No. 09-06-450 CR
Submitted on June 29, 2007.
Opinion Delivered January 16, 2008. DO NOT PUBLISH.
On Appeal from the 9th District Court Montgomery County, Texas Trial Cause No. 03-07-05170 CR.
Before GAULTNEY, KREGER, and HORTON, JJ.
HOLLIS HORTON, Chief Justice.
In this case, we decide whether a computer owner had a reasonable expectation of privacy in files on his computer's hard drive when he turned his computer over to a third party repairman and authorized repairs to his computer's operating system. We conclude that when an owner takes no affirmative steps to limit a repairman's access to certain files, the owner assumes the risk that the party entrusted with the computer may discover these files and allow the police to access them. We conclude that the State showed by clear and convincing evidence that the owner authorized the repairman to access the files, that the repairman consented to allow the police to view several of the files at issue, and that when the police initially viewed the computer images they reasonably believed the repairman had the owner's actual or apparent authority to access the files. As a result, we find no error in the trial court's denial of the defendant's motion to suppress, and we affirm John Signorelli's conviction.
Background
While attempting to repair Signorelli's computer, Reggie Thomson, a co-owner of Competition Computers, accessed the computer's hard drive and discovered files that contained images of children engaged in sexual acts with adults. Thompson reported his discovery to Larry Jacks, the business's other co-owner. Jacks also inspected the files and then called the police. On receiving the report, the police did not issue a warrant to search the computer but instead sent a patrol officer to the store. The patrol officer, after observing several images of child pornography from files contained on the computer's hard drive, took the computer into custody. The State subsequently indicted Signorelli for possession of child pornography. See Tex. Pen. Code Ann. § 43.26 (Vernon 2003). Signorelli filed a motion to suppress the computer files containing the images and argued that the police seized the files in violation of his rights under the United States Constitution, the Texas Constitution, and article 38.23 of the Texas Code of Criminal Procedure. The trial court heard Signorelli's motion on February 4, 2005. At the hearing, Signorelli argued that the repairman's opening the files exceeded Signorelli's authorization to repair the computer's operating system and invaded his expectation of privacy in his computer's files. He also asserted that the warrantless search of his computer by the police violated his rights under article 38.23. Subsequently, the trial court denied Signorelli's motion to suppress. Later, Signorelli pled guilty and filed his notice of appeal from the trial court's judgment. Issues On Appeal
Raising three issues, Signorelli contends that the trial court erred in denying his motion to suppress. First, Signorelli argues that a search warrant was necessary to allow anyone to examine his computer files because he had a reasonable expectation of privacy regarding them. Second, analogizing a computer to a closed container, Signorelli argues that because the police are generally required to obtain a warrant to search a closed container, their warrantless search of his computer was unlawful. Third, Signorelli argues that he did not authorize access to the files in a computer folder labeled "personal" and that the accessing of those files violated section 33.02 of the Texas Penal Code. See Tex. Pen. Code Ann. § 33.02(a) (Vernon 2003). In response, the State argues that Signorelli gave Competition Computers permission to access his operating system and that he took no affirmative steps to protect his files by encrypting them. As a result, the State concludes that Signorelli had no reasonable expectation of privacy with respect to his computer's files. Also, the State asserts that Signorelli waived his argument concerning the technicians' violation of section 33.02 of the Penal Code because he failed to raise that argument at the suppression hearing. Standard of Review
This Court reviews a trial court's ruling on a motion to suppress for an abuse of discretion. Dyar v. State, 125 S.W.3d 460, 462 (Tex.Crim.App. 2003). We give almost total deference to the trial court's determination of historical facts, but we conduct a de novo review of the trial court's application of the law to those facts. State v. Ross, 32 S.W.3d 853, 856 (Tex.Crim.App. 2000). As the sole trier of fact at the suppression hearing, the trial judge "evaluates witness testimony and credibility." Torres v. State, 182 S.W.3d 899, 902 (Tex.Crim.App. 2005) (citing Maxwell v. State, 73 S.W.3d 278, 281 (Tex.Crim.App. 2002)). When the defendant shows that the search occurred without a warrant, "the burden shifts to the state to prove the reasonableness of the warrantless search." Id. A search is reasonable when a person consents to a search, since there is no constitutional requirement to show probable cause or to obtain a warrant prior to a consent-based search. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); Maxwell, 73 S.W.3d at 281. Whether the person consented to the search is a question of fact to be determined from all the circumstances. Maxwell, 73 S.W.3d at 281 (citing Ohio v. Robinette, 519 U.S. 33, 40, 117 S.Ct. 417, 136 L.Ed.2d 347 (1996); Allridge v. State, 850 S.W.2d 471, 493 (Tex.Crim.App. 1991)). Under the United States Constitution, the state bears the burden of proving consent by a preponderance of the evidence. Id. The state's burden of showing consent under the Texas Constitution is by clear and convincing evidence. Id. (citing Carmouche v. State, 10 SW.3d 323, 331 (Tex.Crim.App. 2000)). The Testimony
