dissenting, joined
by PREGERSON, REINHARDT, KOZINSKI, HAWKINS, THOMAS, McKEOWN, WARDLAW, FISHER, PAEZ, and BERZON, Circuit Judges:For two reasons, I dissent from the court’s decision not to rehear this case en banc.
*893First, the employer in this case had an announced policy that employee computer use was subject to electronic monitoring from outside the employees’ offices by the employer. The panel incorrectly concludes that this policy constituted express authorization by the employees for the employer to do something quite different — to consent to a warrantless physical entry into the employees’ locked offices by criminal law enforcement agents to seize a computer.
Second, even assuming that the employer had the authority to consent to an FBI search of an employee’s locked office for a computer, there was no such consent. Based on an inaccurate and incomplete description of the facts in the record, the panel incorrectly concludes that there was consent.
We should have taken this case en banc to correct the panel’s erroneous view of the protection provided by the Fourth Amendment and to insure the integrity of our appellate process in dealing with a trial court record.
I. Factual Background
Defendant Jeffrey Ziegler worked in Bozeman, Montana as a manager at Front-line Processing. Frontline processed credit card billings. At the time of the events at issue, Frontline was a small company with between thirty and forty employees. The owner of the company, Chris Kittler, worked at the same location as his employees. According to the director of Frontline’s information technology (IT) department, John Softich, Ziegler shared his position on the corporate ladder as second-in-command with other employees, including CFO Ron Reavis. Reavis was not, as the panel opinion states, Ziegler’s superior. Ziegler was disliked by other employees but was a personal friend of Kittler. Kittler created the position at Frontline for Ziegler and gave him a private office with a door that locked.
The search at issue resulted from an FBI investigation triggered by Ziegler’s co-workers. Through remote electronic monitoring, IT technicians Softich and Bill Schneider discovered that company employees, including Ziegler, had been using their office computers to visit adult pornography sites. By remotely viewing internet activity on Ziegler’s computer, Sof-tich and Schneider also discovered that on two occasions Ziegler had visited sites that contained images of child pornography. Ziegler’s computer had automatically stored those images as “cache” files, probably without Ziegler’s knowledge.
Softich and Schneider did not inform Kittler, Frontline’s owner, about the cache files. However, they did tell Reavis and the office receptionist, Lee Ann Miller. Schneider testified that when Reavis was told about Ziegler’s activities, Reavis declared that he wanted to handle the situation internally “and not involve any authorities because he didn’t want the company shattered.” Schneider also testified that Miller, who disliked Ziegler, told her fiancé about the cache files. Miller’s fiancé, who owned the company that provided Front-line’s internet service, then contacted FBI agent James Kennedy.
Based on the tip from Miller’s fiancé, Kennedy contacted Frontline employees. So far as the record shows, the only employees Kennedy contacted prior to the search of Ziegler’s office were IT technicians Softich and Schneider. Kennedy did not contact either CFO Reavis or Front-line owner Kittler prior to the search.
The IT technicians did not have a key to Ziegler’s office. Indeed, they had never entered Ziegler’s office, even during the day, without his permission. A locksmith provided a key to Reavis, which he then *894gave to IT technicians Softich and Schneider.
Softich and Schneider testified that acting at Kennedy’s direction and using the key obtained from the locksmith they entered Ziegler’s locked private office after working hours, took Ziegler’s hard drive, and made copies of that hard drive. According to Kennedy, however, Softich and Schneider acted on their own in entering Ziegler’s office and obtaining copies of his hard drive. The district court believed Softich and Schneider rather than Kennedy. The court found that “Agent Kennedy contacted Softich and Schneider on January 30, 2001 and directed them to make a back-up of Defendant’s computer files.” (Emphasis added.) The court did not find that Kennedy had merely “inquired about” making a back-up.
Schneider testified that he and Softich told Reavis that they had been directed by Kennedy to go into Ziegler’s office to take his hard drive, and that they were “going to do” that. Schneider testified that after they told Reavis what Kennedy had directed them to do, Reavis responded that “as an officer of the company, he was okay with that.” Reavis did not testify. Six days after Softich and Schneider searched Ziegler’s office and obtained the hard drive, and after discussions with its attorney, Michael Freeman, Frontline consented to turning over Ziegler’s hard drive to the FBI.
