United States v. 2007-06-20 | 05-30177 | USA VZIEGLER | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 UNITED STATES OF AMERICA, No. 05-30177
Plaintiff-Appellee, D.C. No.
v. CR-03-00008-RFC
 District of Montana,JEFFREY BRIAN ZIEGLER, ButteDefendant-Appellant.
ORDER

Filed June 21, 2007
Before: Diarmuid F. O’Scannlain, Barry G. Silverman, and
Ronald M. Gould, Circuit Judges.
Order;
Panel Concurrence;
Dissent by Judge W. Fletcher;
Dissent by Judge Kozinski
ORDER
A sua sponte call for a vote on rehearing this case en banc
was made by an active judge of this court. The call failed to
receive a majority of the votes of the nonrecused active
judges. Fed. R. App. P. 35. The sua sponte en banc call is
therefore rejected.
O’SCANNLAIN, SILVERMAN AND GOULD, Circuit
Judges, concurring in the denial of rehearing en banc:
The court wisely denied rehearing this case en banc. We
write separately only to counter the dissent’s unwarranted
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contention that the panel has “inaccurate[ly]” and “incom-
plete[ly]” described the record.
First, contrary to the dissent’s assertions, the record in the
district court shows that Frontline and its employees cooper-
ated with the investigation at every turn. John Softich and Bill
Schneider, the persons who performed the search, testified
that they told their boss, Ron Reavis, the chief financial offi-
cer of the corporation, that the FBI had inquired about making
a backup of the hard drive, and Reavis said “that as an officer
of the company, he was okay with that, and he said that we
could go forward and do that.” Frontline later turned over the
copies made by Softich and Schneider to the government. As
FBI Agent Kennedy testified, “[a]t this point, Counselor,
everybody at Frontline Processing is telling me they are going
to cooperate, so I’m not going to go in and start serving
search warrants on a company if they’re going to cooperate.
I have no desire to do that.”1
The dissent concludes that this testimony shows only that
Reavis “acquiesced in Softich and Schneider’s planned action
. . . .” The American Heritage Dictionary defines “consent” as
“[a]cceptance or approval of what is planned or done by
another; acquiescence.” The American Heritage Dictionary of
the English Language (4th ed. 2000). The testimony of
Sofitch and Schneider does make clear that when Agent Ken-
nedy asked these two employees to make a back-up copy of
Ziegler’s hard drive, they approached Reavis, told him what
was being asked of them, and he said “that as an officer of the
company, he was okay with that, and he said that we could go
forward and do that.”2 A plan of action was proposed, Softich
1Agent Kennedy testified that in addition to later conversations with
Frontline’s corporate counsel, Michael Freeman, he also had “conversa-
tions with Mr. Reavis, who is the chief financial officer, telling me that
Mr. Kittler and he both wanted to cooperate with the FBI.”
2The dissent apparently would require “clairvoyant” consent. How else
to understand its requirement that Reavis consent to the search “before
Kennedy directed Softich and Schneider to perform it”? Dissent at 7489.
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and Schneider conveyed the plan to Reavis, and they received
approval of the plan; acquiescence by any other name is con-
sent.3
The dissent also relies heavily on company president Chris
Kittler’s anti-government views, Softich’s later “administra-
tive termination,” and Kittler’s kicking and spitting fit at an
airport “years later.” But these subsequent incidents have little
to no relevance to the question of whether the corporation
consented at the time of the search. To a certain extent, reli-
ance by the dissenters upon these events is very strange
indeed, because what they prove is that Kittler was upset
because his corporate employees and officers cooperated with
and consented to the government’s investigation.4
3It is hard to know what to make of the dissent’s citation to Bumper v.
North Carolina, 391 U.S. 543, 548-49 (1968), for the proposition that “ac-
quiescence” does not equal “consent”? Bumper is simply and utterly inapt.
In that case, four white law enforcement officers showed up at the house
of Hattie Leath, a 66-year old African-American widow, and demanded
entry to her house, telling her that they were in possession of a search war-
rant. Id. at 546. She allowed them entry to the house based upon their pro-
fessed possession of a search warrant. The State later could not justify the
search on the basis of any warrant, but the trial court refused to suppress
the evidence discovered on the basis that Leath consented to the search.
The Supreme Court reversed, holding that “[w]hen a law enforcement
officer claims authority to search a home under a warrant, he announces
in effect that the occupant has no right to resist the search. The situation
is instinct with coercion-albeit colorably lawful coercion.” Id. at 550. The
Court’s statement concerning “acquiescence to a claim of lawful authori-
ty,” id. at 549, was quite clearly directed at the police gaining entry to
search by lying about having a warrant. Even the dissent’s most exagger-
ated anxieties about this case do not approach that scenario, and thus the
quotation plucked from Bumper is at best misleading.
