United States v. Wesley George Thorn

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 03-3615
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Wesley George Thorn, *
*
Appellant. *
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Submitted: February 10, 2004
Filed: July 13, 2004
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Before LOKEN, Chief Judge, BOWMAN and WOLLMAN, Circuit Judges.
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BOWMAN, Circuit Judge.
Defendant Wesley Thorn was charged with one count of possession of child
pornography in violation of 18 U.S.C. §§ 2252(a)(4)(B) and 2252(b) (2000). The
District Court1 denied Thorn's motion to suppress evidence obtained in a search of his
office at the Missouri Division of Child Support Enforcement ("DCSE"), and he
1
The Honorable Ortrie D. Smith, United States District Judge for the Western
District of Missouri, adopting the report and recommendations of the Honorable
James C. England, United States Magistrate Judge for the Western District of
Missouri.
entered a conditional plea of guilty to the charge.2 He was sentenced to twenty-seven
months of imprisonment with three years of supervised release. Thorn appeals the
District Court's denial of his motion to suppress.
The child pornography at issue was discovered on computer media found in
Thorn's DCSE office in Joplin, Missouri, which had been searched during an
investigation of claims of workplace misconduct on Thorn's part. On February 8,
2002, Valerie Davis, Thorn's supervisor in the Joplin office, began investigating
purported workplace misconduct after she received complaints that Thorn was
inaccessible and had copied and distributed non-work-related e-mail messages
throughout the office. To determine whether Thorn had used his DCSE computer to
distribute the offending e-mail, Davis instructed a computer information technician
to conduct a remote examination of the contents of the hard drive of the computer.
The technician found a copy of the e-mail on the hard drive and further discovered
that Thorn had used his computer to access adult pornographic websites. After
learning that Thorn had used his computer to access pornographic materials in
contravention of express policy, Davis contacted Dan Padfield, Regional Manager of
DCSE in charge of the Joplin office. Thorn's supervisors decided to place him on
administrative leave pending further investigation of his computer misconduct.
On February 11, 2002, Padfield visited the Joplin office in order to secure
Thorn's computer for further investigation. He ultimately took the computer tower
and numerous floppy disks from Thorn's office, in order to examine their contents to
determine the scope of Thorn's violations of the agency's computer-use policy. Thorn
called in sick and was informed of the decision to place him on leave. He requested
permission to access his office in order to retrieve certain tax documents. Padfield
2
A conditional guilty plea reserves to the defendant the right to appeal, after the
trial court has accepted the plea and imposed judgment, the denial of the defendant's
motion to suppress evidence that, in the defendant's view, was illegally obtained.
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informed Thorn that he could not remove anything from his office, but offered to
retrieve the tax forms for him. Thorn agreed to this arrangement and gave
instructions as to where the documents were located in the desk. In his search for
these materials, Padfield discovered pornographic material interspersed with other
documents in the desk. Padfield then informed Dianne Goetz, human resources
manager of DCSE, of the discovery of further pornographic materials. Goetz decided
to terminate Thorn's employment for his violations of the agency's code of conduct,
its sexual-harassment policy and its computer-use policy. Padfield and Davis then
contacted investigators at the Division of Legal Services ("DLS") and requested they
visit the Joplin office and inventory the contents of Thorn's office and computer
media for the purpose of setting forth the reasons for the termination of his
employment. In examining the contents of the floppy disks Padfield had taken from
Thorn's office, a DLS investigator discovered images of child pornography. Because
he had discovered possibly criminal contraband, he immediately stopped cataloguing
the contents of the disks and instructed another DLS investigator to contact law-
enforcement officers at the Joplin Police Department.
DCSE is an agency within the Missouri Department of Social Services
("DSS"). DSS has a communication policy which explicitly forbids personal use of
the agency's computer systems and limits access to certain materials: "Electronic mail
is to be used for work-related reasons only. All electronic messages, documents . . .
or pictures that are . . . sexual, pornographic, inappropriate, harassing . . . are
prohibited." Dept. of Soc. Servs. Memo on Communication Sys. (Jan. 3, 2000).
Furthermore, this policy imposes an affirmative duty upon agency employees to
report any suspected abuse of the agency's computer systems: "Employees should
immediately report to their supervisors the receipt of any inappropriate and
unsolicited electronic communications, any accidental access to Internet sites, and
any unauthorized use of DSS information technology and systems by other employees
. . . ." Id. In addition, the policy expressly provides that "Employees do not have any
personal privacy rights regarding their use of DSS information systems and
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technology. An employee's use of DSS information systems and technology indicates
that the employee understands and consents to DSS'[s] right to inspect and audit all
such use as described in this policy." Id. (emphasis in original). Thorn
acknowledged this policy in writing when he requested computer access in 2000.