The record contains no evidence that Kittler, Frontline’s owner, had given any employee, including Reavis, authority to consent on behalf of the company to a search by the FBI. Indeed, the record contains substantial evidence that Kennedy, Softich, Schneider, and Reavis deliberately did not tell Kittler about the impending search of Ziegler’s office. Kittler’s intense dislike of the FBI was well known to Frontline employees. Kennedy testified in the district court that both Softich and Schneider “felt their jobs would be in jeopardy if Mr. Kittler knew they were cooperating with the FBI.” Kennedy also testified that Softich requested their meeting take place over the lunch hour “so as not to raise any questions at work.” Softich and Schneider’s unwillingness to inform Kittler is substantiated by events after the search. Schneider testified that, after the search, “Chris Kittler called us up to his office many, many, many, many, many times to scream at us for cooperating with the FBI.” According to Schneider, Kittler “felt that the FBI coming in and doing the investigation in his company was unconstitutional and it was wrong.” Kittler launched an internal investigation into “who had tipped off the FBI.”
Schneider testified that he received a constructive discharge based on his cooperation with the FBI investigation. Miller also left the company because of Kittler. The intensity of Kittler’s response did not dimmish over time. Kittler used company money to help pay for Ziegler’s legal defense when he was finally indicted, more than two years after the search. Softich also testified that, years later, during a chance encounter at an airport, Kittler kicked and spat on Reavis because he felt that Reavis had “betrayed the company.”
Ziegler’s hard drive contained several legal, adult, pornographic images. In addition, a few of the cache files, saved automatically on Ziegler’s computer, contained child pornography. Ziegler never accessed the cache files after they were saved.
Ziegler pled guilty, and the district court sentenced him to a fine and two years probation. The court stated, in explanation of its light sentence: “The short duration of the possession, the fact that the searches were over a two-day period, and the fact that the defendant did not sort or save this material indicates that this defen*895dant is not similar to the average offender charged with similar offenses. The defendant’s evaluation indicates that the defendant is not a pedo[ph]ile.” Ziegler preserved for appeal the denial of his motion to suppress.
II. Motion to Suppress
Ziegler moved in the district court to suppress the cache files found on his hard drive. The government made two arguments in the district court in opposition to the motion. First, the government argued that Softich and Schneider searched Ziegler’s locked office and took his hard drive on their own initiative, without any direction by the FBI. The government then relied on the undisputed fact that six days after Softich and Schneider had obtained the hard drive, Frontline, after consulting with counsel, consented to handing the hard drive over to Kennedy. Second, the government argued that, in any event, Ziegler had no reasonable expectation of privacy against a warrantless FBI-directed search of his locked private office. The government never argued that Reavis (or, indeed, anyone else at Frontline) consented to an FBI-directed search of Ziegler’s office.
The district court denied Ziegler’s motion. It rejected the government’s first argument, holding that Softich and Schneider had not acted on their own, but rather had been directed to perform the search by FBI Agent Kennedy. This holding made irrelevant the undisputed fact that Frontline later cooperated with the FBI. However, the court agreed with the government’s second argument, holding that Ziegler had no reasonable expectation of privacy against the search, irrespective of any post-search consent.
The panel has written two opinions in this case. In its first opinion, the panel affirmed the district court’s denial of Ziegler’s motion to suppress, agreeing with that court that Ziegler had no reasonable expectation of privacy against a warrant-less FBI-directed search of his locked private office. United States v. Ziegler, 456 F.3d 1138 (9th Cir.2006). In so concluding, the panel failed to acknowledge the controlling Supreme Court case establishing a private employee’s expectation of privacy in his office. See Mancusi v. DeForte, 392 U.S. 364, 88 S.Ct. 2120, 20 L.Ed.2d 1154 (1968). The panel also held that even though Softich and Schneider entered Ziegler’s locked office to obtain the hard drive, they “did not actually search Ziegler’s office.” 456 F.3d at 1143 n. 9. The panel’s first opinion did not discuss consent.
