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No. 98-1583


In the Supreme Court of the United States

OCTOBER TERM, 1998



UNITED STATES OF AMERICA, PETITIONER

v.

JAMES S. ANDERSON



ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT



PETITION FOR A WRIT OF CERTIORARI



SETH P. WAXMAN
Solicitor General
Counsel of Record
JAMES K. ROBINSON
Assistant Attorney General
MICHAEL R. DREEBEN
Deputy Solicitor General
JEFFREY A. LAMKEN
Assistant to the Solicitor General
SEAN CONNELLY
Attorney
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTION PRESENTED
Whether an employee may claim the protection of the Fourth Amendment against a search of an office at his employer's place of business, where the office is not the employee's own work space or similar area.




In the Supreme Court of the United States
OCTOBER TERM, 1998



No. 98-1583

UNITED STATES OF AMERICA, PETITIONER

v.

JAMES S. ANDERSON



ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT



PETITION FOR A WRIT OF CERTIORARI



The Solicitor General, on behalf of the United States of America, respectfully petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Tenth Circuit in this case.
OPINIONS BELOW
The opinion of the court of appeals (App., infra, 1a-24a) is reported at 154 F.3d 1225. The opinion of the district court (App., infra, 25a-39a) is unreported.
JURISDICTION
The judgment of the court of appeals was entered on September 15, 1998. A petition for rehearing was denied on December 1, 1998 (App., infra, 40a-41a). On February 19, 1999, Justice Breyer extended the time within which to file a petition for a writ of certiorari to and including March 31, 1999. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).
CONSTITUTIONAL PROVISION INVOLVED
The Fourth Amendment to the United States Constitution provides:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
STATEMENT
Respondent James S. Anderson was indicted on one count of conspiring to knowingly receive and distribute child pornography via the Internet, in violation of 18 U.S.C. 2252(a)(2)(b), and two counts of knowingly transporting and shipping child pornography, in violation of 18 U.S.C. 2252(a)(1). The district court ordered the suppression of evidence found by the FBI at respondent's place of employment as well as incriminating statements respondent made at that location, and the court of appeals affirmed.
1. This case arises from a successful sting operation conducted by the FBI to identify and prosecute individuals engaged in the interstate trafficking of child pornography. In July of 1996, respondent, a member of an Internet chat room known as the "Orchid Club," agreed to exchange child pornography with another member, Paul Buske. After respondent sent Buske blank videotapes on which to record the child pornography, Buske sent videotapes purporting to contain child pornography to respondent's post office box. On Saturday, July 6, 1996, respondent retrieved the tapes. App., infra, 1a-2a, 26a. Unbeknownst to respondent, Buske-who had been arrested by the FBI on child pornography charges about a month earlier- was assisting the FBI; the tapes in fact were blank; and FBI agents were following respondent when he picked up the tapes. Ibid.
Respondent drove, with FBI agents in covert pursuit, to an office building occupied by ATD Corporation, where respondent was Vice President of Research and Development. Using his key card, respondent opened the front door and carried the tapes inside, allowing the door to lock behind him. App., infra, 2a, 26a-27a. Shortly thereafter, FBI agents became concerned that respondent might view the tapes, discover that they were blank, and realize that he had been the subject of a sting; he might then attempt to destroy evidence linking him and others to child pornography, the agents feared. Id. at 2a; see id. at 32a-33a. The agents rang the building's doorbell and knocked on the front door; respondent did not answer. Id. at 2a, 27a. They sounded a siren, but respondent (who was not wearing his hearing aids) did not respond to that either. Ibid. Concerned that respondent might be destroying evidence-a concern that was heightened by the belief that the building contained an incinerator that could be used to achieve that end-the FBI agents decided to enter the building and detain respondent. Id. at 3a, 32a-33a.
