United States v. Simons ( 2000 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4238
MARK L. SIMONS,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
James C. Cacheris, Senior District Judge.
(CR-98-375)
Argued: November 30, 1999
Decided: February 28, 2000
Before WILKINS and NIEMEYER, Circuit Judges, and Margaret
B. SEYMOUR, United States District Judge for the District of
South Carolina, sitting by designation.
_________________________________________________________________
Affirmed in part and remanded in part by published opinion. Judge
Wilkins wrote the opinion, in which Judge Niemeyer and Judge Sey-
mour joined.
_________________________________________________________________
COUNSEL
ARGUED: Marvin David Miller, LAW OFFICES OF MARVIN D.
MILLER, Alexandria, Virginia, for Appellant. G. David Hackney,
Assistant United States Attorney, UNITED STATES ATTORNEY'S
OFFICE, Alexandria, Virginia, for Appellee. ON BRIEF: Helen F.
Fahey, United States Attorney, UNITED STATES ATTORNEY'S
OFFICE, Alexandria, Virginia, for Appellee.
_________________________________________________________________
OPINION
WILKINS, Circuit Judge:
Mark L. Simons appeals his convictions for receiving and possess-
ing materials constituting or containing child pornography, see 18
U.S.C.A. § 2252A(a)(2)(A), (a)(5)(B) (West Supp. 1999). Simons,
who received the unlawful materials at his government workplace via
the Internet, argues that the district court erred in denying his motion
to suppress. We affirm in part and remand in part.
I.
Simons was employed as an electronic engineer at the Foreign
Bureau of Information Services (FBIS), a division of the Central
Intelligence Agency (CIA). FBIS provided Simons with an office,
which he did not share with anyone, and a computer with Internet
access.
In June 1998, FBIS instituted a policy regarding Internet usage by
employees. The policy stated that employees were to use the Internet
for official government business only. Accessing unlawful material
was specifically prohibited. The policy explained that FBIS would
conduct electronic audits to ensure compliance:
Audits. Electronic auditing shall be implemented within
all FBIS unclassified networks that connect to the Internet
or other publicly accessible networks to support identifica-
tion, termination, and prosecution of unauthorized activity.
These electronic audit mechanisms shall . . . be capable of
recording:
- Access to the system, including successful and failed
login attempts, and logouts;
2
- Inbound and outbound file transfers;
- Terminal connections (telnet) to and from external sys-
tems;
- Sent and received e-mail messages;
- Web sites visited, including uniform resource locator
(URL) of pages retrieved;
- Date, Time, and user associated with each event.
J.A. 125-26. The policy also stated that "[u]sers shall . . . [u]nderstand
FBIS will periodically audit, inspect, and/or monitor the user's Inter-
net access as deemed appropriate." J.A. 127.
FBIS contracted with Science Applications International Corpora-
tion (SAIC) for the management of FBIS' computer network, includ-
ing monitoring for any inappropriate use of computer resources. On
July 17, 1998, Clifford Mauck, a manager at SAIC, began exploring
the capabilities of a firewall recently acquired by SAIC, because
Mauck believed that SAIC needed to become more familiar with the
firewall to service the FBIS contract properly. 1 Mauck entered the
keyword "sex" into the firewall database for July 14 and 17, 1998,
and found a large number of Internet "hits" originating from Simons'
computer. It was obvious to Mauck from the names of the sites that
they were not visited for official FBIS purposes.
Mauck reported this discovery to his contact at FBIS, Katherine
Camer. Camer then worked with another SAIC employee, Robert
Harper, to further investigate the apparently unauthorized activity.
Camer instructed Harper to view one of the websites that Simons had
visited. Harper complied and found that the site contained pictures of
nude women.
_________________________________________________________________
1 A firewall is like a funnel through which all Internet access flows and
is registered; the firewall collects data and may be searched as a data-
base.
3
At Camer's direction and from his own workstation, Harper exam-
ined Simons' computer to determine whether Simons had downloaded
any picture files from the Internet; Harper found over 1,000 such
files. Again from his own workstation, Harper viewed several of the
pictures and observed that they were pornographic in nature. Also at
Camer's request and from his own workstation, Harper printed a list
of the titles of the downloaded picture files. Harper was then asked
to copy all of the files on the hard drive of Simons' computer; Harper
accomplished this task, again, from his own workstation.
