Petition for Writ of Certiorari — United States v. Anderson

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Supreme Court, U.S.

FIL BD

;

98158 8 MAR 3 11999

No.

CE DF THE CLER A

In the Supreme Court of the @ Tnited States

OCTOBER TERM, 1998

UNITED STATES OF AMERICA, PETITIONER

JAMES S. ANDERSON

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

SETH P. WAXMAN

Solicitor General

Counsel of Record

JAMES K. ROBINSON

Assistant Attorney General

MICHAEL R. DREEBEN

Deputy Solicitor General

JEFFREY A. LAMKEN

Assistant to the Solicitor

General

SEAN CONNELLY

Attorney

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTION PRESENTED

Whether an employee may claim the protection of the

Fourth Amendment against a search of an office at his

employer’s place of business, where the office is not the

employee’s own work space or similar area.

(I)

TABLE OF CONTENTS

Page

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PREP RCARRD TER ALa EETS is EE aioe MCR RIS SOLS OEE EIT l

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Reasons for granting the petition ...........ccssssssessessesssesecseeerscens 7

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PURINEIEA: >. sivisihessipuakbenabdcstpinlcndaaelatessusedsdseemisinnnvieriuntsteinieserenninensees 40a

TABLE OF AUTHORITIES

Cases:

Alderman v. United States, 394 U.S. 165 (1969) ............. g

California v. Greenwood, 486 U.S. 35 (1988) ........csesesees 16

Gillard v. Schmidt, 579 F.2d 825 (3d Cir. 1978) ............... 9

Katz v. United States, 389 U.S. 347 (1967) .............00 8-9, 16

Mancusi v. DeForte, 392 U.S. 364 (1968) .0.............0:000000 9

Minnesota v. Carter, 11958. Ct. 469 (1998) .................. passim

New York v. Burger, 482 U.S. 691 (1987) ......cccccccsssceeseeee 9

New York v. Class, 475 U.S. 106 (1986) .............cccccssesseeess 16

O’Connor v. Ortega, 480 U.S. 709 (1987) ............ 9, 15, 16, 18

People v. Johnson, 209 A.D.2d 721, 619 N.Y.S.2d

CEES ho FIC EAR ROPE) dactghcincstinhcpusndtacsdsnonsescensecpnsctceniicnes 1]

Rakas v. Illinois, 489 U.S. 128 (1978) ........c.cecce 8, 12, 15, 19

Rawlings v. Kentucky, 448 U.S. 98 (1980) ........cecceseseeseee 15

Soldal v. Cook County, 506 U.S. 56 (1992) ....ceeseeeenees 14

Tobias v. State, 479 N.E.2d 508 (Ind. 1985) ...........cccseeeee 11

United States v. Britt, 508 F.2d 1052 (5th Cir.),

cert. denied, 423 U.S. 825 (1975) ..........ccsssesescossrenees 6-7, 9, 10

United States v. Chuang, 897 F.2d 646 (2d Cir.),

cert. denied, 498 U.S. 824 (1990) ..........ssccsrsressercessssssensnees 10, 11

United States v. Dunn, 480 U.S. 294 (1987) .......ccccccesseess 16

(IIT)

Cases—Continued: Page

United States v. Mancini, 8 F.3d 104 (1st Cir.

RIDGE ciklonsannscienmunisodcniiidigtiban: maligne mpi eee. 13

United States v. Mohney, 949 F.2d 1397 (6th Cir.

1991), cert. denied, 504 U.S. 910 (1992) woo eeeeeeee 10

United States v. Taketa, 923 F.2d 665 (9th Cir.

| Regn N De ona aie SS hand Seca ERAS SE NANO 9, 10, 11

Constitution and statutes:

C5 eo SNe PANOENS BV sasiccessccinialiditgsindeslpsenincecetabubaineonbeciotas passim

BES BEE SER eects deisershshaschsosstbivciadn be itannini de andiatoessnien 2

BS UE BA. BD csataiciacanieacssonsietsied csbusthigleshc aliciessivbicethe 2

Miscellaneous:

5 Wayne R. LaFave, Search and Seizure (3d ed.

RD) | ciksssicenithiasattinicnbintcvumbasbarigetadsanidentin en igudeiss nbooncbbaaits 1]

In the Supreme Court of the Anited States

OCTOBER TERM, 1998

No.

UNITED STATES OF AMERICA, PETITIONER

Vv.

JAMES S. ANDERSON

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

The Solicitor General, on behalf of the United States

of America, respectfully petitions for a writ of certiorari

to review the judgment of the United States Court of

Appeals for the Tenth Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals (App., infra, la-

24a) is reported at 154 F.3d 1225. The opinion of the

district court (App., infra, 25a-39a) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on

September 15, 1998. A petition for rehearing was

denied on December 1, 1998 (App., infra, 40a-41a). On

February 19, 1999, Justice Breyer extended the time

within which to file a petition for a writ of certiorari to

(1)

and including March 31, 1999. The jurisdiction of this

Court is invoked under 28 U.S.C. 1254(1).

CONSTITUTIONAL PROVISION INVOLVED

The Fourth Amendment to the United States Consti-

tution provides:

The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable

searches and seizures, shall not be violated, and no

Warrants shall issue, but upon probable cause, sup-

ported by Oath or affirmation, and particularly de-

scribing the place to be searched, and the persons or

things to be seized.

STATEMENT

Respondent James S. Anderson was indicted on one

count of conspiring to knowingly receive and distribute

child pornography via the Internet, in violation of 18

U.S.C, 2252(a)(2)(b), and two counts of knowingly trans-

porting and shipping child pornography, in violation of

18 U.S.C. 2252(a)(1). The district court ordered the

suppression of evidence found by the FBI at respon-

dent’s place of employment as well as incriminating

statements respondent made at that location, and the

court of appeals affirmed.

1. This case arises from a successful sting operation

conducted by the FBI to identify and prosecute in-

dividuals engaged in the interstate trafficking of child

pornography. In July of 1996, respondent, a member

of an Internet chat room known as the “Orchid Club,”

agreed to exchange child pornography with another

member, Paul Buske. After respondent sent Buske

blank videotapes on which to record the child porno-

graphy, Buske sent videotapes purporting to contain

child pornography to respondent’s post office box. On

Saturday, July 6, 1996, respondent retrieved the tapes.

App., infra, 1a-2a, 26a. Unbeknownst to respondent,

Buske—who had been arrested by the FBI on child

pornography charges about a month earlier— was

assisting the FBI; the tapes in fact were blank; and FBI

agents were following respondent when he picked up

the tapes. bid.

Respondent drove, with FBI agents in covert pur-

suit, to an office building occupied by ATD Corporation,

where respondent was Vice President of Research and

Development. Using his key card, respondent opened

the front door and carried the tapes inside, allowing the

door to lock behind him. App., infra, 2a, 26a-27a.

Shortly thereafter, FBI agents became concerned that

respondent might view the tapes, discover that they

were blank, and realize that he had been the subject of

a sting; he might then attempt to destroy evidence

linking him and others to child pornography, the agents

feared. Id. at 2a; see id. at 32a-33a. The agents rang

the building’s doorbell and knocked on the front door;

respondent did not answer. Id. at 2a, 27a. They

sounded a siren, but respondent (who was not wearing

his hearing aids) did not respond to that either. Ibid.

Concerned that respondent might be destroying

evidence—a concern that was heightened by the belief

that the building contained an incinerator that could be

used to achieve that end—the FBI agents decided to

enter the building and detain respondent. /d. at 3a,

32a-33a.

The FBI found respondent in a vacant office on the

second floor—room 222—attempting to view child

pornography. Room 222 had no desk, no telephone, no

files, and no name plate on the door. App., infra, 8a n.1;

id. at 23a (Kelly, J., dissenting); Gov’t C.A. App. 119

(Tr. 34'). It was, in respondent’s words, a vacant office

that “had no use at all.” App., infra, 8a n.1; Gov’t C.A.

App. 120 (Tr. 35). Respondent has not claimed that he

had any prior connection to the room; nor does he claim

that he had ever used it even on a single occasion

before. App., infra, 8a n.1; id. at 23a (Kelly, J., dis-

senting). That day, however, respondent had entered

the room with the tapes, drawn the curtains, and placed

a towel over an interior window. Jd. at 3a, 27a.

Consequently, when FBI agent Joseph Bradley opened

the unlocked door to room 222, he found respondent

inside, in front of a VCR and television borrowed from

another room, attempting to watch the video Buske had

sent him. Jbid.; see id. at 23a (Kelly, J., dissenting);

Gov’t C.A. App. 120 (Tr. 35).

After respondent was read his Miranda warnings, he

stated that he understood his rights and that he wished

to cooperate; he also signed a written waiver of his

rights. App., infra, 4a, 28a. Respondent then admitted

his involvement in child pornography on the Internet

and, after consenting to a search of his own office, told

the FBI agents where in that office they would find

child pornography. /bid. Pursuant to a warrant that

the agents had obtained before respondent picked up

the videotape sent by Buske, the FBI then searched

respondent’s home. That search revealed, among other

things, more child pornography. [bid.

2. After a hearing, the district court granted re-

spondent’s motion to suppress. App., infra, 25a-39a.

The court held that the FBI’s warrantless entry into

the ATD Corporation office building and the vacant

office where respondent was found constituted an

| “Tr.” refers to the transcript of the hearing conducted by the

district court.

unlawful search, and that respondent’s consent to the

search of his own office and his incriminating state-

ments were fruits of the unlawful search. The court

therefore granted respondent’s motion to suppress any

evidence found when the agents entered room 222

(where respondent was discovered attempting to view

child pornography), the incriminating statements

respondent made at the time, and all evidence found in

and any statements made in respondent’s own office as

well.

The district court rejected the government’s argu-

ment that, even if the agents’ entry into ATD’s building

and the vacant office violated respondent’s employer’s

Fourth Amendment rights, it did not violate re-

spondent’s rights.’ Because respondent had taken

actions to preserve his privacy, the court concluded

that he had a subjective expectation of privacy. App.,

infra, 30a. And, based on the facts that respondent was

a corporate officer and had a key to the premises, the

court concluded that respondent’s expectation was

“reasonable,” id. at 29a-31a & n.3, and permitted him to

claim the protection of the Fourth Amendment every-

where in the building, id. at 30a (“As [an] officer of the

company, defendant has the authority to assert a fourth

amendment claim to the building.”).

3. A divided court of appeals affirmed. App., infra,

la- 24a. Addressing respondent’s capacity to claim the

protection of the Fourth Amendment under the rubric

of “standing,” the court of appeals disagreed with the

district court’s conclusion that respondent had a legiti-

The government also argued that the entries into the build-

ing and the vacant office did not violate the Fourth Amendment at

all, because they were justified by exigent circumstances. The

district court rejected that argument. App., infra, 3la-33a.

mate expectation of privacy in every part of ATD’s

corporate offices. Jd. at 5a (“[W]e disagree with the

district court’s holding that a corporate officer with a

key to the building had standing to assert a Fourth

Amendment claim to the entire building.”). Instead, it

acknowledged that courts of appeals generally have

agreed that defendants may challenge searches only of

those parts of their places of employment with which

they have a significant “nexus”—generally speaking,

their work areas. Jd. at 8a. The court of appeals,

however, concluded that sole reliance on the “nexus”

requirement was “problematic” because it did not

account for factors such as the individual’s ownership of

any property he has with him, his possessory interest in

such property, and any actions he takes to protect his

privacy. Id. at 9a-15a.

Turning to the facts of this case, the court of appeals

concluded that respondent had a legitimate expectation

of privacy in the vacant room at his employer’s place of

business, despite his lack of a prior connection to that

room, because (1) the tapes respondent was attempting

to view there were his, rather than his employer’s;

(2) the tapes were in respondent’s actual possession;

and (3) respondent had taken steps to protect his

privacy in the room. App., infra, 14a-16a. Because it

also concluded that warrantless entry was not justified

by exigent circumstances, id. at 16a-20a; see also note 2,

supra, the court of appeals affirmed the district court’s

suppression order. App., infra, 20a.