The FBI found respondent in a vacant office on the second floor-room 222-attempting to view child pornography. Room 222 had no desk, no telephone, no files, and no name plate on the door. App., infra, 8a n.1; id. at 23a (Kelly, J., dissenting); Gov't C.A. App. 119 (Tr. 341). It was, in respondent's words, a vacant office that "had no use at all." App., infra, 8a n.1; Gov't C.A. App. 120 (Tr. 35). Respondent has not claimed that he had any prior connection to the room; nor does he claim that he had ever used it even on a single occasion before. App., infra, 8a n.1; id. at 23a (Kelly, J., dissenting). That day, however, respondent had entered the room with the tapes, drawn the curtains, and placed a towel over an interior window. Id. at 3a, 27a. Consequently, when FBI agent Joseph Bradley opened the unlocked door to room 222, he found respondent inside, in front of a VCR and television borrowed from another room, attempting to watch the video Buske had sent him. Ibid.; see id. at 23a (Kelly, J., dissenting); Gov't C.A. App. 120 (Tr. 35).
After respondent was read his Miranda warnings, he stated that he understood his rights and that he wished to cooperate; he also signed a written waiver of his rights. App., infra, 4a, 28a. Respondent then admitted his involvement in child pornography on the Internet and, after consenting to a search of his own office, told the FBI agents where in that office they would find child pornography. Ibid. Pursuant to a warrant that the agents had obtained before respondent picked up the videotape sent by Buske, the FBI then searched respondent's home. That search revealed, among other things, more child pornography. Ibid.
2. After a hearing, the district court granted respondent's motion to suppress. App., infra, 25a-39a. The court held that the FBI's warrantless entry into the ATD Corporation office building and the vacant office where respondent was found constituted an unlawful search, and that respondent's consent to the search of his own office and his incriminating statements were fruits of the unlawful search. The court therefore granted respondent's motion to suppress any evidence found when the agents entered room 222 (where respondent was discovered attempting to view child pornography), the incriminating statements respondent made at the time, and all evidence found in and any statements made in respondent's own office as well.
The district court rejected the government's argument that, even if the agents' entry into ATD's building and the vacant office violated respondent's employer's Fourth Amendment rights, it did not violate respondent's rights.2 Because respondent had taken actions to preserve his privacy, the court concluded that he had a subjective expectation of privacy. App., infra, 30a. And, based on the facts that respondent was a corporate officer and had a key to the premises, the court concluded that respondent's expectation was "reasonable," id. at 29a-31a & n.3, and permitted him to claim the protection of the Fourth Amendment everywhere in the building, id. at 30a ("As [an] officer of the company, defendant has the authority to assert a fourth amendment claim to the building.").
3. A divided court of appeals affirmed. App., infra, 1a- 24a. Addressing respondent's capacity to claim the protection of the Fourth Amendment under the rubric of "standing," the court of appeals disagreed with the district court's conclusion that respondent had a legitimate expectation of privacy in every part of ATD's corporate offices. Id. at 5a ("[W]e disagree with the district court's holding that a corporate officer with a key to the building had standing to assert a Fourth Amendment claim to the entire building."). Instead, it acknowledged that courts of appeals generally have agreed that defendants may challenge searches only of those parts of their places of employment with which they have a significant "nexus"-generally speaking, their work areas. Id. at 8a. The court of appeals, however, concluded that sole reliance on the "nexus" requirement was "problematic" because it did not account for factors such as the individual's ownership of any property he has with him, his possessory interest in such property, and any actions he takes to protect his privacy. Id. at 9a-15a.
Turning to the facts of this case, the court of appeals concluded that respondent had a legitimate expectation of privacy in the vacant room at his employer's place of business, despite his lack of a prior connection to that room, because (1) the tapes respondent was attempting to view there were his, rather than his employer's; (2) the tapes were in respondent's actual possession; and (3) respondent had taken steps to protect his privacy in the room. App., infra, 14a-16a. Because it also concluded that warrantless entry was not justified by exigent circumstances, id. at 16a-20a; see also note 2, supra, the court of appeals affirmed the district court's suppression order. App., infra, 20a.
Judge Kelly dissented. App., infra, 20a-24a. The factors cited by the majority, Judge Kelly argued, were "not sufficient to confer standing" on a defendant "absent a demonstrated 'nexus between the area searched and the work space of the defendant.'" Id. at 20a (quoting United States v. Britt, 508 F.2d 1052, 1056 (5th Cir.), cert. denied, 423 U.S. 825 (1975)). Indeed, he argued, "the court cites no case involving a workplace where standing was found in the absence of such a nexus." App., infra, 20a-21a.
