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United States of America v. Jeffrey Brian Ziegler

474 F.3d 1184 (9th Cir., January 30, 2007)

Ninth Circuit holds that an employee has a reasonable expectation of privacy in his private office, because it is locked and not shared with others.  This reasonable expectation of privacy extends to the contents of his office, including the employee’s company computer, located therein.

As a result, the Court holds that the Fourth Amendment protects both the office and computer from warrantless searches by the Government unless it obtains valid consent from either the defendant himself or one with common authority over the items searched, or proceeds on the authorization of one with apparent authority to give such valid consent.

Here, the Ninth Circuit holds that the Government obtained valid consent from one with common authority over the items searched, when it received such consent from the employee’s employer.  The employer had common authority over the employee’s office computer because it had a policy of, and regularly did, monitor employees’ computer usage of company machines, a policy of which its employees were made aware.

The Court accordingly denied defendant’s motion to suppress evidence found by the Government during its warrantless search of defendant’s office computer.  As a result, pursuant to a plea agreement, defendant was convicted of the receipt of obscene material based, in part, on evidence obtained during this search.  The evidence obtained during this search, and by the company earlier, showed that defendant had viewed and had possession of child pornography.

Defendant Jeffrey Brian Ziegler (“Ziegler”) was employed by Frontline Processing as its Director of Operations.  In this capacity, he was given a private office, in which was located a company computer for his business use.  The private office had a lock.  Access to the computer required a password.

Frontline monitored its employees’ computer usage and so advised its employees.  Employees were further advised employees not to use company computers for personal purposes.

As a result of its monitoring of defendant’s computer usage, Frontline discovered that Ziegler’s computer had been used to access websites that contained child pornography.

Frontline’s Internet Service Provider contacted the FBI, and advised that a Frontline employee had accessed websites containing child pornography from a workplace computer.

The FBI contacted Frontline, who advised them of the information learned during their monitoring of Ziegler’s computer.  As a result, the FBI instructed Frontline to make a copy of the hard drive of Ziegler’s office computer.  Frontline contacted the company’s CFO, who authorized this activity, and provided a key to Ziegler’s private office.  Frontline employees proceeded to enter his office, and make a copy of his computer’s hard drive, which was delivered to the FBI.  Inspection of the hard drive revealed that it contained many images of child pornography.  The copy of this hard drive was obtained without the issuance of a search warrant.  Frontline’s counsel had advised the FBI that Frontline would fully cooperate with its investigation.

Ziegler subsequently moved to suppress the evidence obtained during the search of his office computer’s hard drive.

In this decision, rendered on rehearing, the Court held that defendant Ziegler had a legitimate expectation of privacy in his private office, because it contained a locked door.  Because his office computer was located in his office, he was held to have a reasonable expectation of privacy in it as well.  This expectation was held to be both objectively and subjectively reasonable.

The Court held that the presence of lock on his office door, and a password to access his computer, created a subjective expectation of privacy in those locations.

The Court further held that Ziegler had an objectively reasonable expectation of privacy in those spaces as well.  Said the Court:

Ziegler’s expectation of privacy in his office was reasonable on the facts of this case.  His office was not shared by co-workers and kept locked. …  And while there was a master key, the existence of such will not necessarily defeat a reasonable of privacy in an office given over for personal use. … Because Ziegler had a reasonable expectation of privacy in his office, any search of that space and the items located therein must comply with the Fourth Amendment.

Nonetheless, the Court denied defendant’s motion to suppress the evidence obtained during the search of his hard drive because the government was given valid consent to conduct that search by defendant’s employer, who had common authority over it.  The Court held that Frontline could give such valid consent to Ziegler’s computer because its IT department had complete administrative access to his company computer, and because the company had a practice of monitoring employee usage of its machines, of which its employee were advised.  The fact that Ziegler downloaded personal files onto his office computer “did not destroy the employer’s common authority.”

Because his employer – via its CFO - gave its consent to this search, and provided the key to Ziegler’s office, the Court held the search did not violate the Fourth Amendment.

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