Judge Kelly dissented. App., infra, 20a-24a. The

factors cited by the majority, Judge Kelly argued, were

“not sufficient to confer standing” on a defendant “ab-

sent a demonstrated ‘nexus between the area searched

and the work space of the defendant.’” Jd. at 20a

(quoting United States v. Britt, 508 F.2d 1052, 1056 (5th

Cir.), cert. denied, 423 U.S. 825 (1975)). Indeed, he

argued, “the court cites no case involving a workplace

where standing was found in the absence of such a

nexus.” App., infra, 20a-21a.

The majority’s “focus[] on * * * the videotapes in

[respondent’s] possession” and their relationship to

respondent, Judge Kelly further observed, was mis-

guided. App., infra, 22a. “Under the court’s analysis,”

Judge Kelly noted, respondent “would have standing to

challenge a search anywhere in the building provided

the item seized was owned and controlled by him, and

he had taken steps to maintain privacy. This analysis

relies too heavily on [respondent’s] possession of the

seized videotapes when the primary question must be

whether [respondent] had a legitimate expectation of

privacy in the area searched.” Id. at 22a-23a.

The United States filed a petition for rehearing and

suggestion for rehearing en banc. The petition was

denied, with five judges dissenting (Anderson, Tacha,

Baldock, Ebel, and Kelly, JJ.), on December 1, 1998.

App., infra, 40a-41la. That same day, this Court decided

Minnesota v. Carter, 119 S. Ct. 469 (1998), another

Fourth Amendment case involving the legitimate ex-

pectation of privacy inquiry and the capacity of

individuals to claim the protection of the Fourth

Amendment in a location with which they have a

limited commercial connection.

REASONS FOR GRANTING THE PETITION

The court of appeals held that respondent had a

reasonable expectation of privacy in an empty and

unused office at his employer’s place of business, even

though the office was not respondent’s work space and

he had no prior connection to it. In particular, the court

of appeals concluded that respondent’s expectation of

privacy in that vacant office was “reasonable” because

(1) the child pornography tapes that respondent was

attempting to view there were his, rather than his

employer’s, (2) the tapes were in respondent’s actual

possession, and (3) respondent had taken steps to

protect his privacy while he viewed the tapes. App.,

infra, 14a-16a. The court of appeals’ decision is in-

correct, improperly expands the capacity of employees

to claim the protection of the Fourth Amendment in the

workplace, and erroneously departs from the mode of

analysis employed by other courts of appeals, and by

this Court, most recently in Minnesota v. Carter, 1198.

Ct. 469 (1998).

1. Because Fourth Amendment rights “are per-

sonal” and “may not be vicariously asserted,” Alder-

man v. United States, 394 U.S. 165, 174 (1969), a

criminal defendant moving to suppress evidence on

Fourth Amendment grounds “has the burden of

establishing that his own Fourth Amendment rights

were violated by the challenged search or seizure.”

Rakas v. Illinois, 489 U.S. 128, 131 n.1 (1978). Under

this Court’s precedents, such a defendant “must demon-

strate that he personally has an expectation of privacy

in the place searched, and that his expectation is rea-

sonable; 7.e., one which has a source outside of the

Fourth Amendment, either by reference to concepts of

real or personal property law or to understandings that

are recognized and permitted by society.” Minnesota v.

Carter, 119 S. Ct. at 472 (internal quotation marks

omitted); see also Rakas, 439 U.S. at 143 & n.12 (defen-

dant has burden of showing (1) that he had a subjective

expectation of privacy in the invaded space, and (2) that

his expectation is one “that society is prepared to

recognize as ‘reasonable’” (quoting Katz v. United

States, 389 U.S. 347, 361 (1967) (Harlan, J., con-

curring))).

Although the Fourth Amendment by its terms pro-

tects the “right of the people to be secure in their

persons, houses, papers, and effects”—and does not

specifically mention places of employment—this Court

has held that, “in some circumstances a worker” has a

legitimate expectation of privacy in, and therefore “can

claim Fourth Amendment protection o er[,] his own

workplace.” Carter, 119 S. Ct. at 474. See Mancusi v.

DeForte, 392 U.S. 364 (1968) (union employee had a

sufficient connection to his office to challenge its

warrantless search); O’Connor v. Ortega, 480 U.S. 709

(1987) (government workers may, under certain circum-

stances, have a legitimate expectation of privacy in

their own private offices). The Court has cautioned,

however, that “[a]n expectation of privacy in com-

mercial premises * * * is different from, and indeed

less than, a similar expectation in an individual’s home.”

New York v. Burger, 482 U.S. 691, 700 (1987).

Consistent with this Court’s decisions, the courts of

appeals have generally held that individuals can claim

the protection of the Fourth Amendment in those work-

place areas with which they have a sufficient connection

to give rise to a socially recognized privacy expectation,

i.e., generally speaking, their own offices and work

areas. See, e.g., United States v. Taketa, 923 F.2d 665,

673 (9th Cir. 1991) (“We find a privacy interest in an

office reserved for one’s exclusive use at a place of

employment to be reasonable.”); Gillard v. Schmidt,

579 F.2d 825, 828 (3d Cir. 1978) (similar). Beginning

with the Fifth Circuit’s decision in United States v.

Britt, 508 F.2d 1052, cert. denied, 423 U.S. 825 (1975),

however, the courts of appeals have in a variety of

contexts rejected the notion that an emplovee may

claim a legitimate expectation of privacy absent a suffi-

cient “nexus” between the employee and the location

searched. /d. at 1056 (defendant may not challenge

admission of illegally seized corporate records absent “a

demonstrated nexus between the area searched and the

work space of the defendant”).

For example, following Britt, the Second Circuit has

held that the inquiry into whether a corporate officer

has “a reasonable expectation of privacy to challenge a

search of business premises” depends primarily on the

extent of his “possessory or proprietary interest in the

area searched,” and that such an officer “must demon-

strate a sufficient ‘nexus between the area searched

and his own work space.’” United States v. Chuang,

897 F.2d 646, 649 (quoting Britt, 508 F.2d at 1056;

brackets omitted), cert. denied, 498 U.S. 824 (1990).

Other courts of appeals have followed suit. See, e.g.,

United States v. Mohney, 949 F.2d 1397, 1404 (6th Cir.

1991) (“[I]t is hard to see how [the defendant] could

have a reasonable expectation of privacy in documents

he claimed to be completely uninvolved in preparing

and which were kept in offices he claimed to rarely

visit.”), cert. denied, 504 U.S. 910 (1992); Taketa, 923

F.2d at 671 (defendant lacked sufficient connection to

his eco-conspirator’s office, which was next to his own, to

claim the protection of the Fourth Amendment there,

even though he had access to that office and used it for

his own illegal activities).” As Professor LaFave has

summarized:

These cases have arisen in contexts that in some respects

differ from the facts here. In Chuang, 897 F.2d at 650, for

example, the defendant owned almost half of the bank that was

searched, but the records that were searched were “subject to

periodic examination” by bank regulators in any event; and in

Taketa, 923 F.2d at 671, the defendant was not inside (and had no

In the absence of some other basis for showing [a

legitimate expectation of privacy, such as a property

interest in the area searched], it still seems neces-

sary to establish that the place searched was rather

directly connected with the defendant’s employment

responsibilities and activities. Thus, a corporation

president has been held to have standing with

respect to the seizure of corporate records from his

office, but not as to the seizure of such records from

a storage area where he never spent any of his time

working.

5 Wayne R. LaFave, Search and Seizure § 11.3(d), at

164-165 (3d ed. 1996) (footnotes omitted).

2. Analyzing respondent’s capacity to claim the pro-

tection of the Fourth Amendment under the rubric of

“standing,” the court of appeals in this case criticized

and chose to depart from the “nexus” approach. In par-

personal possessions in) the searched office at the time of the

search. Nonetheless, the starting point for each of the cases was

the same. In each, the court recognized the need for the defendant

to establish a sufficient connection or nexus between himself and

the area searched to give rise to an expectation of privacy that

society is prepared to treat as reasonable, and concluded that, in

the workplace environment, that expectation ordinarily is limited

to an employee’s usual office or work area. See, ¢.g., Chuang, 897

F.2d at 649: Taketa, 923 F.2d at 671.

4 See also Tobias v. State, 479 N.E.2d 508, 510 (Ind. 1985) (fol-

lowing Britt and holding that the defendant, who worked in his

father’s pharmacy, had not established the necessary “nexus” with

a pharmacy bathroom that he visited solely “for the purpose of

making the instant drug transactions”); People v. Johnson, 209

A.D.2d 721, 721, 619 N.Y.S.2d 154, 155 (N.Y. App. Div. 1994)

(defendant lacked sufficient connection to basement in her

workplace to show a reasonable expectation of privacy where “her

only connection with [the basement] was her occasional use of the

bathroom”).

ticular, the court of appeals held that the “nexus” ap-

proach “does not account,” App., infra, 9a-10a, for three

factors that court thought significant—the defendant’s

“ownership” interest in evidence seized as a result of

the search, id. at 10a; the defendant’s immediate pos-

session of that evidence at the time of the search, id. at

13a; and the defendant’s efforts “to maintain” his or her

privacy, id. at 13a-14a. The court of appeals then held

that those three factors conferred on respondent the

right to claim the protection of the Fourth Amendment.

Respondent, the court concluded, had a legitimate ex-

pectation of privacy in the vacant office, with which he

had no prior connection, because (1) the tapes re-

spondent was attempting to view there were his, rather

than his employer’s, (2) the tapes were in respondent’s

actual possession, and (3) respondent had taken steps to

protect his privacy while he viewed the tapes. Jd. at

14a-16a.

Even setting aside the court of appeals’ mistaken

description of its inquiry as one of “standing,”° the

court’s rationale for departing from the approach taken

by the other courts of appeals and this Court is

° This Court repeatedly has explained that a defendant’s

capacity to seek the suppression of evidence based on an asserted

violation of the Fourth Amendment is not a question of standing

but rather is properly viewed as a question of substantive Fourth

Amendment law. See Carter, 119 8. Ct. at 472 (state court im-

properly addressed the question “under the rubric of ‘standing’

doctrine, an analysis which this Court expressly rejected 20 years

ago in Rakas, 439 U.S., at 139-140[.] * * * Central to our analysis

was the idea that in determining whether a defendant is able to

show the violation of his (and not someone eise’s) Fourth

Amendment rights, the ‘definition of those rights is more properly

placed within the purview of substantive Fourth Amendment law

than within that of standing.’”) (quoting Rakas, 439 U.S. at 140).

unsound. Whether or not a defendant has the “rea-

sonable expectation of privacy” necessary to claim the

protection of the Fourth Amendment in a location de-

pends generally on the nature and extent of the

defendant’s connection to that location, and specifically

on whether that connection is sufficient to give rise to

a privacy expectation that society shares and respects.

Neither the fact that respondent owned and possessed

the tapes he carried into the room, nor his attempt to

conceal his presence there, sufficiently enhances the

nature of respondent’s relationship to that otherwise

vacant and unused office to give rise to an expectation

of privacy reflected in the “understandings that are

recognized and permitted by society.” Carter, 119 S.

Ct. at 472.

As Judge Kelly explained in dissent, the mere fact

that the videotapes that respondent was attempting to

view were his own, not his employer’s, “does not mean

that we can overlook the nature of the area searched.”

