Opinion
6:22-CR-101-ADA
10-12-2023
UNITED STATES OF AMERICA, v. TREVOR SWIFT
REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
JEFFREY C. MANSKE UNITED STATES MAGISTRATE JUDGE.
TO: THE HONORABLE ALAN D ALBRIGHT, UNITED STATES DISTRICT JUDGE
This Report and Recommendation is submitted to the Court pursuant to 28 U.S.C. § 636(b)(1)(c) and Rules 1(h) and 4(b) of Appendix C of the Local Rules of the United States District Court for the Western District of Texas, Local Rules for the Assignment of Duties to United States Magistrate Judges. Before the Court is Defendant's Motion to Suppress. ECF No. 42. The United States filed a response and the Defendant replied. After the hearing, the parties submitted supplemental briefing, including a Simmons concession from the Defendant that obviated a standing issue. See ECF No. 79-1; Simmons v. United States, 390 U.S. 377 (1968). At the hearing, the Court admitted Defense exhibits 1-7 and Government exhibits 1A-G and 2. The Court also heard testimony from Belton Independent School District (“BISD”) employees Cassandra Spearman, Executive Director of Student Services; Calvit Itz, Executive Director of Human Resources; and Zach Boren, an information technology systems administrator. Detective Kenneth McRae of the City of Temple Police Department also testified. For the reasons discussed below, the undersigned RECOMMENDS that Defendant's Motion to Suppress be DENIED.
BACKGROUND
On May 2, 2022, two Lake Belton High School students video recorded the Defendant scrolling through pornography on his cell phone while sitting in his office at school. School officials contacted the City of Temple Police Department concerning the incident. Detective Kenneth McRae responded and reviewed the video taken by students. McRae then interviewed the Defendant along with Calvin Itz of BISD Human Resources. During that interview, McRae confronted the Defendant with the students' allegations and their video. The Defendant admitted to viewing pornography but denied viewing child pornography. He then agreed to let McRae examine his phone, and the detective found no evidence of child pornography on it and departed. Later that day, Itz placed the Defendant on administrative leave.
BISD staff collected a laptop computer, a thumb drive, and a microSD card from the Defendant's office and took the items to BISD Information Technology staff. Itz testified that he instructed Zach Boren to examine the electronics and look for “anything inappropriate”. He did not inform Boren that he suspected child pornography was on the microSD card. On May 6, 2022, Boren reported to Itz that he found nothing unusual on the laptop and thumb drive, but that the microSD card contained images of what appeared to be child pornography. After Boren reported his findings, BISD officials again contacted Detective McRae. McRae collected sworn statements and a consent to search form for the laptop from Boren and other school officials. McRae then obtained a search warrant for the electronics. While the other items contained no inappropriate material, the search of the microSD card yielded hundreds of still images and videos of child pornography.
On June 14, 2022, a grand jury indicted the Defendant with one count of Possession of Visual Depictions of Sexual Activities by Minors in violation of 18 U.S.C. § 2252A(a)(5)(B). In the instant Motion, the Defendant first argues that the microSD card is his personal property and that it was illegally searched without a warrant. Second, the Defendant alleges that the search warrant affidavit relied on the illegal microSD card search, and that McRae also misrepresented facts in the warrant affidavit. Third, the Defendant seeks to suppress statements he made to police after his arrest.
GOVERNING LAW
The Fourth Amendment provides:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
U.S. Const. Amend. IV. It is well settled that the scope of the Fourth Amendment's guarantee is not limited to criminal investigations. See City of Ontario v. Quon, 560 U.S. 746, 755 (2010). Rather, “‘[t]he Amendment guarantees the privacy, dignity, and security of persons against certain arbitrary and invasive acts by officers of the Government,' without regard to whether the government actor is investigating crime or performing another function.” Id. at 756, (quoting Skinner v. Ry. Lab. Execs.' Ass'n, 489 U.S. 602, 613-14 (1989)). Consistent with this, the Supreme Court has held that the Fourth Amendment applies when the government conducts a search or seizure in its capacity as an employer. See Nat'l Treasury Emps. Union v. Von Raab, 489 U.S. 656, 665 (1989).
In O'Connor v. Ortega, the Supreme Court unanimously held that the Fourth Amendment constrains the government when it acts as an employer. 480 U.S. 709, 715 (1987). A majority further agreed that “special needs, beyond the normal need for law enforcement,” make the Fourth Amendment's ordinary warrant and probable cause requirements “impracticable” for public employers. Id. at 725 (plurality opinion); id. at 737 (Blackmun, J., dissenting); see Quon, 560 U.S. at 756. The Justices disagreed, however, regarding the proper Fourth Amendment framework applicable in such cases. Id. at 756-57.
