Antonelli, Michael C v. Sherrow, Tina M.

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1

United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted June 28, 2007*

Decided July 5, 2007

Before

Hon. FRANK H. EASTERBROOK, Chief Judge

Hon. JOHN L. COFFEY, Circuit Judge

Hon. DANIEL A. MANION, Circuit Judge

No. 05-4476

MICHAEL C. ANTONELLI Appeal from the United States District

Plaintiff-Appellant, Court for the Northern District of

Illinois, Eastern Division.

v.

No. 02 C 8714

TINA M. SHERROW, et al.,

Defendants-Appellees. John A. Nordberg,

Judge.

ORDER

Michael Antonelli brought suit under Bivens v. Six Unknown Named Agents of

the Fed. Bureau of Narcotics, 430 U.S. 388 (1971), alleging that two ATF agents

violated his rights under the Fourth Amendment when they seized a computer that

he had given to his ex-wife to use while he was serving a prison sentence. He also

brought claims under the Federal Tort Claims Act, 28 U.S.C. § 2671, et seq., based

on the same incident and sued the Assistant United States Attorney who defended

*

After an examination of the briefs and the record, we have concluded that

oral argument is unnecessary. Thus the appeal is submitted on the briefs and the

record. See Fed. R. App. P. 34(a)(2).

No. 05-4476 Page 2

the case for violating his right to due process during the proceedings below. The

district court granted summary judgment to the defendants on the Fourth

Amendment claims and dismissed the other claims under Federal Rule of Civil

Procedure 12(b)(6). We affirm.

In late 2001 Antonelli was preparing to begin a sentence in federal prison.

Before reporting to prison, he gave his ex-wife, Nancy Antonelli a computer that he

owned so that she and her children could use it while he was incarcerated, which

they did. After Antonelli had begun serving his sentence, ATF agents Tina

Sherrow and Jeanne Sobol interviewed Mrs. Antonelli at her home about her ex-

husband and his possible involvement in a bombing in the Chicago area. During

the interview, Mrs. Antonelli revealed that her ex-husband had left her the

computer to use while he was in prison. The agents asked Mrs. Antonelli if she

would turn it over to them. Mrs. Antonelli was initially reluctant, explaining that

she did not want to retrieve the computer from her attic where she had stored it,

that she had searched the computer and found no files, and that the computer

“wasn’t hers to give.” After the agents responded that they could get a search

warrant for the computer, Mrs. Antonelli changed her mind but asked the agents to

come back later so that she could retrieve it from the attic. The agents agreed, and

Agent Sherrow returned a day or so later to pick up the computer.

Antonelli was incarcerated for this entire time, but he learned from his ex-

wife that she had given the computer to the ATF. He then wrote to several people

at the ATF, including Agent Sherrow, telling them that Mrs. Antonelli had “no

access to the hard-drive” of the computer and that she did not have his permission

to allow anyone to inspect the hard drive. He demanded that they return the

computer to Mrs. Antonelli. Six months after he wrote his last letter, and 11

months after the ATF first obtained it, Agent Sherrow returned the computer to the

ex-wife in undamaged condition.

Antonelli sued Agents Sherrow and Sobol for violating his rights under the

Fourth Amendment when they took his computer without a warrant. He also sued

the United States under the FTCA, arguing that the agents’ actions amounted to

trespass to chattels, conversion, and abuse of process. During the proceedings in

the district court, Patrick Johnson, the AUSA defending the case, contacted Mrs.

Antonelli and discussed preparing an affidavit for her to sign. According to

Antonelli, he tried to get her to swear to facts that were untrue. Mrs. Antonelli

ultimately signed an affidavit prepared by her ex-husband stating that she told the

agents that Antonelli had given her the computer to use but she did not want to

give it to them or feel that it was right for her to do so and that the agents changed

her mind by mentioning a search warrant. She faxed this affidavit to AUSA

Johnson with a note asking him to stop intimidating her. This incident led

Antonelli to amend his complaint to add AUSA Johnson as a defendant with a claim

No. 05-4476 Page 3

that Johnson violated his right to due process by attempting to get Mrs. Antonelli to

commit perjury.

