Opinion
No. CR01-0028
July 20, 2001
REPORT AND RECOMMENDATION
This matter comes before the court pursuant to the defendant's June 1, 2001, motion to suppress evidence (docket number 7). The court held an evidentiary hearing on this motion on June 27, 2001, at which the defendant was present and represented by Assistant Federal Public Defender Jane Kelly. The government was represented by Assistant United States Attorney Robert Teig. The matter was referred to the undersigned United States Magistrate Judge for the issuance of a report and recommendation. It is recommended that the motion to suppress be denied.
The motion to suppress arises out of the seizure of a laptop computer at the defendant's residence pursuant to a search warrant that permitted the government to search for evidence related to bank burglaries. The defendant contends that in describing the things to be seized, a laptop computer was not listed or otherwise permitted to be seized. The government contends that the defendant had no legitimate expectation of privacy in the laptop because it was stolen. It further contends that its seizure was permitted pursuant to the plain view exception to the warrant requirement and that the independent source/inevitable discovery exceptions to the Fourth Amendment preclude suppression. The court makes the following findings of fact and conclusions of law.
FINDINGS OF FACT
On February 8, 2001, this court issued a search warrant for the defendant's residence in Martelle, Iowa. The warrant permitted the government to search for boots, burglary tools, and other items linking him to a January 15 burglary at the Farmers Savings Bank of Martelle, Iowa. The warrant was executed February 12, 2001. It was executed by special agents of the Federal Bureau of Investigation together with a deputy Linn County sheriff. The deputy sheriff was brought along because he and the FBI case agent, Damian Bricko, had traded some information regarding the defendant. The Linn County Sheriff's Department was investigating the defendant for golf course burglaries. The FBI was, of course, investigating the defendant for a bank burglary.
The defendant was not initially present when entry was made into his home. The deputy Linn County sheriff proceeded to search the garage first. There were a number of tools seized from the garage. In what appears to be a five gallon plastic bucket, there was a file folder containing, among other things, information that had been printed from the Internet relating to Iowa golf courses. There were Internet maps which showed how to get to golf courses and there was a list of golf course names and addresses. Among the addresses, two golf courses that had been burglarized had lines drawn through them.
Inside the residence, the FBI found a room with an entertainment center, a coffee table, a couch, and an adjoining closet. On the coffee table, the police observed a laptop computer with a telephone line running from the back of the laptop computer to a location behind the entertainment center. In the closet adjoining this room, the police found a safe. Because the defendant had arrived at the residence by this time, he was asked for the combination to the safe and he provided this information to the police. Inside the safe, the police found child pornography that had been downloaded from the Internet. They also found 3.5 inch disks containing golf course information and child pornography.
Based upon the printed Internet pornography, its proximity to the laptop computer, and the laptop's connected telephone line, the FBI determined that the laptop should be seized. The computer was on at the time and several windows were open. Because of this, an FBI agent pressed a key on the computer as a part of an effort to shut it down. As the individual windows were closed, an agent observed an Internet site that was open that he believed to be related to child pornography. The operating system was successfully shut down, the computer was seized, and a subsequent warrant was then issued for the search of the hard drive and floppy disks.
This later search by an FBI computer specialist showed that the computer was registered to a person at an Iowa golf course that had been burglarized. A subsequent investigation revealed that the laptop had been stolen in the golf course burglary. The recovery from the defendant's residence of golf course information and disks and lists of Iowa golf courses with burglarized courses crossed off leads this court to believe that the defendant stole the laptop computer.
The decision to seize the laptop computer without another warrant was made after a discussion among the FBI agents present. They genuinely believed that it was appropriate to seize the computer as evidence of the defendant's acquisition and possession of child pornography. Based upon the Internet-generated documents regarding golf courses found in the garage, the Internet-generated child pornography found in the safe, and the proximity of the laptop with connected telephone line to the safe, probable cause existed for the seizure of the laptop.
As it turns out, the laptop computer was stolen after the pictures in the safe had been generated. This was not known, however, until the hard drive of the computer was searched.
