1 Slanin a also contends that the district court erred in denying his motion to dismiss the

indictment on the grounds that the child pornography statute is u nconstitutionally vague and

overbroad. As Slanina concedes, the Fifth Circuit has already answered this question, upholding the

validity of the statute. S ee United States v. Fox

, 248 F.3d 394, 407 (5 th Cir. 2001). The F ox decision

conflicts with the Ninth Circuit’s decision in Free Speech Coalition v. Ashcroft

, 198 F.3d 1083, 1097

(9 th Cir. 1999), cert. granted sub nom. Ashcroft v. Free Speech Coalition

, 531 U.S. 1 124 (2001).

Nevertheless, until the Supreme Court instructs otherwise, we are bound by the F ox decision and

therefore reject Slanina’s challenge.

--1--

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_________________________________

No. 00-20926

_________________________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

WESLEY JOSEPH SLANINA, also known as Wesley J Slanina,

Defendant-Appellant.

--------------------------------- Appeal from the United States District Court

for the Southern District of Texas

--------------------------------- February 21, 2002

Before JOLLY, SMITH, and BENAVIDES, Circuit Judges.

BENAVIDES, Circuit Judge:

Defendant Wesley Joseph Slanina (“Slanina”) appeals his conviction for possession of child

pornography. Slanina argues that the district court should have suppressed evidence obtained from

computer equipment in his office and home, as well as his statements to law enforcement. 1 For the--2--

reasons that follow, we affirm the district court’s denial of Slanina’s motion to suppress.

I.

Slanina worked as the Fire Marshall for Webster, Texas for nine years. As Fire Marshall, his

duties included public safety and fire prevention, fire inspections, review of city plans, enforcement

of building codes, and handling of arson related cal ls. Additionally, he served as the Emergency

Manag ement Coordinator, concentrating on hurricanes and explosions. Slanina’s immediate

supervisor was Fire Chief Bruce Ure (“Ure”), who answ ered t o the Public Safety Director, Mike

Keller (“Keller”). As Public Safety Director, Keller was in charge of both the police and fire

departments. Keller had once been Slanina’s direct supervisor, but in November 1998 Keller and the

City Manager, Roger Carlisle (“Carlisle”), decided to hire a full-t ime fire chief, selecting Ure for that

position. Prior to Ure’s arrival, Keller conducted Slanina’s performance evaluations. Although Ure

later assumed this responsibility, Keller maintained ultimate authority over Slanina’s employment,

including the review of his evaluations and any salary increases.

Prior to June 1999, Slanina’s desk was locate d in City Hall, where he had a city-provided

computer with Internet access but no connection to the city’s intra-office network. When a new fire

station was built, however, Slanina moved into his own office in the new station. He brought with

him his o ld computer, but in the new fire station he had no Internet access or network connection.

On Friday, June 11, 1999, Ryan Smith (“Smith”), the Management Information Systems Coordi nator,

began working to install the city network on the fire stati on computers. At around 5:00 p.m., Smith

entere d Slanina’s new office with a grand master key and attempted to continue his work. The

computer was turned on, but a screen saver was in place. Smith moved the mouse and discovered

that the screen saver w as pro t ected by a password. To bypass the screen saver password, Smith2 Technically, Smith could have accessed the hard drive without the BIOS password, but this

process would have taken several hours. Specifically, he would have had to disconnect the

computer’s internal battery for some time in order to reset the system.

--3-- restarted the computer. When he rebooted, however, Smith found that Slanina had installed a BIOS

password. Without this password, Smith was unable to immediately access the computer’s hard drive

and could not install the network on Slanina’s computer. 2 Smith then contacted Ure to inform him

of the problem, and Ure directed Smith to call Slanina and obtain the password.

