadwick’s footlocker and Sanders’ suitcase were

immune from a warrantless search because they had

UNITED STATES v. STANLEY 9943
been placed within a closed, opaque container and

because Chadwick and Sanders had thereby reasonably “manifested an expectation that the contents

would remain free from public examination.” Once

placed within such a container, a diary and a dishpan

are equally protected by the Fourth Amendment.

Second, even if one wished to import such a distinction into the Fourth Amendment, it is difficult if not

impossible to perceive any objective criteria by

which that task might be accomplished. What one

person may put into a suitcase, another may put into

a paper bag. And as the disparate results in the

decided cases indicate, no court, no constable, no citizen, can sensibly be asked to distinguish the relative

“privacy interests” in a closed suitcase, briefcase,

portfolio, duffel bag, or box.

Id. at 426-27 (internal citations omitted). The Supreme Court

reiterated this conclusion in United States v. Ross, and clarified that the scope of the Robbins rule is broad:

This rule applies equally to all containers. One point

on which the Court was in virtually unanimous

agreement in Robbins was that a constitutional distinction between “worthy” and “unworthy” containers would be improper. Even though such a

distinction perhaps could evolve in a series of cases

in which paper bags, locked trunks, lunch buckets,

and orange crates were placed on one side of the line

or the other, the central purpose of the Fourth

Amendment forecloses such a distinction. For just as

the most frail cottage in the kingdom is absolutely

entitled to the same guarantees of privacy as the

most majestic mansion, so also may a traveler who

carries a toothbrush and a few articles of clothing in

a paper bag or knotted scarf claim an equal right to

conceal his possessions from official inspection as

9944 UNITED STATES v. STANLEY
the sophisticated executive with the locked attaché

case.

456 U.S. 798, 822 (1982) (emphasis added). A frail cottage

might not have the padlock that a majestic mansion has, but

under the Fourth Amendment, that does not matter. Justice

Stewart’s logic, which applies as equally to locked suitcases

as it does to paper bags (which cannot be “locked” in any

meaningful way), should be applied to our modern-day containers, such as computer directories. If an individual can

maintain a reasonable expectation of privacy in an unlocked

paper bag that’s stuffed with a toothbrush, then likewise he

can maintain a reasonable expectation of privacy in his

unlocked computer. 

Constitutional protections do not turn on the frailty of a

container’s securities because the Fourth Amendment does

not concern itself with passwords or locks. See Miller v.

United States, 357 U.S. 301, 307 n.7 (1958) (quoting William

Pitt’s speech to Parliament in 1763, “ ‘The poorest man may

in his cottage bid defiance to all the forces of the Crown. It

may be frail; its roof may shake; the wind may blow through

it; the storm may enter; the rain may enter; but the King of

England cannot enter-all his force dares not cross the threshold of the ruined tenement.’ ”) (citing THE OXFORD DICTIONARY

OF QUOTATIONS 379 (2d ed. 1953)). 

Ultimately, the court’s laser-like focus on whether the computer was password protected is much ado about nothing.

III

Clearly Erroneous

The court argues that I overlook a difference between our

role as an appellate court, and the district court’s role as the

fact finder. The court is quite right that we review the district

court’s factual findings for “clear error.” Indeed, I apply this

UNITED STATES v. STANLEY 9945
standard and conclude that the district court’s conclusion that

Stockbridge was a co-owner of the computer was clearly erroneous. An ex-girlfriend does not co-own a computer given to

her ex-boyfriend by his father.

But the issue of consent is not a factual question; it is a

legal question. This entire dissent is predicated on the

assumption that Stockbridge did consent to the search —

thereby deferring to the district court’s conclusion. The issue

is not whether Stockbridge consented, the issue is whether she

had the authority to consent. That is a legal question that we

review de novo. The court’s argument is predicated on the

assumption that this is a factual issue, which misses the point.

Upon review, I conclude that as a matter of law, an exgirlfriend, acting as a bailee, cannot consent to a search of her

ex-boyfriend’s property while he is serving a prison sentence.

Additionally, the “apparent authority” question is also a legal

issue, even though it involves a fact-based inquiry. Again, as

a matter of law, I conclude that based on this court’s precedent and Supreme Court precedent, given what the agents

knew at the time, it was unreasonable for them to believe that

an ex-girlfriend had the authority to consent to this search.

Indeed, as stated above, the agents’ conclusion that Stockbridge had apparent authority was based on two misapplications of the law — which can never be reasonable.

Conclusion

After law enforcement agents took possession of Stanley’s

computer, they sought and received a search warrant that

allowed them to search the laptop’s files. But warrants are not

diamonds; they are not forever. 

By failing to renew the search warrant, the government had

no choice but to rely on an alternative justification: consent.

But this after-the-fact justification cannot be squared with the

facts, much less the Constitution. I, for one, do not believe

that the Fourth Amendment can be so easily ignored or cir9946 UNITED STATES v. STANLEY
cumvented. Warrantless searches are not trivial events. Serious events ought to be taken seriously. 

An ex-girlfriend has no authority to consent to a search of

her ex-boyfriend’s computer while he is in prison. Under the

cardinal principle embedded in the Fourth Amendment, this

warrantless search was illegal. I would reverse the district

court’s decision not to grant Stanley’s Motion to Suppress.

I dissent.

UNITED STATES v. STANLEY 9947