P. v. Richardson

Filed 10/27/06 P. v. Richardson CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, H029498

Plaintiff and Respondent, (Santa Clara County

Superior Court

v. No. CC303637)

WAYNE KEITH RICHARDSON,

Defendant and Appellant.

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An attorney at the Department of Corporations received an anonymous telephone call informing him that a compact disk (CD) “with documents” from defendant’s computer, downloaded by the anonymous caller, would be arriving in the mail. The attorney received a CD in the mail a few days later. He put the CD in his computer and looked at the contents of the documents on the CD, which aided him in his investigation of defendant’s misdeeds. His investigation led to criminal charges against defendant, and defendant moved to suppress the fruits of the contents of the documents on the CD on the ground that a search warrant was required. The trial court denied the motion. On appeal, defendant reiterates his contention. We conclude that the trial court did not err in denying defendant’s motion.

I. Background

Defendant was charged by information with three counts of grand theft (Pen. Code, §§ 484, 487, subd. (a)), three counts of selling an unqualified security (Corp. Code, § 25110), three counts of selling a security by means of a false communication (Corp. Code, § 25401) and one count of using a fraudulent scheme to sell a security (Corp. Code, § 25541).

Defendant filed a suppression motion. He asserted that the Department of Corporations attorney had violated his Fourth Amendment rights by engaging in the “extension of a private party’s search.” Defendant relied solely on Walter v. United States (1980) 447 U.S. 649. The prosecution asserted that Walter was distinguishable. The court denied the motion.

Defendant thereafter pleaded no contest to a single count of selling a security by means of a false communication in exchange for the dismissal of the other Santa Clara County counts and a three-year state prison sentence as part of a global resolution of criminal actions against him in three counties. He filed a timely notice of appeal.

II. Analysis

Defendant’s sole contention on appeal is that the trial court erred in denying his suppression motion.

A. Standard of Review

“The standard of appellate review of a trial court’s ruling on a motion to suppress is well established. We defer to the trial court’s factual findings, express or implied, where supported by substantial evidence. In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment.” (People v. Glaser (1995) 11 Cal.4th 354, 362.)

B. Evidence Presented To The Trial Court

The only testimony considered by the trial court on defendant’s suppression motion was the testimony of Sean Rooney, an attorney for the Department of Corporations. Rooney testified that he received a telephone call from a person who did not identify himself but claimed that he was a computer technician who “remotely service[d]” defendant’s computers from Colorado. We will refer to this person as X for convenience. X said he was aware that the Department of Corporations was investigating defendant, and X was suspicious of defendant’s conduct. X told Rooney that he had mailed to Rooney an envelope containing “a CD with documents” that he had created by downloading the documents from defendant’s computer while servicing the computer and placing the documents on the CD.

A few days later, Rooney received a CD in a small packing envelope with no return address. The envelope was postmarked Denver, Colorado. Rooney opened the envelope and removed the CD. He placed the CD in his computer’s CD drive and looked at the list of documents on the CD. The CD contained over 200 documents. Rooney opened many of the documents on the CD and utilized them in his investigation of defendant. Rooney did not obtain a search warrant for the CD.

The court found that defendant had “standing” to challenge Rooney’s “search” of the CD. The court deemed it irrelevant whether X had been telling the truth about being a computer technician. It credited Rooney’s testimony. Because Rooney’s accessing of the CD was not broader than X’s accessing of the documents and was “reasonable,” the court rejected defendant’s claim that his privacy had been violated. “I don’t know if anyone in the world would have given him a warrant if all he comes in with is a disk. Is there data on there? I don’t know, but I need a search warrant. There’s no other option to take a look at what’s going on with the evidence described.”

C. Walter v. U.S.

Defendant relies heavily on Walter v. U.S. (1980) 447 U.S. 649 (Walter). We find Walter unhelpful.