4Compare Georgia v. Randolph, 547 U.S. 103, 126 S.Ct. 1515, 1518
(2006) (“The Fourth Amendment recognizes a valid warrantless entry and
search of premises when police obtain the voluntary consent of an occu-
pant who shares, or is reasonably believed to share, authority over the
area in common with a co-occupant who later objects to the use of evi-
dence so obtained.”) (emphasis added).
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Finally, the quotation of the district court’s statement that
“they sure didn’t consent to having him” is taken out of con-
text by the dissent; what the court was discussing was whether
Agent Kennedy had directed Softich and Schneider to make
a backup tape. The dissent’s own quotation from the transcript
does not demonstrate that Kennedy “affirmatively stated” that
neither Softich nor Schneider consented to the search. Dissent
at 7488-89. Indeed, as described above, Kennedy’s testimony
was that everybody at Frontline was cooperating with the
investigation.
The full exchange upon which the dissent hinges its analy-
sis is as follows:
THE COURT: Well, I think [Agent Kennedy’s] tes-
tified a number of times contrary to your position.
He said that he didn’t ask them to do a search, and
they sure didn’t consent to having him. I don’t
understand that question, but his position is he didn’t
ask them to do a search. I know exactly what the
positions are.
What this passage shows is that there was confusion over the
extent to which Kennedy directed the search. But it is extrava-
gant in the extreme to assert that this is a finding of fact or
a legal conclusion that Frontline did not consent to making a
backup of Ziegler’s hard drive. And this passage does not
undercut the testimony of Softich and Schneider that they
went to Reavis and received instructions to go ahead with the
plan.
The search was reasonable on the facts in the record of this
case. Post hoc revisionism by the dissenters validates the wis-
dom of our court’s decision not to rehear it en banc.
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W. FLETCHER, Circuit Judge, dissenting, joined by
PREGERSON, REINHARDT, KOZINSKI, HAWKINS,
THOMAS, McKEOWN, WARDLAW, FISHER, PAEZ, and
BERZON, Circuit Judges:
For two reasons, I dissent from the court’s decision not to
rehear this case en banc.
First, the employer in this case had an announced policy
that employee computer use was subject to electronic moni-
toring from outside the employees’ offices by the employer.
The panel incorrectly concludes that this policy constituted
express authorization by the employees for the employer to do
something quite different — to consent to a warrantless physi-
cal entry into the employees’ locked offices by criminal law
enforcement agents to seize a computer.
Second, even assuming that the employer had the authority
to consent to an FBI search of an employee’s locked office for
a computer, there was no such consent. Based on an inaccu-
rate and incomplete description of the facts in the record, the
panel incorrectly concludes that there was consent.
We should have taken this case en banc to correct the
panel’s erroneous view of the protection provided by the
Fourth Amendment and to insure the integrity of our appellate
process in dealing with a trial court record.
I. Factual Background
Defendant Jeffrey Ziegler worked in Bozeman, Montana as
a manager at Frontline Processing. Frontline processed credit
card billings. At the time of the events at issue, Frontline was
a small company with between thirty and forty employees.
The owner of the company, Chris Kittler, worked at the same
location as his employees. According to the director of Fron-
tline’s information technology (IT) department, John Softich,
Ziegler shared his position on the corporate ladder as second-
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in-command with other employees, including CFO Ron
Reavis. Reavis was not, as the panel opinion states, Ziegler’s
superior. Ziegler was disliked by other employees but was a
personal friend of Kittler. Kittler created the position at Fron-
tline for Ziegler and gave him a private office with a door that
locked.
The search at issue resulted from an FBI investigation trig-
gered by Ziegler’s co-workers. Through remote electronic
monitoring, IT technicians Softich and Bill Schneider discov-
ered that company employees, including Ziegler, had been
using their office computers to visit adult pornography sites.
By remotely viewing internet activity on Ziegler’s computer,
Softich and Schneider also discovered that on two occasions
Ziegler had visited sites that contained images of child por-
nography. Ziegler’s computer had automatically stored those
images as “cache” files, probably without Ziegler’s knowl-
edge.
