                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 02-1238
                                   ___________

United States of America,                *
                                         *
            Appellant,                   *
                                         *   Appeal from the United States
      v.                                 *   District Court for the District
                                         *   of Minnesota.
Dale Robert Bach,                        *
                                         *
            Appellee.
                                   ___________

                             Submitted: October 9, 2002

                                 Filed: November 18, 2002
                                  ___________

Before MURPHY, BEAM and MELLOY, Circuit Judges.
                          ___________

BEAM, Circuit Judge.

       The government appeals a ruling from the United States District Court for the
District of Minnesota suppressing evidence in a criminal case against Dale Robert
Bach ("Bach"). The district court found that the seizure of e-mails by Yahoo!
personnel from Yahoo!'s servers violated 18 U.S.C. § 3105 and sections 626.13 and
626A.06 of the Minnesota Statutes, and thus the Fourth Amendment. This violation
occurred, according to Bach, because the warrant was executed outside the presence
of a police officer. The government argues that section 3105 does not codify the
Fourth Amendment, that requiring the presence of a police officer during the
execution of this type of search is not reasonable, and that Bach's Fourth Amendment
rights were not violated by the search and seizure. We agree with the government and
reverse.

I.    BACKGROUND

      Sgt. Schaub of the St. Paul Police Department, a member of the Minnesota
Internet Crimes Against Children Task Force ("MICAC"), was contacted by a mother
("DL") because of a document she retrieved from her family's computer. This
document contained a partial log of a dialogue between her son ("AM"), who is a
minor, and a party using the name "dlbch15." In the dialogue, "dlbch15" asked AM
where to hide an object near AM's house and if AM wanted to see him again. When
questioned about this dialogue, AM told law enforcement that it had occurred in a
"chat room" on www.yahoo.com and that "dlbch15" was going to hide Playboy
magazines for AM. AM said he had met "dlbch15" in person, but he denied any
sexual contact between them.

      Schaub investigated this incident, discovered that "dlbch15" was Bach and that
he had been convicted of criminal sexual conduct in 1996. Eventually, Schaub
obtained a state search warrant to retrieve from Yahoo! e-mails between the defendant
and possible victims of criminal sexual conduct, as well as the Internet Protocol
addresses connected to his account. Both the warrant itself and Schaub's affidavit
indicated that the warrant could be faxed to Yahoo! in compliance with section
1524.2 of the California Penal Code. Schaub faxed the signed warrant to Yahoo!.

       Yahoo! technicians retrieved all of the information from Bach's account at
dlbch15@yahoo.com and AM's Yahoo! e-mail account. According to Yahoo!, when
executing warrants, technicians do not selectively choose or review the contents of
the named account. The information retrieved from Bach and AM's accounts was
either loaded onto a zip disc or printed and sent to Schaub. E-mails recovered from
Bach's account detail him exchanging pictures with other boys and meeting with

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them. One e-mail contained a picture of a naked boy. The information retrieved from
Yahoo! also included Bach's address, date of birth, telephone number, and other
screen names.

       Investigators then obtained a search warrant for Bach's house, where they
seized a computer, discs, a digital camera, and evidence of child pornography. Based
on this information, and the information obtained from Yahoo!, Bach was indicted
for possession, transmission, receipt, and manufacturing of child pornography in
violation of 18 U.S.C. §§ 2252A(a)(1) and (2), 2252A(a)(5), 2252A(b)(2), 2252(a)(4),
2252(a)(1) and (2), 2252(b)(2), 2251(a) and (d), and 2253(a). Bach moved to
suppress the evidence seized from the execution of both warrants. The district court
suppressed the information obtained from the warrant executed by Yahoo! (but not
the information obtained from the subsequent search of his home) because an officer
was not present during Yahoo's execution of the first warrant in violation of 18
U.S.C. § 3105 and sections 626.13 and 626A.06 of the Minnesota Statutes, both of
which, according to the district court, codify the Fourth Amendment. The
government appeals this ruling.

II.   DISCUSSION

     We review the district court's conclusions of law de novo. United States v.
Guevara-Martinez, 262 F.3d 751, 753 (8th Cir. 2001).

       In allowing Yahoo! technicians to search Bach's e-mail outside the presence
of law enforcement, MICAC (state officers) violated the provisions of 18 U.S.C. §
3105. However, section 3105 does not apply to these officers because this section
applies only to federal officials, not state officials operating under a state search
warrant. See U.S. v. Appelquist, 145 F.3d 976, 978 (8th Cir. 1998). It also appears
that the state officers executing the search violated Minnesota Statute section 626.13.
Even so, such a violation would not warrant suppression of the evidence gained

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because federal courts in a federal prosecution do not suppress evidence that is seized
by state officers in violation of state law, so long as the search complied with the
Fourth Amendment. United States v. Moore, 956 F.2d 843, 847 (8th Cir. 1992);
Appelquist, 145 F.3d at 978. We disagree with the district court's determination that
section 3105 codifies the Fourth Amendment's requirements for searches and seizures
and agree with the Second Circuit that the inquiries under section 3105 and the
Constitution are separate and distinct. Ayeni v. Mottola, 35 F.3d 680, 687 (2d Cir.
1994) (abrogated on other grounds, Wilson v. Layne, 526 U.S. 603, 618 (1999)).
Thus the only question left for us to answer is whether the search violated the Fourth
Amendment.

