concurring in the denial of rehearing en banc:
The court wisely denied rehearing this case en banc. We write separately only to counter the dissent’s unwarranted contention that the panel has “inaccurate[ly]” and “incompletely]” described the record.
First, contrary to the dissent’s assertions, the record in the district court shows that Frontline and its employees cooperated with the investigation at every turn. John Softich and Bill Schneider, the persons who performed the search, testified that they told their boss, Ron Reavis, the chief financial officer of the corporation, that the FBI had inquired about making a backup of the hard drive, and Reavis said “that as an officer of the company, he was okay with that, and he said that we could go forward and do that.” Frontline later turned over the copies made by Softich and Schneider to the government. As FBI Agent Kennedy testified, “[a]t this point, Counselor, everybody at Frontline Processing is telling me they are going to cooperate, so I’m not going to go in and start serving search warrants on a company if they’re going to cooperate. I have no desire to do that.”1
The dissent concludes that this testimony shows only that Reavis “acquiesced in Softich and SchneidePs planned action .... ” The American Heritage Dictionary defines “consent” as “[acceptance or approval of what is planned or done by another; acquiescence.” The American Heritage Dictionary of the English Language (4th ed.2000). The testimony of Sofitch and Schneider does make clear that when Agent Kennedy asked these two employees to make a back-up copy of Ziegler’s hard drive, they approached Reavis, told him what was being asked of them, and he said “that as an officer of the company, he was okay with that, and he said that we could go forward and do that.”2 A plan of action was proposed, Softich and Schneider conveyed the plan to Reavis, and they received approval of the plan; acquiescence by any other name is consent.3
The dissent also relies heavily on company president Chris Kittler’s anti-govern*892ment views, Softich’s later “administrative termination,” and Kittler’s kicking and spitting fit at an airport “years later.” But these subsequent incidents have little to no relevance to the question of whether the corporation consented at the time of the search. To a certain extent, reliance by the dissenters upon these events is very strange indeed, because what they prove is that Kittler was upset because his corporate employees and officers cooperated with and consented to the government’s investigation.4
Finally, the quotation of the district court’s statement that “they sure didn’t consent to having him” is taken out of context by the dissent; what the court was discussing was whether Agent Kennedy had directed Softich and Schneider to make a backup tape. The dissent’s own quotation from the transcript does not demonstrate that Kennedy “affirmatively stated” that neither Softich nor Schneider consented to the search. Dissent at 897-98. Indeed, as described above, Kennedy’s testimony was that everybody at Frontline was cooperating with the investigation.
The full exchange upon which the dissent hinges its analysis is as follows:
THE COURT: Well, I think [Agent Kennedy’s] testified a number of times contrary to your position. He said that he didn’t ask them to do a search, and they sure didn’t consent to having him. I don’t understand that question, but his position is he didn’t ask them to do a search. I know exactly what the positions are.
What this passage shows is that there was confusion over the extent to which Kennedy directed the search. But it is extravagant in the extreme to assert that this is a finding of fact or a legal conclusion that Frontline did not consent to making a backup of Ziegler’s hard drive. And this passage does not undercut the testimony of Softich and Schneider that they went to Reavis and received instructions to go ahead with the plan.
The search was reasonable on the facts in the record of this case. Post hoc revisionism by the dissenters validates the wisdom of our court’s decision not to rehear it en banc.
. Agent Kennedy testified that in addition to later conversations with Frontline's corporate counsel, Michael Freeman, he also had "conversations with Mr. Reavis, who is the chief financial officer, telling me that Mr. Kittler and he both wanted to cooperate with the FBI."
. The dissent apparently would require "clairvoyant” consent. How else to understand its requirement that Reavis consent to the search "before Kennedy directed Softich and Schneider to perform it”? Dissent at 898.
.It is hard to know what to make of the dissent’s citation to Bumper v. North Carolina, 391 U.S. 543, 548-49, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968), for the proposition that "acquiescence" does not equal "consent”? Bumper is simply and utterly inapt. In that case, four white law enforcement officers showed up at the house of Hattie Leath, a 66-year old African-American widow, and demanded entry to her house, telling her that they were in possession of a search warrant. Id. at 546, 88 S.Ct. 1788. She allowed them entry to the house based upon their professed possession of a search warrant. The State *892later could not justify the search on the basis of any warrant, but the trial court refused to suppress the evidence discovered on the basis that Leath consented to the search. The Supreme Court reversed, holding that "[w]hen a law enforcement officer claims authority to search a home under a warrant, he announces in effect that the occupant has no right to resist the search. The situation is instinct with coercion-albeit colorably lawful coercion.” Id, at 550, 88 S.Ct. 1788. The Court’s statement concerning "acquiescence to a claim of lawful authority,” id. at 549, 88 S.Ct. 1788, was quite clearly directed at the police gaining entry to search by lying about having a warrant. Even the dissent's most exaggerated anxieties about this case do not approach that scenario, and thus the quotation plucked from Bumper is at best misleading.
: Compare Georgia v. Randolph, 547 U.S. 103, 126 S.Ct. 1515, 1518, 164 L.Ed.2d 208 (2006) ("The Fourth Amendment recognizes a valid warrantless entry and search of premises when police obtain the voluntary consent of an occupant who shares, or is reasonably believed to share, authority over the area in common with a co-occupant who later objects to the use of evidence so obtained.”) (emphasis added).