State University Employee's Search of Safe Held Not Government Action
In a decision that has far-reaching consequences for school searches, the Tenth Circuit held that a state employee's search of a safe "out of curiosity" did not implicate Fourth Amendment concerns because the state employee did not intend to look for evidence of a crime. United States v. Soderstrand, 04-6024 (June 16, 2005). The state employee was a "clerical employee" at a public university.
In the same opinion, the Tenth Circuit also approved a search warrant for pornographic images of children, despite no allegation in the search warrant that the images were believed or known to be lascivious. Citing, Illinois v. Gates, 462 U.S. 213 (1983)(probable cause showing in affidavit is less than necessary to convict).
However, the more important aspect of the opinion appears to be how the Tenth Circuit disposed of the defendant's challenge to a government official's search of a personal safe without a search warrant.
The defendant was head of the Electrical Engineering Department at Oklahoma State University. A clerical employee in the same department found a gray, fireproof safe in a department supply room. The clerical employee contended she was unaware of the identity of the owner. From the opinion, it did not appear that the safe was in a private or secure location. The safe was locked, but the clerical employee contended the key was in the lock.
The clerical employee opened the safe, ostensibly to determine who owned it. Inside the safe were "three compact disks, five Polaroid photos, twenty-seven 35mm photos, four personal letters and sixty-three 3.5mm computer diskettes. There were letters addressed to "Michael" and "Dr. Michael Soderstrand," and other letters were signed as "M. Soderstrand." There were also photos of Dr. Soderstrand. The Tenth Circuit failed to comment that the clerical employee undoubtedly knew the identity of the owner of the safe at this point.
Unhappy with merely knowing the identity of the owner, the state employee decided to snoop some more. The clerical employee was curious, so she decided to view one of the good doctor's CD's on her office computer. When she looked, she found "an image that appeared to be several nude Asian children about 10-12 years old." The employee reported the discovery to the dean, who in turn called in the police. The campus cops seized the safe and put it in their safe for - safekeeping. The cops secured a warrant and busted the head of the Electrical Engineering Department (in between breaking up beer parties and combating hooliganism on campus).
The Tenth Circuit casted the state-paid employee, acting on school grounds as a private, curious citizen:
To determine whether a private person's search becomes a Government search, the court examines "(1) whether the Government knew of and acquiesced in the intrusive conduct, and (2) whether the person searching intended to assist law enforcement efforts or to further his [or her] own ends." United States v. Souza, 223 F.3d 1197, 1201 (10th Cir. 2000). Dr. Soderstrand does not contend that law enforcement officers coerced, dominated or directed Al-Harake, or that she otherwise conducted her search pursuant to any law enforcement or other governmental objective. Rather, as he admits, "Al-Harake simply became curious about the safe and its contents."
Am I the only one who noticed that her position as an employee of a public university, acting within her work area at the public university, and using her governmennt owned computer to conduct a search of a private CD, combine to give her the appearance of a state actor and not a private citzen? More to the point, why do we need to determine whether she was coerced by police when she plays on the same team? In sum, a poorly reasoned decision characterized by "conspicuous ignorance" of the obvious. Classic Tenth Circuit reasoning.
Let's review, because I am appalled and tired of reading incorrect information regarding this case and the "search and seizure" issue. I was fired from Oklahoma State University for disclosing evidence of a child pornographer, "Dr. Michael Soderstrand".
[In the same opinion, the Tenth Circuit also approved a search warrant for pornographic images of children, despite no allegation in the search warrant that the images were believed or known to be lascivious. Citing, Illinois v. Gates, 462 U.S. 213 (1983)(probable cause showing in affidavit is less than necessary to convict).] "During my interviw with the OSU Detective regarding the initiation of the search warrant, I did, undoubtedly inform the detective of the many lascivious and horrifying photos in this safe. If this information was not included in the warrant, it was either purposely excluded on omitted in error."
[A clerical employee in the same department found a gray, fireproof safe in a department supply room. The clerical employee contended she was unaware of the identity of the owner. From the opinion, it did not appear that the safe was in a private or secure location. The safe was locked, but the clerical employee contended the key was in the lock.] "This information is for the most part correct, but, I do adamentlly confirm, the safe was in my "personal work space" and left unattended, with no outside markings for at least a year or more. The key was inside the lock, and I opened the safe for eventual usage in the ECEN department."
[The clerical employee opened the safe, ostensibly to determine who owned it. Inside the safe were "three compact disks, five Polaroid photos, twenty-seven 35mm photos, four personal letters and sixty-three 3.5mm computer diskettes. There were letters addressed to "Michael" and "Dr. Michael Soderstrand," and other letters were signed as "M. Soderstrand." There were also photos of Dr. Soderstrand. The Tenth Circuit failed to comment that the clerical employee undoubtedly knew the identity of the owner of the safe at this point.] "This is the really funny part to me, as a neglected state employee, "I know what I found in the safe upon opening, and it wasn't as stated in the above paragraph." I was never informed of what was eventually found in the safe, so I can only assume, Dr. Soderstrand or someone else was in the safe after I had originally viewed the contents?"
"It is correct at this point, I did know the owner of the safe, kind of,Dr. Soderstrand never admitted to owning the safe when previously asked. I personally did not know how to proceed with what was in front of me and I looked for OSU policy on my computer to guide me, but there was none. I could tell by the evidence in front of me, this was definitly some kind of pornography!"
[Unhappy with merely knowing the identity of the owner, the state employee decided to snoop some more. The clerical employee was curious, so she decided to view one of the good doctor's CD's on her office computer. When she looked, she found "an image that appeared to be several nude Asian children about 10-12 years old." The employee reported the discovery to the dean, who in turn called in the police. The campus cops seized the safe and put it in their safe for - safekeeping. The cops secured a warrant and busted the head of the Electrical Engineering Department (in between breaking up beer parties and combating hooliganism on campus).] There again, I knew it was pornography once I opened the safe! I did not view the CD on my office computer! I did not immediately report my information to Dean Reid! What would or How would you have responded to location of your boss' perverted activity? I was fired as a result of disclosing this information, because I had no protection under oklahoma state university policy. I am glad he is in prison, but I went through his trial on campus for eighteen months while he received paid administrative leave of close to $300,000.00!
If you would like to discuss the rest of this case, per the truth of what corresponded, please ask me, as I am the official "OSU Fired Whistleblower" Doris Al-Harake
Sister of Al-Harake......Get Your Facts Straight! Al-Harake did NOT view CD's on work computer, but took them home & viewed them on her home computer. This info REALLY needs to be cleared up....check the court documents. Thanks
"...the state employee decided to snoop some more. The clerical employee was curious"
The aforementioned employee was not "snooping". In the course of her official duties, she discovered evidence of a serious crime and had the courage to report it.
"so she decided to view one of the good doctor's CDs"
Your choice of the words "good doctor" is appalling. Please read a transcript of the federal judge's official decision to see that this is a most inappropriate term.
The judge also had a few choice words to say to some of Soderstrand's friends who were supporting him.
Soderstrand plea-bargained for a three year term in federal prison and a lifelong listing as a pedophile. Without the plea-bargain, he would have received 11 years in prison.
I agree with the judge's statement that child pornography is a horrendous crime and am disgusted by those who would seek to excuse it.
I also am saddened by an apparent double standard at the university. I know of an employee who was fired the next day after a single image of adult pornography was found on his computer. However, that employee was not a professor. It took 18 months during which time Soderstand drew $300,000.00 salary before the university officially terminated him.