ROBERT G. JAMES, District Judge.
Pending before the Court is a Motion to Suppress [Doc. No. 21] filed by Defendant Raul X. Johnson ("Johnson"). On March 20, 2012, Magistrate Judge Karen L. Hayes issued a Report and Recommendation [Doc. No. 30], recommending that the Court grant the motion in part and deny the motion in part. On April 3, 2012, the Government filed an Objection [Doc. No. 31] to the Report and Recommendation. Johnson did not respond to the objection.
In his Motion to Suppress, Johnson, an officer with the Monroe City Police Department ("MPD"), challenges two searches by law enforcement: (1) a search of the police cruiser assigned to him for use as a school resource officer and (2) a search of his desk at Carroll Junior High School. With regard to the police cruiser, Magistrate Judge Hayes concluded that Johnson did not have a reasonable expectation of privacy, and she recommended that the Motion to Suppress be denied as to the evidence obtained from the cruiser. With regard to the desk, however, Magistrate Judge Hayes found that Johnson did have a reasonable expectation of privacy and that the warrantless search of his desk violated the Fourth Amendment and was presumptively unreasonable. Although she considered both the workplace exception, pursuant to O'Connor v. Ortega, 480 U.S. 709, 107 S.Ct. 1492, 94 L.Ed.2d 714 (1987), and the consent exception, Magistrate Judge Hayes found that neither exception was applicable, and, thus, recommended that the Motion to Suppress be granted and the evidence obtained from Johnson's desk be suppressed.
The Government objects that the Court should deny the Motion to Suppress in its entirety because the search of Johnson's desk was a legitimate workplace search and, in the alternative, the evidence would have been inevitably discovered. The Government admits that the O'Connor decision did not address warrantless workplace searches for purposes of criminal investigation, but argues that under United States v. Slanina, 283 F.3d 670 (5th Cir. 2002), judgment vacated on other grounds, 537 U.S. 802, 123 S.Ct. 69, 154 L.Ed.2d 3 (2002), the Fifth Circuit would find that the workplace exception applies in this case. Even if the workplace exception does not apply, the Government argues that the Motion to Suppress should be denied because the inevitable discovery doctrine permits the introduction of the evidence seized from Johnson's desk.
The Court will first address the Government's objection that the search of Johnson's desk was permissible under the Fifth Circuit's interpretation of the workplace
After his conviction for possession of child pornography, Slanina appealed to the Fifth Circuit, arguing that the district court erred in denying his motion to suppress because he had a reasonable expectation of privacy in the computer, and Keller's warrantless search
After reviewing the decisions of other appellate courts, the Fifth Circuit "approved of the Fourth Circuit's reasoning in [United States v. Simons, 206 F.3d 392 (4th Cir.2000)]," which involved an employee of the Central Intelligence Agency suspected of using his work computer to access pornography. 283 F.3d at 678. The Fifth Circuit agreed with the Fourth Circuit "that O'Connor's goal of ensuring an efficient workplace should not be frustrated simply because the same misconduct that violates a government employer's policy also happens to be illegal." Id. The Fifth Circuit acknowledged the potential conflict between the Fourth Circuit's interpretation of O'Connor in Simons and the Ninth Circuit's interpretation in United States v. Taketa, 923 F.2d 665 (9th Cir. 1991), where that court suppressed evidence obtained after the "character of the investigation had changed" from an "internal
Id. The Fifth Circuit also addressed the fact that Keller was a law enforcement officer, as opposed to the computer network administrator who conducted the search in Simons. However, the Fifth Circuit relied on a Seventh Circuit case for the proposition that it is the "purpose of the search," not whether the employer is a law enforcement officer, that is determinative. Id. at 679 (citing United States v. Fernandes, 272 F.3d 938, 943 n. 3 (7th Cir.2001)).
In Slanina's case, the Fifth Circuit reached the "inescapable conclusion" that Keller's search of Slanina's computer should be reviewed under O'Connor. Id. at 679. In reaching that conclusion, the Fifth Circuit explained that the "record evidence demonstrates that as of the time of Keller's search, the probe remained at least partly an investigation into employee misconduct. The subsequent involvement of the City Manager and human resources in the process attests to that characterization." Id. Under these facts, the Fifth Circuit concluded that "[t]o hold that a warrant is necessary any time a law enforcement official recognizes the possibility that an investigation into work-related misconduct will yield evidence of criminal acts would frustrate the government employer's interest in `the efficient and proper operation of the workplace.'" Id. (citing O'Connor, 480 U.S. at 723, 107 S.Ct. 1492). The Fifth Circuit found that both the inception of Keller's search, after he had learned of Smith's discoveries, and the scope of his search were reasonable and justified.
