United States v. Andrus , 499 F.3d 1162 ( 2007 )

499 F.3d 1162 (2007)

UNITED STATES of America, Plaintiff-Appellee,
v.
Ray ANDRUS, Defendant-Appellant.

No. 06-3094.

United States Court of Appeals, Tenth Circuit.

August 24, 2007.

Melissa Harrison, Assistant Federal Public Defender (David J. Phillips, Federal Public Defender, with her on the briefs), Kansas City, KS, for Defendant-Appellant.

Leon J. Patton, Assistant United States Attorney (Eric F. Melgren, United States Attorney, with him on the brief), Kansas City, KS, for Plaintiff-Appellee.

Before TACHA, Chief Judge, McKAY, Senior Circuit Judge, KELLY, HENRY, BRISCOE, LUCERO, MURPHY, HARTZ, O'BRIEN, McCONNELL, TYMKOVICH, GORSUCH, and HOLMES, Circuit Judges.

Prior report: 10th Cir., 483 F.3d 711.

ORDER

The appellant's petition for panel rehearing is denied. Judge McKay voted to grant rehearing.

In denying rehearing, however, the panel majority notes that its opinion is limited to the narrow question of the apparent authority of a homeowner to consent to a search of a computer on premises in the specific factual setting presented, including the undisputed fact that the owner had access to the computer, paid for internet access, and had an e-mail address used to register on a website providing access to the files of interest to law enforcement.

Among the questions not presented in this matter, and for which there is no factual development in the record, are the extent of capability and activation of password protection or user profiles on home computers, the capability of EnCase software to detect the presence of password protection or a user profile, or the degree to which law enforcement confronts password protection or user profiles on home computers.

Finally, appellant's argument premised on Kyllo v. United States, 533 U.S. 27, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001) was made for the first time in his petition for rehearing and was not initially presented to the panel. The argument is therefore forfeited. United States v. Charley, 189 F.3d 1251, 1265, n. 16 (10th Cir.1999).

The request for en banc rehearing was transmitted to all of the judges of the court who are in regular active service. A poll was requested and a majority of the active judges voted to deny the request. Judges Kelly, Lucero, McConnell and Holmes voted to grant rehearing.