Online Security Access Request (Nov. 3, 2000).
After getting affidavits from the DCSE and DLS officials, who set forth their
discovery of adult and child pornographic materials, Lieutenant Carl Francis of the
Joplin Police Department obtained a search warrant on February 15, 2002, to permit
him to search for and seize such evidence from Thorn's office. One month later,
Francis obtained another warrant to permit the examination of the contents of the
seized computer media. The searches pursuant to these warrants uncovered child
pornography in the desk and filing cabinet of Thorn's office and on certain floppy
disks removed from the office. Thorn, having been charged with the offense to which
he later entered a conditional plea of guilty, moved to suppress all evidence from the
warrantless search of his office conducted by Padfield and the DLS investigators. In
addition, he sought to suppress all evidence obtained under the two search warrants.
The District court denied this motion, Thorn entered his plea, and the District Court
entered judgment convicting Thorn as charged. This appeal followed. We review a
denial of a motion to suppress de novo, but review any underlying factual
determinations for clear error. United States v. Velazquez-Rivera, 366 F.3d 661, 664
(8th Cir. 2004).
A plurality of the Supreme Court has held that public employers may,
consistent with the Fourth Amendment, conduct workplace searches without a
warrant and without probable cause when there are reasonable grounds to suspect
work-related misconduct. O'Connor v. Ortega, 480 U.S. 709, 725–26 (1987)
(plurality opinion); see also O'Connor, 480 U.S. at 732 (Scalia, J., concurring in
judgment and concluding government searches to investigate work-related
misconduct "do not violate the Fourth Amendment"). A workplace search by a
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government employer implicates an employee's Fourth Amendment rights only if the
employer's conduct infringes upon the employee's reasonable expectations of privacy.
O'Connor, 480 U.S. at 715; see also United States v. Bach, 310 F.3d 1063, 1066 (8th
Cir. 2002) ("[I]n order to find a violation of the Fourth Amendment, there must be a
legitimate expectation of privacy in the area searched and the items seized."), cert.
denied, 538 U.S. 993 (2003). Thorn did not have any legitimate expectation of
privacy with respect to the use and contents of his DCSE computer. He was fully
aware of the computer-use policy, as evidenced by his written acknowledgment of the
limits imposed on his computer-access rights in 2000. The policy specifically bars
certain unauthorized use of DSS computers and further provides that employees have
no personal right of privacy with respect to their use of the agency's computers.
Furthermore, the policy explicitly provides DSS the right to access all of the agency's
computers in order to audit their use. In light of the express limits placed upon his
computer use by the agency's computer-use policy, the District Court correctly
determined that Thorn had no legitimate expectation of privacy in the contents of his
office computer. See United States v. Angevine, 281 F.3d 1130, 1134–35 (10th Cir.)
(rejecting claim of reasonable expectation of privacy in data an employee downloaded
from the Internet to a state university's computers when the university had an express
policy that reserved the right to randomly audit Internet use), cert. denied, 537 U.S.
845 (2002); United States v. Simons, 206 F.3d 392, 398 (4th Cir. 2000) (concluding
that government employee had no legitimate expectation of privacy in files
downloaded from the Internet when government employer had express policy limiting
computer usage to official government business and permitted random audits of
computer usage to ensure proper use of government resources); cf. United States v.
Slanina, 283 F.3d 670, 676–77 (5th Cir.) (upholding search but determining that
employee had legitimate expectation of privacy in contents of office computer when
government employer had not disseminated any policy limiting personal use of the
computer and employee's computer was password-protected), vacated on other
grounds by 537 U.S. 802 (2002), on appeal after remand 359 F.3d 356, 358 (5th Cir.
2004) (per curiam) (reaffirming validity of workplace search); Leventhal v. Knapek,
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266 F.3d 64, 73–74 (2d Cir. 2001) (determining that an employee had a legitimate
expectation of privacy in the contents of his office computer but noting the absence
of a policy explicitly limiting the scope of privacy in the computer).
Although any expectation of privacy in the contents of his office computer was
not reasonable, Thorn may have had a legitimate expectation of privacy in his DCSE
office, desk, and filing cabinet. Nonetheless, any such expectation was limited in
scope because other DCSE employees had keys that allowed them to access the office
and the contents of the desk and cabinets. Furthermore, the office, desk, and filing
cabinet were all state-issued property and not Thorn's personal belongings. See
O'Connor, 480 U.S. at 716 (plurality opinion) (recognizing offices, desks and filing
cabinets as part of the workplace that employers may search for evidence of work-
related misconduct); cf. Gossmeyer v. McDonald, 128 F.3d 481, 490 (7th Cir. 1997)
(refusing to find a legitimate expectation of privacy in the contents of filing cabinets
kept in a government office despite the fact that they were not state property and, in
fact, were purchased by the office occupant's own funds).