Slanina had not come to work that Friday, as he was still recuperating from his recent surgery

to have his wisdom teeth removed. Smith did not feel comfortable calling Slanina, so Ure himself

phoned him. Ure informed Slanina that the computer technician was in his office attempting to install

the network, but was unable to do so because of the password. Slanina initially balked, but after Ure

indicated that Smith was already working overtime and t hat the job had to be completed that day,

Slanina agreed to call Smith. On the phone with Smith, Slanina sounded nervous and hesitated before

giving his password. He wanted to know exactly what Smith would do to his computer, and Smith

promised that he was simply installing the network and configuring his computer to the server.

Having received the password, Smith then resumed his work on Slanina’s computer. In order

t o co mplete the task, Smith had to walk between Slanina’s office and the server room. Upo n

returning to the office, Smith unexpectedly encountered Slanina–just ten minutes after they had talked

on the phone. Needless to say, Smith was surprised to see Slanina, his jaw still swollen from the

surgery. Smith's suspicions were further aroused when after he left the room, Slanina jumped back

on his computer. Finally, when Slanina asked how much longer the network installation process

would take, Smith lied, t elling him that it would be another “couple of hours.” Smith overstated the

time to give himself a chance to see if something was wrong.3 A newsgroup is an Internet discussion group focused on a particu lar topic. Users of the

newsgroup share messages and can download files, including images. In addition to these groups,

there are automated processes, such as news servers, allowing individuals to automatically receive

files on a particular subject.

--4-- When Slanina finally left, Smith saw that the email was running, but minimized on the screen.

As Smit h clicked on the email to close it, he noticed the presence of newsgroups. 3 Three mont hs

earlier, Keller had told Smith that no one was permitted to have newsgroups on their computers, but

the policy had not been disseminated to the fire stati on employees, including Slanina. Smith expanded

the email to look further a t t he newsgroups and saw three titles suggesting the presence of

pornography. It was widely known that employees were not allowed to have pornographic material

on their computers. To further investigate, Smit h clicked on one newsgroup title,

“alt.erotica.xxx.preteen”, and saw that about 25 of the approximately 60 files had been read. At that

point, however, he did not view any of the files.

Before contacting Ure, Smith wanted to be certain that Slanina’s comp ut er did have

pornographic material on it. He conducted a search for JPEG files, which contain photographic

images, and GIF files, which are used for other graphic images. His search located one such file in

the Recycle Bin, and Smith restored the file. When he saw that it contained an image of adult

pornography, he printed the file and attempted to contact Slanina’s superiors. Neither Ure nor Keller

were available, though, and init ially Smith was only able to reach t he Assist ant Fire Chief, Dean

Spencer (“Spencer”). By the time Spencer arrived at the station, Smith had spoken to Ure, telling

him that he had found child pornography on Slanina’s computer. Ure instructed him to secure the

office, so at 7:00 p.m. Smith changed the lock on the door, turned the computer off, and left.

The next day, Smi

t h spoke again to Ure, who by now had contacted Keller at an FBI4 It is unclear exactly what images Ure saw. Smith recalls that he showed Ure “what was on

the computer, the picture [he] had printed off.” 4 R. 32. Ure, however, claims that he saw an actual

image of child pornography. Id. at 98.

5 A zip disk is a removable, high density 3.5" disk used with small, portable zip drives.

--5-- conference in South Padre Island. Keller told Ure and Smith to remove the computer from the fire

stati on and place it in his office, which was located in the police station. When they went to Slanina’s

office, Smith showed Ure the pornography 4 before removing the computer. On Sunday afternoon,

Keller returned from his conference and contacted S mit h and Ure, asking them to meet him in his

office at 3:00 p.m. Once there, Keller instructed Smith and Ure to get what was needed to view the

contents of Slanina’s computer, as well as any zip disk or drive 5 in Slanina’s office. Smith and Ure

then returned to Slanina’s office and retrieved the mon it o r and disks before rejoining Keller in his

office. Smith showed Keller the picture of adult pornography he had printed on Friday night, and also

pointed hi m t o where he had found the image on the computer. With Smith’s assistance, Keller

searched material on the computer and zip drive for about two hours, vi e wing explicit child

pornography. Finally, Keller contacted City Manager Carlisle and informed him that child

pornography had been discovered on Slanina’s computer. Their discussion addressed the possibility

of criminal violations as well as the misuse of city property

. Human Resources was then contacted,

and Keller indicated to Smith and Ure that they should notify the FBI the next day.

