* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### MAR 25 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

WILLIAM E. THOMPSON, GREG NIELSON, SANDRA SCHAFER, TOMMY FIELDS, EDWARD EVERITT, MAGNUS STOLZ, DARRYLL WATKINS, ROBERT ARNDT, EARL LAYMAN, JR.,

Plaintiffs-Appellants,

v. JOHNSON COUNTY COMMUNITY COLLEGE, JERRY BAIRD, DOROTHY FRIEDRICH, GUS RAMIREZ, and others as yet unknown, Defendants-Appellees. No. 96-3223 (D.C. No. 95-CV-2196) (D. Kan.)

ORDER AND JUDGMENT *

Before PORFILIO, ANDERSON, and BRISCOE, Circuit Jud ges.1 In their complaint, plaintiffs claimed the surveill ance camera was equipped

to intercept aural communications as well as video recording. Defendants disputed that claim and asserted the camera was use d for silent video surveillance only. In response, plaintiffs submitted an affidav it from their expert who stated that the camera could possibly have audio capabilit ies. We agree with the district court that this affidavit is insufficient to raise a genuine issue of material fact as to whether the camera was equipped with audio, as w ell as video, recording capabilities, especially in light of the fact that the camera was produced by defendants for plaintiffs’ examination. See Discussion infrapages 6-7. -2- After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. Th e case is therefore ordered submitted without oral argument. Plaintiffs, security officers employed by the defen dant community college, appeal the district court’s grant of summary judgme nt to defendants. We affirm. We review a district court's order granting summaryjudgment de novo, applying the same legal standard used by the distri ct court. See Universal Money Ctrs., Inc. v. AT&T , 22 F.3d 1527, 1529 (10th Cir. 1994). Summary jud gment is appropriate if “there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). In their complaint, plaintiffs alleged their lockerarea at the college had been placed under video surveillance 1 in violation of Title I of the Electronic Communications Privacy Act of 1986, 18 U.S.C. §§ 25 10-2522. Plaintiffs further-3-

claimed the surveillance violated their Fourth Amen dment privacy rights under 42 U.S.C. § 1983. They also raised state law claims o f invasion of privacy. The district court held that Title I does not encompass silent video surveillance. We agree. In discussing the require ments for issuing a warrant for video surveillance, we have noted that Title I does not address silent video surveillance. See United States v. Mesa-Rincon , 911 F.2d 1433, 1437 (10th Cir. 1990); see also United States v. Falls , 34 F.3d 674, 679 (8th Cir. 1994)(holding that Title I does not regulate silent video surveil lance (and cases cited therein)). Silent video surveillance, however, must be conduct ed with due regard to the protections offered by the Fourth Amendment. S ee Mesa-Rincon , 911 F.2d at 1437; Falls , 34 F.3d at 679 (and cases cited therein). “The F ourth Amendment protects people from unreasonable government intrus ions into their legitimate expectations of privacy.” United States v. Austin , 66 F.3d 1115, 1118 (10th Cir. 1995)(quotations omitted), cert. denied , 116 S. Ct. 799 (1996). Therefore, we must consider first whether plaintiffs had a reason able expectation of privacy in the locker area. Plaintiffs’ locker area was located in a room which also housed the heating and air conditioning equipment for the college and which served as a storage area. Individuals other than plaintiffs, including securi ty officers who worked during the day, maintenance workers, and individuals seeki ng to retrieve items in-4-