This court called for a response to Ziegler’s petition for rehearing en banc. In its response, the government argued that Ziegler did not have a reasonable expectation of privacy in his office or computer, but did not argue that CFO Reavis, or anyone else at Frontline, had consented to the warrantless FBI search of Ziegler’s locked office. The panel then withdrew its first opinion and substituted a new one. United States v. Ziegler, 474 F.3d 1184 (9th Cir.2007). In its second opinion, the panel holds that (a) based on its announced computer monitoring policy, Frontline had authority to consent to the FBI search performed by Softich and Schneider, and (b) Reavis, acting on behalf of Frontline, consented to the search by Softich and Schneider. Both holdings are wrong. We should have reheard this case en banc to correct them.
III. Frontline’s Announced Computer Monitoring Policy
The panel incorrectly holds that Front-line, Ziegler’s employer, had the authority to consent to a search of his locked private office and to a seizure of his hard drive located in that office. It is settled law that *896third-party authority to consent to a search must be premised on either of two bases: (1) express authorization by the first party, or (2) mutual use and joint access by the third party. United States v. Davis, 332 F.3d 1163, 1169 (9th Cir.2003) (quoting United States v. Fultz, 146 F.3d 1102, 1105 (9th Cir.1998)); United States v. Matlock, 415 U.S. 164, 171 n. 7, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974) (stating that third-party consent “is, of course, not to be implied from the mere property interest a third party has in the property .... but rests rather on mutual use of the property by persons generally having joint access or control for most-purposes”).
The panel primarily relies on the first basis for consent — express authorization by Ziegler — to hold that Frontline had the authority to consent to the FBI search of Ziegler’s locked office and seizure of his computer. The only analysis provided to substantiate Frontline’s authority to consent is a description of Frontline’s computer monitoring policy. See Ziegler, 474 F.3d at 1191-92. Frontline’s computer monitoring policy gave its employees notice that the IT department had remote electronic access to employee computers. Upon being hired, employees were informed “through training and an employment manual” that the company had installed a firewall. Id. at 1192. Employees were also informed that the IT department routinely monitored computers and reviewed the firewall’s log “[o]n a regular basis.” Id. (alteration in original).
Based on this announced policy, the panel holds that Frontline, as Ziegler’s employer, had authority to consent to a physical search of Ziegler’s locked office by law enforcement agents. There is nothing in the opinion (or the record) to constitute express authorization beyond Frontline’s policy that employees’ computer use is subject to remote electronic monitoring by Frontline. The panel thus conflates the issue of whether an employee has notice that his employer will have remote monitoring access to his computer with the very different issue of whether the employee has expressly authorized his employer to give consent to law enforcement personnel to gain physical access to a computer in the employee’s locked private office.
The second possible basis for consent— mutual use and joint access — is simply not applicable to the facts of the case. The Frontline employees involved in the search of Ziegler’s office did not have mutual use and joint access to Ziegler’s office. Reavis is the only person whom the panel identifies as supposedly having given consent to the search. The record contains no evidence suggesting that Reavis had mutual use and joint access to Ziegler’s office. Possession of a master key is not sufficient to establish mutual use and joint access, but Reavis, as Ziegler’s co-worker, did not even have a key to Ziegler’s office. Reavis had to obtain a key to Ziegler’s office from a locksmith. See United States v. Ruiz, 428 F.3d 877, 880 (9th Cir.2005) (declining to find actual authority to consent when the record was “sparse” as to whether the person who allegedly gave consent “had joint access to or control over” the area being searched).
IT technicians Softich and Schneider, who were charged with maintaining Ziegler’s computer, also did not have mutual use and joint access to Ziegler’s office. The record establishes that prior to the night of the search neither Softich nor Schneider had ever entered Ziegler’s office, even during the day, without Ziegler’s permission. Neither the panel’s opinion nor the record contains a description of any Frontline policies or operational practices that show mutual use and joint access of any of the Frontline employees involved in the search of Ziegler’s' office. Cf. Mancusi, 392 U.S. at 368, 88 S.Ct. *8972120 (suggesting that consent by employee’s supervisors could validate search when employee worked in “one large room, which he shared with several other union officials” and the employee did not claim that the records at issue were taken from a “part reserved for his exclusive personal use”).
