United States v. 2005-04-20 | 03-30365 | USA VCAYMEN | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 03-30365
v. D.C. No.
 CR-03-00002-RRBNICOLAI CAYMEN, aka Andre
Patrick Payne, OPINION
Defendant-Appellant. 
Appeal from the United States District Court
for the District of Alaska
Ralph R. Beistline, District Judge, Presiding
Argued and Submitted
July 6, 2004—Anchorage, Alaska
Filed April 21, 2005
Before: Cynthia Holcomb Hall, Andrew J. Kleinfeld, and
Kim McLane Wardlaw, Circuit Judges.
Opinion by Judge Kleinfeld
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COUNSEL
Mary C. Geddes, Assistant Federal Defender, Anchorage,
Alaska, for the appellant.
Steven E. Skrocki, Assistant U.S. Attorney, Anchorage,
Alaska, for the appellee.
OPINION
KLEINFELD, Circuit Judge:
We consider a motion to suppress evidence found on the
hard drive of a computer that had been obtained by fraud.
Facts
We take the facts from the hearing on the motion to sup-
press and the district court’s decision on the motion.
Caymen worked as a desk clerk at a hotel in Ketchikan, one
of Alaska’s larger cities, but as cities go, a small one, with a
population of about 7,500 people. A local business supply
store called the police after a woman complained that the
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store had charged her credit card $1,654 for a computer that
she had not purchased. The store discovered that Caymen had
placed a telephone order for the computer using a credit card,
and when Caymen picked it up the shop clerk had not asked
him for any identification. Because the local business supply
stores share information about customers who defraud them,
the store clerk was able to tell the police that Caymen had
tried to buy a computer from one of their competitors, also
with credit card trickery. At the second store, Caymen had
first tried to use a credit card that was rejected, then he used
a different card that worked, but he later cancelled the order,
saying that he had already obtained the computer he needed.
The police got a search warrant for the house where Cay-
men rented a room to look for the laptop and evidence of
credit card fraud. The police discovered the laptop in Cay-
men’s room. It was connected to a desktop tower, which did
not have its own monitor (evidently he used the laptop as its
monitor), and both computers were connected to a high-speed
DSL internet connection. The police officer could see where
a rental sticker had been torn off the back of the tower. It
turned out that Caymen had rented the desktop tower from a
store, but never made any payments and never returned it. The
police then got a second warrant to seize the desktop tower.
Caymen was present during the search. He claimed that he
had no idea what the police were talking about when they said
that the laptop had been purchased with someone else’s credit
card. Caymen insisted that he had bought it with his own
credit card. During the search, the police found documents
showing that Caymen had changed his name from Andrew
Patrick Payne. When the police ran the old name through the
law enforcement database, they found that Caymen had out-
standing warrants in two other states (which Caymen denied
having), and that he had prior convictions for the possession
of child pornography and unlawful acts with minors. In Cay-
men’s wallet, the police found two receipts for the purchase
and subsequent cancellation of the computer that Caymen had
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ordered from the second store. Printed on those receipts was
yet another credit card number that did not belong to Caymen.
Again, Caymen claimed not to know how this could have
happened. The police also found some receipts containing the
names and credit card information of guests who had stayed
at the hotel where Caymen worked.
After seizing the laptop, the police called the business sup-
ply store where Caymen had gotten 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.”
The police looked on the laptop’s hard drive for evidence of
credit card fraud, but instead found images of boys, who were
around ten or twelve-years-old, exhibiting their genitals for
the camera. The police immediately stopped their search of
the hard drive so that they could obtain a third search warrant,
because they now had probable cause to believe that Caymen
possessed child pornography. Using the third warrant, the
police looked at the hard drives and storage media from both
the laptop and tower 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 lap-
top. 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 sup-
press was properly denied. The fraudulent use of a credit
device charge was dismissed (it was apparently pursued by
the state in state court, but our record does not include any
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state disposition). Caymen now appeals the district court’s
denial of his motion to suppress.
Analysis
We review the denial of Caymen’s motion to suppress de
novo, and the underlying factual findings for clear error.1
The parties argue 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. We
need not decide whether other grounds might have justified
the examination of the laptop hard drive, or whether consent
or a warrant (beyond the warrants the police already had) was
needed for the first examination of the hard drive, because no
such issues are raised in Caymen’s motion to suppress, the
district court’s denial of that motion, or the appellate briefs.
