United States v. Slanina

283 F.3d 670, 2002 U.S. App. LEXIS 2611, 2002 WL 247141
CourtCourt of Appeals for the Fifth Circuit
DecidedFebruary 21, 2002
DocketNo. 00-20926
StatusPublished
Cited by29 cases

This text of 283 F.3d 670 (United States v. Slanina) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Slanina, 283 F.3d 670, 2002 U.S. App. LEXIS 2611, 2002 WL 247141 (5th Cir. 2002).

Opinion

BENAVIDES, Circuit Judge:

Defendant Wesley Joseph Slanina (“Sla-nina”) appeals his conviction for possession of child pornography. Slanina argues that the district court should have suppressed evidence obtained from computer equipment in his office and home, as well as his statements to law enforcement.1 For the reasons that follow, we affirm the district court’s denial of Slanina’s motion to suppress.

I.

Slanina worked as the Fire Marshall for Webster, Texas for nine years. As Fire Marshall, his duties included public safety and fire prevention, fire inspections, review of city plans, enforcement of building codes, and handling of arson related calls. Additionally, he served as the Emergency Management Coordinator, concentrating on hurricanes and explosions. Slanina’s immediate supervisor was Fire Chief Bruce Ure (“Ure”), who answered to the Public Safety Director, Mike Keller (“Kel[672]*672ler”). As Public Safety Director, Keller was in charge of both the police and fire departments. Keller had once been Slani-na’s direct supervisor, but in November 1998 Keller and the City Manager, Roger Carlisle (“Carlisle”), decided to hire a full-time fire chief, selecting Ure for that position. Prior to Ure’s arrival, Keller conducted Slanina’s performance evaluations. Although Ure later assumed this responsibility, Keller maintained ultimate authority over Slanina’s employment, including the review of his evaluations and any salary increases.

Prior to June 1999, Slanina’s desk was located in City Hall, where he had a city-provided computer with Internet access but no connection to the city’s intra-office network. When a new fire station was built, however, Slanina moved into his own office in the new station. He brought with him his old computer, but in the new fire station he had no Internet access or network connection. On Friday, June 11, 1999, Ryan Smith (“Smith”), the Management Information Systems Coordinator, began working to install the city network on the fire station computers. At around 5:00 p.m., Smith entered Slanina’s new office with a grand master key and attempted to continue his work. The computer was turned on, but a screen saver was in place. Smith moved the mouse and discovered that the screen saver was protected by a password. To bypass the screen saver password, Smith restarted the computer. When he rebooted, however, Smith found that Slanina had installed a BIOS password. Without this password, Smith was unable to immediately access the computer’s hard drive and could not install the network on Slanina’s computer.2 Smith then contacted Ure to inform him of the problem, and Ure directed Smith to call Slanina and obtain the password.

Slanina had not come to work that Friday, as he was still recuperating from his recent surgery to have his wisdom teeth removed. Smith did not feel comfortable calling Slanina, so Ure himself phoned him. Ure informed Slanina that the computer technician was in his office attempting to install the network, but was unable to do so because of the password. Slanina initially balked, but after Ure indicated that Smith was already working overtime and that the job had to be completed that day, Slanina agreed to call Smith. On the phone with Smith, Slanina sounded nervous and hesitated before giving his password. He wanted to know exactly what Smith would do to his computer, and Smith promised that he was simply installing the network and configuring his computer to the server.

Having received the password, Smith then resumed his work on Slanina’s computer. In order to complete the task, Smith had to walk between Slanina’s office and the server room. Upon returning to the office, Smith unexpectedly encountered Slanina — just ten minutes after they had talked on the phone. Needless to say, Smith was surprised to see Slanina, his jaw still swollen from the surgery. Smith’s suspicions were further aroused when after he left the room, Slanina jumped back on his computer. Finally, when Slanina asked how much longer the network installation process would take, Smith lied, telling him that it would be another “couple of hours.” Smith overstated the time to give himself a chance to see if something was wrong.

When Slanina finally left, Smith saw that the email was running, but minimized [673]*673on the screen. As Smith clicked on the email to close it, he noticed the presence of newsgroups.3 Three months earlier, Keller had told Smith that no one was permitted to have newsgroups on their computers, but the policy had not been disseminated to the fire station employees, including Slanina. Smith expanded the email to look further at the newsgroups and saw three titles suggesting the presence of pornography. It was widely known that employees were not allowed to have pornographic material on their computers. To further investigate, Smith clicked on one newsgroup title, “alt.erotica.xxx.preteen”, and saw that about 25 of the approximately 60 files had been read. At that point, however, he did not view any of the files.

Before contacting Ure, Smith wanted to be certain that Slanina’s computer did have pornographic material on it. He conducted a search for JPEG files, which contain photographic images, and GIF files, which are used for other graphic images. His search located one such file in the Recycle Bin, and Smith restored the file. When he saw that it contained an image of adult pornography, he printed the file and attempted to contact Slanina’s superiors. Neither Ure nor Keller were available, though, and initially Smith was only able to reach the Assistant Fire Chief, Dean Spencer (“Spencer”). By the time Spencer arrived at the station, Smith had spoken to Ure, telling him that he had found child pornography on Slanina’s computer. Ure instructed him to secure the office, so at 7:00 p.m. Smith changed the lock on the door, turned the computer off, and left.

The next day, Smith spoke again to Ure, who by now had contacted Keller at an FBI conference in South Padre Island. Keller told Ure and Smith to remove the computer from the fire station and place it in his office, which was located in the police station. When they went to Slani-na’s office, Smith showed Ure the pornog-raphy4 before removing the computer. On Sunday afternoon, Keller returned from his conference and contacted Smith and Ure, asking them to meet him in his office at 3:00 p.m. Once there, Keller instructed Smith and Ure to get what was needed to view the contents of Slanina’s computer, as well as any zip disk or drive5 in Slanina’s office. Smith and Ure then returned to Slanina’s office and retrieved the monitor and disks before rejoining Keller in his office. Smith showed Keller the picture of adult pornography he had printed on Friday night, and also pointed him to where he had found the image on the computer. With Smith’s assistance, Keller searched material on the computer and zip drive for about two hours, viewing explicit child pornography. Finally, Keller contacted City Manager Carlisle and informed him that child pornography had been discovered on Slanina’s computer. Their discussion addressed the possibility of criminal violations as well as the misuse of city property. Human Resources was then contacted, and Keller indicated to Smith and Ure that they should notify the FBI the next day.

[674]*674At 7:15 a.m. on Monday morning, Ure met Slanina in the parking lot as he arrived at work, milk and doughnuts in hand.

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Cite This Page — Counsel Stack

Bluebook (online)
283 F.3d 670, 2002 U.S. App. LEXIS 2611, 2002 WL 247141, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-slanina-ca5-2002.