Opinion
01 Cr. 1114 (RPP)
May 31, 2002
James B. Comey, United States Attorney for the Southern District of New York, New York, NY.
Robin Linsenmayer, Adam Siegel, Jason L. Solotaroff, New York, NY., for Defendant.
OPINION AND ORDER
Defendant moves to suppress physical evidence in the form of two computer diskettes which were seized from his office on March 13, 2001; the Government opposes the motion.
Facts
An evidentiary hearing was held on April 8, 2002 and established the following facts. In or about December 2000, Special Agent Daniel Wager of the United States Department of Labor ("DOL") was advised by the United States Postal Inspection Service of possible workplace misconduct and criminal activity by Brian Reilly, the defendant, who was a field economist in the National Compensation Survey Branch at the Bureau of Labor Statistics ("BLS"), a division of, the DOL. (Tr. at 4.) Agent Wager learned that an individual using the defendant's government e-mail address — REILLY B @ GOV — as well as his social security number, credit card number, and home address, had purchased a password from a known provider of Internet child pornography. (Tr. at 4-5.)
After receiving this information, Agent Wager began to monitor remotely Internet access from the defendant's government-issued laptop computer. (Tr. at 6.) At Agent Wager's direction, BLS technology personnel created logs of Web sites accessed from the defendant's government computer that they forwarded to Agent Wager. Wager reviewed them and determined that between approximately January 9, 2001 and March 13, 2001, the defendant's Internet account had been used on multiple occasions to access Web sites displaying images of nude and partially-nude children, images of children displaying their genitals, images of adults engaging in sexual acts, a Web site selling bendable life-size child mannequins, and a Web site claiming to be "the oldest international pedophile WWW resource" that advocated a "girl-love lifestyle of the future" between adult males and girls from age 8 to 11. (Govt. Ex. 1.) During the monitoring, Agent Wager testified that he could not view all Web sites accessed by the defendant's computer because many either required a password, or had been shut down by the Internet Service Providers. (Tr. at 15.) Agent Wager also ascertained that the defendant's computer accessed these materials from within the BLS office, and generally after working hours, sometimes as late as two or three in the morning. (Tr. at 16.)
After several months of monitoring, Agent Wager concluded that defendant's computer had been used in violation of DOL policy on proper use of workplace computers. However, Agent Wager had not yet ascertained with certainty that the defendant was responsible for this activity or if someone else was using defendant's computer to access this material. (Tr. at 16-17.) Therefore, On March 13, 2001, after learning from DOL technology personnel at approximately 8 p.m. that the defendant's computer was currently accessing a Web site containing images of number children, Agent Wager, three other DOL agents, and BLS Regional Commissioner Dennis McSweeney entered the BLS work area and approached defendant's cubicle. (Tr. at 23, 25, 57-58.) From the entrance of defendant's cubicle, before introducing himself, Agent Wager observed the defendant seated at his desk in front of his computer, and noted that the defendant's computer screen contained a small window that indicated that material had just been downloaded from the Internet, and saw a partially consumed bottle of beer and a 3 1/2 inch computer diskette lying on the desk next to defendant's computer. (Tr. at 25-26, 82.) After Agent Wager identified himself to the defendant from the entrance of the cubicle, saying, "I'm Special Agent Wager from the Office of Inspector General," the defendant turned and looked at them and immediately reached for the computer, began to close the lid, and grabbed the diskette from the desk. (Tr. at 26-27.) Agent Wager then placed his hand on defendant's elbow, and asked him to put everything back and step away from the computer because Mr. McSweeney wanted to speak to him and defendant complied. (Tr. at 27.) Commissioner McSweeney then advised the defendant that in view of what he saw in front of him and in light of an ongoing investigation by the Inspector General's office, he was being placed on administrative leave and instructed the defendant to gather his personal belongings, to leave government property behind, and to surrender his building pass. (Id.) At that point, Agent Wager observed that the defendant had been downloading material from a Web site entitledhttp://worldlolitas.net\nude. (Tr. at 28, 83.)