In Walter, twelve large, securely sealed cartons were erroneously delivered to someone other than the addressee. (Walter v. U.S., supra, 447 U.S. at p. 651.) The recipient opened the cartons and found 871 boxes within the cartons. The boxes bore drawings and descriptions which were “suggestive” and “explicit.” (Walter, at pp. 651-652.) The recipient also opened one or two of the boxes, found 8-millimeter films inside, and tried unsuccessfully to view portions of the films by holding the film up to the light. (Walter, at p. 652.) The images on the film were too small to be viewed with the naked eye. (Walter, at p. 654, fn. 2.) The recipient contacted the FBI, and the FBI took custody of the cartons. (Walter, at p. 652.) FBI agents subsequently viewed the films on a projector and concluded that some of them were obscene. (Walter, at p. 652.) The owner of the films was charged with interstate transportation of obscenity. (Walter, at pp. 652, 655.) The owner’s suppression motion was denied. (Walter, at p. 652.)

The U.S. Supreme Court reversed by a 5-4 vote. A two-justice lead opinion concluded that the “unauthorized exhibition” of the films was a search without a warrant in violation of the owner’s Fourth Amendment rights. (Walter v. U.S., supra, 447 U.S. at p. 654.) These two justices expressed the view that lawful possession of the boxes did not give the FBI the “authority to search their contents.” (Walter, at p. 654.) The fact that the recipient had opened some of the boxes did not excuse the FBI’s failure to obtain a search warrant because the FBI’s search exceeded the scope of the recipient’s search by using a projector to view the images on the films. (Walter, at p. 656.)

“[T]he private party had not actually viewed the films. Prior to the Government screening one could only draw inferences about what was on the films. [footnote omitted.] The projection of the films was a significant expansion of the search that had been conducted previously by a private party and therefore must be characterized as a separate search.” (Walter v. U.S., supra, 447 U.S. at p. 657.) The omitted footnote reads: “Since the viewing was first done by the Government when it screened the films with a projector, we have no occasion to decide whether the Government would have been required to obtain a warrant had the private party been the first to view them.” (Walter, at p. 657, fn. 9.)

These two justices concluded that the erroneous delivery of the cartons to a third party did not destroy the owner’s legitimate expectation of privacy. “The private search merely frustrated that expectation in part. It did not simply strip the remaining unfrustrated portion of that expectation of all Fourth Amendment protection. Since the additional search conducted by the FBI--the screening of the films--was not supported by any justification, it violated [the Fourth] Amendment.” (Walter v. U.S., supra, 447 U.S. at p. 659, footnotes omitted.) “It is arguable that a third party’s inspection of the contents . . . could be so complete that there would be no additional search by the FBI when it re-examines the materials. [Citation.] But this is not such a case, because it was clearly necessary for the FBI to screen the films, which the private party had not done, in order to obtain the evidence needed to accomplish its law enforcement objectives.” (Walter, at p. 659, fn. 14.) In a separate opinion concurring in part and in the judgment, two justices disagreed with the lead opinion’s suggestion that the scope of the third party’s search was the relevant limit. They concluded that it mattered only what was exposed to public view when the recipient gave the cartons to the FBI. (Walter v. U.S., supra, 447 U.S. at pp. 660-661.) In their view, the FBI would still have infringed on the owner’s rights even if the recipient had projected the films before turning them over to the FBI. (Walter, at pp. 661-662.) A fifth justice concurred in the judgment without writing or joining any opinion. (Walter, at p. 660.) Four justices dissented. (Walter, at p. 662.)

Walter is of no value as precedent. No more than two justices agreed on any reasoning in support of the judgment. A plurality opinion “lacks authority as precedent [citations], and the doctrine of stare decisis does not require us to defer to it.” (Board of Supervisors v. Local Agency Formation Com. (1992) 3 Cal.4th 903, 918.) Because we cannot extract any legal principle from the two plurality opinions supporting the result in Walter (and even then they would not represent a majority view), we decline to attempt to apply any of the reasoning in Walter here. We must resort to other sources of authority.