At 7:15 a.m. on Monday morning, Ure met Slanina in the parking lot as he arrived at work,

milk and doughnuts in hand. Ure told Slanina that they needed to meet in Keller’s office, and asked

him to get into Ure’s vehicle. Remembering that Slanina had undergone dental surgery the previous

week, Ure asked him whether he had taken any medication that morning. Slanina said he had not,

remarking that doing so would be a violation of city policy because he drove a city vehicle to work.--6--

In fact, though, he had taken medication, specifically the painkiller Vicodin. As they approached

Keller’s office at the police station, Slanina became visibly anxious, rocking back and forth. When

they arrived, Slani na met Captain Ray Smiley (“Smiley”) of the Internal Affairs Division and was

furnished with a written copy o f t he Internal Affairs investigation. He was told that he would be

suspended pending the investigation, which concerned the misuse of city property by obtaining child

pornography with a city computer. Keller informed him that they had seized his computer and

ordered Slanina to surrender his badge and city identification.

Keller told Slanina that he was not in custody and could leave at any time, but Slanina stayed

with them. He admitted to accessing the newsgroups and downloading the pictures o f child

pornography. Keller explained that they would be contacting the FBI. Slanina promised to comply

with the investigation, saying that he wanted to get the process going. Although he was embarrassed,

Slanina said that he was relieved that it was finally out in the open. He confessed that he had some

more “stuff” at his home, which Keller understood to mean more pornography. Keller told Slanina

that he could either consent to a search of his home computer or they could obtain a search warrant.

Wanting to be present when the police came to his home and confronted his family, Slanina consented

and accompanied Keller, Ure and Smiley to his house. Once there, Slanina spoke with his wife and

Keller informed her that her husband was under investigation for child pornography. Slanina then led

them to his study, where he invited them to take the computer , zip drives and disks. After they

gathered the equipment, Keller indicated to Slanina that he should return with them.

When they got back to the police station, Slanina waited in a conference room while Keller

performed some administrative tasks related to the Internal Affairs investigation. Keller then searched

the home computer and found more child pornography. Several weeks later, they discovered that the--7--

home computer actually belonged to the city. At about 9:00 a.m., Keller t old Det ective Sergeant

Charles Propst (“Propst”) to interview Slanina. He stated that although Slanina was not yet under

arrest, they had found child pornography on his computer. Propst led Slanina into an interview room,

where Sergeant Shari Burrows (“Burrows”), a Galveston child protective services o fficer, was

present. The interview was taped, and Slanina was reminded again that he was not under arrest and

was free to leave at any time. Nevertheless, pursuant to the Galveston County District Attorney’s

policy, Burrows provided Slanina with Miranda warnings. Slanina was fully cooperative and, at the

end of the interview, signed a written statement. He then returned to Keller’s office and offered to

provide whatever help they needed. Finally, Slanina indicated that he wanted to leave, and was told

that he could. Two days later, he was fired.

The office and home c o mputer equipment, drives, and disks were turned over to the FBI,

which examined active files and recovered deleted files from the hard drives. Each computer had two

hard drives. Child pornography was found on each hard drive, and all together these hard drives

contained thousands of files with such images. In addition, news servers had been installed on both

computers, set to search for images of preteen and child sex. Additionally, three zip disks were also

searched. The zip disk fro m Slanina’s office contained more than one hundred files of child

pornography. No child pornography was found on the two zip disks recovered from Slanina’s home.

On February 14, 2000, Slanina was indicted on two counts of possession of child pornography

under 18 U.S.C. §§ 2252A(a)(5)(B), 2256. He moved to suppress all statements made by him to law

enforceme nt o fficers and all evidence obtained from his office computer equipment and home

computer equipment. At the conclusio n of the suppression hearing, the district court denied the

motion, stating:--8-- I find that [at] the time and occasion in question back on June the 11 th

, 1999,

the defendant did not have a reasonable and legitimate expectation of privacy in the

city’s computer located at the defendant’s office at the city facilities. This is shown

by the defendant’s actions on that date.