Under Slanina, the Government is correct that the status of the "searcher" as a "law enforcement officer is not dispositive," and that "`work related misconduct' can include criminal activity unrelated to the job." [Doc. No. 31, p. 4]. However, the Government asks the Court to ignore the "critical distinction" between this case and Slanina: whether an investigation was "wholly criminal" or had the dual purpose of an internal investigation into work-related misconduct and into the possible commission of a crime. In this case, there was no dual purpose; the single purpose of this investigation was Johnson's possible commission of a crime. On September 8, 2008, Sergeant Charles Roark of the MPD, opened a criminal investigation
Finally, the Government raises an entirely new argument that the search of Johnson's desk led only to evidence that would have been inevitably discovered. "The inevitable discovery rule applies if the Government demonstrates by a preponderance of the evidence that (1) there is a reasonable probability that the contested evidence would have been discovered by lawful means in the absence of police misconduct and (2) the Government was actively pursuing a substantial alternate line of investigation at the time of the constitutional violation."
First, the Court has just held that Sergeant Roark and Agent Chesser did not have the authority, absent a search warrant, to search Johnson's desk. Thus, this argument carries no weight.
Second, the Court must also consider whether there is sufficient evidence to find that there is a "reasonable probability" that the debit card and bank statements would have been lawfully discovered otherwise. The Court has reviewed the record in this matter, but the only testimony addressing this argument indicates that Johnson's laptop computer was located in his office at Carroll Junior High School and that it was a 14-inch screen IBM laptop which could fit in a drawer. Neither Sergeant Roark nor Agent Chesser testified as to where the computer was located or where the debit card and bank statements were found. On the record before the Court, the Government has failed to establish by a preponderance of the evidence that there was a reasonable probability the contested items would have been discovered by lawful means.
Therefore, for the reasons stated in this Ruling and those additional reasons in the Report and Recommendation of the Magistrate Judge, which the Court ADOPTS, the Motion to Suppress is GRANTED IN PART and DENIED IN PART. The Motion to Suppress the evidence obtained as a result of the search of the defendant's desk at Carroll Junior High School is GRANTED. The Motion to Suppress the evidence obtained as a result of the searches of the defendant's police cruiser is DENIED.
KAREN L. HAYES, United States Magistrate Judge.
Before the undersigned Magistrate Judge, on reference from the District Court, is a motion to suppress [doc. # 21] filed by defendant, Raul X. Johnson. For reasons stated below, it is recommended that the motion be
On December 22, 2011, Johnson, a Monroe Police Department Officer, filed the instant motion to suppress evidence seized during a search of the police cruiser assigned to him by the department. He argues that the search was unconstitutional, as it was conducted without a search warrant. He also argues that the only consent given to search the vehicle was by the Chief of Police, and that no other exceptions to the warrant requirement were present.
In its December 29, 2011, responses to the motions, the government contends that the defendant lacked any reasonable expectation of privacy in the vehicle, as he did not have exclusive access to it. In the alternative, the government argues that the search fell under an exception to the warrant requirement for criminal investigations of government employees.
An evidentiary hearing was held before the undersigned on February 2, 2012. Following the hearing, the parties were allowed to submit post-hearing briefs regarding the effect on this case of the recent Supreme Court decision in United States v. Jones, ___ U.S. ___, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012). In his post-hearing brief, the defendant has raised the argument that the search of his desk at Carroll Junior High School also violated his Fourth Amendment rights, and evidence found therein should be suppressed. See Doc. #29, p. 3. The matter is now before the court.
Testimony at the hearing established that the Monroe, Louisiana, Police Department ("MPD") was conducting an investigation of one of their own: Defendant Raul X. Johnson, a school resource officer assigned to Carroll Junior High School. Transcript from Hearing on Motion to Suppress ("Tr."), pp. 25, 28. The complaint dealt with an eBay account in Johnson's name that was being utilized to sell stolen merchandise. Tr. p. 40. MPD Sgt. Charles Roark testified that he opened his investigation on September 8, 2008. Tr. p. 41. Shortly thereafter, the Federal Bureau of Investigation ("FBI") was asked to assist. Tr. pp. 25 & 41. Special Agent Bill Chesser testified that he was first contacted on September 12, 2008. Tr. p. 54.
Because of suspicions that Johnson might be conducting the scheme during work hours, permission was sought and obtained from then Chief Ron Schleuter to place a GPS tracking device on the MPD vehicle typically utilized by the defendant. Tr. pp. 26, 29 & 49.
