No.

Supreme Oourt, U.S.FILED

IN THESUPREME COURT OF THE UNITED STATES

STATE OF FLORIDA, Petitioner

V.

ERIC M YOUNG, Respondent

ON PETITION FOR A WRIT OF CERTIORARI TOTHE FLORIDA FIRST DISTRICT

COURT OF APPEAL

PETITION FOR WRIT OF CERTIORARIand

APPENDIX

BILL McCOLLUMATTORNEY GENERAL OF FLORIDA

CAROLYN M. SNURKOWSKI*ASSISTANT DEPUTY ATTORNEY GENERAL

Florida Bar Number 158541

CHRISTINE ANN GUARDASSISTANT ATTORNEY GENERAL

Florida Bar Number 173959

*Counsel of Record

DEPARTMENT OF LEGAL AFFAIRSPL-01. The Capitol

Tallahassee, Florida 32399-1050(850) 414-3300

FAX (850) 922-6674

QUESTION PRESENTED

Whether the exclusionary rule requiresevidence seized by law enforcement tobe suppressed when the search isconducted at the request of, and withthe consent of, the defendant’s privateemployer after the private employer hasdiscovered illegal activity.

TABLE OF CONTENTS

Page

QUESTION PRESENTED ...................i

TABLE OF CONTENTS ....... .............ii

TABLE OF AUTHORITIES .................iv

OPINION BELOW ........................ 1

JURISDICTION .......................... 2

CONSTITUTIONAL OR STATUTORYPROVISIONS INVOLVED ............2

STATEMENT OF THE CASE ...............3

REASONS FOR GRANTING THE WRIT .....13

Preliminary Statement .............. 13

The Search of a Workplace by a PrivateEmployer or Its Designee and theInvolvement of Law Enforcement at thePrivate Employer’s Request Does NotImplicate the Protections of the FourthAmendment ........................ 13

The Florida Court Indiscriminately Appliedthe Exclusionary Rule Without Undertaking

ii

the Analysis Required by This Court’sPrecedent .......................... 25

CONCLUSION .......................... 30

APPENDIX

State v. Young,974 So. 2d 601 (Fla. 1st DCA 2008) ....A-1 - A-21

Order issued by the Supreme Court of Floridadeclining jurisdiction ................ B- 1 - B- 2

iii

TABLE OF AUTHORITIES

Pages

CASES

United States Supreme Court Decisions

Burdeau v. McDowel],256 U.S. 465 (U.S. 1921) ...................29

Coolidge v. New Hampshire,403 U.S. 443 (U.S. 1971) ...................29

Hudson v. Michigan,547 U.S. 586 (2006) .................... passim

Illinois v. Gates,462 U.S. 213 (1983) ....................... 27

Illinois v. Rodriguez,497 U.S. 177 (1990) ....................... 10

Katz v. United States.,389 U.S. 347 (1967) ....................... 22

Mancusi v. DeForte,392 U.S. 364, 369 (1968) ................

O’Connor v. Ortega,480 U.S. 709 (1987) ....................

iv

Smith v. Maryland,442 U.S. 735 (1979) ....................... 22

Stone v. Powell,428 U.S. 465 (1976) .................... 26, 27

United States v. Calandra,414 U.S. 338 (1974) .................26, 27, 28

United States v. Janis,428 U.S. 433 (1976) ....................... 28

United States v. Leon,468 U.S. 897 (1984) ....................

United States v. Matlock,415 U.S. 164 (1974) ....................

United States v. Pavner,447 U.S. 727 (1980) ....................... 27

Wong Sun v. United States,371 U.S. 471 (1963) .................... 11, 29

Other Federal Court Decisions

Muick v. Glenavre Electronics,280 F.3d 741 (7th Cir. 2002) ...........9, 19, 20

United States v. Anderson,154 F.3d 1225 (10th Cir. 1998).......... 9,20

V

United States v. Angevine,281 F.3d 1130 (10th Cir. 2002) .........9, 20, 21

United States v. Bilanzich,771 F.2d 292 (7th Cir. 1985) .............18, 19

United States v. Carter,569 F.2d 801 (4th Cir. 1977) .............17, 18

United States v. Zeigler,474 F.3d 1184 (9th Cir. 2007) ............passim

U.S.v. Peterson,524 F.2d 167 (4th Cir. 1975) ................18

State ~ourt Decisions

Baptiste v. State, SC07-1453,2008 Fla. LEXIS 161.4(Fla. September 18, 2008) ..................26

State v. Campbell,948 So. 2d 725 (Fla. 2007) ..................26

State v. Collins,581 A.2d 69 (N.H. 1990) ..........14, 15, 16, 17

State v. Young,974 So. 2d 601 (Fla. 1st DCA 2008) .......passim

STATUTESAND CONSTITUTIONALPROVISIONS

U.S. Const. amend. IV ..................passim

Fla.Const. Art. I, § 12 ...................... 8

28 U.S.C. § 1257(a) ........................ 3

vii

No.