I also find t hat t he defendant gave a knowing, voluntary, and intelligent

consent to the search and seizure of the city’s computer at the defendant’s residence,

along with the disks and zip drives located at the residence.

Finally, I find that the statements and confession given by the defendant to the

authorities on June the 14 th

, 1999, were voluntarily and knowingly given, and that the

defendant was not in custody at the time that th e st at ements and confession were

given.

As a result of the district court’s ruling, the following evidence was admitted: two CD ROM disks

containing a copy of the contents of the office computer; six CD ROM disks containing a copy of the

contents of the home computer; an Iomega zip disk recovered from Slanina’s office; two Iomega zip

disks from his residence; and a CD ROM disk containing a copy of what was found on the three zip

disks. Moreover, at trial the district court admitted into evidence copies of representative samples

of images stored on Slanina’s work computer and office zip disk. After a bench trial, the district

court found Slani na guilty on both counts and sentenced him to thirty-three months in prison,

followed by three y ears o f supervised release. The district court also imposed a $200 special

assessment and a $2000 fine. Slanina timely filed a notice of appeal.

II.

Slanina argues that the district court erre d by holding that he did not have a reasonable

expectation of privacy. He further contends that Keller’s warrantless search of the office computer

equipment violated the Fourth Amendment. Regarding the search of his home computer, he argues

that his consent was not voluntary. Finally, assuming a rguendo that it was voluntary, Slanina

co nt ends that his consent and his subsequent statements to police were nonetheless tainted by the

earlier unconstitutional search of his office computer. We now address these issues in turn, reviewing6 The government contends that the district court made an “implied factual finding that Slanina

had no subjective expectation of privacy[,]” and that this finding should be reviewed for clear error.

Gov. Br. 39. W e disagree. Instead, we read t he district court’s holding literally, i.e., that Slanina

“did not have a reasonable and legitimate expectation of privacy in the city’s computer located at [his]

off ice at the city facilities.” 4 R. 315. In concluding that there was no objectively reasonable

expectation of privacy, the district court properly considered Slanina’s actions. S ee United States v.

Cardoza-Hinojosa

, 140 F.3d 610, 615 (5 t h Cir. 1998) (noting that one factor in determination of

whether reasonable expectation of privacy exists is “whether [the defendant] has exhibit ed a

subjective expectation of privacy”).

--9-- the district court’s factual findings for clear error and its legal conclusions de novo

. U nited States

v. Runyan , 275 F.3d 449, 456 (5 th Cir. 2001).

A.

The threshold question in ou r Fo urt h Amendment analysis is whether Slanina had a

“‘constitutionally protected reasonable expectation of privacy.’” California v. Ciraolo

, 476 U.S. 207,

211 (1986) (quoting Katz v. United States

, 389 U.S. 347, 360 (1967) (Harlan, J., concurring)). This

analysis involves two questions: “(1) whether the defendant is able to establish an actual, subjective

expectation of privacy with respect to the place being searched or items being seized, and (2) whether

that expectation of privacy is one which society would recognize as reasonable.” U nited States v.

Gomez

, 276 F.3d 6 94, 697 (5 t h Cir. 2001) (quoting United States v. Kye Soo Lee

, 898 F.2d 1034,

1037-38 (5 th Cir. 1990)). 6 In the present case, Slanina clearly demonstrated a subjective expectation

of privacy with respect to his office and office computer equipment. He had closed and locked the

door to his office. To limit access to his computer files, he installed passwords, thereby making it

more difficult for another person to get past the screen saver and reboot his computer. C f. Runyan

,

275 F.3d at 458 (holding that defendant exhibited subjective expectation of privacy in images of child

pornography by storing them in containers away from plain view). Moreover, Slanina did not forfeit

his expectation of privacy in the files by providing the BIOS password to Smith, as he gave Smith the--10--

password for the limited purpose of installing the network, not perusing his files.

