U.S. v. Jones, 01-10352.

• Citation: 286 F.3d 1146
• Decision Date: 18 April 2002
• Docket Number: No. 01-10352.,01-10352.
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Zula JONES, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

286 F.3d 1146

UNITED STATES of America, Plaintiff-Appellant, v. Zula JONES, Defendant-Appellee.

No. 01-10352.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 12, 2002.

Filed April 18, 2002.

COPYRIGHT MATERIAL OMITTED

J. Douglas Wilson, Assistant United States Attorney, San Francisco, CA, for the appellant.

John W. Keker and Steven A. Hirsch, Keker & Van Nest, San Francisco, CA, for the appellee.

Appeal from the United States District Court for the Northern District of California; Maxine M. Chesney, District Judge, Presiding. D.C.No. CR-00-00232-MMC.

Before SNEED, BRUNETTI and T.G. NELSON, Circuit Judges.

OPINION

BRUNETTI, Circuit Judge.

In this appeal, we consider whether the government's efforts to ensure compliance with a forthwith subpoena fall under the O'Connor v. Ortega, 480 U.S. 709, 107 S.Ct. 1492, 94 L.Ed.2d 714 (1987), exception to the warrant requirement. We conclude that the search does not fall within the O'Connor exception and that the government's efforts gave rise to an illegal search.

I

In 1999, the federal government conducted an investigation into possible criminal wrongdoing in the San Francisco Human Rights Commission's ("HRC") program for certifying minority ownership of businesses that bid on public contracts. On June 25, 1999, the U.S. Attorney's office served a grand jury subpoena on the City Attorney's office seeking records from the HRC by August 12, 1999. On Friday, July 30, 1999, federal investigators received information from a source within the HRC that documents responsive to the subpoena were being shredded. Federal prosecutors prepared a "forthwith" grand jury subpoena for those records, as well as shredded records. That afternoon several FBI agents, Assistant United States Attorney Thomas Carlucci ("Carlucci"), Deputy City Attorney Loretta Giorgi ("Giorgi"), and two investigators from the City Attorney's Office arrived at the HRC offices and served the subpoena on HRC Director Marivic Bamba ("Bamba").

HRC Director Bamba informed the agents that the HRC was still in the process of gathering all the documents requested in the original subpoena. In the meantime, other federal prosecutors asked the City Attorney for permission to have the investigators determine if the HRC was fully complying with the subpoena and to conduct a search of the records at the HRC offices. The City Attorney agreed and authorized the search under the supervision of the City Attorney. Federal agents had HRC records custodian, Carla Vaughn ("Vaughn"), and HRC employee Toni Delgado ("Delgado"), walk the agents through the HRC offices and point out areas where responsive documents may have been located. If Vaughn indicated that an employee worked on any of the matters listed on the subpoena, the agents searched that employee's work area. The agents also unlocked offices to determine whether they contained shredders.

Jones' office was not identified as containing any documents responsive to the subpoena. However, Vaughn was asked to unlock the door to determine whether a shredder was inside Jones' office. Documents were found on the floor of Jones' office that were relevant to the subpoena. After the agents asked Giorgi for permission, they opened Jones' file cabinet and retrieved more documents. They also obtained a sample of shredded material from the shredder in Jones' office.

Federal investigators subsequently secured the building and no employees were allowed to enter the HRC offices over the weekend. On Monday morning, August 12, 1999, HRC employees were asked to gather in a conference room. The employees were given a copy of the subpoena and told to search their offices for responsive documents. Federal agents followed the employees back to their offices and watched while the employees searched for the documents.

Jones arrived that morning and asked to speak with HRC director Bamba. She looked at the subpoena, told officers to speak with her attorney if they had any questions, and left the offices. The next morning, Jones returned to the HRC offices and an FBI agent asked Jones for her consent to search her office. Jones signed the consent form but she wrote on the form that she did not consent to the search of certain boxes of documents.

Jones moved to suppress the evidence taken from her office on Friday, July 30 and Tuesday, August 3. She argued that the officers' entry into her office on Friday, July 30, violated the Fourth Amendment. In addition, she claimed that her consent to the search of her office on Tuesday was tainted by the previous allegedly illegal search.