Softich and Schneider did not inform Kittler, Frontline’s
owner, about the cache files. However, they did tell Reavis
and the office receptionist, Lee Ann Miller. Schneider testi-
fied that when Reavis was told about Ziegler’s activities,
Reavis declared that he wanted to handle the situation inter-
nally “and not involve any authorities because he didn’t want
the company shattered.” Schneider also testified that Miller,
who disliked Ziegler, told her fiancé about the cache files.
Miller’s fiancé, who owned the company that provided Fron-
tline’s internet service, then contacted FBI agent James Ken-
nedy.
Based on the tip from Miller’s fiancé, Kennedy contacted
Frontline employees. So far as the record shows, the only
employees Kennedy contacted prior to the search of Ziegler’s
office were IT technicians Softich and Schneider. Kennedy
did not contact either CFO Reavis or Frontline owner Kittler
prior to the search.
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The IT technicians did not have a key to Ziegler’s office.
Indeed, they had never entered Ziegler’s office, even during
the day, without his permission. A locksmith provided a key
to Reavis, which he then gave to IT technicians Softich and
Schneider.
Softich and Schneider testified that acting at Kennedy’s
direction and using the key obtained from the locksmith they
entered Ziegler’s locked private office after working hours,
took Ziegler’s hard drive, and made copies of that hard drive.
According to Kennedy, however, Softich and Schneider acted
on their own in entering Ziegler’s office and obtaining copies
of his hard drive. The district court believed Softich and
Schneider rather than Kennedy. The court found that “Agent
Kennedy contacted Softich and Schneider on January 30,
2001 and directed them to make a back-up of Defendant’s
computer files.” (Emphasis added.) The court did not find that
Kennedy had merely “inquired about” making a back-up.
Schneider testified that he and Softich told Reavis that they
had been directed by Kennedy to go into Ziegler’s office to
take his hard drive, and that they were “going to do” that.
Schneider testified that after they told Reavis what Kennedy
had directed them to do, Reavis responded that “as an officer
of the company, he was okay with that.” Reavis did not tes-
tify. Six days after Softich and Schneider searched Ziegler’s
office and obtained the hard drive, and after discussions with
its attorney, Michael Freeman, Frontline consented to turning
over Ziegler’s hard drive to the FBI.
The record contains no evidence that Kittler, Frontline’s
owner, had given any employee, including Reavis, authority
to consent on behalf of the company to a search by the FBI.
Indeed, the record contains substantial evidence that Ken-
nedy, Softich, Schneider, and Reavis deliberately did not tell
Kittler about the impending search of Ziegler’s office. Kit-
tler’s intense dislike of the FBI was well known to Frontline
employees. Kennedy testified in the district court that both
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Softich and Schneider “felt their jobs would be in jeopardy if
Mr. Kittler knew they were cooperating with the FBI.” Ken-
nedy also testified that Softich requested their meeting take
place over the lunch hour “so as not to raise any questions at
work.” Softich and Schneider’s unwillingness to inform Kit-
tler is substantiated by events after the search. Schneider testi-
fied that, after the search, “Chris Kittler called us up to his
office many, many, many, many, many times to scream at us
for cooperating with the FBI.” According to Schneider, Kittler
“felt that the FBI coming in and doing the investigation in his
company was unconstitutional and it was wrong.” Kittler
launched an internal investigation into “who had tipped off
the FBI.”
Schneider testified that he received a constructive discharge
based on his cooperation with the FBI investigation. Miller
also left the company because of Kittler. The intensity of Kit-
tler’s response did not diminish over time. Kittler used com-
pany money to help pay for Ziegler’s legal defense when he
was finally indicted, more than two years after the search.
Softich also testified that, years later, during a chance encoun-
ter at an airport, Kittler kicked and spat on Reavis because he
felt that Reavis had “betrayed the company.”
Ziegler’s hard drive contained several legal, adult, porno-
graphic images. In addition, a few of the cache files, saved
automatically on Ziegler’s computer, contained child pornog-
raphy. Ziegler never accessed the cache files after they were
saved.
Ziegler pled guilty, and the district court sentenced him to
a fine and two years probation. The court stated, in explana-
tion of its light sentence: “The short duration of the posses-
sion, the fact that the searches were over a two-day period,
and the fact that the defendant did not sort or save this mate-
rial indicates that this defendant is not similar to the average
offender charged with similar offenses. The defendant’s eval-
uation indicates that the defendant is not a pedo[ph]ile.”
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Ziegler preserved for appeal the denial of his motion to sup-
press.
