United States v. Cormack
| Decision Date | 28 May 2021 |
| Docket Number | Criminal No. ELH-19-0450 |
| Parties | UNITED STATES OF AMERICA, Plaintiff v. STEPHEN WAYNE CORMACK Defendant |
| Court | U.S. District Court — District of Maryland |
In this case, the Court must resolve, inter alia, the legality of a warrantless, after-hours entry into the office of the defendant, Stephen Wayne Cormack, and the search of his work computer. At the time, the defendant was an employee of the Maryland Department of General Services ("DGS"), an agency of the State of Maryland. The results of the computer search led to the issuance of several search warrants that were allegedly tainted by the initial search. The various searches culminated in child pornography charges against defendant.
In particular, Cormack was indicted on September 19, 2019, and charged with one count of possession of child pornography, in violation of 18 U.S.C. § 2252(A)(a)(5)(B). ECF 1. In a Superseding Indictment filed on April 19, 2021 (ECF 40), two charges were added for receipt of child pornography, in violation of 18 U.S.C. §§ 2252A(a)(2), (b)(1), and 2256.
The defendant filed a "Consolidated Motion To Suppress Tangible And Derivative Evidence." ECF 32 (the "Motion"). He asserts violations of his rights under the Fourth Amendment to the Constitution in connection with a total of four searches, of which three occurred pursuant to a warrant.
In the Motion, the defense focuses primarily on the warrantless entry into defendant's locked office, identified as "Office C," and the warrantless search of defendant's work computer, conducted on March 28, 2019, by TFC Frank Donald of the Maryland State Police ("MSP"); John Evans, then the Chief Information Security Officer for the Maryland Department of Information Technology ("DoIT"); and Detective Sergeant Warren Smith of the Maryland Capitol Police, which is the security arm of DGS. The search was limited to defendant's work computer; no search was made as to defendant's desk or personal belongings.
In addition, Mr. Cormack challenges the execution of two search warrants on May 2, 2019. Both warrants were issued by a Maryland State judge. One was for defendant's residence on Lyndale Avenue in Baltimore County, and the other was again for Office C.
Further, the defendant challenges a search warrant issued by United States Magistrate Judge J. Mark Coulson on May 15, 2019, upon application of Special Agent Augustus Aquino of Homeland Security Investigations ("HSI"). The warrant authorized the search, inter alia, of various devices and electronic equipment seized during the earlier searches. These included defendant's desktop computer, his laptop computer, thumb drives, media, and SD cards seized from his home, his vehicle, and Office C. According to the government, the searches revealed over 3,800 images and over 300 videos of child pornography.
The government opposes the Motion. Its corrected opposition is at ECF 44, supported by several exhibits. No reply was filed.
The Court held a hearing on May 21, 2021. At the hearing, the government called four witnesses and introduced several exhibits.1 The defense did not present any evidence.
For the reasons that follow, I shall deny the Motion.
Cormack was an employee of DGS, a Maryland State agency, from 1999 until his termination in 2019. Among other things, DGS is responsible for over six million square feet of State owned facilities and over four million square feet of leased space. See dgs.maryland.gov (last visited May 25, 2021). Its customers include the occupants of those facilities. Id.
The defendant worked at the State Office Building located at 301 West Preston Street in Baltimore, where he was assigned to Office C on the 14th floor. According to the testimony of Lauren Bucker-Duncan, an Assistant Secretary of DGS, defendant worked in the Office of Design and Construction, and was the archivist for blueprints with respect to State construction projects.2 He also managed supplies and printing.
On August 28, 2000, defendant signed an "Acknowledgement Receipt" (ECF 44-1; Gov't. Ex. 1) acknowledging his receipt of the DGS Employee Handbook (the "Handbook", ECF 44-2; Gov't Ex. 2).3 The Handbook contains several directives, including one titled "Acceptable Use Statement for Computing Resources" ("Directive"). Id. at 3.
Section I of the Directive provides that the "Purpose" of the "document" is to set forth the "acceptable use" of the "computing systems and equipment owned and operated" by DGS, to include "any computer, server, or network provided or supported" by DGS. Id. at 4. Further, Section I states: "The purpose of this acceptable use statement is to ensure that all DGS users . . . use the DGS computing systems and facilities in a[n] effective, efficient, ethical and lawful manner." Id. (Emphasis added).
