Vreeken v. DavisVreeken v. Davis
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Aftеr examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See
This appeal arises from an action in which the plaintiffs, Fred Vreeken and Kurt Vreeken, sought injunctive relief and damages from Internal Revenue Service agent Kent Davis, post office superintendent Lyle Stocks, and five John Doe defend
The issues on appeal are (1) whether the plaintiffs’ appeal was timely filed to permit appellate treatment of issues decided by the summary judgment; (2) whether the district court erred in granting summary judgment for the defendants; and (3) whether the district court properly denied the plaintiffs’ motion for leave to file a second amended complaint.
I
We first address the question of whether the plaintiffs’ appeal was timely as to the district court’s order of summary judgment. A party must file its notice of appeal within 30 days after entry of the judgment or order from which it appeals.
The defendants contend that the March 28 motion was a motion for relief from judgment pursuant to
We conclude, however, that the plaintiffs’ motion of March 23 is properly construed as a mоtion to alter or amend the judgment pursuant to
II
Government officials imposed a mail cover on the plaintiffs’ mail on October 6,1981. The mail cover authorization required defendant Stocks to record the following information appearing on the outside cover of the plaintiffs’ incoming first-class mail: the addressee’s name, the sender’s name, the sender’s return address, the city and date of postmark, and the class of mail. The plaintiffs’ contentions are not entirely сlear but apparently are that the district court erred in granting summary judgment for the defendants for three reasons: (1) government officials failed to comply with pertinent postal regulations in securing the mail cover; (2) a genuine issue of material facts exists as to whether the defendants and other individuals complied with the relevant postal regulations in conducting the mail cover; and (3) in any event, the mail cover violated the plaintiffs’ Fourth Amendment rights.
The postal regulation governing mail covers permits the Postal Inspector in Charge or his designee to order a mail cover when
“written request is received from any law enforcement agency of the Federal, State, or local governments, wherein the requesting authority stipulates and specifies the reasonable grounds that exist which demonstrate the mail cover would aid in the location of a fugitive, or that it would assist in obtaining information concerning the commission or attempted commission of a crime.”2
“Fred and Kurt Vreeken are currently under investigation for allegedly providing fraudulent tax losses to hundreds of investors during 1977,1978,1979 and 1980 in violation of Title 26, Internal Revenue Code, Section 7206(2). The violation is a felony which provides for a maximum fine of $5,000 or imprisonment for not more than three (3) years, or both, together with costs of prosecution. Fraud by Wire and Mail Fraud may also be charged in the case ....
“Because the Vreekens deal with promoters or finders all over the country, it is necessary to employ a mail cover to identify these people along with the investors involved in the alleged scheme.”
R. I, 85-86. McClanahan’s designee, Assistant Postal Inspector in Charge Mclntire, authorized the mail cover on October 6, 1981. Later, the mail cover was extended to two other post office boxes used by the plaintiffs.
The plaintiffs contend that the letter failed to specify reasonable grounds demonstrating that the mail cover was necessary to obtain information regarding the commission of a crime, as required by
In the alternative, the plaintiffs contend that summary judgment was improper because genuine issues of material fact exist regarding postal officials’ compliance with the postal regulatiоns regarding their handling of the mail cover. Apparently, the plaintiffs assert that it is unclear whether defendant Stocks refrained from examining the contents of first-class mail, as contemplated by
The party moving for summary judgment has the burden of establishing the absence of any genuine issue of material fact. Adickes v. S.H. Kress & Co., 398 U.S. 144,157,90 S.Ct. 1598,1608, 26 L.Ed.2d 142 (1970). When the moving party provides affidavits or other evidence that appear to meet this burdеn, the adverse party may not rest upon the mere allegations in his pleadings. Rather, he must submit affidavits or other evidence setting forth specific facts showing that there is a genuine issue for trial. Id. at 160;
Finally, the plaintiffs assert that the mail covеr violated their Fourth Amendment rights. A Fourth Amendment “search” occurs only when the government intrudes upon an individual’s reasonable expectations of privacy. Katz v. United States, 389 U.S. 347, 360, 88 S.Ct. 507, 516,19 L.Ed. 2d 576 (1967) (Harlan, J., concurring). Although the Supreme Court has not addressed directly the issue of the constitutionality of mail cоvers, its decision in Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979), compels us to conclude that the mail cover does not violate the plaintiffs’ Fourth Amendment rights. In Smith the issue was whether the use of a pen register constitutes a “search” within the meaning of the Fourth Amendment. A pen register is a mechanical devicе that records the numbers dialed on a telephone but does not monitor the contents of the oral communications. The Court identified a two-fold inquiry for determining whether a person has a reasonable expectation of privacy within the meaning of Katz. First, the individuаl, by his conduct, must exhibit an actual or subjective expectation of privacy. Second, the individual’s subjective expectation of privacy must be one that is objectively reasonable or justifiable under the circumstances. 442 U.S. at 740, 99 S.Ct. at 2580. Applying these tests to the facts, the Supreme Court concluded that an individual has no reasonable expectation of privacy regarding the numbers he dials on his telephone. It emphasized that a telephone user typically knows that he must convey telephone numbers to the phоne company when he uses a telephone. Thus, it is unlikely that a user would harbor a subjective expectation that the numbers dialed would remain private. Moreover, even if the subject harbors an actual expectation of privacy, that expectation is not objectively reasonable. An individual “has no legitimate expectation of privacy in information he voluntarily turns over to third parties.” Id. at 743-44, 99 S.Ct. at 2581-82. Thus, the Court concluded that the use of a pen register does not constitute a “search” for the purposes of the Fourth Amendment.
In our view, the mail cover at issue in the instant case is indistinguishable in any important respect from the pen register at
Ill
Finally, we address the issue whether the district cоurt erred when it denied the plaintiffs’ motion for leave to file a second amended complaint. On appeal we must apply an abuse of discretion standard of review to this issue. R.E.B., Inc. v. Ralston Purina Co., 525 F.2d 749, 751 (10th Cir.1975). We have examined the written motion, its supporting argument and the remarks made by the plaintiffs’ counsel at the hearing. The plaintiffs do not contradict any significant statement in the defendants’ recital of uncontested facts. They have taken the depositions of defendants Davis and Stocks, postal employee Gordon Woffinder, and anothеr person, Neal Colledge. They present no new legal theories or convincing argument that further discovery could help their case. The district court did not abuse its discretion by denying leave to amend. See O’Bryan v. Chandler, 352 F.2d 987, 990 (10th Cir.1965), cert. denied, 384 U.S. 926, 86 S.Ct. 1444, 16 L.Ed.2d 530 (1966).
AFFIRMED.
Notes
. Postal regulations contain the following definition of a mail сover:
“ ‘Mail cover’ is the process by which a record is made of any data appearing on the outside cover of any class of mail matter, including checking the contents of any second-, third-, or fourth-class mail as now
sanctioned by law, in order to obtаin information in the interest of (i) protecting the national security, (ii) locating a fugitive, or (iii) obtaining evidence of commission or attempted commission of a crime.”
. Postal regulations define crime as “any commission of an act or the attempted commission of an act that is punishable by law by imprisonment for a term exceeding 1 year.”