U.S. v. Poulsen

• Decision Date: 08 December 1994
• Docket Number: No. 94-10020,94-10020
• Citation: 41 F.3d 1330
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Kevin L. POULSEN, et al., Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1330

41 F.3d 1330

UNITED STATES of America, Plaintiff-Appellant, v. Kevin L. POULSEN, et al., Defendant-Appellee.

No. 94-10020.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 17, 1994.

Decided Dec. 8, 1994.

Robert K. Crowe, Asst. U.S. Atty., San Francisco, CA, for plaintiff-appellant.

Paul B. Meltzer, Meltzer & Leeming, Santa Cruz, CA, for defendant-appellee.

Appeal from the United States District Court for the Northern District of California.

Before: ALARCON and HALL, Circuit Judges, and KING, ^* District Judge.

ALARCON, Circuit Judge:

The Government appeals from the order granting Kevin Poulsen's motion to suppress computer tapes turned over to the police after they were seized by the manager of the Menlo-Atherton Storage Facility ("Menlo") because Poulsen failed to pay rent when due on a storage locker. Poulsen filed a motion to suppress. The Government requested dismissal of the motion on the ground, inter alia, that Poulsen did not have a legitimate expectation of privacy. The district court concluded that Poulsen had a legitimate expectation of privacy in the contents of the locker.

The district court granted the motion to suppress the computer tapes because it concluded that the manager did not have apparent authority to consent to the search of the contents of the storage locker. We do not reach the merits of the district court's ruling on the alleged Fourth Amendment violation because we conclude that Poulsen has not demonstrated that he had a legitimate expectation of privacy in the contents of his locker after the manager of the storage facility seized the property because the rent was overdue.

I. PERTINENT FACTS AND PROCEDURAL HISTORY

On April 28, 1987, Poulsen entered into a rental agreement for a storage unit with Menlo. Poulsen signed the rental agreement using the alias "John Anderson."

On January 8, 1988, the rent on the Anderson unit was 71 days in arrears; Poulsen owed Menlo $155.50. On that date, Menlo mailed a preliminary lien notice to John Anderson at the false address that Poulsen had provided on the rental agreement. The preliminary lien notice indicated the amount that was owed, and contained the following warning:

If this sum is not paid in full within 14 days from the date of this notice your right to use the storage space and/or facility will terminate, you will be denied access, and an owner's lien on any stored property will be imposed.

This notice was returned to Menlo as undeliverable. On February 2, 1988, more than fourteen days after the date of the notice, Poulsen went to Menlo. He paid $70.00 towards the balance of the overdue rent on his storage unit. At that time, Poulsen provided Menlo with a second false address. A Menlo employee made a notation in Menlo's files that indicated the amount that Poulsen had paid, the amount that he still owed, and that he "want[ed] to know about access." That same day, Menlo mailed a second preliminary lien notice to the new address provided by Poulsen. This notice was returned to Menlo as undeliverable.

On February 8, 1988, Larry Tyson, the manager of Menlo, entered the Anderson unit to remove its contents. Tyson saw "a large amount of telecommunications equipment and manuals [that] apparently belonged to [PacBell]." Tyson transferred all of the property from the Anderson unit to one that was under his exclusive control ("Tyson's unit"). Thereafter, he called the Redwood City Police Department to inform them that he believed he had found stolen property in the Anderson unit. A Redwood City Police dispatcher called PacBell to request that a PacBell representative be sent to Menlo to examine the property that Tyson had found in the Anderson unit.

The following day, a Redwood City Police officer and John Von Brauch, a special investigator for PacBell, went to Menlo to view the property taken from the Anderson unit. Von Brauch testified that when he examined the property in Tyson's unit, he was acting solely in the interests of PacBell. When Von Brauch entered the Tyson unit, he observed numerous items that he believed had been stolen from PacBell. Specifically, Von Brauch saw a coin-operated telephone, computer manuals that contained proprietary PacBell information, PacBell identification badges, PacBell test equipment, and large reel-to-reel computer tapes.

With Tyson's consent, Von Brauch took some of the reel-to-reel computer tapes to PacBell. He described the tapes as being of the variety typically used in "large main frame or front-end processors." Von Brauch testified that it would be highly unlikely to use this type of computer tape with a home computer.

Von Brauch testified that he thought that the reel-to-reel tapes belonged to PacBell for two reasons. First, he believed that many of the other items in Tyson's unit had been stolen from PacBell. Second, PacBell used reel-to-reel tapes that were similar to those found in Tyson's unit. Von Brauch was unsuccessful in accessing the information on these tapes because the tapes were formatted in the UNIX operating system. PacBell does not use UNIX on its computers.

