UNITED STATES of America, Plaintiff-Appellant, v. Alphonso NERBER; Eduardo Alvarez; Alberto Betancourt; Ramon Betancourt-Rodriguez, Defendants-Appellees.
No. 99-30161.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted March 10, 2000. Filed Aug. 24, 2000.
222 F.3d 1143
The fairness and integrity of criminal trials are at stake if we allow police officers to make generalizations about racial and ethnic groups in order to obtain convictions. People cannot be tried on the basis of their ethnic backgrounds or national origin. We agree with the D.C. Circuit‘s decision in Doe that in some instances, such as eyewitness identification, a defendant‘s race or ethnicity is relevant and not prejudicial. That was not the case here. Therefore, in order to protect Cabrera and Mulgado‘s due process and equal protection rights to a fair trial, we are compelled to reverse their convictions and remand.
REVERSED AND REMANDED.
Annette L. Hayes, Assistant United States Attorney, Office of the United States Attorney, Seattle, WA, for appellant.
Paula Semmes Deutsch, Assistant Federal Public Defender, Federal Public Defender‘s Office, Robert Goldsmith, Jon Zulauf, Ken Kanev, Seattle, WA, for appellees.
Before: JAMES R. BROWNING, FLETCHER, and GOULD, Circuit Judges.
Opinion by Judge JAMES R. BROWNING; Dissent by Judge GOULD.
JAMES R. BROWNING, Circuit Judge:
The government appeals an order of the district court suppressing evidence derived from video surveillance of a hotel room. For the reasons stated below, we affirm.
On December 24, 1998, defendants Nerber and Betancourt-Rodriguez went to La Quinta Inn in Seattle to conduct a narcotics transaction with confidential informants. The informants brought defendants to Room 303. The FBI and the King County Police had rented the room for the operation and installed a hidden video camera without first obtaining a warrant. The parties entered the room at 9:54 a.m., the informants gave defendants one kilogram of sample cocaine, and the defendants briefly “flashed” money in a briefcase. The informants left the room at 10:00 a.m., telling defendants they would return to deliver 24 more kilograms of cocaine. They did not return, however, because they believed defendants intended to rob them. For three hours thereafter, law enforcement agents used the surveillance equipment to monitor defendants’ activities in the hotel room. They observed the other two defendants—Betancourt and Alvarez—enter the room, and watched as the defendants brandished weapons and sampled cocaine. All four defendants left the hotel at approximately 1:00 p.m. and were arrested shortly thereafter.
A grand jury returned an indictment charging all four defendants with narcotics offenses and two with possessing a firearm during the commission of a narcotics offense. Defendants moved to suppress the evidence derived from the video surveillance. The district court originally denied the motion, and later denied a motion for reconsideration, on the theory that defendants had “no legitimate expectation of privacy in a motel room used purely for a drug transaction, for a short period of time.” However, the court granted a second motion for reconsideration and suppressed “all evidence obtained from the portion of the video surveillance which occurred after the confidential informants left Room 303....” The court ruled that although the video surveillance which took place in the presence of the informants was admissible based on their consent, defendants nonetheless “had a reasonable expectation that they would not be subject to video surveillance while in Room 303 after the confidential informants left the room.” The government appeals this ruling.
II
The Fourth Amendment protects people rather than places, but “the extent to which the Fourth Amendment protects people may depend upon where those people are.” Minnesota v. Carter, 525 U.S. 83, 88, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998). To invoke the protections of the Fourth Amendment, a person must show he had a “legitimate expectation of privacy.” To establish a “legitimate” expectation of privacy, he must demonstrate a subjective expectation that his activities would be private, and he must show that his expectation was “one that society is prepared to recognize as reasonable.” Bond v. United States, 529 U.S. 334, 338, 120 S.Ct. 1462, 1465, 146 L.Ed.2d 365 (2000) (quoting Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979)); see also Rakas v. Illinois, 439 U.S. 128, 143-44, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978).1
We review for clear error the district court‘s underlying factual findings, and we review de novo the lawfulness of a search and seizure. See United States v. Hudson, 100 F.3d 1409, 1414 (9th Cir. 1996). Whether a citizen‘s expectation of privacy was objectively reasonable is a question of law reviewed de novo. See United States v. Fultz, 146 F.3d 1102, 1104 (9th Cir. 1998).
