[Copyrighted Material Omitted]
Andrew M. Schwam, Moscow, argued for appellant.
Kenneth K. Jorgensen, Deputy Attorney General, Boise, argued for the State respondents.
This is an appeal out of Latah County from an order denying an employer's motion to have a laptop returned that had been seized from its employee during a search conducted at the employee's home by a probation officer.
We affirm the order denying return of the laptop, but hold that the laptop cannot be searched without a search warrant issued upon a judicial finding of probable cause.
MLDC Government Services Corp. (Employer) had an employee named Matt Eugene Ruck (Employee) who was on felony probation for the crime of forgery. Employer knew the terms and conditions of the probation, which included that Employee not leave the State of Idaho without written permission of his probation officer and that he consent to a search of his person, vehicle, residence, and property. Employee's employment duties required that he travel regularly, and Employer provided him with an Employer-owned laptop computer for business use. Employer allowed Employee to take the laptop wherever he desired, including on business trips and to his home.
On June 22, 2011, two probation officers went to Employee's residence to conduct a standard home visit and to inquire about his recent attempt to purchase a firearm. It is a felony for any person previously convicted of a felony to purchase, own, or possess a firearm or have one under his custody or control, I.C. § 18-3316(1), and it is a felony to attempt to do so, I.C. §§ 18-306(2), 18-111. During the visit, one of the officers noticed a backpack on the kitchen table. She asked Employee if it was his backpack, and he responded that it was. The officer looked through the backpack and discovered airline boarding passes and other information indicating that Employee had traveled out of state. The officer questioned Employee about such travel, and he ultimately admitted to traveling out of state.
The officer also found the Employer-provided laptop in the backpack and removed it. Employee told the officer that it was a work computer. The officer seized the laptop and left with it in order to later search it to see if it contained evidence of Employee violating the terms of his probation. Prior to leaving, the officer asked Employee for the computer password, and he gave it to her.
On June 27, 2011, Employer filed a civil action seeking the return of the laptop pursuant to Idaho Criminal Rule 41 and a temporary restraining order and injunction preventing any search of the laptop until it could be determined what information in it was privileged. Pursuant to the stipulation of the parties, the judge presiding over the civil proceeding entered an order on June 28, 2011, stating that the Department of Correction would retain possession of the laptop and that any copies made of data contained in it shall be sealed and not viewed until there was a hearing to determine the rights and protections regarding ownership of that data. After an evidentiary hearing in the civil proceeding, the presiding judge ordered that it be stayed and that the matter be referred to the judge presiding over the criminal case.
The matter was then presented to the judge presiding over Employee's criminal case. After reviewing the documents filed in the civil proceeding and the transcript of the evidentiary hearing, the judge denied Employer's motion for the return of the laptop. Employer then timely appealed.
Is the Order Denying Employer's Motion for Return of the Laptop Appealable?
This is an appeal from the order denying Employer's motion for the return of its laptop. The motion was made and denied in a criminal action pursuant to Idaho Criminal Rule 41(e), which permits a person aggrieved by a search and seizure to obtain the return of property that was illegally seized. There is no right to appeal that order unless such right is provided in Rule 11(c) of the Idaho Appellate Rules. State v. Molinelli, 105 Idaho 833, 834, 673 P.2d 433, 434 (1983). That rule provided at the time the appeal was filed:
An appeal as a matter of right may be taken to the Supreme Court from the following judgments and orders:
(c) Criminal Proceedings. From the following judgments and ...