U.S. v. Ziegler

• Decision Date: 30 January 2007
• Docket Number: No. 05-30177.,05-30177.
• Citation: 474 F.3d 1184
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jeffrey Brian ZIEGLER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

474 F.3d 1184

UNITED STATES of America, Plaintiff-Appellee, v. Jeffrey Brian ZIEGLER, Defendant-Appellant.

No. 05-30177.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 6, 2006.

Filed January 30, 2007.

David F. Ness, Assistant Federal Defender, Great Falls, MT, argued the cause for the defendant-appellant. Anthony R. Gallagher, Federal Defender, District of Montana, was on the briefs.

Marcia Hurd, Assistant United States Attorney, Billings, MT, argued the cause for the plaintiff-appellee. William W. Mercer, United States Attorney, District of Montana, was on the brief.

Appeal from the United States District Court for the District of Montana; Richard F. Cebull, District Judge, Presiding. D.C. No. CR-03-00008-RFC.

Before: O'SCANNLAIN, SILVERMAN, and GOULD, Circuit Judges.

ORDER

The petition for panel rehearing is GRANTED. The opinion filed on August 8, 2006, is withdrawn. The superseding opinion will be filed concurrently with this order. Further petitions for rehearing or rehearing en banc may be filed.

OPINION

O'SCANNLAIN, Circuit Judge:

We must determine whether an employee has an expectation of privacy in his workplace computer sufficient to suppress images of child pornography sought to be admitted into evidence in a criminal prosecution. If there is such an expectation, we must determine whether the search in this case was reasonable under the narrow exceptions to the Fourth Amendment's warrant requirement.

I

A

Frontline Processing ("Frontline"), a company that services Internet merchants by processing on-line electronic payments, is located in Bozeman, Montana.¹ On January 30, 2001, Anthony Cochenour, the owner of Frontline's Internet-service provider and the fiancé of a Frontline employee, contacted Special Agent James A. Kennedy, Jr. of the FBI with a tip that a Frontline employee had accessed child-pornographic websites from a workplace computer.

Agent Kennedy pursued the report that day, first contacting Frontline's Internet Technology ("IT") Administrator, John Softich. One of Softich's duties at Frontline was to monitor employee use of the workplace computers including their Internet access. He informed Kennedy that the company had in place a firewall, which permitted constant monitoring of the employees' Internet activities.²

During the interview, Softich confirmed Cochenour's report that a Frontline employee had accessed child pornography via the Internet. Softich also reported that he had personally viewed the sites and confirmed that they depicted "very, very young girls in various states of undress." Softich further informed Kennedy that, according to the Internet Protocol address and log-in information, the offending sites were accessed from a computer in the office of Appellant Jeffrey Brian Ziegler, who had been employed by Frontline as director of operations since August 2000. Softich also informed Kennedy that the IT department had already placed a monitor on Ziegler's computer to record its Internet traffic by copying its cache files.³

Agent Kennedy next interviewed William Schneider, Softich's subordinate in Frontline's IT department. Schneider confirmed that the IT department had placed a device in Ziegler's computer that would record his Internet activity. He reported that he had "spot checked" Ziegler's cache files and uncovered several images of child pornography. A review of Ziegler's "search engine cache information" also disclosed that he had searched for "things like `preteen girls' and `underage girls.'" Furthermore, according to Schneider, Frontline owned and routinely monitored all workplace computers. The employees were aware of the IT department's monitoring capabilities.

B

The parties dispute what happened next. According to testimony that Softich and Schneider provided to a federal grand jury, Agent Kennedy instructed them to make a copy of Ziegler's hard drive because he feared it might be tampered with before the FBI could make an arrest. Agent Kennedy, however, denied that he directed the Frontline employees to do anything. According to his testimony, his understanding was that the IT department had already made a backup copy of Ziegler's hard drive. As the government points out, his notes from the Softich interview say, "IT Dept has backed up JZ's hard drive to protect info." Thinking that the copy had already been made, Kennedy testified that he instructed Softich only to ensure that no one could tamper with the backup copy.

Whatever Agent Kennedy's actual instructions, the Frontline IT employees' subjective understanding of that conversation seems evident from their actions during the late evening of January 30, 2001. Around 10:00 p.m., Softich and Schneider obtained a key to Ziegler's private office from Ronald Reavis, the chief financial officer of Frontline, entered Ziegler's office, opened his computer's outer casing, and made two copies of the hard drive.