In finding for defendants, the district court distinguished Minnesota v. Carter, 525 U.S. 83, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998), in which the Supreme Court held that the defendants had no legitimate expectation of privacy in another person‘s apartment which they entered for a brief period to conduct a narcotics transaction. The district court held that Carter was not controlling because the governmental intrusion in this case (the use of a hidden surveillance camera) was far more egregious than the intrusion in Carter (visual observation through a ground-floor apartment window).2
The government responds that the severity of the intrusion is irrelevant to whether a defendant has a legitimate expectation of privacy in a particular place. Once the severity of the intrusion is removed from the equation, the government argues, this case is indistinguishable from Carter, which compels a ruling that the defendants may not invoke the protection of the Fourth Amendment.
We reject the government‘s broad argument that a court may never consider the severity of the governmental intrusion in determining whether a citizen has a legitimate expectation of privacy. To adopt the government‘s position would be to ignore a substantial body of Supreme Court and appellate case law, including the recent Supreme Court decision in Bond v. United States, 529 U.S. 334, 120 S.Ct. 1462, 146 L.Ed.2d 365 (2000). Furthermore, after considering the totality of the circumstances of this case, including but not limited to the nature of the governmental intrusion, we conclude that the defendants had a legitimate expectation to be free from secret video surveillance once the informants left the room.
A.
In Carter, a police officer investigating a tip from a confidential informant looked into the window of a ground-floor apartment through a gap in the blinds and observed people putting white powder into bags. 525 U.S. at 85, 119 S.Ct. 469. The defendants, who did not live in the apartment but had come to engage in the narcotics transaction, moved to suppress the evidence derived from the officer‘s observations. The Court ruled they could not invoke the Fourth Amendment:
If we regard the overnight guest ... as typifying those who may claim the protection of the Fourth Amendment in the home of another, and one merely “legitimately on the premises” as typifying those who may not do so, the present case is obviously somewhere in between. But the purely commercial nature of the transaction engaged in here, the relatively short period of time on the premises, and the lack of any previous connection between respondents and the householder, all lead us to conclude that respondents’ situation is closer to that of one simply permitted on the premises. We therefore hold that any search which may have occurred did not violate their Fourth Amendment rights.
Id. at 91, 119 S.Ct. 469. The Court went on to state that because the non-resident defendants had no legitimate expectation of privacy in the apartment, there was no need to decide whether the officer‘s observations constituted a “search” within the meaning of the Fourth Amendment. See id.
The government urges us to read Carter as holding that when a court assesses the
This principle was first articulated in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), which gave rise to the “legitimate expectation of privacy” requirement. In Katz, the Supreme Court suppressed evidence of the defendant‘s end of telephone conversations overheard by FBI agents who had attached an electronic listening device to the outside of a public phone booth:
[T]he Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. . . . But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected. . . . The Government stresses the fact that the telephone booth from which the petitioner made his calls was constructed partly of glass, so that he was as visible after he entered it as he would have been had he remained outside. But what he sought to exclude when he entered the booth was not the intruding eye—it was the uninvited ear. He did not shed his right to do so simply because he made his calls from a place where he might be seen.
Katz, 389 U.S. at 351-52, 88 S.Ct. 507. Thus, a person in a glass phone booth had a legitimate expectation that his phone conversation would not be intercepted, even though he could not legitimately expect that his activities within the booth would not be observed.
The Court applied the same principle in United States v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983), in which it held that a citizen has no legitimate expectation to be free from having his luggage subjected to a “canine sniff” by a narcotics detection dog. The Court recognized that “a person possesses a privacy interest in luggage that is protected by the Fourth Amendment,” but held that because a canine sniff “is much less intrusive than a typical search,” a citizen may not invoke the protections of the Fourth Amendment to suppress narcotics discovered by that means. Id. at 707, 103 S.Ct. 2637.
