911 F.2d 1433 (10th Cir. 1990), 88-2459, United States v. Mesa-Rincon

Docket Nº:88-2459, 88-2539.
Citation:911 F.2d 1433
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Joaquin Emilio MESA-RINCON, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Peter Scott STOPPE, Defendant-Appellant.
Case Date:August 16, 1990
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 1433

911 F.2d 1433 (10th Cir. 1990)

UNITED STATES of America, Plaintiff-Appellee,

v.

Joaquin Emilio MESA-RINCON, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,

v.

Peter Scott STOPPE, Defendant-Appellant.

Nos. 88-2459, 88-2539.

United States Court of Appeals, Tenth Circuit

August 16, 1990

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        Michael L. Harris, Asst. Federal Public Defender (Charles D. Anderson, Federal Public Defender, with him on the brief),

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Kansas City, Kan., for defendant-appellant Mesa-Rincon in 88-2459.

        Robert S. Streepy, Asst. U.S. Atty. (Benjamin L. Burgess, Jr., U.S. Atty., and Leon J. Patton, Asst. U.S. Atty., on the brief), D.Kan., Kansas City, Kan., for plaintiff-appellee in 88-2459.

        Robert M. Haggard, Miami, Fla., submitted on the brief, for defendant-appellant Stoppe in 88-2539.

        Benjamin L. Burgess, Jr., U.S. Atty., and Leon J. Patton, Asst. U.S. Atty., D.Kan., Kansas City, Kan., submitted on the brief, for plaintiff-appellee in 88-2539.

        Before McKAY and BRORBY, Circuit Judges, and BOHANON, 1 Senior District Judge.

        McKAY, Circuit Judge.

        Defendants Mesa-Rincon and Stoppe appeal from a Judgment filed after their conviction under a conditional plea of guilty to counterfeiting. We consolidated the two appeals because they present virtually the same issues for review and the underlying facts are identical.

       I. Facts

        On March 15, 1988, the United States Secret Service applied for an order to authorize the interception of nonverbal conduct via closed circuit television to be installed by surreptitious entry. The application was approved by the district court the same day it was filed. The district court's order authorized the interception and recordation of nonverbal conduct in a specified building in Lenexa, Kansas. The order also authorized the surreptitious entry by Secret Service agents to install and maintain the video surveillance equipment.

        On March 16, 1988, the Secret Service installed a television camera at the authorized location. Government agents later used the television camera to observe and record both defendants counterfeiting United States currency. The agents also observed other activities, including an apparent act of masturbation by an unknown male who had entered the premises in a manner not known to those conducting the surveillance.

        Defendants moved to suppress all video evidence in the district court. The district court denied the suppression motion and subsequently entered a judgment pursuant to defendants' conditional plea of guilty. Defendants reserved the suppression issue for appellate review in their conditional guilty plea. Defendants now challenge the video evidence on three grounds. First, they claim that the district court did not have statutory or inherent power to authorize this type of search. Second, defendants argue that the application for surveillance did not satisfy traditional fourth amendment requirements. Finally, defendants claim that the government failed to follow the limitations for television surveillance required by United States v. Torres, 751 F.2d 875 (7th Cir.1984).

        Defendant Stoppe presents one separate issue dealing with sentencing. Mr. Stoppe argues that his full confession, his implication of his accomplice, and his full cooperation with the government justified a departure below the sentencing guidelines.

       II. Standard of Review

        The district court's power to authorize video surveillance, and the sufficiency of that authorization, present questions of law. The application of the sentencing guidelines is also a question of law. We review questions of law de novo. Bill's Coal Co. v. Board of Public Utilities, 887 F.2d 242, 244 (10th Cir.1989). When using the non-deferential de novo standard of review, the appellate court is not constrained by the district court's conclusions of law. United States v. Ortiz, 804 F.2d 1161, 1164 (10th Cir.1986); State Distrib. Inc. v. Glenmore Distilleries, 738 F.2d 405, 412 (10th Cir.1984). The appellate court must review the record in light of its own independent judgment. See Ocelot Oil Corp. v. Sparrow Indus., 847 F.2d 1458, 1464 (10th Cir.1988).

