April 5, 2007 6:00 AM PDT
Police blotter: No privacy in home PC brought to work
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What: City treasurer in Oklahoma protests warrantless search of his personally owned computer after a police inspection allegedly discovered child pornography.
When: 10th Circuit Court of Appeals rules on April 3.
Outcome: Appeals court rules in favor of police search of computer brought into the office, and the treasurer is sentenced to more than six years in federal prison.
What happened, according to court documents:
When Michael Barrows was the treasurer for the city of Glencoe, Okla., he shared a workspace with the city clerk including a computer that both used to access city records. Because sharing one computer was inconvenient, Barrows brought in his own computer from home and placed it on the shared desk.
Barrows was the only person who used the computer, but he chose not to put a password on it. It was connected to the city network.
At some point after Barrows brought in his computer, the city clerk had problems opening a QuickBooks file on the city-owned PC, apparently because the file was already in use.
In May 2005, the clerk complained about the problem to Michael McQuown, a reserve police officer who happened to be in city hall that afternoon to send a fax. McQuown was a former computer salesman and had helped informally to resolve computer glitches before. Barrows was not at work at the time.
McQuown eventually traced the source of the problem to Barrows' privately owned computer and sat down at it. He noticed it was running a file-sharing program and started to dig around. He did not obtain a warrant before doing so.
Browsing through the transfer history, McQuown spotted some files with suggestive names and opened a few. They allegedly contained child pornography. The reserve police officer phoned Police Chief Geron Loveland, who obtained a warrant and seized the hard drive. They also called the FBI.
After he was indicted on January 17, 2006, on one federal charge of possessing child pornography, Barrows objected to the search. A brief argues that he "had an expectation of privacy when he took his personal computer to his workplace at the town hall. It was his private property and was not used by any of the other city employees."
Barrows agreed to what's known as a conditional guilty plea: it would only take effect if the courts agreed the search complied with the Fourth Amendment, which prohibits "unreasonable" searches and seizures.
To try to decide whether a warrantless search is permissible, U.S. courts look at whether a person has a legitimate expectation of privacy. What that means in practice is trying to figure out whether Barrows had a subjective expectation of privacy in his personally owned machine, and whether society generally agrees. (This is related to the 9th Circuit's Ziegler case, decided in January.)
Previous cases have gone both ways in terms of warrantless workplace searches. In one case, a court ruled that a school guidance counselor had an expectation of privacy in his school desk. In O'Connor v. Ortega, the Supreme Court said that a psychiatrist employed by a state hospital had a reasonable expectation of privacy in his desk and files. But a military court ruled that it was permissible for Navy investigators to break open the locked credenza of a civilian employee.
Details are key. Issues that count toward whether a search is reasonable or not include whether the workplace is shared, if the property is privately owned, and if any stated you-have-no-privacy policies exist
In this case, Barrows claimed he intended for his computer to remain private. But the 10th Circuit disagreed, saying that he took no steps to make it private such as using a password.
That means Barrows' guilty plea and sentence remains intact. He was sentenced on August 25, 2006, to six years and six months in federal prison. He was also required to register as a sex offender and was sentenced to an additional three years of supervised release.
Excerpts from the 10th Circuit's opinion:
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. It is not, however, dispositive?the significance of personal ownership is particularly weakened when the item in question is being used for business purposes. 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, is Mr. Barrows's failure to password 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 Mr. Barrows harbored a subjective expectation of privacy. He certainly did not possess a reasonable one.
Mr. 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 Mr. Barrows's files or only a few, the fact remains that Mr. Barrows knew the contents of his machine were not wholly private. He 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 sit down to use his computer having honestly mistaken it for a city one, were appreciable.
Even if Mr. Barrows did possess a subjective expectation of privacy, his failure to take affirmative measures to limit other employees' access makes that expectation unreasonable. 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.
Mr. Barrows voluntarily moved his personal computer into a public space and took no measures to protect its contents from public inspection. Consequently, he did not enjoy a reasonable expectation of privacy and Officer McQuown's search worked no Fourth Amendment violation. The judgment of the district court is affirmed.