In Bond, the Court reaffirmed the general principle that the nature of the intrusion by the government can have an effect on whether a citizen has a legitimate expectation of privacy. There, a Border Patrol agent boarded a bus traveling between California and Arkansas, checked the immigration status of its passengers, randomly squeezed the defendant‘s canvas bag that was stored in the overhead compartment, and discovered a brick of methamphetamine. Bond, 120 S.Ct. at 1463-64. The Court held that the agent‘s warrantless manipulation of the bag violated the Fourth Amendment, because the defendant had a reasonable expectation that he would not be subjected to such a severe intrusion into his privacy. Id. at 1465. The Court said:
[T]he Government asserts that by exposing his bag to the public, petitioner lost a reasonable expectation that his bag would not be physically manipulated. The Government relies on our decisions in California v. Ciraolo, [476 U.S. 207, 106 S.Ct. 1809 (1986)], and Florida v. Riley, 488 U.S. 445, 109 S.Ct. 693, 102 L.Ed.2d 835 (1989), for the proposition that matters open to public observation are not protected by the Fourth Amendment. In Ciraolo, we held that police observation of a backyard from a plane flying at an altitude of 1,000 feet did not violate a reasonable expectation of privacy. Similarly, in Riley, we relied on Ciraolo to hold that police observation of a greenhouse in a home‘s curtilage from
a helicopter passing at an altitude of 400 feet did not violate the Fourth Amendment. . . . But Ciraolo and Riley are different from this case because they involved only visual, as opposed to tactile, observation. Physically invasive inspection is simply more intrusive than purely visual inspection.
Bond, 120 S.Ct. at 1464 (emphasis added).
This principle has been applied in several Court of Appeals decisions as well. In United States v. Taketa, 923 F.2d 665 (9th Cir. 1991), government agents, who suspected DEA agent O‘Brien of wrongdoing, physically searched his office and installed a hidden surveillance camera. The camera caught O‘Brien and a co-worker, Taketa, conducting an illegal wiretapping operation. We ruled that although Taketa did not have “standing” to challenge the physical search of O‘Brien‘s office, he could invoke the Fourth Amendment to suppress the video surveillance of himself:
Here, Taketa has no general privacy interest in O‘Brien‘s office, but he may have an expectation of privacy against being videotaped in it. . . . Persons may create temporary zones of privacy within which they may not be videotaped ... even when that zone is a place they do not own or normally control, and in which they might not be able reasonably to challenge a search at some other time or by some other means.
In United States v. Cuevas-Sanchez, 821 F.2d 248 (5th Cir. 1987), the court ruled that the installation of a surveillance camera on a power pole to videotape activities in a suspect‘s backyard constitutes a “search” within the meaning of the Fourth Amendment. The Fifth Circuit, like the Supreme Court in Bond, distinguished cases involving surveillance of property from the air:
To measure the government‘s intrusion we must consider the expectations of society. Ciraolo teaches us that a flyover by a plane at 1,000 feet does not intrude upon the daily existence of most people; we must now determine whether a camera monitoring all of a person‘s backyard activities does. This type of surveillance provokes an immediate negative visceral reaction: indiscriminate video surveillance raises the spectre of the Orwellian state. Here, unlike in Ciraolo, the government‘s intrusion is not minimal. It is not a one-time overhead flight or a glance over the fence by a passer-by. Here the government placed a video camera that allowed them to record all activity in Cuevas‘s backyard. It does not follow that Ciraolo authorizes any type of surveillance whatever just because one type of minimally-intrusive aerial observation is possible. . . . Cuevas‘s expectation to be free from this type of video surveillance in his backyard is one that society is willing to recognize as reasonable.
Cuevas-Sanchez, 821 F.2d at 251. While Cuevas had no legitimate expectation to be free from occasional “snooping” into his backyard from a passing airplane, he did have a legitimate expectation to be free from constant video surveillance.