While Johnson had a vehicle assigned to him for his use, it was not a "take home" car. He had to pick it up at the start of his shift and return it at the end of the day. Tr. p. 27. Even when assigned a specific vehicle, an officer did not have the only set of keys. Tr. pp. 24, 27.
Johnson's unit was searched again on February 17, 2009. Earlier that day, Special Agent Chesser had obtained search warrants from the undersigned for Johnson's person, Stephanie Payne's person and Stephanie Payne's home. Tr. p. 51. The February 17, 2009, search of the vehicle was conducted by Sgt. Roark and SA Chesser. Because of the age of the documents that the investigators found during the first search, the officers believed that those documents and others would be found in the unit. Tr. p. 38. During this second search, investigators found envelopes addressed to Johnson at the post office box in West Monroe involved in the scheme and banking items. Some of the items had been found in the car in the previous search. Tr. p. 52.
On February 19, 2009, pursuant to the previously obtained search warrant, Johnson was searched. At the time of this search, investigators were aware that Iberia Bank and Paypal had issued debit cards to Johnson. These cards were not found on his person. After the search of his person, the defendant was interviewed and he acknowledged possessing such cards. Following that admission, his unit was again searched in an attempt to locate the cards, and one was recovered. Tr. p. 52-53.
Johnson's office at Carroll Junior High School was searched on February 20, 2009, with the permission of Johnson's supervisor and the principal of the school. Tr. p. 53. Sgt. Roark had specifically been instructed by Johnson's supervisor to locate and retrieve a small laptop belonging to MPD. Tr. p. 39. Roark and SA Chesser located a debit card and bank statements during this search. Tr. p. 40.
In the motion to dismiss, the defendant contends that the officers violated his Fourth Amendment rights when they searched his police vehicle without a search warrant, without consent, and without exigent circumstances. In his post-hearing brief, the defendant also claims that the search of his desk at Carroll High
As a preliminary matter, the undersigned feels compelled to address the Supreme Court's recent decision in United States v. Jones, ___ U.S. ___, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012). In Jones, a majority of the Court ruled that attaching a GPS tracking device to a vehicle and using it to monitor the vehicle's subsequent movements constituted a search under the Fourth Amendment. The Court reasoned that a search occurs whenever the government "physically occupie[s] private property for the purpose of obtaining information." Jones, 132 S.Ct. at 949. In a concurring opinion, four of the justices opined that clandestine long-term monitoring of the defendant through the GPS device constituted a search because it "impinge[d] on expectations of privacy." Id. at 964 (Alito, J., concurring).
To the extent Jones held that GPS surveillance, whether long-term or short-term, constitutes a Fourth Amendment search, it is inapplicable here. In this case, it is not the GPS surveillance that is alleged to have infringed on Johnson's Fourth Amendment rights, and the government is not intending to introduce the surveillance results. Rather, Johnson alleges in his motion to suppress that the officers violated his rights during the actual search of the vehicle, which they conducted while installing the device. See Doc. # 21. In a post-hearing brief addressing the impact of the Jones decision, the defendant agrees the issue of surveillance is irrelevant, as he claims that "[i]t is the installation of the device itself that is the search and seizure." Doc. # 29, p. 4. The undersigned agrees that any potential search and seizure would have occurred when the officers entered the car to move it and install the device; thus, the Jones decision will not be considered in this respect.
Where the Jones decision is relevant, however, is on the issue of the proper test for analyzing what constitutes a "search" for purposes of the Fourth Amendment. A majority of the Court found that a search occurred when "[t]he Government physically occupied private property for the purpose of obtaining information." Jones, 132 S.Ct. at 949. The four Justices concurring in the judgment reached this conclusion based on the "reasonable expectation of privacy" test established in Katz. See id. at 957-964 (Alito, Ginsburg, Breyer, & Kagan, JJ., concurring in the judgment); see also Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring). And in fact, the majority stressed that their trespass rationale was not inconsistent with Katz. Jones, 132 S.Ct. at 952 ("[T]he Katz reasonable-expectation-of-privacy test has been added to, not substituted for, the common-law trespassory test."). Thus, Jones established, or perhaps reiterated, that there are two ways to analyze this issue: a traditional common-law property rights test and the Katz/reasonable-expectation-of-privacy test. See United States v. Hanna, No. 11-20678-CR, 2012 WL 279435, *3-5 (S.D.Fla. Jan. 30, 2012) (discussing Jones and applying both tests to determine that the defendants lacked standing to challenge the installation and use of a GPS device in someone else's vehicle).