Justice O'Connor, writing for a four-justice plurality, concluded that the analysis has two steps. Id. First, the court must determine, “on a case-by-case basis,” whether the employee has a reasonable expectation of privacy, considering “[t]he operational realities of the workplace.” O'Connor, 480 U.S. at 717. Second, where the employee does have a legitimate privacy expectation, the Court must determine whether the employer's search is consistent with “the standard of reasonableness under all the circumstances.” Id. at 725-26.
Justice Scalia disagreed. Quon, 560 U.S. at 757. In his concurrence, he argued that while searches by public employers are subject to the Fourth Amendment “as a general matter,” “government searches to retrieve work-related materials or to investigate violations of workplace rules-searches of the sort that are regarded as reasonable and normal in the private-employer context-do not violate the Fourth Amendment.” O'Connor, 480 U.S. at 732. Thus, in Justice Scalia's view, there is no threshold analysis of the reasonableness of the employee's expectation of privacy. Id. at 729-31. Instead, the Fourth Amendment inquiry would generally involve only a single question: whether the public employer's intrusion was reasonable. Id. at 732.
Since the Supreme Court decided O'Connor, “the threshold test for determining the scope of an employee's Fourth Amendment rights has not been clarified further.” Quon, 560 U.S. at 757. Whether the plurality's or Justice Scalia's approach is controlling has not been established. See Marks v. United States, 430 U.S. 188, 194 (1977) (“When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.” (internal citations and quotation marks omitted)). Because the search in the instant case was reasonable under either approach, the Court need not endorse either framework.
REASONABLE EXPECTATION OF PRIVACY
A reasonable expectation of privacy exists where “a person ha[s] exhibited an actual (subjective) expectation of privacy,” and “the expectation [is] one that society is prepared to recognize as ‘reasonable.'” Katz v. United States, 389 U.S. 347, 361 (1967). While “[i]ndividuals do not lose Fourth Amendment rights merely because they work for the government,” “operational realities of the workplace . . . may make some employees' expectations of privacy unreasonable when an intrusion is by a supervisor rather than a law enforcement official.” O'Connor, 480 U.S. at 717. For instance, “employees' expectations of privacy in their offices, desks, and file cabinets, like similar expectations of employees in the private sector, may be reduced by virtue of actual office practices and procedures, or by legitimate regulation.” Id. For this reason, “the question whether an employee has a reasonable expectation of privacy must be addressed on a case-by-case basis.” Id. at 718.
In making this case-by-case determination, courts have considered such factors as whether the work area in question was used exclusively by the employee, the extent to which others had access to the workspace, the nature of the employment, and whether office policies or regulations placed the employee on notice that the work area was subject to employer intrusions. See Vega-Rodriguez v. P.R. Tel. Co., 110 F.3d 174, 179 (1st Cir. 1997). Within the 5th Circuit, courts have recognized that published workplace search policies reduce an employee's expectation of privacy. See, e.g., Creel v. City of Baton Rouge/Parish of East Baton Rouge, 2021 WL 856710 (M.D. La. 2021); Plasai v. Mineta, 2005 WL 1017806 (N.D. Tex. Apr. 26, 2005); United States v. Zimmerman, 2007 WL 9656146 (S.D. Tex. 2007). Other circuits have also recognized this practicality. Quon, 560 U.S. at 762; United States v. Gonzalez, 300 F.3d 1048, 1050 (9th Cir. 2002); United States v. Broadus, 7 F.3d 460, 464 (6th Cir. 1993); Am. Postal Workers Union v. USPS, 871 F.2d 556, 560 (6th Cir. 1989).
Considering the circumstances of the BISD workplace as demonstrated by the hearing testimony and exhibits, the Defendant had no reasonable expectation of privacy in the microSD card. The BISD employee handbook explicitly warns employees:
The District reserves the right to conduct searches when the District has reasonable suspicion to believe that a search will uncover evidence of work-related misconduct. The District may search the employee, the employee's personal items, work areas, lockers, and private vehicles parked on District premises or worksites or used in District business.Gov't Ex. 1. The Defendant reviewed the handbook and signed a receipt agreeing to comply with it. Gov't Ex. 1-f. The Defendant also agreed to review the BISD's policies online. Id. Those policies explain the legal basis for these searches, even citing some of the cases discussed within this Report and Recommendation. See Gov't Ex. 1-a. The Defendant also signed contracts with the BISD agreeing to comply with District policies that expressly warned the Defendant that any personal property that he chose to bring to school was subject to search. See Gov't Exs. 1, 1-c, 1-d.