IN THESUPREME COURT OF THE UNTIED STATES

STATE OF FLORIDA, Petitioner

Vo

ERIC M. YOUNG, Respondent

ON PETITION FOR AWRIT OF CERTIORARI TO

THE FLORIDA FIRST DISTRICTCOURT OF APPEAL

OPINION BELOW

The opinion of the Florida First District Courtof Appeal on motion for rehearing and certificationbelow is published at State v. Young, 974 So. 2d 601(Fla. 1st DCA 2008). (App. A). The State filed botha motion for rehearing and a motion for rehearing enbanc in the district court. The Florida First Districtdenied both, but substituted the aforementionedopinion on its own motion. The State moved toinvoke the jurisdiction of the Florida Supreme Court,which declined jurisdiction. (App. B).

JURISDICTION

The judgment of the Florida First DistrictCourt of Appeal was entered on February 25, 2008.The order of the Florida Supreme Court decliningjurisdiction was entered on July 11, 2008. This Courthas jurisdiction pursuant to 28 U.S.C. § 1257(a).

CONSTITUTIONAL OR STATUTORYPROVISIONS INVOLVED

The Fourth Amendment to the United StatesConstitution provides:

The right of the people to be secure intheir persons, houses, papers, andeffects, against; unreasonable searchesand seizures, shall not be violated, andno Warrants shall issue, but uponprobable cause, supported by Oath oraffirmation, and particularly describingthe place to be searched, and thepersons or things to be seized.

STATEMENT OF THE CASE

The State charged Respondent, Pastor Young(hereinafter Young), with possession of childpornography as a result of a video, amongst otherpornographic material, located on the hard drive ofhis workplace computer entitled "3yogetsraped." (SRvol. I, Part II; SRII 1).1

Young, the pastor at the Fort Caroline UnitedMethodist Church was one of three full-time andseveral part-time staff. (RI 51). The pastor’s office,had a separate key, however, there were three copiesof that key. (RI 52). Young possessed two copies andthe third copy remained in the church office in thecustody of the office administrator in case the pastoror someone else needed to enter the office. (RI 52).

The office administrator testified she hadprovided Young’s wife with access to the computer inthe pastor’s office when he was not present. (RI 63-64). Additionally, the church trustees or staff parishwould have the right to use the third key. (RI 54).The church had no written policy regarding the useof the third key, (RI 53), nor did Young have anywritten policy regarding access to his office. (RI 191).The office administrator could come and go from hisoffice freely, if Young was present. When he was not,the office administrator would enter his office "if shehad to deliver paperwork for me to sign, that would

~Citation to SR and R are references to the matterscontained in the original record on appeal.

be a reasonable business sort of thing for her to do"and the custodian was let into his office to clean bythe church administrator. (RI 173).

The church purchased the computer it owned,that was kept in the pastor’s office in May 2004, andpaid for an internet connection through BellSouth.(RI 61-62). Testimony revealed, the officeadministrator served as the contact person forBellSouth regarding internet service, includingchanging e-mail addresses and user names. (RI 62-63). Young admitted that the office administratorhad the authority to come into the pastor’s office andconduct internet repairs. (RI 185). Young agreedthat looking at pornography constituted using thecomputer for non-church purposes and unauthorizedactivity. (RI 184-85). Young further admitted thatno one at the church ever indicated to him that theycould not go into his office to look at the computer.(RI 134). Young’s computer was not passwordprotected, and he did not keep his counseling noteson the computer. (RI 56, 134, 140).e

On June 15, 2005, the church’s officeadministrator received a call from BellSouth

2 For example, when a problem previously occurred withthe internet service at the church, (RI 64), pursuant toBellSouth’s request, the office administrator checked eachcomputer at the church, including the one in Young’s office, toascertain whether the problem had been fixed. (RI 64-65). Infact in March 2005, the office administrator shipped Young’scomputer from his office ~br repairs. (RI 65).

4

related to spam from the church’s internet protocoladdress. (RI 66). As a result of the conversation, theoffice administrator accessed her computer andPastor Young’s computer to .run a program calledSpybot, which returned "some very questionable website addresses" on only Pastor Young’s computer. (RI67-68).

Reverend Neal, the church’s districtsuperintendent who had oversight of Young’sactivities, was told about allegations of impropercomputer use on June 22, 2005. (RI 79). Specifically,Neal was told that the church had received acomplaint from BellSouth indicating that childpornography traffic had been tracked to the church.An expert came in and determined that the computerhad pornographic material on it. (RI 80).

Reverend Neal discussed the matter with thebishop and, pursuant to that conversation,authorized Mr. Moreland, the chairman of the staff"parish committee, to notify "the authorities that wehad a problem and allow them to see the computer."(RI 80). Reverend Neal further told Mr. Moreland toauthorize the search of the church buildings and turnover the church computers, including Young’scomputer. Mr. Moreland subsequently gave lawenforcement consent to search. (SRI 84).

