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U.S. v Barrows

Case No. 06-6274 (C.A. 10, Apr. 3, 2007)

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 Stillwater 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.
 

 

Judge(s): Michael McConnell
Jurisdiction: U.S. Court of Appeals, Tenth Circuit
Related Categories: Constitutional Law
 
Circuit Court Judge(s)
William Holloway, Jr.
Michael McConnell
Terrence O'Brien

 
Appellant Lawyer(s) Appellant Law Firm(s)
Robert Manchester, III

 
Appellee Lawyer(s) Appellee Law Firm(s)
Timothy Ogilvie U.S. Department of Justice
John Richter U.S. Department of Justice

 

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Click the maroon box above for a formatted PDF of the decision.
appellee. who bring personal material into public spaces, making no effort to shield that consequently, he did not enjoy a reasonable expectation of privacy and officer and took no measures to protect its contents from public inspection. 1993), united states v. acosta, 965 f.2d 1248, 1252 (3d cir. 1992), united states file-sharing program and accessed the transfer history. when he did, he observed expectation of privacy. he certainly did not possess a reasonable one. timothy w. ogilvie, assistant u.s. attorney (john c. richter, united states mcconnell, circuit judge. pornography, he and the sheriff seized the computer and obtained a warrant to use the computer simultaneously. to remedy this inconvenience, mr. barrows seized; and (3) whether the employee took actions to maintain his privacy in the since this incident occurred in the workplace, those surrounding robert a. manchester, iii, oklahoma city, oklahoma, for the defendant- 1134 (10th cir. 2002), is mr. barrows's failure to password protect his computer, possession of the defendant and not something connected with the operation of the did not and affirm. tenth circuit & seizure 11.3(d) (4th ed. 2004) ("particularly in an otherwise close case, a the defendant had opened it on his computer. before o'brien, holloway, and mcconnell, circuit judges. that afternoon to send a fax. officer mcquown was a former computer salesman; remain private. home owners who place personal effects in their driveways the thing searched. see united states v. anderson, 154 f.3d 1225, 1229 (10th brought his personal computer to work. he placed the machine on the common away from his desk. april 3, 2007 expectation unreasonable. angevine, 281 f.3d at 1135; see o'connor v. ortega, five minutes of tinkering, he found himself unable to access a file in the city's asking two questions. first, did mr. barrows manifest a subjective expectation of contents of his machine were not wholly private. he also knew when he chose to desk and connected it via the city network to the common computer. mr. barrows appeal from the united states district court mr. barrows claims that he invited no one to use his computer and chances a passerby might spy snatches of personal material over his shoulder, or suppress. clerk of court to michael mcquown, a reserve police officer who happened to be in city hall court may be influenced by the defendant's relationship to or interest in the united states court of appeals mr. barrows and the city clerk shared a computer in addition to desk space, of all the surrounding circumstances." id. elisabeth a. shumaker see united states v. hawkins, 139 f.3d 29, 32 (1st cir. 1998) (holding that a mr. barrows's files or only a few, the fact remains that mr. barrows knew the mcquown's search worked no fourth amendment violation. the judgment of the of the fourth amendment is `reasonableness'. . . ."). a warrantless search may left the computer running at all times--even in the evenings and while he was quickbooks accounting program. at some point, the clerk informed mcquown must be considered case by case, see united states v. angevine, 281 f.3d 1130, particular item seized. it may be significant, therefore, that this item is a personal law nor social expectations of privacy, for neither affords individuals an absolute fourth amendment protection. united states v. arango, 912 f.2d 441, 445 (10th wondered whether mr. barrows's computer had something to do with the -8- attorney, with him on the brief), oklahoma city, oklahoma for plaintiff- problem. on the afternoon of may 19, 2005, she complained about the problem running a file-sharing program. mcquown wondered if mr. barrows had brigham city v. stuart, 126 s. ct. 1943, 1947 (2006) ("[t]he ultimate touchstone item." id. at 1232. these factors are relevant to both the subjective and objective even if mr. barrows did possess a subjective expectation of privacy, his long, 176 f.3d 1304, 1308-09 (10th cir. 1999) (citing california v. greenwood, 480 u.s. 709, 718 (1987) ("[s]ome government offices may be so open to fellow sponsored searches and seizures, but not in every circumstance and not for every plaintiff-appellee, regularly entered their space to use the city's fax machine and photocopier, which mr. barrows voluntarily moved his personal computer into a public space apartment building); accord united states v. nohara, 3 f.3d 1239, 1242 (9th cir. turn it off, or take any other steps to prevent third-party use. given these facts, significance of personal ownership is particularly weakened when the item in sit down to use his computer having honestly mistaken it for a city one, were and access city files from either computer. not reflect whether an employee operating the city computer could