App., imfra, 21a; see also id. at 20a-2la (Kelly, J.,

dissenting) (“It is telling that the court cites no other

‘ase involving a workplace where standing was found in

the absence of such a nexus.”).° Respondent also

6 The majority’s contention (App., infra, 10a n.2) that United

States v. Mancini, 8 F.3d 104 (1st Cir. 1993), supports its decision

is incorrect. In that case, the court of appeals considered whether

the defendant, the Mayor of North Providence, Rhode Island, had

a “privacy interest in a box in the archive attic” where the Mayor’s

papers were regularly stored. See 8 F.3d at 109. Because that area

was regularly used to store the defendant’s possessions throughout

his 19-year tenure as Mayor, the defendant’s possessions were

clearly labeled and segregated from the other materials stored

there, and no one was permitted to look into the defendant’s files

without the defendant’s permission, id. at 110, the court concluded

that the defendant had established a sufficient nexus between

presumably owned and possessed the clothes he was

wearing, and the wallet that he had in his pocket. Yet

no one contends that his ownership and possession of

those items adds any weight to the contention that

society would treat his claim to privacy in an otherwise

vacant office as reasonable. There is no reason why

respondent’s ownership and possession of the tapes

from which he was attempting to view child porno-

graphy should be treated differently.’ Thus, while

respondent may have had a protected privacy expecta-

tion with respect to private property and personal

effects that were on his person, hidden from public view

(e.g., the contents of his wallet), that expectation of

privacy does not permit him to object to entries into all

rooms or offices in which he, together with those items,

happens to be present.

To the contrary, when considering property interests

in this context, the proper focus is on the defendant’s

himself and the area searched to support a reasonable expectation

of privacy.

7 The majority’s focus on respondent’s possessory or property

interest in the items seized also appears to confuse the privacy

interests protected by the Fourth Amendment’s bar on unrea-

sonable searches with the possessory interests protected by that

Amendment’s prohibition on unreasonable seizures. To the extent

respondent merely challenges the entry into the room in which he

was found, the question is whether that search violated a protected

privacy interest personal to respondent. The fact that respondent

possessed his tapes when entry was made does not bear on his

privacy expectation (if any) in the room. To the extent respondent

challenges the seizure of the tapes once the police made entry, his

possessory and ownership interests in the tapes are relevant. See

Soldal v. Cook County, 506 U.S. 56, 61 (1992). But if entry into the

vacant room and respondent’s arrest did not violate his rights, the

seizure of the tapes was undeniably proper as incident to re-

spondent’s arrest.

relationship to the searched location, because “one who

owns or lawfully possesses or controls [that| property

will in all likelihood have a legitimate expectation of

privacy by virtue of th[e] right to exclude” others from

that location.2 Rakas, 439 U.S. at 144 n.12. Legal

ownership and possession of personal property that the

defendant carries into the area searched, however, does

not by itself create a similar right or a similar privacy

expectation. See Rawlings v. Kentucky, 448 U.S. 98,

106 (1980) (ownership of drugs found in a purse does not

give rise to legitimate expectation of privacy in purse

that the defendant neither owned nor controlled). As a

result, the fact that respondent owned and possessed

the tapes he transported into the vacant office with

which he had no prior connection does not establish a

socially recognized privacy expectation, any more than

it would if respondent had carried those same objects

into a hallway closet, the hallway itself, or into a public

street.”

8 Ina footnote, the court of appeals suggested that respondent

had the right or power to exclude entrants from the vacant office.

App., infra, 15a n.3. But the court gave no source of authority for

that suggestion, which is entirely unsupported by the record, and

which does not support the result in this case in any event. A

security guard might have authority or power to exclude others

from a building, but it does not necessarily follow that he has a

reasonable expectation of privacy in every room and office in the

building.

9 ‘The distinction between ownership of the invaded place and

ownership of the evidence discovered through the invasion also

explains why the court of appeals’ reliance (App., infra, 12a) on the

plurality opinion in O’Connor v. Ortega, 480 U.S. 709 (1987), is

misplaced. In O’Connor, the plurality did note that employees do

not necessarily lose their expectation of privacy with respect to the

contents of closed luggage, handbags, or briefcases when they

bring those items to the office; but it also noted that the

The Tenth Circuit likewise erred in focusing on

respondent’s efforts to protect his privacy. App., infra,

15a. Those efforts may show a subjective expectation

of privacy, and absent such efforts, unaided observation

without entry might not constitute a “search” within

the meaning of the Fourth Amendment. See Katz, 389

U.S. at 351 (“What a person knowingly exposes to the

public, even in his own home or office, is not a subject of

Fourth Amendment protection.”); California v.

Greenwood, 486 U.S. 35, 41 (1988) (same); United States

v. Dunn, 480 U.S. 294, 303-304 (1987) (no unconsti-

tutional search where officers viewed area from “the

open fields” or “a public place”, even if the area they

viewed “could not be entered * * * without a

warrant”). But efforts to maintain privacy in an area

with which the defendant lacks the appropriate

connection—be it a public thoroughfare, the home of

another, or (as here) a vacant and otherwise unused

office—cannot give the defendant a personal and rea-

sonable privacy expectation where it otherwise would

be lacking. See New York v. Class, 475 U.S. 106, 114

(1986) (“[E]fforts to restrict access to an area do not

generate a reasonable expectation of privacy where

none would otherwise exist.”); App., infra, 24a (Kelly,

J., dissenting) (“The steps [respondent] took to ensure

privacy may be consistent with a subjective expectation

of privacy, but that is not enough, no matter how

earnestly the steps were taken.”). Indeed, in Carter,

employees’ expectation of privacy in the outward appearance of

those items might be affected by bringing them into the employer’s

place of business. 480 U.S. at 716. The plurality’s analysis thus is

consistent with focusing the inquiry on where, within a business, a

search takes place, and in rejecting the view that simple possession

of personal property creates an expectation of privacy everywhere

in the workplace.

119 S. Ct. at 471, this Court held that the defendants

lacked the capacity to claim the protection of the

Fourth Amendment in an apartment in which they

were temporary business visitors, even though they

had taken the precaution of drawing the window blinds

to prevent observation. See also note 10, infra.

8. The court of appeals’ decision in this case is

particularly difficult to reconcile with the reasoning of

this Court’s most recent reasonable-expectation-of-

privacy decision, Minnesota v. Carter, supra, which

was decided the same day the court of appeals denied

rehearing en banc in this case. In Carter, this Court

held that the defendants, who were present in someone

else’s home for two-and-one-half hours for the sole

business purpose of packaging narcotics, did not have a

legitimate expectation of privacy there. Notably, this

Court did not accord legal significance to any of the

factors the court of appeals found to be dispositive here.

In Carter, the defendants owned the drugs they were

packaging, just as respondent here owned the child

pornography tape he was attempting to view. See 119

S Ct. at 471-472. In Carter, the defendants had the

drugs in their immediate possession, just as respondent

here had the child pornography tape in his immediate

possession. See id. at 471. And, in Carter, the

defendants had taken precautions to preserve their

privacy, lowering the blinds, much as respondent did

here. Ibid.’ Yet none of those factors played any role

in the Court’s ana:ysis.

1 The defendants in Carter ultimately were not entirely

successful in preserving their privacy, as a “gap” in the blinds

permitted an officer, standing one to one-and-one half feet from the

window, to see inside. See 119 S. Ct. at 471; id. at 480 (Breyer, J.,

concurring). Nonetheless, neither the defendants’ effort to

To the contrary, the Court in Carter relied on pre-

cisely the mode of analysis that the court of appeals

held insufficient in this case: it looked exclusively to

the relationship between the defendants and the in-

vaded space. In particular, the Court concluded that

the defendants in Carter lacked a legitimate expecta-

tion of privacy in the apartment because they were

present there for just two-and-one-half hours, a

relatively brief period of time; because they had no

prior relationship to the apartment’s lessee, and thus

were not in any sense treated as members of the

household; and because their relationship to the apart-

ment was strictly commercial in nature, as they were

using it to package narcotics. See 119 8S. Ct. at 473-474.

Moreover, rejecting any analogy between the apart-

ment and a private workplace office in which the

defendants might have been able to claim a privacy

expectation, see O’Connor v. Ortega, supra, the Court

noted that “there is no indication that [defendants] in

this case had nearly as significant a connection to [the]

apartment as the worker in O’Connor had to his own

private office.” 1198S. Ct. at 474.

A comparable analysis applies here as well. Re-

spondent was in the vacant office not a matter of hours,

like the defendants in Carter, but rather a matter of

minutes; he had absolutely no prior connection to that

office; and the entire workplace, including the vacant

office in which respondent was discovered, was a

commercial premise that didnot function as a “home.”

App., infra, 2a, 8a n.1, 27a & n.1. Moreover, here, as in

Carter, “there is no indication that [respondent] had

nearly as significant a connection to [the vacant and

preserve their privacy, nor their lack of success, figured into the

majority’s analysis.

unused office where he was found] as the worker in

O’Connor had to his own private office.” 1195. Ct. at

474. If the defendants’ connection with the apartment

in Carter can be described as “fleeting and insub-

stantial,” id. at 479 (Kennedy, J., concurring), respon-

dent’s connection with the vacant office in which he was

found was virtually “nonexistent.” App., infra, 20a

(Kelly, J., dissenting). Other than mere presence for

the illegitimate purpose of viewing child pornography,

respondent had no connection to the vacant office at all.

For that reason, the court of appeals’ decision also

comes perilously close to reviving in the workplace con-

text the “legitimately on premises” standard that this

Court rejected in Rakas over two decades ago. See 439

U.S. at 141-143.

4. The improper analysis that the court of appeals

conducted in finding a violation of respondent’s Fourth

Amendment rights warrants this Court’s attention.

The court of appeals’ decision not only parts company

with the mode of analysis employed by this Court and

other courts of appeals, which generally looks to

whether the search occurred in the employee’s own

workspace, but also introduces unnecessary uncertainty

into this area of law and improperly expands the

Fourth Amendment’s protections in the workplace—

potentially to any employee who enters a room at his

place of employment with possessions in hand and shuts

the door behind him. App., infra, 22a (Kelly, J., dissent-

ing). Such an overbroad response to a Fourth Amend-

ment violation impedes “the search for truth at trial” by

depriving the trier of fact of “[rjelevant and reliable

evidence.” Rakas, 439 U.S. at 137. Indeed, in this very

case, the Tenth Circuit’s decision will (if not reversed)

require the jury to decide the issue of guilt without

ever learning that respondent was caught attempting

to view the child pornography tapes that were de-

livered to him; without the benefit of the evidence

discovered in respondent’s office after he consented to

its search; and without any knowledge of respondent’s —

confession of involvement in child pornography.

Because the court of appeals’ decision departs from

the mode of analysis employed by this Court and other

courts of appeals, and because it undermines predictabi-

lity in this area of law and the truthfinding mission of

trial, it ordinarily would warrant this Court’s plenary

review. As noted above, however, the panel that

decided this case issued its decision months before this

Court announced its most recent decision in the rea-

sonable expectation of privacy area, Minnesota v.

Carter, supra, and the court of appeals as a whole

denied rehearing en banc, with five judges dissenting,

on the same day Carter was decided. The court of

appeals thus has not had the opportunity to examine

this case in light of this Court’s analysis in Carter. This

Court may wish to give it the opportunity to do so

before granting plenary review. Accordingly, it would

be appropriate for the Court to grant the petition, va-

cate the judgment below, and remand for recon-

sideration in light of the Court’s decision in Carter. In

the alternative, the petition should be granted and the

case set for argument.

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be granted, the judgment of the court

of appeals vacated, and the case remanded for further

consideration in light of the Court’s decision in Carter.

Alternatively, the petition should be granted.

Respectfully submitted.

SETH P. WAXMAN

Solicitor General

JAMES K. ROBINSON

Assistant Attorney General

MICHAEL R. DREEBEN

Deputy Solicitor General

JEFFREY A, LAMKEN

Assistant to the Solicitor

General

SEAN CONNELLY

Attorney

MARCH 1999

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

No. 97-6310

UNITED STATES OF AMERICA, PLAINTIFF-APPELLANT

Vv.