It is important to note that this aspect of the analysis is inextricably tied to the concept of Fourth Amendment standing.
Under either approach recognized by Jones, the defendant here lacks the required standing to challenge the intrusion into the vehicle. From a trespassory approach, Johnson had no property rights whatsoever in the vehicle; the hearing testimony established that it was owned by the Monroe Police Department. Tr. p. 8. Standing, however, does not require an ownership interest. See Minnesota v. Olson, 495 U.S. 91, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990) (recognizing that an overnight guest in a home has a legitimate expectation of privacy in that home). And at first blush it would appear that Johnson might have had some possessory interest in the vehicle, as he drove it on a day-to-day basis with the permission of the department. The Fifth Circuit has held that "where a person has borrowed an automobile from another, with the other's consent, the borrower becomes a lawful possessor of the vehicle and thus has standing to challenge its search." United States v. Hernandez, 647 F.3d 216, 220 (5th Cir. 2011) (quoting United States v. Lee, 898 F.2d 1034, 1038 (5th Cir.1990)). Nevertheless, in both Hernandez and Lee, the borrower of the car was in possession of it at the time of the search. Hernandez, 647 F.3d at 219-20 (defendant had standing to challenge GPS surveillance of brother's truck while he drove it, but not placement of tracking device while it was parked on the street); Lee, 898 F.2d at 1038 (defendant could challenge search that occurred while he was operating truck with owner's permission); see also Jones, 132 S.Ct. at 952 (emphasizing that Jones "possessed the Jeep at the time the Government trespassorily inserted the information-gathering device"). Here, Johnson relinquished his possessory interest when he parked the car on the department lot at the end of each day. Indeed, at the time of the intrusion, the car was parked on the lot, out of his possession. Therefore, under the Jones trespassory approach, Johnson lacks standing to challenge a trespass onto property to which he had no rights. See Hanna, 2012 WL 279435 at *3 (applying Jones trespass approach to find defendants lacked standing to challenge search of co-defendant's car).
Similarly, under a Katz analysis, Johnson had no reasonable expectation of privacy in the vehicle. The question of whether a defendant has a reasonable expectation of privacy sufficient to contest the validity of a search is a two-fold inquiry: "(1) whether the defendant is able to establish an actual, subjective expectation
Here, the defendant has not demonstrated an actual, subjective expectation of privacy in the police cruiser. No testimony was presented at the hearing that would support such a finding. In fact, the testimony presented at the hearing established that the defendant took no affirmative actions to conceal or keep secret the eBay documentation. See United States v. Yang, 478 F.3d 832, 835 (7th Cir.2007) (noting that an individual claiming a subjective expectation of privacy must demonstrate that he sought to preserve the objects of the search as private). He left various documents lying out in the open in a vehicle to which he did not have exclusive access. He knew that he did not have the only set of keys. He returned the car to the MPD lot at the end of each shift. Other officers testified that the police chief had never indicated to the department that they had exclusive use of their vehicles, and that even take-home vehicles were subject to inspection at any time. Tr. pp. 27, 47. Thus, the defendant has not established a subjective expectation of privacy in the vehicle.
Furthermore, regardless of his subjective expectations, the defendant did not have a reasonable, objective expectation of privacy that society should be willing to recognize. The factors to consider include:
Cardoza-Hinojosa, 140 F.3d at 615 (quoting United States v. Ibarra, 948 F.2d 903, 906 (5th Cir.1991) (first alteration in original)).
Here, the undersigned has already determined that the defendant had no property or possessory interest in the vehicle, and that he has not exhibited a subjective expectation of privacy. Furthermore, the testimony established that he did not have the right to exclude others from the vehicle, as he did not have the only set of keys, and his supervisors could allow other officers to use it. No evidence was offered by either party as to any precautions taken by the defendant or the legitimacy of his presence in the vehicle.
Given the totality of the circumstances, the defendant has failed to establish a property or privacy interest in the vehicle. Accordingly, the undersigned finds that the defendant lacks standing to challenge the validity of the search.
Because the standing argument fully resolves the defendant's motion with respect to the search of the vehicle, the undersigned will not address the other points raised in opposition by the government.
The defendant argues in his post-hearing brief that his Fourth Amendment
As with the vehicle, the first question is whether the officers' intrusion into Johnson's desk was a search for purposes of the Fourth Amendment. Under Jones's trespassory approach, it is not clear what, if any, property rights Johnson had to the desk. Neither the government nor the defendant has produced evidence showing who owned the desk, and although the evidence indicates that Johnson had the exclusive right to use the desk, it is not clear whether he was actually in possession of it at the time of the intrusion.
