Opposition Brief — United States v. Anderson

FILED

MAR 28 1999

CLERK

No. 98-1583

IN THE

Supreme Court of the United States

OcTOBER TERM, 1998

UNITED STATES OF AMERICA,

Petitioner,

v.

JAMES S. ANDERSON,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Tenth Circuit

RESPONDENT?’S BRIEF IN OPPOSITION

FRANK J. PETRELLA

Attorney for Respondent

2302 Brockett Road

Tucker, Georgia 30084

(770) 414-1092

152691 @ Counsel Press LLC

FORMERLY LUTZ APPELLATE SERVICES

(800) 274-3321 + (800) 359-6859

QUESTION PRESENTED

Whether a corporate officer (who is also an employee

of the corporation) may claim the protection of the Fourth

Amendment against the unreasonable search of an office in

which he was physically located at his place of business

during an extended holiday weekend when the offices were

closed to the general public, no other employees or third

parties were present, all exterior doors were locked, and

although the office was not the employee’s regularly

assigned workspace, it was located in close proximity to

the employee’s office and the employee clearly undertook

actions to exclude all other persons from that office?

TABLE OF CONTENTS

Page

CU POON go nk 6 ae ae ek ce Lee ees I

og fe pp rer yan ring il

TOUR OF COG AMOI ics ccs e ccd den dias iil

Statement of the Proceedings ............5.065: l

DOORS OF GOO ROD ooiicc decked aseckhcansce 2

Reasons for Denying the Writ ..........6.0.. 5

I. Respondent Adequately Established A Fourth

Amendment Right Of Privacy ........... 6

Il. The Court Of Appeals’ Decision Is

Reconciled With This Court’s Opinion In

Minnen0te ¥. COP oes Oe Sake 1]

III. The Court Of Appeals’ Decision Does Not

Warrant This Court’s Attention .......... 13

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TABLE OF CITED AUTHORITIES

Page

Cases:

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

ee fo. bt, > ere ere ere 9

Minnesota v. Carter, _U.S. _,, 119 S. Ct. 469

ES +666 GA Sb ORK DONS Oe 55% 8 5, ©, 7, fs bis hae be

Minnesota v. Olson, 495 U.S. 91, 110 S. Ct. 1684,

Sak Se RUD 6 kak oS be ved sescedee'’s 6

New York v. Burger, 482 U.S. 691, 107 S. Ct. 2636,

ee PEED cop yegacs Kens eae anes 7

O'Connor v. Ortega, 480 U.S. 709, 107 S. Ct. 1492,

eee ee FEMME E ED keane sacevev neve 7,8

Oliver v. United States, 466 U.S. 170, 104 S. Ct.

See tis ls Od EOS) coed ces eceeuess 9

Rakas v. Illinois, 439 U.S. 128, 99 S. Ct. 421, 58

Se I COT ee ew eam ae oie oa os 6

Rawlings v. Kentucky, 448 U.S. 98, 100 S. Ct. 2556,

ee ee CSOD oy v cc cae 2 ork oad 9046s 6

Statutes:

CNet BERRY 6 bw ic a's Ned eaa ele eess l

Rie Pea, bos oes: rrr

Cited Authorities

Page

United States Constitution:

ot rey ere ne i, © ¥, td 89

Rules:

Federal Rules of Criminal Procedure 12 ......... l

Federal Rules of Criminal Procedure 12.2 ....... |

l

STATEMENT OF THE PROCEEDINGS

A federal grand jury sitting in the Western District of

Oklahoma named Respondent in a three-count indictment alleging

violations of the child pornography statutes.' The indictment was

the culmination of an undercover reverse sting operation conducted

by the Federal Bureau of Investigation in Oklahoma City,

Oklahoma.’ Pursuant to Rule 12 of the Federal Rules of Criminal

Procedure, Respondent filed a pre-trial motion to suppress a

confession and a warrantless seizure of evidence from his place

of employment at the time of his arrest.’ Following a hearing before

the district court,’ evidence seized from Respondent’s place of

employment and the confession were ordered suppressed.°

1. Respondent is accused of knowingly receiving and distributing

child pornography on the Internet [Title 18, United States Code, Section

2252(a)(2)(b)] and two counts of knowingly transporting and shipping

child pornography [Title 18, United States Code, Section 2252(a)(1)].

