U.S. v. Angevine, 01-6097.

• Decision Date: 22 February 2002
• Docket Number: No. 01-6097.,01-6097.
• Citation: 281 F.3d 1130
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Eric Neil ANGEVINE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

281 F.3d 1130

UNITED STATES of America, Plaintiff-Appellee, v. Eric Neil ANGEVINE, Defendant-Appellant.

No. 01-6097.

United States Court of Appeals, Tenth Circuit.

February 22, 2002.

Randal A. Sengel; Daniel G. Webber, Jr., United States Attorney, with him on the brief, Assistant United States Attorney, Oklahoma City, OK, for Plaintiff-Appellee.

Michael D. Scheitzach; Richard W. Anderson with him on the briefs, Oklahoma City, OK, for Defendant-Appellant.

Before SEYMOUR, Circuit Judge, BRORBY, Senior Circuit Judge, and EBEL, Circuit Judge.

BRORBY, Circuit Judge.

Eric Neil Angevine conditionally pled guilty to knowing possession of child pornography. On appeal, Professor Angevine argues the district court (1) improperly denied his motion to suppress images of child pornography seized from his Oklahoma State University computer, and (2) incorrectly applied the sentencing guidelines in determining his sentence. Our jurisdiction arises from 28 U.S.C. § 1291. For reasons set forth below, we affirm in part and dismiss in part.

BACKGROUND

Professor Angevine taught Architecture at Oklahoma State University. Pursuant to his employment, the University provided Professor Angevine an office computer. This computer was networked with other University computers and in turn was linked to computers around the world via the Internet. Professor Angevine used this computer to download over 3,000 pornographic images of young boys. After viewing the images and printing some of them, Professor Angevine deleted the pornographic files.

With the cooperation of Professor Angevine's wife, officers from the Stillwater, Oklahoma Police Department obtained a search warrant to look for child pornography on his University computer. Police seized the computer from Professor Angevine's office and turned it over to a police computer expert. Although Professor Angevine attempted to erase the pornographic files, the computer expert used special technology to retrieve the data that had remained latent in the computer's memory.

After police arrested Professor Angevine, he submitted a motion to suppress the pornographic images seized from the University computer. Professor Angevine also submitted a motion arguing the search warrant used to seize the computer was invalid because police recklessly omitted material information in their application affidavit. To address these omissions, Professor Angevine asked for a hearing pursuant to Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). The district court held the computer-use policies and procedures at Oklahoma State University prevented Professor Angevine from having a legitimate expectation of privacy in the data on the seized University computer. Accordingly, the district court held a Franks hearing was unnecessary since police did not need a search warrant to seize the University computer. The district court also denied Professor Angevine's motion to suppress the images found on the University computer.

Subsequently, Professor Angevine conditionally pled guilty to knowing possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). Under his plea agreement, Professor Angevine retained the right to appeal the denial of his suppression motion. However, Professor Angevine waived the right to appeal his sentence calculation unless the district court departed upward from the sentencing guidelines or controlling precedent relevant to the case subsequently developed.

Oklahoma State University has a computer policy that explains appropriate computer use, warns employees about the consequences of misuse, and describes how officials administer and monitor the University computer network. Initially, the policy maintains "[t]he contents of all storage media owned or stored on University computing facilities are the property of [the] University." The policy prohibits employees from using University computers to "access obscene material as defined by Oklahoma or federal law." The policy warns viewing obscene materials may result in "disciplinary action up to and including discharge, dismissal, ... and/or legal action." Providing for enforcement, the policy states:

[T]he University reserves the right to view or scan any file or software stored on the computer or passing through the network, and will do so periodically ... to audit the use of University resources. Violation[s] of policy that come to the attention of University officials during these and other activities will be acted upon.... The University cannot guarantee confidentiality of stored data. Users should be aware that use of one of the data networks, such as the Internet, and electronic mail and messages, will not necessarily remain confidential from third parties outside the University in transit or on the destination computer system, as those data networks are configured to permit fairly easy access to transmissions.

