F I L E D United States Court of Appeals Tenth Circuit PUBLISH April 3, 2007 UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker Clerk of Court TENTH CIRCUIT
U N ITED STA TES O F A M ER ICA,
Plaintiff-Appellee, v. No. 06-6274 M ICH AEL A . BA RR OW S,
Defendant-Appellant.
A PPE AL FR OM T HE UNITED STATES DISTRICT COURT FO R TH E W ESTERN DISTRICT O F O K LAH O M A (D.C. NO . CR 06-006-01-HE)
Robert A. M anchester, III, Oklahoma City, Oklahoma, for the Defendant- Appellant.
Timothy W . Ogilvie, Assistant U.S. Attorney (John C. Richter, United States Attorney, with him on the brief), Oklahoma City, Oklahoma for Plaintiff- Appellee.
Before O’BRIEN, HOL LOW A Y, and M cCO NNELL, Circuit Judges.
M cCO NNELL, Circuit Judge.
The Fourth Amendment affords citizens broad protection from state-
sponsored searches and seizures, but not in every circumstance and not for every
item. In this appeal, we must determine whether the defendant possessed a reasonable expectation of privacy in the personal computer he brought to work,
sufficient to warrant protection from a government search. W e conclude that he
did not and AFFIRM .
I.
At the time he was charged with criminal conduct, M ichael Barrows served
as the treasurer for the city of Glencoe, Oklahoma, a town located just north of
Stillwater and approximately sixty miles northeast of Oklahoma City. M r.
Barrows shared a workspace with the city clerk in an open area of the city hall.
Although a counter cordoned off their comm on work area from the general public,
M r. Barrows and the city clerk enjoyed little privacy. Other city employees
regularly entered their space to use the city’s fax machine and photocopier, which
were located approximately a foot from M r. Barrows’s and the city clerk’s desk.
M r. Barrows and the city clerk shared a computer in addition to desk space,
and both used it to access city records and programs. They could not, however,
use the computer simultaneously. To remedy this inconvenience, M r. Barrows
brought his personal computer to work. He placed the machine on the common
desk and connected it via the city network to the common computer. M r. Barrow s
informed his co-worker that this w ay, he and she could input data simultaneously
and access city files from either computer.
Thereafter, M r. Barrows conducted all of his city work on his personal
computer. He did not install a password shield or otherwise attempt to exclude
-2- city employees from using his machine or gaining access to his files. Indeed, he
left the computer running at all times— even in the evenings and while he was
away from his desk.
At approximately the time M r. Barrows networked the two computers, the
city clerk began to experience difficulty opening files on the city machine. She
wondered whether M r. Barrows’s computer had something to do with the
problem. On the afternoon of M ay 19, 2005, she complained about the problem
to M ichael M cQuown, a reserve police officer who happened to be in city hall
that afternoon to send a fax. Officer M cQuown was a former computer salesman;
he had helped the clerk manage computer difficulties before.
Officer M cQuown proceeded to open various files and delete others on the
city machine in an effort to speed its operation. Still, after approximately forty-
five minutes of tinkering, he found himself unable to access a file in the city’s
Q uickB ooks accounting program. At some point, the clerk informed M cQuown
that M r. Barrows had networked his personal computer to the city machine,
leading the officer to suspect that he could not open the file in question because
the defendant had opened it on his computer.
W hen Officer M cQuown sat down at M r. Barrows’s computer, which was
switched on, as usual, he noticed almost immediately that the defendant was
running a file-sharing program. M cQuown wondered if M r. Barrows had
transferred the QuickBooks file to a remote machine. M cQuown clicked open the
-3- file-sharing program and accessed the transfer history. W hen he did, he observed
a series of files with sexually suggestive names. Opening two or three, he found
they contained child pornography.
After M cQuown confirmed that at least a few of the files contained illegal
pornography, he and the sheriff seized the computer and obtained a warrant to
search the entire hard drive. M r. Barrows pled guilty to child pornography
charges pursuant to a conditional plea agreement. He was sentenced to 78 months
in prison. Now he appeals from the district court’s denial of his motion to
suppress.