storage, could freely enter the room at any time. The room was not locked and access was not even restricted to those with legiti mate business in the room. Courts have held that individuals can have a legiti mate expectation of privacy in their individual lockers. See Schowengerdt v. General Dynamics Corp. , 823 F.2d 1328, 1331, 1335 (9th Cir. 1987)(plainti ff had reasonable expectation of privacy in his locked desk and crede nza absent notice that items could be searched); United States v. DeWeese , 632 F.2d 1267, 1271 (5th Cir. 1980)(crew member had legitimate expectation of pri vacy in areas such as foot locker which were accessible to only one individual ); Gillard v. Schmidt , 579 F.2d 825, 828 (3d Cir. 1978)(school guidance counse lor charged with maintaining sensitive student records had reasonable expectatio n of privacy in his school desk); United States v. Speights , 557 F.2d 362, 363 (3d Cir. 1977)(police officer had reasonable expectation of privacy in his lockerwhere no regulations or practices would have alerted him to expect unconsen ted searches and which he secured with personal lock); see also United States v. Johns , 851 F.2d 1131, 1135-36 (9th Cir. 1988)(defendants’ formal arrangem ent indicating joint supervision and control over storage locker suffici ent to establish Fourth Amendment protected privacy interest for both defen dants); but see United States v. Reyes , 908 F.2d 281, 285 (8th Cir. 1990)(no expectation of privacy in rental locker after rental term had expired and renter had prior notice that contents of-5-

locker could be removed after rental period expired ): United States v. Bunkers , 521 F.2d 1217, 1221 (9th Cir. 1975)(postal employee had no expectation of privacy in locker where USPS regulations and collec tive bargaining agreement stated that lockers were subject to search). Thus, an individual may be able to assert a right t o privacy in his personal locker. We have not found, however, that an indivi dual may have a reasonable expectation of privacy in the area surrounding a lo cker. See United States v.
Venema , 563 F.2d 1003, 1005-06 (10th Cir. 1977)(defendanthad no reasonable expectation of privacy in air space around locker, which was at least semi-public in nature, and he had been warned police were permi tted to bring drug-sniffing dogs onto premises); see also United States v. Boden , 854 F.2d 983, 990 (7th Cir. 1988)(defendant had no reasonable expectation of pr ivacy in area outside of locker at commercial self-storage facility); United States v. McGrane , 746 F.2d 632, 634 (8th Cir. 1984)(defendant had no reasonabl e expectation of privacy in common area of storage locker located in basement o f apartment building that was accessible to all tenants and landlord). Here, the locker area was accessible to anyone who entered the room where the lockers were located. That few people other th an plaintiffs routinely entered the room does not affect the issue of whether plain tiffs had a reasonable expectation of privacy in the locker area. Similar ly, that plaintiffs worked at2 Plaintiffs also contend the stay imposed by the mag istrate judge prevented

them from examining the camera to determine whetherit had audio capabilities. Defendants state that the camera was available to p laintiffs for their examination. -6- night when very few people would enter the room doe s not affect our analysis. We conclude that plaintiffs had no reasonable expec tation of privacy in the locker area. No Fourth Amendment violation occurred. Plaintiffs have filed a statement of proceedings pu rsuant to Fed. R. App. P. 10(c) in this court. Rule 10(c) provides that if ahearing has not been transcribed, the appellant may prepare a statement of the procee dings and shall serve the statement on the appellee who may object to the statements. The appellant shall then submit the statement and any objections to the district court for settlement and approval and may include the approved statementin the record on appeal. Id. Plaintiffs submitted their Rule 10(c) statement to this court regarding a telephonic hearing held with the magistrate judge. They assert that the magistrate judge stayed all proceedings pending a hearing on d efendants’ immunity defenses. Appellees filed objections to plaintiffs’ statementwith this court contesting plaintiffs’ depiction of both the facts and the mag istrate judge’s decision. It does not appear that plaintiffs submitted the two statem ents to the district court for resolution and approval. 2
Our role is not one of fact finder. We will not attempt to determine who has correctly reported the facts of the hearing or the impact this hearing had on-7-

plaintiffs’ ability to examine the surveillance cam era. We will rely, instead, on the district court’s conclusion that the surveillan ce was conducted by means of a silent video camera. The judgment of the United States District Court fo r the District of Kansas is AFFIRMED.

Entered for the Court

John C. Porfilio Circuit Judge