                                    In the

        United States Court of Appeals
                      For the Seventh Circuit
                          ____________________
No. 15-3109
UNITED STATES OF AMERICA,
                                                         Plaintiff-Appellee,

                                       v.

TALON G. WRIGHT,
                                                     Defendant-Appellant.
                          ____________________

                 Appeal from the United States District Court
                     for the Central District of Illinois.
                    No. 14-cr-69 — Colin S. Bruce, Judge.
                          ____________________

       ARGUED APRIL 18, 2016 — DECIDED SEPTEMBER 23, 2016
                          ____________________

  Before EASTERBROOK and SYKES, Circuit Judges, and
ADELMAN, District Judge. *
    SYKES, Circuit Judge. A day after police responded to a
domestic dispute between Talon Wright and Leslie
Hamilton, an investigator returned to the couple’s apartment
to follow up on suspicions that Wright was in possession of
child pornography. With Hamilton’s consent, the investiga-

*   Of the Eastern District of Wisconsin, sitting by designation.
2                                                 No. 15-3109

tor searched the apartment and conducted a forensic pre-
view of a desktop computer found in the living room. The
preview revealed images of child pornography on the hard
drive. Wright was indicted on child-pornography and child-
exploitation charges. He moved to suppress the evidence
recovered from the warrantless search of his computer,
arguing that Hamilton lacked authority to consent. The
district judge denied the motion. Wright pleaded guilty but
reserved his right to appeal the denial of suppression and
now does so.
    We affirm. Although Wright owned the desktop comput-
er, Hamilton was a joint user who enjoyed virtually unlim-
ited access to and control over it. The computer was located
in the living room of the couple’s apartment, and everyone in
the family, including Hamilton and her children, used it
freely. These facts, which were conveyed to the investigator
prior to the search and later confirmed through further
investigation, establish Hamilton’s common authority over
the computer.
                       I. Background
    On July 31, 2014, police officers in Urbana, Illinois, re-
sponded to a domestic dispute between Wright and Hamil-
ton. In their incident report, the responding officers noted
that Hamilton called Wright a “pedophile” during the
altercation. Apparently no arrests were made that day.
    The following morning Urbana Police Investigator Tim
McNaught, who specializes in handling crimes against
children, reviewed the officers’ report as a matter of course.
Concerned about Hamilton’s use of the word “pedophile,”
Investigator McNaught contacted her and requested a
No. 15-3109                                                  3

meeting. Hamilton arrived at the police station that same
morning. In this initial interview, Investigator McNaught
sought Hamilton’s permission to search the couple’s apart-
ment and computers for evidence of child pornography.
Hamilton agreed and took McNaught to the apartment.
   During the search, McNaught seized a desktop computer
he found in the living room; forensic analysis revealed
images of child pornography on the hard drive. Wright was
charged with one count of possessing child pornography,
18 U.S.C. § 2252A, and two counts of sexually exploiting a
minor, id. § 2251. He moved to suppress the evidence recov-
ered from the desktop computer, arguing that Hamilton
lacked authority to consent to the warrantless search.
    At the evidentiary hearing that followed, Investigator
McNaught testified about three different encounters with
Hamilton on the day of the search: (1) the initial interview
conducted prior to the search; (2) a discussion that occurred
during the search itself; and (3) a lengthier post-search
interview.
    First, Investigator McNaught described the brief inter-
view with Hamilton that took place at the Urbana police
station before the search of the apartment and computer. In
that interview McNaught asked Hamilton why she called
Wright a pedophile. Hamilton responded that Wright had
used his cellphone to visit a website called “Jailbait.” Inves-
tigator McNaught recognized “Jailbait” as a site that features
pornographic images of underage girls. Hamilton also
mentioned seeing a video with a disturbing title on the
family’s home computer. Based on this information,
McNaught asked Hamilton for permission to search the
4                                                 No. 15-3109

couple’s apartment and computers for evidence of child
pornography, and Hamilton agreed.
    Next, Investigator McNaught testified about the search
itself. He explained that Hamilton took him to the apartment
that she shared with Wright and let him in using her key.
Once inside McNaught spotted a desktop computer on the
living-room floor. The computer wasn’t attached to a key-
board or traditional monitor, but it was connected to a flat-
screen TV. According to Investigator McNaught, Hamilton
described the computer as “kind of a family computer” and
said that “[a]nytime she or her kids wanted to use it, they
did.” She explained that they used the computer to watch
movies, play games, check the children’s grades, and store
work-related documents. However, since the apartment’s
wireless Internet service had been discontinued about a
month earlier, they could only access the Internet when
Wright was around to use his cellphone as a wireless
hotspot. Hamilton also pointed out her own laptop comput-
er; she told the investigator that with the exception of her
personal laptop, Wright owned the rest of the computer
equipment in the apartment.
   Investigator McNaught then “previewed” the desktop
computer’s hard drive by connecting it to his own laptop, a
standard forensic procedure that allows investigators to
view the drive’s contents without altering it. This preview
revealed images of child pornography, so McNaught asked
Hamilton for permission to seize the computer along with
the rest of the electronic devices in the apartment for further
investigation. She agreed. Off-site forensic analysis of the
computer revealed additional pornographic images as well
No. 15-3109                                                 5