The First Circuit also recognized this principle in Vega-Rodriguez v. Puerto Rico Telephone Co., 110 F.3d 174 (1st Cir. 1997), holding that employees of a quasi-public telephone company had no legitimate expectation to be free from videotaping in an “open and undifferentiated work area,” but emphasizing that “[t]he precise extent of an employee‘s expectation of privacy often turns on the nature of an intended intrusion.” Id. at 180 (emphasis added).3 See also State of Indiana v. Thomas, 642 N.E.2d 240, 244 (Ind.Ct.App.1994) (“In determining the reasonableness of a person‘s expectation of privacy on these facts, a correct analysis requires that we also consider ... the degree of intru-
The unmistakable message of these cases is that the legitimacy of a person‘s expectation of privacy may depend on the nature of the intrusion. In assessing defendants’ expectation of privacy under the facts of this case, we must consider the severity of the intrusion to which they were subjected.
B.
The district court did not err in finding that defendants had a subjective expectation not to be videotaped in the hotel room. In addition to closing the door, drawing the blinds, and exercising dominion over the room after the informants left at 10:00 a.m., defendants ingested cocaine and brandished weapons in a way they clearly would not have done had they thought outsiders might see them.
The objective reasonableness of defendants’ privacy expectation presents a closer question. The governmental intrusion was severe. Hidden video surveillance is one of the most intrusive investigative mechanisms available to law enforcement. The sweeping, indiscriminate manner in which video surveillance can intrude upon us, regardless of where we are, dictates that its use be approved only in limited circumstances. As we pointed out in Taketa, the defendant had a reasonable expectation to be free from hidden video surveillance because “the video search was directed straight at him, rather than being a search of property he did not own or control . . . [and] the silent, unblinking lens of the camera was intrusive in a way that no temporary search of the office could have been.” Id. at 677. As Judge Kozinski has stated, “every court considering the issue has noted [that] video surveillance can result in extraordinarily serious intrusions into personal privacy. . . If such intrusions are ever permissible, they must be justified by an extraordinary showing of need.” United States v. Koyomejian, 970 F.2d 536, 551 (9th Cir. 1992) (Kozinski, J., concurring). And, as the Fifth Circuit said, hidden video surveillance invokes images of the “Orwellian state” and is regarded by society as more egregious than other kinds of intrusions. Cuevas-Sanchez, 821 F.2d at 251. See also United States v. Mesa-Rincon, 911 F.2d 1433, 1442 (10th Cir. 1990) (“Because of the invasive nature of video surveillance, the government‘s showing of necessity must be very high to justify its use“); United States v. Torres, 751 F.2d 875, 882 (7th Cir. 1984) (“We think it unarguable that television surveillance is exceedingly intrusive, especially in combination (as here) with audio surveillance, and inherently indiscriminate, and that it could be grossly abused—to eliminate personal pri-
Despite the pause the government‘s use of video surveillance gives us, we agree with the district court that defendants had no reasonable expectation that they would be free from hidden video surveillance while the informants were in the room. Defendants’ privacy expectation was substantially diminished because of where they were. They were not “residents” of the hotel, they were not overnight guests of the occupants, and they were there solely to conduct a business transaction at the invitation of the occupants, with whom they were only minimally acquainted. Moreover, as the parties agree, when the informants were in the room the video surveillance was conducted with their consent, and defendants bore the risk that their activities with the informants were being surveilled. Cf. Hoffa v. United States, 385 U.S. 293, 302, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966). These factors coalesce to support the district court‘s finding that the defendants may not invoke the Fourth Amendment to suppress the evidence gathered during this period.5
We also agree with the district court, however, that once the informants left the room, defendants’ expectation to be free from hidden video surveillance was objectively reasonable. When defendants were left alone, their expectation of privacy increased to the point that the intrusion of a hidden video camera became unacceptable. People feel comfortable saying and doing things alone that they would not say or do in the presence of others. This is clearly true when people are alone in their own home or hotel room, but it is also true to a significant extent when they are in someone else‘s home or hotel room. Even if one cannot expect total privacy while alone in another person‘s hotel room (i.e., a maid might enter, someone might peek through a window, or the host might reenter unannounced), this diminished privacy interest does not eliminate society‘s expectation to be protected from the severe intrusion of having the government monitor private activities through hidden video cameras.6