When the defendant finished gathering his personal belongings, he again reached for the diskette. Agent Wager testified that he asked him to wait before picking up the diskette and asked him if the diskette was his. (Tr. at 28-29.) When defendant responded that he used it, Agent Wager asked if he had a computer to which defendant answered no. Agent Wager then asked whether he purchased the diskette and defendant responded he did not think so. Agent Wager then asked if he had received a diskette from BLS. When defendant answered yes, Agent Wager asked the defendant to leave the diskette on the desk as he believed it was government property, which defendant did. (Tr. at 29.) Defendant at no time attempted to take the government computer, or any diskette inside it. (Tr. at 30.) After defendant finished gathering his belongings, he consented to an interview. A second diskette was found inside the government computer. (Tr. 32-33.)
Defendant argues that there is no corroboration for Agent Wager's testimony in that Agent Wager never made any record of the conversation and since Agent Wager did not know previously that defendant was downloading anything on to diskettes, Agent Wager would have had no prior belief that the diskettes were government property and therefore that the conversation may never have taken place at all. (Def.'s Post-Hr'g Mem. of Law in Supp. of Mot. to Supp., at 9.) Agent Wager's testimony is accepted by the Court since he gave highly credible testimony and not every conversation need be recorded in an agent's written reports.
Subsequent analysis of both the diskette found inside the computer and the diskette that was on the desk revealed that both contained images of children engaging in sex acts and images of nude children. (Tr. at 34.) Examination of diskettes in the possession of other BLS employees showed that at least two employees had multiple diskettes of both types, ATT and Maxell, bearing the same batch serial number. (Tr. at 34-35.)
Several weeks later, the defendant was arrested and charged with receipt of child pornography, in violation of Title 18, United States Code, Section 2252A(a)(2)(A). On February 13, 2002, the defendant moved to suppress the two diskettes, claiming that their seizure violated his right to privacy in his workplace cubicle.
BLS Policies Regarding the Internet and Office Equipment
DOL policies, promulgated in a June, 2000 document entitled, "Appropriate Use: A Guide for Use of Personal Computers and Government Equipment Including E-mail and the Internet," and in another document entitled, "How To Keep Out of Trouble: 2001 Summary of the Ethics Rules" both in effect between January and March of 2001, established that employees had no right or expectation of privacy in "any Government equipment at any time, including accessing the Internet." (See Govt. Ex. 6, at 4; see also Govt Ex. 7, at 10; Tr. at 36, 39.) "To the extent that employees wish that their private activities remain private, they should avoid using Agency or Departmental office equipment, such as their telephone and computer. By using Government office equipment, executive branch employees imply their consent to disclosing the contents of any files or information maintained or passed-through Government office equipment. By using this office equipment, consent to monitoring and recording is implied with or without cause, including (but not limited to) accessing the internet and using E-mail." (Gov. Ex. 6, at 4.) The Glossary of Terms defines Government office equipment including information technology "entails, but is not limited to: personal computers and related peripheral equipment and software . . ." (Id. at 5.)
Additionally, every BLS computer contained a warning that was in effect between January and March of 2001, that appears each time that the computer is turned on stating, "Users have no right to privacy while using any government owned or leased information technology system, which includes workstations . . . software such as word processors, Internet browsers, electronic mail etc. . . ." (Gov. Ex. 5.) The user has to acknowledge this warning before receiving access to the computer. (Tr. at 35, Gov. Ex. 5.)
DOL policies, promulgated in the computer use and ethics rules documents of 2000 and 2001, both in effect between January and March of 2001, expressly prohibit the use of government office equipment for the "download, viewing, storage, copying or transmission of sexually explicit or sexually-oriented materials." (Govt. Ex. 6, at 3.) Although the "infrequent" personal use of Government office equipment is permitted, it is forbidden to use government equipment at any time for "obtaining or viewing sexually explicit material." (Gov. Ex. 7, at 9-10.)
