* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-40169

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

JOHN CRAIG ZIMMERMAN

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

No. 1:07-CR-232-1

Before SMITH, BARKSDALE, and PRADO, Circuit Judges.

PER CURIAM:*

Having conditionally pleaded guilty, John Craig Zimmerman challenges

his convictions for: sexual exploitation of a child for the purpose of producing

child pornography, in violation of 18 U.S.C. §§ 2251(a) and 2; receipt of child

pornography, in violation of 18 U.S.C. §§ 2252A(a)(2)(B), 2256(8), and 2; and

possession of child pornography, in violation of 18 U.S.C. §§ 2252A(a)(4)(B),

2252(b)(2), and 2. At issue is whether the district court erred in denying

United States Court of Appeals

Fifth Circuit

F I L E D

December 16, 2008

Charles R. Fulbruge III

Clerk
No. 08-40169

2

Zimmerman’s motion to suppress evidence obtained from his City-owned

workplace computer and his residence. AFFIRMED.

I.

On 5 February 2007, the Brownsville Fire Department (BFD) received an

anonymous tip that Zimmerman, one of its employees, had pornographic

photographs of children on his City-owned workplace computer. Previously, in

2003, Zimmerman had been under investigation for similar suspicions involving

child pornography. On that occasion, upon searching his workplace computer,

officials found no evidence of such pornography.

On the evening of 6 February 2007, an employee of the MIS

department–the entity responsible for managing all major computer issues for

the City–searched Zimmerman’s workplace computer, without a warrant, and

discovered adult pornography, as well as encrypted information. The MIS

employee decoded the information and uncovered many pornographic images,

some of which he suspected to be child pornography. That same evening, the

BFD fire chief informed the Brownsville Police Department (BPD) that what was

believed to be child pornography had been found on a City computer.

After showing the images to a BPD detective and an Immigrations and

Customs Enforcement (ICE) Agent, the MIS employee signed a written consent

form authorizing the BPD to take possession of Zimmerman’s workplace

computer. Agents then obtained a search warrant for Zimmerman’s home.

Claimed probable cause was founded on the images obtained from his workplace

computer, as well as an affidavit by an ICE Special Agent stating: based on her

training and experience, because child pornography had been found on

Zimmerman’s workplace computer, he would have it at his home as well. 

On 9 February 2007, Zimmerman’s residence was searched and

approximately 1200 images and 17 videos of child pornography were seized. Two
No. 08-40169

3

females later testified that Zimmerman had taken photos of them, with and

without clothes, several years earlier when they were underage. 

In April 2007, Zimmerman was indicted on four counts of violating the

Child Pornography Prevention Act, 18 U.S.C. § 2252A. He pleaded not guilty

and moved to suppress the evidence he claimed was illegally seized: the images

on the workplace computer and those found at his residence. 

The district court held an evidentiary hearing on 6 August 2007 and

subsequently, through a comprehensive opinion, denied the motion, determining:

Zimmerman did not have a reasonable expectation of privacy in his workplace

computer; assuming, arguendo, Zimmerman had such an expectation,the initial

search of the workplace computer did not violate his Fourth Amendment rights,

because BFD officials had an objectively justifiable suspicion to initiate a

reasonable search; the MIS employee had authority to consent later to the

search of the workplace computer by law enforcement; and, the search warrant

for Zimmerman’s home properly flowed from the evidence obtained from the

workplace computer and the ICE Special Agent’s affidavit. United States v.

Zimmerman, No. B-07-232 (S.D. Tex. 22 Aug. 2007) (District Court’s Order

denying motion to suppress).

Reserving the right to appeal the denial of his suppression motion,

Zimmerman pleaded no contest to three of the four counts in the indictment.

(The district court granted the Government’s motion to dismiss the other count.)

On 8 February 2008, the district court sentenced Zimmerman, inter alia, to 300

months’ imprisonment.

II.

For reviewing the denial of a suppression motion, the district court’s

conclusions of law are reviewed de novo; its factual findings, only for clear error.

E.g., United States v. Lopez-Moreno, 420 F.3d 420, 429 (5th Cir. 2005). In

reviewing findings of fact, the evidence is viewed in the light most favorable to
No. 08-40169

4

the prevailing party on the motion (here, the Government). Id. Essentially for

the reasons stated in the district court’s opinion, the suppression motion was

properly denied. 

A.

Zimmerman first contends the search of his City-owned workplace

computer violated his Fourth Amendment rights. That Amendment guarantees

“[t]he 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 touchstone of Fourth Amendment analysis is whether the defendant had a

constitutionally protected reasonable expectation of privacy in the item searched

and seized by the Government. California v. Ciraolo, 476 U.S. 207, 211 (1986);

United States v. Slanina, 283 F.3d 670, 675 (5th Cir. 2002).

The district court’s findings of fact are not clearly erroneous. Viewing the

evidence in the requisite light most favorable to the Government, we conclude

Zimmerman did not have an objectively reasonable expectation of privacy in his

City-owned workplace computer. Of course, as application of the Fourth

Amendment hinges on finding an expectation of privacy, there can be no

constitutional violation without one. Smith v. Maryland, 442 U.S. 735, 740

(1979). Thus, the procedure employed for Zimmerman’s workplace computer by

City officials did not constitute a “search” for Fourth Amendment purposes.

Additionally, it was not clear error for the district court to determine the

MIS employee gave voluntary consent, as a third party possessing authority and

common control over the item to be searched, to the BPD Agents to seize the

workplace computer, justifying the warrantless search. See United States v.

Matlock, 415 U.S. 164, 171 (1974). As such, the motion to suppress evidence

found on Zimmerman’s workplace computer was properly denied.
No. 08-40169

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B.

Zimmerman also contends the evidence obtained from the search of his

residence was inadmissible because it was the “fruit” of the claimed illegal

search of his workplace computer and therefore tainted by that prior procedure.

See Wong Sun v. United States, 371 U.S. 471, 487-88 (1963). As held above,

evidence obtained from that workplace computer was not “tainted”.

Nevertheless, a discussion follows for the proper procedure employed in this

instance.

The district court concluded that the affidavit of the ICE Special Agent,

supporting the issuance of the search warrant for Zimmerman’s residence,

supplied a “substantial basis for determining the existence of probable cause”.

Illinois v. Gates, 462 U.S. 213, 239 (1983). Additionally, it determined: using

evidence from the workplace search in obtaining the search warrant did not

violate Zimmerman’s Fourth Amendment rights, because, as noted, that

procedure was constitutionally reasonable. Giving the requisite deference to the

district court’s findings of fact, and in the light of our holding supra that the

evidence obtained from Zimmerman’s workplace computer was not “tainted”,

Zimmerman’s motion to suppress evidence found in his home was properly

denied.

III.

For the foregoing reasons, the judgment is AFFIRMED.