People v. Prinzing

dissenting:

Under the facts of this case, I would hold that any police deception had no bearing on the validity of defendant’s consent, and I would hold that the search actually conducted fell within the scope of defendant’s consent. I would therefore affirm defendant’s conviction.

I begin by discussing the effect of the alleged police deception on the validity of defendant’s consent. Illinois law provides unclear guidance on the point. The law as recited by the majority says at once that “[cjonsent is not voluntary where it is the result of official coercion, intimidation, or deception” (Graf, 265 Ill. App. 3d at 750), that consent obtained by deception may be invalid (Daugherty, 161 Ill. App. 3d at 399), that deception is a factor to be considered in assessing the voluntariness of a confession (Minniti, 373 Ill. App. 3d at 69), and that police tactics are unconstitutional where they are “purely deceptive” (as opposed to partially deceptive). See 389 Ill. App. 3d at 932, 934-35. These cases (and the majority) offer little to explain their conflicting views of the effect of police deception on consent. I therefore offer my own analysis of the issue.

Most authorities that would hold a consent procured by police deception to be invalid, including the Illinois cases cited by the majority, rely on the fourth and fourteenth amendment requirement that a consent be voluntary in order to be effective. Before the Supreme Court’s 1973 decision in Sehneckloth, which articulated the standards to be applied in determining the voluntariness of a consent to search, courts employed more elusive, and more subjective, measures of voluntariness. For example, in Alexander v. United States, 390 F.2d 101 (5th Cir. 1968), the Fifth Circuit rejected the argument that the defendant, who had been detained by postal inspectors, voluntarily consented to a search of his wallet, in part because the arrest may have coerced the consent and in part because the postal inspectors told the defendant that they were looking for stolen jewels when they were actually looking for stolen (and marked) cash. On the latter point, the court opined that “[ijntimidation and deceit are not the norms of voluntarism” and that, “[i]n order for the response to be free, the stimulus must be devoid of mendacity.” Alexander, 390 F.2d at 110. The court went on to analogize the defendant’s consent to a “fraudulently induced contract,” and it stated that condoning police deception of the type at issue would “ ‘ “obliterate one of the most fundamental distinctions between our form of government, where officers are under the law, and the police-state where they are the law.” ’ ” Alexander, 390 F.2d at 110, quoting United States v. Como, 340 F.2d 891, 894-95 (2d Cir. 1965), quoting Johnson v. United States, 333 U.S. 10, 17, 92 L. Ed. 436, 442, 68 S. Ct. 367, 370-71 (1948). The court thus concluded that “ ‘civilized standards of fundamental fairness’ ” required that the consent be deemed involuntary. Alexander, 390 F.2d at 110, quoting Como, 340 F.2d at 894-95.

The Fifth Circuit’s holding stood as a stern repudiation of consent induced by police deception of any kind. However, its reasoning was not unassailable, and its decision provided little practical guidance. On the former point, the analogy between consent to search on one hand and contract on the other has been rejected (see M. Friedman, Another Stab at Schneckloth: The Problem of Limited Consent Searches and Plain View Seizures, 89 J. Crim. L. & Criminology 313, 337 n.151 (1998) (hereinafter Friedman) (collecting cases)) and, in any event, is untenable due to the imbalance in bargaining power between police and suspect (Friedman, 89 J. Grim. L. & Criminology at 338) and also the failure of consideration. On the latter point, concepts of “fundamental fairness” prove too subjective to form the basis of a predictable standard for voluntariness. The Fifth Circuit found police deception antithetical to our notions of fairness, and other courts have since shared the opinion. For example, the Ninth Circuit has stated that individuals should be able to rely on government agents’ representations and thus held it “ ‘clearly improper for a government agent to gain access to records which would otherwise be unavailable to him by invoking the private individual’s trust in his government, only to betray that trust.’ ” United States v. Bosse, 898 F.2d 113, 115 (9th Cir. 1990), quoting Securities & Exchange Comm’n v. ESM Government Securities, Inc., 645 F.2d 310, 316 (5th Cir. 1981). However, other courts, including the Supreme Court, have taken a more practical view. See Sherman v. United States, 356 U.S. 369, 372, 2 L. Ed. 2d 848, 851, 78 S. Ct. 819, 820-21 (1958) (police inducement short of entrapment is acceptable because “[c]riminal activity is such that stealth and strategy are necessary weapons in the arsenal of a police officer”); United States v. Peters, 153 F.3d 445, 464 (7th Cir. 1998) (Easterbrook, J., concurring) (“Deception plays an important and legitimate role in law enforcement”); People v. Zamora, 940 P.2d 939, 942 (Colo. App. 1996) (collecting cases in which police deception leading to consent deemed fair or consent deemed voluntary); see also Model Penal Code §2.13, Comment 2 (1985) (regarding entrapment, “some tactics employing misrepresentation and persuasion are necessary to successful police work and ought not to be forbidden”).