CONCLUSIONS OF LAW I. Reasonable Expectation of Privacy in Stolen Property
First, the government contends that the defendant cannot challenge the search of the laptop computer because the defendant does not have a legitimate expectation of privacy in stolen property. Fourth Amendment rights are personal in nature and may not be vicariously asserted.Alderman v. United States, 394 U.S. 165, 174 (1969); United States v. McCaster, 193 F.3d 930, 933 (8th Cir. 1999). When a defendant claims he should be protected under the Fourth Amendment, "a defendant must demonstrate that he personally has an expectation of privacy in the place searched, and that his expectation is reasonable . . . ." Minnesota v. Carter, 525 U.S. 83, 88 (1998). The defendant must be "able to show the violation of his (and not someone else's) Fourth Amendment rights . . . .'"Id. To show a violation of his Fourth Amendment rights, the defendant must show he had an actual, subjective expectation of privacy in an area in which society is prepared to recognize as reasonable. Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring).
The defendant did not have a reasonable expectation of privacy in the stolen laptop. "Because expectations of privacy derive in part from the right to exclude others from the property in question, lawful possession is an important consideration in determining whether a defendant had a legitimate expectation in the area searched." United States v. Lyons, 992 F.2d 1029, 1031 (10th Cir. 1993). In Lyons, the defendant was convicted of transporting stolen property in connection with a theft of computer equipment. Id. After executing a warrant to search the defendant's home and seizing the stolen equipment and hard disks, the agents searched the contents of the hard disks without obtaining a separate warrant. Id. The defendant challenged the search and the court held that the defendant "failed to meet the threshold requirement of demonstrating an expectation of privacy in the property searched." Id. at 1032. When an defendant knowingly possesses stolen property, the defendant does not have a legitimate expectation of privacy in that item. United States v. Tropiano, 50 F.3d 157, 161 (2d Cir. 1995); United States v. Lanford, 838 F.2d 1351, 1353 (5th Cir. 1988) (discussing the expectation of privacy in a stolen car). Therefore, because the laptop was stolen property, the defendant does not have a reasonable expectation of privacy in it and cannot challenge the legitimacy of the search.
II. Plain View
Even if the defendant had a reasonable expectation of privacy in the laptop, suppression is not appropriate. The government argues the seizure of the laptop was proper under the plain view doctrine. "The plain view doctrine allows law enforcement officers to seize evidence without a warrant when the initial intrusion is lawful, the discovery of the evidence is inadvertent, and the incriminating nature of the evidence is immediately apparent." United States v. Raines, 243 F.3d 419, 422 (8th Cir. 2001). "The immediately apparent requirement means that officers must have probable cause to associate the property with criminal activity. Probable cause demands not that an officer be `sure' or `certain' but only that the facts available to a reasonably cautious man would warrant a belief that certain items may be contraband or stolen property or useful as evidence of a crime." United States v. Weinbender, 109 F.3d 1327, 1330 (8th Cir. 1997) (citations and quotations omitted).
The warrant permitted the officers to search for boots, burglary tools and other items linking the defendant to a burglary. The laptop computer was located on a coffee table in the living room of the residence and had a telephone line running from the back of the computer to a telephone jack. The officers had located printed Internet pornography near the computer and observed an open window on the computer believed to be associated with pornography. These observations are sufficient to link the laptop with criminal activity and therefore its seizure was appropriate.
Upon the foregoing,
IT IS RECOMMENDED that, unless any party files objections to the Report and Recommendation in accordance with 28 U.S.C. § 636(b)(1)(C) and Fed.R.Civ.P. 72(b) within ten (10) days of the service of a copy of this report and recommendation, the motion to suppress be denied.
Objections must specify the parts of the report and recommendation to which objections are made. Objections also must specify the parts of the record, including exhibits and transcript lines, which form the basis for such objections. See Fed.R.Civ.P. 72. Failure to file timely objections may result in waiver of the right to appeal questions of fact. See Thomas v. Arn, 474 U.S. 140, 155 (1985); Thompson v. Nix, 897 F.2d 356 (8th Cir. 1990).