2. Respondent, communicating with individuals in various cities in

this country via the Internet, was a resident of the Atlanta, Georgia area.

3. Inter alia, Respondent filed a pre-trial notice of intent to assert

insanity at the time of the offense pursuant to Rule 12.2 of the Federal

Rules of Criminal Procedure.

4. References to the transcript of that proceeding are denominated

by the citation “Tr.”

5. At the time arresting agents illegally entered Respondent's place

of employment, they physically possessed a search warrant for

Respondent’s home. Following his arrest, Respondent was driven by the

arresting agents to his home. Execution of that warrant at the residence

resulted in the seizure of numerous computer disks containing child

pornography and the overheard conversation of Respondent stating to his

wife that child pornography would be found on his home computer. The

district court denied a motion to suppress the items seized from the home

and the statement overheard by the agents. In the suppression order, the

district court opined that the agents may have had sufficient information

to obtain a search warrant for the office when they requested the warrant

for the house. (Pet. App. 35a, fn. 6)

9

~

Petitioner appealed the suppression order to the Tenth Circuit

Court of Appeals, where the district court was affirmed.

STATEMENT OF THE CASE

During the 1996 Fourth of July veekend, Respondent was

employed as the corporate vice-president of research and

development for A.D.T. Corporation, a manufacturing company

in Atlanta, Georgia.®° Respondent possessed a key for gaining

entrance to the building and had on-going corporate permission

to be in that building as he desired. On the day of his arrest,

Respondent went to the corporate offices where he had an

individual office.’ Respondent entered using a key card. Once

inside the building, the outside door automatically locked behind

him. The facility was empty of any other employees or third

parties. (Tr. 8)

Shortly after entering the office building, Respondent was

arrested in Room 222.

Room 222 had a single door and it had two windows.

One of the windows was closed with a combination of

venetian blinds and curtains. The second window was

closed by curtains only. The second window that was

closed by curtains was a narrow tall window. (Tr. 9)*

6. As vice president of research and development, Respondent was

responsible for the “development of new products, new technologies, and

the support of existing products and technologies.” (Tr. 6)

7. The arrest took place on the Saturday of a four day holiday

weekend. The offices were closed at that time to the public. Respondent's

personal office was located on the second floor in Suite 218. A chart of

the A.D.T. offices was identified during the suppression hearing. When

asked if he had “open permission” to be in the building whenever he

needed, Respondent replied that as “an officer of the company, I have the

right to be there.” (Tr. 12)

8. Room 222 was located on the same floor as Respondent’s office

and was situated down a short hallway on the other side of a conference

room.

3

Respondent also placed a towel over the draperies to prevent any

third-party from looking into the room. (Tr. 10-11) The door to Room

222 was “personally” closed by Respondent. Respondent felt that he

had an expectation of privacy in Room 222 that morning. (Tr. 11)

Respondent had a card key for the entire premises and possessed a

master key that allowed him entry into any locked office except the

president’s office. Company policy permitted Respondent as a

corporate officer to enter any area of the office “[o]n a matter of need.”

(Tr. 13) Room 222 was a vacant room which had “no use at all.” Jd.’

Company policy allowed Respondent to be in the corporate building

for “purposes which I felt as an officer of the company were

appropriate.” /d.

In order to support the warrantless entry and seizure of evidence,

Petitioner presented the testimony of Oklahoma City F.B.}. Case Agent

Joseph Bradley. On July 5, 1996, while located in Atlanta, Bradley

obtained a federal search warrant for Respondent’s residence. Agents

deployed a “reverse sting” and arranged for blank video tapes

supposedly containing child pornography to be sent to Respondent

by a cooperating individual located in Oklahoma. Due to a logistics

problem, a scheduled controlled delivery of the blank video tapes

was delayed until July 6th, a Saturday. Surveillance was resumed on

Saturday and Respondent was seen driving from his home to the Mail

Box, Etc. location to claim his package.'® The agents anticipated that

he would proceed to his residence; instead, agents followed

Respondent to the A.D.T. Corporation offices and observed

Respondent enter the facility. (Tr. 29; 30)'' Agent Bradley repeatedly

9. Although having no specific purpose, Room 222 was selected by

Respondent that morning as the location to utilize a company-owned

television cart, television, and video-recorder to view the tapes. At the

time of his arrest, Room 222 was specifically used by Respondent as a

haven of privacy in his corporate office work space.