Plainly put, it is preposterous to conclude, as the panel opinion does, that an employer’s policy of remote electronic monitoring of its employees’ computer use either (1) constitutes express authorization by an employee for the company to give consent to law enforcement to conduct a physical search for a computer in the employee’s locked private office or (2) establishes mutual use and joint access over such an office. We should have taken this case en banc to correct the panel’s erroneous holding regarding an employer’s ability to consent to a search of an employee’s workspace, and to provide certainty in the law so that employers and employees can structure their behavior accordingly.
IV. Consent by Frontline
The panel holds incorrectly not only that Frontline could consent, but also that Frontline did consent. The panel states that “testimony makes clear that Ziegler’s superiors at Frontline, in particular Reav-is, an officer of the company, gave consent to a search of the property that the company owned and which was not of a personal nature.” Ziegler, 474 F.3d at 1192. The panel states that its conclusion is warranted, even though company owner Kittler “objected (in some vague sense) to cooperation with the authorities.” Id. at 1192 n. 10.
There are two serious problems with the panel’s conclusion. First, the testimony emphatically does not “make clear” that Reavis, or anyone else at Frontline, “gave consent” to the search of Ziegler’s office. The panel can justify its conclusion only by providing an inaccurate and incomplete description of the testimony. Second, there is overwhelming evidence that Reavis did not have the authority to consent to the search on behalf of Frontline.
A. No Actual Consent by Reavis
The two people most competent to testify whether Reavis gave consent to Kennedy, the FBI agent who directed the search of Ziegler’s office, were Reavis and Kennedy. Reavis had been subpoenaed by Ziegler and was in court and available to testify. But the government declined to put him on the stand.
Kennedy did testify. He affirmatively stated that neither Softich nor Schneider consented to the search. He did not mention even the possibility that Reavis had consented. To understand the relevant testimony (reproduced below), the following context is helpful. Kennedy testified in the district court that Softich and Schneider had conducted the search of Ziegler’s office on their own initiative. Kennedy testified that after Softich and Schneider conducted the search and obtained copies of Ziegler’s hard drive as well as the hard drive itself, Kennedy discussed with Schneider the possibility of getting a warrant to force them to turn the copies and the hard drive over to him. Kennedy further testified that Freeman, Frontline’s attorney, later consented to hand over the copies and the hard drive without the necessity for a warrant.
With that context in mind, here is Agent Kennedy’s testimony:
Q [by Ziegler’s attorney]: [T]he only thing that Mr. Freeman agreed with you to do, and with the government, was that we would turn over to you the copies that had already been made, and the hard drive, and that’s all they consented to; isn’t that correct?
*898A [by Agent Kennedy]: That’s exactly right.
Q: They didn’t consent with you to have any searches done prior to the actual delivery of the computer to you, did they?
A: I don’t know what you’re asking.
Q: I mean, no one from Frontline consented to you directing Schneider or Softich to make a copy of a hard drive, did they?
A: They did that on their own.
A: No one consented, prior to you threatening Frontline with the issuance of a search warrant, that they were going to search Mr. Ziegler’s computer to tell you what was on it, did they?
A: Counselor, I didn’t threaten anybody.
At that point the district court interjected, saying:
Well, I think he’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.
(Emphasis added.) The district court’s statement indicates that it understood Kennedy to have said that neither Softich nor Schneider consented to the search. The statement may also (and in my view does also) indicate that the court affirmatively found, as a matter of fact, that they did not consent. But whether Kennedy merely testified that there was no consent, or the district court also affirmatively found that there was no consent, does not matter. The important point is that Kennedy’s testimony provides no support whatsoever for the panel’s conclusion that Reavis consented to the search.