The testimony at the suppression hearing showed that Signorelli relinquished possession of his computer to Jacks to allow Competition Computers to repair it. Signorelli placed no restrictions upon the computer technicians regarding the files that they could access in order to accomplish their assigned task. The computer work order stated: "IExplore Not working [;] Check OUT OS[.]" Jacks testified that Signorelli asked him to repair the Internet Explorer program so that the computer could access the internet. Jacks testified that he explained to Signorelli that there were "several procedures" they would use to check the program to determine if they could repair it, and Signorelli told Jacks "to go ahead." The trial court found that the testimony of the co-owners of Competition Computers was credible, that Signorelli did not limit the technicians' access to the computer, and that the folder containing the images was part of the computer's operating system. Thomson performed the initial work on Signorelli's computer. During the repair process, and after attempting several steps to repair Signorelli's computer, Thomson decided to "wipe" the computer's drive and reload it. Part of that process included saving files from certain folders, which included the image files at issue here. To save these files, Thomson copied the files to be saved into a backup folder and then copied the backup folder onto the company's computer. During the process of taking the inventory of Signorelli's computer files, Thomson found the image files containing child pornography. Thomson testified that while he was conducting the inventory, the computer displayed a reduced version of the images, or thumbnails, of approximately twenty photographs. Thomson enlarged one of those images, and then alerted Jacks, who viewed four or five of the images before he called the police. Thomson further testified that in the normal course of checking out a computer system, the repair technician might need to open files on the customer's computer to diagnose a problem. The trial court found that Thomson's discovery of the images at issue occurred while he was taking an inventory of the files in the "My Documents" folder "per Competition Computer's standard procedures." Doug Johnson, a police officer, arrived in response to Competition Computer's phone call. After looking at two or three of the images contained on the computer, he took the computer into police custody. Officer Johnson did not obtain a warrant before viewing the files or seizing the computer. After he took the computer into police custody, the police obtained a search warrant. Ron Russ, a computer consultant called as a witness by Signorelli, disputed that thumbnail image files would have been displayed when one was looking at the directories on the computer. Russ testified that there was no reason to enter a file labeled "personal" to fix the computer's web browser or to check out the computer's operating system. Based on the evidence at the hearing, the trial court concluded that Signorelli voluntarily relinquished control of his computer to Competition Computers and that he did not prove facts to establish a legitimate expectation of privacy. As a result, the court denied Signorelli's motion to suppress. Analysis
Generally, when a third party has equal control over the thing to be searched, the third party may properly consent to the search. See United States v. Matlock, 415 U.S. 164, 171, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974); Maxwell, 73 S.W.3d at 281. For instance, in Matlock, one of the occupants of a house allowed the police to search a bedroom that was jointly occupied by the defendant and the occupant. Matlock, 415 U.S. at 166. The Supreme Court stated that the prosecution could "show that permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected." Id. at 171 (footnote omitted). "Common authority" rests on "mutual use of the property by persons generally having joint access or control for most purposes[.]" Id. at 171 n. 7. A third-party's apparent authority to consent to a search is sufficient when the facts available to the officer would lead a person of reasonable caution to believe that the third party had such authority. Illinois v. Rodriguez, 497 U.S. 177, 188-89, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990); Miller v. State, 208 S.W.3d 554, 559-60 (Tex.App.