II. Motion to Suppress
Ziegler moved in the district court to suppress the cache
files found on his hard drive. The government made two argu-
ments in the district court in opposition to the motion. First,
the government argued that Softich and Schneider searched
Ziegler’s locked office and took his hard drive on their own
initiative, without any direction by the FBI. The government
then relied on the undisputed fact that six days after Softich
and Schneider had obtained the hard drive, Frontline, after
consulting with counsel, consented to handing the hard drive
over to Kennedy. Second, the government argued that, in any
event, Ziegler had no reasonable expectation of privacy
against a warrantless FBI-directed search of his locked private
office. The government never argued that Reavis (or, indeed,
anyone else at Frontline) consented to an FBI-directed search
of Ziegler’s office.
The district court denied Ziegler’s motion. It rejected the
government’s first argument, holding that Softich and Schnei-
der had not acted on their own, but rather had been directed
to perform the search by FBI Agent Kennedy. This holding
made irrelevant the undisputed fact that Frontline later coop-
erated with the FBI. However, the court agreed with the gov-
ernment’s second argument, holding that Ziegler had no
reasonable expectation of privacy against the search, irrespec-
tive of any post-search consent.
The panel has written two opinions in this case. In its first
opinion, the panel affirmed the district court’s denial of
Ziegler’s motion to suppress, agreeing with that court that
Ziegler had no reasonable expectation of privacy against a
warrantless FBI-directed search of his locked private office.
United States v. Ziegler, 456 F.3d 1138 (9th Cir. 2006). In so
concluding, the panel failed to acknowledge the controlling
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Supreme Court case establishing a private employee’s expec-
tation of privacy in his office. See Mancusi v. DeForte, 392
U.S. 364 (1968). The panel also held that even though Softich
and Schneider entered Ziegler’s locked office to obtain the
hard drive, they “did not actually search Ziegler’s office.” 456
F.3d at 1143 n.9. The panel’s first opinion did not discuss
consent.
This court called for a response to Ziegler’s petition for
rehearing en banc. In its response, the government argued that
Ziegler did not have a reasonable expectation of privacy in his
office or computer, but did not argue that CFO Reavis, or
anyone else at Frontline, had consented to the warrantless FBI
search of Ziegler’s locked office. The panel then withdrew its
first opinion and substituted a new one. United States v.
Ziegler, 474 F.3d 1184 (9th Cir. 2007). In its second opinion,
the panel holds that (a) based on its announced computer
monitoring policy, Frontline had authority to consent to the
FBI search performed by Softich and Schneider, and (b)
Reavis, acting on behalf of Frontline, consented to the search
by Softich and Schneider. Both holdings are wrong. We
should have reheard this case en banc to correct them.
III. Frontline’s Announced Computer Monitoring Policy
The panel incorrectly holds that Frontline, Ziegler’s
employer, had the authority to consent to a search of his
locked private office and to a seizure of his hard drive located
in that office. It is settled law that third-party authority to con-
sent to a search must be premised on either of two bases: (1)
express authorization by the first party, or (2) mutual use and
joint access by the third party. United States v. Davis, 332
F.3d 1163, 1169 (9th Cir. 2003) (quoting United States v.
Fultz, 146 F.3d 1102, 1105 (9th Cir. 1998)); United States v.
Matlock, 415 U.S. 164, 171 n.7 (1974) (stating that third-party
consent “is, of course, not to be implied from the mere prop-
erty interest a third party has in the property . . . . but rests
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rather on mutual use of the property by persons generally hav-
ing joint access or control for most purposes”).
The panel primarily relies on the first basis for consent —
express authorization by Ziegler — to hold that Frontline had
the authority to consent to the FBI search of Ziegler’s locked
office and seizure of his computer. The only analysis provided
to substantiate Frontline’s authority to consent is a description
of Frontline’s computer monitoring policy. See Ziegler, 474
F.3d at 1191-92. Frontline’s computer monitoring policy gave
its employees notice that the IT department had remote elec-
tronic access to employee computers. Upon being hired,
employees were informed “through training and an employ-
ment manual” that the company had installed a firewall. Id. at
1192. Employees were also informed that the IT department
routinely monitored computers and reviewed the firewall’s
log “[o]n a regular basis.” Id. (alteration in original).
Based on this announced policy, the panel holds that Front-
line, as Ziegler’s employer, had authority to consent to a
physical search of Ziegler’s locked office by law enforcement
agents. There is nothing in the opinion (or the record) to con-
stitute express authorization beyond Frontline’s policy that
employees’ computer use is subject to remote electronic mon-
itoring by Frontline. The panel thus conflates the issue of
whether an employee has notice that his employer will have
remote monitoring access to his computer with the very dif-
ferent issue of whether the employee has expressly authorized
his employer to give consent to law enforcement personnel to
gain physical access to a computer in the employee’s locked
private office.