Moreover, the Court notes that the Defendant brought the microSD card to a school full of teenagers, a demographic well known for their compulsive interest in cell phones, computers, and the personal business of others, as was acutely demonstrated by the manner in which the Defendant's misconduct was discovered. Calvin Itz testified that once administrators were presented with the student's video, the BISD was required by state law to investigate the allegation of misconduct. That investigation triggered the workplace search under the District's handbook and policies. Applying the relevant factors to the instant case, the Court finds that the Defendant had no reasonable expectation of privacy in the contents of the microSD card. O'Connor, 480 U.S. at 717. In the absence of any reasonable expectation of privacy, the Defendant fails the first step of the O'Connor plurality analysis and the Court need not reach the second step.
The Defendant argues that the microSD card belonged to him, and that BISD employees should have recognized as much because the card did not have an inventory tag. Zach Boren, however, testified that while the laptop computer issued to the Defendant had a BISD inventory tag, the microSD card did not, because it was too small for an inventory tag. He also testified that departments within the school sometimes purchase electronics without informing the Information Technology Department, and that those items may not have inventory tags. As such, the ownership of the microSD card was not apparent, and a reasonable person could conclude under the circumstances in this case that the card was BISD property. O'Connor, 480 U.S. at 717.
Even if, arguendo, the Defendant had a reasonable expectation of privacy in the card because Calvin Itz and Zach Boren somehow knew that the card was the Defendant's personal property, the card was still subject to search under the clearly stated BISD policies that permit searches of personal property in connection with investigations of workplace misconduct. Again, the BISD repeatedly informed the Defendant of these policies, and the Defendant repeatedly agreed to them. The search was justified at its inception and the measures adopted were “reasonably related to the objectives of the search and not excessively intrusive in light of” the circumstances giving rise to the search. Id. at 725-726. The search here satisfied the standard of the O 'Connor plurality and was reasonable under that approach. City of Ontario, Cal. v. Quon, 560 U.S. 746, 761 (2010). The search was also legal under Justice Scalia's more permissive standard because, as discussed above, the BISD had a legitimate reason to search the card and the search was not excessively intrusive. Id. at 732.
SEARCH WARRANT
The Defendant argues that the search warrant was defective in two ways. First, Detective Kenneth McRae based his affidavit on the illegal search and seizure conducted by school officials. Second, McRae's affidavit falsely represented the actions of school officials to the magistrate in order to obtain the search warrant. Because the search and seizure by school officials was legal, Defendant's first claim is without merit and the Court will focus on Defendant's second allegation.
The Fourth Amendment protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures[.]” U.S. Const. amend. IV. The exclusionary rule, which permits criminal defendants to seek exclusion (suppression) of evidence obtained through illegal search and seizure, provides one vehicle through which citizens may “effectuate [this] Fourth Amendment right.” United States v. Calandra, 414 U.S. 338, 347 (1974) (noting that this rule “applies as well to the fruits of the illegally seized evidence”). For decades, the Supreme Court has characterized exclusion through suppression as an “extreme sanction” that courts should apply only sparingly. United States v. Leon, 468 U.S. 897, 926 (1984); see also Herring v. United States, 555 U.S. 135, 141 (2009) (warning that application of the exclusionary rule exacts “substantial social costs”); Hudson v. Michigan, 547 U.S. 586, 591 (2006) (“Suppression of evidence, however, has always been our last resort, not our first impulse.”).
A court must engage in a two-part inquiry in deciding whether to suppress evidence: it generally must ask first whether the good faith exception applies (and, in turn, whether any of the exceptions to that rule applies) and then ask whether probable cause supports the warrant in question. Leon, 468 U.S. at 924-25; see also United States v. Allen, 625 F.3d 830, 835 (5th Cir. 2010); United States v. Tovar, 719 F.3d 376, 385 n.8 (5th Cir. 2013). Courts generally consider whether probable cause supports the warrant only in the absence of good faith. See United States v. Stalnaker, 571 F.3d 428, 436 (5th Cir. 2009); United States v. Craig, 861 F.2d 818, 820 (5th Cir. 1988) (“Principles of judicial restraint and precedent dictate that, in most cases, we should not reach the probable cause issue if . . . the good-faith exception of Leon will resolve the matter.”).