On or about July 31, 1998, two representatives from the CIA
Office of the Inspector General (OIG), one of whom was a criminal
investigator, viewed selected files from the copy of Simons' hard
drive; the pictures were of minors. Later that day, Harper physically
entered Simons' office, removed the original hard drive, replaced it
with a copy, and gave the original to the FBIS Area Security Officer.
The Security Officer turned it over to the OIG criminal investigator
the same day.2 This last assignment was the only one that required
Harper to physically enter Simons' office.
On August 5, 1998, FBI Special Agent John Mesisca viewed over
50 of the images on the hard drive that had been removed from
Simons' office; many of the images contained child pornography.
Mesisca, Harper, the two OIG representatives, and Assistant United
States Attorney Tom Connolly worked together to prepare an applica-
tion for a warrant to search Simons' office and computer. An affidavit
from Mesisca supported the warrant application. The affidavit stated,
inter alia, that Simons had connected a zip drive to his computer.3
The affidavit also expressed a "need" to conduct the search in secret.
J.A. 140.
The warrant was issued on August 6, 1998. It stated that the exe-
cuting officers were to leave at Simons' office a copy of the warrant
and a receipt for any property taken. The warrant mentioned neither
permission for, nor prohibition of, secret execution.
_________________________________________________________________
2 The OIG investigator "placed it into evidence." J.A. 70.
3 A zip drive is a device for storing computer files; it has greater stor-
age capacity than other computer storage devices. Zip drive diskettes
work only in zip drives and not with other computer storage devices.
4
Mesisca and others executed the search during the evening of
August 6, 1998, when Simons was not present. The search team cop-
ied the contents of Simons' computer; computer diskettes found in
Simons' desk drawer; computer files stored on the zip drive or on zip
drive diskettes;4 videotapes; and various documents, including per-
sonal correspondence. No original evidence was removed from the
office. Neither a copy of the warrant nor a receipt for the property
seized was left in the office or otherwise given to Simons at that time,
and Simons did not learn of the search for approximately 45 days.5
When Mesisca reviewed the computer materials copied during the
search, he found over 50 pornographic images of minors.
In September 1998, Mesisca applied for a second search warrant.
The supporting affidavit, like the affidavit that supported the August
application, stated that Simons had connected a zip drive to his com-
puter. The September affidavit described the August application as an
application for a surreptitious search warrant.
A second search warrant was obtained on September 17, 1998 and
executed on September 23, 1998, with Simons present. Original evi-
dence was seized and removed from the office. The executors left
Simons with a copy of the warrant and an inventory of the items
seized.
Simons subsequently was indicted on one count of knowingly
receiving child pornography that had been transported in interstate
commerce, see 18 U.S.C.A. § 2252A(a)(2)(A), and one count of
knowingly possessing material containing images of child pornogra-
phy that had been transported in interstate commerce, see 18 U.S.C.A.
§ 2252A(a)(5)(B). Simons moved to suppress the evidence, arguing
that the searches of his office and computer violated his Fourth
Amendment rights. Following a hearing, the district court denied the
motion. With regard to the warrantless searches, the district court first
concluded that Simons lacked a legitimate expectation of privacy in
_________________________________________________________________
4 The parties agree that materials associated with the zip drive were
copied during the search, but the record is not clear as to whether the
materials actually came from the zip drive itself or from zip diskettes.
Resolution of this factual matter is not necessary to decide this appeal.
5 A property list was returned to the magistrate judge, as required.
5
his Internet use. The court nevertheless determined that, even if
Simons did have a legitimate expectation of privacy, all of the war-
rantless searches satisfied the reasonableness requirement of the
Fourth Amendment. The district court also upheld the warrant
searches.
At a bench trial on stipulated facts, four computer picture files
depicting child pornography were introduced as evidence of Simons'
guilt. The district court found Simons guilty on both counts and sen-
tenced him to 18 months imprisonment. Simons now appeals, main-
taining that the district court erred in denying his motion to suppress.
Inexplicably, the record does not indicate which search or searches
yielded the four computer picture files used against Simons at trial.