JAMES 8S. ANDERSON, DEFENDANT-APPELLEE

[Filed: Sept. 15, 1998]

Before: PORFILIO, KELLY, and BRISCOE, Circuit

Judges.

BRISCOE, Circuit Judge.

The government appeals the district court’s order

granting James Anderson’s motion to suppress evi-

dence seized in a warrantless search. We exercise ju-

risdiction pursuant to 18 U.S.C. § 3731 and affirm.

Anderson was arrested after a successful FBI sting

operation. The goal of the sting operation was to iden-

tify and prosecute members of the Internet chat room

known as the “Orchid Club” for interstate trafficking of

child pornography. The Orchid Club investigation be-

gan in California and proceeded to Oklahoma City with

the arrest of Paul Buske in June 1996. Following his

arrest, Buske cooperated with the government in an

(la)

undercover capacity by contacting a fellow Orchid

Club member who used the pseudonym “AnnBoleyn”

and arranging to trade him child pornography.

“AnnBoleyn” was to send Buske blank videotapes to

use to tape child pornography. Buske would then send

the tapes back to “AnnBoleyn” at a prearranged mail

box. The FBI suspected Anderson was “AnnBoleyn”

and arranged for a controlled delivery of blank tapes to

the specified mail box and secured a search warrant for

Anderson’s home in Duluth, Georgia. These suspicions

were confirmed when Anderson picked up the tapes

sent to “AnnBoleyn.”

The tapes were to be delivered on Friday, July 5,

1996, but were delayed until Saturday, July 6, because

of the Fourth of July holiday. The mail box business

where the tapes were delivered was closed on Satur-

day, but Anderson had arranged for the business to

leave the package at an adjoining coffee shop. Ander-

son went to the coffee shop on Saturday, July 6, to pick

up the package. FBI agents, including Agent Bradley,

observed Anderson pick up the package and drive away

in his car. Instead of traveling to his home, Anderson

drove to his place of employment. Anderson was Vice

President of Research and Development for ATD Cor-

poration. Anderson used his key card to enter the ATD

office building, taking the tapes with him, and the door

locked behind him.

As the agents were concerned Anderson would view

the tapes and suspect the involvement of law enforce-

ment when he discovered the tapes were blank, they

decided to immediately arrest him. They knocked on

the office building doors and activated a siren on a

patrol car, but Anderson did not respond. The agents

did not know Anderson is hearing impaired and that he

did not hear the knocks or the siren because he was not

wearing his hearing aids. When Anderson failed to

respond, the agents became concerned he was destroy-

ing the tapes and other child pornography evidence.

Agent Bradley testified his concern was heightened

because he thought the building might contain an

incinerator. He based this belief on his knowledge that

ATD Corporation was involved in the research and

development of heat resistant materials. The agents’

concern that Anderson would destroy evidence was also

based on Agent Bradley’s previous experiences in in-

vestigating Orchid Club members. Agent Bradley had

found members of the group to be extremely suspicious

and fearful of being “set up” by agents. As a result of

his prior investigations of Orchid Club members, Agent

Bradley also knew they tended to keep their collections

in one location. If Anderson had decided to view the

tapes at his office, the agents were concerned his entire

collection was stored there and that he would destroy

all evidence if he was alerted to their presence.

Acting on these concerns, the agents broke into the

office building and began searching for Anderson.

Anderson did not hear them calling his name. Agent

Bradley noticed a light under the closed door of Room

222, an interior office. Room 222 had a single door

leading to the hallway, a narrow sidelight window next

to the door and one other window. Agent Bradley could

not see into the room because the door was closed and

the curtains were drawn over the sidelight window

with a towel attached to the curtains to further block

any view into the room. Agent Bradley opened the

unlocked door without knocking and found Anderson

preparing to watch one of the videotapes.

Anderson signed a written waiver of his Miranda

rights, made incriminating statements to the agents

detailing his involvement with child pornography on the

Internet, and admitted he had child pornography stored

in his office. Anderson then gave consent to search his

office, Room 218. The agents did not perform a general

search of Anderson’s office, but rather recovered the

pornography from the location identified by Anderson.

Shortly thereafter, Anderson and the agents went to

Anderson’s home and the agents executed the search

warrant. Upon arrival at his home, Anderson told his

wife the agents were there because he possessed child

pornography. Anderson then showed the agents where

he had stored the disks and tapes of child pornography.

While at Anderson’s home, approximately four hours

after entry into his office building, Anderson signed a

written consent to search both his office building and

his home.

Anderson was indicted on August 6, 1996, for en-

gaging in a conspiracy to knowingly receive and distrib-

ute child pornography via the Internet, in violation of

18 U.S.C. § 2252(a)(2)(b), and two counts of knowingly

transporting and shipping child pornography, in viola-

tion of 18 U.S.C. § 2252(a)(1). Anderson moved to sup-

press the evidence seized from his place of employment

and his residence, as well as statements made by him at

both iocales. The district court found Anderson had

standing to seek suppression and ordered suppression

of the evidence seized from Anderson’s office building

and the statements made while he was interrogated at

his office building. The court denied suppression of

evidence seized from his home and statements he made

to his wife in the presence of the agents because the

search of his home was made pursuant to a valid

warrant and his statements there were spontaneous

and not the result of any police questioning.

In suppressing the evidence seized and statements

taken at the office building, the district court concluded

Anderson had standing to assert his Fourth Amend-

ment rights. The court concluded Anderson’s actions

demonstrated a subjective expectation of privacy in

Room 222. The court then concluded this expectation

was reasonable by first finding a corporate officer may

assert a reasonable expectation of privacy to his or her

corporate office, and since Anderson was a corporate

officer with a master key to the corporate building and

offices therein, except for the president’s office, he had

standing to assert a Fourth Amendment claim to the

entire building. While we disagree with the district

court’s holding that a corporate officer with a key to the

building has standing to assert a Fourth Amendment

claim to the entire building, we ultimately agree with

the district court that Anderson had standing to seek

suppression of the evidence and statements obtained as

a result of the search of Room 222, but we reach that

conclusion by a different route. See United States v.

Winningham, 140 F.3d 1328, 1332 (10th Cir. 1998)

(court can affirm district court on different basis as long

as there is support in the record). We also agree with

the district court that the government did not establish

the existence of exigent circumstances justifying the

warrantless entry into the office building.

The government appeals that portion of the district

court’s order granting suppression of evidence seized

from Room 222 and statements made during that sei-

zure. The government contends Anderson lacks stand-

ing to challenge the search of an area within his corpo-

rate office building when Anderson has shown neither

proprietary nor possessory interest in Room 222, nor a

business nexus between his work and Room 222. The

government also contends there was sufficient evidence

to establish exigent circumstances to justify the war-

rantless entry into the office building.

Il.

Standing

We must first determine whether Anderson has

standing to challenge the search and seizure of items

from Room 222. “Whether a defendant has standing to

challenge a search is a legal question subject to de novo

review.” United States v. Shareef, 100 F.3d 1491, 1499

(10th Cir. 1996).

The Fourth Amendment guarantees “the right of the

people to be secure in their persons, houses, papers, and

effects, against unreasonable searches and seizures.”

U.S. Const. amend. IV. A warrantless search is unrea-

sonable, and therefore unconstitutional, if the defen-

dant has a legitimate expectation of privacy in the area

searched. “Determining whether a legitimate or justifi-

able expectation of privacy exists . . . involves two

inquiries.” United States v. Leary, 846 F.2d 592, 595

(10th Cir. 1988). First, the defendant “must show a

subjective expectation of privacy in the area searched,

and second, that expectation must be one that ‘society

is prepared to recognize as “reasonable.”’” Jd. (quoting

Hudson v. Palmer, 468 U.S. 517, 525, 104 S.Ct. 3194,

82 L. Ed. 2d 393 (1984)). The “ultimate question” is

whether one’s claim to privacy from the government

intrusion is reasonable in light of all the surrounding

circumstances. Jd. Thus, Anderson was required to es-

tablish he had a subjective expectation of privacy in

Room 222 and that society would recognize that sub-

jective expectation of privacy as reasonable.

Anderson entered the ATD office building during a

holiday weekend and there were no other employees in

the building. He used his corporate key card to enter

the building and the door locked behind him. Once he

was inside Room 222, he closed the door. The blinds

and curtains were closed over one window, the curtains

were closed over the sidelight window, and Anderson

had attached a towel over the sidelight window curtains

to further block any view into the room. Clearly he be-

lieved he would be alone and left undisturbed. Accord-

ingly, we conclude Anderson had a subjective expecta-

tion of privacy in Room 222.

Whether Anderson’s subjective expectation of pri-

vacy is one society is prepared to recognize as reason-

able is a more difficult inquiry. “Given the great

variety of work environments . . . the question

whether an employee has a reasonable expectation of

privacy [in his work area] must be addressed on a case-

by-case basis.” O’Connor v. Ortege, 480 U.S. 709, 718,

107 S. Ct. 1492, 94 L. Ed. 2d 714 (1987); see also Henzel

v. United States, 296 F.2d 650, 653 (5th Cir. 1961) (“This

is not to say that every employee of a corporation can

attack the illegal seizure of corporate property. . ..

Each case must be decided on its own facts.”). In

addressing this question, we are mindful that the “‘ex-

pectation of privacy in commercial premises . . . is dif-

ferent from, and indeed less than, a similar expectation

in an individual’s home.’” Leary, 846 F.2d at 597 n. 6

(quoting New York v. Burger, 482 U.S. 691, 700, 107 S.

Ct. 2636, 96 L. Ed. 2d 601 (1987)).

It is well established that an employee has a reason-

able expectation of privacy in his office. See Mancusi v.

SRR n nee een Ace ten LCENTenPee= HSER NOP UID OT CRON ROT SEU PT USNINe ONTO OM MTT

DeForte, 392 U.S. 364, 369, 88 S. Ct. 2120, 20 L. Ed. 2d

1154 (1968); Leary, 846 F.2d at 595 (“There is no doubt

that a corporate officer or employee may assert a rea- ‘

sonable or legitimate expectation of privacy in his

corporate office.”); Specht v. Jensen, 832 F.2d 1516, 1520 i

(10th Cir. 1987). Therefore, Anderson clearly had

standing to challenge the search of his office. However,

Room 222 was not Anderson’s office.’ Therefore, we

must determine to what extent an employee has stand-

ing to challenge the search of an area in his workplace

that is not his office. We begin by acknowledging, as at

least one other circuit has done, that a corporate em-

ployee does not have standing to challenge the search of

corporate offices or other property merely because the

employee has access to or control over certain areas.

See United States v. Baron-Mantilla, 748 F.2d 868, 870

(11th Cir. 1984) (mere possession of a key to the prem-

ises searched is insufficient to confer standing).

Most cases that discuss employee standing involve

seizure of work-related documents from the workplace.

In such cases, the relationship or “nexus” of the em-

ployee to the area searched is an important considera-

tion in determining whether the employee has standing.