II.
The Fourth Amendment guards against unreasonable searches and seizures.
Brigham City v. Stuart, 126 S. Ct. 1943, 1947 (2006) (“[T]he ultimate touchstone
of the Fourth Amendment is ‘reasonableness’. . . .”). A warrantless search may
be unreasonable if the defendant enjoyed a legitimate expectation of privacy in
the thing searched. See United States v. Anderson, 154 F.3d 1225, 1229 (10th
Cir. 1998). This Court must determine whether M r. Barrows possessed a
legitimate expectation of privacy in his personal computer, an inquiry we make by
asking two questions. First, did M r. Barrows manifest a subjective expectation of
privacy in the machine? Second, is that expectation one society is prepared to
recognize as reasonable? Id. “The ‘ultimate question’ is whether [the
-4- defendant’s] claim to privacy from the government intrusion is reasonable in light
of all the surrounding circumstances.” Id.
Since this incident occurred in the workplace, those surrounding
circumstances include “(1) the employee’s relationship to the item seized; (2)
whether the item w as in the immediate control of the employee when it was
seized; and (3) whether the employee took actions to maintain his privacy in the
item.” Id. at 1232. These factors are relevant to both the subjective and objective
prongs of the reasonableness inquiry, and we consider the two questions together.
To begin, M r. Barrows makes much of the fact that he owned the computer.
And he is right that private ownership is an important factor telling in favor of
Fourth Amendment protection. United States v. Arango, 912 F.2d 441, 445 (10th
Cir. 1990). It is not, however, dispositive. See United States v. Erwin, 875 F.2d
268, 270-71 (10th Cir. 1989) (“[O]wnership of [an] item seized is not
determinative. . . .”). If it were, the Fourth Amendment would track neither tort
law nor social expectations of privacy, for neither affords individuals an absolute
veto over third-party access to an item by virtue of ownership alone. But the
significance of personal ownership is particularly weakened when the item in
question is being used for business purposes. See, e.g., W ayne R. LaFave, Search
& Seizure § 11.3(d) (4th ed. 2004) (“Particularly in an otherw ise close case, a
court may be influenced by the defendant’s relationship to or interest in the
particular item seized. It may be significant, therefore, that this item is a personal
-5- possession of the defendant and not something connected with the operation of the
business. . . .” (emphasis added)). M r. Barrows voluntarily transferred his
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F I L E D United States Court of Appeals Tenth Circuit PUBLISH April 3, 2007 UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker Clerk of Court TENTH CIRCUIT
U N ITED STA TES O F A M ER ICA,
Plaintiff-Appellee, v. No. 06-6274 M ICH AEL A . BA RR OW S,
Defendant-Appellant.
A PPE AL FR OM T HE UNITED STATES DISTRICT COURT FO R TH E W ESTERN DISTRICT O F O K LAH O M A (D.C. NO . CR 06-006-01-HE)
Robert A. M anchester, III, Oklahoma City, Oklahoma, for the Defendant- Appellant.
Timothy W . Ogilvie, Assistant U.S. Attorney (John C. Richter, United States Attorney, with him on the brief), Oklahoma City, Oklahoma for Plaintiff- Appellee.
Before O’BRIEN, HOL LOW A Y, and M cCO NNELL, Circuit Judges.
M cCO NNELL, Circuit Judge.
The Fourth Amendment affords citizens broad protection from state-
sponsored searches and seizures, but not in every circumstance and not for every
item. In this appeal, we must determine whether the defendant possessed a reasonable expectation of privacy in the personal computer he brought to work,
sufficient to warrant protection from a government search. W e conclude that he
did not and AFFIRM .
I.
At the time he was charged with criminal conduct, M ichael Barrows served
as the treasurer for the city of Glencoe, Oklahoma, a town located just north of
Stillwater and approximately sixty miles northeast of Oklahoma City. M r.