Consequently, we are called upon to review the constitutionality of all
of the searches. We consider first the warrantless searches, then turn
to Simons' challenges to the searches conducted pursuant to the
August search warrant.6
II.
The Fourth Amendment prohibits "unreasonable searches and sei-
zures" by government agents, including government employers or
supervisors. U.S. Const. amend. IV; see O'Connor v. Ortega, 480
U.S. 709, 715 (1987) (plurality opinion); id. at 730-31 (Scalia, J., con-
curring in the judgment). To establish a violation of his rights under
the Fourth Amendment, Simons must first prove that he had a legiti-
mate expectation of privacy in the place searched or the item seized.
See Rakas v. Illinois, 439 U.S. 128, 143 (1978); United States v.
Rusher, 966 F.2d 868, 873-74 (4th Cir. 1992). And, in order to prove
a legitimate expectation of privacy, Simons must show that his sub-
jective expectation of privacy is one that society is prepared to accept
as objectively reasonable. See California v. Greenwood, 486 U.S. 35,
39 (1988).
_________________________________________________________________
6 Simons also challenges the search conducted pursuant to the Septem-
ber search warrant. We address his arguments with regard to this search
infra, in note 12.
6
Government employees may have a legitimate expectation of pri-
vacy in their offices or in parts of their offices such as their desks or
file cabinets. See O'Connor, 480 U.S. at 716-18; Shields v. Burge,
874 F.2d 1201, 1203-04 (7th Cir. 1989) (concluding that the holding
of the O'Connor plurality governs). However, office practices, proce-
dures, or regulations may reduce legitimate privacy expectations. See
O'Connor, 480 U.S. at 717; id. at 737 (Blackmun, J., dissenting). In
reviewing a denial of a motion to suppress, we review the factual
findings of the district court for clear error and its legal conclusions
de novo. See United States v. Johnson, 114 F.3d 435, 439 (4th Cir.
1997).
We first consider Simons' challenge to the warrantless searches of
his computer and office by FBIS.7 We conclude that the remote
searches of Simons' computer did not violate his Fourth Amendment
rights because, in light of the Internet policy, Simons lacked a legiti-
mate expectation of privacy in the files downloaded from the Internet.
Additionally, we conclude that Simons' Fourth Amendment rights
were not violated by FBIS' retrieval of Simons' hard drive from his
office.
Simons did not have a legitimate expectation of privacy with
regard to the record or fruits of his Internet use in light of the FBIS
Internet policy. The policy clearly stated that FBIS would "audit,
inspect, and/or monitor" employees' use of the Internet, including all
file transfers, all websites visited, and all e-mail messages, "as
deemed appropriate." J.A. 127. This policy placed employees on
notice that they could not reasonably expect that their Internet activity
would be private.8 Therefore, regardless of whether Simons subjec-
tively believed that the files he transferred from the Internet were pri-
_________________________________________________________________
7 Although an SAIC employee conducted the searches, for ease of ref-
erence and in light of the fact that SAIC was an FBIS contractor, we
refer to the searches as having been carried out by FBIS.
Also, Simons has focused exclusively on the warrantless nature of
these searches; he has not argued that the searches were not supported
by probable cause. We therefore limit our discussion to the warrantless
nature of the searches.
8 Simons does not assert that he was unaware of, or that he had not con-
sented to, the Internet policy.
7
vate, such a belief was not objectively reasonable after FBIS notified
him that it would be overseeing his Internet use. 9 See American Postal
Workers Union v. United States Postal Serv., 871 F.2d 556, 560 (6th
Cir. 1989) (concluding that employees had no reasonable expectation
of privacy in lockers in light of policies allowing locker inspections);
cf. United States v. Sellers, 667 F.2d 1123, 1126 (4th Cir. 1981) (not-
ing that "whenever one `knowingly exposes his activities [or effects]
to third parties, he surrenders Fourth Amendment protections' in
favor of such activities or effects" (alteration in original) (quoting
Reporters' Comm. for Freedom of the Press v. AT&T , 593 F.2d 1030,
1043 (D.C. Cir. 1978)). Accordingly, FBIS' actions in remotely
searching and seizing the computer files Simons downloaded from the
Internet did not violate the Fourth Amendment.
