A few readers have flagged a new district court decision, Clements-Jeffrey v. City of Springfield, that raises an interesting Fourth Amendment question: When does a person have Fourth Amendment rights in the contents of a stolen computer? A few decisions have held that a person doesn’t have Fourth Amendment rights in the contents of a stolen computer when they know the computer was stolen: That seems correct to me, as the Fourth Amendment requires some legitimate relationship between the person and the space searched before allowing the person to have Fourth Amendment rights there. See, e.g., Minnesota v. Carter. The trickier question raised in Clements-Jeffrey is what result if the person didn’t know the laptop was stolen. Put another way, what is the mental state required to retain Fourth Amendment rights in stolen property?
A bit about the facts. The plaintiff in this case is a 52-year old substitute teacher who bought a laptop for $60 from a 9th grader at her school. She used the computer to communicate with her long-distance boyfriend, and exchanged sexually explicit communications with him. Unbeknownst to her, the laptop had surveillance software installed on it and monitored her private communications. It turns out that the computer had originally been purchased by a school district, which had installed the surveillance software to help locate the laptop if it was lost or stolen. The computer had been stolen, and then sold eventually for $40 at a bus station to the 9th grader who then sold the laptop for $60 to the teacher. The school then had the company that ran the surveillance tool fire it up and intercept the plaintiff’s communications, which it turned out were with her boyfriend and involved some rather compromising images. She sued, alleging Fourth Amendment and statutory claims.
There’s a lot happening in the District Court decision, but I want to focus on just one question: Whether the plaintiff retained Fourth Amendment rights in the laptop that turned out to be stolen. The district court decision leaves a bit unclear as to whether the parties actually disagreed on the legal test, but the district court judges appears to assume that the proper test is whether the plaintiff knew or should have known the laptop was stolen:
The parties . . .vehemently disagree about whether Plaintiffs’ subjective expectation of privacy was objectively reasonable. Although this is a question of law to be determined by the Court, see Welliver, 976 F.2d at 1151, in this particular case, its resolution turns on a question of fact-whether Plaintiffs knew or should have known that the laptop was stolen.
As the Tenth Circuit Court of Appeals has explained, “[b]ecause expectations of privacy derive in part from the right to exclude others from the property in question, lawful possession is an important consideration in determining whether a defendant had a legitimate expectation in the area searched.” United States v. Lyons, 992 F.2d 1029, 1031 (10th Cir.1993).
An individual who knowingly possesses stolen property does not have a legitimate expectation of privacy in it. See United States v. Tropiano, 50 F.3d 157, 161 (2d Cir.1995) (“we think it obvious that a defendant who knowingly possesses a stolen car has no legitimate expectation of privacy in the car”); United States v. Hensel, 672 F.2d 578, 579 (6th Cir.1982) (holding that defendant who knowingly possessed a stolen truck had no legitimate expectation of privacy and therefore lacked standing to challenge its search). In a similar vein, the Ninth Circuit has held that one who obtains a laptop by fraudulent means lacks a reasonable expectation of privacy in the contents of the hard drive. See United States v. Caymen, 404 F.3d 1196, 1201 (9th Cir.2005).
Defendants argue that because Plaintiffs knew or should have known that the laptop computer being used by Clements–Jeffrey was stolen, Plaintiffs had no objectively reasonable expectation of privacy in their Internet communications. Plaintiffs, however, deny that they knew or should have known that the laptop was stolen. This creates a question of fact that must be resolved by a jury.
My own reaction is to step back and question whether the plaintiff’s Fourth Amendment rights are actually lost if she didn’t know the laptop was stolen but merely should have known that. The question is, what’s the required mens rea for whether a person has a reasonable expectation of privacy? The issue hasn’t come up much because people usually know their relationship to property to establish Fourth Amendment protection in it. Your house is your house, and you probably know the facts relevant to whether you have legitimate rights to it. Computers are easily movable, however, so it’s more common not to know if a computer was at one point stolen. The “should have known” standard used by the district court essentially applies a mens rea of negligence as to the element of the laptop being stolen. A person who is negligent as to whether property is stolen has no Fourth Amendment rights in that property if it turns out it was stolen. Off the top of my head, I don’t know any cases on this specific question. (I would guess some have come up with stolen cars. But that’s just a guess.)
As a normative matter, I would think a higher mens rea is more appropriate to whether a person has a reasonable expectation of privacy in property that they actually believe is theirs. A person who has a genuine but unreasonable belief that property is properly theirs should have a reasonable expectation of privacy in it. Why? Mostly because I can’t see why a person’s appreciation of the risks that something out there might defeat their claim of right to property should eliminate those rights. The Fourth Amendment properly protects the sharp and the clueless alike. A person retains Fourth Amendment rights in their home even if they live in a bad neighborhood and don’t lock the front door. Protecting private spaces in such a weak way may be unwise, but the Fourth Amendment protection has never hinged on such distinctions. That’s my gut reaction, at least.