Shortly thereafter, Michael Freeman, Frontline's corporate counsel, contacted Agent Kennedy and informed him that Frontline would cooperate fully in the investigation. Freeman indicated that the company would voluntarily turn over Ziegler's computer to the FBI and thus explicitly suggested that a search warrant would be unnecessary.⁴ On February 5, 2001, Reavis delivered to Agent Kennedy Ziegler's computer tower (containing the original hard drive) and one of the hard drive copies made by Schneider and Softich. Schneider delivered the second copy sometime later. Forensic examiners at the FBI discovered many images of child pornography.

C

On May 23, 2003, a federal grand jury handed down a three-count indictment charging Ziegler with receipt of child pornography, in violation of 18 U.S.C. § 2252A(a)(2); possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B); and receipt of obscene material, in violation of 18 U.S.C. § 1462.⁵ At arraignment, Ziegler entered a plea of not guilty.

Ziegler filed several pretrial motions. At issue here is Ziegler's April 23, 2004, motion to suppress the evidence obtained from the search of Ziegler's workplace computer. Ziegler argued that Agent Kennedy, lacking a warrant, violated the Fourth Amendment by directing the Frontline employees to enter his private office and to search his computer. The government argued that the search was voluntary and therefore private in nature.

On August 10, 2004, the district court held a suppression hearing at which Agent Kennedy and Schneider testified.⁶ Agent Kennedy, several times, denied that he instructed Softich and Schneider to make a copy of Ziegler's hard drive or to undertake any search in addition to what the employees had already done. Schneider, however, again testified that Kennedy directed him to make a copy of the hard drive. Schneider's account was also reflected in a time-line he had prepared for Kennedy.⁷

On September 8, 2004, the district court entered a written order denying Ziegler's motion to suppress. Importantly, the court made the factual finding that "Agent Kennedy contacted Softich and Schneider on January 30, 2001 and directed them to make a back-up of Defendant's computer files." (emphasis added). However, citing United States v. Simons, 206 F.3d 392 (4th Cir.2000), the court ultimately held that Ziegler had no reasonable expectation of privacy in "the files he accessed on the Internet" and therefore denied Ziegler's motion.

Ziegler subsequently entered into a written plea agreement with the government. Pursuant to the agreement, the government agreed to dismiss the child pornography counts in exchange for Ziegler's agreement to plead guilty to the receipt of obscene material. The parties conditioned the plea agreement on Ziegler's ability to appeal the district court's denial of the pretrial motions, including the motion to suppress. A change of plea hearing occurred on September 24, 2004.

On March 4, 2005, the district court sentenced Ziegler to a two-year term of probation and imposed a fine of $1,000. Ziegler timely filed a notice of appeal.

II

Ziegler's sole contention on appeal is that the January 30, 2001, entry into his private office to search his workplace computer violated the Fourth Amendment and, as such, the evidence contained on the computer's hard drive must be suppressed.⁸

A

Ziegler argues that "[t]he district court erred in its finding that Ziegler did not have a legitimate expectation of privacy in his office and computer." He likens the workplace computer to the desk drawer or file cabinet given Fourth Amendment protection in cases such as O'Connor v. Ortega, 480 U.S. 709, 107 S.Ct. 1492, 94 L.Ed.2d 714 (1987). Ziegler further contends that the Fourth Circuit's Simons case is inapposite. Whereas in Simons "the person conducting the search was a network administrator whose purpose was to search for evidence of employee misconduct," in this case "the search was conducted at the behest of Agent Kennedy who was undeniably seeking evidence of a crime."

The government, of course, views the matter quite differently. It contends that the district court's ruling was correct— Ziegler did not have an objectively reasonable expectation of privacy in his workplace computer. The government argues in its brief:

Society could not deem objectively reasonable that privacy interest where an employee uses a computer paid for by the company; [sic] Internet access paid for by the company, in the company office where the company pays the rent.... This is certainly even more so true where the company has installed a firewall and a whole department of people whose job it was to monitor their employee's Internet activity.

As we know, the Fourth Amendment protects people, not places. Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Although it is often true that "for most people, their computers are their most private spaces," United States v. Gourde, 440 F.3d 1065, 1077 (9th Cir.2006) (en banc) (Kleinfeld, J.,...