Changing computer technology and privacy does not yet require a more sensitive approach; by taking one’s computer in for repairs, one assumes the risk of a private search

Best Buy in Shreveport was installing a new hard drive in the defendant’s computer, and they did a simple diagnostic check not requested by the defendant to verify that the computer was operating correctly, because it had operations issues. The repairman used his own flashdrive to check the computer’s function, and then the computer opened the default “My Pictures” folder, and he found child porn. The police were called. The search was a purely private search. The advances in computer technology and privacy concerns do not yet require the courts to revisit the expectation of privacy issues. State v. Horton, 962 So. 2d 459 (La. App. 2d Cir. 2007):

We recognize that State v. Hutchinson, supra, was decided in 1977 and State v. Coleman, supra, was decided in 1985, some thirty and twenty-two years ago respectively-long before the technological revolution in electronic communications, computers and the internet in the last ten years. These new technologies have raised privacy issues in all aspects of our cultural life which will perhaps one day require this court or the supreme court to revisit the private search question. However, the facts of this case do not warrant a re-examination of our previous decision in State v. Coleman, supra, because the discovery of the illicit images on Horton’s computer was clearly by accident, and the evidence adduced does not establish that Horton had a subjective expectation of privacy, nor did he demonstrate that his expectation is one that society is prepared to recognize as reasonable and legitimate. Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed.2d 576 (1967). Horton brought his computer to Best Buy to have a hard drive installed and the computer physically cleaned. Surely it is not a far reach for a customer to expect that the computer technician might perform a cursory inspection of the computer’s operation, particularly if the computer appeared to be having some problems. In a sense, the discovery of the images by the technician in this case is more analogous to a “plain view” discovery of evidence of a crime.

Even if we assumed that the Best Buy employee’s opening of the “My Pictures” file was unauthorized, and that Horton had a privacy interest in the images contained in the folder, we cannot conclude that Horton thereby meets the “reasonable expectation of privacy test” standards. Horton did not exercise dominion or control over the computer images in the “My Pictures” folder because he had voluntarily relinquished control of the computer to the repair store and failed to secure the images in the folder. The images were located in the default file, which meant that it opened automatically when the “My Pictures” folder was opened. In other words, displaying the images required no conscious thought and action or intention of the technician to enter the file.

(Comment: This case was not the proper vehicle to raise the issue of whether there is now a greater expectation of privacy in a computer, if the defendant did. One would suspect that it was raised by the defendant, but we cannot be sure. At any rate, this case was simple on the facts: The default opening folder was “My Pictures.” I know that the general populace does not read search and seizure cases to see how the law has developed in this regard, or on the reasonable expectation of privacy in general, but the defendant had to know that somebody might see what was on his computer in the shop, particularly when “My Pictures” comes right up when the computer is turned on. I would also assume that anyone would know that the computer would have to be tested to make sure that the new hard drive would be read when the computer was turned on. This was not some sophisticated invasion of privacy by the computer geeks; it was simple and necessary to do their jobs. One cannot reasonably disagree with the outcome. If the law on reasonable expectation of privacy in a computer is going to change, it is going to require far better facts than these.)

Police officers pulled over a car, and the passenger fled. The police found out who he was and where he was staying and went to his motel room and entered without a warrant. Inside, they found drugs. The pursuit was not in hot pursuit, and the entry was not with exigent circumstances. Even probable cause was lacking because flight alone is not enough. [To compound the problems, the parties stipulated to police reports as the evidence of the arrest, and it was full of factual holes that the appellate court could not resolve since the state carried the burden of proof.] State v. Smith, 960 So. 2d 369 (La. App. 2d Cir. 2007). (Comment: The state should not have stipulated to using the reports in this case, but the opinion makes it fairly clear that the best case scenario for the state on the gaps in the proof was still a losing proposition.)

Defendant was stopped in Montana for DUI on a cross country trip in an Avis rental car. The plans for the short trip raised suspicions of drug trafficking in the officer. The officer called Avis who considered the rental agreement terminated by the arrest. Avis directed that the car be held until they could retrieve it, and defendant’s personal belongings were removed. Removal was lawful, and it led to finding a roach. The officer got a search warrant for the closed containers and found the cash. Defendant’s unusual travel plans were probable cause for issuance of the search warrant. State v. $129,970.00, 2007 MT 148, 337 Mont. 475, 161 P.3d 816 (2007).*