The Supreme Court resolved this ambiguity by providing a clearer definition of “voluntariness” in its decision in Schneckloth. There, the Supreme Court turned to the “judicial exposition of the meaning of ‘voluntariness’ ” in the context of confessions to define the test for a suspect’s consent. Schneckloth, 412 U.S. at 223, 36 L. Ed. 2d at 860-61, 93 S. Ct. at 2045-46. The Supreme Court observed that the voluntariness test in confession cases reflected the competing values implicated in police interrogation: “the need for police questioning as a tool for the effective enforcement of criminal laws” on one hand, and “society’s deeply felt belief that the criminal law cannot be used as an instrument of unfairness, and that the possibility of unfair and even brutal police tactics poses a real and serious threat to civilized notions of justice” on the other. Schneckloth, 412 U.S. at 224-25, 36 L. Ed. 2d at 861, 93 S. Ct. at 2046. Because consent cases raise similar considerations, and because it reasoned that “the requirement of a ‘voluntary’ consent reflects a fair accommodation of the constitutional requirements involved,” the Supreme Court held that “there [was] no reason *** to depart in the area of consent searches, from the traditional definition of ‘voluntariness.’ ” Schneckloth, 412 U.S. at 229, 36 L. Ed. 2d at 864, 93 S. Ct. at 2049.2 Under the test adopted in Schneckloth, a consent will be deemed involuntary and thus invalid where it is “coerced, by explicit or implicit means, by implied threat or covert force” (Schneckloth, 412 U.S. at 228, 36 L. Ed. 2d at 863, 93 S. Ct. at 2048) and is therefore not “the product of an essentially free and unconstrained choice” by the suspect (Schneckloth, 412 U.S. at 225, 36 L. Ed. 2d at 862, 93 S. Ct. at 2047). This assessment of voluntariness “is a question of fact to he determined from all the circumstances” (Schneckloth, 412 U.S. at 248-49, 36 L. Ed. 2d at 875, 93 S. Ct. at 2059) that takes into account both the characteristics of the accused and the details of the encounter (see Schneckloth, 412 U.S. at 226, 36 L. Ed. 2d at 862, 93 S. Ct. at 2047). In the time since Schneckloth, courts have developed a list of factors that might render a consent involuntary. Among those factors are “the defendant’s age, education, and intelligence, the length of [any] detention and the duration of the questioning, whether the defendant was advised of his constitutional rights, and whether the defendant was subjected to any physical mistreatment.” People v. Spann, 332 Ill. App. 3d 425, 439 (2002).3

In the time since Schneckloth, lower courts have applied the voluntariness test to police deception cases with inconsistent results. It is widely acknowledged that police deception could work to coerce an involuntary consent in the way Schneckloth forbids, by interfering with the suspect’s ability to make a free choice to grant or deny consent. For example, in Bumper, a case that predates Schneckloth but is nonetheless instructive, the Supreme Court held invalid a consent procured by a police officer falsely telling a suspect that he possessed a search warrant, because the consent was coerced by the officer’s announcing “in effect that the [suspect] ha[d] no right to resist the search.” Bumper, 391 U.S. at 550, 20 L. Ed. 2d at 803, 88 S. Ct. at 1792. The majority cites Bumper along with a series of Illinois cases in which police undermined the suspects’ free will by falsely asserting that they could seize the property to be searched in the absence of consent (Casazza, 144 Ill. 2d 414) or by making unsupportable threats against the suspects’ property (Bailey, 273 Ill. App. 3d 431) or family (Purchase, 214 Ill. App. 3d 152). Each of these types of deception works somehow to rob the suspect of the sense of free choice to grant or deny consent, either by leaving the suspect with the impression that the law or the circumstances allow no choice or by conveying a threat that tends to undermine the suspect’s will to refuse. It therefore makes sense that a consent given in the face of these types of police deception should not be considered voluntary.