       As a preliminary matter, we first note that in order to find a violation of the
Fourth Amendment, there must be a legitimate expectation of privacy in the area
searched and the items seized. Smith v. Maryland, 442 U.S. 735, 740 (1979). If there
is no legitimate expectation of privacy, then there can be no Fourth Amendment
violation. Id. While it is clear to this court that Congress intended to create a
statutory expectation of privacy in e-mail files, it is less clear that an analogous
expectation of privacy derives from the Constitution. Even though ordinarily we
would need to determine whether there is a constitutional expectation of privacy in
e-mail files in order to proceed, we decline to decide this issue because even if there
is such an expectation, we find on other grounds that this particular search did not
violate Bach's Fourth Amendment rights.




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       Yahoo!'s execution of the search warrant in this case did not violate Bach's
Fourth Amendment rights.1 The Fourth Amendment does not explicitly require
official presence during a warrant's execution, therefore it is not an automatic
violation if no officer is present during a search. See Wilson v. Arkansas, 514 U.S.
927, 931, 934 (1995) (no automatic violation of the Fourth Amendment if officers do
not adhere to the common law's "knock and announce" requirements, but rather a
factor to be considered in judging the reasonableness of a search under the Fourth
Amendment).

       The Fourth Amendment is governed by a "reasonableness" standard. Ohio v.
Robinette, 519 U.S. 33, 39 (1996). This standard is flexible and should not be read
to mandate rigid rules that ignore countervailing law enforcement interests. United
States v. Murphy, 69 F.3d 237, 243 (8th Cir. 1995). Official presence should simply
be one of many factors considered in determining the reasonableness of the execution
of a search warrant. See Wilson, 514 U.S. at 927. Other relevant factors are the
scope of the warrant, the behavior of the searching agents, the conditions where the
search was conducted, and the nature of the evidence being sought. United States v.
Schandl, 947 F.2d 462, 465 (11th Cir. 1991). If a practice "'substantially increase[s]
the time required to conduct the search, thereby aggravating the intrusiveness of the
search,'" then it may be reasonable to avoid that practice. Id. at 466 (quoting United
States v. Wuagneux, 683 F.2d 1343, 1352 (11th Cir. 1982)).




      1
        We analyze this case under the search warrant standard, not under the
subpoena standard. While warrants for electronic data are often served like
subpoenas (via fax), Congress called them warrants and we find that Congress
intended them to be treated as warrants. 18 U.S.C. § 2703(b)(1)(A). Additionally,
since the search warrant standard is more stringent than the subpoena standard, and
since we find the search passes muster under warrant requirements, we find it
appropriate to analyze the case under the warrant standard. In re Subpoena Duces
Tecum, 228 F.3d 341, 346-47 (4th Cir. 2000).

                                         -5-
       Civilian searches are sometimes more reasonable than searches by officers.
Harris v. State, 401 S.E.2d 263, 266 (Ga. 1991) (stating that a dentist may execute a
search warrant for dental X-rays and impressions); Schalk v. State, 767 S.W.2d 441,
454 (Tex. App. 1988) (providing that a search by a civilian software expert more
reasonable than search by an officer because the officer lacked knowledge to
differentiate a trade secret from a legitimate computer software program), cert.
denied, 503 U.S. 1006 (1992); State v. Kern, 914 P.2d 114, 117-18 (Wash. Ct. App.
1996) (indicating that it is reasonable to delegate search of bank records to bank
employees, even when police officer was not present during the search). Civilian
searches outside the presence of police may also increase the amount of privacy
retained by the individual during the search. See Rodriques v. Furtado, 575 N.E.2d
1124 (Mass. 1991) (body cavity search done outside presence of officers);
Commonwealth v. Sbordone, 678 N.E.2d 1184, 1190, n.11 (Mass. 1997).

       We consider several factors in this case to determine whether the search and
seizure of Bach's e-mail from Yahoo!'s server by Yahoo! technicians violated Bach's
Fourth Amendment rights, including the fact that no warrant was physically "served,"
no persons or premises were searched in the traditional sense, and there was no
confrontation between Yahoo! technicians and Bach. See United States v. Mountain
States Tel. & Tel. Co., 616 F.2d 1122, 1130 (9th Cir. 1980) (utilizing these same
factors to determine that a phone company can execute a Federal Rule of Criminal
Procedure 41 warrant). Other factors crucial to our decision include: (1) the actual
physical presence of an officer would not have aided the search (in fact may have
hindered it); (2) the technical expertise of Yahoo!'s technicians far outweighs that of
the officers; (3) the items "seized" were located on Yahoo!'s property; (4) there was
a warrant signed by a judge authorizing the search; and (5) the officers complied with
the provisions of the Electronic Communications Privacy Act, 18 U.S.C. § 2701. All
of these factors weigh in favor of the government and we therefore find that the
search was constitutional under the Fourth Amendment's reasonableness standard.



                                         -6-
       The government also argues that the blanket suppression of evidence seized
from the victim's account was improper because Bach lacked standing to challenge
the seizure of some of the evidence. Not only did Bach concede at oral argument that
he lacked standing, but this point is also moot as a result of our holding in this case.

III.   CONCLUSION

      We hold that the search and seizure of Bach's e-mail files from Yahoo!'s server
by Yahoo!'s technicians was reasonable under the Fourth Amendment. Bach's motion
to suppress the results of this search should have been denied. We reverse the
judgment of the district court and remand the case for further proceedings consistent
with this opinion.

       A true copy.

             Attest:

                CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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