Section II of the Directive is titled "General Policy." Id. It provides that "DGS computing resources are to be used only for the purpose for which they are authorized . . . ." Id. Further, Section II informs employees that DGS "may monitor network traffic, e-mail transmissions, and internet activity." Id.
Paragraph 8 of Section II advises: "Electronic communication facilities (such as Email or Internet) are for authorized government use only." Id. at 5. It adds: "Fraudulent, harassing or obscene messages and/or materials shall not be sent from or stored on DGS systems." Id.
In Section III of the Directive, titled "Violations," it warns that failure to comply "will constitute a security violation" and may result, inter alia, in "criminal prosecution." Id.
The Secretary of DGS is appointed by the Governor. On August 4, 2016, Ellington Church, Jr., then the Secretary of DGS, circulated a Memorandum to all DGS personnel regarding inappropriate use of email and the Internet. ECF 44-3; Gov't Ex. 3 ("Memorandum"). The Secretary instructed DGS personnel as follows: "Electronic communications are to be used only for authorized government business." Id. In addition, he warned that DGS "has a zero tolerance policy for the inappropriate use of State email and internet resources." Id. Further, the Secretary stated that "obscene" materials may not be "created with, sent from, to, or stored on DGS systems." Id. And, he stated, id.: "Accessing sexually explicit . . . websites is also a violation of the Department's eMail and Internet policy." The Memorandum concluded: "The Department will not tolerate the inappropriate use of this electronic medium and violators will continue to be dealt with severely."
As noted, the defendant was assigned to Office C on the 14th floor of the State Office Building in Baltimore. His name was posted on a sign outside the door to Office C. The office contained a desk as well as a State-owned computer and related equipment. Id. It also containedoffice supplies for use by other DGS employees, as well as numerous filing cabinets and drawers for architectural blueprints, drawings, and other documents managed by defendant and used by other DGS employees. Some of the drawers are used to store drawings as large as two feet by three feet. See Gov't Ex. 15A () at 11.
During working hours, the door to Office C was typically open. Ms. Buckler-Duncan testified that other DGS employees had access to Office C to retrieve supplies and documents. They did not require permission to enter Office C. Although defendant locked the door to Office C when he was not at work, he was not the only DGS employee with a key to that office. According to Ms. Bucker-Duncan, another DGS employee also had a key to Office C. Moreover, she stated that defendant and the other State employee who had a key to Office C were not permitted to be off from work on the same day. In other words, this assured the ability to access Office C, even if defendant was not at work.
The government presented a video of Office C. Gov't Ex. 4. It depicts defendant's desk in the room, along with a computer. The desk is rather small, without drawers. And, the room appears sizeble. It is filled with file cabinets, file drawers, and supplies. The evidence also included photos of stickers on the computer equipment, indicating that the computer equipment was the property of the State of Maryland.
Significantly, when a DGS employee attempts to log onto a work computer, a warning banner is displayed. ECF 44-5; Gov't Ex. 5. At the relevant time, the warning banner said: "Welcome to the Department of General Services Network." Id. It also stated, in part, id.: (Emphasis added).
The word "Warning" appeared in capital letters. In order to log in, the user had to click "OK" with respect to the warning. In other words, in order to access the computer, the employee had to agree to the terms.
In January 2019, a DGS co-worker was in Office C and was disturbed by an image he saw on defendant's work computer. The co-worker notified Ms. Buckler-Duncan that he believed he saw the defendant viewing an image that the co-worker thought was child pornography. He described the photograph in some detail.
In turn, Ms. Bucker-Duncan reported the matter to Tonya Sturdivant, the Director of Human Resources for DGS. The matter was subsequently reported to the Maryland Capitol Police, the security component of DGS, and to the Office of the Maryland Attorney General.
Defendant's co-worker was interviewed on February 5, 2019, by Detective Smith and TFC Donald. The interview was recorded (Gov't Ex. 15) and excerpts of the interview were played at the hearing.4 A transcript was also introduced, without objection. Gov't Ex. 15A ("...
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