The defendant’s employer found child porn on his workstation computer. While the defendant had standing, the employer was directed by the police to copy the hard drive, and they could do so because they owned the computer. United States v. Ziegler, 474 F.3d 1184 (9th Cir. January 30, 2007). As to standing:
The threshold question then is whether Ziegler had a legitimate expectation of privacy in the area searched or the object seized. If he had no such expectation, we need not consider whether the search was reasonable.
1
The government does not contest Ziegler’s claim that he had a subjective expectation of privacy in his office and the computer. The use of a password on his computer and the lock on his private office door are sufficient evidence of such expectation. See United States v. Bailey, 272 F. Supp. 2d 822, 835 (D. Neb. 2003) (citation omitted).
2
But Ziegler’s expectation of privacy in his office and workplace computer must also have been objectively reasonable. The seminal case addressing the reasonable expectations of private employees in the workplace is Mancusi v. DeForte, 392 U.S. 364, 88 S. Ct. 2120, 20 L. Ed. 2d 1154 (1968). In Mancusi, the Supreme Court addressed whether a union employee had a legitimate expectation of privacy, and therefore Fourth Amendment standing, in the contents of records that he stored in an office that he shared with several other union officials. The Court held that DeForte had standing to object to the search and that the search was unreasonable, noting that it was clear that “if DeForte had occupied a ‘private’ office in the union headquarters, and union records had been seized from a desk or a filing cabinet in that office, he would have had standing.” Id. at 369. That was so because he could expect that he would not be disturbed except by business or personal invitees and that the records would not be taken except with the permission of his supervisors. Id. The Court thought the fact that the office was shared with a few other individuals to be of no constitutional distinction.
Mancusi compels us to recognize that in the private employer context, employees retain at least some expectation of privacy in their offices. Id. See also Ortega v. O’Connor, 480 U.S. 709, 716, 107 S. Ct. 1492, 94 L. Ed. 2d 714 (1987) (noting that in Mancusi “this Court … recognized that employees may have a reasonable expectation of privacy against intrusions by police.”); id. at 730 (Scalia, J., concurring) (“In Mancusi v. DeForte, we held that a union employee had Fourth Amendment rights with regard to an office at union headquarters that he shared with two other employees, even though we acknowledged that those other employees, their personal or business guests, and (implicitly) ‘union higher-ups’ could enter the office.”) (internal citations omitted).
Furthermore, Ziegler’s expectation of privacy in his office was reasonable on the facts of this case. His office was not shared by co-workers, and kept locked. See Schowengerdt v. United States, 944 F.2d 483, 487 (9th Cir. 1991) (“Schowengerdt would enjoy a reasonable expectation of privacy in areas given over to his exclusive use, unless he was on notice from his [government] employer that searches of the type to which he was subjected might occur from time to time for work-related purposes.”); United States v. Taketa, 923 F.2d 665, 672-73 (9th Cir. 1991). And while there was a master key, the existence of such will not necessarily defeat a reasonable expectation of privacy in an office given over for personal use. See Taketa, 923 F.2d at 673 (noting that allowing the existence of a master key to overcome the expectation of privacy would defeat the legitimate privacy interest of any hotel, office, or apartment occupant).
Because Ziegler had a reasonable expectation of privacy in his office, any search of that space and the items located therein must comply with the Fourth Amendment. n9
n9 Had the company computer assigned to Ziegler for his business-use only been physically located outside a private office, we might have had to consider whether Ziegler had reasonable expectation of privacy in the device itself, in the face of a corporate policy of monitoring the corporate computers. See Muick v. Glenayre Elecs., 280 F.3d 741, 743 (7th Cir. 2002). However, we leave that question for another day.
As to the consent to search:
IV
A
The remaining question is whether the search of Ziegler’s office and the copying of his hard drive were “unreasonable” within the meaning of the Fourth Amendment. As in Mancusi, the government does not deny that the search and seizure were without a warrant, and HN5″it is settled for purposes of the Amendment that ‘except in certain carefully defined classes of cases, a search of private property without proper consent is ‘unreasonable’ unless it has been authorized by a valid search warrant.'” Mancusi, 392 U.S. at 370 (quoting Camara v. Municipal Court, 387 U.S. 523, 528-529, 87 S. Ct. 1727, 18 L. Ed. 2d 930 (1967)).
