UNITED STATES of America, Appellee, v. Christopher MARANDOLA, Defendant-Appellant, 489 F. App'x 522

SUMMARY ORDER UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment of the district court be AFFIRMED. Christopher Marandola appeals from the judgment of the United States District Court for the Western District of New York (Arcara, J.) convicting him of violating 18 U.S.C. § 2252A(a)(5)(B). He appeals based on the district court’s denial of his motion to suppress evidence seized during a search of his property in February 2008. We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presented for review.

On appeal from a suppression ruling, we review the district court’s factual findings for clear error and its conclusions of law de novo. United States v. Rodriguez, 356 F.3d 254, 257 (2d Cir.2004); United States v. Awadallah, 349 F.3d 42, 71 (2d Cir.2003). Marandola challenges his wife’s authority to grant third-party consent to search an Apple computer located within the couple’s home. Lisa Marandola contacted the police and provided such consent after discovering child pornography on the computer on February 25, 2008.

Marandola points out that he was the primary user of the computer; his wife could not recall using it in the eight months prior. Maran-dola also emphasizes that he installed password protection on the computer, which, he claims, evinces his intent to exclude others from using it. Nevertheless, following a hearing, Magistrate Judge Kenneth Schroeder recommended denying the motion on the grounds that Lisa Mar-andola had both actual and apparent authority to consent to the search. Judge Arcara adopted this recommendation. We agree.

A third party has actual authority to provide consent to search if “first, the third party had access to the area searched, and second, either: (

a) common authority over the area; or (

b) a substantial interest in the area; or (

c) permission to gain access.” United States v. Davis, 967 F.2d 84, 87 (2d Cir.1992). Marandola argues that the relevant “area” is the Apple computer, rather than the family living room in which the computer sat. While Lisa Marandola admitted to using the Apple computer sparingly, she still had access to it, as did her daughter. The computer was located in a common area and was purchased using joint funds. Mrs. Marandola paid for internet out of her own personal account. Moreover, Mrs.

Marandola testified that her husband never told her that she was prohibited from using the computer, and that password protection was not enabled on the day in question. These facts provide compelling evidence that Lisa Marandola had common authority over the area, a substantial interest in the area, and even tacit permission to gain access to the area. In any event, it was certainly reasonable for the detectives to believe that she possessed such authority. See Georgia v.

Randolph, 547 U.S. 103, 109, 126 S.Ct. 1515, 164 L.Ed.2d 208 (2006) (“[T]he exception for consent extends even to entries and searches with the permission of a co-occupant whom the police reasonably, but erroneously, believe to possess shared authority as an occupant[.]”). For the foregoing reasons, and finding no merit in Marandola’s other arguments, we hereby AFFIRM the judgment of the district court.