10. At the time Respondent picked up the package, the agents

physically possessed a federal search warrant for Respondent’s home.

11. Although not knowing if Respondent used a key to enter the

building, none of the agents reported to Bradley as the case agent that

(Cont'd)

4

knocked on the door but received no answer. The agents activated

a siren on a bureau car in the parking lot to which there was again

no response.'* A decision was made to enter the building “through

the front door” and three agents including Bradley entered the

second floor of the facility.'* Neither Bradley nor the other agents

located Respondent during their first sweep of the building.

Retracing their steps, Bradley saw a light emanating from under a

i closed door “so I went right in the room.” (Tr. 33) When he

approached the room, the door was closed. A narrow window next

; (Cont'd)

they found any evidence of illegal entry into the corporate offices. Based

upon Agent Bradley’s own observations, “there did not appear to be any

illegal entry [by Anderson].” (Tr. 55; 56)

12. Petitioner makes no attempt to argue that exigent circumstances

existed for the warrantless break-in by arresting agents. The Sixth Circuit,

in agreement with the district court, found exigent circumstances to have

been particularly lacking. (Pet. App. 18a) “As an additional matter, we are

concerned with the potential for government manipulation under the facts

of this case.” (Pet. App. 19a)

13. The district court inquired if the front door was unlocked. Agent

Bradley acknowledged that the door was locked. When asked how entry

was gained to the building, Agent Bradley stated “I retracted the dead

bolt.” (Tr. 32) On cross-examination, Agent Bradley was simply unable

to admit that the agents gained access into the A.D.T. offices through forced

entry:

Q. And I believe your testimony was that you retracted the

dead bolt?

A. Yes, sir... I used my knife to retract the dead bolt and

open the door.

: Q. In other words, you broke in, all intensive [sic] purposes

i you broke in?

A. I used my knife to retract the lock, and I opened the door.

(Tr. 63-64)

Se pense ts pes - euws “—> -

5

to the door had a towel placed over it from the inside of the room.

Bradley’s view into the room was obstructed and observation into

the room was difficult. When he first opened the door, Bradley

was not sure if Respondent was in the room. Upon entering the

room, Bradley discovered Respondent sitting in a chair. The only

items in the room were a cart holding a television and VCR, the

box containing the controlled delivery video tapes, and a video

tape in the machine.'* The room was otherwise empty and no name

appeared on the door.'* At that point, Agent Bradley identified

himself and placed Respondent under arrest. The agents seized

the controlled delivery video tapes, computer related items from

Respondent’s office, computer disks containing child pornography,

and obtained a confession from Respondent.

REASONS FOR DENYING THE WRIT

ae Re ne a eo AL Ne! 2 tc eMC ele aaa IG ceil

As detailed below, there is no cause for this Court to review

! the fact-bound contentions of Petitioner which have now been

) rejected by the district court, a panel of the Tenth Circuit Court of

Appeals, and the refusal of the en banc appellate court to grant

relief. The court of appeals’ decision is correct, does not

improperly expand the ability of an employee to claim the

protection of the Fourth Amendment in his workplace, and does

not depart from the analysis employed by other courts of appeals

or the recent pronouncement of this Court in Minnesota v. Carter,

___ U.S. _, 119 S. Ct. 469 (1998).

14. When questioned, Respondent told Bradley that the VCR and

chair had been obtained from an adjacent conference room. (Tr. 35)

15. Subsequent to the date of Respondent’s arrest, Bradley

| interviewed the president of A.D.T. Corporation, William Ragland.

| Ragland told Bradley that the room in which Respondent was arrested

was not used for any particular reason but that it was a room “where

: Respondent would have felt quite safe there . . . so that if he was going to

go to that part of the building to view child pornography, that he would

feel safe there.” (Tr. 71; 72)

| FES Se cn ane ENNIO ,

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I.

RESPONDENT ADEQUATELY ESTABLISHED A

FOURTH AMENDMENT RIGHT OF PRIVACY

The Fourth Amendment 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,

supported by Oath or affirmation, and particularly

describing the place to be searched, and the persons or

things to be seized.