Some cases, however, have expanded the rule against these types of deception into a blanket prohibition of all deception leading to consent. These courts have held, without qualification, that “ ‘consent obtained through deception cannot be said to have been given freely and voluntarily.’ ” State v. Hickson, 69 Ohio App. 3d 278, 280, 590 N.E.2d 779, 780 (1990), quoting State v. Pi Kappa Alpha Fraternity, 23 Ohio St. 3d 141, 144, 491 N.E.2d 1129, 1132 (1986). Other courts have implied the same rule by indiscriminately equating all types of deception with unconstitutional coercion (Graf, 265 Ill. App. 3d at 750 (“[cjonsent is not voluntary where it is the result of official coercion, intimidation, or deception”)) or by stating the same rule with the meager qualification that deception invalidates consent “if the consent was given in reliance on” the misrepresentation. United States v. Briley, 726 F.2d 1301, 1304 (8th Cir. 1984); United States v. Turpin, 707 F.2d 332, 335 (8th Cir. 1982). (These statements from the Eighth Circuit cases rely on Bumper as authority, but I have described the reach of Bumper above as being more limited than the statements suggest.) Some cases thus hold that consent will be involuntary where the police tell a suspect that they wish to enter her home to look out her window when they actually expect to see illegal drugs in plain view upon entry (Hickson, 69 Ohio App. 3d 278, 590 N.E.2d 779), while others imply that an officer’s misleading a suspect as to whether he is the subject of an investigation could render involuntary a consent to search (Turpin, 707 F.2d at 335 (noting that police had misled the defendant but further noting that police had supplied information that “clearly implied” the defendant was a suspect and that police did not misrepresent their legal authority to search)).

I disagree with the per se rule that can be drawn from these cases. See Peters, 153 F.3d at 463 (Easterbrook, J., concurring) (“A statement’s voluntariness is not undercut by the fact that the speaker was unaware that he was a target”). It does not follow that, because some types of police deception can render a consent involuntary, all types of police deception should invalidate consent. This notion is decidedly inconsistent with the Supreme Court’s ubiquitous admonition that courts evaluate the totality of the circumstances in making this type of assessment, and it expands the prohibition on police deception far beyond the voluntariness test announced in Schneckloth. See 4 W. LaFave, Search & Seizure §8.2(n), at 136-37 (4th ed. 2004) (“But, at least since Schneckloth v. Bustamonte, it cannot be said that such deception is inherently incompatible with consent, for in Schneckloth the Court adopted the voluntariness test from the coerced confession cases, which has not been deemed to compel the exclusion of statements obtained by police misrepresentation of the crime under investigation”); see also People v. Martin, 102 Ill. 2d 412, 427 (1984) (police deception “does not invalidate [a] confession as a matter of law”).

It is also inconsistent with the realities of police work, which often involves undercover investigations of the type that would not be allowed under a per se rule against deception leading to consent. The Supreme Court has endorsed such undercover police work in the face of a challenge that it constituted deception invalidating consent. In Lewis v. United States, 385 U.S. 206, 17 L. Ed. 2d 312, 87 S. Ct. 424 (1966), a federal agent posed as a drug buyer and was admitted into the defendant’s home, where he purchased drugs. The Supreme Court noted that the defendant “invited the undercover agent to his home” and that the agent did not “see, hear, or take anything that was not contemplated, and in fact intended, by [the defendant] as a necessary part of his illegal business.” Lewis, 385 U.S. at 210, 17 L. Ed. 2d at 315-16, 87 S. Ct. at 427. After Lewis, there can stand no per se rule forbidding police deception leading to consent.