access all of common hallway cannot reasonably believe those items will be left uninspected. v. deweese, 632 f.2d 1267, 1270 (5th cir. 1980). thereafter, mr. barrows conducted all of his city work on his personal (d.c. no. cr 06-006-01-he) in prison. now he appeals from the district court's denial of his motion to they contained child pornography. veto over third-party access to an item by virtue of ownership alone. but the united states court of appeals the fourth amendment affords citizens broad protection from state- city clerk began to experience difficulty opening files on the city machine. she employees or the public that no expectation of privacy is reasonable."). those therefore expected its contents to remain private. yet he surely contemplated at switched on, as usual, he noticed almost immediately that the defendant was material from public view, cannot reasonably expect their personal materials to united states of america, computer. he did not install a password shield or otherwise attempt to exclude defendant's] claim to privacy from the government intrusion is reasonable in light item. in this appeal, we must determine whether the defendant possessed a cannot reasonably anticipate that those items will go unobserved. united states v. -2- f i l e d least some third-party access: he knowingly networked his machine to the city appellant. relocate his computer to city hall that he would be working in a public area. city officer mcquown proceeded to open various files and delete others on the more weighty for determining privacy expectations in the workplace, which at approximately the time mr. barrows networked the two computers, the v. no. 06-6274 we are hard-pressed to conclude that mr. barrows harbored a subjective failure to take affirmative measures to limit other employees' access makes that although a counter cordoned off their common work area from the general public, defendant-appellant. determinative. . . ."). if it were, the fourth amendment would track neither tort a series of files with sexually suggestive names. opening two or three, he found business. . . ." (emphasis added)). mr. barrows voluntarily transferred his appreciable. transferred the quickbooks file to a remote machine. mcquown clicked open the at the time he was charged with criminal conduct, michael barrows served search the entire hard drive. mr. barrows pled guilty to child pornography cir. 1990). it is not, however, dispositive. see united states v. erwin, 875 f.2d whether the item was in the immediate control of the employee when it was -3- i. sufficient to warrant protection from a government search. we conclude that he tenant lacks a reasonable expectation of privacy in the common areas of an circumstances include "(1) the employee's relationship to the item seized; (2) informed his co-worker that this way, he and she could input data simultaneously be unreasonable if the defendant enjoyed a legitimate expectation of privacy in barrows shared a workspace with the city clerk in an open area of the city hall. he had helped the clerk manage computer difficulties before. michael a. barrows, after mcquown confirmed that at least a few of the files contained illegal tenth circuit district court is affirmed. question is being used for business purposes. see, e.g., wayne r. lafave, search that mr. barrows had networked his personal computer to the city machine, -4- prongs of the reasonableness inquiry, and we consider the two questions together. ii. were located approximately a foot from mr. barrows's and the city clerk's desk. privacy in the machine? second, is that expectation one society is prepared to personal computer to a public place for work-related use. in these circumstances, and he is right that private ownership is an important factor telling in favor of publish -7- stillwater and approximately sixty miles northeast of oklahoma city. mr. to begin, mr. barrows makes much of the fact that he owned the computer. city machine in an effort to speed its operation. still, after approximately forty- mr. barrows and the city clerk enjoyed little privacy. other city employees -5- cir. 1998). this court must determine whether mr. barrows possessed a 486 u.s. 35, 41 (1988)). apartment tenants who move personal items into a when officer mcquown sat down at mr. barrows's computer, which was computer for the express purpose of sharing files. and though the record does reasonable expectation of privacy in the personal computer he brought to work, charges pursuant to a conditional plea agreement. he was sentenced to 78 months employees and members of the general public passed in and out all day. the recognize as reasonable? id. "the `ultimate question' is whether [the 268, 270-71 (10th cir. 1989) ("[o]wnership of [an] item seized is not leading the officer to suspect that he could not open the file in question because expectation of privacy or to make that expectation reasonable. -6- legitimate expectation of privacy in his personal computer, an inquiry we make by as the treasurer for the city of glencoe, oklahoma, a town located just north of city employees from using his machine or gaining access to his files. indeed, he we cannot say that mere ownership is enough to demonstrate a subjective the fourth amendment guards against unreasonable searches and seizures. and both used it to access city records and programs. they could not, however, for the western district of oklahoma


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