On February 10, 1988, Tyson notified the Menlo Park Police Department that he had found stolen property in the Anderson unit. The Redwood City Police Department had referred the case to the Menlo Park Police Department after determining that the Menlo-Atherton Storage Facility was in the Menlo Park Police Department's jurisdiction.

Detective James Neal of the Menlo Park Police Department went to Menlo to investigate Tyson's report. Tyson informed Detective Neal that John Anderson had rented a storage locker and his rental payments were substantially overdue. Tyson also advised Detective Neal that Menlo had sent two lien notices and that both had been returned as undeliverable. Tyson failed to inform Detective Neal that Poulsen had made a partial payment of $70.00 on February 2, 1988, or that he wanted to know about access to his storage unit.

Shortly thereafter, Von Brauch arrived at Menlo and informed Detective Neal that the On February 12, 1988, Tyson called Detective Neal to report that Poulsen was at Menlo. Detective Neal arrested Poulsen. After Poulsen was advised of his Miranda rights, he consented to a search of his apartment. There, the police discovered additional computer tapes and PacBell equipment. ¹ Later that same day, Von Brauch gave the reel-to-reel computer tapes that he had taken from Tyson's unit to Detective Neal.

property he had received from Tyson had been stolen from PacBell. Von Brauch also provided Detective Neal with a list of the items that he had taken to PacBell the previous day. Detective Neal requested and received permission from Tyson to take possession of all of the remaining property that he had removed from the Anderson unit. Detective Neal testified that he took possession of these items because Von Brauch had told him that some of the property had been stolen from PacBell. Detective Neal stated that the ownership of the remaining property was in question.

While Detective Neal was questioning Poulsen, he learned that Poulsen had been employed by the Stanford Research Institute ("SRI"). Detective Neal contacted the Federal Bureau of Investigation ("FBI"). An FBI agent asked SRI to inspect the reel-to-reel computer tapes that had been taken from the Anderson unit by Tyson. SRI reviewed the computer tapes and informed the FBI that the tapes were theirs, but contained nothing of "evidentiary value." SRI returned the tapes to Detective Neal.

Von Brauch requested permission to borrow the tapes to make another attempt to determine whether the tapes contained PacBell proprietary information. On March 18, 1988, representatives of PacBell were successful in accessing some of the tapes. The tapes contained "Air Tasking Orders." These orders list targets that the United States Air Force will attack in the event of hostilities.

On October 6, 1993, Poulsen filed a motion to suppress the evidence that was seized from his storage unit at Menlo and from his apartment. On December 7, 1993, the district court denied Poulsen's motion to suppress. Poulsen filed a motion for reconsideration. On January 3, 1994, the district court suppressed the computer tapes that had been seized by Tyson from the Anderson unit. The Government filed a timely appeal from this order.

II. JURISDICTION TO REVIEW THE GOVERNMENT'S APPEAL

Poulsen asserts that this court does not have jurisdiction to adjudicate the Government's appeal. The Government argues that this court has jurisdiction pursuant to 18 U.S.C. Sec. 3731. ²

We have held that three conditions must be satisfied before the Government can appeal from a suppression order. First, the Government cannot appeal if the defendant has been put in jeopardy. Poulsen does not claim he has been placed in jeopardy. Second, an appeal must not be taken for the purpose of delay. Third, the suppressed evidence must be substantial proof of a fact material to the proceedings. United States v. Adrian, 978 F.2d 486, 491 (9th Cir.1992); United States v. Loud Hawk, 628 F.2d 1139 (9th Cir.1979) (en banc), cert. denied, 445 U.S. 917, 100 S.Ct. 1279, 63 L.Ed.2d 602 (1980).

The United States Attorney's Office for the Northern District of California certified that "the appeal [was] not taken for the purpose of delay." Poulsen contends that Poulsen contends that the computer tapes are not material to the charges in the second superseding indictment. In Adrian, we stated that for suppressed evidence to be material under 18 U.S.C. Sec. 3731, it must make a:

the Government's sole purpose in pursuing this appeal is to delay his trial because on October 6, 1993, approximately two weeks prior to the date that his trial was scheduled to begin, the Government filed the second superseding indictment. Poulsen did not argue in the district court that the Government filed the second superseding indictment for the purpose of delay. Thus, he is...