Reply Brief — United States v. Anderson

supreme Court, U.S.

FILED

MAY 10 1999

No. 98-1583

Jn the Supreme Court of the Unite States

;

UNITED STATES OF AMERICA, PETITIONER

v.

JAMES S. ANDERSON

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

REPLY BRIEF FOR THE PETITIONER

SETH P. WAXMAN

Solicitor General

Counsel of Record

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

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TABLE OF AUTHORITIES

Cases: Page

Minnesota v. Carter, 1198. Ct. 469 (1998)... 4-5, 6,7

New York v. Class, 475 U.S. 106 (1986) ......cccccsccssssceceseeees 4

Rakas v. Illinois, 489 U.S. 128 (1978) .......cccccscsscesseceeseeses 4

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

cert. denied, 423 U.S. 826 (1975) ......c.ccccccsssesssessersscesesessecess 1

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

cert. denied, 498 U.S. 824 (1990) .......cccccccscossssssseccsssessesseee 2

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

1991), cert. denied, 504 U.S. 910 (1992) ......ccccsccsccccseeseseeee 2

Constitution:

RFit SIGNNs SRMIGING BY sicsaiabicsinnencsiiibeatiasiadsssdbediasanbin L23,4:7

Miscellaneous:

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

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In the Supreme Court of the Anited States

No. 98-1583

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

REPLY BRIEF FOR THE PETITIONER

Respondent argues that the court of appeals’ de-

cision—which allows him to claim the protection of the

Fourth Amendment in a vacant 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 con-

nection to it—is correct, factbound, and consistent with

the decisions of other courts of appeals and this Court.

None of those contentions is correct, and this Court’s

review is warranted.

1. The analysis of the decision below departs from a

long line of court of appeals decisions, beginning with

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

cert. denied, 423 U.S. 825 (1975), holding that an em-

ployee may claim a reasonable expectation of privacy

(1)

aan BS Ae ines eae re eg

2

only in those workplace areas with which he has a

sufficient “business nexus,” 7.e., generally speaking, the

employee’s own work areas. See Pet. 9-10 (citing, inter

alia, United States v. Chuang, 897 F.2d 646, 649 (2d

Cir.), cert. denied, 498 U.S. 824 (1990); and United

States v. Mohney, 949 F.2d 1397, 1404 (6th Cir. 1991),

cert. denied, 504 U.S. 910 (1992)). Respondent does not

dispute the existence or validity of that line of author-

ity. Nor does he disagree with Professor LaFave’s

observation that, “[i]Jn the absence of some other basis

for showing [a reasonable expectation of privacy, such

as a property interest in the area searched], it still

seems necessary to establish that the place searched

was rather directly connected with the defendant’s

employment responsibilities and activities.” 5 Wayne

R. LaFave, Search and Seizure § 11.3(d), at 164-165 (8d

ed. 1996).

Respondent likewise cites no decision of any court

permitting an employee to claim the protection of the

Fourth Amendment in a part of his employer’s place

of business that is wholly divorced from the employee’s

own work area and work responsibilities. See Pet. App.

20a-21a (Kelly, J., dissenting) (“It is telling that the

court cites no case involving a workplace where stand-

ing was found in the absence of such a nexus.”).

Instead, respondent asserts that the business nexus

cases from the other courts of appeals are distinguish-

able, since none is “similar to the particularized factual

locus framing the issues in this case.” Br. in Opp. 7.

But respondent nowhere describes those factual

differences, or explains how they make a difference in

the legal test to be applied. Nor does respondent

explain how the business nexus cases from the other

circuits can be reconciled with the result the court of

appeals reached here—that an employee or officer can

3

claim the protection of the Fourth Amendment in an

empty and otherwise unused office with which he had

no prior connection (much less a business nexus) simply

because he happened to be sitting there, attempting to

view child pornography from his own videotapes, when

an FBI agent entered. Pet. 12; Pet. App. 13a-14a.

2. For similar reasons, respondent’s attempt to dis-

miss the court of appeals’ decision as “fact-bound” (Br.

in Opp. 10; see id. at 5) is without merit. Respondent is

correct that a defendant’s capacity to claim the pro-

tection of the Fourth Amendment in a particular area

must be decided by reference to “all of the relevant

circumstances,” and that those circumstances may vary

from case to case. Br. in Opp. 9. See also id. at 8, 9 n.24.

But it is a function of the law to identify the circum-

stances that courts should consider relevant. Here, the

factors the court of appeals relied upon were irrelevant.

For example, rather than focus on respondent’s re-

lationship to the location searched, the court of appeals

relied primarily on respondent’s relationship to the

items in his possession (7.e., the videotapes from which

he was attempting to view child pornography). See

Pet. 12-15; Pet. App. 10a-13a, 15a; Pet. App. 22a-23a

(Kelly, J., dissenting). But, as we explained before (Pet.

13-15), the fact that respondent possessed and owned

the videotapes does nothing to enhance the significance

of his connection to the otherwise vacant and unused

room in which he was found. Respondent, for his part,

acknowledges that the court of appeals relied on his

ownership and possession of the videotapes as a basis

for permitting him to challenge the FBI’s entry into the

room. Br. in Opp. 9. But he offers no reason why his

ownership or possession of the videotapes should be

relevant.

4

Respondent also declines to defend the other factor

cited by the court of appeals—respondent’s efforts to

maintain his privacy by blocking the windows and

closing the door. See Pet. 16; Pet. App. 13a-14a.

