The 9th U.S. Circuit Court of Appeals last week affirmed a trial court’s refusal to suppress evidence in the case of hotel clerk Nicolai Caymen who had purchased the laptop computer with a guest’s credit card number.
The federal appeals court rejected Caymen’s argument that despite having obtained the computer by fraud he was the owner of the laptop and had a right to privacy in its contents.
The 9th Circuit, which heard the case in Anchorage, said that regardless of whether the clerk expected to maintain privacy in the information stored on the stolen computer, his expectation was not one “society is prepared to accept as reasonable.”
Caymen worked at a hotel in Ketchikan, one of Alaska’s larger cities with a population of about 7,500 people. Police searched Caymen’s home after a business supply store fingered the local man as a possible suspect in a scheme to buy computers using guests’ credit card numbers.
During the search, police found documents showing that Caymen had changed his name from Andrew Patrick Payne. When police ran the old name through a database, they found that Caymen had outstanding warrants in two other states and that he had prior convictions for the possession of child pornography and unlawful acts with minors.
After seizing a laptop, police called the store where Caymen had obtained it to ask if they could look at it before returning it.
The store’s owner not only consented to the police request, but he specifically requested that the police search the laptop’s hard drive because he didn’t “want to have anything [on the computer] that shouldn’t be there.”
In a warrantless search, police looked on the laptop’s hard drive for evidence of credit card fraud, but instead found images of boys, who were 10 to 12 years old, exhibiting genitals for the camera.
Police later looked at hard drives and storage media from Caymen’s other computers for evidence of possession of child pornography. They found plenty — the hard drives were filled with sexually explicit images of children.
Caymen was indicted for possession of child pornography and fraudulent use of a credit device. He moved to suppress the evidence of the sexual photographs of children on the computers.
Caymen’s theory was that the police had no constitutional justification for their first look on the laptop’s hard drive, and that all the subsequently found child pornography was “fruit of the poisonous tree.”
Caymen’s motion was denied. He pleaded guilty to possession of child pornography, but reserved for appeal the question of whether his motion to suppress was properly denied.
Caymen’s attorney argued the case exclusively in terms of whether Caymen has standing to assert a Fourth Amendment violation stemming from the initial police search of the laptop.
Last week, the 9th Circuit agreed with the lower court, denying Caymen’s motion to suppress evidence.
“[O]ne who takes property by theft or fraud cannot reasonably expect to retain possession and exclude others from it once he is caught,” the court said. “Because, as the district court found, Caymen obtained the laptop computer by fraud, he had no legitimate expectation of privacy in the contents of the hard drive.”
The case is United States vs. Caymen, No. 03-30365.