We next consider whether Harper's warrantless entry into Simons'
office to retrieve his hard drive violated the Fourth Amendment. The
district court did not separately address this search; rather, it evalu-
ated all of the warrantless searches together. Although we agree with
the district court that Simons lacked a legitimate expectation of pri-
vacy in his Internet use, and thus in the hard drive itself, Harper's
entry into Simons' office to retrieve the hard drive presents a distinct
question. See United States v. Horowitz, 806 F.2d 1222, 1224 (4th
Cir. 1986) (describing the appropriate inquiry as"whether the individ-
ual had a reasonable expectation of privacy in the area searched, not
merely in the items found"); United States v. Manbeck, 744 F.2d 360,
374 (4th Cir. 1984) (stating that "[t]he privacy interest that must be
established to support standing is an interest in the area searched, not
an interest in the items found"); cf. Horton v. California, 496 U.S.
128, 137 n.7 (1990) ("[E]ven where the object is contraband, this
Court has repeatedly stated and enforced the basic rule that the police
may not enter and make a warrantless seizure" absent exigent circum-
stances (internal quotation marks omitted)).
The burden is on Simons to prove that he had a legitimate expecta-
tion of privacy in his office. See Rusher, 966 F.2d at 874. Here,
_________________________________________________________________
9 Simons attempts to distinguish the files downloaded from the Internet
from the record of those downloads registered on the firewall, and argues
that he had a legitimate expectation of privacy in the former. We decline
to recognize the distinction Simons advocates.
8
Simons has shown that he had an office that he did not share. As
noted above, the operational realities of Simons' workplace may have
diminished his legitimate privacy expectations. However, there is no
evidence in the record of any workplace practices, procedures, or reg-
ulations that had such an effect.10 We therefore conclude that, on this
record, Simons possessed a legitimate expectation of privacy in his
office.11
Consequently, we must determine whether FBIS' warrantless entry
into Simons' office to retrieve the hard drive was reasonable under
the Fourth Amendment. A search conducted without a warrant issued
by a judge or magistrate upon a showing of probable cause is "per se
unreasonable" unless it falls within one of the"specifically estab-
lished and well-delineated exceptions" to the warrant requirement.
_________________________________________________________________
10 The Internet policy did not render Simons' expectation of privacy in
his office unreasonable. The policy does not mention employees' offices,
and although it does not prohibit FBIS from carrying out its "audit[ing],
inspect[ing], and/or monitor[ing]" activities at employees' individual
workstations, J.A. 127, this fact alone is insufficient to render unreason-
able an employee's subjective expectation of privacy in his office. Cf.
Schowengerdt v. United States, 944 F.2d 483, 485, 488-89 (9th Cir.
1991) (holding that civilian employee of Navy weapons plant lacked
legitimate expectation of privacy in private office when office was regu-
larly searched in employee's absence, employee was aware that such
searches occurred, and employee had participated in searches of
coworkers' offices); United States v. Taketa, 923 F.2d 665, 672-73 (9th
Cir. 1991) (rejecting argument that government employee lacked a legiti-
mate expectation of privacy in his office because regulation requiring
clean desks implied that office was subject to inspection, in part on
ground that the regulation had not been enforced by a practice of inspec-
tions).
Although the CIA may have had other policies that rendered unreason-
able any expectation of privacy in an office occupied by an employee,
such as Simons, with access to classified information, no such policies
were made a part of this record and consequently we must assume that
none existed.
11 While we are not impressed with the degree to which this issue was
factually developed in the district court, remand for further factual devel-
opment is not appropriate as the issue was clearly raised and both parties
had an opportunity to introduce evidence on the matter.
9
Katz v. United States, 389 U.S. 347, 357 (1967); see United States v.
Lattimore, 87 F.3d 647, 650 (4th Cir. 1996) (en banc). One exception
to the warrant requirement arises when the requirement is rendered
impracticable by a "special needs, beyond the normal need for law
enforcement." Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 653
(1995) (internal quotation marks omitted). In O'Connor, the Supreme
Court held that a government employer's interest in"the efficient and
proper operation of the workplace" may justify warrantless work-
related searches. O'Connor, 480 U.S. at 723; see id. at 720-25. In par-
ticular, the O'Connor Court held that when a government employer
conducts a search pursuant to an investigation of work-related mis-
conduct, the Fourth Amendment will be satisfied if the search is rea-
sonable in its inception and its scope. See id. at 725-26. A search
normally will be reasonable at its inception "when there are reason-
able grounds for suspecting that the search will turn up evidence that
the employee is guilty of work-related misconduct." 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 exces-
sively intrusive in light of . . . the nature of the[misconduct].'" Id.(alterations in original) (quoting New Jersey v. T.L.O., 469 U.S. 325,
342 (1985)).