One well-settled exception is where valid consent is obtained by the government. Davis v. United States, 328 U.S. 582, 593-594, 66 S. Ct. 1256, 90 L. Ed. 1453 (1946); Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973). In proving voluntary consent, the government “is not limited to proof that consent was given by the defendant, but may show that permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected.” United States v. Matlock, 415 U.S. 164, 171, 94 S. Ct. 988, 39 L. Ed. 2d 242 (1974); see also United States v. Davis, 332 F.3d 1163, 1168-69 (9th Cir. 2003). Common authority to authorize a search rests upon the premise that one “[has] assumed the risk that one of [his] number might permit the common area to be searched.” Matlock, 415 U.S. at 171 n. 7.
B
We first consider whether Frontline exercised common authority over the office and the workplace computer such that it could validly consent to a search. Mancusi is again instructive. In Mancusi, the Supreme Court recognized that in his office, DeForte retained an expectation “that records would not be taken [by the police] except with his permission or that of his union superiors.” 392 U.S. at 369. The Court continued: “It is, of course, irrelevant that the Union or some of its officials might validly have consented to a search of the area where the records were kept, regardless of DeForte’s wishes, for it is not claimed that any such consent was given, either expressly or by implication.” Id. at 369-70; see also United States v. Carter, 569 F.2d 801, 804 (4th Cir. 1978), cert. denied 435 U.S. 973, 98 S. Ct. 1618, 56 L. Ed. 2d 66 (1978). Mancusi thus establishes that even where a private employee retains an expectation that his private office will not be the subject of an unreasonable government search, such interest may be subject to the possibility of an employer’s consent to a search of the premises which it owns.
We are also convinced that Frontline could give valid consent to a search of the contents of the hard drive of Ziegler’s workplace computer because the computer is the type of workplace property that remains within the control of the employer “even if the employee has placed personal items in [it].” Ortega, 480 U.S. at 716. In Ortega, the Supreme Court offered an analogy that is helpful to our resolution of this question. Ortega, 480 U.S. at 716. The Court posited a situation where an employee brings a piece of personal luggage to work and places it within his office. The Court noted that “[w]hile . . . the outward appearance of the luggage is affected by its presence in the workplace, the employee’s expectation of privacy in the contents of the luggage is not affected in the same way.” Id. (emphasis in original). The Court further explained that “[t]he appropriate standard for a workplace search does not necessarily [*19] apply to a piece of closed personal luggage, a handbag or a briefcase that happens to be within the employer’s business address.” Id.
The workplace computer, however, is quite different from the piece of personal luggage which the Court described in Ortega. Although use of each Frontline computer was subject to an individual log-in, Schneider and other IT-department employees “had complete administrative access to anybody’s machine.” The company had also installed a firewall, which, according to Schneider, is “a program that monitors Internet traffic … from within the organization to make sure nobody is visiting any sites that might be unprofessional.” Monitoring was routine, and the IT department reviewed the log created by the firewall “[o]n a regular basis,” sometimes daily if Internet traffic was high enough to warrant it. Finally, upon their hiring, Frontline employees were apprised of the company’s monitoring efforts through training and an employment manual, and they were told that the computers were company-owned and not to be used for activities of a personal nature.
In this context, Ziegler could not reasonably have expected that the computer was his personal property, free from any type of control by his employer. The contents of his hard drive, like the files in Mancusi, 392 U.S. at 369, were work-related items that contained business information and which were provided to, or created by, the employee in the context of the business relationship. Ziegler’s downloading of personal items to the computer did not destroy the employer’s common authority. Ortega, 480 U.S. at 716. Thus, Frontline, as the employer, could consent to a search of the office and the computer that it provided to Ziegler for his work.
Thus, the employer could and did consent to the search.
Overbroad business records warrant challenge failed because the government showed a prima facie case for the “permeated with fraud” doctrine that permits wholesale seizures of records. United States v. Bernardini, 2005 U.S. Dist. LEXIS 44409 (W.D. Va. October 18, 2005).*