as video and still images of Wright engaging in sexually
explicit conduct with a minor.
    Finally, Investigator McNaught testified about a second
interview that he conducted with Hamilton after he complet-
ed his search of the apartment. During this longer follow-up
interview, Hamilton described the living arrangements at
the apartment, which was leased in her name. She explained
that she and Wright had been in a tumultuous, “on-and-off”
relationship for the last two years and had broken up several
days earlier. Prior to the breakup, the couple had been living
together in the apartment along with their six-month old
son, three of Hamilton’s children from another relationship,
and two of Wright’s children from another relationship.
Since the breakup Wright and his two daughters were
temporarily staying with his mother while Hamilton and her
children prepared to move out of the apartment permanent-
ly.
   Hamilton also talked about the desktop computer during
the second interview. She mentioned a long password that
her children knew but she did not. She suggested that the
password was somehow associated with the computer but
was unable to say if it was required to gain access to the
computer itself or only to access the Internet via the apart-
ment’s wireless connection. Hamilton also reiterated that she
and her children regularly used the computer to watch
movies, play games, and access the Internet. The forensic
analysis of the computer did not reveal any sign of password
protection, but it did confirm that Hamilton and her children
had used the computer recently: The browser history re-
vealed frequent visits to kid-friendly websites, online videos
6                                                   No. 15-3109

relating to women’s and mothers’ issues, and the homepage
for the children’s school.
    Based on Investigator McNaught’s testimony, the judge
concluded that Hamilton exercised common authority over
the desktop computer and could give valid consent to the
warrantless search. Accordingly, the judge denied Wright’s
motion to suppress. Wright pleaded guilty to one count of
sexual exploitation of a minor and one count of possessing
child pornography but reserved his right to appeal the
ruling on his suppression motion.
                        II. Discussion
    Wright challenges the district court’s denial of suppres-
sion. We review the judge’s legal conclusions de novo and
factual findings for clear error. United States v. James,
571 F.3d 707, 713 (7th Cir. 2009). Wright’s challenge is lim-
ited to the search of the desktop computer, which was
conducted without a warrant but with Hamilton’s consent.
    The Fourth Amendment guarantees the “right of the
people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures.”
U.S. CONST. amend. IV. A warrantless search of property is
per se unreasonable unless an established exception applies.
United States v. Henderson, 536 F.3d 776, 779 (7th Cir. 2008)
(citing Katz v. United States, 389 U.S. 347, 357 (1967)). Search-
es conducted with consent are one such exception. Fernandez
v. California, 134 S. Ct. 1126, 1132 (2014); see also James,
571 F.3d at 713 (“Because a person may voluntarily waive his
Fourth Amendment rights, no warrant is required where the
defendant consents to a search.”).
No. 15-3109                                                      7

     Consent may be obtained either from the defendant or
from a third party who exercises common authority over the
property to be searched. United States v. Matlock, 415 U.S.
164, 170–71 (1974). Common authority does not require the
existence of an ownership interest in the property; it “rests
rather on mutual use of the property by persons generally
having joint access or control for most purposes.” Id. at 171
n.7. The premise of this rule is that a defendant who permits
another person to use his property assumes the risk that that
person will allow others to access the property in his ab-
sence. Id.; see also United States v. Jackson, 598 F.3d 340, 347
(7th Cir. 2010). And because “the ultimate touchstone of the
Fourth Amendment is reasonableness,” Fernandez, 134 S. Ct.
at 1132 (quotation marks omitted), either actual authority or
apparent authority is enough to support third-party consent.
Illinois v. Rodriguez, 497 U.S. 177, 188–89 (1990); see also James,
571 F.3d at 714. The government bears the burden of proving
authority to consent, whether actual or apparent, by a
preponderance of evidence. James, 571 F.3d at 714.
A. Actual Authority
    Wright concedes that Hamilton exercised common au-
thority over the couple’s apartment, but it doesn’t necessari-
ly follow that her authority extended to the desktop com-
puter found inside. “The key to consent is actual or apparent
authority over the area to be searched.” United States v. Basinski,
226 F.3d 829, 834 (7th Cir. 2000) (emphasis added). As sever-
al of our sister circuits have observed, in this context com-
puters are akin to closed containers: The information that
they “contain” is usually not readily observable without
some further investigation. See United States v. Andrus,
483 F.3d 711, 718 (10th Cir. 2007); United States v. Buckner,
8                                                          No. 15-3109