The majority's "focus[] on * * * the videotapes in [respondent's] possession" and their relationship to respondent, Judge Kelly further observed, was misguided. App., infra, 22a. "Under the court's analysis," Judge Kelly noted, respondent "would have standing to challenge a search anywhere in the building provided the item seized was owned and controlled by him, and he had taken steps to maintain privacy. This analysis relies too heavily on [respondent's] possession of the seized videotapes when the primary question must be whether [respondent] had a legitimate expectation of privacy in the area searched." Id. at 22a-23a.
The United States filed a petition for rehearing and suggestion for rehearing en banc. The petition was denied, with five judges dissenting (Anderson, Tacha, Baldock, Ebel, and Kelly, JJ.), on December 1, 1998. App., infra, 40a-41a. That same day, this Court decided Minnesota v. Carter, 119 S. Ct. 469 (1998), another Fourth Amendment case involving the legitimate expectation of privacy inquiry and the capacity of individuals to claim the protection of the Fourth Amendment in a location with which they have a limited commercial connection.
REASONS FOR GRANTING THE PETITION
The court of appeals held that respondent had a reasonable expectation of privacy in an empty and unused office at his employer's place of business, even though the office was not respondent's work space and he had no prior connection to it. In particular, the court of appeals concluded that respondent's expectation of privacy in that vacant office was "reasonable" because (1) the child pornography tapes that respondent was attempting to view there were his, rather than his employer's, (2) the tapes were in respondent's actual possession, and (3) respondent had taken steps to protect his privacy while he viewed the tapes. App., infra, 14a-16a. The court of appeals' decision is incorrect, improperly expands the capacity of employees to claim the protection of the Fourth Amendment in the workplace, and erroneously departs from the mode of analysis employed by other courts of appeals, and by this Court, most recently in Minnesota v. Carter, 119 S. Ct. 469 (1998).
1. Because Fourth Amendment rights "are personal" and "may not be vicariously asserted," Alderman v. United States, 394 U.S. 165, 174 (1969), a criminal defendant moving to suppress evidence on Fourth Amendment grounds "has the burden of establishing that his own Fourth Amendment rights were violated by the challenged search or seizure." Rakas v. Illinois, 439 U.S. 128, 131 n.1 (1978). Under this Court's precedents, such a defendant "must demonstrate that he personally has an expectation of privacy in the place searched, and that his expectation is reasonable; i.e., one which has a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society." Minnesota v. Carter, 119 S. Ct. at 472 (internal quotation marks omitted); see also Rakas, 439 U.S. at 143 & n.12 (defendant has burden of showing (1) that he had a subjective expectation of privacy in the invaded space, and (2) that his expectation is one "that society is prepared to recognize as 'reasonable'" (quoting Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring))).
Although the Fourth Amendment by its terms protects the "right of the people to be secure in their persons, houses, papers, and effects"-and does not specifically mention places of employment-this Court has held that, "in some circumstances a worker" has a legitimate expectation of privacy in, and therefore "can claim Fourth Amendment protection over[,] his own workplace." Carter, 119 S. Ct. at 474. See Mancusi v. DeForte, 392 U.S. 364 (1968) (union employee had a sufficient connection to his office to challenge its warrantless search); O'Connor v. Ortega, 480 U.S. 709 (1987) (government workers may, under certain circumstances, have a legitimate expectation of privacy in their own private offices). The Court has cautioned, however, that "[a]n expectation of privacy in commercial premises * * * is different from, and indeed less than, a similar expectation in an individual's home." New York v. Burger, 482 U.S. 691, 700 (1987).
Consistent with this Court's decisions, the courts of appeals have generally held that individuals can claim the protection of the Fourth Amendment in those workplace areas with which they have a sufficient connection to give rise to a socially recognized privacy expectation, i.e., generally speaking, their own offices and work areas. See, e.g., United States v. Taketa, 923 F.2d 665, 673 (9th Cir. 1991) ("We find a privacy interest in an office reserved for one's exclusive use at a place of employment to be reasonable."); Gillard v. Schmidt, 579 F.2d 825, 828 (3d Cir. 1978) (similar). Beginning with the Fifth Circuit's decision in United States v. Britt, 508 F.2d 1052, cert. denied, 423 U.S. 825 (1975), however, the courts of appeals have in a variety of contexts rejected the notion that an employee may claim a legitimate expectation of privacy absent a sufficient "nexus" between the employee and the location searched. Id. at 1056 (defendant may not challenge admission of illegally seized corporate records absent "a demonstrated nexus between the area searched and the work space of the defendant").