In addition to the warnings that appear each time that the computer is turned on, DOL policies in the form of the documents on computer use and the ethics rules are e-mailed to all employees with a notice that the policy had been updated and a new policy had been issued, and paper copies are available to employees in all DOL offices, including BLS where they were kept in a binder in the BLS management space. (Tr. at 36-37, 39, 78-79, 97.)
Legal Standard
The Fourth Amendment prohibits "unreasonable searches and seizures" by government agents. U.S. Const. Amend. W. In order to establish that his rights under the Fourth Amendment were violated, defendant must first prove that he had a legitimate expectation of privacy in the place searched or the item seized. Rakas v. Illinois, 439 U.S. 128, 143 (1978). In order to prove that he had a legitimate expectation of privacy, defendant must show not only his subjective expectation of privacy in the place or property searched, but also that society is prepared to accept this expectation as objectively reasonable. See California v. Greenwood, 486 U.S. 35, 39-40 (1988).
Although government employees may have a legitimate expectation of privacy in their offices or in parts of their offices such as their desk or file cabinet, office practices, procedures, or regulations may reduce legitimate privacy expectations. United States v. Simons, 206 F.3d 392, 398 (4th Cir. 2000); O'Connor v. Ortega, 480 U.S. 709, 716-718 (1987).
Although the Fourth Amendment generally requires a warrant and probable cause, there are some well-established exceptions to these requirements. One such exception applies to the government's interest in the efficient and proper operation of a government workplace. The Supreme Court inO'Connor, at 725-726 held that "public employer intrusions on the constitutionally protected privacy interests of government employees for noninvestigatory, work-related purposes, as well as for investigations of work-related misconduct, should be judged by the standard of reasonableness under all the circumstances." Such a search of an employee's office by a supervisor will usually be "`justified at its inception' when there are reasonable grounds for suspecting that the search will turn up evidence that the employee is guilty of work-related misconduct, or that the search is necessary for a noninvestigatory work-related purpose such as to retrieve a needed file." Id. at 726. "The search will be permissible in its scope when `the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of . . . the nature of the [misconduct].'" Id. (alterations in original) (quoting New Jersery v. T.L.O., 469 U.S. 325, 342 (1985).
Application
The burden is on defendant to prove that he had a legitimate expectation of privacy in his office or the diskettes. Defendant did not have a legitimate expectation of privacy in his office. The evidence at the hearing indicated that the cubicle had a doorway, with no door, of approximately two feet in width, which permitted other employees to see into the cubicle. (Tr. at 89-90; Govt. Ex. 3.) Additionally, testimony indicated that BLS employees commonly entered each other's cubicles for work-related purposes, even if the employee whose cubicle it was wasn't there. (Tr. at 90-91.) Offices that are "continually entered by fellow employees and other visitors during the workday . . ." can be "so open to fellow employees or the public that no expectation of privacy is reasonable." O'Connor at 717-718. The fact that employees may have kept some personal items in their cubicles does not give the defendant a legitimate expectation of privacy in the cubicle. As for the diskette, it need not be decided whether defendant had a legitimate expectation of privacy in the diskette as the government's seizure of the diskette falls into the exception carved out to the Fourth Amendment standard of a warrant and probable cause for the "special needs" of the government in the efficient operation of a government workplace.
O'Connor at 725-726.