Caymen attacks the initial police examination of the lap-
top’s hard drive as a warrantless search. The police had nei-
ther Caymen’s consent nor a warrant to look on the hard
drive, and since the laptop was in police possession (and had
been for weeks), the police could easily have sought and
obtained a warrant. Caymen argues that the consent to search
the laptop given by the business supply store was irrelevant
because the computer belonged to Caymen and not to the
store. Caymen had plainly not authorized the shop owner to
consent to examination of the hard drive of his computer, so
the line of third party consent cases2 has no bearing on this
case. The laptop was in police possession pursuant to the first
search warrant when the police looked at it, so this case does
1United States v. Jones, 286 F.3d 1146, 1150 (9th Cir. 2002).
2See United States v. Matlock, 415 U.S. 164 (1974); United States v.
Davis, 332 F.3d 1163 (9th Cir. 2003); United States v. Fultz, 146 F.3d
1102 (9th Cir. 1998); United States v. Welch, 4 F.3d 761 (9th Cir. 1993).
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not raise the questions at issue in cases where a guest is still
using a room that he obtained by fraudulent use of a credit card.3
Caymen argues that because he “neither conceded nor was
convicted of wrongdoing in relationship to the transaction”
involving the laptop, we have to proceed on the assumption
that the laptop was his, as he claimed when the police con-
ducted the search. Thus, Caymen would have us decide the
case under the assumption that the laptop belonged to Cay-
men, that he had legitimately purchased and used it for sev-
eral months, and that the police examination was illegal
because it was done without Caymen’s consent and without
a warrant. Caymen’s proposed mode of analysis is incorrect,
however, because of the clearly established law on a defen-
dant’s burden to establish a Fourth Amendment violation.
[1] The Supreme Court held in United States v. Rakas4 that
“the proponent of a motion to suppress has the burden of
establishing that his own Fourth Amendment rights were vio-
lated by the challenged search or seizure.”5 In United States
v. Freitas,6 we held that “[w]here a defendant fails to meet
this burden in the suppression hearing, he cannot prevail on
appeal even though the Government also did not establish the
contrary, unless, of course, the record on appeal indepen-
dently demonstrates the requisite standing.”7 This is in accord
with the general view that “the burden of proof is on the
defendant” to demonstrate that he has a reasonable expecta-
tion of privacy.8
3See United States v. Cunag, 386 F.3d 888 (9th Cir. 2004); United
States v. Bautista, 362 F.3d 584 (2004).
4United States v. Rakas, 439 U.S. 128 (1978).
5Id. at 131 n.1; see United States v. Nuesca, 945 F.2d 254, 258 (9th Cir.
1991).
6United States v. Freitas, 716 F.2d 1216 (9th Cir. 1983).
7Id. at 1220 n.2.
8See Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth
Amendment § 11.3(e), at 218 (4th ed. 2004); see also United States v. Mil-
ler, 84 F.3d 1244, 1249-50 (10th Cir. 1996); United States v. Betancur, 24
F.3d 73, 76-77 (10th Cir. 1994).
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This is not to say that the defendant has to establish some
sort of property interest. The “capacity to claim the protection
of the Fourth Amendment depends not upon a property right
in the invaded place,”9 but rather “whether the individual by
his conduct has exhibited an actual (subjective) expectation of
privacy,”10 and further, “whether the individual’s subjective
expectation of privacy is one that society is prepared to accept
as reasonable.”11 Thus we do not consider whether title to the
laptop passed from the store to Caymen.
[2] Although Caymen bases his claim on the fact that he
“neither conceded nor was convicted of wrongdoing” in con-
nection with the laptop, the record nonetheless shows that he
has never carried his burden of proof to establish an “accept-
able” expectation of privacy in the laptop. The police officer
testified at the evidentiary hearing on the motion to suppress.
Caymen did not. Caymen did not submit an affidavit or other
evidence supporting his claim that he had honestly purchased
and owned the laptop. While Caymen did make such a claim
to the police during their search of his room, that claim was,
of course, unsworn. While at the evidentiary hearing on the
motion to suppress the district court never orally recited any-
thing to the effect of “I find that Caymen obtained the laptop
by fraud,” the district court’s written decision says so clearly
enough. The written order denying the motion to suppress
says “[d]ue to the laptop being purchased by the fraudulent
use of a credit card, Caymen did not have a reasonable expec-
tation of privacy in the laptop and cannot challenge the legiti-
macy of the search.” The district court repeats its finding of
fact that the laptop “was fraudulently purchased” several
times in several ways, and says the case is like “a person
going into a computer store, stealing a computer, claiming
9Rakas, 439 U.S. at 143; see also Rawlings v. Kentucky, 448 U.S. 98,
105 (1980); United States v. Nadler, 698 F.2d 995, 999 (9th Cir. 1983).