The extent to which the Fourth Amendment protects people “may

depend upon where those people are.” Minnesota v. Carter,

__ U.S. _, 119 S. Ct. 469, 473 (1998). The capacity of an

individual to claim Fourth Amendment protection is dependent

upon whether the person claiming that protection of the

Amendment has a legitimate expectation of privacy in the invaded

place. Rakas v. Illinois, 439 U.S. 128, 143, 99 S. Ct. 421, 58

L. Ed. 2d 387 (1978); Rawlings v. Kentucky, 448 U.S. 98, 106,

100 S. Ct. 2556, 65 L. Ed. 2d 633 (1980); Minnesota v. Olson,

495 U.S. 91, 110 S. Ct. 1684, 109 L. Ed. 2d 85 (1990).

[I]n order to claim the protection of the Fourth

Amendment, a defendant must demonstrate that he

personally has an expectation of privacy in the place

searched, and that his expectation is reasonable, i.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, supra, at 472 (1998).

ee ae ae ee ee ee ee ee

7

Property utilized for commercial purposes has been

distinguished from and given different treatment for Fourth

Amendment purposes than residential properties.'® This Court has

mandated that “in some circumstances, a worker can claim Fourth

Amendment protection over his own workplace.” Minnesota v.

Carter, supra, at 474, citing, O’Connor v. Ortega, 480 U.S. 709,

107 S. Ct. 1492, 94 L. Ed. 2d 714 (1987)."

It has been the consistent position of Petitioner in this case

that Respondent has no legitimate expectation of privacy in Room

222 because he cannot show a “business nexus” to the premises

searched.'® Indeed, the cases cited by Petitioner both before the

court of appeals and this Court involve the expectation of privacy

of a worker in the workplace.'? None of the cases cited by

Petitioner, however, are similar to the particularized factual locus

framing the issues in this case. Petitioner admits as much.”

16. “An expectation of privacy in commercial premises, however, is

different from, and indeed less than, a similar expectation in an individual's

home.” New York v. Burger, 482 U.S. 691, 700, 107 S. Ct. 2636, 96

L. Ed. 2d 601 (1987).

17. In assessing whether the defendants in Carter could claim Fourth

Amendment protections, this Court focused on the significance of the

connection between the defendants and the location searched. /d.

18. Actually, Petitioner couched its arguments in the district court

and the court of appeals in terms of Respondent being unable to establish

“standing” to raise a Fourth Amendment violation.

19. Petitioner recognizes that courts of appeals

have generally held that individuals can claim the protection

of the Fourth Amendment in those workplace areas with which

they have a sufficient connection to give rise to a socially

recognized privacy expectation...

[Pet. Br. at 9]

20. “These cases have arisen in context that in some respects differ

from the facts here.” [Pet. Br. at 10. fn 3]

8

The Tenth Circuit had little difficulty concluding that

Respondent had a subjective expectation of privacy in Room 222.*!

The court of appeals recognized, however, that the primary focus

of the issue was not Respondent’s subjective expectation of privacy

but whether that expectation of privacy in the area searched was

reasonable under the circumstances.” Focusing on the significance

of the connection of Respondent to Room 222,” the court of

appeals acknowledged that in 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.” [citing, O'Connor v. Ortega,

supra, at U.S. 718.] (Pet. App. 7a) The court of appeals endorsed

the “business nexus” test to the extent that an employee enjoys a

reasonable expectation of privacy in “his workspace.” “Business

nexus” was not viewed to be a panacea in this case:

21. 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 believed

he would be alone and left undisturbed. Accordingly, we

conclude Anderson had a subjective expectation of privacy

in Room 222.

(Pet. App. 7a).

22. Within the workplace this Court has recognized that in a private

(as opposed to a government) office, a defendant could expect he would

not be disturbed in the workplace except by personal business invitees

and personal effects would not be taken except with his permission or the

permission of his supervisors. See O’Connor v. Ortega, 480 U.S. 709,

717, 107 S. Ct. 1492, 94 L. Ed. 2d 714 (1987).

23. “Therefore, we must determine to what extent an employee has

standing to challenge the search of an area in his workplace that is not his

office.” (Pet. App. 8a)

9

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

approach is to examine all of the circumstances of the

working environment and the relevant search.”

The Tenth Circuit looked to additional factors.** The court gave

weight to the personal nature of the items seized from Respondent

(Pet. App. 10a); ownership, lawful possession, or lawful control

of the property or place searched (Pet. App. 11a); the immediacy

of control over items seized “regardless of the business connection

he may or may not have to the room where the items are found”

(Pet. App. 13a); and the physical presence of Respondent at the

time of the search. (/d.).