I include one important side note. The Supreme Court in Lewis went on to say that, “when *** the home is converted into a commercial [business] center to which outsiders are invited for purposes of transacting unlawful business,” a government agent, “in the same manner as a private person, may accept an invitation to do business and may enter upon the premises for the very purposes contemplated by the occupant.” Lewis, 385 U.S. at 211, 17 L. Ed. 2d at 316, 87 S. Ct. at 427. Although some have argued based on this language that the Supreme Court’s decision should be limited to instances in which the undercover agent participates in an illegal venture, or that it should be limited to business or commercial ventures, other cases have dispensed with this proposed distinction. For example, in State v. Poland, 132 Ariz. 269, 645 P.2d 784 (1982), the Arizona Supreme Court ruled constitutionally acceptable an FBI agent’s posing as a prospective home buyer to gain entry into a home, where he found incriminating evidence in plain view. The court cited Lewis along with several cases in which law enforcement officers concealed their identity in order to gain consent and then held that “[t]he only limitation appears to be that the agent is limited to conduct which would be normal for one adopting the disguise used in seeking entry.” State v. Poland, 132 Ariz. at 277, 645 P.2d at 792, citing United States v. Ressler, 536 F.2d 208 (7th Cir. 1976) (agents posing as potential buyers to investigate firearms), United States v. Glassel, 488 F.2d 143 (9th Cir. 1973) (agents posing as potential narcotics buyers), State v. Sardo, 112 Ariz. 509, 543 P.2d 1138 (1975) (agents posing as hotel managers), United States v. Raines, 536 F.2d 796 (8th Cir. 1976) (law enforcement posing as an acquaintance), United States v. Wright, 641 F.2d 602 (8th Cir. 1981) (law enforcement posing as a motorist with car trouble), and United States v. Bullock, 590 F.2d 117 (5th Cir. 1979) (law enforcement posing as a potential Ku Klux Klan member); see also Guidry v. State, 671 P.2d 1277, 1281 (Alaska 1983) (rejecting distinction between police participation in legal and illegal activity); State v. Stevens, 123 Wis. 2d 303, 315, 367 N.W.2d 788, 794-95 (1985) (applying Lewis rule to a police officer posing as a garbage collector but doing nothing defendant did not contemplate a garbage collector would do). Because there is no question that defendant here knew that he was dealing with police, I do not address the effect of police deception as to their identity as police. My discussion herein is confined to the question of police deception as to their purpose for requesting consent.

Other cases do not support a rule that police deception per se renders a consent to search involuntary but instead include deception among the factors to be included in the voluntariness assessment. E.g., Minniti, 373 Ill. App. 3d at 69; Zamora, 940 P.2d at 942. (The majority here adopts the factor approach while simultaneously endorsing the per se approach implied in Graf.) These cases are correct, but, by failing to warn that courts must discriminate between those types of deception that undercut free will and those that do not, they leave the potential for misunderstanding. The presence of police deception becomes a factor in assessing voluntariness only when the deception is actually coercive in the sense that it undercuts the free will of the consenting party.

With the above understanding of voluntariness, I see nothing to indicate that any police deception in this case interfered with the voluntariness of defendant’s consent. Before addressing this issue, I must clarify the facts informing it. The parties, the trial court, and the majority mischaracterize Detective Smith’s testimony describing the nature of his investigation. Smith testified that he was investigating credit card fraud when he went to defendant’s home, but, by that testimony, he did not indicate that he was investigating only credit card fraud and not child pornography. Rather, the import of his testimony was that he had received a tip that defendant’s credit card had been used to gain access to child pornography, but, due to suspiclous activity on the credit card account and the fact that the card had been used only sparingly for child pornography purchases, he had yet to determine conclusively that defendant was the person who used the card and was not an innocent victim of credit card fraud. Defendant wrongly casts Smith’s testimony as raising the incredible assertion that Smith was pursuing only a credit card fraud investigation, and the majority repeats the error by saying that Smith “claimed he was investigating credit card fraud and not child pornography when he sought” consent to search defendant’s computer. 389 Ill. App. 3d at 932. The majority further perpetuates the misunderstanding by reciting that Smith “admitted” various connections between his investigation and suspicion of defendant’s purchase of Internet child pornography. 389 Ill. App. 3d at 927-28. Read properly, the whole of Smith’s testimony is consistent with his “admissions” that he was investigating child pornography.