Reverend Neal, as district superintendentpursuant to the United Methodist Church Book ofDiscipline, contacted Young and informed him not tohandle the computer and "suggested" Pastor Young

"not go into the office but return home" untilReverend Neal could speak with him. (RI 81).Reverend Neal later spoke to Agent Roman andconfirmed that law enforcement had permission toexamine the computer. (RI 83-84).

Detective Boyraer was contacted by a patrolofficer regarding a complaint from the church. (RI124). Boymer spoke with church officials andenlisted the assistance of Agent Roman, to help inhandling the matter. (RI 97, 99, 124, 126). Boymerand Roman both received consent to search fromMoreland, who stated that he had authority toconsent to the searc:h from his supervisors in thechurch. Neither Boymer nor Roman obtained asearch warrant. (RI 110, 142).

Agent Roman learned that an IT person foundwhat he believed to be images of child pornographyon the computer in Young’s office. (RI 101). The ITperson burned a copy of some of the images andprovided the CD to the church. (RI 101). Roman alsospoke with the office administrator, who conveyedsimilar information. (RI 102). Finally, Roman spoketo Reverend Neal during the search, who stated thatthe church’s position was "to fully cooperate with theinvestigation," and that Mr. Moreland would assistthem with whatever ~Lhey needed. (RI 102-03).

As a result of Roman’s request for permissionto search the office and computer, Moreland let theminto the office. (RI 103). Moreland signed thewritten consents to search the computer. (RI 103).

While inside Young’s office, Roman seized papersfrom in or next to the trash can, which containedhandwritten notations "http://cutie.does.it" and"www.videoteenage.com" along with a user name andpassword. (RI 106).

Pretrial, the trial court granted Young’smotions to suppress, (RI 27, 34, 35-39), concludingthat "[t]he issue presented is whether the officials ofthe United Methodist Church involved in this casewho consented to the search of the office andcomputer had lawful authority to consent in theabsence of consent by the Defendant." (RI 37). Inconcluding the officials had no authority, the trialcourt reasoned:

The law enforcement officersknew that they were investigatingpossible criminal activities by theDefendant, not the church ....

As pastor of the church, theDefendant had a reasonableexpectation of privacy in the pastor’soffice and the computer provided for hisexclusive use. The church did not havea policy or practice which would causethe Defendant to believe that the officeor computer might be searched withouthis consent so long as he served aspastor. He had standing to object to thesearch of the office and computer.Although the church officials involved

7

in this case requested law enforcementinvolvement and clearly consented tothe search under authority granted byThe Book of Discipline, the rules ofchurch contained therein do not causethe Defendant to lose rights under theconstitutions of the United States andthe State of Florida.

(RI 38).

The State appealed and the Florida FirstDistrict Court of Appeal affirmed the granting of themotion to suppress the evidence seized. State v.Young, 974 So. 2d 601,606 (Fla. 1st DCA 2008). Theappellate court noted that under Article I, section 12of the Florida Constitution, it was required to resolveall Fourth Amendment issues under the UnitedStates Constitution as interpreted by this Court.See id. at 608.

The state appellate court held that Youngmust establish that he had standing under theFourth Amendment by demonstrating that hepossessed a reasonable expectation of privacy in thearea searched or item seized. See Young, 974 So. 2dat 608. With respect to the workplace computer, thecourt noted "the reasonableness of an employee’sexpectation of privacy in his or her office or the itemscontained therein depends on the ’operationrealities’ of the workplace." Id. (quoting O’Connor v.Ortega, 480 U.S. 709, 717 (1987))(citing Mancusi v.DeForte, 392 U.S. 364, 369 (1968)). Further, "[t]he

8

likelihood that a person has an objectivelyreasonable expectation of privacy in an office settingis increased where the area or item searched is’reserved for [the defendant’s] exclusive personaluse.’" Id. (alteration in original)(quoting Mancusi, 392U.S. at 369). Additionally, the court cited the case ofUnited States v. Anderson, 154 F.3d 1225, 1232 (10thCir. 1998), and listed other factors useful indetermining the legitimate expectation of privacy inan office, including "the employee’s relationship tothe item, whether the item was in the employee’simmediate control when it was seized, and whetherthe employee took actions to maintain a sense ofprivacy in the item." Id. The court determined that"[e]valuation of an expectation of privacy in aworkplace computer involves unique considerations,but as with any other item in the workplace, theevaluation should focus on the operational realitiesof the workplace." Id__ at 608-09. The court continuedstating, "[w]hen a computer is involved, relevantfactors include whether the office has a privacy policyregarding the employer’s ability to inspect thecomputer, whether the computer is networked toother computers, and whether the employer (or adepartment within the agency) regularly monitorscomputer use." Id__ at 609. The court cited thedecisions of the federal circuit courts in UnitedStates v. Angevine, 281 F.3d 1130 (10th Cir. 2002)and Muick v. Glenavre Electronics, 280 F.3d 741, 742(7th Cir. 2002). See id._

The court held that once a legitimateexpectation of privacy is established, then the State

9

"must prove that the search and seizure wasreasonable in order to use the evidence secured inthe search and seizure at trial." Young, 974 So. 2d at609. The court stated that a "search and seizure isreasonable if it is conducted pursuant to a validwarrant or with valicl consent" and further foundthat consent must be; obtained from the individualwhose property is searched, a person with commonauthority over the premises, or someone whoreasonably appeared to have common authority overthe premises, citing Illinois v. Rodriguez, 497 U.S.177, 181, 188-89 (1990). Id.