The second possible basis for consent — mutual use and
joint access — is simply not applicable to the facts of the
case. The Frontline employees involved in the search of
Ziegler’s office did not have mutual use and joint access to
Ziegler’s office. Reavis is the only person whom the panel
identifies as supposedly having given consent to the search.
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The record contains no evidence suggesting that Reavis had
mutual use and joint access to Ziegler’s office. Possession of
a master key is not sufficient to establish mutual use and joint
access, but Reavis, as Ziegler’s co-worker, did not even have
a key to Ziegler’s office. Reavis had to obtain a key to
Ziegler’s office from a locksmith. See United States v. Ruiz,
428 F.3d 877, 880 (9th Cir. 2005) (declining to find actual
authority to consent when the record was “sparse” as to
whether the person who allegedly gave consent “had joint
access to or control over” the area being searched).
IT technicians Softich and Schneider, who were charged
with maintaining Ziegler’s computer, also did not have
mutual use and joint access to Ziegler’s office. The record
establishes that prior to the night of the search neither Softich
nor Schneider had ever entered Ziegler’s office, even during
the day, without Ziegler’s permission. Neither the panel’s
opinion nor the record contains a description of any Frontline
policies or operational practices that show mutual use and
joint access of any of the Frontline employees involved in the
search of Ziegler’s office. Cf. Mancusi, 392 U.S. at 368 (sug-
gesting that consent by employee’s supervisors could validate
search when employee worked in “one large room, which he
shared with several other union officials” and the employee
did not claim that the records at issue were taken from a “part
reserved for his exclusive personal use”).
Plainly put, it is preposterous to conclude, as the panel
opinion does, that an employer’s policy of remote electronic
monitoring of its employees’ computer use either (1) consti-
tutes express authorization by an employee for the company
to give consent to law enforcement to conduct a physical
search for a computer in the employee’s locked private office
or (2) establishes mutual use and joint access over such an
office. We should have taken this case en banc to correct the
panel’s erroneous holding regarding an employer’s ability to
consent to a search of an employee’s workspace, and to pro-
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vide certainty in the law so that employers and employees can
structure their behavior accordingly.
IV. Consent by Frontline
The panel holds incorrectly not only that Frontline could
consent, but also that Frontline did consent. The panel states
that “testimony makes clear that Ziegler’s superiors at Fron-
tline, in particular Reavis, an officer of the company, gave
consent to a search of the property that the company owned
and which was not of a personal nature.” Ziegler, 474 F.3d at
1192. The panel states that its conclusion is warranted, even
though company owner Kittler “objected (in some vague
sense) to cooperation with the authorities.” Id. at 1192 n.10.
There are two serious problems with the panel’s conclu-
sion. First, the testimony emphatically does not “make clear”
that Reavis, or anyone else at Frontline, “gave consent” to the
search of Ziegler’s office. The panel can justify its conclusion
only by providing an inaccurate and incomplete description of
the testimony. Second, there is overwhelming evidence that
Reavis did not have the authority to consent to the search on
behalf of Frontline.
A. No Actual Consent by Reavis
The two people most competent to testify whether Reavis
gave consent to Kennedy, the FBI agent who directed the
search of Ziegler’s office, were Reavis and Kennedy. Reavis
had been subpoenaed by Ziegler and was in court and avail-
able to testify. But the government declined to put him on the
stand.
Kennedy did testify. He affirmatively stated that neither
Softich nor Schneider consented to the search. He did not
mention even the possibility that Reavis had consented. To
understand the relevant testimony (reproduced below), the
following context is helpful. Kennedy testified in the district
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court that Softich and Schneider had conducted the search of
Ziegler’s office on their own initiative. Kennedy testified that
after Softich and Schneider conducted the search and obtained
copies of Ziegler’s hard drive as well as the hard drive itself,
Kennedy discussed with Schneider the possibility of getting
a warrant to force them to turn the copies and the hard drive
over to him. Kennedy further testified that Freeman, Fron-
tline’s attorney, later consented to hand over the copies and
the hard drive without the necessity for a warrant.
With that context in mind, here is Agent Kennedy’s testi-
mony:
Q [by Ziegler’s attorney]: [T]he only thing that Mr.
Freeman agreed with you to do, and with the govern-
ment, was that we would turn over to you the copies
that had already been made, and the hard drive, and
that’s all they consented to; isn’t that correct?
A [by Agent Kennedy]: That’s exactly right.