For example, following Britt, the Second Circuit has held that the inquiry into whether a corporate officer has "a reasonable expectation of privacy to challenge a search of business premises" depends primarily on the extent of his "possessory or proprietary interest in the area searched," and that such an officer "must demonstrate a sufficient 'nexus between the area searched and his own work space.'" United States v. Chuang, 897 F.2d 646, 649 (quoting Britt, 508 F.2d at 1056; brackets omitted), cert. denied, 498 U.S. 824 (1990). Other courts of appeals have followed suit. See, e.g., United States v. Mohney, 949 F.2d 1397, 1404 (6th Cir. 1991) ("[I]t is hard to see how [the defendant] could have a reasonable expectation of privacy in documents he claimed to be completely uninvolved in preparing and which were kept in offices he claimed to rarely visit."), cert. denied, 504 U.S. 910 (1992); Taketa, 923 F.2d at 671 (defendant lacked sufficient connection to his co-conspirator's office, which was next to his own, to claim the protection of the Fourth Amendment there, even though he had access to that office and used it for his own illegal activities).3 As Professor LaFave has summarized:
In the absence of some other basis for showing [a legitimate expectation of privacy, such as a property interest in the area searched], it still seems necessary to establish that the place searched was rather directly connected with the defendant's employment responsibilities and activities. Thus, a corporation president has been held to have standing with respect to the seizure of corporate records from his office, but not as to the seizure of such records from a storage area where he never spent any of his time working.
5 Wayne R. LaFave, Search and Seizure § 11.3(d), at 164-165 (3d ed. 1996) (footnotes omitted).4
2. Analyzing respondent's capacity to claim the protection of the Fourth Amendment under the rubric of "standing," the court of appeals in this case criticized and chose to depart from the "nexus" approach. In particular, the court of appeals held that the "nexus" approach "does not account," App., infra, 9a-10a, for three factors that court thought significant-the defendant's "ownership" interest in evidence seized as a result of the search, id. at 10a; the defendant's immediate possession of that evidence at the time of the search, id. at 13a; and the defendant's efforts "to maintain" his or her privacy, id. at 13a-14a. The court of appeals then held that those three factors conferred on respondent the right to claim the protection of the Fourth Amendment. Respondent, the court concluded, had a legitimate expectation of privacy in the vacant office, with which he had no prior connection, because (1) the tapes respondent was attempting to view there were his, rather than his employer's, (2) the tapes were in respondent's actual possession, and (3) respondent had taken steps to protect his privacy while he viewed the tapes. Id. at 14a-16a.
Even setting aside the court of appeals' mistaken description of its inquiry as one of "standing,"5 the court's rationale for departing from the approach taken by the other courts of appeals and this Court is unsound. Whether or not a defendant has the "reasonable expectation of privacy" necessary to claim the protection of the Fourth Amendment in a location depends generally on the nature and extent of the defendant's connection to that location, and specifically on whether that connection is sufficient to give rise to a privacy expectation that society shares and respects. Neither the fact that respondent owned and possessed the tapes he carried into the room, nor his attempt to conceal his presence there, sufficiently enhances the nature of respondent's relationship to that otherwise vacant and unused office to give rise to an expectation of privacy reflected in the "understandings that are recognized and permitted by society." Carter, 119 S. Ct. at 472.
