No Right to Privacy in Employer’s Computer, Washington Appeals Court Rules

Appellant, Jack Leck II, was convicted of 46 counts of possession of depictions of a minor engaged in sexually explicit conduct under Washington law. Prior to arrest, the appellant had spent one week volunteering with the World Peace Ambassadors. During that time he had access to a computer in an unlocked area of the office. He was the primary user of the computer, but he did not have a password for the computer, nor a key to the office area. The CEO of the WPA, Ryan Malane, also had access to the computer and occasionally used it.On April 18, 2003, police officers visited WPA headquarters. The appellant was not present at the time. Mr. Malane granted permission to the officers to search the office and the computer. During their search of the computer the officers found numerous pornographic images of minors stored in the web browser cache directory. Investigators later found an extensive Internet search history including over 500 searches, of which 85% were related to child pornography. Evidence from the computer led investigators to find that Mr. Leck’s Hotmail account contained email from several child pornography trading rings. Mr. Leck was sentenced to 48 months imprisonment for 46 counts of possession of child pornography.

On his appeal Mr. Leck raised three grounds of potential error. First, he claimed that the police had violated his Fourth Amendment right of protection against unreasonable searches. Second, he claimed that the evidence was insufficient to convict him. Third, he claimed that he was improperly sentenced.

The appeals court dismissed the Fourth Amendment claim on the grounds that the police received consent to search from Mr. Malane, the CEO of WAP and the owner of the computer. The court ruled that the defendant has a privacy interest in the object of the search only if he has a property interest in the object of the search, or a reasonable expectation of privacy in the object. Here the appellant had neither interest and thus the search could proceed with only the consent of Mr. Malane.

The appellant did not have a property interest in the computer under State v. Thompson 92 P.3d 228.. In Thompson the Washington Supreme Court upheld a warrentless search of a boathouse that was consented to by the defendant’s parents (and owners of the boathouse). Because Thompson’s “use of the premises ‘was contingent upon his parents’ permission’” he did not possess common authority over the boathouse and therefore his consent was not necessary to the validity of the search. 92 P.3d at 235. Similarly, the appellant “did not share equal authority over the WPA office or computer, thus Leck’s consent to a state search was not necessary.” Instead Mr. Malane’s consent was sufficient.

The appellant did not have a reasonable expectation of privacy in the WPA computer. While the appellant may have had a subjective expectation of privacy, the court ruled that it was not reasonable to expect privacy within a shared computer at a volunteer agency that was not password-protected or locked.

The appeals court dismissed the claim of insufficient evidence to sustain a conviction. The appellant argued that he did not possess the images as they were not intentionally downloaded but rather stored automatically in the browser’s cache directory. The court considered there to be sufficient evidence to sustain a conviction, however they did not make it clear whether the web cache itself served as constructive possession, or whether the web cache served as evidence of prior constructive possession while the images were being downloaded and viewed. The court applied a “totality of the circumstances” test and found sufficient evidence in the images of minors in the web cache coupled with the appellant’s intentional searches to find the images.

The appeals court dismissed the claim that the sentence was improper due to the state’s failure to grant his right to allocution. Appellant failed to raise the allocution issue during the two-day sentencing phase, despite ample opportunity to do so. The court ruled that granting a new hearing to address appellant’s statutory right to allocution would be a “waste of judicial resources.”