USA v. ZIEGLER
The Ninth Circuit Court of Appeals today released an en banc opinion in USA v. ZIEGLER, No. 05-30177, a criminal appeal. The panel consisted of Diarmuid F. O’Scannlain, Barry G. Silverman, and Ronald M. Gould, Circuit Judges.
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 7475 . . .
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 monitoring 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 physical 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 inaccurate 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 Frontline’s information technology (IT) department, John Softich, Ziegler shared his position on the corporate ladder as second. . .
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 expertise.”); 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 institutional 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 “conclude[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 . . .