The district court granted the defendants’ motion for summary judgment on

the Fourth Amendment claims, concluding that Mrs. Antonelli had mutual use of

and control over the computer and as such had authority to consent to the ATF’s

search and seizure of it. The court then dismissed Antonelli’s FTCA claims,

primarily because it decided that Mrs. Antonelli’s consent meant that the agents’

taking of the computer was authorized. Finally the court dismissed the claim

against AUSA Johnson, determining that he had absolute immunity and in any

case could not be held liable for merely attempting to violate Antonelli’s rights.

We review the grant of summary judgment de novo and will uphold the

decision if, viewing all facts in the light most favorable to the non-moving party,

there is no genuine issue of material fact and the movant is entitled to judgment as

a matter of law. Washington v. Haupert, 481 F.3d 543, 546–47 (7th Cir. 2007).

Antonelli’s principal argument on appeal is that the district court erred in finding

that Mrs. Antonelli had authority to consent to the ATF’s taking of the computer.

A consensual search and seizure of property without a warrant does not

violate the Fourth Amendment. United States v. Matlock, 415 U.S. 164, 171 (1974);

United States v. Groves, 470 F.3d 311, 318 (7th Cir. 2006). Consent need not be

given by the target of the search, or even the owner of property, but may be given by

anyone who has joint access to and control of the property for most purposes.

Matlock, 415 U.S. at 171 & n.7; Groves, 470 F.3d at 318–19; see United States v.

Brown, 328 F.3d 352, 356 (7th Cir. 2003) (leaseholder of apartment could not

consent to its search because he did not actually live in or use apartment).

Antonelli does not contest that Mrs. Antonelli had joint access to and control of the

computer generally. Indeed, Antonelli himself had no access to the computer and

little control over it as he was incarcerated. Instead Antonelli principally argues

that his ex-wife had no authority to consent to a search because she had no access

to the hard drive. We assume that Antonelli really means that his ex-wife had no

access to files that he saved on the hard drive as she would have had access to the

hard drive itself to use the computer at all.

Several other circuits have addressed the issue of a third party’s authority to

consent to a search of a shared computer when the third party does not have access

to all areas of the computer. In general, these courts have decided that when one

user has protected files with a password that the other user does not know, the

second user cannot consent to a search of the password-protected files. United

States v. Buckner, 473 F.3d 551, 554 (4th Cir.), cert. denied, 127 S. Ct. 2119 (2007)

(No. 06-10245); Trulock v. Freeh, 275 F.3d 391, 403 (4th Cir. 2001). On the other

hand, when the joint users share access to the computer’s files, either one can

consent to a search of the whole computer. See United States v. Morgan, 435 F.3d

No. 05-4476 Page 4

660, 663–64 (6th Cir. 2006); United States v. Andrus, 483 F.3d 711, 719–22 (10th

Cir. 2007).

Antonelli, who has the burden of showing that his ex-wife’s consent was

invalid, see Valance v. Wisel, 110 F.3d 1269, 1279 (7th Cir. 1997), has presented no

evidence that there were password-protected files on the computer or that he even

told Mrs. Antonelli that certain files were private. Instead, he suggests that Mrs.

Antonelli’s failure to detect unspecified files when she searched the computer is

evidence of their inaccessibility. But without even an assertion that Antonelli

password-protected files, her failure shows only the incompleteness of her search,

not the inaccessibility of files. Because Antonelli gave his ex-wife use of the

computer without password-protecting files or even informing her that any files

were off-limits, he could not reasonably expect that she would recognize them as

private. See United States v. Shelton, 337 F.3d 529, 536–37 (5th Cir. 2003)

(defendant gave up his reasonable expectation of privacy in his house with respect

to his estranged wife when defendant did not change locks or do anything to restrict

her access to house). And Antonelli’s written objections to the ATF after the

computer’s seizure cannot overcome qualified immunity to constitutional liability

because the then clearly established law was that a timely objection by a non-

consenting joint user who is actually present does not override the other user’s

consent. See Georgia v. Randolph, 126 S. Ct. 1515, 1520 n.1 (2006).

