[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 07-15142 July 8, 2008
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 07-00126-CR-T-24-TBM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MELODY L. ESSER,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(July 8, 2008)
Before BIRCH, BARKETT and PRYOR, Circuit Judges.
PER CURIAM:
Melody Esser, a former U.S. Postal Service (“USPS”) employee appeals her
convictions for three counts of receipt of stolen mail, in violation of 18 U.S.C.
§ 1708, and one count of theft of mail, in violation of 18 U.S.C. § 1709. She
argues that her motion to suppress evidence in the district court, based on a search
of her purse that was conducted by members of the USPS Inspector’s Office, who
interrogated her concerning their investigation into pieces of allegedly stolen mail
should have been granted. Esser contends that, despite the prominent posting of a
sign warning postal employees that purses, briefcases, and other containers
brought onto postal property were subject to inspection, she did not give up her
Fourth Amendment rights and subject herself and her property to a full search
simply by entering postal property. She further argues that the search of her purse
was unreasonable, and the public’s interest in ensuring that its mail is not stolen by
postal employees does not override her Fourth Amendment rights to be secure in
her property.
We review the district court's factual findings on a motion to suppress
evidence for clear error and its application of the law to these facts de novo,
construing the facts in the light most favorable to the prevailing party. United
States v. Nunez, 455 F.3d 1223, 1225 (11th Cir. 2006). The Fourth Amendment
provides that: “[t]he right of the people to be secure in their persons, houses,
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papers, and effects, against unreasonable searches and seizures, shall not be
violated . . . .” U.S. Const. amend. IV. Two requirements must be met before an
individual may prevail on a Fourth Amendment claim: (1) the individual must
prove a subjective expectation of privacy in the object of the search, United States
v. Chaves, 169 F.3d 687, 690 (11th Cir. 1999); and (2) the individual must prove
that his subjective expectation of privacy is one that society is prepared to
recognize as legitimate, United States v. McKennon, 814 F.2d 1539, 1543 (11th
Cir. 1987). Moreover, although a search generally must be supported by a warrant
issued upon probable cause, probable cause is unnecessary if the individual
consents to the search. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 222, 93
S.Ct. 2041, 2043-45, 36 L.Ed.2d 854 (1973).
Searches of an employee’s private property by government employers or
supervisors are subject to the restraints of the Fourth Amendment. O'Connor v.
Ortega, 480 U.S. 709, 715, 107 S.Ct. 1492, 1496, 94 L.Ed.2d 714 (1987). In a
governmental workplace, however, the “operational realities . . . may make some
employees’ expectations of privacy unreasonable when an intrusion is by a
supervisor rather than a law enforcement official.” Id. at 717, 107 S.Ct. at 1497
(emphasis in original). In fact, “[p]ublic employees’ expectations of privacy in
their offices, desks, and file cabinets, like similar expectations of employees in the
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private sector, may be reduced by virtue of actual office practices and procedures,
or by legitimate regulation.” Id.
In United States v. Sihler, 562 F.2d 349 (5th Cir. 1977), the former Fifth
Circuit considered a situation similar to the instant one, where a federal
penitentiary employee was suspected of smuggling narcotics into the prison.
There was a sign displayed on the front door of the penitentiary, which stated, “all
persons entering upon these confines are subject to routine searches of their
person, property or packages.” Id. at 350. When advised that he was suspected of
dealing narcotics and was going to be searched, the employee stated, “[w]ell, all
right go ahead,” and officials searched the brown paper bag that the employee had
brought into the prison with him. Id. The Court found that the search was not
violative of the Fourth Amendment because the employee had consented to it, but,
notably, the Court based its conclusion not on the employee’s statement of
consent, but on the fact that he “voluntarily accepted and continued an
employment which subjected him to search on a routine basis.” Id. at 351. The
Court found it relevant that the employee passed through the door with the sign on
it almost every day as he reported to work and had been advised, when he was
hired, that he was not to bring any contraband into the prison. Id. Further, the
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Court concluded that requiring such consent as a condition of employment was a
“reasonable security measure.” Id.
Here, based on the posted regulation informing individuals entering postal
property that purses are subject to inspection, and the office rules that required
employees to read all posted regulations, Esser did not have a reasonable
expectation of privacy in her purse. Further, by virtue of her voluntary
employment and her decision to bring her purse on postal property, she consented
to its search. Therefore, her Fourth Amendment rights were not violated.
AFFIRMED.
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