                                                                     F I L E D
                                                             United States Court of Appeals
                                                                     Tenth Circuit
                                    PUBLISH
                                                                     April 3, 2007
                   UNITED STATES CO URT O F APPEALS              Elisabeth A. Shumaker
                                                                     Clerk of Court
                               TENTH CIRCUIT



 U N ITED STA TES O F A M ER ICA,

             Plaintiff-Appellee,
       v.                                              No. 06-6274
 M ICH AEL A . BA RR OW S,

             Defendant-Appellant.



        A PPE AL FR OM T HE UNITED STATES DISTRICT COURT
            FO R TH E W ESTERN DISTRICT O F O K LAH O M A
                      (D.C. NO . CR 06-006-01-HE)


Robert A. M anchester, III, Oklahoma City, Oklahoma, for the Defendant-
Appellant.

Timothy W . Ogilvie, Assistant U.S. Attorney (John C. Richter, United States
Attorney, with him on the brief), Oklahoma City, Oklahoma for Plaintiff-
Appellee.


Before O’BRIEN, HOL LOW A Y, and M cCO NNELL, Circuit Judges.


M cCO NNELL, Circuit Judge.


      The Fourth Amendment affords citizens broad protection from state-

sponsored searches and seizures, but not in every circumstance and not for every

item. In this appeal, we must determine whether the defendant possessed a
reasonable expectation of privacy in the personal computer he brought to work,

sufficient to warrant protection from a government search. W e conclude that he

did not and AFFIRM .

                                        I.

      At the time he was charged with criminal conduct, M ichael Barrows served

as the treasurer for the city of Glencoe, Oklahoma, a town located just north of

Stillwater and approximately sixty miles northeast of Oklahoma City. M r.

Barrows shared a workspace with the city clerk in an open area of the city hall.

Although a counter cordoned off their comm on work area from the general public,

M r. Barrows and the city clerk enjoyed little privacy. Other city employees

regularly entered their space to use the city’s fax machine and photocopier, which

were located approximately a foot from M r. Barrows’s and the city clerk’s desk.

      M r. Barrows and the city clerk shared a computer in addition to desk space,

and both used it to access city records and programs. They could not, however,

use the computer simultaneously. To remedy this inconvenience, M r. Barrows

brought his personal computer to work. He placed the machine on the common

desk and connected it via the city network to the common computer. M r. Barrow s

informed his co-worker that this w ay, he and she could input data simultaneously

and access city files from either computer.

      Thereafter, M r. Barrows conducted all of his city work on his personal

computer. He did not install a password shield or otherwise attempt to exclude

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city employees from using his machine or gaining access to his files. Indeed, he

left the computer running at all times— even in the evenings and while he was

away from his desk.

      At approximately the time M r. Barrows networked the two computers, the

city clerk began to experience difficulty opening files on the city machine. She

wondered whether M r. Barrows’s computer had something to do with the

problem. On the afternoon of M ay 19, 2005, she complained about the problem

to M ichael M cQuown, a reserve police officer who happened to be in city hall

that afternoon to send a fax. Officer M cQuown was a former computer salesman;

he had helped the clerk manage computer difficulties before.

      Officer M cQuown proceeded to open various files and delete others on the

city machine in an effort to speed its operation. Still, after approximately forty-

five minutes of tinkering, he found himself unable to access a file in the city’s

Q uickB ooks accounting program. At some point, the clerk informed M cQuown

that M r. Barrows had networked his personal computer to the city machine,

leading the officer to suspect that he could not open the file in question because

the defendant had opened it on his computer.

       W hen Officer M cQuown sat down at M r. Barrows’s computer, which was

switched on, as usual, he noticed almost immediately that the defendant was

running a file-sharing program. M cQuown wondered if M r. Barrows had

transferred the QuickBooks file to a remote machine. M cQuown clicked open the

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file-sharing program and accessed the transfer history. W hen he did, he observed

a series of files with sexually suggestive names. Opening two or three, he found

they contained child pornography.

      After M cQuown confirmed that at least a few of the files contained illegal

pornography, he and the sheriff seized the computer and obtained a warrant to

search the entire hard drive. M r. Barrows pled guilty to child pornography

charges pursuant to a conditional plea agreement. He was sentenced to 78 months

in prison. Now he appeals from the district court’s denial of his motion to

suppress.

                                        II.

      The Fourth Amendment guards against unreasonable searches and seizures.

