USA. v. Simons

• Citation: 206 F.3d 392
• Decision Date: 30 November 1999
• Docket Number: CR-98-375,No. 99-4238,99-4238
• Parties: (4th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MARK L. SIMONS, Defendant-Appellant. (). . Argued:
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

Page 392

206 F.3d 392 (4th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MARK L. SIMONS, Defendant-Appellant.

No. 99-4238 (CR-98-375).

UNITED STATES COURT OF APPEALS, FOR THE FOURTH CIRCUIT.

Argued: November 30, 1999.

Decided: February 28, 2000.

Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria.

James C. Cacheris, Senior District Judge.

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] COUNSEL ARGUED: Marvin David Miller, LAW OFFICES OF MARVIN D. MILLER, Alexandria, Virginia, for Appellant. G. David Hackney, Assistant United States Attorney, UNITED STATES ATTORNEY'S OFFICE, Alexandria, Virginia, for Appellee. ON BRIEF: Helen F. Fahey, United States Attorney, UNITED STATES ATTORNEY'S OFFICE, Alexandria, Virginia, for Appellee.

Before WILKINS and NIEMEYER, Circuit Judges, and Margaret B. SEYMOUR, United States District Judge for the District of South Carolina, sitting by designation.

Affirmed in part and remanded in part by published opinion. Judge Wilkins wrote the opinion, in which Judge Niemeyer and Judge Seymour joined.

OPINION

WILKINS, Circuit Judge:

Mark L. Simons appeals his convictions for receiving and possessing materials constituting or containing child pornography, see 18 U.S.C.A. § 2252A(a)(2)(A), (a)(5)(B) (West Supp. 1999). Simons, who received the unlawful materials at his government workplace via the Internet, argues that the district court erred in denying his motion to suppress. We affirm in part and remand in part.

I.

Simons was employed as an electronic engineer at the Foreign Bureau of Information Services (FBIS), a division of the Central Intelligence Agency (CIA). FBIS provided Simons with an office, which he did not share with anyone, and a computer with Internet access.

In June 1998, FBIS instituted a policy regarding Internet usage by employees. The policy stated that employees were to use the Internet for official government business only. Accessing unlawful material was specifically prohibited. The policy explained that FBIS would conduct electronic audits to ensure compliance:

Audits. Electronic auditing shall be implemented within all FBIS unclassified networks that connect to the Internet or other publicly accessible networks to support identification, termination, and prosecution of unauthorized activity. These electronic audit mechanisms shall . . . be capable of recording:

Access to the system, including successful and failed login attempts, and logouts;

Inbound and outbound file transfers;

Terminal connections (telnet) to and from external systems;

Sent and received e-mail messages;

Web sites visited, including uniform resource locator (URL) of pages retrieved;

Date, Time, and user associated with each event.

J.A. 125-26. The policy also stated that "[u]sers shall . . . [u]nderstand FBIS will periodically audit, inspect, and/or monitor the user's Internet access as deemed appropriate." J.A. 127.

FBIS contracted with Science Applications International Corporation (SAIC) for the management of FBIS' computer network, including monitoring for any inappropriate use of computer resources. On July 17, 1998, Clifford Mauck, a manager at SAIC, began exploring the capabilities of a firewall recently acquired by SAIC, because Mauck believed that SAIC needed to become more familiar with the firewall to service the FBIS contract properly. ¹ Mauck entered the keyword "sex" into the firewall database for July 14 and 17, 1998, and found a large number of Internet "hits" originating from Simons' computer. It was obvious to Mauck from the names of the sites that they were not visited for official FBIS purposes.

Mauck reported this discovery to his contact at FBIS, Katherine Camer. Camer then worked with another SAIC employee, Robert Harper, to further investigate the apparently unauthorized activity. Camer instructed Harper to view one of the websites that Simons had visited. Harper complied and found that the site contained pictures of nude women.

At Camer's direction and from his own workstation, Harper examined Simons' computer to determine whether Simons had downloaded any picture files from the Internet; Harper found over 1,000 such files. Again from his own workstation, Harper viewed several of the pictures and observed that they were pornographic in nature. Also at Camer's request and from his own workstation, Harper printed a list of the titles of the downloaded picture files. Harper was then asked to copy all of the files on the hard drive of Simons' computer; Harper accomplished this task, again, from his own workstation.