10Smith v. Maryland, 442 U.S. 735, 740 (1979) (citations and internal
quotations omitted).
11Id.
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that he paid for it, and using it as if it was his own. The laptop
was not legitimately or lawfully his.” All the evidence sup-
ported this finding. The district court’s finding was not clearly
erroneous.
[3] The Fourth Amendment does not protect a defendant
from a warrantless search of property that he stole, because
regardless of whether he expects to maintain privacy in the
contents of the stolen property, such an expectation is not one
that “society is prepared to accept as reasonable.”12 A legiti-
mate expectation of privacy means more than a subjective
expectation of not being discovered.13 We held in United
States v. Wong14 that a person lacks a reasonable expectation
of privacy in the contents of a laptop computer he stole.15
Similarly, several of our sister circuits have held that a person
who steals a car does not have a reasonable expectation of pri-
vacy that entitles him to suppress what is found in a search of
the stolen car.16 Whatever possessory interest a thief may
have, that interest is subordinate to the rights of the owner,17
and in this case, the business supply store, from which Cay-
men fraudulently obtained the computer, not only consented
to the police examination of the laptop’s hard drive, but also
specifically requested that the police examine it before return-
ing it, to protect the store from accidentally coming into pos-
12Id.
13See Rakas, 439 U.S. at 143 n.12 (“A burglar plying his trade in a sum-
mer cabin during the off season may have a thoroughly justified subjective
expectation of privacy, but it is not one which the law recognizes as ‘legit-
imate.’ ”).
14United States v. Wong, 334 F.3d 831 (9th Cir. 2003).
15Id. at 835, 839.
16See United States v. Tropiano, 50 F.3d 157, 161 (2d Cir. 1995);
United States v. Wellons, 32 F.3d 117 (4th Cir. 1994); Betancur, 24 F.3d
at 76-77; United States v. Lanford, 838 F.2d 1351, 1353 (5th Cir. 1988);
United States v. Hensel, 672 F.2d 578, 579 (6th Cir. 1982); United States
v. Hargrove, 647 F.2d 411, 413 (4th Cir. 1981).
17See Terry v. Enomoto, 723 F.2d 697, 699 (9th Cir. 1984).
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session of material the store did not want — like child
pornography.
[4] We see no ground on which to distinguish property
obtained by fraud from property that was stolen by robbery or
trespass, and counsel have offered no authorities suggesting a
distinction. “An essential element of individual property is the
legal right to exclude others from enjoying it,”18 and it cannot
be said that a thief has the right to exclude the true owner
from the contents of property obtained by fraud. Obtaining the
computer by fraud did not entitle Caymen to exclude the store
from the hard drive. The common law long recognized lar-
ceny by trick or false token where the thief induced the right-
ful owner to deliver the property by trickery.19 A fake credit
card is but a plastic and electronic false token.
[5] Of course, what matters is not the details of the com-
mon law of larceny. What matters is a reasonable expectation
of privacy that society is prepared to accept as reasonable,20
and one who takes property by theft or fraud cannot reason-
ably expect to retain possession and exclude others from it
once he is caught. Whatever expectation of privacy he might
assert is not a legitimate expectation that society is prepared
to honor. 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.
18Int’l News Serv. v. Associated Press, 248 U.S. 215, 250 (1918) (Bran-
deis, J., dissenting).
19See, e.g., King v. Pear, 1 Leach 212, 168 Eng. Rep. 208 (Cr. Cas. Res.
1779) (discussed in Bell v. United States, 462 U.S. 356, 359 (1983)); Wil-
liam L. Clark, Jr. & William L. Marshall, A Treatise on the Law of Crimes
§ 12.29, at 946 (7th ed. 1967); Joshua Dressler, Understanding Criminal
Law § 32.04[5], at 552-53 (2001); Wayne R. LaFave & Austin W. Scott,
Jr., Handbook on Criminal Law § 85, at 627 (1972); Rollin M. Perkins &
Ronald N. Boyce, Criminal Law 305 (3d ed. 1982).
20See Smith, 442 U.S. at 740.
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AFFIRMED.
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