Having determined that Slanina did exhibit a subjective expectation of privacy, we now must

decide whether this expectation was objectively reasonable. The government notes that other city

employees had a grand master key to Slanina’s office. Furthermore, it claims that the city’s need to

develop network systems and upgrade equipment requi red complete computer access, and that

S lanina’s installation of the passwords did not change this situation. Finally, it points out that the

computer was purchased by the city and that employees knew they wer e not allowed to use city

computers to access and store pornography. Given these circumstances, the government contends,

any expectation of privacy was unreasonable. We disagree.

Slanina had a private office at the new fire station, and the ability of a select few of his

coworkers to access the office does not mean that the office was “so open to fellow employees or the

public that no expectation of privacy is reasonable.” O ’Connor v. Ortega

, 480 U.S. 709, 718 (1987)

(plurality). Moreover, even though network administrators and computer technicians necessarily had

some access to his computer, there is no eviden ce that such access was routi ne. C f. Leventhal v.

Knapek

, 266 F.3d 64, 74 (2d Cir. 2001) (finding that government employee’s expectation of privacy

was reasonable and noting that state agenc y’s access to computer did not appear to be frequent,

widespread, o r extensive). The city did not disseminate any policy that prevented the storage of

personal information on city computers and also did not inform its employees that computer usage

and internet access would be monitored. S ee United States v. Simons , 206 F.3d 392, 398 (4 th Cir.

2000) (holding that in light of employer policy to inspect and monitor Internet activity, employee had

no reasonable expectation of privacy in files transferred from Internet). Accordingly, given the

absence of a city policy placing Slanina on notice that his computer usage would be monitored and--11--

the lack of any indication that other employees had routine access to h is computer, we hold that

Slanina’s expectation of privacy was reasonable.

B.

Having concluded that Slanina had a reasonable expectation of privacy in his office and office

computer equipment, we now must decide whether the warrantless search of them violated the Fourth

Amendment. The government characterizes Smith and Keller’s search as a reasonable employer

search related to an investigation into workplace misconduct, and therefore not subject to the warrant

requirement. Slanina, however, contends that the workplace exception does not apply in this case.

He argues that once Smith contacted Ure, after finding only the newsgroup titles and the image of

adult pornography, he effectively became an agent of the police. Under this theory, the subsequent

search of the computer by Keller, in which images of child pornography were first discovered, was

not an investigation into work-related misconduct. Rather, it was a criminal investigation performed

by the police, and therefore subject to the warrant requirement.

In O’Connor v. Ortega

, a plurality of the Supreme Court considered the constitutionality of

a state hospital administrator’s search of a doctor’s desk and file cabinets pursuant to an investigation

into noncriminal work-related misconduct. I d. at 7 1 2-13. Concluding that the doctor had a

reasonable expectation of privacy, the Court nevertheless refused to apply the warrant requirement

to the search. Instead, it held “that public employer intrusions on the constit ut io nally protected

privacy interests of government employees for noninvestigatory, work-related purposes, as well as

for investigations of work-related misconduct, should be judged by the standard of reasonableness

under all the circumstances.” I d. at 725-26; see also United States v. Johnson

, 16 F.3d 69, 73-74 (5 th

Cir. 1994) (applying test articulated in O’Connor ). Specifically, such workplace searches must be--12--

reasonable both at the inception and in scope. O’Connor , 480 U.S. at 726.