Barrows shared a workspace with the city clerk in an open area of the city hall.
Although a counter cordoned off their comm on work area from the general public,
M r. Barrows and the city clerk enjoyed little privacy. Other city employees
regularly entered their space to use the city’s fax machine and photocopier, which
were located approximately a foot from M r. Barrows’s and the city clerk’s desk.
M r. Barrows and the city clerk shared a computer in addition to desk space,
and both used it to access city records and programs. They could not, however,
use the computer simultaneously. To remedy this inconvenience, M r. Barrows
brought his personal computer to work. He placed the machine on the common
desk and connected it via the city network to the common computer. M r. Barrow s
informed his co-worker that this w ay, he and she could input data simultaneously
and access city files from either computer.
Thereafter, M r. Barrows conducted all of his city work on his personal
computer. He did not install a password shield or otherwise attempt to exclude
-2- city employees from using his machine or gaining access to his files. Indeed, he
left the computer running at all times— even in the evenings and while he was
away from his desk.
At approximately the time M r. Barrows networked the two computers, the
city clerk began to experience difficulty opening files on the city machine. She
wondered whether M r. Barrows’s computer had something to do with the
problem. On the afternoon of M ay 19, 2005, she complained about the problem
to M ichael M cQuown, a reserve police officer who happened to be in city hall
that afternoon to send a fax. Officer M cQuown was a former computer salesman;
he had helped the clerk manage computer difficulties before.
Officer M cQuown proceeded to open various files and delete others on the
city machine in an effort to speed its operation. Still, after approximately forty-
five minutes of tinkering, he found himself unable to access a file in the city’s
Q uickB ooks accounting program. At some point, the clerk informed M cQuown
that M r. Barrows had networked his personal computer to the city machine,
leading the officer to suspect that he could not open the file in question because
the defendant had opened it on his computer.
W hen Officer M cQuown sat down at M r. Barrows’s computer, which was
switched on, as usual, he noticed almost immediately that the defendant was
running a file-sharing program. M cQuown wondered if M r. Barrows had
transferred the QuickBooks file to a remote machine. M cQuown clicked open the
-3- file-sharing program and accessed the transfer history. W hen he did, he observed
a series of files with sexually suggestive names. Opening two or three, he found
they contained child pornography.
After M cQuown confirmed that at least a few of the files contained illegal
pornography, he and the sheriff seized the computer and obtained a warrant to
search the entire hard drive. M r. Barrows pled guilty to child pornography
charges pursuant to a conditional plea agreement. He was sentenced to 78 months
in prison. Now he appeals from the district court’s denial of his motion to
suppress.
II.
The Fourth Amendment guards against unreasonable searches and seizures.
Brigham City v. Stuart, 126 S. Ct. 1943, 1947 (2006) (“[T]he ultimate touchstone
of the Fourth Amendment is ‘reasonableness’. . . .”). A warrantless search may
be unreasonable if the defendant enjoyed a legitimate expectation of privacy in
the thing searched. See United States v. Anderson, 154 F.3d 1225, 1229 (10th
Cir. 1998). This Court must determine whether M r. Barrows possessed a
legitimate expectation of privacy in his personal computer, an inquiry we make by
asking two questions. First, did M r. Barrows manifest a subjective expectation of
privacy in the machine? Second, is that expectation one society is prepared to
recognize as reasonable? Id. “The ‘ultimate question’ is whether [the
-4- defendant’s] claim to privacy from the government intrusion is reasonable in light
of all the surrounding circumstances.” Id.
Since this incident occurred in the workplace, those surrounding
circumstances include “(1) the employee’s relationship to the item seized; (2)
whether the item w as in the immediate control of the employee when it was
seized; and (3) whether the employee took actions to maintain his privacy in the
item.” Id. at 1232. These factors are relevant to both the subjective and objective
prongs of the reasonableness inquiry, and we consider the two questions together.