473 F.3d 551, 554 (4th Cir. 2007); cf. United States v. Rodriguez,
888 F.2d 519, 523 (7th Cir. 1989) (“Many a closed container is
accessible; opening it requires justification … .”). So
Hamilton’s authority over the computer turns on whether
she enjoyed mutual use of, access to, and control over the
computer itself.
    It’s clear that she did. The desktop computer belonged to
Wright, not Hamilton, but it functioned as a family comput-
er. According to Hamilton, she and her children freely used
it to watch movies, play games, check the children’s grades,
and store work-related documents. Forensic analysis bol-
stered this claim: Investigator McNaught testified that he
found “a lot of Internet history” showing recently viewed
children’s movies and games as well as the login page for
Urbana Middle School’s website. Moreover, Wright left the
computer in the apartment when he went to stay with his
mother, leaving Hamilton with unrestricted access to and
control over it in his absence. These facts easily establish that
Hamilton exercised common authority over the computer.
Cf. Frazier v. Cupp, 394 U.S. 731, 740 (1969) (holding that the
defendant’s cousin had common authority over a duffel bag
that the cousin was allowed to keep at his house and use to
store his belongings). 1


1 Wright notes that the only way to access the Internet from the desktop
computer was to use his cellphone as a wireless hotspot. This, he claims,
demonstrates that Hamilton’s use of the computer was restricted because
she could only get online in his presence and with his permission. His
claim is only half true. The apartment’s wireless Internet service was
discontinued about a month before the search because the couple had
failed to pay their bill. However, forensic analysis uncovered an Internet
history consistent with Hamilton’s testimony dating back more than two
months before the search occurred. So Hamilton had at least one month
No. 15-3109                                                          9

    Wright’s arguments to the contrary are unpersuasive.
First, he makes much of the fact that he and Hamilton had
ended their relationship shortly before the search occurred.
He emphasizes that Hamilton was in the process of moving
out of the apartment and that she was not planning to take
the desktop computer with her when she left. He argues that
any authority over the computer Hamilton once had was
revoked when she started packing up her things to move
out. But the end of a romantic relationship doesn’t automati-
cally mean that common authority over shared property has
been revoked. See United States v. Ryerson, 545 F.3d 483, 488
(7th Cir. 2008). If the ex-partner “continue[s] to access, use,
or control the property,” as Hamilton did, she continues to
exercise authority regardless of the relationship’s status. Id.
    Second, Wright points out that the desktop computer had
a password associated with it—one that Hamilton admitted
she didn’t know. He argues that this admission necessarily
means that Hamilton lacked common authority over the
computer. It’s true that ignorance of a computer password
may demonstrate a lack of authority under some circum-
stances. Like a lock on a briefcase or storage trunk, password
protection on a computer demonstrates the owner’s affirma-
tive intent to limit access to its contents. See, e.g., Andrus,
483 F.3d at 718; Buckner, 473 F.3d at 554; Trulock v. Freeh,
275 F.3d 391, 403 (4th Cir. 2001). In other words, a defendant
who password-protects his computer does not assume the


of unlimited Internet access before the search. Moreover, online brows-
ing is just one of several ways in which Hamilton claimed that she used
the desktop computer. The other uses that she described—watching
downloaded movies and storing work-related documents—only re-
quired access to the computer itself, not the Internet.
10                                                No. 15-3109

risk that third parties not privy to the password will permit
others to access the computer’s contents in his absence. See
Buckner, 473 F.3d at 554. Accordingly, third parties from
whom a password has been withheld lack common authori-
ty over a computer.
   But Hamilton is not in that situation. As an initial matter,
there’s some ambiguity about whether the desktop comput-
er was actually password-protected. Hamilton was unable to
specify whether the long password she mentioned was
required to access the computer itself or simply to connect to
the apartment’s wireless network. Investigator McNaught,
on the other hand, testified unequivocally that forensic
analysis of the computer revealed no sign of password
protection. Given these facts, we think it unlikely that the
computer itself was password-protected.
    That said, we agree with the district judge that Hamilton
exercised common authority over the computer even assum-
ing it was password-protected. Hamilton didn’t know the
password but her children did, which strongly suggests that
Wright made no attempt to keep it from her. Cf. United States
v. Richards, 741 F.3d 843, 850 (7th Cir. 2014) (“[The defend-
ant] had an expectation of privacy in the west bedroom
because … he alone had access to the room if it was locked.”)
(emphasis added). Indeed, there’s no indication that Wright
made any effort to prevent Hamilton from using the com-
puter despite knowing that she and her children did so
frequently. In contrast Wright did take steps to prevent
Hamilton from accessing his cellphone: Hamilton told
Investigator McNaught that she rarely even got a look at the
phone because Wright was constantly changing its passcode.
In this context Hamilton’s ignorance of whatever password
No. 15-3109                                                  11