Schneider testified that after he told Reavis what he and Softich had been directed to do by Agent Kennedy, Reavis told Schneider that he was “okay” with them searching Ziegler’s office and taking the hard drive. However, Schneider did not testify that Reavis said anything to Kennedy before the search. This omission is crucial, for the question is whether Reavis gave consent to Kennedy for the search. Schneider’s testimony does not show that Reavis consented to the search before Kennedy directed Softich and Schneider to perform it. Schneider’s testimony shows only that Reavis acquiesced in Softich and Schneider’s planned action in response to Kennedy’s direction to them. See Bumper v. North Carolina, 391 U.S. 543, 548-49, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968) (government’s burden to show consent “cannot be discharged by showing no more than acquiescence to a claim of lawful authority”); United States v. Bautista, 362 F.3d 584, 589, 591-92 (9th Cir.2004) (stating “ ‘government’s burden to show voluntariness cannot be discharged by showing no more than acquiescence to a claim of lawful authority’ ” and concluding that under the circumstances there had been no consent to enter room for search when Bautista opened door to motel room in response to police officers’ direction to do so, stood there for a moment not responding, and then “invite[d] the officers into the room as she backed away from the door” (citation omitted)); see also MacKenzie v. Robbins, 248 F.Supp. 496, 501 (D.Me.1965) (stating that “all of the cases” found by the court “have held that mere acquiescence in the entry to private living quarters by police officers acting under color of their office is insufficient to constitute the type of consent” required to validate a search) cited with approval in Bumper, 391 U.S. at 549 n. 13, 88 S.Ct. 1788; United States v. Marra, 40 F.2d 271, 271 (W.D.N.Y.1930) (holding that circumstances did not validate search based on consent when probation officers said they “were going to inspect the premises” and *899defendant replied, “All right”) cited with approval in Bumper, 391 U.S. at 549 n. 13, 88 S.Ct. 1788.
In sum, the government never argued— in the suppression hearing, in its brief on appeal to this court, or in its opposition to rehearing the first opinion en banc — that Reavis consented to the warrantless FBI-directed search of Ziegler’s office. Nor did the government put on any evidence that Reavis had given such consent. The government declined to put Reavis on the stand. It put Kennedy on the stand, but Kennedy testified that Softich and Schneider had not given consent and did not even hint that Reavis had given consent. See United States v. Shaibu, 920 F.2d 1423, 1426 (9th Cir.1990) (as amended) (consent is “not lightly to be inferred, and the government always bears the burden of proof to establish the existence of effective consent”) (citations and internal quotation marks omitted); see also Illinois v. Rodriguez, 497 U.S. 177, 181, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990) (stating that the government also bears the burden of establishing common authority to consent).
B. No Authority to Give Consent
Not only did the government fail to argue or put on evidence that Reavis consented to the search. There is also overwhelming evidence that Reavis had no authority to provide consent on behalf of Frontline. Everyone involved in the search knew that the Frontline’s owner, Kittler, never would consent — and never did consent — to an FBI search. Kittler worked at the same location with his employees and was readily available, but Kennedy, Softich, Schneider and Reavis deliberately chose not to involve him because they knew that he would object to any search.
Agent Kennedy was aware from the beginning that Kittler would not consent to a search. Softich requested that his first meeting with Kennedy take place over the lunch hour “so as not to raise any questions at work.” Kennedy admitted that both Softich and Schneider “felt their jobs would be in jeopardy if Mr. Kittler knew they were cooperating with the FBI.” Kennedy also admitted to telling Softich and Schneider not to discuss the matter within the company.
Kittler did not, as the panel states, merely “object[ ] (in some vague sense) to cooperation with the authorities.” Ziegler, 474 F.3d at 1192 n. 10. Rather, Kittler objected strenuously, and then acted vengefully against those who had cooperated with Kennedy. Kittler responded to the search by relieving Schneider of his job duties because of his unhappiness with Schneider’s cooperation with the FBI. Miller, the receptionist, left the company because Kittler made her job so unpleasant after the episode. Years after the investigation, Kittler kicked and spat on Reavis because of Reavis’s cooperation with the FBI.
Conclusion
In its second opinion in this case, the panel affirms the district court based on an argument never made and never factually supported by the government. The panel both fails to apply the correct law and fails to describe accurately the facts in the record. I dissent from this court’s decision not to rehear this case en banc.