Q: They didn’t consent with you to have any
searches done prior to the actual delivery of the com-
puter to you, did they?
A: I don’t know what you’re asking.
Q: I mean, no one from Frontline consented to you
directing Schneider or Softich to make a copy of a
hard drive, did they?
A: They did that on their own.
A: No one consented, prior to you threatening Front-
line with the issuance of a search warrant, that they
were going to search Mr. Ziegler’s computer to tell
you what was on it, did they?
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A: Counselor, I didn’t threaten anybody.
At that point the district court interjected, saying:
Well, I think he’s testified a number of times con-
trary to your position. He said that he didn’t ask
them to do a search, and they sure didn’t consent to
having him. I don’t understand that question, but his
position is he didn’t ask them to do a search. I know
exactly what the positions are.
(Emphasis added.) The district court’s statement indicates that
it understood Kennedy to have said that neither Softich nor
Schneider consented to the search. The statement may also
(and in my view does also) indicate that the court affirma-
tively found, as a matter of fact, that they did not consent. But
whether Kennedy merely testified that there was no consent,
or the district court also affirmatively found that there was no
consent, does not matter. The important point is that Kenne-
dy’s testimony provides no support whatsoever for the panel’s
conclusion that Reavis consented to the search.
Schneider testified that after he told Reavis what he and
Softich had been directed to do by Agent Kennedy, Reavis
told Schneider that he was “okay” with them searching
Ziegler’s office and taking the hard drive. However, Schnei-
der did not testify that Reavis said anything to Kennedy
before the search. This omission is crucial, for the question is
whether Reavis gave consent to Kennedy for the search.
Schneider’s testimony does not show that Reavis consented to
the search before Kennedy directed Softich and Schneider to
perform it. Schneider’s testimony shows only that Reavis
acquiesced in Softich and Schneider’s planned action in
response to Kennedy’s direction to them. See Bumper v.
North Carolina, 391 U.S. 543, 548-49 (1968) (government’s
burden to show consent “cannot be discharged by showing no
more than acquiescence to a claim of lawful authority”);
United States v. Bautista, 362 F.3d 584, 589, 591-92 (9th Cir.
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2004) (stating “ ‘government’s burden to show voluntariness
cannot be discharged by showing no more than acquiescence
to a claim of lawful authority’ ” and concluding that under the
circumstances there had been no consent to enter room for
search when Bautista opened door to motel room in response
to police officers’ direction to do so, stood there for a moment
not responding, and then “invite[d] the officers into the room
as she backed away from the door” (citation omitted)); see
also MacKenzie v. Robbins, 248 F. Supp. 496, 501 (D. Me.
1965) (stating that “all of the cases” found by the court “have
held that mere acquiescence in the entry to private living
quarters by police officers acting under color of their office is
insufficient to constitute the type of consent” required to vali-
date a search) cited with approval in Bumper, 391 U.S. at 549
n. 13; United States v. Marra, 40 F.2d 271, 271 (W.D.N.Y.
1930) (holding that circumstances did not validate search
based on consent when probation officers said they “were
going to inspect the premises” and defendant replied, “All
right”) cited with approval in Bumper, 391 U.S. at 549 n. 13.
In sum, the government never argued — in the suppression
hearing, in its brief on appeal to this court, or in its opposition
to rehearing the first opinion en banc — that Reavis consented
to the warrantless FBI-directed search of Ziegler’s office. Nor
did the government put on any evidence that Reavis had given
such consent. The government declined to put Reavis on the
stand. It put Kennedy on the stand, but Kennedy testified that
Softich and Schneider had not given consent and did not even
hint that Reavis had given consent. See United States v.
Shaibu, 920 F.2d 1423, 1426 (9th Cir. 1990) (as amended)
(consent is “not lightly to be inferred, and the government
always bears the burden of proof to establish the existence of
effective consent”) (citations and internal quotation marks
omitted); see also Illinois v. Rodriguez, 497 U.S. 177, 181
(1990) (stating that the government also bears the burden of
establishing common authority to consent).
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B. No Authority to Give Consent
Not only did the government fail to argue or put on evi-
dence that Reavis consented to the search. There is also over-
whelming evidence that Reavis had no authority to provide
consent on behalf of Frontline. Everyone involved in the
search knew that the Frontline’s owner, Kittler, never would
consent — and never did consent — to an FBI search. Kittler
worked at the same location with his employees and was read-
ily available, but Kennedy, Softich, Schneider and Reavis
deliberately chose not to involve him because they knew that
he would object to any search.