-Austin 2006, pet. ref'd). The scope of a third-person's authority to consent on the owner's behalf to a police search was also at issue in Maxwell v. State. See 73 S.W.3d at 280. There, the truck's owner and his driver were in a tractor-trailer rig when the police stopped the rig because of a traffic violation. Id. The police asked the driver (who was not the rig's owner) if they could see the cargo in the trailer. Id. After the driver opened the trailer's unlocked door, the police discovered approximately 500 pounds of marijuana within cardboard boxes underneath crates of limes. Id. The rig's owner, following his conviction for possession, challenged the legality of the search on the grounds that the police failed to obtain his permission to search the trailer. Id. at 279-80. In affirming the owner's conviction, the Texas Court of Criminal Appeals stated that the defendant's "ownership and presence, without some affirmative act on his part to show a refusal to consent to the search or to withdraw [the driver's] authority, did not serve to diminish [the driver's mutual] control." Id. at 282. Thus, one factor in cases involving third-party consent for searches evaluates the officer's reasonable expectation of the third-person's authority to consent. With respect to a person's records, another factor focuses on the person's reasonable expectation of privacy in records turned over to a third party. In State v. Hardy, the Texas Court of Criminal Appeals examined whether a person had a reasonable expectation of privacy in medical records containing the results of his blood-alcohol test results. 963 S.W.2d 516, 523-24 (Tex.Crim.App. 1997). The Hardy Court concluded that "whatever interests society may have in safeguarding the privacy of medical records, they are not sufficiently strong to require protection of blood-alcohol test results from tests taken by hospital personnel solely for medical purposes after a traffic accident." Id. at 527. In reaching this conclusion, the Hardy Court cited United States v. Miller, 425 U.S. 435, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976), a case involving a depositor's bank records, for the proposition that "a depositor voluntarily exposes his financial information to the banking institution and assumes the risk that those records will be conveyed to the government." Hardy, 963 S.W.2d at 524 (citing Miller 425 U.S. at 442-43). We conclude that under the apparent authority factor and the reasonable expectation factor, the trial court's decision denying Signorelli's motion was not an abuse of its discretion. Signorelli relies principally on United States v. Barth, 26 F.Supp.2d 929 (W.D. Tex. 1998), for the proposition that he possessed a reasonable expectation of privacy in the computer files at issue. He argues that he did not relinquish complete dominion or control over his personal folders or his right to exclude others from those folders. Signorelli contends that his authorization for repairs was limited to having the web browser program repaired and that he did not license Competition Computers to peruse the personal contents of his computer. Signorelli contends that the facts of his case distinguish it from Rogers v. State, in which the San Antonio Court of Appeals held that a customer had no legitimate expectation of privacy in computer files containing child pornography that were discovered during a computer technician's attempts to perform repairs to a customer's computer. See 113 S.W.3d 452, 457-58 (Tex.App.-San Antonio 2003, no pet.). In Rogers, the trial court found that Rogers requested that the technician "back-up" the specific files containing the child pornography. Id. at 457. The Rogers Court agreed that this fact distinguished it from Barth. Id. In Signorelli's case, the trial court found that Signorelli had no expectation of privacy in his computer files. We agree the trial court's finding is supported by the evidence presented at the hearing. By failing to restrict the repairman's access to the files or folders at issue and by failing to password-protect them, Signorelli assumed the risk that the repairman would access them in the general course of repairs. See Lown v. State, 172 S.W.3d 753, 760-61 (Tex.App.-Houston [14th Dist.] 2005, pet. ref'd) (upholding denial of motion to suppress when the evidence did not prove defendant manifested an objective indication of his desire to keep certain files confidential). Signorelli also argues that the files at issue were accessed without his consent in violation of section 33.02, which prohibits a person from knowingly accessing a computer without the effective consent of the owner. See Tex. Pen. Code Ann. § 33.02 (Vernon 2003). He argues that his consent was ineffective because his authorization was "used for a purpose other than that for which the consent was given." See Tex. Pen. Code Ann. § 33.01(12)(E) (Vernon 2003) (defining "effective consent"). However, the testimony about the circumstances of the repairs performed by Competition Computers supports the conclusion that the computer files were accessed in the course of carrying out Signorelli's repair order, and the trial court found that the files were accessed in the ordinary course of Competition Computer's standard repair procedures. Therefore, Texas Penal Code section 33.02 does not apply. By turning his computer over for repairs under the circumstances shown here, Signorelli, like the depositor in Miller, the patient in Hardy, and the rig-owner in Maxwell, assumed the risk that Competition Computers would allow the police to access the file folders and files in issue. As a result, Signorelli had no objectively reasonable expectation of privacy in those files. Therefore, we conclude that the evidence supports the trial court's denial of Signorelli's motion to suppress. We overrule Signorelli's three issues, affirm the trial court's denial of Signorelli's motion, and affirm the trial court's judgment.