E.D.Mich.: Defendant had standing in computers he let others use

An interesting computer standing case: Similar cases have summarily denied standing before without analysis. Defendant owned one computer and had substantial access to another. He had standing in the one he owned, despite letting others use it. The second computer had his profile set up on it, and he “just barely” had standing in it, but it was subject to easy third party consent. United States v. Trejo, 2010 U.S. Dist. LEXIS 22909 (E.D. Mich. March 12, 2010):

In this case, Trejo had a reasonable expectation of privacy in the content of the first seized computer. The evidence demonstrates that Trejo owned the computer, and while that fact alone is not determinative, it is substantial. The fact that he allowed others to access the computer does not completely diminish his expectation that the contents of the computer would be kept private, at least among his family members and friends of his father’s who used the computer from time to time. … Even though others had access to it, and even though he did not use a password, the Court finds that Trejo has demonstrated enough of an expectation of privacy in the computer to allow him to challenge its search and ultimate seizure.

The case is closer, however, with respect to the second computer, which Rose testified was purchased by Raymond and not owned by the defendant. Ownership, however, is the not the touchstone of standing to challenge a search and seizure. The Supreme Court decided long ago that the Fourth Amendment’s protections do not depend on the parameters of a state’s property law, but rather on whether a person maintains a reasonable expectation of privacy over an object or place. See Katz, 389 U.S. at 361. Ownership may be a factor, but it is not dispositive. Cf. Hunyady, 409 F.3d at 301 (listing the factors a court must consider).

Although Trejo did not own the second computer, he nevertheless maintained a sufficient expectation over the computer and its contents such that he has standing — just barely — to challenge its search and seizure. The computer was located inside his father’s home, in which Trejo permanently resided. A lawful resident of a home, even though not the owner, the Court believes, still has a reasonable expectation of privacy over the contents inside the residence, even if located in common areas. Further, the presence of Trejo’s profile on the computer demonstrate that he had at least some control or ownership interest in the computer, which further supports his expectation of privacy. The Court concludes that Trejo’s expectation of privacy in his father’s computer was one society is prepared to accept as reasonable, even if reluctantly. See Katz, 389 U.S. at 361.

The Court notes that the government has made a strong argument that Trejo did not have expectations of privacy with respect to both computers that would allow him to challenge the seizures. The government states that each computer was made openly available in a common area of the residence owned by his father. Moreover, multiple people, including extended family members and friends, had access to the house and used the computers. The government contends that Trejo was “little more than a house guest with visitor access to a computer contained therein. As such, [Trejo] had no expectation of privacy in [the computers] and does not have standing to object to the search of either computer.” Def. Br. p. 6. Although the government makes a strong argument on this front, the Court ultimately disagrees with it, and finds that the arguments of counsel are more properly considered in the third-party consent context discussed below. Trejo’s permanent residence at Raymond’s home, and use of the computers therein, even though located in a common area and available for use by other guests invited into the home, are sufficient to allow Trejo to challenge the searches.

The Court, therefore, finds that Trejo had a reasonable expectation of privacy in the two computers, sufficient to permit him to challenge the validity of the search and seizure. Cf. Guest v. Leis, 255 F.3d 325, 333 (6th Cir. 2001) (“Home owners would of course have a reasonable expectation of privacy in their homes and in their belongings — including computers — inside the home.”); United States v. Lifshitz, 369 F.3d 173, 190 (2d Cir. 2004) (“Individuals generally possess a reasonable expectation of privacy in their home computers.”).