Although O’Connor

provides the starting point of our analysis, it does not end our inquiry,

as the facts before us are distinguishable on at least two noteworthy points. First, in the present case,

although Slanina’s use of the city-provided computer equipmen t to access and store pornography

certainly constituted workplace misconduct, it also violated criminal law. It cannot be said that by

the time Keller, a law enforcement officer with expertise in child pornography investigations, searched

Slanina’s office computer, there was no criminal dimension to the investigation. The Supreme Court

specifically excepted this situation from its holding in O’Connor

, declining to “address the appropriate

standard when an employee i s being investigated for criminal misconduct or breaches of other

nonwork-related or regulatory standards.” I d. at 729 n.*. Second, the O ’Connor Court suggested

that its holding might not extend to the context of investigati o ns into work-related misconduct by

government employers who, like Keller, are also law enforcement officers. S ee id. at 724 (noting that

while law enforcement o fficials are expected to learn the “niceties of probable cause

. . . [i]t is simply

unrealistic to expect supervisors in most government agencies to learn the subtleties of the probable

cause standard”).

Other circuits, however, have shed light on this issue. In U nited States v. Simons

, the Fourth

Circuit considered the l egalit y o f a government employer’s search of an employee’s office for

evidence of child pornography. The defendant was an employee of a division of the Central

Intelligence Agency (“CIA”) and was suspected of using his office computer to access pornography.

With help from network administrators, the defendant’s employer copied his hard drive from a remote

location. I

d. at 396. A criminal investigator from the CIA Office of the Inspector General (“OIG”)

was then contacted. I

d. U pon viewing the copy of the hard drive, the investigator found images of7 We re co gnize the potential conflict between S imons and the Ninth Circuit’s decision in

United States v. Taketa

, 923 F.2d 665 (9 th Cir. 1991). In T aketa

, the Ninth Circuit upheld the search

of a state investigator’s office by o fficials of the Drug Enforcement Administration (“DEA”), who

were looking into allegations of misuse of a pen register. The court concluded that the O’Connor

except io n applied to the office search because it was part of an internal investigation into workrelated misconduct. I

d. at 673-74. Nevertheless, it held that the subsequent video surveillance of the

state investigator should not be reviewed under O’Connor because the character of the investigation

had changed. I

d. at 6 75. In reaching this conclusion, it relied on testimony from the DEA

investigator that once confirmation of the defendant’s misuse of the wire tap was provi ded, the

--13-- child pornography. I

d. Later the same day, the network administrator entered the defendant’s office

and seized the hard drive, replacing it with a copy. I d. A few days later, the FBI was called. I d. The

defendant appealed his conviction for possession of child pornography, claiming that the search of

his office by the network administrator violated the Fourth Amendment. The Fourth Circuit rejected

thi s challenge, holding that the O ’Connor standard applied to the office search. I d. at 400.

Importantly, the court assumed that the purpose of the search was “to acquire evidence of criminal

activity,” id., which had been committed at the gover nment office using government equipment.

Nevertheless, it concluded, the O’Connor exception to the warrant requirement applied, observing

that the government employer “did not lose its special need for the ‘efficient and proper operation

o f t he wo rkplace,’ merely because the evidence obtained was evidence of a crime.” I d. (quotin g

O’Connor , 480 U.S. at 723).

We approve of the Fourth Circuit’s reasoning in Simons , agreeing that O’Connor ’s goal of

ensuring an efficient workplace should not be f rust rated simply because the same misconduct that

violates a government employer’s policy also happens to be illegal. S ee also 4 Wayne R. LaFave,

Search and Seizure § 10. 3 (3d ed. 2002) (noting that cases upholding searches by government

employers into criminal, work-related misconduct ar e fully consistent with the reasoning in

O’Connor

). 7 There is an obvious distinction, however, between the facts confronted by the Fourthinternal investigation ceased and became a criminal investigation. Id. Even if Taketa , not Simons

,

i llustrates the proper application of O ’Connor to the context of a criminal investigation by a

government employer, there remains a critical distinction with our case. Unlike in T aketa

, where the

government employer testified that the investigation became wholly criminal, at the time of Keller’s

search, he was still conduct ing an int ernal investigation into work-related misconduct as well as a

criminal search. Because of the dual nature of Keller’s search, the government employer’s interest

in the prompt and efficient operati on of the workplace are more compelling in the present case than

in Taketa , in which the investigation was purely criminal.