As Judge Kelly explained in dissent, the mere fact that the videotapes that respondent was attempting to view were his own, not his employer's, "does not mean that we can overlook the nature of the area searched." App., infra, 21a; see also id. at 20a-21a (Kelly, J., dissenting) ("It is telling that the court cites no other case involving a workplace where standing was found in the absence of such a nexus.").6 Respondent also presumably owned and possessed the clothes he was wearing, and the wallet that he had in his pocket. Yet no one contends that his ownership and possession of those items adds any weight to the contention that society would treat his claim to privacy in an otherwise vacant office as reasonable. There is no reason why respondent's ownership and possession of the tapes from which he was attempting to view child pornography should be treated differently.7 Thus, while respondent may have had a protected privacy expectation with respect to private property and personal effects that were on his person, hidden from public view (e.g., the contents of his wallet), that expectation of privacy does not permit him to object to entries into all rooms or offices in which he, together with those items, happens to be present.
To the contrary, when considering property interests in this context, the proper focus is on the defendant's relationship to the searched location, because "one who owns or lawfully possesses or controls [that] property will in all likelihood have a legitimate expectation of privacy by virtue of th[e] right to exclude" others from that location.8 Rakas, 439 U.S. at 144 n.12. Legal ownership and possession of personal property that the defendant carries into the area searched, however, does not by itself create a similar right or a similar privacy expectation. See Rawlings v. Kentucky, 448 U.S. 98, 106 (1980) (ownership of drugs found in a purse does not give rise to legitimate expectation of privacy in purse that the defendant neither owned nor controlled). As a result, the fact that respondent owned and possessed the tapes he transported into the vacant office with which he had no prior connection does not establish a socially recognized privacy expectation, any more than it would if respondent had carried those same objects into a hallway closet, the hallway itself, or into a public street.9
The Tenth Circuit likewise erred in focusing on respondent's efforts to protect his privacy. App., infra, 15a. Those efforts may show a subjective expectation of privacy, and absent such efforts, unaided observation without entry might not constitute a "search" within the meaning of the Fourth Amendment. See Katz, 389 U.S. at 351 ("What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection."); California v. Greenwood, 486 U.S. 35, 41 (1988) (same); United States v. Dunn, 480 U.S. 294, 303-304 (1987) (no unconstitutional search where officers viewed area from "the open fields" or "a public place", even if the area they viewed "could not be entered * * * without a warrant"). But efforts to maintain privacy in an area with which the defendant lacks the appropriate connection-be it a public thoroughfare, the home of another, or (as here) a vacant and otherwise unused office-cannot give the defendant a personal and reasonable privacy expectation where it otherwise would be lacking. See New York v. Class, 475 U.S. 106, 114 (1986) ("[E]fforts to restrict access to an area do not generate a reasonable expectation of privacy where none would otherwise exist."); App., infra, 24a (Kelly, J., dissenting) ("The steps [respondent] took to ensure privacy may be consistent with a subjective expectation of privacy, but that is not enough, no matter how earnestly the steps were taken."). Indeed, in Carter, 119 S. Ct. at 471, this Court held that the defendants lacked the capacity to claim the protection of the Fourth Amendment in an apartment in which they were temporary business visitors, even though they had taken the precaution of drawing the window blinds to prevent observation. See also note 10, infra.
3. The court of appeals' decision in this case is particularly difficult to reconcile with the reasoning of this Court's most recent reasonable-expectation-of-privacy decision, Minnesota v. Carter, supra, which was decided the same day the court of appeals denied rehearing en banc in this case. In Carter, this Court held that the defendants, who were present in someone else's home for two-and-one-half hours for the sole business purpose of packaging narcotics, did not have a legitimate expectation of privacy there. Notably, this Court did not accord legal significance to any of the factors the court of appeals found to be dispositive here. In Carter, the defendants owned the drugs they were packaging, just as respondent here owned the child pornography tape he was attempting to view. See 119 S. Ct. at 471-472. In Carter, the defendants had the drugs in their immediate possession, just as respondent here had the child pornography tape in his immediate possession. See id. at 471. And, in Carter, the defendants had taken precautions to preserve their privacy, lowering the blinds, much as respondent did here. Ibid.10 Yet none of those factors played any role in the Court's analysis.