Utilizing the definition of common authorityfrom Rodriguez, the court found common authorityresulted from mutual use and joint access for mostpurposes. See id. The court relied on United Statesv. Matlock, 415 U.S. 164, 171 (1974), to establish thatthe basis of this rule is essentially that one partyassumes the risk that the other will permit the areato be searched. See id. The court rejected thestatement in United States v. Zeigler, 474 F. 3d 1184,1191 (9th Cir. 2007), which provided that "thecomputer is the type of workplace property thatremains within the control of the employer ’even ifthe employee has placed personal items in [it].’"Young, 974 So. 2d at 609. The court found that thecourt in Zeigler relied on the specific facts of the casesuch as the company had an IT department withcomplete administrative access to the company’scomputers, had a firewall to monitor internet traffic,and an employment manual informing employees ofthe monitoring efforts. See id. at 610. With respect

10

to the apparent authority doctrine, the courtindicated that in some cases where the personconsenting to the search may not have actualauthority, law enforcement may rely on the person’sapparent authority to give consent. See id. The courtnoted that the reliance must be reasonable. See id.

The court finally stated that "[i] fthe State failsto prove a search and seizure was reasonable underconstitutional standards, any evidence obtainedeither directly or indirectly therefrom must beexcluded from the defendant’s criminal trial." Young,974 So. 2d at 611 (citing Wong Sun v. United States,371 U.S. 471, 484 (1963)). As a result, the courtdetermined that Young had a legitimate expectationof privacy in his office and workplace computer.See id. The court found that the totality of thecircumstances, including the fact that Young kept hisoffice locked when he was away and it was used byothers for only limited purposes, indicated that he"expected no one to peruse his personal belongings inthe office or on the computer." Id__ Additionally, thecourt concluded that this expectation was one thatsociety was prepared to recognize. See id. The courtfound "that the church endowed [Young] with anexpectation of privacy far beyond that which anaverage employee enjoys" because the churchinstalled a special lock on the door, Young allowedvisitors into his office for only limited churchpurposes or with his permission, and because he wasthe sole regular user of the computer. See id. Thecourt stated that although the church administratorperformed maintenance on the computer, neither

11

she nor anyone else, stored files on or used thecomputer. .See id. The court also found that thechurch had no written policy regarding the use ofthe computer. See id..

While the district superintendent had theauthority to enter the office and inspect thecomputer under the provisions of the Book ofDiscipline, the court observed "that this generalauthority to supervise a pastor is distinguishablefrom an explicit policy indicating that a computerwill be inspected periodically." Young, 974 So. 2d at612. The court concluded that "this authority did notdisplace the law enforcement officers’ obligation torespect [Young’s] independent constitutional rightsand it did not rise to the level of ’common authority’required for valid third party consent." Id__ The courtbased this conclusion on the fact that neitherMoreland nor the District Superintendent ever usedthe computer, worked in the office, or kept propertythere. See id.

The court held that the officer’s actions did"not support a finding of apparent authority." Id__The court determined that the officers knew nothingof Moreland other than the fact that he was a churchrepresentative who ~Lad been told by a supervisor toconsent to the search. .See id. The officers wererequired "to ascertain whether the consentingofficials had any regular access to or control over theoffice and the computer before commencing thesearch," and found that the officers’ actions "were notreasonable under constitutional standards." Id__

12

REASONS FOR GRANTING THE WRIT

Preliminary Statement

The burgeoning prosecution of cybercrimesnecessitates that clear and well thought throughFourth Amendment analysis is applied to workplacecrimes. Thus while this case presents what appearsfacially to be a simple question of whether a privateemployer has the right to investigate employeemisconduct and request the assistance of lawenforcement once it has found suspicious activity,this area of the law has not been specificallyconsidered by the Court. The absolute necessity ofcomputer usage in the private workplace and thegrowth of crimes related to internet usage mandatesclear guidelines and standards in applying theFourth Amendment. State and federal courts shouldnot be left to cobble together Fourth Amendmentdecisions which thus far have provided little or noguidance to employers and law enforcement officers.Additionally, in this case, the Florida courtcompletely disregarded prior Supreme Courtprecedent when it indiscriminately applied theexclusionary rule.