“Under the good-faith exception, evidence obtained during the execution of a warrant later determined to be deficient is admissible nonetheless, so long as the executing officers' reliance on the warrant was objectively reasonable and in good faith.” United States v. Payne, 341 F.3d 393, 399 (5th Cir. 2003) (citing Leon, 468 U.S. at 921-25). Normally, the issuance of a warrant by a magistrate is sufficient to establish an officer's good faith. United States v. Pena-Rodriquez, 110 F.3d 1120, 1130 (5th Cir. 1997). The government cannot establish good faith, however, if one of the following four circumstances is present:
(1) When the issuing magistrate was misled by information in an affidavit that the affiant knew or reasonably should have known was false;
(2) When the issuing magistrate wholly abandoned his judicial role;
(3) When the warrant affidavit is so lacking in indicia of probable cause as to render official belief in its existence unreasonable; and
(4) When the warrant is so facially deficient in failing to particularize the place to be searched or the things to be seized that executing officers cannot reasonably presume it to be valid.United States v. Beverly, 943 F.3d 225, 232-33 (5th Cir. 2019) (citing United States v. Woerner, 709 F.3d 527, 533-34 (5th Cir. 2013)). In the instant case, the defendant alleges that the first circumstance applies to this case-that McRae deliberately or recklessly misled the magistrate by including false information in the warrant affidavit.
In the warrant affidavit, Detective McRae stated:
Calvin Itz advised the items [from Swift's desk] were taken to have the IT department clear the devices to ensure there was nothing criminal on them before putting [them] back in service. Calvin Itz advised the items were taken because it was not known if they were purchased with BISD funds and therefore belonged to BISD or Trevor Swift.ECF No. 45-1 at 4.
McRae based his affidavit on the sworn statements provided by Calvin Itz and Zach Boren. First, Defendant points out that the affidavit claims that the ownership of the items was unclear, but the witness statements do not call ownership into question. Considering the totality of the circumstances, this discrepancy fails to demonstrate that Detective McRae recklessly or intentionally fabricated information to mislead the magistrate. Calvin Itz and Zach Boren both credibly testified at the hearing that ownership of the thumb drive and microSD card was unclear. McRae testified that he was aware that the ownership of the items was unclear to the BISD. While the Defendant argues that the microSD card was clearly his property, the evidence presented at the hearing demonstrated otherwise. McRae's affidavit did not mislead the magistrate and the good faith exception applies. United States v. Beverly, 943 F.3d 225, 232-33 (5th Cir. 2019); Leon, 468 U.S. at 924-25.
Second, the Defendant points out that Calvin Itz signed a consent-to-search form when he turned over the electronic items to Detective McRae. The form consents to a search of an Apple MacBook and cites its BISD inventory tag number. The consent form does not provide inventory tag numbers for the microSD card or thumb drive. Defendant seizes upon this as proof that BISD administrators and McRae knew that the microSD card was the Defendant's personal property. Again, credible testimony at the hearing established that the microSD card was too small to carry an inventory tag, and that some BISD-owned electronics did not have an inventory tag. The Defendant's allegation is unsupported by the evidence presented at the hearing, and as such, is without merit. The warrant affidavit provided sufficient facts and circumstances from which an issuing magistrate could draw commonsense inferences to find probable cause. Again, the Court finds McRae's affidavit did not mislead the magistrate, and the good faith exception applies.
INCRIMINATING STATEMENTS
At the hearing, Detective McRae testified that when he arrested the Defendant, he warned him of his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 440 (1966). He then questioned the Defendant, who made inculpatory statements. In his final claim, the Defendant argues that his statements were the culmination of the illegalities committed during the investigation, and more specifically, the result of an illegal arrest. “[A] confession ‘obtained by exploitation of an illegal arrest' may not be used against a criminal defendant,” Kaupp v. Texas, 538 U.S. 626, 627 (2003) (per curiam) (quoting Brown v. Illinois, 422 U.S. 590, 603 (1975)). For the reasons discussed above, however, the search of the microSD card and other electronics was legal, as was the resulting search warrant. The ensuing arrest was legal, and Detective McRae properly Mirandized the Defendant before he questioned him. As such, this claim is without merit.
RECOMMENDATION
The Court should DENY Defendant's Motion to Suppress. ECF No. 42. The parties may wish to file objections to this Report and Recommendation. A party filing objections must specifically identify those findings or recommendations to which objections are being made. The District Court need not consider frivolous, conclusive, or general objections. See Battle v. U.S. Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987). A party's failure to file written objections to the proposed findings and recommendations contained in this Report within fourteen (14) days after the party is served with a copy of the Report shall bar that party from de novo review by the District Court of the proposed findings and recommendations in the Report and, except upon grounds of plain error, shall bar the party from appellate review of unobjected-to proposed factual findings and legal conclusions accepted by the District Court. See 28 U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140, 150-53 (1985)