To the contrary, the Court in Carter relied on precisely the mode of analysis that the court of appeals held insufficient in this case: it looked exclusively to the relationship between the defendants and the invaded space. In particular, the Court concluded that the defendants in Carter lacked a legitimate expectation of privacy in the apartment because they were present there for just two-and-one-half hours, a relatively brief period of time; because they had no prior relationship to the apartment's lessee, and thus were not in any sense treated as members of the household; and because their relationship to the apartment was strictly commercial in nature, as they were using it to package narcotics. See 119 S. Ct. at 473-474. Moreover, rejecting any analogy between the apartment and a private workplace office in which the defendants might have been able to claim a privacy expectation, see O'Connor v. Ortega, supra, the Court noted that "there is no indication that [defendants] in this case had nearly as significant a connection to [the] apartment as the worker in O'Connor had to his own private office." 119 S. Ct. at 474.
A comparable analysis applies here as well. Respondent was in the vacant office not a matter of hours, like the defendants in Carter, but rather a matter of minutes; he had absolutely no prior connection to that office; and the entire workplace, including the vacant office in which respondent was discovered, was a commercial premise that did not function as a "home." App., infra, 2a, 8a n.1, 27a & n.1. Moreover, here, as in Carter, "there is no indication that [respondent] had nearly as significant a connection to [the vacant and unused office where he was found] as the worker in O'Connor had to his own private office." 119 S. Ct. at 474. If the defendants' connection with the apartment in Carter can be described as "fleeting and insubstantial," id. at 479 (Kennedy, J., concurring), respondent's connection with the vacant office in which he was found was virtually "nonexistent." App., infra, 20a (Kelly, J., dissenting). Other than mere presence for the illegitimate purpose of viewing child pornography, respondent had no connection to the vacant office at all. For that reason, the court of appeals' decision also comes perilously close to reviving in the workplace context the "legitimately on premises" standard that this Court rejected in Rakas over two decades ago. See 439 U.S. at 141-143.
4. The improper analysis that the court of appeals conducted in finding a violation of respondent's Fourth Amendment rights warrants this Court's attention. The court of appeals' decision not only parts company with the mode of analysis employed by this Court and other courts of appeals, which generally looks to whether the search occurred in the employee's own workspace, but also introduces unnecessary uncertainty into this area of law and improperly expands the Fourth Amendment's protections in the workplace- potentially to any employee who enters a room at his place of employment with possessions in hand and shuts the door behind him. App., infra, 22a (Kelly, J., dissenting). Such an overbroad response to a Fourth Amendment violation impedes "the search for truth at trial" by depriving the trier of fact of "[r]elevant and reliable evidence." Rakas, 439 U.S. at 137. Indeed, in this very case, the Tenth Circuit's decision will (if not reversed) require the jury to decide the issue of guilt without ever learning that respondent was caught attempting to view the child pornography tapes that were delivered to him; without the benefit of the evidence discovered in respondent's office after he consented to its search; and without any knowledge of respondent's confession of involvement in child pornography.
Because the court of appeals' decision departs from the mode of analysis employed by this Court and other courts of appeals, and because it undermines predictability in this area of law and the truthfinding mission of trial, it ordinarily would warrant this Court's plenary review. As noted above, however, the panel that decided this case issued its decision months before this Court announced its most recent decision in the reasonable expectation of privacy area, Minnesota v. Carter, supra, and the court of appeals as a whole denied rehearing en banc, with five judges dissenting, on the same day Carter was decided. The court of appeals thus has not had the opportunity to examine this case in light of this Court's analysis in Carter. This Court may wish to give it the opportunity to do so before granting plenary review. Accordingly, it would be appropriate for the Court to grant the petition, vacate the judgment below, and remand for reconsideration in light of the Court's decision in Carter. In the alternative, the petition should be granted and the case set for argument.

