United States v. Michael A. Barrows

481 F.3d 1246, 2007 U.S. App. LEXIS 7621, 2007 WL 970165
CourtCourt of Appeals for the Tenth Circuit
DecidedApril 3, 2007
Docket06-6274
StatusPublished
Cited by17 cases

This text of 481 F.3d 1246 (United States v. Michael A. Barrows) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Michael A. Barrows, 481 F.3d 1246, 2007 U.S. App. LEXIS 7621, 2007 WL 970165 (10th Cir. 2007).

Opinion

*1247 McCONNELL, 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. We conclude that he did not and AFFIRM.

I.

At the time he was charged with criminal conduct, Michael Barrows served as the treasurer for the city of Glencoe, Oklahoma, a town located just north of Stillwa-ter and approximately sixty miles northeast of Oklahoma City. Mr. Barrows shared a workspace with the city clerk in an open area of the city hall. Although a counter cordoned off their common work area from the general public, Mr. 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 Mr. Barrows’s and the city clerk’s desk.

Mr. 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, Mr. 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. Mr. Barrows informed his co-worker that this way, he and she could input data simultaneously and access city files from either computer.

Thereafter, Mr. Barrows conducted all of his city work on his personal computer. He did not install a password shield or otherwise attempt to exclude 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 Mr. Barrows networked the two computers, the city clerk began to experience difficulty opening files on the city machine. She wondered whether Mr. Barrows’s computer had something to do with the problem. On the afternoon of May 19, 2005, she complained about the problem to Michael McQuown, a reserve police officer who happened to be in city hall that afternoon to send a fax. Officer McQuown was a former computer salesman; he had helped the clerk manage computer difficulties before.

Officer McQuown 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 QuickBooks accounting program. At some point, the clerk informed McQuown that Mr. 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.

When Officer McQuown sat down at Mr. Barrows’s computer, which was switched on, as usual, he noticed almost immediately that the defendant was running a file-sharing program. McQuown wondered if Mr. Barrows had transferred the Quick-Books file to a remote machine. McQuown clicked open the file-sharing program and accessed the transfer history. When he did, he observed a series of files with sexually suggestive names. Opening two or three, he found they contained child pornography.

*1248 After McQuown 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. Mr. 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. StuaH, — U.S. -, 126 S.Ct. 1943, 1947, 164 L.Ed.2d 650 (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 Mr. Barrows possessed a legitimate expectation of privacy in his personal computer, an inquiry we make by asking two questions. First, did Mr. 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 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 was 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.

? begin, Mr. 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) (“[OJwnership 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., Wayne R. LaFave, Search & Seizure § 11.3(d) (4th ed. 2004) (“Particularly in an otherwise 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 possession of the defendant and not something connected with the operation of the business. ...” (emphasis added)). Mr. 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.

More 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 Mr.

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Cite This Page — Counsel Stack

Bluebook (online)
481 F.3d 1246, 2007 U.S. App. LEXIS 7621, 2007 WL 970165, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-michael-a-barrows-ca10-2007.