From this, and from Smith’s and defendant’s testimony that Smith made no mention to defendant of the child pornography investigation, it becomes manifest that Smith withheld a major, and likely driving, purpose of his request to search. However, there is little to indicate that Smith’s concealing his primary purpose did anything to alter the voluntariness of defendant’s consent to allow the search of his computer.4 The only aspect of the alleged police deception that could have affected the voluntariness of defendant’s consent was its tendency to imply that defendant’s personal information might have been imperiled until police were able to examine his computer. See United States v. Parson, No. 3:2007 — 10, slip op. at 13 (WD. Pa. February 25, 2009) (discussing the coercive effect of the “specter of identity theft”). However, defendant undermined this possibility by testifying that he was confident in the security of his computer and that he granted consent only because “it can’t hurt to have [the police] look at [his] computer” with their purportedly stronger virus detection software. Therefore, although I disagree with the majority’s inconsistent descriptions of the legal significance of police deception, I agree with the majority that any deception here did not render defendant’s consent involuntary.

The next question is whether the police exceeded the scope of defendant’s consent by viewing the images on his computer. Like the standards for voluntariness of consent, the standards for defining the scope of consent have developed over time. At one time, a plurality of the United States Supreme Court held that police conducting a search pursuant to a warrant (or an exception to the warrant requirement) could seize items found in plain view during the search but not identified in the warrant (or used to justify an exception to the warrant requirement) only where the discovery of the items was “inadvertent.” Coolidge v. New Hampshire, 403 U.S. 443, 469, 29 L. Ed. 2d 564, 585, 91 S. Ct. 2022, 2040 (1971). Thus, under the plurality opinion in Coolidge, “[i]f the initial intrusion [was] bottomed upon a warrant that fail[ed] to mention a particular object, though the police [knew] its location and intended] to seize it, then there [was] a violation” of the fourth amendment. Coolidge, 403 U.S. at 471, 29 L. Ed. 2d at 586, 91 S. Ct. at 2040-41. However, in Horton v. California, 496 U.S. 128, 110 L. Ed. 2d 112, 110 S. Ct. 2301 (1990), the Supreme Court overruled the Coolidge plurality and discarded the “inadvertence” requirement. Thus, in Horton, an officer who sought to find weapons and proceeds of a robbery, but obtained a warrant allowing a search only for the proceeds, did not violate the fourth amendment by seizing weapons when he found them in plain view during his search for the proceeds.

The holding in Horton brought cohesion to fourth amendment jurisprudence, which measures the scope of a consent to search not in terms of the subjective intentions, understandings, or expectations of the parties involved but, rather, by an objective standard that asks what the “typical reasonable person” would have “understood by the exchange between the officer and the suspect.” Florida v. Jimeno, 500 U.S. 248, 252, 114 L. Ed. 2d 297, 303, 111 S. Ct. 1801, 1804 (1991); People v. Ledesma, 206 Ill. 2d 571, 593 (2003).

The majority nonetheless invokes a rule that would bind police to the stated purpose of their search and forbid consensual searches for undisclosed purposes. The majority bases its rule on a misreading of our supreme court’s statement that “the parameters of a search are usually defined by the purpose of the search” (James, 163 Ill. 2d at 314). This was the same erroneous approach adopted by the court in Richardson, 583 E Supp. 2d 694, a closely analogous case upon which the majority relies as persuasive authority. See Richardson, 583 F. Supp. 2d at 713 (reaching same result by relying on Supreme Court’s statement that “ ‘[t]he scope of a search is generally defined by its expressed object’ ”), quoting Jimeno, 500 U.S. at 251, 114 L. Ed. 2d at 303, 111 S. Ct. at 1804. However, just as police, when executing a search based on a warrant or on probable cause to search for a particular item, may hope to find additional items so long as they do not expand or change the scope or increase the intensity of the search (Horton, 496 U.S. 128, 110 L. Ed. 2d 112, 110 S. Ct. 2301), police executing a consensual search need not hew absolutely to the stated purpose of the search, so long as their search does not deviate from the scope or exceed the intensity of the search to which the suspect consented. The passage upon which the majority (and Richardson) relies derives from the Supreme Court’s opinion in People v. Ross, 456 U.S. 798, 72 L. Ed. 2d 572, 102 S. Ct. 2157 (1982), which offers the proper context for the statement:

“The scope of a warrantless search of an automobile thus is not defined by the nature of the container in which the contraband is secreted. Rather, it is defined by the object of the search and the places in which there is probable cause to believe that it may be found. Just as probable cause to believe that a stolen lawnmower may be found in a garage will not support a warrant to search an upstairs bedroom, probable cause to believe that undocumented aliens are being transported in a van will not justify a warrantless search of a suitcase. Probable cause to believe that a container placed in the trunk of a taxi contains contraband or evidence does not justify a search of the entire cab.” Ross, 456 U.S. at 824, 72 L. Ed. 2d at 593, 102 S. Ct. at 2172.

In Jimeno, the Supreme Court applied this concept in a consent-to-search case:

“The scope of a search is generally defined by its expressed object. United States v. Ross, 456 U.S. 798[, 72 L. Ed. 2d 572, 102 S. Ct. 2157] (1982). In this case, the terms of the search’s authorization were simple. Respondent granted [law enforcement] permission to search his car, and did not place any explicit limitation on the scope of the search. [The officer] had informed [respondent] that he believed [respondent] was carrying narcotics, and that he would be looking for narcotics in the car. We think that it was objectively reasonable for the police to conclude that the general consent to search respondents’ car included consent to search containers within that car which might bear drugs.” Jimeno, 500 U.S. at 251, 114 L. Ed. 2d at 303, 111 S. Ct. at 1804.

The principle to be drawn from these cases is not that an officer may have no purpose for a consent search ulterior to his stated purpose, but instead that a description of the purpose of a search can serve as an indicator of the scope of the contemplated search and thus can help define the scope of the consent. The restriction on the search comes not from the stated purpose of the search, but from what a reasonable person would have understood the extent of the consent to be — i.e., what areas a reasonable person would have understood police had been granted authority to search. Courts say that the scope of a search generally is defined by its purpose because the stated purpose of a proposed search will often be the only explanation of the scope of the proposed search: the scope of a consent to a “search for drugs” without further explanation will be understood in those terms. Thus, police who describe a proposed automobile search by telling the suspect that they wish to search for liquor will have limited the scope of their search to places where liquor could be found, but any other contraband found in the course of that search may still lawfully be seized. People v. Andeliz, 3 Misc. 3d 384, 389, 773 N.Y.S.2d 853, 858 (2004). Or, police who tell a suspect that they intend to search for weapons when they actually expect to find drugs may still seize drugs during their search, because “such a statement on the part of [law enforcement] could [not] affect the validity of [the suspect’s] consent, the area to be searched being identical in either event.” Pupo v. State, 187 Ga. App. 765, 767, 371 S.E.2d 219, 222 (1988). Or, police who ask to search a suspect’s bag for drugs, when they actually expect to find stolen money and jewelry, do not exceed the scope of the suspect’s consent. United States v. White, 706 F.2d 806, 808 (7th Cir. 1983)5; see also W LaFave, Search & Seizure §8.2, at 136 n.378 (4th ed. 2004) (collecting cases).