See United States v. Mohney, 949 F.2d 1397, 1403-04

(6th Cir. 1991) (en banc) (defendant did not have stand-

ing to challenge seizure of documents which he did not

prepare when they were stored in offices he rarely

1 Room 222 was an empty room with no files or a desk, or even

a telephone. There was no name plate on the door. There is no

indication in the record that Anderson used the room on a regular

basis or even on a single occasion before July 6, 1996. A company

official testified that Room 222 was a vacant room that could be

used by all personnel. Anderson testified the room was vacant and

“had no use at all.” Appellant’s App. at 98.

visited); United States v. Taketa, 923 F.2d 665, 670-71

(9th Cir. 1991) (defendant did not have standing to

challenge search of coworker’s desk in adjoining office

even though he had access to it, but he did have stand-

ing to challenge search of his own desk); United States

v. Chuang, 897 F.2d 646, 649-51 (2d Cir. 1990) (defen-

dant could not challenge seizure of documents found in

another employee’s office); United States v. Torch, 609

F.2d 1088, 1091 (4th Cir. 1979) (defendant did not have

standing to challenge search of building when he was

not present at time of search, he did not work for build-

ing owner although he occasionally used the building,

he did not have assigned work area, and the desk he

occasionally used was not locked and all employees had

access to it); United States v. Britt, 508 F.2d 1052, 1056

(5th Cir. 1975) (corporate president did not have stand-

ing to challenge seizure of documents from off-site

warehouse because he failed to demonstrate a “nexus

between the area searched and [his] work space”).

We endorse the “business nexus” test to the extent

we share the belief that an employee enjoys a reason-

able expectation of privacy in his work space. Cer-

tainly, an employee should be able to establish standing

by demonstrating he works in the searched area on a

regular basis. However, we do not believe the fact that

a defendant does or does not work in a particular area

should categorically control his ability to challenge a

warrantless search of that area. Instead, the better ap-

proach is to examine all of the circumstances of the

working environment and the relevant search. See

Mancusi, 392 U.S. at 368, 88 S. Ct. 2120 (performing

standing inquiry “in light of all the circumstances”).

There are numerous circumstances which are highly

relevant when considering whether an employee should

10a

have standing to contest the search and seizure of items

from his workplace for which the “business nexus” test

does not account.”

Ownership of an item does not confer “automatic

standing.” However, the Supreme Court has long rec-

ognized that property ownership is a “factor to be con-

sidered in determining whether an individual’s Fourth

Amendment rights have been violated.” United States

v. Salvucci, 448 U.S. 83, 91, 100 S. Ct. 2547, 65 L.Ed.2d

619 (1980); Rawlings v. Kentucky, 448 U.S. 98, 105, 100

S. Ct. 2556, 65 L. Ed. 2d 633 (1980) (“[P]etitioner’s own-

ership of the drugs is undoubtedly one fact to be con-

sidered in [determining whether he has standing]”); see

also United States v. Benitez-Arreguin, 973 F.2d 823,

827 (10th Cir. 1992) (“In analyzing the case of a bailee,

we consider the factors that generally might give any

defendant a legitimate expectation of privacy, includ-

2 Contrary to the dissent’s assertion that we have failed to

reference any case in which a defendant has been determined to

have standing in the absence of a nexus between the area searched

and the defendant’s work space, see Dissenting Op. at 1234-35, we

cite United States v. Mancini, 8 F.3d 104, 108 (1st Cir. 1993)

(defendant worked downstairs and seized items were found in

storage space in attic), where the court emphasized the importance

of (1) the fact that the items seized were at least partially personal

possessions, (2) the fact that defendant was mayor of the city,

(3) the fact that the attic was in the same building as defendant’s

office, (4) the fact that the mayor had taken steps to insure his

privacy in the items seized. As in the present case, there was no

indication the mayor had ever worked in the attic or regularly used

the attic before the evidence was seized, the attic was located far

from the mayor’s office, and the attic was accessible by numerous

employees (the entire maintenance and personnel departments).

Further, we cite several additional cases where courts have found

no standing where there was no business nexus, but each case also

emphasized the items seized were not personal possessions.

—

lla

ing ownership, lawful possession, or lawful control of

the property or place searched.”) (emphasis added);

United States v. Erwin, 875 F.2d 268, 270-71 (10th Cir.

1989) (“Although ownership of the item seized is not

determinative, it is an important consideration in deter-

mining the existence and extent of a defendant’s

Fourth Amendment interests.”). Thus, a court is more

apt to find an employee has standing to challenge the

seizure of personal items or the search of an area where

personal items are stored than the search or seizure of

work-related documents or materials. This is true even

when an employee brings personal possessions into the

workplace where they are obviously not as secure as

they would be at home. See United States v. Mancini, 8

F.3d 104, 108 (1st Cir. 1993) (court emphasized seized

books were at least partially personal possessions); cf.

Williams v. Kunze, 806 F.2d 594, 599-600 (5th Cir. 1986)

(in denying standing, court emphasized seized records

were corporate property); State v. Richards, 552

N.W.2d 197, 205 (Minn. 1996) (finding defendant did not.

have standing when “nothing about the [seized] items

or the manner in which they were stored reveals any-

thing of personal or private nature”); State v. Worrell,

233 Kan. 968, 666 P.2d 703, 706 (1983) (court empha-

sized defendant stored no personal property in ware-

house where he was asserting standing). In O’Connor,

the Supreme Court discussed the effect on the issue of

standing when property seized from a defendant’s

workplace is personal property rather than business

property:

Because the reasonableness of an expectation of

privacy, as well as the appropriate standard for a

search, is understood to differ according to context,

it is essential first to delineate the boundaries of the

12a

workplace context. The workplace includes those

areas and items that are related to work and are

generally within the employer’s control. At a hospi-

tal, for example, the hallways, cafeteria, offices,

desks, and file cabinets, among other areas, are all

part of the workplace. These areas remain part of

the workplace context even if the employee has

placed personal items in them, such as a photograph

placed in a desk or a letter posted on an employee

bulletin board.

Not everything that passes through the confines

of the business address can be considered part of the

workplace context, however. An employee may

bring closed luggage to the office prior to leaving on

a trip, or a handbag or briefcase each workday.

While whatever expectation of privacy the em-

ployee has in the existence and the outward appear-

ance of the luggage is affected by its presence in the

workplace, the employee’s expectation of privacy in

the contents of the luggage is not affected in the

same way. The appropriate standard for a work-

place search does not necessarily apply to a piece of

closed personal luggage, a handbag or a briefcase

that happens to be within the employer’s business

address.

480 U.S. at 715-16, 107 S. Ct. 1492 (emphasis added).

See also Wayne R. LaFave, Search & Seizure § 11.3(d)

(“Particularly in an otherwise close case, a court may be

influenced by the defendant’s relationship to or interest

in the particular item seized. It may be significant,

therefore, that this item is a personal possession of the

defendant and not something connected with the

operation of the business.”).

13a

Moreover, we believe an employee has a greater

expectation of privacy in items in his immediate control,

regardless of the business connection he may or may

not have to the room where the items are found. See

United States v. Brien, 617 F.2d 299, 306 (1st Cir. 1980)

(citing as one factor supporting existence of standing

the fact that defendant was present during search);

LaFave § 11.3(d) (“Generally, it may be said that the

fundamental inquiry is whether the particular defen-

dant had a protected expectation of privacy, and that in

making this determination it is useful to consider such

factors as whether the defendant was present at the time

of the search.”) (emphasis added); cf. United States v.

Cardoza-Hinojosa, 140 F.3d 610, 616 (5th Cir. 1998)

(emphasizing defendant left scene aware building was

not locked); Taketa, 923 F.2d at 671 (emphasizing fact

that defendant was not present at time of search in

ruling defendant did not have standing); Torch, 609

F.2d at 1091 (same). Focusing on the defendant-em-

ployee’s control over the seized item at the time of the

seizure is consistent with the approach taken by the

Supreme Court in Mancusi. In Mancusi, the defendant

claimed he had standing to challenge seizure of records

from an office he shared with others. The Court noted

defendant shared his office with others and the seized

records were not located in an area of the room which

was “reserved for his personal use,” but ultimately held

defendant had standing. In reaching this conclusion, the

Court emphasized defendant worked in the area and

defendant “had custody of the papers at the moment of

their seizure.” 392 U.S. at 369, 88 S. Ct. 2120 (emphasis

added).

Finally, we find the “business nexus” test problem-

atic in that it does not take into account any actions the

14a

individual challenging the seizure may or may not have

taken to maintain privacy with respect to the item. We

believe it is appropriate to consider whether an em-

ployee took steps to keep his personal property private

in the workplace in determining whether the employee

had a reasonable expectation of privacy in the area

searched. See Mancini, 8 F.3d at 110 (court focused on

fact that mayor had clearly marked seized books as

private property); cf. Cardoza-Hinojosa, 140 F.3d at

616 (defendant did not have standing to challenge

search of shed where circumstances revealed a “care-

less (if not nonexistent) effort” to maintain privacy in-

terest therein); United States v. Alewelt, 532 F.2d 1165,

1168 (7th Cir. 1976) (defendant did not have standing to

challenge seizure of his coat which he stored on a coat

rack in general working area of public building); Rich-

ards, 552 N.W.2d at 205 (court emphasized defendant

stored personal item in workplace without marking it as

his own); see also LaFave § 11.3(d) (“Assessment of a

defendant’s privacy expectation vis-a-vis the item may

also be aided by considering if he dealt with that item in

a fashion which reflects an effort on his part to main-

tain privacy.”) (emphasis added); Specht, 832 F.2d at

1520 (highlighting fact that defendant closed his office

doors and drapes when he left his office).

Therefore, in determining whether an employee has

standing to challenge seizure of an item from the work-

place, we do not limit our analysis to the “business

nexus” test. Rather, we will consider all of the relevant

circumstances, including (1) the employee’s relationship

to the item seized; (2) whether the item was in the

immediate control of the employee when it was seized;

15a

and (3) whether the employee took actions to maintain

his privacy in the item.’

Anderson entered the locked ATD office building on

a Saturday, during a holiday weekend, with the video-

tapes. These tapes were not ATD property but were

Anderson’s personal possessions. He took the tapes

into Room 222, shut the door behind him, and covered

the sidelight window. He clearly took these actions to

maintain his privacy. Anderson maintained control

over the videotapes and did not abandon the tapes or

even try to store the tapes in the room. In fact, he was

still in possession of the tapes when the agents

searched Room 222 and seized them. Under these cir-

cumstances, we conclude Anderson’s subjective expec-

tation of privacy was an expectation that society would

recognize as reasonable. We hold Anderson has stand-

ing to challenge the government’s search and seizure

8 The government argues the so-called “apartment cases”

control. See, ¢.g., United States v. Nohara, 3 F.3d 1239, 1242 (9th

Cir. 1993). We disagree. These cases stand for the proposition

that a tenant does not have a reasonable expectation of privacy in

common areas such as the hallways of an apartment building.

There are significant differences between a tenant’s relationship to

a hallway in his apartment building and Anderson’s relationship to

Room 222. While both would presumably have total access to the

respective areas, Anderson also had the authority to exclude

others from Room 222. Obviously, a tenant does not have the

authority to exclude others from a common hallway. The right to

exclude others is an important consideration in determining

whether an individual has standing. See Rakas v. Illinois, 439 U.S.

128, 148-49, 99 S. Ct. 421, 58 L.Ed.2d 387 (1978); Katz v. United

States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967); Jones v.

United States, 362 U.S. 257, 80 S. Ct. 725, 4 L.Ed.2d 697 (1960);

LaFave § 11.3(c). Anderson did in fact exclude others from Room

222 by closing the door and covering the sidelight window.

l6a

of items from Room 222, as well as the statements

Anderson made in relation to that search.

Exigent circumstances

The warrantless search of the ATD office building

was presumptively unconstitutional unless the govern-

ment can establish an exception to the warrant require-

ment existed at the time the building was searched.

“The notion that emergency circumstances may in ap-

propriate cases make a warrantless search constitu-

tional if probable cause exists is a clearly established

exception to the warrant requirement.” United States

v. Aquino, 836 F.2d 1268, 1270-71 (10th Cir. 1988). “The

existence of exigent circumstances is a mixed question

of law and fact.” United States v. Anderson, 981 F.2d

1560, 1567 (10th Cir. 1992). “Although we accept under-

lying fact findings unless they are clearly erroneous,

‘the determination of whether those facts satisfy the

legal test of exigency is subject to de novo review.’” Id.