On or about July 31, 1998, two representatives from the CIA Office of the Inspector General (OIG), one of whom was a criminal investigator, viewed selected files from the copy of Simons' hard drive; the pictures were of minors. Later that day, Harper physically entered Simons' office, removed the original hard drive, replaced it with a copy, and gave the original to the FBIS Area Security Officer. The Security Officer turned it over to the OIG criminal investigator the same day.² This last assignment was the only one that required Harper to physically enter Simons' office.

On August 5, 1998, FBI Special Agent John Mesisca viewed over 50 of the images on the hard drive that had been removed from Simons' office; many of the images contained child pornography. Mesisca, Harper, the two OIG representatives, and Assistant United States Attorney Tom Connolly worked together to prepare an application for a warrant to search Simons' office and computer. An affidavit from Mesisca supported the warrant application. The affidavit stated, inter alia, that Simons had connected a zip drive to his computer.³ The affidavit also expressed a "need" to conduct the search in secret. J.A. 140.

The warrant was issued on August 6, 1998. It stated that the executing officers were to leave at Simons' office a copy of the warrant and a receipt for any property taken. The warrant mentioned neither permission for, nor prohibition of, secret execution.

Mesisca and others executed the search during the evening of August 6, 1998, when Simons was not present. The search team copied the contents of Simons' computer; computer diskettes found in Simons' desk drawer; computer files stored on the zip drive or on zip drive diskettes;⁴ videotapes; and various documents, including personal correspondence. No original evidence was removed from the office. Neither a copy of the warrant nor a receipt for the property seized was left in the office or otherwise given to Simons at that time, and Simons did not learn of the search for approximately 45 days.⁵ When Mesisca reviewed the computer materials copied during the search, he found over 50 pornographic images of minors.

In September 1998, Mesisca applied for a second search warrant. The supporting affidavit, like the affidavit that supported the August application, stated that Simons had connected a zip drive to his computer. The September affidavit described the August application as an application for a surreptitious search warrant.

A second search warrant was obtained on September 17, 1998 and executed on September 23, 1998, with Simons present. Original evidence was seized and removed from the office. The executors left Simons with a copy of the warrant and an inventory of the items seized.

Simons subsequently was indicted on one count of knowingly receiving child pornography that had been transported in interstate commerce, see 18 U.S.C.A. § 2252A(a)(2)(A), and one count of knowingly possessing material containing images of child pornography that had been transported in interstate commerce, see 18 U.S.C.A. § 2252A(a)(5)(B). Simons moved to suppress the evidence, arguing that the searches of his office and computer violated his Fourth Amendment rights. Following a hearing, the district court denied the motion. With regard to the warrantless searches, the district court first concluded that Simons lacked a legitimate expectation of privacy in his Internet use. The court nevertheless determined that, even if Simons did have a legitimate expectation of privacy, all of the warrantless searches satisfied the reasonableness requirement of the Fourth Amendment. The district court also upheld the warrant searches.

At a bench trial on stipulated facts, four computer picture files depicting child pornography were introduced as evidence of Simons' guilt. The district court found Simons guilty on both counts and sentenced him to 18 months imprisonment. Simons now appeals, maintaining that the district court erred in denying his motion to suppress.

Inexplicably, the record does not indicate which search or searches yielded the four computer picture files used against Simons at trial. Consequently, we are called upon to review the constitutionality of all of the searches. We consider first the warrantless searches, then turn to Simons' challenges to the searches conducted pursuant to the August search warrant.⁶

II.

The Fourth Amendment prohibits "unreasonable searches and seizures" by government agents, including government employers or supervisors. U.S. Const. amend. IV; see O'Connor v. Ortega, 480 U.S. 709, 715 (1987) (plurality opinion); id. at 730-31 (Scalia, J., concurring in the judgment). To establish a violation of his rights under the Fourth Amendment, Simons must first prove that he had a legitimate expectation of privacy in the place searched or the item seized. See Rakas v. Illinois, 439 U.S. 128, 143 (1978); United States v. Rusher, 966 F.2d 868, 873-74 (4th Cir. 1992). And, in order to prove a legitimate expectation of privacy, Simons must show that his subjective expectation of privacy is one that society is prepared to accept as objectively reasonable. See California v. Greenwood, 486 U.S. 35, 39 (1988).

Government employees may have a legitimate expectation of privacy in their offices or in parts of their offices such as their desks or...