D. No Fourth Amendment Violation

“The Fourth Amendment protects against unreasonable searches and seizures. [Citation.] Its purpose is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials. [Citation.] The touchstone of Fourth Amendment analysis is whether a person has a constitutionally protected reasonable expectation of privacy. [Citation.] The analysis consists of a two-part inquiry: first, has the individual manifested a subjective expectation of privacy in the object of the challenged search? Second, is society willing to recognize that expectation as reasonable?” (People v. Maury (2003) 30 Cal.4th 342, 384, quotation marks omitted.)

“The conduct of a person not acting under the authority of a state is not proscribed by the Fourth or Fourteenth Amendments of the federal Constitution. There are no state standards for ‘search and seizure’ by a private citizen who is not acting as an agent of the state or other governmental unit. Therefore, acquisition of property by a private citizen from another person cannot be deemed reasonable or unreasonable within the meaning of the constitutional provisions.” (People v. McKinnon (1972) 7 Cal.3d 899, 911-912, internal quotation marks omitted.)

In this case, the trial court found that X was not acting as a government agent, and defendant does not contest this finding on appeal. Hence, X’s acquisition of defendant’s electronic documents, placement of those documents on the CD and transmission of the CD to Rooney cannot be deemed a violation of defendant’s Fourth Amendment rights. This is not a case where Rooney knew of an illegal search and failed to protect defendant’s rights. (See Stapleton v. Superior Court (1968) 70 Cal.2d 97, 103 [Fourth Amendment rights may be violated by private party search if the police knew of the illegal search and stood idly by].) Rooney’s testimony reflected that X had already acquired defendant’s documents when he contacted Rooney, and Rooney had no knowledge as to the truth or falsity of X’s statements.

The question before us is whether Rooney’s conduct in placing the CD in his computer’s CD drive, viewing the document names on the CD and then viewing the contents of those documents violated defendant’s Fourth Amendment rights. “The Fourth Amendment is not violated unless a legitimate expectation of privacy is infringed.” (People v. Clark (1993) 5 Cal.4th 950, 979.) “The legitimate expectation of privacy must exist in the particular area searched or thing seized in order to bring a Fourth Amendment challenge.” (People v. McPeters (1992) 2 Cal.4th 1148, 1171, quotation marks omitted.)

We clearly must reject any contention that defendant had a legitimate expectation of privacy in the CD itself. While the trial court assumed that the documents on the CD originally belonged to defendant and therefore defendant might have some privacy interest in the contents of those documents, it was undisputed that defendant had no legitimate expectation of privacy in a CD owned and created by X. Thus, Rooney could not have violated defendant’s legitimate expectation of privacy by placing the CD in his computer’s CD drive and viewing a list of the documents on the CD.

The critical question is whether Rooney violated defendant’s legitimate expectation of privacy by viewing the contents of the documents on the CD. We acknowledge that this is a close question. “The mere looking at that which is open to view is not a search.” (People v. Mejia (1969) 272 Cal.App.2d 486, 490.) While Rooney’s “looking at” the contents of the documents on the CD was not “mere looking,” since Rooney would have had to take some further action, such as clicking his mouse, to open the documents, we believe that society is not prepared to accept as legitimate an expectation of privacy in the contents of documents on a CD after the CD has been legitimately placed in the CD drive of a government official’s computer and the document names on the CD have been legitimately displayed to the government official.

Defendant seems to argue that Rooney’s viewing of the contents of the documents on the CD violated his expectation of privacy because the documents were in a “closed container” that could not be opened without a warrant. His choice of analogy is inapt and is prefigured to produce the result he seeks. In the absence of some sort of password protection or other security protocol designed to protect the contents of the documents, the documents on the CD were not within a “container” that was “closed” in any tangible manner but instead openly available for viewing. A mere click of a mouse is not readily analogous to the opening of a closed container. We are convinced that the contents of individual unsecured documents on a CD retain no legitimate expectation of privacy when the CD has been legitimately opened, the document names on the CD have been legitimately displayed, and the contents of those documents are freely available for view at the click of a mouse.

The trial court did not err in denying defendant’s suppression motion.

III. Disposition

The judgment is affirmed.

_______________________________

Mihara, J.

WE CONCUR:

_____________________________

Bamattre-Manoukian, Acting P.J.

_____________________________

McAdams, J.

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