(quoting United States v. Stewart, 867 F.2d 581, 584

(10th Cir. 1989)).

The government bears the burden of proving exi-

gency. United States v. Wicks, 995 F.2d 964, 970 (10th

Cir. 1993). In assessing whether the burden was met,

we are guided by the realities of the situation presented

by the record. We should evaluate the circumstances as

they would have appeared to prudent, cautious, and

trained officers. Jd. There is no absolute test for deter-

mining whether exigent circumstances are present

because such a determination ultimately depends on the

unique facts of each controversy. However, we have

recognized certain general factors. Id.

An exception to the warrant requirement that

allows police fearing the destruction of evidence to

17a

enter the home of an unknown suspect should be

(1) pursuant to clear evidence of probable cause,

(2) available only for serious crimes and in circum-

stances where the destruction of evidence is likely,

(3) limited in scope to the minimum intrusion neces-

sary to prevent the destruction of evidence, and

(4) supported by clearly defined indications of exi-

gency that are not subject to police manipulation or

abuse.

United States v. Carr, 939 F.2d 1442, 1448 (10th Cir.

1991). Finally, we should remember that, “[a]s an ex-

ception to the warrant requirement, exigent circum-

stances must be ‘jealously and carefully drawn.’” An-

derson, 981 F.2d at 1567 (quoting Aquino, 836 F.2d at

1270).

Since the agents witnessed Anderson retrieve the

controlled package from the coffee shop and carry the

package into the ATD office building, there was

probable cause to believe Anderson had committed a

crime at the time the agents entered the office building.

Further, distribution and production of child pornogra-

phy are serious crimes. See United States v. Moore, 916

F.2d 1131, 1139 (6th Cir. 1990) (“Child pornographers

commit serious crimes which can have devastating

effects upon society and, most importantly, upon chil-

dren who are sexually abused.”). However, whether

the agents conducted a limited search of the building is

a closer question. Agent Bradley testified he and the

other agents searched for Anderson throughout the

building and, after he was located, the agents conducted

a search of Room 222 and a limited search of Anderson’s

office. However, the initial search for Anderson, broad

as it was, was at least partially necessary because of

18a

Anderson’s hearing impairment. The later search of

Anderson’s office was based on his consent.

The decisive consideration in this case is the govern-

ment’s failure to demonstrate the presence of any

“circumstances where the destruction of evidence is

likely” or any “clearly defined indications of exigency.”

Carr, 939 F.2d at 1448. To constitute “exigent” circum-

stances, the government must present something more

than an unfounded belief by law enforcement officers on

the scene that the suspect is becoming suspicious or

nervous. See, e.g., United States v. Scroger, 98 F.3d

1256, 1259-60 (10th Cir. 1996), cert. denied — U.S. ——,

117 8.Ct. 1824, 187 L. Ed. 2d 485 (1997) (defendant

answered door with drug manufacturing equipment in

hand; defendant’s hands were stained, an indication of

drug manufacturing; and there was a strong odor of

drugs from the house); Carr, 939 F.2d at 1446-49 (offi-

cers smelled drugs and heard commotion and shouting

inside room); Aquino, 836 F.2d at 1273 (suspects were

released, creating possibility news of police involve-

ment in operation would spread, and drug courier’s

phone rang during the delay); United States v. Chavez,

812 F.2d 1295, 1299-1301 (10th Cir. 1987) (garage doors

shut and lights off when police arrived); see also Wicks,

995 F.2d at 971 (collecting cases).

To support its likelihood of destruction of evidence

and exigency arguments, the government essentially

points to three factors: (1) Agent Bradley’s belief that

Anderson’s entire child pornography collection was

being stored inside the office building; (2) Agent

Bradley’s concern about the presence of an incinerator

in the office building; and (3) Anderson’s failure to

respond to the agents knocking on the office doors or to

the patrol car siren. Based on his previous law enforce-

19a

ment experience, it may have been reasonable for

Agent Bradley to believe other contraband was stored

inside the office building. Nevertheless, that factor

alone was insufficient to justify a warrantless entry and

search. Anderson, 981 F.2d at 1567-68. As for the

presence of an incinerator, that was simply speculation

on the part of Agent Bradley and there were no

objective indications that an incinerator (or any other

item) was being used to destroy evidence. With respect

to the third factor, we are not convinced Anderson’s

failure to respond to the knocks or the siren could have

led a reasonable officer to conclude destruction of evi-

dence was imminent. We note Anderson was inside a

large, two-story, multi-room office building and there

was no evidence the agents knew precisely where he

was in the building. Under these circumstances, we are

not convinced Anderson (whether hearing impaired or

not) reasonably could have been expected to hear the

knocks or the siren or to respond to them.

As an additional matter, we are concerned with the

potential for government manipulation under the facts

of this case. The agents testified at the suppression

hearing they were concerned Anderson would destroy

any evidence stored in the office building if he was

alerted to their presence. However, notwithstanding

this alleged concern, the agents proceeded to knock on

the doors and activate a siren to alert Anderson to their

presence. In short, the agents helped create the cir-

cumstances they allegedly believed would cause Ander-

son to attempt to destroy evidence.

For these reasons, we believe the district court cor-

rectly concluded “the government presented no evi-

dence that would permit a ‘prudent, cautious’ officer to

assume that destruction of evidence was imminent or

20a

that an emergency was occurring in the building.”

Appellant’s App. at 77. Thus, exigent circumstances

did not exist at the time of the warrantless search of

the ATD office building.

ITI.

The government’s search of Room 222 was uncon-

stitutional. Accordingly, the items seized during that

search and the statements Anderson made at the office

building must be suppressed. See Wong Sun v. United

States, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441

(1963). The district court’s order suppressing evidence

seized from the ATD office building and statements

made by Anderson while he was being interrogated at

his office building is AFFIRMED.

PAUL KELLY, JR., Circuit Judge, dissenting.

The court determines that Mr. Anderson has stand-

ing to challenge the search and seizure of evidence from

Room 222. I disagree that Mr. Anderson has standing

with respect to Room 222 or any corporate common

areas. Mere possession of videotapes in an unlocked

room that Mr. Anderson neither worked in, nor used

regularly, is not sufficient to confer standing. Although

the factors the court relies upon are relevant to the

inquiry, see United States v. Cardoza-Hinojosa, 140

F.3d 610, 615 (5th Cir. 1998), they cannot alone support

standing for a workplace search in these circumstances

absent a demonstrated “nexus between the area

searched and the work space of the defendant,” United

States v. Britt, 508 F.2d 1052, 1056 (5th Cir. 1975), cert.

denied, 423 U.S. 825, 96 5S. Ct. 40, 46 L. Ed. 2d 42 (1975).

Such a nexus is nonexistent in this case. It is telling

that the court cites no case involving a workplace

where standing was found in the absence of such a

Z2la

nexus.’ Merely because work-related documents are

not involved in this case does not mean that we can

overlook the nature of the area searched.

Although “the i‘ourth Amendment protects people,

not places,” Katz v. United States, 389 U.S. 347, 351, 88

S. Ct. 507, 19 L. Ed. 2d 576 (1967), the facts concerning

the relationship between the person and the place

searched are important in determining whether the

person has met his or her burden of demonstrating a

reasonable expectation of privacy, see Rakas v. Illinois,

439 U.S. 128, 130-31 n. 1, 99 S. Ct. 421, 58 L. Ed. 2d 387

(1978). Whether an expectation of privacy is legitimate

for Fourth Amendment purposes depends upon

“whether the government’s intrusion infringes upon the

personal and societal values protected by the Fourth

Amendment.” Oliver v. United States, 466 U.S. 170,

183, 104 S. Ct. 1735, 80 L. Ed. 2d 214 (1984). In deciding

! United States v. Mancini, 8 F.3d 104 (1st Cir. 1993), is not to

the contrary. In that case, the defendant mayor had standing to

challenge a search of the town’s archive attic, located above the

mayor's office, and seizure of his 1987 appointment calendar which

contained entries of both a personal and public nature. The attic

contained boxes of town records, as well as a box labeled “Mayor’s

Appointment Books.” The court emphasized the physical relation-

ship between the mayor’s office and the archive attic, as well as the

direction and control that the mayor, who had the position for

nineteen years, exercised over access. Mancini 8 F.3d at 110. This

court is mistaken that “there was no indication the mayor had ever

. regularly used the attic before the evidence was seized. . . .”

Ct. Op. at 1230, n.2. To the contrary, the certificates of occupancy

that the mayor allegedly issued in exchange for a $2,000 payment

were stored in boxes of building department records located in the

attic, Mancini, 8 F.3d at 106, and the mayor also stored boxes

containing his files and appointment calendars, id. at 110. Mancini

simply is not a case where there is no connection between the

employee’s work space and the area searched.

22a

this issue, the Court considers location—whether a

person or his possessions are in a home, car, curtilage,

open field or office. Without question, the warrant

clause of the Fourth Amendment applies to searches on

commercial premises, see Marshall v. Barlow’s, Inc.,

436 U.S. 307, 311-12, 98 S.Ct. 1816, 56 L. Ed. 2d 305

(1978); See v. City of Seattle, 387 U.S. 541, 543, 87S. Ct.

1737, 18 L. Ed. 2d 943 (1967), however, commercial

premises differ from personal residences in nature and

use, and therefore Fourth Amendment protection is

more limited. See Donovan v. Dewey, 452 U.S. 594, 598-

99, 101 S. Ct. 2534, 69 L. Ed. 2d 262 (1981). Where com-

mercial premises are not open to the public, “the

reasonable expectation of privacy depends upon the

particular nature and circumstances surrounding the

place to be searched.” United States v. Bute, 43 F.3d

531, 536 (10th Cir. 1994); see See, 387 U.S. at 545, 87S.

Ct. 1787.

The district court found that Mr. Anderson was

present during a holiday and had taken steps to

maintain his privacy in Room 222 by closing the door,

shutting the blinds and curtains, and by placing a towel

over one of the windows. See Aplt. App. at 75. This

court extends the analysis by focusing on one of the

items found in the search of the room, the videotapes in

Mr. Anderson’s possession, and holds that Mr. Ander-

son has standing to challenge the search and statements

made in connection with it. Under the court’s analysis,

Mr. Anderson would have standing to challenge a

search anywhere in the building provided the item

seized was owned and controlled by him, and he had

taken steps to maintain privacy. This analysis relies too

heavily on Mr. Anderson’s possession of the seized

videotapes when the primary question must be whether

23a

Mr. Anderson had a legitimate expectation of privacy in

the area searched, an objective inquiry. See United

States v. Salvucci, 448 U.S. 88, 92, 100 S. Ct. 2547, 65 L.

Ed. 2d 619 (1980) (“We simply decline to use possession

of a seized good as a substitute for a factual finding that

the owner of the good had a legitimate expectation of

privacy in the area searched.”); Rawlings v. Kentucky,

448 U.S. 98, 104-06, 100 S. Ct. 2556, 65 L.Ed.2d 633

(1980) (“Had petitioner placed his drugs in plain view,

he still would have owned them, but he could not claim

any legitimate expectation of privacy.”); United States

v. Skowronski, 827 F.2d 1414, 1418 (10th Cir. 1987)

(“Whether a person has standing to contest a search on

fourth amendment grounds turns on whether the

person had a legitimate expectation of privacy in the

area searched, not merely in the items seized.”). In

deciding standing issues, we must consider all of the

circumstances, Rakas, 439 U.S. at 152, 99 S. Ct. 421

(Powell, J., concurring), including Mr. Anderson’s rela-

tionship with the area searched.

