NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT DEC 15 2009
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 04-50266
Plaintiff - Appellee, D.C. No. CR-02-00248-TJH
v.
MEMORANDUM *
CHRISTOPHER BLAINE CAREY,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Terry J. Hatter, District Judge, Presiding
Submitted December 11, 2009**
Pasadena, California
Before: HALL and SILVERMAN, Circuit Judges, and CONLON, *** District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Suzanne B. Conlon, United States District Judge for
the Northern District of Illinois, sitting by designation.
Appellant Christopher Blaine Carey appeals (1) the denial of his motion to
suppress evidence of child pornography and (2) the imposition of certain
conditions as part of his supervised release. This court has jurisdiction pursuant to
18 U.S.C. § 3742 and 28 U.S.C. § 1291. We affirm.
Carey brought his computer to a repair shop in Claremont, CA to fix a
floppy disk drive, and the technician found child pornography while working on
the computer. The technician contacted the Claremont Police Department and
showed an officer images from the computer, upon which the officer obtained a
warrant to search the computer and defendant’s residence. Carey sought to
suppress evidence procured from these searches due to violation of his Fourth
Amendment rights.
The technician's search of Carey's hard drive was a private search that did
not implicate the protections of the Fourth Amendment. United States v. Sherwin,
539 F.2d 1, 5 (9th Cir. 1976). No governmental actors were present during the
search. There were no agreements between the repair shop and the police
department, and there is nothing to indicate that the technician initially searched
Carey's computer with the intent to aid law enforcement. The government's
subsequent involvement did not change the private nature of the search, and Carey
has not shown that the government’s search expanded beyond the technician’s
search prior to the issuance of a warrant. United States v. Jacobsen, 466 U.S. 109
(1984); United States v. Young, 153 F.3d 1079, 1080 (9th Cir. 1998) (“A defendant
challenging a search conducted by a private party bears the burden of showing the
search was governmental action.”).
Because the technician’s search was a private search that did not implicate
the Fourth Amendment, we do not reach the issue of whether Carey had a
reasonable expectation of privacy in the computer folders searched by the
technician.
Carey has already completed his term of imprisonment and supervised
release, mooting his challenge to the conditions of his supervised release. United
States v. Palomba, 182 F.3d 1121 (9th Cir. 1999).
AFFIRMED.