Assuming arguendo that Thorn had some minimal expectation of privacy in his
office, desk and filing cabinet, the searches of these items by Padfield and the DLS
investigators did not violate the Fourth Amendment's prohibition against
unreasonable searches. Under O'Connor, a public employer can investigate work-
related misconduct so long as any search is justified at inception and is reasonably
related in scope to the circumstances that justified it in the first place. 480 U.S. at
726. A search is justified at inception "when there are reasonable grounds for
suspecting that the search will turn up evidence that the employee is guilty of work-
related misconduct." Id. The scope of a search is reasonable when the measures
adopted are reasonably related to the objectives of the search and are not
unnecessarily intrusive. Id.
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Because Thorn had no legitimate expectation of privacy with respect to his use
of his office computer, the initial remote search of this computer did not violate the
Fourth Amendment. DCSE officials initially entered Thorn's office merely to secure
his computer tower for a more thorough examination of its contents; they did not
search other areas of the office until Thorn instructed Padfield to retrieve the tax
forms from his desk. In directing Padfield to secure these documents, Thorn
consented to Padfield's initial search of the desk. While searching for the forms,
Padfield discovered computer-generated pornographic stories and pictures throughout
the desk; this discovery allowed DCSE to expand the scope of the investigation to
include places and items where computer-generated pornographic materials could be
stored, such as on floppy disks. See, e.g., Leventhal, 266 F.3d at 76–77 (recognizing
that evidence of misconduct uncovered by an initial workplace search may provide
justification for an expanded investigation of the misconduct). Padfield was thus
justified in seizing Thorn's floppy disks from the desk in order to determine if they
contained pornography. See Slanina, 283 F.3d at 679–80 (concluding that
government employer was justified under O'Connor in conducting a full search of
computer hard drive and zip disks for further evidence of misconduct once employer
had determined employee had accessed pornographic materials with the computer).
The further examination of the contents of the office and the floppy disks by DLS
investigators was reasonable in light of DCSE's decision to terminate Thorn because
the investigators were merely cataloguing evidence of Thorn's work-related
misconduct in order to document the reasons for the termination in the event of legal
action by Thorn. Immediately upon discovering evidence of possible child
pornography, the investigators halted their inventory and notified local law-
enforcement officials.
At no time did the agency's investigation into Thorn's work-related misconduct
devolve into a de facto criminal investigation that should have been conducted
pursuant to a warrant. As evidence of widespread misconduct surfaced, through the
audit of Thorn's computer use and through the accidental discovery of pornographic
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materials during the retrieval of Thorn's tax forms, DCSE had every right to
investigate the scope of this misconduct. After the computer-use audit and consent
search of the desk, the permissible scope of the search for evidence of Thorn's work-
related misconduct reasonably included Thorn's office, desk, and filing cabinet. The
various warrantless searches conducted by DCSE and DLS officials did not violate
the Fourth Amendment. The District Court therefore properly refused to suppress
evidence discovered during these searches. This evidence provided sufficient
probable cause for the February search warrant, which permitted the search for and
seizure of contraband, photographs, printed materials and electronic storage media
by the Joplin Police Department. The District Court properly refused to suppress
evidence discovered in the execution of this warrant as well.
The March 15 search warrant was a supplemental warrant that Lieutenant
Francis sought before examining the contents of computer media seized during the
execution of the February warrant. The government conceded to the Magistrate
Judge that this warrant was fatally deficient on its face because it failed to set forth
the factual basis for probable cause to believe that child pornography would be
discovered in the computer media at issue. Nonetheless, evidence discovered from
the police search of the floppy disks need not be suppressed because the March
warrant was surplusage and was not required to permit law enforcement officials to
examine the contents of the seized computer media. The February warrant, which
explicitly authorized the search and seizure of electronic storage media containing
images of minors involved in sexual acts, was sufficient to provide the authority to
examine the contents of the various computer-related media. See, e.g., United States
v. Upham, 168 F.3d 532, 536 (1st Cir.) ("The warrant explicitly authorized the seizure
of both the computer plus diskettes and the unlawful images. The images . . . were
'inside' the computer or diskettes. The extraction of unlawful images from within the
computer and diskettes was therefore contemplated by the warrant."), cert. denied,
527 U.S. 1011 (1999); cf. United States v. Wright, 704 F.2d 420, 422 (8th Cir. 1983)
(per curiam) (holding that warrant permitting search for drugs within a house
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permitted the search of a safe within the house that might reasonably have contained
drugs). The District Court properly refused to suppress evidence from the
examination of the contents of the various floppy disks taken from Thorn's office.
The District Court's decision to deny Thorn's motion to suppress, leading to the
acceptance of his conditional plea of guilty and the imposition of the resulting
conviction, is affirmed.
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