Individuals do not have a reasonable expectation of privacy in the contents of computer folders that are shared publicly over a peer-to-peer file sharing network. Using a computer program called “RoundUp,” police were able to find child pornography files on Evensen’s computer. They did not have a warrant but the files were located in a folder Evensen had shared with other users of a peer-to-peer file sharing network. Evensen’s arrest was made public and evidence of more sex crimes came to light. Before his trial, Evensen moved to suppress the evidence, arguing he had a subjective expectation of privacy in his computer, which was objectively reasonable. The trial court denied the motion. He pleaded no contest to various sex crimes and appealed. Held: Affirmed. “A person seeking to invoke the protection of the Fourth Amendment must demonstrate both that he harbored a subjective expectation of privacy and that the expectation was objectively reasonable. An objectively reasonable expectation of privacy is one society is willing to recognize as reasonable.” (People v. Hughston (2008) 168 Cal.App.4th 1062, 1068, internal citations omitted.) As a general rule, computer users have an objectively reasonable expectation of privacy in the content of their computers. An exception exists for files shared publicly via file-sharing software. (United States v. Ganoe (9th Cir. 2008) 538 F.3d 1117, 1127.) Although Eversen took some measures to prevent others from accessing his shared folder, he could not claim that his shared folder was private at all times or that he believed it to be. The court distinguished Kyllo v. United States (2001) 533 U.S. 27, where the police used technology that was not in general public use (i.e., a thermal imager) to scan homes for excessive heat associated with marijuana grow lamps. The trial court properly denied Evensen’s suppression motion.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/A145162.PDF