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,

Butte Defendant-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

7475
contention that the panel has “inaccurate[ly]” and “incomplete[ly]” described the record. 

First, contrary to the dissent’s assertions, the record in the

district court shows that Frontline and its employees cooperated 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 officer 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 Kennedy 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 “conversations 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.

7476 UNITED STATES v. ZIEGLER
and Schneider conveyed the plan to Reavis, and they received

approval of the plan; acquiescence by any other name is consent.3

The dissent also relies heavily on company president Chris

Kittler’s anti-government views, Softich’s later “administrative 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, reliance 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

3

It 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 “acquiescence” 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 warrant. Id. at 546. She allowed them entry to the house based upon their professed 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 authority,” 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 exaggerated 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 occupant 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 evidence so obtained.”) (emphasis added). 

UNITED STATES v. ZIEGLER 7477
Finally, the quotation of the district court’s statement that

“they sure didn’t consent to having him” is taken out of context 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 analysis is as follows:

THE COURT: Well, I think [Agent Kennedy’s] testified 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 extravagant 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 wisdom of our court’s decision not to rehear it en banc. 

7478 UNITED STATES v. ZIEGLER
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 secondUNITED STATES v. ZIEGLER 7479
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 Frontline for Ziegler and gave him a private office with a door that

locked. 

The search at issue resulted from an FBI investigation triggered by Ziegler’s co-workers. Through remote electronic

monitoring, IT technicians Softich and Bill Schneider discovered 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 pornography. Ziegler’s computer had automatically stored those

images as “cache” files, probably without Ziegler’s knowledge. 

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 testified that when Reavis was told about Ziegler’s activities,

Reavis declared that he wanted to handle the situation internally “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 Frontline’s internet service, then contacted FBI agent James Kennedy. 

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. 

7480 UNITED STATES v. ZIEGLER
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 testify. 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 Kennedy, Softich, Schneider, and Reavis deliberately did not tell

Kittler about the impending search of Ziegler’s office. Kittler’s intense dislike of the FBI was well known to Frontline

employees. Kennedy testified in the district court that both

UNITED STATES v. ZIEGLER 7481
Softich and Schneider “felt their jobs would be in jeopardy if

Mr. Kittler knew they were cooperating with the FBI.” Kennedy 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 Kittler is substantiated by events after the search. Schneider testified 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 Kittler’s response did not diminish over time. Kittler used company 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 encounter 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, pornographic images. In addition, a few of the cache files, saved

automatically on Ziegler’s computer, contained child pornography. 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 explanation of its light sentence: “The short duration of the possession, the fact that the searches were over a two-day period,

and the fact that the defendant did not sort or save this material indicates that this defendant is not similar to the average

offender charged with similar offenses. The defendant’s evaluation indicates that the defendant is not a pedo[ph]ile.”

7482 UNITED STATES v. ZIEGLER
Ziegler preserved for appeal the denial of his motion to suppress. 

II. Motion to Suppress

Ziegler moved in the district court to suppress the cache

files found on his hard drive. The government made two arguments 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 Schneider 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 cooperated with the FBI. However, the court agreed with the government’s second argument, holding that Ziegler had no

reasonable expectation of privacy against the search, irrespective 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

UNITED STATES v. ZIEGLER 7483
Supreme Court case establishing a private employee’s expectation 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 consent 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 property interest a third party has in the property . . . . but rests

7484 UNITED STATES v. ZIEGLER
rather on mutual use of the property by persons generally having 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 electronic access to employee computers. Upon being hired,

employees were informed “through training and an employment 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 Frontline, 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 constitute express authorization beyond Frontline’s policy that

employees’ computer use is subject to remote electronic monitoring 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 different 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.

UNITED STATES v. ZIEGLER 7485
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 (suggesting 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) constitutes 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 pro7486 UNITED STATES v. ZIEGLER
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 Frontline, 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 conclusion. 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 available 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

UNITED STATES v. ZIEGLER 7487
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, Frontline’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 testimony:

Q [by Ziegler’s attorney]: [T]he only thing that Mr.

Freeman agreed with you to do, and with the government, 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 computer 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 Frontline 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? 

7488 UNITED STATES v. ZIEGLER
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 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. 

(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 affirmatively 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 Kennedy’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, Schneider 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.

UNITED STATES v. ZIEGLER 7489
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 validate 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). 

7490 UNITED STATES v. ZIEGLER
B. No Authority to Give Consent

Not only did the government fail to argue or put on evidence that Reavis consented to the search. There is also overwhelming 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 readily 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 jeopardy 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 strenuously, 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 unhappiness 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 cooperation with the FBI. 

Conclusion

In its second opinion in this case, the panel affirms the district court based on an argument never made and never factuUNITED STATES v. ZIEGLER 7491
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 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

7492 UNITED STATES v. ZIEGLER
Cir. 1993); United States v. Shaibu, 920 F.2d 1423, 1425 (9th

Cir. 1990). The district court here made no findings as to consent, 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 testimony 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 insufficient to show that consent was given to the government.

Schneider testified that Reavis told him that it was OK to proceed, 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 Kennedy 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

UNITED STATES v. ZIEGLER 7493
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 company, 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 dissent, at 7479-80. The district court made no finding that

Reavis was defendant’s superior, and I am aware of no evidence 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 judgment 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, assuming 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

7494 UNITED STATES v. ZIEGLER
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 transgression: 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

UNITED STATES v. ZIEGLER 7495
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 responsibility to reverse the district court and vacate the defendant’s sentence. Appellate review is not a magic wand and we

undermine public confidence in the judicial process when we

make it look like it is. 

7496 UNITED STATES v. ZIEGLER

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