The Search of a Workplace by a Private Employeror Its Designee and the Involvement of Law

Enforcement at the Private Employer’s RequestDoes Not Implicate the Protections of the Fourth

Amendment

13

The Court has not squarely addressed theparameters of permissible intrusion into theworkplace by law en~0rcement at the request of theprivate employer. Private employers, such as theUnited Methodist Church, should and are permittedto inspect the computers of their employees withoutsatisfying the prerequisites imposed by the FourthAmendment because they are not government actors.Despite this tenant, the Florida appellate courtrejected that principle and concluded that a violationof the Fourth Amendment occurred when PastorYoung’s computer was subsequently searched forpornographic material. It is apparent that withoutclearly established precedent, the federal and statecourts have been left to divine a variety of results insimilar circumstances which have been accomplishedthrough general extrapolation and cobbling ofdecisions of the Court.

Perhaps the best approach has been utilized bythe New Hampshire Supreme Court in State v.Collins, 581 A.2d 69, 72-73 (N.H. 1990), adopting aMatlock based analysis. Interpreting Matlock andits application in the employer-employee relationshipcontext, that court found that the State is "entitled toshow that permission to search was obtained from athird party who possessed common authority over orother sufficient relationship to the premises oreffects sought to be inspected." (citing Matlock, 415U.S. at 171)(emphasis added). The court noted thatbecause of the factual situation in Matlock, the Courtdid have to examine the "other sufficientrelationship" and its applicability..See id.

14

In Collins, the rights of the employer to giveconsent to search resulted from the employer’sownership of the vehicle and his employment of thedefendant. See id. The court found that"[e]ntrusting a truck to an employee does not,without more, imply any limitation on the employer’scontinuing right to deal with the truck as he sees fitor to allow others to have access ~o it." Id. Thedefendant argued that the fact that he had theexclusive right to use the vehicle should result in theconclusion that the employer could not consent.See id. The court rejected the argument stating thatthis proved "nothing more than the defendant’sauthority, derived from his employer, to control theaccess of other employees to the vehicle." Id__ Thecourt also found that even though the employer didnot use the vehicle, "his inactivity does notreasonably imply an agreement with his employee toobserve some limitation on his rights as an owner ofbusiness property to deal with it in whatever way hemight think appropriate." Id__

The New Hampshire court evaluated theadditional fact that Collins had permission to use thevehicle for personal reasons. The court stated thatuntil the employer’s "permission was revoked and itsrevocation communicated to the employee, it wouldbe arguable that the employee could assume that theemployer would not open the building or vehicle tothe police simply to facilitate a criminalinvestigation unconnected with the employmentrelationship." Id. However, the court concluded:

15

Such an expectation that theemployer would not enter or permit apolice search would be whollyunreasonable~ however~ as against anemployer with reason to believe thatthe employee’s space in the building orvehicle itself had been used in thecourse of committing a q..r~ime, especiallyif the victim was the employer’scustomer whom it was the employee’sduty to serve. An employee couldhardly infer l~hat a right to makepersonal use of a vehicle carried theimplication that his employer hadsomehow barred himself from givingthe police access to a businessinstrumentality that he had reason tobelieve the employee had used in breachof his employment obligation as well asof the criminal law.

Id._ (emphasis added).

The court found that the employer had dutiesto his tenants which were:

distinct from and independent of anycitizen’s general obligation to aid inthe detection of crime. The employer’sown interest is thus identical with theinterest of the government in detectingcrime, and in these circumstances, noemployee could sensibly understand

16

his employer to have limited his ownpower to detect crime in his ownbusiness by placing business propertyoff-limits to the police, simply becausethe employee was allowed to makepersonal use of that property when hewas not using it to discharge hisassigned business responsibilities.

Id. As a result, the court found that the consent tosearch provided by the employer was sufficient.See id.

Mindful of this Court’s decision in Matlock,415U.S. at 171, the federal circuit courts for the Fourthand Seventh Circuits have applied a "Matlock-like"analysis looking to the relationship between theprivate employer and employee and the item seizedto determine whether a Fourth Amendment violationhas occurred.

In United States v. Carter, 569 F.2d 801, 803(4th Cir. 1977), the Fourth Circuit upheld the denialof a motion to suppress evidence where the employerhad consented to the search of an employer ownedvehicle assigned to and exclusively utilized by thedefendant. Applying the Matlock "other sufficientrelationship test," the court evaluated the sufficiencyof the employer’s consent. While recognizing that theownership of the vehicle was not alone sufficient tojustify the employer’s consent to search, the courtfound that the ownership of the vehicle could not beignored because it formed the basis of the

17

relationship between the defendant and theemployer. See id. The court stated:

Because of that relationship, Cartercould not expect to use the vehicle freefrom inspection by either his employeror by the police acting with hisemployer’s consent.

Carter was assigned the truck for use inthe performance of his duties as anemployee .... t~’,scann, as owner of thebusiness, could tell Carter what hecould do, or what he could not do, withthe company’s vehicle. Even though hewas allowed to take the truck home atnight, Carter was not authorized to usethe truck for a3ay purpose unconnectedwith the business. Moreover, Escann,at his caprice, c.ould reassign the van toanother empl.oyee. Clearly, thedefendant used. the vehicle solely at theowner’s sufferance.