Reduced to its simplest components, the court of appeals did

not limit its analysis to the “business nexus” test as requested by

Petitioner, but considered what the court of appeals considered to

be “all of the relevant circumstances.” The ruling of the court of

appeals clearly reflected an analysis based upon Respondent’s

24. Pet. App. 9a, citing, Mancusi v. Deforte, 392 U.S. 364, 368, 88

S. Ct. 2120, 20 L. Ed. 2d 1154 (1968). See also Oliver v. United States,

466 U.S. 170, 177, 104 S. Ct. 1735, 80 L. Ed. 2d 214 (1984): “No single

factor determines whether an individual may claim under the Fourth

Amendment that a place should be free of government intrusion not

authorized by warrant.”

25. [Wle find the “business nexus” test problematic in that it

does not take into account any actions the 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 employee 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.

(Pet. App. 13a)

10

connection to the place seized but felt that due to the circumstances

presented in this uniquely fact-bound case, additional factors were

to be reviewed.”

Application of Minnesota v. Carter to the instant matter does

not require a different result.’ Unlike the criminal defendants in

Carter, this case does not present this Court with a transient visitor

to a “workplace”** who had only a fleeting or insubstantial

connection to the office. Respondent was a corporate officer,

entitled to be anywhere in the suite of offices with the exception

of the office of the president of the corporation. Room 222 was

located a relatively short distance from his own office.” At the

time of his entry into the corporate offices and later Room 222,

Respondent was in lawful custody and control of the office

building and had the right to exclude others, especially federal

law enforcement agents, from unlawfully breaking into the

premises and invading the privacy haven he had established in

Room 222.

26. In Carter, this Court looked at the purely commercial nature of

the trensaction, the relatively short period of time the defendants were

located on the premises, and the lack of previous connection between the

defendants and the place searched.

28. The defendants in Minnesota v. Carter were short-term visitors

to an apartment with no significant legitimate connection to the premises

searched. Carter, supra, at 479. (Kennedy, J., concurring).

29. Room 222 was described as an 8 x 10 room. A floor plan of the

second floor of the corporate offices admitted during the suppression

hearing does not indicate the precise dimensions or distances between

Room 218 [Respondent’s office] and Room 222. Extrapolating the

available information, however, indicates that the distance between the

rooms would be approximately fifty (50) feet, including the dimensions

of the conference room from which Respondent obtained the television

cart and other electronic equipment.

a inmeeieeiiaicaiaiiiaieaiiaal

1]

Il.

THE COURT OF APPEALS’ DECISION IS RECONCILED

WITH THIS COURT’S OPINION IN

MINNESOTA v. CARTER

Petitioner argues that the court of appeals’ decision is

“particularly difficult” to reconcile with the reasoning of this

Court’s opinion of Minnesota v. Carter, supra. (Pet. Br. at 17)

Respondent recognizes that the defendants in Carter were present

in the home of a third person for approximately two and one-half

hours for the sole business purpose of packaging narcotics. Those

defendants were not found to enjoy a legitimate expectation of

privacy in the home. The particularized facts of this case must be

viewed, however, in their entirety. Respondent had a significant

connection to the ADT offices and the workspace of Room 222.

Unlike the defendants in Carter, Respondent was an employee

and corporate officer of ADT and had a long-standing business

relationship and connection to the company. As corporate vice

president in charge of research and development, he was in charge

of an important division of the corporation. Respondent had a card

key which allowed him access to the building and a master key

granting him lawful access into and control over all individual

offices in the building except the office of corporate president.*°

Although the corporate offices consisted of two floors, Respondent

entered the building on the second floor, the floor where his

individual office was located. Respondent’s office, Room 218,

was physically located approximately fifty (50) feet away from

Room 222. Although Room 222 was described as having no

specified purpose, Respondent sought to use Room 222 as the

location within which to place the television cart and video

equipment for the purpose of viewing the video tapes which he

30. The right of Respondent to gain access to the building during an

extended holiday weekend clearly evidences Respondent's right to enter

the building at his desire and will. In light of the inability of the surveilling

agents to legally enter the building through any of the outer doors, it is

clear that Respondent had the right to exclude others in addition to his

legal possession of the premises for the time he was present.