The University policy also explains system administrators keep logs of file names which "may indicate why a particular data file is being erased, when it was erased, and what user identification has erased it." Furthermore, the policy provides when University officials believe an employee is violating state or federal law "and that access to an individual's data is required in order to conduct an internal investigation into such possibility, system administrators may monitor all the activities of and inspect the files of such specified user(s) on their computers and networks." To this effect, the University policy claims a "right of access to the contents of stored computing information at any time for any purpose which it has a legitimate `need to know'" including access to "word processing equipment, personal computers, workstations, mainframes, minicomputers, and associated peripherals and software."

Additionally, Oklahoma State University officials posted a "splash screen" on University computers. Each time Professor Angevine turned on the computer in his office a banner appeared. This banner stated:

Use of this computing system in any way contrary to applicable Federal or State statutes or the policies of Oklahoma State University or Computing and Information Services is prohibited and will make you subject to University disciplinary actions, including possible immediate termination, and may also subject you to criminal penalties.

Under Oklahoma law, all electronic mail messages are presumed to be public records and contain no right of privacy or confidentiality except where Oklahoma or Federal statutes expressly provide for such status. The University reserves the right to inspect electronic mail usage by any person at any time without prior notice as deemed necessary to protect business-related concerns of the University to the full extent not expressly prohibited by applicable statutes.

Professor Angevine now appeals the denial of his suppression motion and again asks for a Franks hearing challenging the validity of the police search warrant. Professor Angevine also appeals the calculation of his sentence.

DISCUSSION

I.

Professor Angevine argues the district court erred in failing to suppress child pornography seized from an Oklahoma State University computer. Specifically, Professor Angevine argues the district court incorrectly held he had no "expectation of privacy in his office computer because his employer, Oklahoma State University, had a computer use and Internet policy that allowed [the University] a `right of access' on a `need to know basis.'" In reviewing the district court's refusal to grant a suppression motion, "we accept the district court's factual findings absent clear error and review de novo the district court's determination of reasonableness under the Fourth Amendment." United States v. Olguin-Rivera, 168 F.3d 1203, 1204 (10th Cir.1999).

The Fourth Amendment guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures." U.S. Const. amend. IV. To establish a Fourth Amendment violation, the defendant must prove "a legitimate expectation of privacy" in the place searched or the item seized. Rakas v. Illinois, 439 U.S. 128, 143, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). "Determining whether a legitimate ... expectation of privacy exists ... involves two inquiries. 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." United States v. Anderson, 154 F.3d 1225, 1229 (10th Cir.1998) (quotation marks and citations omitted). cert. denied, 526 U.S. 1159, 119 S.Ct. 2048, 144 L.Ed.2d 215 (1999). "The ultimate question is whether one's claim to privacy from the government intrusion is reasonable in light of all the surrounding circumstances." Id. (quotation marks and citation omitted).¹

We address employees' expectations of privacy in the workplace on a case-by-case basis. O'Connor v. Ortega, 480 U.S. 709, 718, 107 S.Ct. 1492, 94 L.Ed.2d 714 (1987). "Within the workplace context, [the Supreme Court] has recognized that employees may have a reasonable expectation of privacy against intrusions by police." Id. at 716, 107 S.Ct. 1492. However, "[p]ublic employees' expectations of privacy ... may be reduced by virtue of actual office practices and procedures, or by legitimate regulation." Id. at 717, 107 S.Ct. 1492. Additional factors we consider include: "(1) the employee's relationship to the item seized; (2) whether the item was in the immediate control of the employee when it was seized; and (3) whether the employee took actions to maintain his privacy in the item." Anderson, 154 F.3d at 1232.

Oklahoma State University policies and procedures prevent its employees from reasonably expecting privacy in data downloaded from the Internet onto University computers. The University computer-use policy reserved the right to randomly audit Internet use and to monitor...