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United States of America v. Mark L. Simons

Fourth Circuit affirms the District Court's holding that various warrantless searches of the defendant employee's computer did not violate his Fourth Amendment protections against unreasonable governmental search and seizures. However, the Fourth Circuit remanded for reconsideration that portion of the lower court's determination that upheld a search of the defendant employee's office and computer pursuant to a warrant where the searching officials, contrary to its terms, failed to leave the warrant for the employee after completing their search.

Defendant was an employee of the Foreign Bureau of Information Services (FBIS) who, to aid in the performance of his job functions, was provided with a computer with Internet access in a private office. The FBIS had in place a policy that mandated that FBIS computers be used only for work-related activities, and prohibited their use for accessing unlawful materials. This policy further advised FBIS employees that the FBIS would conduct electronic audits to ensure compliance with this policy.

An independent contractor, in the course of performing work for the FBIS, came across information that indicated the defendant, from his FBIS computer, had accessed web sites relating to "sex." This information was relayed to defendant's employer.

The FBIS thereafter undertook a number of searches to ascertain the nature of defendant's use of his computer. In the first instance, the FBIS had a independent contractor, from a computer other than defendant's, ascertain that defendant had downloaded over 1000 files that were pornographic in nature, and copy all of the files in defendant's hard drive.

After it was determined that many of these files contained pornographic pictures of minors, the FBIS directed its independent contractor to enter defendant's office, remove the hard drive from defendant's computer, and replace it with a copy.

Thereafter, a search warrant was obtained to search defendant's office and computer. The warrant directed that a copy be left at defendant's office when the search was performed. During the ensuing search, the contents of defendant's computer as well as various diskettes and other items were copied. The search warrant, however, was not left in defendant's office.

Subsequently, a second search warrant was obtained and various items were removed from defendant's office. At this time, defendant was provided with a copy of the warrant.

Defendant moved before the District Court to suppress the evidence obtained by these searches of his computer and office, on the grounds that such searches violated his Fourth Amendment rights. The District Court denied this motion and defendant was subsequently convicted of knowingly receiving and possessing child pornography.

On appeal, the Fourth Circuit held that these warrantless searches of defendant's computer and office did not violate his Fourth Amendment rights. To establish a violation of his Fourth Amendment rights, defendant must prove that he had a legitimate expectation of privacy in the place searched. The Fourth Circuit held that because of the FBIS' "Internet policy, [defendant] lacked a legitimate expectation of privacy in the files downloaded from the Internet. ... The policy clearly stated that FBIS would 'audit, inspect, and/or monitor employees' use of the Internet, including all file transfers, all web sites visited and all e-mail messages, as deemed appropriate. This policy placed employees on notice that they could not reasonably expect that their Internet activity would be private." As a result, the warrantless remote search of defendant's computer and copying of files from his hard drive did not violate his Fourth Amendment rights.

However, the court held that, notwithstanding the FBIS' Internet policy permitting audit of computer use, absent other evidence, defendant had a legitimate expectation of privacy in the office in which the computer was situated. ("The Internet policy did not render [defendant's] expectation of privacy in his office unreasonable.").

Notwithstanding this expectation of privacy, the court held that the warrantless search of defendant's office did not violate defendant's Fourth Amendment rights, because a government employer is entitled to conduct a warrantless search "pursuant to an investigation of work related misconduct [provided] the search is reasonable in its inception and scope." According to the court, a search is "reasonable in its inception" if there are "reasonable grounds for suspecting that the search will turn up evidence that the employee is guilty of work-related misconduct."

Applying this standard, the court held that the warrantless seizure of defendant's hard drive from his office did not run afoul of the Fourth Amendment.

In the final analysis, this case involves an employee's supervisor entering the employee's government office and retrieving a piece of government equipment in which the employee had absolutely no expectation of privacy--equipment that the employer knew contained evidence of crimes committed by the employee in the employee's office. This situation may be contrasted with one in which the criminal acts of a government employee were unrelated to his employment. Here, there was a conjunction of the conduct that violated the employer's policy and the conduct that violated the criminal law. We consider that FBIS' intrusion into Simons' office to retrieve the hard drive is one in which a reasonable employer might engage. ... For the foregoing reasons, we agree with the district court that Simons' Fourth Amendment rights were not violated by any FBIS' activities in searching his computer and office.

Lastly, the court remanded for further consideration the validity of the search conducted of defendant's office pursuant to a warrant. While this search did not violate the Fourth Amendment, it may have violated Fed. R. Crim. Pro. 41(d) because of the failure to leave a warrant on the premises, or a list of items seized, at the time the search was executed.