The investigation of defendant and seizure of the diskettes falls within the O'Connor exception to the warrant requirement because it was carried out for the purpose of obtaining "evidence of suspected work-related employee misfeasance." O'Connor at 723. The search of the diskettes was reasonable in inception and scope, as required by the Fourth Amendment. As a result of the monitoring of defendant's computer, Agent Wager testified that he had concluded that it was clear that someone was using the computer to access unauthorized sites on the Internet in violation of DOL workplace policies, and perhaps in violation of the criminal law. (Tr. at 16-18.) Therefore, it was entirely reasonable to approach defendant's cubicle at a time when BLS technology personnel indicated that the computer was accessing prohibited materials, in order to make sure who was using defendant's computer for prohibited purposes. Agent Wager brought Commissioner McSweeney with him when he approached the defendant because "the computer was being used to violate DOL policy and it was [McSweeney's] role to be there." (Tr. at 17-18.) When McSweeney learned that defendant was indeed responsible for the unauthorized use of his computer, McSweeney immediately put defendant on administrative leave. Agent Wager saw that the defendant had just completed a download from a Web site entitledhttp://worldlolitas.net/nude, and it was reasonable to seize the diskette on the desk in order to determine whether it contained evidence of defendant's misfeasance. When a diskette was later found in the disk drive of defendant's computer, it was also reasonable to search that diskette for evidence of employee misconduct and perhaps criminal conduct.
Defendant contends that as Agent Wager testified that he already knew on March 13, 2001 that Mr. Reilly was in violation of workplace policies and rules that the seizure of the diskettes was unreasonable because if DOL was interested only in enforcing its workplace rules, it could have taken action against defendant without seizing the diskettes. (Def.'s Post-Hr'g Mem. of Law in Supp. of Mot. to Suppress, at 8.) However, an employer is entitled to ascertain the extent of an employee's misfeasance in order to take appropriate action and Agent Wager testified that he could not view all of the web sites that defendant was viewing to be sure of the content of the web sites. In United States v. Slanina, 283 F.3d 670, 679-80 (5th Cir. 2002), the court concluded,
At the inception of his search, Smith had already discovered titles of newsgroups suggesting the presence of child pornography on Slanina's computer. Smith had also found an image of adult pornography which represented a violation of city policy. On this evidence alone, Keller was justified in conducting a full search of the computer and accompanying disks to look for evidence of misconduct. Moreover, the scope of the search was also reasonable. The computer had been provided to Slanina by the city and any use of it to access pornography was a violation of city policy. Keller was entitled to determine the extent of Slanina's violations.
The search was also reasonable in scope. The search did not include a search of the defendant's person, his bag, or the "mini-disks" that the defendant took from the desk. (Tr. at 29-30.) The search included the diskette in the computer and the diskette on the desk. After observing that a download was completed from a website entitledhttp://worldlolitas.net\nude, and having monitored defendant's computer for several months and ascertaining that defendant had visited web sites suggesting the presence of child pornography, the search of the diskettes met the reasonableness in scope requirement of the Fourth Amendment.
Defendant argues that "by preventing Mr. Reilly from putting the diskette into his bag with his other personal possessions, Special Agent Wager seized the diskette from Mr. Reilly's person." (Def.'s Post-Hr'g Mem. of Law in Supp. of Mot. to Suppress, at 6.) However, defendant provides no evidence that his person was, indeed, searched and attempting to grab a diskette in plain view on a desktop cannot transform a search of his cubicle into a search of his person.
Agent Wager's dual role as an investigator of workplace misfeasance and criminal activity does not invalidate the otherwise legitimate workplace search. In Simons, the court concluded although "we will assume that the dominant purposes of the warrantless search of Simons' office was to acquire evidence of criminal activity . . . the search remains within theO'Connor exception to the warrant requirement; FBIS did not lose its special need for `the efficient and proper operation of the workplace,' merely because the evidence obtained was evidence of a crime." United States v. Simons, 206 F.3d 392, 400 (4th Cir. 2000) quoting O'Connor at 723. "Simons' violation of FBIS' Internet policy happened also to be a violation of criminal law; this does not mean that FBLS lost the capacity and interests of an employer." Id. See also United States v. Slanina, 283 F.3d 670, 679 (5tha Cir. 2002) (held search by supervisor/law enforcement officer of defendant's office computer equipment, including hard drives and zip disks that contained images of child pornography, so long as "the probe remained at least partly an investigation into employee misconduct").
Conclusion
Defendant's motion to suppress is denied.
IT IS SO ORDERED.