--14-- Circuit in Simons and the situation before us in the instant case. In Simons , the person conducting

the search was a network administrator for the government employer, not a law enforcement o fficial.

By contrast, in the present case the critical search wa s performed by Keller, who was both a

supervisor and a law enforcement officer. Therefore, we must also inquire whether the O’Connor

exception should extend to the situation in which the criminal work-relate d misco nduct is being

investigated by an employer who is also a law enforcement officer.

Again, we look to guidance from other courts, which have answered this question i n the

affirmative. In several cases, searches by law enforcement personnel into work-related misconduct

have been reviewed under the O’Connor standard. For example, in United States v. Fernandes

, 272

F.3d 938, 942-43 (7 th Cir. 2001), the Seventh Circuit held that a search by a county prosecutor into

allegations of bribery against his deputy prosecutor was reasonable under O’Connor . Recognizing

that in O’Connor

, the search was not conducte d by someone “in the business of investigating the

viola t io n o f t he criminal laws,” the court nonetheless rejected the defendant’s argument that this

distinction rendered the search of his office illegal. I d. at 943 n.3. It looked instead to the purpose

of the search, noting that the county prosecutor was conducting an investigation into work-related

misconduct. I

d. S ee also Gossmeyer v. McDonald

, 128 F.3d 481, 490-92 (7 th Cir. 1997) (applying

O’Connor to search by child protective services inspector general regarding allegations of child--15--

pornography against employee); Shields v. Burge

, 874 F.2d 1201, 1203-05 (7 th Cir. 1989) (applying

O’Connor to search by police officers pursuant to investigation of work-related misconduct by fellow

officer).

Our review of the relevant caselaw from our sist er circuits leads us to the inescapable

conclusion that Keller’s search of Slanina’s office computer equipment, including the hard drives and

zip disks, should be reviewe d under the O ’Connor standard. As an expert in child pornography

investigations, Keller undoubtedly appreciated the poss ibilit y that the investigation into Slanina’s

misuse of city computer equipment might result in evidence of criminal violations. Nevertheless, any

evidence of criminal acts was also proof of work-related misconduct. Once Smith and Ure uncovered

evidence of work-related misconduct, the city did not lose its interest in being able to fully investigate

such misconduct in a regular and efficient manner. The record evidence demonstrates that as of the

time of Keller’s search, the probe remained at least partly an investigation into employee misconduct.

The subsequent involvement of the City Manager and human resources in the process attests to this

characterization. To hold that a warrant is necessary any time a law enforcement official recognizes

the possibility that an investigation into work-related misconduct will yield evidence of criminal acts

would frustrate t he go vernment employer’s interest in “the efficient and proper operation of the

workplace.” O ’Connor

, 480 U.S. at 723. We decline to impose such a burden on government

employers. Therefore, in assessing the constitutionality of Keller’s search, we apply the standard

articulated in O’Connor.

Under O’Connor , a search by a government employer must be justified at its inception and

reasonably related to the circumstances just ifying the interference in the first place. Id. at 726. We

have little difficulty concluding that Keller’s search passes this test. At the inception of his search,8 Recognizi ng t he need to tread lightly in this relatively new area of Fourth Amendment

jurisprudence, we stress that our decision is limit ed to the unique facts before us. Specifically, we

note Keller’s dual roles as supervisor and law enforcement officer, as well as the dual nature of

Slanina’s misdeeds, simultaneously violative of both workpl ace regulat ions and criminal law. We

have no occasion to co nsider the constitutionality of a search of a government employee by a law

enforcement o ffic er who is not also the employee’s supervisor. Moreover, we do not address the

situation where the criminal acts of a government employee do not also violate workplace

employment policy.

--16-- Smith had already discovered titles of newsgroups suggesting the presence of child pornography on

Slanina’s computer. Smith had also fo und an image of adult pornography, which represented a

violation of city policy. On this evidence alone, Keller was justified in conducting a full search of the

computer and accompanying disks to look for evidence of misconduct. Moreover, the scope of the

search was also reasonable. The computer had been provided to Slanina by the city, and any use of

it to access pornography was a violation of city policy. Keller was entitled to determine the extent

of Slanina’s violations. 8

C.