Id__~. Thus, the court concluded that "’everycircumstance points inescapably to the conclusionthat the searching officers acted in perfect good faithin relying on the authority’ of the owner of thevehicle." Id__~. (quoting U.S.v. Peterson., 524 F.2d 167,180 (4th Cir. 1975).

Similarly, the Seventh Circuit in United Statesv. Bilanzich, 771 F.2d 292, 296 (7th Cir. 1985), found

18

that a co-owner of a hotel could give valid consent tosearch a business office where the defendant, thehotel manager, kept the hotel’s books and performedher managerial duties, despite the fact that he didnot have a key, using the Matlock standard. Thehotel owner had to request that the defendant givehim access to the room, but the items seized werelocated in an unlocked desk and file drawers. Se.e id.The court agreed that the defendant "’confuse[d]office routine and practice with the concept ofpossessory rights giving rise to an expectation ofprivacy.’" Id__ The court held that "the owner of abusiness who exercises authority over a managementemployee has the authority to consent to a search ofthe business’ premises, including all employee offices,for records relating to the business." See id.

In contrast to its decision in Bilanzich, ratherthan utilizing its previous Matlock based approach,the Seventh Circuit utilized this Court’s decision inO’Connor, which involved actions by a publicemployer, to reach its determination in Muick. 280F.3d. Muick was arrested for receiving childpornography. At the request of law enforcement, theemployer, Glenayre, seized the laptop that it hadissued to Muick for use at work. See id. JudgePosner, writing for the Seventh Circuit, stated that"Muick [the employee] had no right of privacy in thecomputer that Glenayre [the employer] had lent himfor use in the workplace." Id.. at 743. Judge Posnercontinued that "[n]ot that there can’t be a right ofprivacy (enforceable under the Fourth Amendment ifthe employer is a public entity, which Glenayre we

19

have just held was not) in employer-ownedequipment furnished to an employee for use in hisplace of employment." Id. The court noted that if anemployer furnished a receptacle, like a safe, in theemployee’s office for keeping the employee’s privatedocuments, then the employee "can assume that thecontents of the safe are private." Id. (citingO’Connor, 480 U.S. at 718-19).

Rather than utilizing either a Matlock basedapproach or a purely O’Connor based analysis, theTenth Circuit applied a case-by-case analysisutilizing both this Court’s decision in O’Connor andits decision in Anderson to reach its decision inAngevine, 281 F.3d at 1132. The court reviewed theclaim of a professor, who had been provided acomputer pursuant t~ his employment at OklahomaState University, where the university had a policyon the use of its computers. See id. at 1132-34. Theprofessor’s computer had been networked with otheruniversity computers and used to download 3000pornographic pictures involving young boys. See id.at 1132.

The Angevine ,court recognized the O’Connordecision and noted that an employee’s expectation ofprivacy is addressed on a case-by-case basis. See id.at 1134. The court set forth factors to be consideredincluded: "’(1) the em~ loyee s relationship to the itemseized; (2) whether the item was in the immediatecontrol of the employee when it was seized; and (3)whether the employee took actions to maintain hisprivacy in the item."’ Id__ (quoting Anderson, 154

2O

F.3d at 1229). The court found that the computer usepolicy prevented Angevine from having anyreasonable expectation of privacy in the computer.See id. The court also found that this court’sMancusi decision was not applicable becauseAngevine did not have custody of the data at themoment of its seizure as he had deleted it. See id.. at1135.

Finally, the Ninth Circuit in Zeigler, 474 F.3d,used both the O’Connor approach to determine thereasonable expectation of privacy component andMatlock to determine whether an employer couldconsent to the search. The Zeigler court evaluatedwhether an employee had an expectation of privacyin his workplace computer, such that images of childpornography were properly suppressed. See Zeigler,474 F.3d at 1185. The owner of Frontline, a privatecompany, contacted the FBI with a tip that anemployee had accessed child pornography websitesfrom a workplace computer. See id. at 1185-86. TheFBI agent contacted Frontline’s internet technology("IT") administrator and learned that the companyhad in place a firewall to monitor all employeeinternet activity. See id. The FBI agent confirmedthe information provided to him by the owner, andthe IT employee stated that he had viewed thewebsites accessed by Zeigler, which containedpictures of very young girls. See id. The ITadministrator further told the FBI agent that amonitor had been placed on Zeigler’s computer torecord its internet traffic. See id.

21

At some point, Frontline made a copy ofZeigler’s hard drive. See id. The record containeddisputed facts as to whether this was done at therequest of the FBI agent or not. See id. Thereafter,counsel for Frontline contacted the FBI agent andindicated it would cooperate fully in theinvestigation. See id. at 1187. Frontline’s counselindicated that it would voluntarily turnover Zeigler’scomputer to the FBI and did so. The FBI found childpornography on the computer. See id.

