           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                        December 16, 2008

                                       No. 08-40169                   Charles R. Fulbruge III
                                                                              Clerk

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



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                No. 08-40169

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



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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

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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.




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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.




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