On March 27, 2001, the district court ruled that the Friday night search violated the Fourth Amendment because it "was not initiated by the employer for purposes of conducting the business of the employer or for the purposes of investigating internal employee misconduct." On May 9, 2001, after further briefing, the court granted the motion to suppress in an oral ruling. The court acknowledged that in some instances an employer may search an employee's office. However, the court held that the "City Attorney does not under the case law have the authority, as an employer, to grant consent to search offices of the nature of Ms. Jones'." The court explained that if "the business of the employer includes complying with subpoenas, then it would be appropriate to conduct a search at the employer's discretion to comply with the subpoena." Yet, the court found that this was not the case here. The City as an employer was not searching for employment-related reasons, but "rather simply to allow another agency [the FBI] to conduct a search."

In addition, the court ruled that although Jones' consent was "voluntary and not coerced," it was the fruit of the agents' illegal activity. The court noted that on Monday morning Jones and other HRC employees were prevented from entering their offices until they had been instructed on compliance with the subpoena. Such action by law enforcement agents constituted a seizure because "the employees were not free to simply go about their business and ... the only way that they would have access to their office is with an FBI escort." The continuous law enforcement presence in the HRC office tainted Jones' consent.

The United States now appeals the district court's decision. We review de novo a motion to suppress. United States v. Wright, 215 F.3d 1020, 1025 (9th Cir.2000). We review a trial court's determination that a person voluntarily consented to a search under a clearly erroneous standard. United States v. Albrektsen, 151 F.3d 951, 953 (9th Cir.1998). We review the trial court's factual findings for clear error. United States v. Mattarolo, 209 F.3d 1153, 1155-56 (9th Cir.2000).

II

Under O'Connor v. Ortega, 480 U.S. 709, 717, 107 S.Ct. 1492, 94 L.Ed.2d 714 (1987), a public employee has a reasonable expectation of privacy in her workplace office. However, such an expectation may be unreasonable if the "intrusion is by a supervisor rather than a law enforcement official." Id. The Court held that a warrantless search of an employee's office by a public employer for work-related, non-investigatory reasons or pursuant to an investigation of work-related employee misconduct, was not subject to review under the probable cause standard, but rather the less rigorous standard of "reasonableness under all the circumstances." Id. at 725-26, 107 S.Ct. 1492.

The Court's less heightened standard of review for public employer searches has its origins in the "realities of the workplace" that frequently require employers "to enter the offices and desks of their employees for legitimate work-related reasons wholly unrelated to illegal conduct" in order to "complete the government agency's work in a prompt and efficient manner." Id. at 721, 107 S.Ct. 1492. Thus, a work-related search requires no warrant.

The government argues that the search conducted at the HRC's office was an ordinary, work-related file retrieval case under the O'Connor exception to the warrant requirement. The government argues that the City Attorney, acting as the employer in this case, consented to the actions taken by the federal investigators. We are unpersuaded.

The record supports the district court's holding that the Friday night search did not fall within the O'Connor exception to the warrant requirement. First, the search was not initiated or conducted by Jones' employer, the HRC. Although the government attempts to argue that under the City Charter, the City itself was the employer and that, therefore, the City Attorney could consent to the search as the employer, the record does not support this conclusion. The HRC, while technically a part of the City government, is a separate agency with its own authority and director. The HRC could have refused to cooperate with the investigation. Furthermore, the Charter does not state that the City Attorney has the power to step in and act as the employer. Such a construction would mean that any City official could override Fourth Amendment protections.

In addition, although the federal agents received permission from the City Attorney to conduct the Friday night searches, the district court found that there was no evidence that the City Attorney was "in charge of making the decisions here" or that she stood "in the shoes of the employer." The court noted that Deputy City Attorney Giorgi did not herself decide to go into the HRC and look for the documents until the FBI and U.S. Attorneys' office asked if they could go in and look. The search was initiated at the request of law enforcement officials and was conducted by the federal government. Assistant United States Attorney Carlucci stated that it was the U.S. Attorney's office's idea to conduct a "compliance check." HRC director Bamba states in her declaration that she was "not asked to authorize the FBI, the United States Attorney or the City Attorney to conduct a broad search of the HRC offices. ...