Numerous circumstances in this case show the

complete absence of any nexus between Room 222 and

Mr. Anderson’s work space, let alone a nexus between

Mr. Anderson and the entire building. Room 222 was

not Mr. Anderson’s office, and no evidence before us

suggests that he ever used the room prior to the

incident. It was located far from his office, near several

common areas (a reception area, restrooms, a confer-

ence room and a hallway). The room was vacant, con-

taining no desk, files, or even telephone. It had no

particular function, and was accessible by all employ-

ees. Mr. Anderson was found, pants undone, in the

room, with a blank tape in the VCR. Contrary to the

court’s assertion, no evidence before us suggests that

24a

Mr. Anderson had the right to exclude anyone from the

room; one does not gain such right merely by closing

the door and covering a windeswx——

The steps that Mr. Anderson took to ensure privacy

may be consistent with a subjective expectation of

privacy, but that is not enough, no matter how ear-

nestly the steps were taken. In these circumstances,

consistent with Mr. Anderson’s burden to prove

standing, I would hold that he lacked standing and

reverse. I therefore respectfully dissent.

25a

APPENDIX B

IN THE UNITED STATES DISTRICT COURT FOR

THE WESTERN DISTRICT OF OKLAHOMA

No. CR-96-129-L

UNITED STATES OF AMERICA, PLAINTIFF

Vv.

JAMES S. ANDERSON, DEFENDANT

[Filed: Aug. 5, 1997]

ORDER

On August 6, 1996, a federal grand jury returned a

three-count indictment against defendant, James S.

Anderson. Count 1 of the indictment alleges that defen-

dant conspired to transmit child pornography in viola-

tion of 18 U.S.C. §§ 2252(a)(2) and 2252(b)(1). Counts 2

and 3 allege that defendant transported child porno-

graphy in interstate commerce in violation of 18 U.S.C.

§ 2252(a)(1). This matter is before the court on defen-

dant’s motions to suppress evidence seized from his

office and his home and to suppress statements made

by him while in custody. The court held an evidentiary

hearing on defendant’s motions on July 9, 1997. During

the hearing, the government presented the testimony

of Special Agent Joe Bradley. In addition to the gov-

ernment’s evidence, defendant testified at the hearing

and presented the testimony of Dr. Martha Jane Little.

26a

Based on the parties’ briefs, the applicable case law,

and the evidence presented at the hearing, the court

finds that defendant’s motion to suppress should be

granted in part and denied in part.

The evidence establishes that on June 13, 1996,

agents of the Federal Bureau of Investigation (“FBI”)

arrested Paul William Buske in the Western District of

Oklahoma. Buske was charged with illegal interstate

transmission of child pornography in violation of 18

U.S.C. § 2252. Buske told FBI agents that since

August 1995 he had been using his computer to gain

access to chat rooms regarding child pornography on

the Internet. Buske admitted to trading child porno-

graphy with at least 15 other individuals, including an

individual with the screen name “AnnBoleyn.” On July

2, 1996, Buske engaged in an on-line conversation with

AnnBoleyn during which Buske agreed to transmit

child erotica to AnnBoleyn on blank video tapes

AnnBoleyn had sent to Buske. The FBI arranged for a

controlled delivery of blank tapes to AnnBoleyn, whom

they had identified as defendant.

On Friday, July 5, 1997, Special Agent Joe Bradley,

the agent-in-charge of the investigation at issue here,

applied for a warrant to search defendant’s house in

Duluth, Georgia. The package from Buske was origi-

nally scheduled to be delivered to a mail drop location

in Norcross, Georgia on Friday, July 5, 1997. The pack-

age, however, was not delivered until Saturday, July 6,

1997 and was then retrieved by defendant. FBI agents

observed defendant leave a business adjacent to the

mail drop carrying the package sent by Buske. Defen-

dant then drove to his place of employment, entering

the locked building with a key card.

27a

When agents got to the building, the door was locked

because it had automatically locked once defendant

entered. Agent Bradley rang the door bell and knocked

on the door, but received no answer. One of the officers

with Agent Bradley activated the siren on her vehicle

in an attempt to get defendant’s attention. Again, there

was no response from defendant. It was later discov-

ered that defendant normally wears hearing aids, but

was not wearing them that day. After having been

outside the office building for approximately 10 min-

utes, Agent Bradley then “retracted the deadbolt” on

the front door and entered the building with two other

officers.. Agent Bradley and the other two officers

then conducted an “extensive search of the building,”*

but did not locate defendant. Agent Bradley then

searched the floor again and noticed a light under the

door of Room 222. Room 222 was a small interior office

with a single door leading to the hallway and two

windows. The larger window had blinds and curtains,

both of which defendant had closed. The smaller win-

dow was covered with curtains over which defendant

had placed a towel to block vision into the room. In

addition, defendant had closed the door. Agent Bradley

opened the door without knocking and discovered de-

fendant with a television and a video cassette recorder

(“VCR”). The package from Buske was open and one of

the tapes was in the VCR. Agent Bradley identified

1 No evidence was presented regarding the exact time the

agents entered the building. ‘The court assumes the entry oc-

curred between 10:45 a.m. and 10:50 a.m. because defendant was

seen leaving the coffee shop to drive to his office at 10:30 a.m.

2 Exhibit A to Motion to Suppress Post-Custodia Statements of

Defendant at 1.

28a

himself as an FBI agent and notified the two other

officers by radio that he had found defendant.

At 11:00 a.m., Agent Bradley began to read defen-

dant his Miranda rights using an “Interrogation; Ad-

vice of Rights” form. See Government’s Exhibit 2.

Agent Bradley read the first six paragraphs of the form

out loud to defendant and asked defendant to follow

along with him. He then had defendant read the

“Waiver of Rights” paragraph out loud to him. Defen-

dant signed the form at 11:06 a.m. Jd. Defendant indi-

cated that he understood his rights and agreed to coop-

erate. Agent Bradley began the interrogation of defen-

dant at approximately 11:10 a.m. Defendant appeared

to be articulate and gave appropriate answers to Agent

Bradley’s questions. During this questioning, defen-

dant detailed his involvement with child pornography

on the Internet.

Agent Bradley told defendant that he had a warrant

to search his house and asked defendant if he had any

child pornography at the office. When defendant admit-

ted that some child pornography was stored in his

office, Agent Bradley asked if defendant would have

any problem turning it over to the agents. Defendant

responded in the negative and accompanied the agents

to his office. Once there, defendant directed the officers

to where he had hidden the child pornography. The

officers made no attempt to perform a general search of

defendant’s office; rather, they accepted defendant’s

statements regarding the location of the contraband.

Shortly thereafter, defendant and the officers pro-

ceeded to defendant’s house to execute the search

warrant. While defendant was handcuffed while being

transported, the agents removed the handcuffs before

going into the house. At the house, defendant told his

ae ogres:

29a

wife that FBI agents were there because he had been

communicating on the Internet and that the agents

would find child pornography. Defendant led the

agents to his home office and showed them disks on

which child pornography was stored. In addition, de-

fendant unlocked a fire safe, in which the agents found

video tapes, women’s underwear, and a vibrator. While

at defendant’s house, approximately four hours after

the entry into defendant’s office building, defendant

executed a written consent to search both his office

building and his house.

Defendant argues that the evidence seized from his

office is the product of a warrantless entry and search.

He contends that the taint of this fourth amendment

violation was not vitiated by his later consent to search

because that consent was not knowingly and voluntarily

given. Defendant claims that the evidence seized from

his home must also be suppressed because the search

was pursuant to an invalid search warrant. Finally,

defendant contends that his statements must be sup-

pressed because he was incapable of knowingly waiving

his fifth amendment rights due to his mental condition

at the time of his arrest.

The government contends that defendant lacks

standing to question the search of his office. The issue

of standing is a threshold issue.

Whether a defendant has standing to challenge a

search under the Fourth Amendment is a question

of law. . . . “A defendant may not challenge an

allegedly unlawful search or seizure unless he

demonstrates that his own constitutional rights

have been violated.” Standing to lodge such a chal-

lenge depends upon two factors: (1) whether one

demonstrated by his conduct a subjective expecta-

30a

tion of privacy, and (2) whether society is prepared

to recognize that expectation as reasonable.

United States v. Conway, 73 F.3d 975, 979 (10th Cir.

1995) (citations omitted). Defendant contends that he

meets both these requirements with respect to the

office building, the room in which he was found and his

individual office. The evidence establishes that defen-

dant entered the locked office building on a Saturday

using a key card and that the door automatically locked

again once he entered the building. There is no dispute

that the agents broke into the locked office building to

search for and to arrest defendant. Once inside the

office building, the agents found defendant in a small

room where he had taken steps to maintain his privacy;

the door, blinds and curtains were closed and defendant

had taken added precaution of placing a towel over one

of the windows. Defendant thus demonstrated a sub-

jective expectation of privacy in the Room 222. More-

over, the court finds that that expectation was reason-

able. Defendant was in a locked office building on a

holiday weekend. Society recognizes privacy rights in

commercial buildings. As the officer of the company,

_ defendant has the authority to assert a fourth amend-

ment claim to the building.®

There is no doubt that a corporate officer or em-

ployee may assert a reasonable or legitimate expec-

tation of privacy in his corporate office. Cf.

Mancusi v. DeForte, 392 U.S. 364, 88 S. Ct. 2120,

2124, 20 L. Ed. 2d 1154 (1968) (“It has long been

8 Defendant was Vice-President of Research and Development

for ATD Corporation. As an officer, he had access through use of a

master key to all the offices in the corporate building in Norcross,

Georgia, except the president’s office.

3la

settled that one has standing to object to a search

of his office, as well as of his home.”); United States

v. Lefkowitz, 464 F. Supp. 227, 230 (C.D. Cal. 1979)

(corporate officers had sufficient privacy interest in

corporate office suite), affd, 619 F.2d 1313 (9th

Cir.), cert. denied, 449 U.S. 824, 101 S. Ct. 86, 66 L.

Ed. 2d 27 (1980). . . . Similarly, “it seems clear

that a corporate defendant has standing with re-

spect to searches of corporate premises. . . ebilatte

In addition, except in rare circumstances, a war-

rant is as necessary to support a search of com-

mercial premises as private premises.

United States v. Leary, 846 F.2d 592, 595-96 (10th Cir.

1988). Thus, the court finds that defendant has stand-

ing to challenge the warrantless search of his office.

The next issue for decision is whether the warrant-

less search was nonetheless reasonable under the

fourth amendment. Because the agents conducted the

search without a warrant, the government bears the

burden of proving that the search was within an

exception to the warrant requirement. See United

States v. Scroger, 98 F.3d 1256, 1259 (10th Cir. 1996),

cert. denied, 117 S. Ct. 1824 (1997). The government

argues that exigent circumstances existed that justified

the agents’ entry into the office building.

“‘T]here is no absolute test for the presence of

exigent circumstances because such a determina-

tion depends on the unique facts of each contro-

versy.” However, in United States v. Aquino, 836

F.2d 1268, 1270 (10th Cir. 1988), we articulated four

requirements for a permissible warrantless entry

when the police fear the imminent destruction of

evidence:

32a

An exception to the warrant requirement that

allows police fearing the destruction of evidence

to enter the home of [a] suspect should be

(1) pursuant to clear evidence of probable cause,

(2) available only for serious crimes and in cir-

cumstances where the destruction of evidence is

likely, (3) limited in scope to the minimum intru-

sion necessary, and (4) supported by clearly

defined indicators of exigency that are not sub-

ject to police manipulatien or abuse.

“In assessing whether this burden has been met we

evaluate the circumstances as they would have

appeared to prudent, cautions and trained officers.”

Scroger, 98 F.3d at 1259 (citations omitted). The Tenth

Circuit has defined exigent circumstances as arising

when

(1) the law enforcement officers . . . have rea-

sonable grounds to believe that there is immediate

need to protect their lives or others or their

property or that of others, (2) the search [is not]

motivated by an intent to arrest and seize evidence,

and (8) there is some reasonable basis, approaching

probable cause, to associate an emergency with the

area or place to be searched.