Agent Kennedy was aware from the beginning that Kittler
would not consent to a search. Softich requested that his first
meeting with Kennedy take place over the lunch hour “so as
not to raise any questions at work.” Kennedy admitted that
both Softich and Schneider “felt their jobs would be in jeop-
ardy if Mr. Kittler knew they were cooperating with the FBI.”
Kennedy also admitted to telling Softich and Schneider not to
discuss the matter within the company.
Kittler did not, as the panel states, merely “object[ ] (in
some vague sense) to cooperation with the authorities.”
Ziegler, 474 F.3d at 1192 n.10. Rather, Kittler objected stren-
uously, and then acted vengefully against those who had
cooperated with Kennedy. Kittler responded to the search by
relieving Schneider of his job duties because of his unhappi-
ness with Schneider’s cooperation with the FBI. Miller, the
receptionist, left the company because Kittler made her job so
unpleasant after the episode. Years after the investigation,
Kittler kicked and spat on Reavis because of Reavis’s cooper-
ation with the FBI.
Conclusion
In its second opinion in this case, the panel affirms the dis-
trict court based on an argument never made and never factu-
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ally supported by the government. The panel both fails to
apply the correct law and fails to describe accurately the facts
in the record. I dissent from this court’s decision not to rehear
this case en banc.
KOZINSKI, Circuit Judge, dissenting from the order denying
the petition for reahearing en banc:
The second opinion in this case, United States v. Ziegler,
474 F.3d 1184 (9th Cir. 2007), is troubling for its serious
Fourth Amendment implications, as outlined by Judge W.
Fletcher’s persuasive dissent. But the opinion is also troubling
because it transgresses the boundaries of our institutional
competence and disregards settled rules of appellate review.
First as to competence: We may not find facts on appeal; we
may only review findings made by the courts below us. See,
e.g., Anderson v. City of Bessemer City, 470 U.S. 564, 574
(1985) (“The trial judge’s major role is the determination of
fact, and with experience in fulfilling that role comes exper-
tise.”); United States v. Lang, 149 F.3d 1044, 1046 (9th Cir.
1998) (“[T]he district court is in a superior position to judge
the accuracy of witnesses’ recollections and make credibility
determinations in cases in which live testimony is presented.”
(internal quotation marks omitted)). This difference in institu-
tional competence is also reflected in our Rules. E.g., Fed. R.
Civ. P. 52(a) (“[D]ue regard shall be given to the opportunity
of the trial court to judge of the credibility of the witnesses.”).
The panel affirms the district court’s result, but does so by
using facts the district court never found. The opinion “con-
clude[s]” that Reavis, a corporate officer, consented to the
government search of Ziegler’s office. 474 F.3d at 1192. But
we, and the Supreme Court, have repeatedly and consistently
held that consent to search must be found as a matter of fact.
See, e.g., United States v. Mitchell, 322 U.S. 65, 69 n.2
(1944); United States v. Spires, 3 F.3d 1234, 1236-37 (9th
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Cir. 1993); United States v. Shaibu, 920 F.2d 1423, 1425 (9th
Cir. 1990). The district court here made no findings as to con-
sent, resolving the case on other grounds (which the panel
now finds insufficient). United States v. Ziegler, No. CR-03-
08-BU-RFC, at 3 (D. Mont. Sept. 8, 2004) (“Defendant could
not have an objectively reasonable belief that the files he
accessed on the Internet were private . . . .”).
The panel finds consent based on a single passage of testi-
mony from Schneider, an IT department employee, who
claimed that he and his supervisor obtained Reavis’s approval
for going into defendants’s office and copying his hard drive.
The panel accepts this as the Gospel Truth, but it did not
observe Schneider’s testimony and is not in a position to
determine whether he was lying or telling the truth. See
Anderson, 470 U.S. at 575 (“[O]nly the trial judge can be
aware of the variations in demeanor and tone of voice that
bear so heavily on the listener’s understanding of and belief
in what is said.”). The district court made no finding on this
point.
Even if Schneider’s testimony can be believed, it is insuffi-
cient to show that consent was given to the government.
Schneider testified that Reavis told him that it was OK to pro-
ceed, but he does not say that this was ever communicated to
Agent Kennedy. Again, the district court made no finding as
to whether Agent Kennedy had been told of Reavis’s apparent
consent at the time that he ordered Schneider to copy
Ziegler’s hard drive. Most likely, Agent Kennedy was not
aware of Reavis’s statement as the conversation among
Schneider, his supervisor and Reavis took place after Ken-
nedy had already ordered them to copy the hard drive. See
474 F.3d at 1192 (“[W]hen I returned from the meeting with
Agent Kennedy, I spoke to [my supervisor], and then we, in
turn, both went up and spoke to Ronald Reavis. Explained the
situation to him. Said that, you know, [the FBI] wanted a
backup made of this information . . . . [H]e said that as an
officer of the company, he was okay with that.” (emphasis
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added)). These are matters that the district court is competent
to sort out; we are not.