Even though the court in Richardson overlooked this distinction and misread the law in the same way the majority now misreads it, the facts of the case provide a clear illustration of the point. In Richardson, law enforcement agents investigating child pornography that was charged to the defendant’s credit card implied to the defendant that they suspected he was the victim of identity theft, and on that basis the defendant granted them consent to make duplicates of his hard drives and then look at the duplicates. Richardson, 583 F. Supp. 2d at 700-01, 702. The stated purpose of the search in Richardson was to look at the hard drives to determine if the defendant’s personal information had been compromised, but the defendant consented to a search of the entirety of his hard drives. The terms of the defendant’s consent, and not the purpose of the search, should have defined the law enforcement agents’ authority to search. Since the consent to search the hard drives was unlimited, the agents’ eventual search for illegal images on the hard drive did not exceed the scope of the consent. However, as noted, the court in Richardson reached the opposite result based on the misunderstanding of Jimeno that I repudiate above.

Before applying the above principles to determine whether the search conducted in this case exceeded the scope of the consent conferred, I must again clarify some pertinent facts. As I note above, the permissible scope of a search is governed not necessarily by its stated purpose, but instead by what a reasonable person would have understood from the exchange precipitating the consent search. It therefore becomes very important to determine precisely how Smith and defendant described the requested search before defendant assented. The testimony is ambiguous on this point. It is true, as the majority and the parties note, that Smith told defendant that his purpose in searching the computer was to look for malware. However, the testimony does not include any description of how Smith described to defendant the process by which he would search the computer for malware. The majority seems to assume from this gap in the testimony that the only description given was that Smith would perform a “virus search,” and the majority therefore repeats or implies several times that the scope of the consent was limited accordingly. See 389 Ill. App. 3d at 936 (“Here, Detective Smith, by his own words, limited the scope”); 389 Ill. App. 3d at 937 (“Defendants have the right to place explicit limitations on the scope of their consent”); 389 Ill. App. 3d at 937 (“Defendant’s failure to object *** did not serve to transform his original limited consent”); 389 Ill. App. 3d at 937 (“If Detective Smith wanted a general consent from defendant, he should have refrained from including limitations in his request”). I disagree with the majority’s assumption.

Although the testimony does not directly state what Smith and defendant discussed prior to defendant’s consent, it does provide clues. When asked to describe how he would search defendant’s computer for malware, Smith described using an “image scan” program that boots the computer in a read-only mode and then calls up all of the images on the computer. The majority and the parties incorrectly imply that Smith testified that he examined the images themselves for signs of malware, but in his testimony Smith actually described differently the connection between the image scan and the search for malware. Smith said that he used the program to search for viruses because the program revealed the origin of each of the images, and, for those images originating from Web sites, Smith could ask defendant if he recalled visiting the sites. According to Smith, “[i]f someone [was] accessing his computer remotely unbeknownst to him, he [could] tell [Smith] then and there” that he had not visited the sites. Smith said that he focused his search on images portraying credit card logos, because such images often appear on Web pages that collect credit card numbers for purchases.

The efficacy of this “image viewing” technique as a virus search, especially when compared to the type of actual virus search Smith testified he forwent in order to do the image search, is questionable — a point with which the majority appears to agree. See 389 Ill. App. 3d at 936 (relying on defendant’s testimony that “no image would lead Detective Smith to discover a virus”).6 However, the issue here is not whether Smith pursued a search that would reveal viruses but, rather, whether he pursued a search consistent with the scope of the consent he had obtained, i.e., consistent with what a reasonable person would have understood as the scope of the consent defendant granted. Smith’s testimony contains the following passage:

“Q. And when you asked him to view his — when you asked about his computer, was that your intent to try and use those programs?

A. Yes, sir.

Q. And did you, in fact, inform the defendant of that?

A. Yes sir.”

In the absence of testimony that directly relates how Smith described the program to defendant before defendant agreed to the search, Smith’s description of the image scan program as a tool for detecting malware, convincing or not, gives us insight into the conversation referenced in his testimony.

Defendant’s actions after the image search began provide added insight into what the two men discussed before defendant granted consent. Smith testified that defendant was in the room when Smith started the image scan program, watched as Smith conducted a review of the images on the computer, and continued to talk to Smith as Smith ran the program, yet never asked Smith to stop viewing the pictures. In his own testimony, defendant confirmed that he was with Smith when Smith began looking at images on the computer, and he testified that he raised no objection even though he actually commented (before Smith found the illegal pornographic images) that he was embarrassed of the other (legal pornographic) images Smith had uncovered on the co