The question thus becomes whether the search of Simons' office
falls within the ambit of the O'Connor exception to the warrant
requirement, i.e., whether the search was carried out for the purpose
of obtaining "evidence of suspected work-related employee misfea-
sance." Id. at 723. The district court found that all of the warrantless
searches, and thus the office search, were work-related. The court rea-
soned that FBIS had an interest in fully investigating Simons' miscon-
duct, even if the misconduct was criminal. We agree.
As it does not appear from the record that FBIS utilized the hard
drive for internal investigatory purposes before turning it over to the
criminal investigator at OIG, we will assume that the dominant pur-
poses of the warrantless search of Simons' office was to acquire evi-
dence of criminal activity, which had been committed at FBIS using
FBIS equipment. Nevertheless, the search remains within the
O'Connor exception to the warrant requirement; FBIS did not lose its
special need for "the efficient and proper operation of the workplace,"
id., merely because the evidence obtained was evidence of a crime.
10
Cf. New York v. Burger, 482 U.S. 691, 716 (1987) (holding that "[t]he
discovery of evidence of crimes in the course of an otherwise proper
administrative inspection does not render that search illegal or the
administrative scheme suspect"); Ferguson v. City of Charleston, 186
F.3d 469, 477 n.7 (4th Cir. 1999) (observing that eventual use in a
criminal proceeding of evidence obtained during a special needs
search does not "preclude[ ] application of the special needs balancing
test"), petition for cert. filed, 68 U.S.L.W. 3391 (U.S. Dec. 1, 1999)
(No. 99-936). Simons' violation of FBIS' Internet policy happened
also to be a violation of criminal law; this does not mean that FBIS
lost the capacity and interests of an employer. See Gossmeyer v.
McDonald, 128 F.3d 481, 492-93 (7th Cir. 1997) (concluding that
presence of law enforcement personnel at search of employee's office
by government employer did not preclude application of O'Connor);
see also 4 Wayne R. LaFave, Search and Seizure § 10.3(d), at 487-88
(3d ed. 1996) (noting that conclusion that warrant requirement does
not apply when employer is investigating work-related criminal con-
duct is consistent with reasoning of O'Connor ); cf. United States v.
Nasser, 476 F.2d 1111, 1123-24 (7th Cir. 1973) (upholding as reason-
able under the Fourth Amendment a government employer's elec-
tronic surveillance of an employee that yielded evidence of criminal
misconduct, based upon the relationship of the search to the employ-
ee's work duties); cf. also Waters v. Churchill , 511 U.S. 661, 671
(1994) (plurality opinion) (stating that, in the First Amendment con-
text, "the government as employer indeed has far broader powers than
does the government as sovereign").
We have little trouble concluding that the warrantless entry of
Simons' office was reasonable under the Fourth Amendment standard
announced in O'Connor. At the inception of the search FBIS had
"reasonable grounds for suspecting" that the hard drive would yield
evidence of misconduct because FBIS was already aware that Simons
had misused his Internet access to download over a thousand porno-
graphic images, some of which involved minors. O'Connor, 480 U.S.
at 726. The search was also permissible in scope. The measure
adopted, entering Simons' office, was reasonably related to the objec-
tive of the search, retrieval of the hard drive. And, the search was not
excessively intrusive. Indeed, there has been no suggestion that Har-
per searched Simons' desk or any other items in the office; rather,
11
Harper simply crossed the floor of Simons' office, switched hard
drives, and exited.
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 crimi-
nal acts of a government employee were unrelated to his employment.