Finally, even if we assume that Reavis did give consent,
and that consent was communicated to Kennedy, there is yet
another factual hurdle: Did Reavis have authority to consent
to a search of Ziegler’s office? The majority resolves this by
finding that Reavis was Ziegler’s “superior[ ]” at the com-
pany, and thus presumably had authority to enter Ziegler’s
office. 474 F.3d at 1192. But both of these are contested
issues of fact that were not resolved by the district court.
As to being “superior” to Ziegler, Judge Fletcher correctly
points out that the only testimony we have is that Ziegler and
Reavis shared the role of “second-in-command.” Fletcher dis-
sent, at 7479-80. The district court made no finding that
Reavis was defendant’s superior, and I am aware of no evi-
dence that could have supported it. Certainly, the record is not
so unequivocal on this point that a district court’s finding
would be superfluous.
Even if Reavis were found to be Ziegler’s superior, that
does not necessarily mean that he had authority to enter
Ziegler’s office or to give consent to a government search.
“[A]uthority to consent to a search requires a considered judg-
ment of both factual circumstances and legal issues.” United
States v. Kim, 105 F.3d 1579, 1582 (9th Cir. 1997). Here, the
district court made no findings as to whether Reavis, assum-
ing that he was Ziegler’s superior, had the authority to enter
the office himself or consent to entry by anyone else. Had
Agent Kennedy known of Reavis’s consent, he might been
justified in relying on it when ordering the search of Ziegler’s
office, but that depends on a close analysis of the facts and
circumstances of the case; it is not purely a matter of law that
can be determined for the first time on appeal.
We have held that “[t]he existence of consent to a search
is not lightly to be inferred, and is a question of fact to be
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determined from the totality of circumstances.” United States
v. Patacchia, 602 F.2d 218, 219 (9th Cir. 1979) (Sneed, J.).
We don’t have the institutional competence to find facts: We
don’t observe the witnesses and we don’t have the district
court’s first-hand familiarity with the record. Where, as here,
the factual question is fraught with uncertainty, and that
uncertainty has not been resolved by the district court, we
cannot find the facts ourselves. At most, we can remand for
a determination of the dispute by the district court.
This brings me to the panel’s second institutional transgres-
sion: resolving the case on a basis not briefed or argued on
appeal. I have examined the appellate briefs closely and find
no discussion of consent. Rather, the parties discussed the
question of Ziegler’s expectation of privacy in his office. The
panel originally ruled for the government on this point, but
then realized its error and corrected it in its second opinion.
474 F.3d at 1188-90. The government’s brief did not argue
consent as an independent basis for upholding the search,
doubtless for good reason: There are no district court findings
that would have supported affirmance on that ground. We
have long held that issues not briefed or argued on appeal are
waived. See Stuard v. Stewart, 401 F.3d 1064, 1067 (9th Cir.
2005) (“[W]e are not going to construct an argument for the
state sua sponte, depriving Stuard’s counsel of a fair chance
to respond to it.”); Smith v. Marsh, 194 F.3d 1045, 1052 (9th
Cir. 1999) (“[O]n appeal, arguments not raised by a party in
its opening brief are deemed waived.”). We apply that rule
with some vigor against criminal defendants, see, e.g., United
States v. Romm, 455 F.3d 990, 997 (9th Cir. 2006) (rejecting
un-raised argument challenging constitutionality of search in
child pornography case); we should be no less vigorous in
applying it against the government.
By plucking consent out of its judicial top hat, when neither
party has argued it and the district court made no findings to
support it, the panel gives the unfortunate impression that it
is seeking to vindicate a result it has reached on other (now
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repudiated) grounds. It is not our business to reach particular
results, nor may we jiggle the rules of procedure to achieve
an outcome we prefer. Our responsibility is to apply the law
in an objective and impartial manner, and let the chips fall
where they may. Here, the government lost the one issue on
which it chose to make its stand—Ziegler’s expectation of
privacy in his own office. At that point it was our responsibil-
ity to reverse the district court and vacate the defendant’s sen-
tence. Appellate review is not a magic wand and we
undermine public confidence in the judicial process when we
make it look like it is.
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