The fact that society is prepared to accept as reasonable defendants’ expectation to be free from video surveillance while alone in the hotel room is confirmed by the way the law treats audio surveillance in identical circumstances. The government conceded that audio surveillance conducted after the informants departed was inadmissible, because the federal wiretap statute permits warrantless audio surveillance only if one of the participants in the monitored conversation consents.7 Absent such consent, the government must
obtain a warrant and satisfy the statute‘s stringent particularity requirements.8 The limitations in the wiretap statute reflect a societal determination that the threat to liberty inherent in audio surveillance requires that this intrusive investigative technique be permitted only in limited circumstances. See, e.g., United States v. King, 478 F.2d 494, 505 (9th Cir. 1973) (“The Act‘s procedures were designed to protect the general public from the abuse of the awesome power of electronic surveillance“). Although no federal statute regulates the government‘s use of video surveillance, the existence of a law which prohibits the warrantless use of audio surveillance on a citizen alone in another person‘s hotel room is strong evidence that society is not prepared to accept the warrantless use of an even more intrusive investigative tool in the same situation. “Television surveillance is identical in its indiscriminate character to wiretapping and bugging. It is even more invasive of privacy, just as a strip search is more invasive than a pat-down search. . .” Torres, 751 F.2d at 885. See also Mesa-Rincon, 911 F.2d at 1437 (stating that “video surveillance can be vastly more intrusive” than audio surveillance).9 Defendants’ expectation to be free from hidden video surveillance when alone in the hotel room was, therefore, objectively reasonable.10
In sum, although the video surveillance conducted while the informants were present is admissible, defendants had a legitimate expectation to be free from such surveillance after they were left alone in the hotel room. Because the government infringed upon defendants’ expectation of privacy without first obtaining a warrant, the Fourth Amendment requires that the fruits of the surveillance be suppressed.
C.
This holding places a negligible burden on law enforcement. The control-
IV
We uphold the district court‘s finding that defendants had a legitimate expectation to be free from secret video surveillance once the informants left the room.
AFFIRMED
GOULD, Circuit Judge, dissenting:
I respectfully dissent because, in this case with nationwide importance to law enforcement, the majority inexplicably disregards controlling precedent of the United States Supreme Court. First and foremost, this case is clearly, fairly and inescapably controlled by Minnesota v. Carter, 525 U.S. 83, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998). In that case, the United States Supreme Court held that the subjects of warrantless surveillance had no reasonable expectation of privacy in an apartment rented by another person where (a) they were in the apartment only for a short period of time, (b) they were there solely to conduct a commercial transaction (to divide a quantity of cocaine into bags), and (c) they had no previous connection or relationship with the lessee. See id. at 90, 119 S.Ct. 469. Here, the very same factors are present: The surveillance of defendants took place in a hotel room rented by law enforcement agents on behalf of government informants. Defendants were present in the room for only two hours. They were there solely to conduct a “commercial” transaction (a cocaine purchase). And they had no previous connection or personal relationship with the FBI agents and King County Police who had rented the room, nor is there any suggestion that defendants had a substantial personal relationship with the informants. The Supreme Court‘s holding and rationale in Minnesota v. Carter compel the correct conclusion that defendants had no reasonable expectation of privacy.
This conclusion is only reinforced by the fact that defendants were in a room rented and controlled by government agents for use by informants. It was within the informants’ room that defendants were seeking to participate in an illegal drug transaction and ultimately brandished their firearms, albeit at a time when the informants had left the room. See United States v. White, 401 U.S. 745, 749, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971) (“no protection to a wrongdoer‘s misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it.“) (plurality opinion; citation and internal quotation omitted); Hoffa v. United States, 385 U.S. 293, 314, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966) (“The risk of being overheard by an eavesdropper or betrayed by an informer
Those who would hatch illicit plots to traffic in drugs while brandishing firepower should rent their own rooms.