900 F.2d 1234 (8th Cir. 1990), 89-5471, Wabun-Inini v. Sessions

Docket Nº:89-5471, 89-5521.
Citation:900 F.2d 1234
Party Name:WABUN-ININI, aka Vernon Bellecourt, Appellant, v. William SESSIONS, Director, Federal Bureau of Investigation, Washington, D.C.; Jeffrey J. Jamar, Agent-in-Charge, Minneapolis Office of the FBI, Minneapolis, Minnesota; Peter Cunningham, Special Agent, Minneapolis Office of the FBI, Minneapolis, Minnesota; William Clifford, Special Agent, Minneapoli
Case Date:April 09, 1990
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 1234

900 F.2d 1234 (8th Cir. 1990)

WABUN-ININI, aka Vernon Bellecourt, Appellant,

v.

William SESSIONS, Director, Federal Bureau of Investigation,

Washington, D.C.; Jeffrey J. Jamar, Agent-in-Charge,

Minneapolis Office of the FBI, Minneapolis, Minnesota;

Peter Cunningham, Special Agent, Minneapolis Office of the

FBI, Minneapolis, Minnesota; William Clifford, Special

Agent, Minneapolis Office of the FBI, Minneapolis,

Minnesota; John Doe; Jane Doe, and other presently unknown

officials of the United States Government, Appellees.

WABUN-ININI, aka Vernon Bellecourt, Appellee,

v.

William SESSIONS, Director, Federal Bureau of Investigation,

Washington, D.C.; Jeffrey J. Jamar, Agent-in-Charge,

Minneapolis Office of the FBI, Minneapolis, Minnesota;

Peter Cunningham, Special Agent, Minneapolis Office of the

FBI, Minneapolis, Minnesota; William Clifford, Special

Agent, Minneapolis Office of the FBI, Minneapolis,

Minnesota; John Doe; Jane Doe, and other presently unknown

officials of the United States Government, Appellants.

Nos. 89-5471, 89-5521.

United States Court of Appeals, Eighth Circuit

April 9, 1990

        Submitted Nov. 13, 1989.

        Rehearing and Rehearing En Banc Denied June 1, 1990.

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        C. Peter Erlinder, St. Paul, Minn., for appellant.

        Neil H. Koslowe, Washington, D.C., for appellees.

        Before JOHN R. GIBSON, FAGG and BOWMAN, Circuit Judges.

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        JOHN R. GIBSON, Circuit Judge.

        Appellant Wabun-Inini left two rolls of color film at a One Hour Photo Store for processing. An FBI agent entered the store soon thereafter, ordered an extra set of prints of Wabun-Inini's photographs, and returned later and purchased them. The primary issue in this appeal is whether the Fourth Amendment prohibits the FBI from executing a warrantless purchase, and thus a seizure, of Wabun-Inini's photographs. Wabun-Inini also raises issues concerning the First Amendment, the Privacy Act of 1974, codified at 5 U.S.C. Sec. 552a (1988), and the FBI's ex parte, in camera submissions to the district court. The district court 1 denied injunctive relief to Wabun-Inini on both his Fourth Amendment claim, based on the narrow ground that the finished photographs were exposed to public view during processing, and on his Privacy Act claim. We affirm.

        The parties have stipulated to most of the facts. On March 22, 1989, Wabun-Inini brought two rolls of color film to the F-Stop One Hour Photo Store in Minneapolis, Minnesota for processing. Wabun-Inini frequently had film developed at this F-Stop, which was located within an enclosed shopping mall. An F-Stop employee told Wabun-Inini to return later in the day to pick up the finished photographs. Wabun-Inini acknowledges that when he left his film at the F-Stop, he anticipated that F-Stop employees might inspect the negatives and prints as necessary to develop and print the film properly. He contends, however, that he did not expect his prints to be shown to others, that he did not authorize F-Stop employees to disclose them to others, and that he was not aware that his photographs might be visible from a public area during processing.

        About twenty-five minutes after Wabun-Inini left the F-Stop, FBI Special Agent Peter Cunningham entered the store and asked to speak with the manager. An F-Stop employee informed Cunningham that the manager was not in the store. Cunningham identified himself to the employee as an FBI Special Agent, requested to come behind the counter to speak with the employee, and then asked if he could purchase a set of prints from the film Wabun-Inini had left to be developed. The employee took Cunningham behind the counter to a processing machine and located the negatives developed from the film left by Wabun-Inini. The employee then escorted Cunningham back to the manager's office and gave him the negatives. When Cunningham entered the store, he did not know which set of negatives were Wabun-Inini's nor did know what specific images were on the negatives. Also, Cunningham had not been in contact with F-Stop employees concerning Wabun-Inini's photographs before this incident.