United States v. Anderson, 981 F.2d 1560, 1567 (10th

Cir. 1992) (quoting United States v. Smith, 797 F.2d

836, 840 (10th Cir. 1986) (emphasis in Anderson).

In seeking to support the exigent circumstances

argument, the government presented the testimony of

Agent Bradley. Agent Bradley testified that he knew

that defendant’s corporation worked with heat resis-

tant technology, therefore, he thought that the Nor-

cross office might have an incinerator in which defen-

Rare Stal ye ye

33a

dant could destroy the blank tapes and any other

evidence. Agent Bradley conceded, however, that the

reason the agents entered the building was to arrest

defendant, which is a prohibited motivation under

Anderson. The court finds that the government has not

met its burden of proving that exigent circumstances

existed. The government presented no evidence that

would permit a “prudent, cautious” officer to assume

that destruction of evidence was imminent or that an

emergency was occurring in the building. Agent

Bradley’s assumption that the building contained an

incinerator and that defendant would use the incinera-

tor when confronted with the blank tapes is simply

insufficient.

Having found that the entry into the building and the

search for defendant constitute a fourth amendment

violation, the court must determine whether defen-

dant’s statements and the evidence seized from Room

222 and his office must be suppressed as fruits of the

poisonous tree.

“A search preceded by a Fourth Amendment

violation remains valid if the consent to search was

voluntary in fact under the totality of the circum-

stances.” “The government bears the burden of

proving the voluntariness of consent, and that

burden is heavier when consent is given after an

illegal [detention].” The government must demon-

strate that [defendant’s] consent to search is “suf-

ficiently an act of free will to purge the primary

taint of the illegal [detention].” No single fact is

dispositive under the totality of the circumstances

test, but the three factors articulated in Brown v.

Illinois, 422 U.S. 590, 95 S. Ct. 2254, 45 L. Ed. 2d

416 (1975), are especially relevant: “the temporal

34a

proximity of the illegal detention and the consent,

any intervening circumstances, and particularly,

the purpose and flagrancy of the officer’s unlawful

conduct.”

United States v. McSwain, 29 F.2d 558, 562 (10th Cir.

1994) (citations and footnote omitted). The Brown fac-

tors are also used to determine whether defendant’s

statements were purged of the taint of the fourth

amendment violation. See United States v. Peters, 10

F.3d 1517, 1523 (10th Cir. 1993). Brown contains one

additional factor for use when analyzing the admissibil-

ity of statements made by a defendant: whether defen-

dant was advised of his Miranda rights prior to making

the statements at issue. Jd.

The court finds that both the items seized in the

search of defendant’s office and his statements at the

office must be suppressed as fruit of the poisonous

tree.’ With respect to defendant’s statements, one of

the Brown factors is clearly met: defendant was advised

of his Miranda rights before the agents began inter-

rogating him. That interrogation, however, came di-

rectly on the heels of the fourth amendment violation,

occuring only minutes after the agents broke into the

office building and arrested defendant. There were no

intervening circumstances in the short period of time

between the break-in and defendant’s statements that

would vitiate the taint; there was simply no break in

the causal connection between the fourth amendment

violation and defendant’s interrogation. See United

4 In light of this ruling, the court need not address whether

defendant waived his constitutional right to remain silent. This

constitutional guarantee may be waived “provided the waiver is

made voluntarily, knowingly, and intelligently.” Colorado v.

Spring, 479 U.S. 564, 572 (1987).

35a

States v. Maez, 872 F.2d 1444, 1456 (10th Cir. 1989)

(passage of 45 minutes and removal of defendant to

interview room not sufficient to remove taint of illegal

arrest). Furthermore, while the court does not find

that the agents’ actions were flagrant,’ they still con-

stitute a clear violation of defendant’s fourth amend-

ment rights. The agents had options available to them

other than breaking into the building: they could have

waited for defendant to exit the building; they could

have sought consent to enter the building from the

president of defendant’s corporation; or they could have

sought a search warrant.°

Likewise, the court finds that analysis of the Brown

factors leads to the conclusion that defendant’s consent

to search his office was not sufficiently removed from

the fourth amendment violation. The government has

not demonstrated that defendant’s consent to search

was “sufficiently an act of free will” because there was

no “break in the causal connection between the illegal

[break-in] and the consent.” McSwain, 29 F.3d at 562

n.2. Furthermore, there is no indication that the agents

advised defendant of his right to refuse consent, thus

calling into question the voluntariness of his consent.

See United States v. Fernandez, 18 F.3d 874, 882 (10th

5 The agents did not simply break into the building unan-

nounced and with guns blazing. They made numerous attempts to

gain defendant’s attention, all of which failed because defendant

was not wearing his hearing aids. Furthermore, it is undisputed

that Agent Bradley did not have his gun drawn when he entered

Room 222.

6 Indeed, based on the evidence presented, including that

Buske surmised that AnnBoleyn was communicating with him

both from his office and his home, the agents may have had suffi-

cient information to ask the magistrate judge to issue a warrant

for the office when they requested the warrant for the house.

36a

Cir. 1994) (“Although informing a defendant of his right

to refuse consent is not a prerequisite to establishing

voluntary consent, we consider it a factor particularly

worth noting.” (citations and internal quotations omit-

ted)). Based on the totality of the circumstances, the

court finds that defendant’s consent to search his office

was not sufficiently an act of free will to purge the

primary taint of the fourth amendment violation.

While defendant challenges the search of his house,

he does not allege that that search was tainted by the

illegal entry into the office building.’ Rather, defendant

challenges the search of the house on the ground that

the search warrant was invalid. Defendant contends

that the magistrate judge did not have sufficient prob-

able cause to issue the search warrant because Agent

Bradley did not tell the magistrate judge the extent of

his experience in child pornography investigations. De-

7 Such an argument would be foreclosed by the Supreme

Court’s decision in Segura v. United States, 468 U.S. 796 (1984). In

Segura, the Court held that where an independent source is

present for a search warrant, the legality or illegality of an initial

warrantless entry into the premises to be searched has no bearing

on the admissibility of the evidence seized pursuant to the search

warrant. Jd. at 816. In the case at bar, the illegal entry was into

the office building, not the house for which the agents had a search

warrant. Moreover, none of the information or evidence obtained

from the office building was used to secure the search warrant.

The issuance of the search warrant and the warrantless entry and

search in the office building are wholly related. Furthermore, by

the time the agents got to the house, nearly four hours had elapsed

since the entry into the office building. In addition to the passage

of time, defendant was in his own home, without physical

restraints. The combination of the passage of time and the change

in venue from the office to his home lead the court to conclude that

any taint from the unlawful entry into the office building was

clearly removed by the time the agents searched the house.

Ce ee ee ee

OP ee ~

Me i al te ae a EE ay it

ih > aha 4s

a 2 ie oc

37a

fendant also asserts that Bradley’s affidavit does not

describe circumstances that would warrant a reason-

able person to believe that the articles sought would be

located at defendant’s home as opposed to another

“secure” location.

In determining whether probable cause supported

the issuance of a search warrant, we give “great

deference” to the decision of the issuing magistrate

or judge. We ask only whether the issuing magis-

trate or judge had a “substantial basis” for finding

probable cause:

The task of the issuing magistrate is simply to

make a practical, common sense decision

whether, given all of the circumstances set

forth in the affidavit before him . . . thereisa

fair probability that contraband or evidence of

a crime will be found in a particular place. And

the duty of the reviewing court is simply to

ensure that the magistrate had a substantial

basis for concluding that probable cause

existed.

United States v. Custumano, 83 F.3d 1247, 1250 (10th

Cir. 1996). In reviewing the sufficiency of the affidavit,

the court should not conduct a de novo review. See

United States v. Corral-Corral, 899 F.2d 927, 931 (10th

Cir. 1990).

The court has reviewed Agent Bradley’s affidavit in

support of the search warrant and finds that it gave the

magistrate judge sufficient information to determine

that there was “a fair probability” that child pornog-

raphy would be found at defendant’s house. The

affidavit states that a confidential informant had been

communicating via the Internet with an individual

38a

using the screen name AnnBoleyn and that the infor-

mant had traded child pornography with AnnBoleyn.

Agent Bradley informed the magistrate judge that he

had corroborated the information given to him by the

confidential informant. The affidavit details that

AnnBoleyn sent blank video tapes to the confidential

informant; the informant was then to record child

erotics on the tapes and send them back to AnnBoleyn

at an address in Norcross, Georgia. On July 2, 1996,

AnnBoleyn asked the informant if he had received the

blank tapes. The affidavit also indicates that

AnnBoleyn used the e-mail address: oaw@pm-atl-

port2.randomc.com*missy. Agent Bradley stated that

subscriber information obtained by subpoena showed

that this e-mail address was listed to defendant at his

home address. Further investigation revealed that de-

fendant maintained a private mailbox at the Norcross,

Georgia address given to the informant. Agent Bradley

reported that “there is reason to believe that

ANNBOLEYN will have a computer that is linked to the

Internet at his residence because he has communicated

with [the informant], via the Internet, primarily at

night ... .” Affiant’s Affidavit Under Seal at 12,

attached as Exhibit F to Defendant’s Motion to Sup-

press Evidence Seized from Defendant’s Place of Em-

ployment and Residence. As the agents seized items at

plaintiff’s house pursuant to a valid search warrant, the

court denies defendant’s motion to suppress this

evidence.

The final issue before the court concerns the state-

ment made by defendant to his wife that he had been

communicating on the Internet and the agents would

find child pornography at the house. This statement

was not made in response to any police questioning, but

Ai Se we eae, ate | ek rns i Ole ee

ee ee

39a

rather was spontaneously uttered by defendant in the

presence of Agent Bradley. “If a person voluntarily

speaks without interrogation by an officer, the Fifth

Amendment’s protection is not at issue, and the state-

ments are admissible.” United States v. Muniz, 1 F.3d

1018, 1022 (10th Cir.), cert. denied, 114 S. Ct. 575 (1993).

Defendant’s motion to suppress this statement is

therefore denied.

In sum, defendant’s Motion to Suppress Evidence

Seized from Defendant’s Place of Employment and

Residence is GRANTED in part and DENIED in part.

The evidence seized from defendant’s office is sup-

pressed; the evidence from his home pursuant to the

validly issued search warrant is not suppressed. De-

fendant’s Motion to Suppress Post-Custodial State-

ments of Defendant is GRANTED in part and DENIED

in part. The statements made to the agents during de-

fendant’s interrogation at the office are suppressed as

fruit of the poisonous tree. Defendant’s spontaneous

statement to his wife, which was uttered at the house

during execution of the search warrant, is not sup-

pressed.

It is so ordered this 5th day of August, 1997.

/s/ TIM LEONARD

TIM LEONARD

United States District Judge

40a

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

No. 97-6310

UNITED STATES OF AMERICA, PLAINTIFF-APPELLANT,

Vv.

JAMES S. ANDERSON, DEFENDANT-APPELLEE

[Filed: Dec. 1, 1998]

ORDER

Before: SEYMOUR, Chief Judge, PORFILIO, ANDER-

SON, TACHA, BALDOCK, BRORBY, EBEL, KELLY,

HENRY, BRISCOE, LUCERO and MURPHY, Circuit

Judges.

The appellant’s petition for rehearing is denied by

the panel that rendered the decision.

The suggestion for rehearing en banc was trans-

mitted to all of the judges of the court who are in

regular active service as required by Fed. R. App.

P. 35. A poll was requested and a majority of the active

4la

judges voted to deny rehearing en banc. Judges

Anderson, Tacha, Baldock, Ebel, and Kelly would grant

rehearing.

Entered for the Court

PATRICK FISHER,

Clerk of Court

by: /s) ARDELL SCHULER

ARDELL SCHULER

Deputy Clerk

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.