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       III. The District Court's Power to Authorize Covert

Television Surveillance

        Defendants argue that the district court is without statutory or inherent power to order covert television surveillance. We hold that Fed.R.Crim.P. 41(b) grants authority to the district court to authorize the surveillance that took place in this case. 2

        Rule 41(b) authorizes the issuance of a warrant to:

[S]earch for and seize any (1) property that constitutes evidence of the commission of a criminal offense; or (2) contraband, the fruits of crime, or things otherwise criminally possessed; or (3) property designed or intended for use or which is or has been used as the means of committing a criminal offense; or (4) person for whose arrest there is probable cause, or who is unlawfully restrained.

        Fed.R.Crim.P. 41(b). The Supreme Court has interpreted Rule 41 to authorize the issuance of a search warrant to install a "pen register," a device that records the phone numbers dialed from a telephone. United States v. New York Telephone Co., 434 U.S. 159, 169, 98 S.Ct. 364, 370, 54 L.Ed.2d 376 (1977). The New York Telephone Court stated that Rule 41 "is sufficiently flexible to include within its scope electronic intrusions authorized upon a finding of probable cause." Id. at 169, 98 S.Ct. at 370. See also Katz v. United States, 389 U.S. 347, 355-56 n. 16, 88 S.Ct. 507, 513-14, 19 L.Ed.2d 576 (1967); cf. Osborn v. United States, 385 U.S. 323, 329-31, 87 S.Ct. 429, 432-34, 17 L.Ed.2d 394 (1966). Thus, although the language of Rule 41 concerns conventional searches, the Supreme Court has interpreted the rule to cover "electronic intrusions," including wiretaps. New York Telephone, 434 U.S. at 169, 98 S.Ct. at 370.

        Relying primarily on New York Telephone, two circuit courts have held that Rule 41 authorizes district courts to issue warrants for video surveillance. See United States v. Torres, 751 F.2d 875, 877-78 (7th Cir.1984), cert. denied, 470 U.S. 1087, 105 S.Ct. 1853, 85 L.Ed.2d 150 (1985); United States v. Biasucci, 786 F.2d 504, 509 (2d Cir.1986). We are in agreement with the Seventh Circuit's statement that "[w]e cannot think of any basis on which the rule might be thought sufficiently flexible to authorize a pen register, bug, or wiretap, but not a camera." Torres, 751 F.2d at 877-78. Thus, we conclude that Rule 41(b) provides the district court with authority to issue the order involved in this case.

       IV. Search and Seizure Requirements

        The fourth amendment states that "no Warrants [for searches and seizures] shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." U.S. Const. amend. IV. Thus, the fourth amendment creates two requirements for all search warrants. There must be probable cause supported by an oath or affirmation and a particular description of the place, persons, and things to be searched and seized.

        In many search and seizure areas Congress has specifically defined the probable cause and particularity requirements of the fourth amendment. See, e.g., Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. Secs. 2510-20 (1988); the Foreign Intelligence Surveillance Act, 50 U.S.C. Secs. 1801-11 (1982). The failure of the government to comply with the statutory requirements for intrusive search techniques such as wiretaps and bugs results in suppression of the evidence obtained.

[C]ongress intended to require suppression where there is failure to satisfy any of those statutory requirements that directly and substantially implement the congressional intention to limit the use of intercept procedures to those situations

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clearly calling for the employment of this extraordinary investigative device.

        United States v. Giordano, 416 U.S. 505, 527, 94 S.Ct. 1820, 1832, 40 L.Ed.2d 341 (1974). Unfortunately, Congress has not yet specifically defined the constitutional requirements for video surveillance. Nevertheless, the general fourth amendment requirements are still applicable to video surveillance; and suppression is required when the government fails to follow these requirements.

        Although Congress has not yet delineated the requirements for video surveillance, we find guidance in case law and congressional enactments concerning similar search and seizure techniques. We have considered carefully the underlying purposes of the fourth amendment and the intrusiveness of video surveillance. Having done so, we now adopt the following five requirements for video surveillance that define more specifically the probable cause and particularity requirements of the fourth amendment. These requirements have been formulated for other search techniques, and we hold that they must be satisfied before video surveillance will be permitted. An order permitting video surveillance shall not be issued unless: (1) there has been a showing that probable cause exists that a particular person is committing, has committed, or is about to commit a crime; (2) the order particularly describes the place to be searched and the things to be seized in accordance with the fourth amendment; (3) the order is sufficiently precise so as to minimize the recording of activities not related to the crimes under investigation; (4) the judge issuing the order finds that normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or appear to be too dangerous; and (5) the order...

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