Here, there was a conjunction of the conduct that violated the employ-
er's policy and the conduct that violated the criminal law. We con-
sider that FBIS' intrusion into Simons' office to retrieve the hard
drive is one in which a reasonable employer might engage. See
Vernonia Sch. Dist. 47J, 515 U.S. at 665 (characterizing the relevant
question as whether the intrusion by the government employer 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 of FBIS'
activities in searching his computer and office.
III.
Simons also challenges the search conducted pursuant to the
August search warrant. We reject Simons' arguments that the search
violated his constitutional rights. However, we remand for further
proceedings concerning Simons' claim that the search team violated
Federal Rule of Criminal Procedure 41(d) when it failed to leave, at
the time of the search, a copy of the warrant or a receipt for the prop-
erty taken.
Simons first alleges that the warrant was invalid as to the zip drive
and zip drive diskettes because the affidavit supporting the warrant
application contained a deliberately misleading statement--that
Simons had attached a zip drive to his computer. At the suppression
hearing, Mauck stated that he did not know whether a zip drive was
connected to Simons' computer, and Harper essentially testified that
he did not believe there was a zip drive connected to Simons' com-
puter. Because at least Harper participated in preparing the warrant
12
application, Simons attributes the knowledge of these SAIC employ-
ees to Mesisca, the author of the affidavit. Simons argues that the affi-
davit therefore contained a knowingly false statement and that the
statement impermissibly expanded the scope of the search because
without the statement there was no probable cause to search the zip
drive or zip drive diskettes.
"[I]n all cases outside the exceptions to the warrant requirement the
Fourth Amendment requires the interposition of a neutral and
detached magistrate between the police and the persons, houses,
papers, and effects of citizens." Thompson v. Louisiana, 469 U.S. 17,
20 (1984) (per curiam) (internal quotation marks omitted). In evaluat-
ing whether probable cause exists, it is the task of the issuing magis-
trate to decide "whether, given all the circumstances set forth in the
affidavit . . . there is a fair probability that contraband or evidence of
a crime will be found in a particular place." Illinois v. Gates, 462 U.S.
213, 238 (1983). Information contained in the affidavit and critical to
such a finding of probable cause must "be `truthful' in the sense that
the information put forth is believed or appropriately accepted by the
affiant as true." Franks v. Delaware, 438 U.S. 154, 165 (1978). How-
ever, to challenge the validity of the August search warrant on the
ground that the supporting affidavit was not truthful, Simons must do
more than simply make conclusory claims of a misstatement. Instead,
he must show that Mesisca made the false statement either deliber-
ately or with reckless disregard for its truth and that the statement was
essential to the finding of probable cause. See id. at 171-72.
Simons has failed to satisfy these threshold requirements. He has
introduced no evidence showing that Mesisca made the statement
regarding the zip drive deliberately or with reckless disregard for the
truth, nor has he shown that the statement was critical to the finding
of probable cause. At most, the scope of the misstatement was that the
zip drive was connected to the computer. As the magistrate judge
found probable cause to search other items in the office not connected
to the computer, whether the zip drive was actually connected to the
computer was obviously not essential to the probable cause determi-
nation. We therefore conclude that the statement in the affidavit
13
regarding the zip drive being connected to the computer did not ren-
der the seizure of the zip drive and zip drive diskettes unlawful.12
Next, Simons argues that the August search violated the Fourth
Amendment and Federal Rule of Criminal Procedure 41(d) because
the search team executing the warrant left neither a copy of the war-
rant nor a receipt for the property taken. We conclude that these fail-
ings did not violate Simons' constitutional rights, but we remand for
the district court to determine whether the executors of the warrant
deliberately violated Rule 41(d).
Federal Rule of Criminal Procedure 41(d) provides, in pertinent
part, that
[t]he officer taking property under the warrant shall give to
the person from whom or from whose premises the property
was taken a copy of the warrant and a receipt for the prop-
erty taken or shall leave the copy and receipt at the place
from which the property was taken.
Fed. R. Crim. P. 41(d). The August search warrant stated substantially
the same requirements. However, the search team that executed the
warrant left neither a copy of the warrant nor a receipt for the prop-
erty taken. Therefore, it is clear that the executors of the warrant vio-
lated Rule 41(d). Simons argues that the failure to leave notice of the
search violated his Fourth Amendment rights and was a deliberate
violation of Rule 41(d); he maintains that suppression is an appropri-
ate remedy.