CONCLUSION
For the foregoing reasons, the petition for a writ of certiorari should be granted, the judgment of the court of appeals vacated, and the case remanded for further consideration in light of the Court's decision in Carter. Alternatively, the petition should be granted.
Respectfully submitted.

SETH P. WAXMAN
Solicitor General
JAMES K. ROBINSON
Assistant Attorney General
MICHAEL R. DREEBEN
Deputy Solicitor General
JEFFREY A. LAMKEN
Assistant to the Solicitor General
SEAN CONNELLY
Attorney
MARCH 1999
1 "Tr." refers to the transcript of the hearing conducted by the district court.
2 The government also argued that the entries into the building and the vacant office did not violate the Fourth Amendment at all, because they were justified by exigent circumstances. The district court rejected that argument. App., infra, 31a-33a.
3 These cases have arisen in contexts that in some respects differ from the facts here. In Chuang, 897 F.2d at 650, for example, the defendant owned almost half of the bank that was searched, but the records that were searched were "subject to periodic examination" by bank regulators in any event; and in Taketa, 923 F.2d at 671, the defendant was not inside (and had no personal possessions in) the searched office at the time of the search. Nonetheless, the starting point for each of the cases was the same. In each, the court recognized the need for the defendant to establish a sufficient connection or nexus between himself and the area searched to give rise to an expectation of privacy that society is prepared to treat as reasonable, and concluded that, in the workplace environment, that expectation ordinarily is limited to an employee's usual office or work area. See, e.g., Chuang, 897 F.2d at 649; Taketa, 923 F.2d at 671.
4 See also Tobias v. State, 479 N.E.2d 508, 510 (Ind. 1985) (following Britt and holding that the defendant, who worked in his father's pharmacy, had not established the necessary "nexus" with a pharmacy bathroom that he visited solely "for the purpose of making the instant drug transactions"); People v. Johnson, 209 A.D.2d 721, 721, 619 N.Y.S.2d 154, 155 (N.Y. App. Div. 1994) (defendant lacked sufficient connection to basement in her workplace to show a reasonable expectation of privacy where "her only connection with [the basement] was her occasional use of the bathroom").
5 This Court repeatedly has explained that a defendant's capacity to seek the suppression of evidence based on an asserted violation of the Fourth Amendment is not a question of standing but rather is properly viewed as a question of substantive Fourth Amendment law. See Carter, 119 S. Ct. at 472 (state court improperly addressed the question "under the rubric of 'standing' doctrine, an analysis which this Court expressly rejected 20 years ago in Rakas, 439 U.S., at 139-140[.] * * * Central to our analysis was the idea that in determining whether a defendant is able to show the violation of his (and not someone else's) Fourth Amendment rights, the 'definition of those rights is more properly placed within the purview of substantive Fourth Amendment law than within that of standing.'") (quoting Rakas, 439 U.S. at 140).
6 The majority's contention (App., infra, 10a n.2) that United States v. Mancini, 8 F.3d 104 (1st Cir. 1993), supports its decision is incorrect. In that case, the court of appeals considered whether the defendant, the Mayor of North Providence, Rhode Island, had a "privacy interest in a box in the archive attic" where the Mayor's papers were regularly stored. See 8 F.3d at 109. Because that area was regularly used to store the defendant's possessions throughout his 19-year tenure as Mayor, the defendant's possessions were clearly labeled and segregated from the other materials stored there, and no one was permitted to look into the defendant's files without the defendant's permission, id. at 110, the court concluded that the defendant had established a sufficient nexus between himself and the area searched to support a reasonable expectation of privacy.
7 The majority's focus on respondent's possessory or property interest in the items seized also appears to confuse the privacy interests protected by the Fourth Amendment's bar on unreasonable searches with the possessory interests protected by that Amendment's prohibition on unreasonable seizures. To the extent respondent merely challenges the entry into the room in which he was found, the question is whether that search violated a protected privacy interest personal to respondent. The fact that respondent possessed his tapes when entry was made does not bear on his privacy expectation (if any) in the room. To the extent respondent challenges the seizure of the tapes once the police made entry, his possessory and ownership interests in the tapes are relevant. See Soldal v. Cook County, 506 U.S. 56, 61 (1992). But if entry into the vacant room and respondent's arrest did not violate his rights, the seizure of the tapes was undeniably proper as incident to respondent's arrest.
8 In a footnote, the court of appeals suggested that respondent had the right or power to exclude entrants from the vacant office. App., infra, 15a n.3. But the court gave no source of authority for that suggestion, which is entirely unsupported by the record, and which does not support the result in this case in any event. A security guard might have authority or power to exclude others from a building, but it does not necessarily follow that he has a reasonable expectation of privacy in every room and office in the building.
9 The distinction between ownership of the invaded place and ownership of the evidence discovered through the invasion also explains why the court of appeals' reliance (App., infra, 12a) on the plurality opinion in O'Connor v. Ortega, 480 U.S. 709 (1987), is misplaced. In O'Connor, the plurality did note that employees do not necessarily lose their expectation of privacy with respect to the contents of closed luggage, handbags, or briefcases when they bring those items to the office; but it also noted that the employees' expectation of privacy in the outward appearance of those items might be affected by bringing them into the employer's place of business. 480 U.S. at 716. The plurality's analysis thus is consistent with focusing the inquiry on where, within a business, a search takes place, and in rejecting the view that simple possession of personal property creates an expectation of privacy everywhere in the workplace.
10 The defendants in Carter ultimately were not entirely successful in preserving their privacy, as a "gap" in the blinds permitted an officer, standing one to one-and-one half feet from the window, to see inside. See 119 S. Ct. at 471; id. at 480 (Breyer, J., concurring). Nonetheless, neither the defendants' effort to preserve their privacy, nor their lack of success, figured into the majority's analysis.