“(E |fforts to restrict access to an area,” this Court has

held, “do not generate a reasonable expectation of

privacy where none would otherwise exist.” Pet. 16

(quoting New York v. Class, 475 U.S. 106, 114 (1986));

see also Pet. App. 24a (Kelly, J., dissenting) (“The steps

[respondent] took to ensure privacy [are] not enough

[to establish a reasonable expectation of privacy], no

matter how earnestly the steps were taken.”); Pet. 16-

17 (noting that, although the defendants in Minnesota

v. Carter, 119 S. Ct. 469 (1998), made efforts to pre-

serve their privacy by lowering the blinds, that conduct

played no part in the Court’s analysis of their capacity

to claim the protection of the Fourth Amendment).

Respondent does claim that the court of appeals

properly relied on the fact that he was present in the

room when the FBI agent entered. Br. in Opp. 9. This

Court, however, has long held that mere presence

during the search—the fact that the defendant was

“legitimately on premises”—is by itself insufficient.

Rakas v. Illinois, 489 U.S. 128, 141-143 (1978). Respon-

dent, moreover, concedes that his authority to enter

and use that room was conditioned on “need,” and

limited to “purposes which [he] felt as an officer of

the company were appropriate.” Br. in Opp. 3, 12.

Respondent, however, nowhere explains how the desire

to view child pornography could be a permissible

“need” for that vacant and unused office; nor does he

explain how entry and use for that purpose could be

“appropriate” within corporate policy.

3. Respondent’s attempt to reconcile the court of

appeals’ analysis with this Court’s decision in Min-

5

nesota v. Carter, 119 S. Ct. 469 (1998), see Br. in Opp.

11-12, similarly fails. Compare Pet. 17-19. Respondent

does not dispute that, in Carter, this Court accorded no

legal significance to any of the factors the court of

appeals found dispositive here, even though each of

them was present there as well. See Pet. 17." Indeed,

respondent concedes that, rather than examining the

defendant’s relationship to his possessions, his efforts

to preserve privacy, or his mere presence, as the court

of appeals did here, the Court in Carter instead

“assess[ed] whether the defendants * * * could claim

Fourth Amendment protections” by “focusing on the

significance of the connection between the defendants

and the location searched.” Br. in Opp. 7 n.17 (empha-

sis added).

Analysis of respondent’s connection to the location

searched in this case—the vacant and otherwise unused

office in which respondent was attempting to view child

pornography—shows that connection to be even more

attenuated than the connection the Court held to be

insufficient in Carter. Whereas the defendants in

Carter had been in the apartment for hours at the time

of the alleged search, 119 S. Ct. at 471, 473, respondent

had been in the room (a room with which he had no

prior connection) only a matter of minutes, Pet. App.

27a. Whereas the defendants in Carter had the

leaseholder’s permission to package narcotics there, 119

Just as respondent owned the videotapes at issue here, the

defendants in Carter owned the drugs at issue there; just as

respondent had the videotapes in his possession here, the de-

fendants in Carter had the drugs in their possession there; just as

respondent made efforts to prevent himself from being observed,

so too did the defendants in Carter; and just as respondent was

present during the search here, so too were the defendants in

Carter present during the alleged search there. Pet. 17.

6

S. Ct. at 471-472, respondent’s presence in the empty

office had no authorized business purpose. And, unlike

the apartment in which the Carter defendants were ob-

served, the office in which respondent was discovered

had a purely commercial function and in no sense

functioned as a home. Surely if the Carter defendants’

connection to the apartment where they had been

packaging narcotics for two-and-one-half hours was too

insubstantial to give rise to a reasonable expectation of

privacy, then respondent’s minutes-long connection to

the empty and vacant office where he was attempting

to view child pornography—a connection perilously

close to mere presence—must be insufficient as well.

Declaring that “(t]he distinction between Respondent

and the defendants in Carter is obvious,” respondent

argues that he had a sufficient connection to room 222

because it was “clearly within the confines of the cor-

porate offices within which Respondent worked on a

daily basis.” Br. in Opp. 12. But even the court of

appeals refused to conclude that respondent’s privacy

expectation in an empty and unused room was rea-

sonable simply because it was within his employer’s

corporate building and he was an officer of the com-

pany. Pet. App. 8a. Nor is it possible to reconcile such

an argument with the law of other circuits. See Pet. 9-

10 (cases holding that employees must show not only

that the location searched was within their place of

employment, but also that they had a substantial

business connection to it); pp. 1-2, supra (same).

4. Finally, respondent argues that this case does not

warrant this Court’s review because the evidence of

respondent’s guilt is more than sufficient even with-

out the evidence that was suppressed. See Br. in Opp.

14 (“Petitioner will be able to present to the jury the

numerous child pornography files and materials ob-

7

tained from Respondent’s home in addition to Re-

spondent’s admission to his wife.”). But the court of

appeals’ decision warrants plenary review, or a remand

for further consideration in light of Minnesota v.

Carter, supra (see Pet. 20), not merely because of its

impact in this one case. Rather, it warrants review

because it parts company with the mode of analysis

employed by this Court and other courts of appeals;

because it introduces unnecessary uncertainty into this

area of law; and because it improperly expands Fourth

Amendment protections in the workplace, potentially to

any employee who enters a room at his employer’s

place of business, possessions in hand, and closes the

door behind him. See Pet. App. 22a (Kelly, J., dis-

senting).

* * a * *

For the foregoing reasons, and those set forth in the

petition, the petition for a writ of certiorari should be

granted.

Respectfully submitted.

SETH P. WAXMAN

Solicitor General

MAY 1999