Our conclusion that Keller’s warrantless search of Slanina’s office computer equipment was

reasonable under O’Connor is not by itself sufficient to affirm the district court’s admission of the

evidence from the office computer equipment. After Keller’s search, the FBI conducted an

exhaustive search of the same equipment, and the eviden ce obtained from the FBI search was

admitted at trial. Because we conclude that the FBI search does not fall under the O ’Connor warrant

exception, we must determine whether the admission of the evidence violated the Fourth Amendment.

To answer the question, we need not venture outside the Fifth Circu i t for guidance, as recent

precedent from within this circuit provides the answer. In U nited States v. Runyan

, 275 F.3d 449 (5 th

Cir. 2001), a defendant convicted on child pornography charges challenged inter alia the exhaustive--17--

police search of disks that had only partly been searched by a private party. The search was upheld,

as the court stated that “the police do not exceed the scope of a prior private search when t h ey

examine the same materials that were examined by the private searchers, but they examine these

materials more thoroughly than did the private parties.” I d. at 464. Similarly, the FBI’s full search

of the computer equipment, which had already been partially searched by Keller, did not run afoul of

the Fourth Amendment. Once Keller looked at the computer and the zip disk, Slanina’s expectation

of privacy in them had already been eroded. S ee id. at 465. He could not then complain about the

FBI search of the same materials even though the FBI may have looked at more files than Keller. S ee

id.

III.

Because we find no Four t h Amendment violation in the search of the office computer

equipment, we need not address Slanina’s argument that the consent to search his home computer

and his statements to police were tainted. Accordingly, we now consider Slanina’s argument that he

did not voluntarily consent to the search of his home computer. The district court found that Slanina

“gave a knowing, voluntary, and intelligent consent to the search and seizure of the city’s computer”

at his residence. Voluntariness of consent is a quest io n of fact, which we review for clear error.

United States v. Dortch

, 199 F.3d 193, 201 (5 th Cir. 1999). We look to six factors in determining

whether consent is voluntary:

(1) the voluntariness of the defendant’s custodial status; (2) the presence of coercive

police procedures; (3) the extent and level of defendant’s cooperati on with the police;

(4) the defendant’s awareness of his right t o refuse consent; (5) the defendant’s

education and intelligence; and (6) the defendant’s belief t hat no incriminating

evidence will be found.

Id. N o single factor i s dispositive I d. Slanina relies heavily on the fact that he knew that--18--

incriminat ing evidence would be found at his home, which militates against a finding of voluntariness.

Moreover, he notes that Keller informed him that a search warrant would be obtained if he did not

provide his consent, and that he was under the influence of a painkiller that made him disoriented.

Finally, he claims that he was being held in custody despite Keller’s assurances that he was free to

leave at any time.

The government points out, however, that Slanin a was extremely cooperative during the

meeting in Keller’s office and once they arrived at his house. His foremost concern throughout this

time was minimizing the disruption to his wife an d children. He acknowledged that he was

embarrassed about the discovery of the pornography on his office computer, but relieved that it was

finally out in the open. Furthermore, he displayed no signs that the painkiller was affecting his

judgment or actions. To the contrary, the testimony of those present with him in Keller’s office

suggests that he fully realized the enormity of the situation he faced and acted to contain the damage

to his family. Given this strong evidence supporting the district court’s conclusion, we cannot say

that its finding of voluntariness was clearly erroneous.

IV.

For the f o rego ing reasons, we conclude that the warrantless search of Slanina’s office

computer equipment, including the computer and the zip disk, did not violate the Fourth Amendment.

We also hold that the district court’s finding that Slanina voluntarily consented to the search of his

home computer equipment was not clearly erroneous. Accordingly, we AFFIRM the district court’s

ruling and Slanina’s conviction.