WISCONSIN JUDGE RULES NO PRIVACY RIGHT ON A STOLEN COMPUTER The Journal Times Online > Local News > No privacy right on a stolen computer, judge rules in child pornography case

No privacy right on a stolen computer, judge rules in child pornography case

By Janine Anderson
Journal Times

Friday, October 26, 2007 11:39 PM CDT

ACINE — A Racine County Circuit Court judge ruled Friday that an accused thief did not have an expectation of privacy to the contents of the allegedly stolen laptop, allowing prosecutors to continue with 27 charges of possession of child pornography in addition to the retail theft charge.

Devon Michael Masiakowski, 21, was charged in May 2006 with one count of misdemeanor retail theft and 27 felony counts of possession of child pornography. He is accused of stealing a laptop computer from the Burlington

Wal-Mart.

An anonymous tip to the store led police to Masiakowski on March 1, 2006. Officers found the allegedly stolen computer in his backpack and arrested him. Officers later turned the computer on and looked through files. That’s when they found the alleged child

pornography.

Officers then turned the laptop over to the Racine County Sheriff’s Department. The Sheriff’s Department executed a search warrant and confiscated additional CDs, floppy discs and othercomputer-related items. Everything was then shipped out to a computer forensic expert for review.

In March 2007, a year after Masiakowski’s arrest, his attorney submitted a motion to suppress the pornography evidence because the Burlington police did not have a warrant to look at the contents of the computer. The state argued that Masiakowski did not have an expectation to privacy to anything on the computer, because it had been stolen.

In her decision Friday, Judge Emily Mueller ruled in the state’s favor, though she said it was a difficult decision.

"It is not an easy case," she said. "There are competing interests and competing constitutional values."

Ultimately, she said Masiakowski did not have a property interest in the computer because it belonged to Wal-Mart, and it was admittedly stolen. There is case law that supports some rights to privacy for stolen items, she said, but this case did not meet those criteria.

"There is a right to property, even if it’s stolen, that cedes only to the owner," she said. "This was a stolen computer from Wal-Mart who had authorized law enforcement to investigate and was looking for its return. … The defendant had a computer he knew was stolen. The police had probable cause to arrest and they seized the laptop incident to arrest. There was no warrant to search (the contents) but it clearly didn’t belong to Mr. Masiakowski and they clearly knew to whom it did belong."

Because of that, Mueller said, officers acted legally when they looked at the contents of the computer.

The case will come before the judge late this month for a status conference, which will give the defense attorney time to speak with his client about what their next step should be.