Posted on September 11, 2009 by Alain Leibman

Search of computer without explicit authorization in search warrant violates Fourth Amendment

When law enforcement officers execute a search warrant in a suspect drug case and the warrant does not explicitly provide for the search of computers in the residence, the officers run afoul of the Fourth Amendment if they search a bedroom computer without securing it and seeking a new warrant, according to the Ninth Circuit.

In United States v. Payton, 2009 U.S. App. LEXIS 15969 (9th Cir., July 21, 2009), .local police obtained a warrant to search for drugs, as well as sales ledgers and financial records of the person controlling the subject residence.  No drugs were found, but a police officer happened on a bedroom computer, and with a few mouse clicks discovered and viewed child pornography.  The appeals court, reversing the trial court, held that the search of the computer was improper.

Although recognizing that the search of a computer generally is more intrusive than searches of other containers, the Payton court emphasized that there is not special categorical protection against computer searches in the Fourth Amendment.  However, in this case the warrant did not specify computers as things to be searched; while ledgers and financial records are capable of being stored in a computer, the lack of specificity in the warrant combined with the lack of circumstantial indicia that ledgers and financial records were on this computer (i.e., there was an absence of such documents in proximity to the computer), to render the search unreasonable.

The better practice, and one the court expressly intended to encourage, would have been for the officers to secure the computer and seek a second warrant specifically oriented toward its search.  Such a practice would better accord with "the special considerations of reasonableness involved in the search of computers."

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Posted on September 2, 2008 by Alain Leibman

New Jersey's Appellate Division limits employees' rights of privacy in content of workplace computers

In a recent decision, the Appellate Division of New Jersey Superior Court upheld a warrantless search of an employee's workplace computers, and affirmed the resulting conviction of the employee for stealing more than $650,000 from his employer. The court's reasoning, however, left something to be desired, notwithstanding the arguably correct conclusion.

The employee in State of New Jersey v. M.A., Docket No. A-4922-06T4 (App. Div., Aug. 29, 2008) acted as a bookkeeper for a manufacturer of adhesive-backed labels. The owner confronted the employee over an unauthorized increase in the employee's salary; the latter admitted a small theft, offered repayment, and was fired. When the owner suspected that the defalcation was much greater, he called in the police and consented to a search of a desktop and laptop computer used by the former employee, but maintained at the company's offices. On the computers was found evidence of the employee's much larger theft.

The trial court denied a motion to suppress the results of the computer searches, and the appeals court affirmed. The Appellate Division reasoned first that the owner had the authority to consent to the searches, since he, and not the former employee, owned the computers. But, the court acknowledged, the search could still have been unlawful if the former employee had a reasonable expectation of privacy in the information he stored on the company-owned computers.

However, the court dismissed the "expectation of privacy" argument needed to ground a Fourth Amendment claim, saying simply "in the criminal context, employees have no reasonable expectation of privacy in a workplace computer." Yet, that statement is incorrect, jurisprudentially speaking, and the cases cited by the court do not support that broad assertion.

Generally, as shown in the federal cases cited by the court, employees can and do have a reasonable expectation of privacy in workplace computers, whether the context is criminal conduct or not. However, there is an exception to the Fourth Amendment's warrant requirement for a government employer which suspects the subject employee of workplace related misconduct; in that circumstance, warrantless searches of office computers are permitted. See O'Connor v. Ortega, 480 U.S. 709 (1987) (plurality opinion). (There is also a diminution of any expectation of privacy where the workplace computers announce via banners or the employer had declaimed through an explicit office policy that the computers' content are subject to review by the employer. See O'Connor).

In this case, the label manufacturer had in hand an admission from the former employee of an embezzlement, albeit a small one; this evidence of workplace misconduct would under O'Connor and subsequent cases have authorized a warrantless search of the computers. So, the Appellate Division reached what is likely the correct result, but got there for the wrong reasons.
 

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