Brigham City v. Stuart, 126 S. Ct. 1943, 1947 (2006) (“[T]he ultimate touchstone

of the Fourth Amendment is ‘reasonableness’. . . .”). A warrantless search may

be unreasonable if the defendant enjoyed a legitimate expectation of privacy in

the thing searched. See United States v. Anderson, 154 F.3d 1225, 1229 (10th

Cir. 1998). This Court must determine whether M r. Barrows possessed a

legitimate expectation of privacy in his personal computer, an inquiry we make by

asking two questions. First, did M r. Barrows manifest a subjective expectation of

privacy in the machine? Second, is that expectation one society is prepared to

recognize as reasonable? Id. “The ‘ultimate question’ is whether [the




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defendant’s] claim to privacy from the government intrusion is reasonable in light

of all the surrounding circumstances.” Id.

      Since this incident occurred in the workplace, those surrounding

circumstances include “(1) the employee’s relationship to the item seized; (2)

whether the item w as in the immediate control of the employee when it was

seized; and (3) whether the employee took actions to maintain his privacy in the

item.” Id. at 1232. These factors are relevant to both the subjective and objective

prongs of the reasonableness inquiry, and we consider the two questions together.

      To begin, M r. Barrows makes much of the fact that he owned the computer.

And he is right that private ownership is an important factor telling in favor of

Fourth Amendment protection. United States v. Arango, 912 F.2d 441, 445 (10th

Cir. 1990). It is not, however, dispositive. See United States v. Erwin, 875 F.2d

268, 270-71 (10th Cir. 1989) (“[O]wnership of [an] item seized is not

determinative. . . .”). If it were, the Fourth Amendment would track neither tort

law nor social expectations of privacy, for neither affords individuals an absolute

veto over third-party access to an item by virtue of ownership alone. But the

significance of personal ownership is particularly weakened when the item in

question is being used for business purposes. See, e.g., W ayne R. LaFave, Search

& Seizure § 11.3(d) (4th ed. 2004) (“Particularly in an otherw ise close case, a

court may be influenced by the defendant’s relationship to or interest in the

particular item seized. It may be significant, therefore, that this item is a personal

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possession of the defendant and not something connected with the operation of the

business. . . .” (emphasis added)). M r. Barrows voluntarily transferred his

personal computer to a public place for work-related use. In these circumstances,

we cannot say that mere ownership is enough to demonstrate a subjective

expectation of privacy or to make that expectation reasonable.

      M ore weighty for determining privacy expectations in the workplace, which

must be considered case by case, see United States v. Angevine, 281 F.3d 1130,

1134 (10th Cir. 2002), is M r. Barrows’s failure to passw ord protect his computer,

turn it off, or take any other steps to prevent third-party use. Given these facts,

we are hard-pressed to conclude that M r. Barrows harbored a subjective

expectation of privacy. He certainly did not possess a reasonable one.

      M r. Barrows claims that he invited no one to use his computer and

therefore expected its contents to remain private. Yet he surely contemplated at

least some third-party access: he knowingly networked his machine to the city

computer for the express purpose of sharing files. And though the record does

not reflect whether an employee operating the city computer could access all of

M r. Barrows’s files or only a few, the fact remains that M r. Barrows knew the

contents of his machine were not wholly private. H e also knew when he chose to

relocate his computer to city hall that he would be working in a public area. City

employees and members of the general public passed in and out all day. The

chances a passerby might spy snatches of personal material over his shoulder, or

                                          -6-
sit down to use his computer having honestly mistaken it for a city one, were

appreciable.

      Even if M r. Barrows did possess a subjective expectation of privacy, his

failure to take affirmative measures to limit other employees’ access makes that

expectation unreasonable. Angevine, 281 F.3d at 1135; see O’Connor v. Ortega,

480 U.S. 709, 718 (1987) (“[S]ome government offices may be so open to fellow

employees or the public that no expectation of privacy is reasonable.”). Those

who bring personal material into public spaces, making no effort to shield that

material from public view , cannot reasonably expect their personal materials to

remain private. Home owners who place personal effects in their driveways

cannot reasonably anticipate that those items will go unobserved. United States v.

Long, 176 F.3d 1304, 1308-09 (10th Cir. 1999) (citing California v. Greenwood,

486 U.S. 35, 41 (1988)). Apartment tenants who move personal items into a

common hallw ay cannot reasonably believe those items will be left uninspected.

See United States v. Hawkins, 139 F.3d 29, 32 (1st Cir. 1998) (holding that a

tenant lacks a reasonable expectation of privacy in the common areas of an

apartment building); accord United States v. Nohara, 3 F.3d 1239, 1242 (9th Cir.

1993), United States v. Acosta, 965 F.2d 1248, 1252 (3d Cir. 1992), United States

v. DeWeese, 632 F.2d 1267, 1270 (5th Cir. 1980).

      M r. Barrows voluntarily moved his personal computer into a public space

and took no measures to protect its contents from public inspection.

                                        -7-
Consequently, he did not enjoy a reasonable expectation of privacy and Officer

M cQuown’s search worked no Fourth Amendment violation. The judgment of the

district court is AFFIRM ED.




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