There are two categories of Rule 41 violations: those involving
constitutional violations, and all others. See United States v. Chaar,
_________________________________________________________________
12 We reject the same argument with regard to the application for the
September warrant. Simons also argues that the September application
contained an additional knowing misrepresentation because the affidavit
described the August application as one for a surreptitious search war-
rant. Regardless of whether there is any evidence that Mesisca made this
statement deliberately, or with reckless disregard for the truth, there is no
reason to suspect that the statement affected the probable cause determi-
nation.
14
137 F.3d 359, 362 (6th Cir. 1998); United States v. Gerber, 994 F.2d
1556, 1560 (11th Cir. 1993); United States v. Negrete-Gonzales, 966
F.2d 1277, 1283 (9th Cir. 1992); United States v. Burke, 517 F.2d
377, 386-87 (2d Cir. 1975). The violations termed"ministerial" in our
prior cases obviously fall into the latter category. See United States
v. Smith, 914 F.2d 565, 568 (4th Cir. 1990) (labeling as "ministerial"
claimed error that government had not returned warrant to magistrate
judge within prescribed period); United States v. Wyder, 674 F.2d
224, 225-26 (4th Cir. 1982) (labeling as "ministerial" scrivenor's error
contained in copy of the warrant given to the defendant). Non-
constitutional violations of Rule 41 warrant suppression only when
the defendant is prejudiced by the violation, see Smith, 914 F.2d at
568; Wyder, 674 F.2d at 226, or when "there is evidence of intentional
and deliberate disregard of a provision in the Rule," Burke, 517 F.2d
at 387. See Chaar, 137 F.3d at 362; Gerber, 994 F.2d at 1560;
Negrete-Gonzales, 966 F.2d at 1283.
First, we conclude that the failure of the team executing the warrant
to leave either a copy of the warrant or a receipt for the items taken
did not render the search unreasonable under the Fourth Amendment.
The Fourth Amendment does not mention notice, and the Supreme
Court has stated that the Constitution does not categorically proscribe
covert entries, which necessarily involve a delay in notice. See Dalia
v. United States, 441 U.S. 238, 247-48 (1979). And, insofar as the
August search satisfied the requirements of the Fourth Amendment,
i.e., it was conducted pursuant to a warrant based on probable cause
issued by a neutral and detached magistrate, we perceive no basis for
concluding that the 45-day delay in notice rendered the search uncon-
stitutional. See United States v. Pangburn, 983 F.2d 449, 453-55 (2d
Cir. 1993) (holding that the notice requirement found in Rule 41(d)
is not required by the Fourth Amendment). But see United States v.
Freitas, 800 F.2d 1451, 1456 (9th Cir. 1986) (holding that search
warrant was constitutionally defective because it did not require
notice).
Having concluded that the Rule 41(d) violation at issue here did
not infringe on Simons' constitutional rights, we must now evaluate
his argument that the violation was deliberate. 13 As described above,
_________________________________________________________________
13 Simons does not maintain on appeal that he was prejudiced by the
Rule 41(d) violation.
15
the affidavit supporting the August warrant application stated a
"need" to conduct the search in secret. J.A. 140. However, the warrant
required its executors to leave a copy of the warrant and a receipt for
the property taken. Based on these facts, Simons argues that the
search team applied for, but the magistrate judge denied, a warrant to
conduct a secret search. Simons further maintains that the team delib-
erately circumvented the denial of its request when it failed to leave
notice of the search. The Government responds that the search team
applied for and believed that it had received a warrant that authorized
a secret search.
The district court did not address the intent issue when it ruled on
Simons' motion to suppress, and as a factual matter it is beyond our
province on appeal. We therefore remand for the district court to con-
sider whether the Government intentionally and deliberately disre-
garded the notice provision of Rule 41(d) when it carried out the
August 6, 1998 search.
IV.
We conclude that FBIS' searches of Simons' computer and office
did not violate Simons' Fourth Amendment rights. We also determine
that the August search warrant was valid and that the violation of
Rule 41(d) did not render the search constitutionally unreasonable.
However, we remand for the district court to consider whether Rule
41(d) was intentionally and deliberately disregarded.
AFFIRMED IN PART, REMANDED IN PART
16