may have been associated with the desktop computer
doesn’t undercut the common authority that she exercised
by virtue of being able to use the computer whenever she
wanted. See James, 571 F.3d at 714 (holding that the defend-
ant’s mother exercised common authority over a safe left in
her possession absent “evidence that [the defendant] at-
tempted to limit or restrict her control over the safe”). Her
consent to the warrantless search of the computer’s hard
drive was therefore valid, and the judge properly denied
Wright’s motion to suppress on this basis.
B. Apparent Authority
    Although the district judge considered only Hamilton’s
actual authority over the desktop computer, the record
establishes that Hamilton also exercised apparent authority,
which provides an alternative basis for denying Wright’s
suppression motion. See United States v. Reaves, 796 F.3d 738,
741–42 (7th Cir. 2015) (“[W]e may affirm the judgment of the
district court on any ground supported in the record.”).
Apparent authority exists if “the facts available to an officer
at the time of a search would allow a person of reasonable
caution to believe that the consenting party had authority”
over the property to be searched. Ryerson, 545 F.3d at 489
(citing Rodriguez, 497 U.S. at 188); see also United States v.
Groves, 470 F.3d 311, 319 (7th Cir. 2006) (“Facts that came to
light after the search began cannot reasonably have influ-
enced the officers’ beliefs regarding whether [a third party]
possessed apparent authority.”).
    Of course “mere possession of [a closed] container by a
third party does not necessarily give rise to a reasonable
belief that the third party has authority to consent to a search
of its contents.” Basinski, 226 F.3d at 834. Rather “one must
12                                                 No. 15-3109

look for indicia of actual authority” over the container
known to the officer at the time of the search. United States v.
Rosario, 962 F.2d 733, 737 (7th Cir. 1992) (quotation marks
omitted); see also Basinski, 226 F.3d at 834 (“[A]pparent
authority turns on the government’s knowledge of the third
party’s use of, control over, and access to the container to be
searched, because these characteristics are particularly
probative of whether the individual has authority over the
property.”). Typically this analysis entails considering the
nature of the container and its outward appearance, includ-
ing the presence of any sort of locking mechanism. Basinski,
226 F.3d at 835. When the container at issue is a computer, a
key consideration is “whether law enforcement knows or
should reasonably suspect because of surrounding circum-
stances that the computer is password protected.” Andrus,
483 F.3d at 719.
    The judge found that before Investigator McNaught
searched the desktop computer, Hamilton informed him that
it was a family computer that she and her children could use
any time. What McNaught observed at the apartment was
consistent with this claim. The computer was located on the
living-room floor, which was scattered with women’s
clothes and children’s toys, and was also apparently where
Hamilton and Wright slept. Although the computer had no
keyboard attached to it, it was connected to a flat-screen TV,
consistent with Hamilton’s earlier claim that she and her
children used the computer to watch family movies. Moreo-
ver, Hamilton made no mention that the computer might be
No. 15-3109                                                            13

password-protected until her second interview with Investi-
gator McNaught, which took place after the search. 2
    Given this information, it would have been entirely rea-
sonable for Investigator McNaught to conclude that
Hamilton exercised common authority over the desktop
computer. See, e.g., Andrus, 483 F.3d at 719 (“Third party
apparent authority to consent to a search has generally been
upheld when the computer is located in a common area of
the home that is accessible to other family members under
circumstances indicating the other family members were not
excluded from using the computer.”); cf. Basinski, 226 F.3d at
835 (holding that the defendant’s friend lacked apparent
authority over a briefcase because the officers “knew that
[the defendant] never gave [his friend] the combination to
the lock”). Hamilton’s apparent authority provides an
additional basis for concluding that her consent was valid
and that Wright’s suppression motion was properly denied.
                                                             AFFIRMED.




2 At oral argument Wright’s counsel suggested that Hamilton first told
Investigator McNaught about her use of the desktop computer during
the second interview, which occurred after the search. The judge’s factual
findings, which he set forth chronologically in the order denying the
motion to suppress, are to the contrary. The judge found that Hamilton
told McNaught the entire family used the computer to download and
watch family movies during the first, pre-search interview. The judge
also found that while Investigator McNaught was searching the apart-
ment, Hamilton again indicated that any time she or her children wanted
to use the computer, they did. Wright points to nothing in the record that
contradicts these findings, and we see no basis to conclude that they are
clearly erroneous.
