U.S. v. Chen, s. 92-10243

• Decision Date: 05 November 1992
• Docket Number: Nos. 92-10243,92-10244,s. 92-10243
• Citation: 979 F.2d 714
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Jim Juichang CHEN, aka Jui Chang Chen; Lucy Chen, aka Hseuh Ju Yang; Mike Juiming Chen, aka Jui Ming Chen; Kelly Paokui Chen, aka Pao Kui Chen; Li Yuen Shing, aka Chinmg Lu, aka Lu Chin Sheng, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 714

979 F.2d 714

UNITED STATES of America, Plaintiff-Appellant, v. Jim Juichang CHEN, aka Jui Chang Chen; Lucy Chen, aka Hseuh Ju Yang; Mike Juiming Chen, aka Jui Ming Chen; Kelly Paokui Chen, aka Pao Kui Chen; Li Yuen Shing, aka Chinmg Lu, aka Lu Chin Sheng, Defendants-Appellees.

Nos. 92-10243, 92-10244.

United States Court of Appeals Ninth Circuit.

Argued and Submitted July 15, 1992.

Decided Nov. 5, 1992.

Rory K. Little, Asst. U.S. Atty., San Francisco, Cal., for plaintiff-appellant.

Peter Goodman, and Scott A. Sugarman, Sugarman & Cannon, San Francisco, Cal., for defendants-appellees.

Appeal from the United States District Court for the Northern District of California.

Before WALLACE, Chief Judge, CHOY and POOLE, Circuit Judges.

WALLACE, Chief Judge:

The government appeals from the district court's order suppressing all of the evidence obtained from the government's video surveillance of a warehouse containing a shipment of heroin. The district court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction over this timely appeal pursuant to 18 U.S.C. § 3731. We reverse and remand.

I

On May 20, 1991, United States Customs agents in Oakland, California searched two containers from a ship that had arrived from Taiwan, and discovered over 1,000 pounds of heroin. The containers were destined for a rented warehouse. The agents removed most of the heroin, but decided to allow a controlled delivery of the remaining portion of the shipment.

In order to observe the heroin shipment once it was placed in the warehouse, the agents requested and obtained a warrant authorizing the installation of a video camera. During the night of May 21, the agents entered the warehouse and installed two cameras, camera 1 and camera 2. However, the agents discovered that due to technical difficulties both cameras could not be operated simultaneously, and the agents removed camera 2 before they left the warehouse.

During the night of May 29, the agents installed video camera 3. Camera 3 was located inside the warehouse, but was used to film an area outside the building. Once Assistant United States Attorney Kennedy, who was assisting with the investigation, learned that camera 3 had been installed, he ordered it to be disconnected.

On June 20, Jim Chen, Lucy Chen, Kelly Chen, and Li Yuen Shing began opening the boxes in the warehouse. Before completing this task, however, they noticed video camera 1. The agents then executed a previously obtained search warrant for the warehouse and arrested these four defendants. Mike Chen was subsequently arrested in Massachusetts.

Mike Chen, Jim Chen, Lucy Chen, Kelly Chen, and Li Yuen Shing (the Chen defendants) were indicted for a number of offenses, including conspiracy to import heroin and importation of more than 1,000 pounds of heroin. The Chen defendants filed motions to suppress the video surveillance evidence. The district court relied on United States v. Koyomejian, 946 F.2d 1450, 1453-60 (9th Cir.1991) (Koyomejian I ), and suppressed all of the video surveillance evidence because the government failed to comply with the technical procedures specified in 18 U.S.C. §§ 2510-21 (the wiretap statute). The district court also held that the suppression of all of the video surveillance evidence was justified because the government flagrantly disregarded the terms of the warrant.

II

We review the lawfulness of a search de novo. United States v. Ayers, 924 F.2d 1468, 1479 (9th Cir.1991) (Ayers ). Whether video surveillance is governed by the wiretap statute is a question of law subject to de novo review. See United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.) (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984). However, the standard for reviewing a district court's determination that government agents flagrantly disregarded the terms of a warrant is unclear. The government contends that the district court's ruling should be reviewed de novo. See Ayers, 924 F.2d at 1480 (scope of whether government agents exceed search is reviewed de novo). The Chen defendants argue that the district court's flagrant disregard ruling is fact intensive and should be reviewed only for clear error. See United States v. Medlin, 842 F.2d 1194, 1199 (10th Cir.1988) (Medlin ) (district court's determination that the violations were "not mitigated by practical considerations" and that the search was a "fishing expedition" is reviewed for clear error). However, it is unnecessary for us to resolve this issue because even if we assume that the district court's decision can be reviewed only for clear error, reversal is necessary in this case.