On appeal, Zeigler argued that his officecomputer was like the desk drawer or file cabinetwhich had been given protection in cases likeO’Connor, 480 U.S. See_ Zeigler, 474 F.3d at 1188.Citing Katz v. United States, 389 U.S. 347, 351(1967), the Zeigler court noted that the FourthAmendment protects people rather than places.See id. at 1189. The court stated that "a criminaldefendant may invoke the protections of the FourthAmendment only if he can show that he had a]egitimate expectation of privacy in the placesearched or the item seized." Id__ (citing Smith v.Maryland, 442 U.S. 735, 740 (1979))(emphasis inoriginal). The court continued that "[t]hisexpectation is established where the claimant canshow: (1) a subjective expectation of privacy; and (2)an objectively reasonable expectation of privacy."Id~ (citing Smith, 442 U.S. at 740, and Katz, 389U.S. at 351, 361). The court concluded that Zeiglerhad the burden to prove both elements. See id.

In Zeigler, the government did not contest

22

Zeigler’s claim that he had a subjective expectationof privacy in his office and computer. See id. Zeiglerestablished that he used a password on the computerand had a lock on his office door. See id. The courtnoted that Zeigler’s expectation of privacy in hisoffice also had to be objectively reasonable. See id.

Since no warrant had been obtained, the courtrequired the government prove that consent had beenobtained. See Zeigler, 474 F.3d at 1190-91. Thecourt applied the Matlock holding permittingconsent to come be obtained from a third party. Seeid__ at 1191. The court evaluated the ability ofFrontline to validly consent to the search under theMancusi decision. See id. Noting that this Courtstated in MancusL 392 U.S., that DeForte’sexpectation of privacy in his office and items seizedwas based upon the expectation that the recordswould not be seized without his permission or thepermission of his supervisors, the Zeigler courtconcluded that his "interest may be subject to thepossibility of an employer’s consent to search of thepremises which it owns." Id. The court found thatFrontline could validly consent to the search of the"workplace computer because the computer is thetype of workplace property that remains within thecontrol of the employer ’even if the employee hasplaced personal items in [it].’" Id__ (quoting Ortega,480 U.S. at 716)(alteration in original).

The Zeigler court explained that theworkplace computer is different from a piece ofclosed personal luggage brought into the workplace.

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See Zeigler, 474 F.3d at 1191. The court found thateven though each computer had an individual log’in,the IT department had administrative access to thecomputers. See id. The court also found that thecompany had installed firewalls monitoring internettraffic. See id. The court additionally stated that thecompany had told its employees that the computerswere for business use and the computers were not tobe used for personal purposes. See id. The courtconcluded that Zeigler

could not have reasonably expectedthat the computer was his personalproperty, free from any type of controlby his employer. The contents of hishard drive, like the files in Mancusi,392 U.S. at 369, were work-relateditems that contained businessinformation and which were providedto, or created ]by, the employee in thecontext of the business relationship.Zeigler’s downloading of personal itemsto the computer did not destroy theemployer’s common authority.

Id.. at 1192-93. Therefore, the employer couldconsent to the search of the office and the computer.See id. at 1193.

Just as the Florida court has done here, thefederal courts have failed to keep a clear distinctionbetween public and private employers and theiractions. In other cases, the courts have analyzed the

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private employer’s ability to consent under thestandards announced in Matlock. The resolution ofthe question presented in this case is important tosmaller businesses and to businesses withoutextensive work place regulations. Currently, privateemployers and law enforcement have been placed inan untenable situation because they lack necessaryguidance as to the measures they may take to stopcriminal activity in the workplace. Worse yet, thedecision of the Florida court has left, in this instance,the church without any authority to stop itsemployees from utilizing work place computers totraffic in child pornography. The Court shouldaccept this case to settle the question of whether aprivate employer may consent to the search ofemployer owned property which has been provided toan employee for his use, thereby settling theuncertainty in this area of the law.

The Florida Court Indiscriminately Applied theExclusionary Rule Without Undertaking the

Analysis Required by This Court’s Precedent.

The Florida court moreover failed to complywith this Court’s pronouncements in United Statesv. Leon, 468 U.S. 897 (1984), and the more recentdecision in Hudson v. Michigan, 547 U.S. 586 (2006),specifically rejecting the "indiscriminateapplication" of the exclusionary rule. Review iswarranted in this case to clarify that application ofthe balancing test is required rather than anindiscriminate application of the exclusionary rule

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without evaluation of the societal costs ofsuppressing evidence compared to its deterrenteffect.3

In Leon, the Court explained the evolutionand purpose of the exclusionary rule stating:

The Fourth Amendment contains noprovision expressly precluding the useof evidence obtained in violation of itscommands, and an examination of itsorigin and purposes makes clear thatthe use of fruits of a past unlawfulsearch or seizure "[works] no newFourth Amendment wrong." United

States v. Calandra, 414 U.S. 338, 354(1974). The wrong condemned by theAmendment is "fully accomplished" by

the unlawful search or seizure itself,ibid., and the exclusionary rule isneither intended nor able to "cure the

3The Florida courts, which are required to resolve FourthAmendment issues under the United States Constitution asinterpreted by this Court often fail to apply the balancing testas required. For instance, recently in Baptiste v. State, SC07-1453, 2008 Fla. LEXIS 1614 (Fla. September 18, 2008), JusticeWells pointed out in his dissent that the majority failed toundertake the essential two part evaluation required by thisCourt’s precedent, that being first whether a violation of theFourth Amendment occurred and second application of the.Leonand Hudson analysis. See also State v. Campbell, 948 So. 2d 725(Fla. 2007)(review dismissed)(Justice Wells dissenting andcautioning that not every violation of the Fourth Amendmentrequires the application of the exclusionary rule).