        While Cunningham was examining the negatives, the employee called in the F-Stop night manager. Cunningham identified himself to her as an FBI agent and asked if he could obtain a set of prints from Wabun-Inini's negatives. The night manager agreed. Cunningham returned to the store later and purchased a set of prints for nineteen cents per print.

        The parties further stipulated that, at the time of the incident in question, the F-Stop used a Noritsu System II model color photo processing system for developing film and making prints from negatives. This system was located behind a customer counter. The developing machines were behind the counter to the customers' left, and the printing machines were behind the counter to the customers' right.

        After the negatives were processed through the Noritsu system, they were hung on a rack which was in plain view from the customer counter. A printer technician passed the negatives under a light on the Noritsu film processing machine to inspect each negative in order to make any necessary adjustments in the printing process. After the negatives were examined, they were hung on a second rack. This process occurred approximately

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ten to twelve feet from the customer counter and the images on the negatives were not recognizable from the counter.

        The negatives were then placed in the Noritsu machine for printing. The printed photographs emerged in roll form from the Noritsu machine, and each print was conveyed past a clear glass window for ten to fifteen seconds. They could have been displayed upside down, right side up, or rotated 90 degrees left or right. 2 Customers and the general public could have seen the photographs through a clear glass window located in an area to the right of the customer counter. Customer prints were not exposed to view from any public area except for the ten to fifteen seconds in the viewing window. A pillar separated the viewing window from the service counter, and a free standing sign was frequently placed in the area of the counter, pillar, and window, making viewing the photo-prints more difficult. There were no signs indicating the existence of a viewing area or that prints could be viewed in the Noritsu machine. Also, store employees frequently covered the viewing window for privacy when the subject matter of the photographs was particularly intimate or sensitive.

        On the date that Wabun-Inini brought his film in for processing, the Noritsu printing machine with the viewing window was located 2 1/2 feet from the area to the right of the pillar. This arrangement of the photo processing system, which made most film processing functions within public view, was done intentionally. The F-Stop wanted customers to see that film and prints were processed on site and that processing could be completed expeditiously. The F-Stop, however, did not specifically advertise that processing was completed on site.

        Thus, each print made from the film Wabun-Inini gave the F-Stop was conveyed past the Noritsu clear glass window where it could have been observed by the public from a distance of approximately 2 1/2 feet. At the time Cunningham entered the store and inquired about Wabun-Inini's film, the film processing had not yet been completed, and so neither the F-Stop employees nor the general public, including Cunningham, had viewed his negatives or photographs.

        Upon Wabun-Inini's return to the F-Stop, store employees informed him that they had provided the FBI with prints of his film upon request by the FBI. On May 12, 1989, Wabun-Inini filed a complaint seeking a declaration that the Government's seizure of the prints was unlawful and requesting injunctive relief. The district court granted Wabun-Inini's motion for a preliminary injunction.

        The Government then submitted additional evidence, however, including evidence reviewed ex parte and in camera, and on August 18, 1989, the court dissolved the preliminary injunction and granted a partial summary judgment 3 in favor of the Government. The court found that Wabun-Inini had no reasonable expectation of privacy in the prints because they were exposed to public view during processing. It emphasized that its holding was based on the narrow ground that the particular film processing equipment in use resulted in public exposure of the developed prints. The court directed that the preliminary injunction would remain in force for thirty days and throughout appeal if Wabun-Inini filed a notice of appeal within thirty days.

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Wabun-Inini filed his notice of appeal on September 11, 1989, within the thirty-day period.

        The FBI subsequently filed a motion asking this court to suspend the injunction pending appeal. On November 13, 1989, this court heard argument on the motion as well as on the merits of the underlying suit. On November 16, we set aside the injunction pending appeal entered by the district court. We now address the merits of Wabun-Inini's action against the Government, in which he argues that the district court erred in: (1) granting the Government's motion for summary judgment; (2) finding that the warrantless seizure of the photographs did not violate the Fourth Amendment; (3) holding that the First Amendment and the Privacy Act did not entitle him to injunctive relief; and (4) reviewing the Government's ex parte, in camera submissions without requiring a detailed, public record supporting such submissions.

       I.

        Wabun-Inini argues that the district court erred in granting the Government's motion for summary judgment because genuine issues of material fact existed, and because the court failed to...

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