To begin, M r. Barrows makes much of the fact that he owned the computer.
And he is right that private ownership is an important factor telling in favor of
Fourth Amendment protection. United States v. Arango, 912 F.2d 441, 445 (10th
Cir. 1990). It is not, however, dispositive. See United States v. Erwin, 875 F.2d
268, 270-71 (10th Cir. 1989) (“[O]wnership of [an] item seized is not
determinative. . . .”). If it were, the Fourth Amendment would track neither tort
law nor social expectations of privacy, for neither affords individuals an absolute
veto over third-party access to an item by virtue of ownership alone. But the
significance of personal ownership is particularly weakened when the item in
question is being used for business purposes. See, e.g., W ayne R. LaFave, Search
& Seizure § 11.3(d) (4th ed. 2004) (“Particularly in an otherw ise close case, a
court may be influenced by the defendant’s relationship to or interest in the
particular item seized. It may be significant, therefore, that this item is a personal
-5- possession of the defendant and not something connected with the operation of the
business. . . .” (emphasis added)). M r. Barrows voluntarily transferred his
personal computer to a public place for work-related use. In these circumstances,
we cannot say that mere ownership is enough to demonstrate a subjective
expectation of privacy or to make that expectation reasonable.
M ore weighty for determining privacy expectations in the workplace, which
must be considered case by case, see United States v. Angevine, 281 F.3d 1130,
1134 (10th Cir. 2002), is M r. Barrows’s failure to passw ord protect his computer,
turn it off, or take any other steps to prevent third-party use. Given these facts,
we are hard-pressed to conclude that M r. Barrows harbored a subjective
expectation of privacy. He certainly did not possess a reasonable one.
M r. Barrows claims that he invited no one to use his computer and
therefore expected its contents to remain private. Yet he surely contemplated at
least some third-party access: he knowingly networked his machine to the city
computer for the express purpose of sharing files. And though the record does
not reflect whether an employee operating the city computer could access all of
M r. Barrows’s files or only a few, the fact remains that M r. Barrows knew the
contents of his machine were not wholly private. H e also knew when he chose to
relocate his computer to city hall that he would be working in a public area. City
employees and members of the general public passed in and out all day. The
chances a passerby might spy snatches of personal material over his shoulder, or
-6- sit down to use his computer having honestly mistaken it for a city one, were
appreciable.
Even if M r. Barrows did possess a subjective expectation of privacy, his
failure to take affirmative measures to limit other employees’ access makes that
expectation unreasonable. Angevine, 281 F.3d at 1135; see O’Connor v. Ortega,
480 U.S. 709, 718 (1987) (“[S]ome government offices may be so open to fellow
employees or the public that no expectation of privacy is reasonable.”). Those
who bring personal material into public spaces, making no effort to shield that
material from public view , cannot reasonably expect their personal materials to
remain private. Home owners who place personal effects in their driveways
cannot reasonably anticipate that those items will go unobserved. United States v.
Long, 176 F.3d 1304, 1308-09 (10th Cir. 1999) (citing California v. Greenwood,
486 U.S. 35, 41 (1988)). Apartment tenants who move personal items into a
common hallw ay cannot reasonably believe those items will be left uninspected.
See United States v. Hawkins, 139 F.3d 29, 32 (1st Cir. 1998) (holding that a
tenant lacks a reasonable expectation of privacy in the common areas of an
apartment building); accord United States v. Nohara, 3 F.3d 1239, 1242 (9th Cir.
1993), United States v. Acosta, 965 F.2d 1248, 1252 (3d Cir. 1992), United States
v. DeWeese, 632 F.2d 1267, 1270 (5th Cir. 1980).
M r. Barrows voluntarily moved his personal computer into a public space
and took no measures to protect its contents from public inspection.
-7- Consequently, he did not enjoy a reasonable expectation of privacy and Officer
M cQuown’s search worked no Fourth Amendment violation. The judgment of the
district court is AFFIRM ED.
-8-