III

The district court relied on Koyomejian I, 946 F.2d at 1453-60, which held that video surveillance is governed by the wiretap statute, and suppressed the video evidence because the government failed to comply with the requirements of the statute. Subsequently, however, an en banc court rejected the holding of Koyomejian I, and concluded that video surveillance is not regulated by the wiretap statute. United States v. Koyomejian, 970 F.2d 536, 537 (9th Cir.1992) (en banc) (Koyomejian II ). Thus, the district court erred by suppressing the evidence based on the wiretap statute.

We do not reach the question of whether the search in this case meets the Fourth Amendment standards established by Koyomejian II. On remand, the district court may address this question in the first instance, if the district court determines that it has been properly raised. Id. at 541-42. The district court may also consider whether any alleged violation of these standards is excused by the good faith exception established in United States v. Leon, 468 U.S. 897, 925-26, 104 S.Ct. 3405, 3421-22, 82 L.Ed.2d 677 (1984).

IV

The Chen defendants also moved to suppress the video surveillance evidence because the agents violated the terms of the warrant by installing camera 2 and camera 3. The Chen defendants argued that the warrant authorized the installation of only one video camera, but the agents installed two additional cameras. The government agreed to suppress the evidence that was obtained from camera 3 and pointed out that no evidence was filmed by camera 2. The district court, however, concluded that this remedy was insufficient and held that the illegal installation of camera 2 and camera 3 justified the suppression of all of the video surveillance evidence, including the evidence obtained from camera 1. The court reasoned that the suppression should not be limited to the evidence illegally seized because the agents flagrantly disregarded the terms of the warrant by installing more than one camera.

A.

Ordinarily, only evidence that is obtained in violation of a warrant is suppressed. United States v. Tamura, 694 F.2d 591, 597 (9th Cir.1982) (Tamura ). However, in cases where there is a "flagrant disregard" for the terms of the warrant, the district court may suppress all of the evidence, including evidence that was not tainted by the violation. Medlin, 842 F.2d at 1199.

This extraordinary remedy should be used only when the violations of the warrant's requirements are so extreme that the search is essentially transformed into an impermissible general search. See id.; Tamura, 694 F.2d at 597. For example, we ordered wholesale suppression in United States v. Rettig, 589 F.2d 418, 423 (9th Cir.1978) (Rettig ). There, the government agents were issued a warrant to search for evidence of marijuana possession, but they ignored the limitations of the warrant and searched for evidence of a cocaine conspiracy despite the fact that the government had earlier been denied a warrant to conduct just such a search. Id. at 420-22. In contrast, we have refused to suppress all of the evidence where the agents who exceeded their authority under the warrant "were motivated by considerations of practicality rather than by a desire to engage in indiscriminate 'fishing.' " Tamura, 694 F.2d at 597. Thus, wholesale suppression is appropriate under the flagrant disregard standard only when the officers transform the search into an impermissible general search by ignoring the terms of the warrant and engaging in indiscriminate fishing.

B.

We start our analysis by pointing out that the district court erred in balancing the interests at stake. The district court properly determined that video surveillance is very intrusive, and that the Chen defendants are entitled to protection under the Fourth Amendment. See United States v. Mesa-Rincon, 911 F.2d 1433, 1436-37, 1442 (10th Cir.1990). The district court also correctly pointed out that a business is entitled to less protection from video surveillance than an individual's private home. Id. at 1443. The district court, however, erred by holding that this lessened expectation of privacy is offset because this was merely a "mercantile crime" and there was no immediate threat of violence or harm to persons or property.

Drug crimes are very serious and represent one of the greatest threats to our society. Drug conspiracies are often well-planned, and video and audio surveillance may be necessary because the conspirators often carefully conceal their activities and identities by using code words and other techniques. See United States v. Abascal, 564 F.2d 821, 827 (9th Cir.1977) (Abascal ), cert. denied, 435 U.S. 942, 98 S.Ct. 1521, 55 L.Ed.2d 538 and 435 U.S. 953, 98 S.Ct. 1583, 55 L.Ed.2d 804 (1978). Therefore, in balancing the interests, the fact that this is a drug crime does not weigh in favor of suppression.

The district court also erred by concluding that the installation of camera 2 supports a finding that there has been a flagrant disregard. The district court correctly pointed out that the warrant authorized the agents to install only "a video camera," and the agents initially installed two cameras. Moreover, the installation of the extra camera may have been caused in part because the agents installing the...