12

had received. Company policy allowed Respondent access to any

area of the office “[o]n a matter of need” and company policy

further allowed him to be in the building for any purpose which

Respondent felt was appropriate. (Tr. 13; 14) Respondent

obviously felt his use of Room 222 for his personal viewing of

the tapes on a Saturday morning of an extended holiday weekend

and at a time when the office was closed and no other employees

or third-parties were present reflects a significant connection to

the premises and Room 222. The television cart and monitor were

purposefully moved into that room by Respondent, the door was

closed, and particularized deliberate actions were taken to ensure

that no other person could intrude into the privacy haven created

by Respondent as to that room. Although described as vacant,

Room 222 was located within the workplace in near proximity to

Respondent’s own office, clearly within the confines of the

corporate oifices within which Respondent worked on a daily

basis, and was fully operational [with electricity and lighting]

allowing Respondent to operate the television and video

equipment.

The distinction between Respondent and the defendants in

Carter is obvious. As an employee and corporate officer of the

corporation owning and operating the premises, Respondent had

a significant connection to the workplace and Room 222 so as to

be afforded Fourth Amendment protections. When asked by

investigating agents why Respondent would have selected Room

222 as a location within which to view the tapes, the corporate

president stated that the room was a location where Respondent

would feel safe. The decision to select and utilize Room 222 as a

safe haven that morning was a deliberate, conscious choice of

Respondent and was based upon its convenience, locale, and utility

to Respondent under the circumstances. Respondent enjoyed

Fourth Amendment protection in Room 222 which was properly

recognized by the court of appeals.

on ace caret vasa lili

a3

Il.

THE COURT OF APPEALS’ DECISION DOES NOT

WARRANT THIS COURT’S ATTENTION

A close review of the opinion of the court of appeals reveals that

its decision was in full comport with prior opinions of this Court and

the decisions of other courts of appeals. If the decision in any way

“parts company with a mode of analysis” (Pet. Br. at 19) employed

in other cases, that situation would be the result of the court of appeals

reviewing and assessing the particularized facts of the instant case.

All questions of whether a defendant enjoys Fourth Amendment

substantive protections must be determined on a case-by-case basis.

Contrary to the argument of Petitioner, unnecessary uncertainty has

not been introduced into this area of the law because the fact intensive

determination of the decision limits any general application of the

instant matter to other cases.*!

In light of this Court’s recent pronouncement in Minnesota v.

Carter, supra, the court of appeals decision does not improperly

expand the Fourth Amendment’s protections in the workplace. The

court of appeals simply recognized and afforded Fourth Amendment

protections to an individual who had a legitimate expectation of

privacy in his workplace.

As to Petitioner’s argument that failure of this Court to grant the

writ will result in the trier of fact in this case being deprived of relevant

and reliable evidence and the search for truth at trial will be impeded,

Respondent simply replies that had the agents properly conducted

themselves on the day in question, that evidence would be

forthcoming.*? When this matter is finally presented to a jury,

31. Neither Petitioner nor Respondent can provide this Court with a

case “on all fours” due to the particular, unique factual fact pattern present

in this case. In light of the court of appeals’ proper analysis in this case,

Respondent would suggest that based up that fact alone, certiorari review

is unnecessary.

32. As noted by the district court, the arresting agents had several

options available to them other than breaking into the building. They could

(Cont'd)

LK

14

Petitioner will be able to present to the jury the numerous child

pornography files and materials obtained from Respondent’s home

in addition to Respondent’s admission to his wife that he had been

communicating on the Internet and child pornography would be

found on their home computer. The truth-finding mission of the

trial will not be impeded and this Court’s plenary review powers

need not be invoked.

CONCLUSION

The granting of the petition, vacating the judgment below,

and remanding for reconsideration are unnecessary and will result

in a depletion of valuable judicial resources. The petition should

be denied.

Respectfully submitted,

FRANK J. PETRELLA

Attorney for Respondent

2302 Brockett Road

Tucker, Georgia 30084

(770) 414-1092

(Cont'd)

have applied for a search warrant, they could have waited for Respondent

to exit the building and effectuate an arrest, or they could have sort

permission of the corporate president to gain entry into the corporate

premises. (Pet. App. 35a) The agents opted for their own course of illegal

and unreasonable governmental action. The actions of the agents

constituted an unlawful breaking and entering of the premises and their

actions should not be condoned.