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invasion of the defendant’s rightswhich he has already suffered." Stonev. Powelk [428 U.S. 465, 540 (1976)](WHITE,J., dissenting). The rule thusoperates as "a iudiciallv createdremedy designed to safeguard FourthAmendment rights gene.rallv throughits deterrent effect, rather than ~personal constitutional right of theparty aggrieved." United States v.Calandra, su~p_~, at 348.

Id._ at 906 (emphasis added).

Whether the exclusionary sanction isappropriately imposed in a particularcase.., is "an issue separate from thequestion whether the FourthAmendment rights of the party seeking..to invoke the rule were violated bvpolice conduct." Illinois v. Gates, [462U.S. 213, 223 (1983)].

Id.. (emphasis added). As to the mandate to applythe rule from Leon, this Court stated"

"Our cases have consistently recognizedthat unbending application of theexclusionary sanction to enforce idealsof governmental rectitude wouldimpede unacceptably the truth-findingfunctions of iudge and iurv." UnitedStates v. Pavner, 447 U.S. 727, 734

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(1980). An objectionable collateralconsequence of this interference withthe criminal justice system’s truth-finding function is that some guiltydefendants may go free or receivereduced sentences as a result offavorable plea bargains. Particularlywhen law en~0rcement officers haveacted in obiective good faith or theirtransgressions have been minor, themagnitude of the benefit conferred onsuch guilty defendants offends basicconcepts of the criminal iustice system.Stone v. Powell, 428 U.S., at 490.Indiscriminate application of theexclusionary r~ale, therefore, may well"[generate] disrespect for the law andadministration of justice." Id., at 491.Accordingly, "[as] with any remedialdevice, the application of the rule hasbeen restricted to those areas where itsremedial obiectives are thought mostefficaciously served." United States v.Calandra, supra, at 348; see Stone v._Powell, su~r~, at 486-487; UnitedStates v. Janis, 428 U.S. 433, 447(1976).

Id__ at 907 (footnote omitted)(emphasis added).

And in Hudson, 547 U.S. at 591"599, thisCourt urged that exclusion must not be posited basedsolely on the fact that a constitutional violation

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occurred, but must rather be evaluated by balancingthe societal costs of suppressing evidence ascompared to the deterrence benefits.

The Florida court failed to comply with theCourt’s holdings in Leon and Hudson, as itarticulated that "[i]f the State fails to prove a searchand seizure was reasonable under constitutionalstandards, any evidence obtained either directly orindirectly therefrom must be excluded from thedefendant’s criminal trial." Young, 974 So. 2d at 611(citing Wong Sun v. United States, 371 U.S. 471, 484(1963)).

Applying the balancing test here, the outcomefavored not excluding the evidence.

The Florida court’s decision excluded theevidence despite the fact that the church, as thecomputer’s owner, could have simply taken thecomputer during its search of the pastor’s office,turned it over law enforcement, and no FourthAmendment violation could have been alleged.See Burdeau v. McDowell, 256 U.S. 465, 475 (U.S.1921); Coolidge v. New Hampshire, 403 U.S. 443,489-90 (U.S. 1971).

Even assuming a constitutional violationoccurred, there was, and is, no remedial purposeserved by the suppression of the evidence. Rather,the decision unduly discourages citizens, such as thechurch employees and members, and the churchitself from reporting crime and aiding in the

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apprehension of a criminal. Because the Floridacourt’s decision "offends basic concepts of thecriminal justice system," the Court should acceptcertiorari in this case.

CONCLUSION

Therefore, fc, r the foregoing reasons,Petitioner respectfull:y requests this Court grant thepetition for certiorar:[ and establish clear guidancefor the lower courts, employers and law enforcementas to the application of the Fourth Amendment incases involving priw~te employer requests for theassistance of law enforcement once the privateemployer has uncovered what it believes to becriminal wrongdoing. At a minimum, Petitionerrequests this Court accept certiorari and reversethe decision of the Florida court and mandate thelower court properly apply the balancing testrequired by this Court in United States v. Leon, 468U.S. 897 (1984), and Hudson v. Michigan, 547 U.S.586 (2006).

3O

Respectfully submitted,

BILL McCOLLUMATTORNEY GENERAL

CAROLYN M. SNURKOWSKIASSISTANT DEPUTY ATTORNEY

GENERAL

CHRISTINE ANN GUARDASSISTANT ATTORNEY GENERAL

PL-01, The CapitolTallahassee, Florida 32399-1050

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