U.S. v. Anderson

• Decision Date: 15 September 1998
• Docket Number: No. 97-6310,97-6310
• Parties: 98 CJ C.A.R. 5134 UNITED STATES of America, Plaintiff-Appellant, v. James S. ANDERSON, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1225

154 F.3d 1225

98 CJ C.A.R. 5134

UNITED STATES of America, Plaintiff-Appellant, v. James S. ANDERSON, Defendant-Appellee.

No. 97-6310.

United States Court of Appeals, Tenth Circuit.

Sept. 15, 1998.

Arlene Joplin, Assistant United States Attorney (Patrick M. Ryan, United States Attorney, Edward J. Kumiega and Daniel G. Webber, Jr., Assistant United States Attorneys, on the brief), Oklahoma City, Oklahoma, for Appellant.

Frank J. Petrella, Tucker, Georgia, for Appellee.

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 evidence seized in a warrantless search. We exercise jurisdiction pursuant to 18 U.S.C. § 3731 and affirm.

I.

Anderson was arrested after a successful FBI sting operation. The goal of the sting operation was to identify and prosecute members of the Internet chat room known as the "Orchid Club" for interstate trafficking of child pornography. The Orchid Club investigation began 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 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 Saturday, but Anderson had arranged for the business to leave the package at an adjoining coffee shop. Anderson 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 Corporation. 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 enforcement 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 destroying 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 investigating 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 engaging in a conspiracy 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 transporting and shipping child pornography, in violation of 18 U.S.C. § 2252(a)(1). Anderson moved to suppress the evidence seized from his place of employment and his residence, as well as statements made by him at both locales. 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 Amendment 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 seizure. The government contends Anderson lacks standing to challenge the search of an area within his corporate 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 warrantless entry into the office building.

II. 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 unreasonable, and therefore unconstitutional, if the defendant has a legitimate expectation of privacy in the area searched. "Determining whether a legitimate or justifiable 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." ' " Id. (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. Id. Thus, Anderson was required to establish he had a subjective expectation of privacy in Room 222 and that society would recognize that subjective expectation of privacy as reasonable.

Anderson entered the ATD office building during a holiday weekend and there were no other employees in the...