Antonelli also argues that his ex-wife’s consent was not voluntary because the

agents suggested that they would get a search warrant when Mrs. Antonelli

initially expressed reluctance about turning the computer over. However a threat

to obtain a search warrant does not render consent involuntary unless the threat is

baseless or not genuine. United States v. Scheets, 188 F.3d 829, 840 (7th Cir. 1999).

Antonelli concedes the agents were investigating his possible involvement in a

crime, and there is no evidence that the agents were insincere when they promised

to get a warrant. In addition, it is undisputed that the agents did not physically

threaten her, did not have her in custody, and allowed her a day to reconsider her

consent, all factors indicating valid consent. See United States v. Renken, 474 F.3d

984, 987 (7th Cir. 2007) (absence of physical coercion, extreme pressure and

custodial detention are factors in assessing voluntariness), petition for cert. filed,

(U.S. May 22, 2007) (No. 06-11673).

Antonelli complains in his appellate brief that he was unable to defend

against the summary judgment motion because the district court did not grant his

motion to compel discovery. But he did not explain in his motion how the

information he sought would help him show a genuine issue of material fact nor did

he file an affidavit explaining why he needed additional discovery. See Fed. R. Civ.

P. 56(f); Kaufman v. McCaughtry, 419 F.3d 678, 686 (7th Cir. 2004); Woods v. City

of Chicago, 234 F.3d 979, 990 (7th Cir. 2000). Therefore the district court did not

err in granting summary judgment before granting the motion to compel.

No. 05-4476 Page 5

This brings us to Antonelli’s FTCA claims. The defendants maintain that

Antonelli failed to exhaust these claims because he did not file an administrative

claim with the ATF until April 2003—well after he filed his lawsuit in December

2002. The FTCA requires that a plaintiff present his claim to the appropriate

federal agency and receive a written denial before beginning his lawsuit. 28 U.S.C.

§ 2675(a); McNeil v. United States, 508 U.S. 106, 111–12 (1993); Palay v. United

States, 349 F.3d 418, 425 (7th Cir. 2003). The district court assumed that Antonelli

had exhausted, relying on Barnes v. Briley, 420 F.3d 673 (7th Cir. 2005), but Barnes

involved new FTCA claims that were raised for the first time in the amended

complaint. Id. at 678. Antonelli’s FTCA claims were raised in his original

complaint—before he filed his administrative claim. The amended complaint

merely added the claim against AUSA Johnson. Antonelli’s original complaint does

assert that he exhausted his FTCA claims when he sent the letters to ATF officials

demanding that they return the computer to his ex-wife. But these letters do not

qualify as claims under the FTCA because they do not request money damages. See

28 C.F.R. § 14.2(a). Accordingly, Antonelli has not exhausted his remedies, and the

district court should have dismissed the FTCA claims for this reason. Perez v. Wis.

Dep’t of Corr., 182 F.3d 532, 536 (7th Cir. 1999).

As for Antonelli’s due process claim against AUSA Johnson, he does not

challenge either basis the district court offered—immunity and failure to state a

claim—for dismissing this claim. He has thus waived any argument about the

dismissal of these claims. See Andy’s Rest. & Lounge, Inc. v. City of Gary, 466 F.3d

550, 553 n.1 (7th Cir. 2006). Furthermore Antonelli concedes in his appellate brief

that Mrs. Antonelli did not actually commit perjury. Because he was not harmed by

Johnson’s actions, his due process claim against Johnson necessarily fails. See

Buckley v. Fitzsimmons, 20 F.3d 789, 794–95 (7th Cir. 1994).

For the above reasons, we AFFIRM.