Nevertheless, the undersigned finds that the intrusion constitutes a search under the reasonable expectation of privacy test outlined in Katz.
Similarly, the testimony here established that the desk at Carroll Junior High was the defendant's own private desk reserved for his exclusive use. Tr. p. 55. There has been no indication that he shared the desk with any other employees, that it was largely open to the public, or that any policies or practices were in place that might have diminished his privacy expectation. Thus, the undersigned finds that Johnson had a legitimate expectation of privacy in the desk, and he can challenge its intrusion under the Fourth Amendment.
Since the search was conducted without a warrant, it was presumptively unreasonable unless it satisfies one of "a few specifically established and well-delineated exceptions." Katz, supra, at 357, 88 S.Ct. 507. In O'Connor, the Supreme Court held that the "special needs" of the workplace warranted one such exception. O'Connor, 480 U.S. at 725, 107 S.Ct. 1492. Finding that work-related intrusions by public employers are justified by the government's
In this case, the undersigned finds that O'Connor's exception to the warrant requirement has not been triggered. The search of Johnson's desk was anything but "non-investigatory"; it was part of an extensive investigation into criminal activity unrelated to his work. At the time of the search, the investigation into Johnson's alleged activities on eBay had been open for over five months. The day before the officers went to the school, they searched the defendant's person pursuant to a warrant looking for debit cards that had been issued to him by Iberia Bank. Tr. p. 52. The officers did not find any cards on Johnson, but he indicated to them during a subsequent interview that he possessed the cards. Id. at 52-53. Special Agent Chesser testified at the hearing that after they only found one card in the police cruiser, they obtained permission to search the desk at Carroll Junior High. Id. at 53. They then found another debit card in the desk. Id. This sequence of events certainly suggests that the search of the desk was part of the ongoing criminal investigation, and not simply a work-related search by the defendant's employer. Indeed, the search was conducted by law enforcement officers, including Special Agent Chesser of the FBI, in their capacity as investigators, not employers. The government "cannot cloak itself in its public employer robes in order to avoid the probable cause requirement when it is acquiring evidence for a criminal prosecution." United States v. Taketa, 923 F.2d 665 (9th Cir.1991) (citing O'Connor, 480 U.S. at 724, 107 S.Ct. 1492) (finding that "[w]hile the burden of showing probable cause and obtaining a warrant may be `intolerable' for public employers, it is de rigueur for law enforcement officials.").
In its post-hearing brief, the government argues that the officers were specifically authorized to go to the school to retrieve a laptop computer, which was government property. This argument hints at the O'Connor plurality's finding that "the concept of probable cause has little meaning for a routine inventory conducted by public employers for the purpose of securing state property." O'Connor, 480 U.S. at 723, 107 S.Ct. 1492 (citing other sources). The officers' intrusion into the desk in this case, however, was not a "routine inventory" to secure state property. This conclusion is supported by the fact that Special Agent Chesser of the FBI was involved in the search; if the officers were merely retrieving a department-issued laptop for an inventory or some other work-related purpose, his presence would seem to be completely unnecessary.
In sum, the government has failed to satisfy its burden to show that the O'Connor exception for workplace searches applies to the circumstances of this case. This was an investigatory search to recover evidence unrelated to Johnson's work; thus, the search was invalid without a
To that end, the government also argues that the search of the defendant's desk was justified under the consent exception to the Fourth Amendment's warrant requirement. "[O]ne of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent." Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). In order to satisfy the consent exception, the government must demonstrate that there was (1) effective consent, (2) given voluntarily, (3) by a party with actual or apparent authority. United States v. Gonzales, 121 F.3d 928, 938 (5th Cir.1997).
Here, Special Agent Chesser testified that he obtained the permission of the defendant's supervisor and the principal of the school to search the desk. Tr. p. 53. Other than pointing to this testimony, however, the government has failed to produce any other evidence that the consent exception was satisfied. Even assuming that the officers obtained effective consent from the supervisor and the principal, there is absolutely nothing in the record to indicate that this consent was given voluntarily or that those parties had the authority to give it. Thus, the government has failed to demonstrate that the officers obtained valid consent to search the desk.
Because the government has not justified the officers' warrantless search of the defendant's desk, it has failed to meet its burden to show the search was reasonable under the Fourth Amendment. Therefore, the evidence obtained in that search, including a debit card, bank statements, and a laptop computer, should be suppressed.
For the above-stated reasons,
Under the provisions of 28 U.S.C. § 636(b)(1)(C) and FRCP Rule 72(b), the parties have
March 20, 2012.
