U.S. v. Cuevas-Sanchez

• Citation: 821 F.2d 248
• Decision Date: 29 June 1987
• Docket Number: D,CUEVAS-SANCHE,No. 86-1665,86-1665
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jesus Fernandoefendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 248

821 F.2d 248

56 USLW 2059

UNITED STATES of America, Plaintiff-Appellee, v. Jesus Fernando CUEVAS-SANCHEZ, Defendant-Appellant.

No. 86-1665.

United States Court of Appeals Fifth Circuit.

June 29, 1987.

Salvador C. Ramirez, Robert P. Harris, El Paso, Tex., for Cuevas-sanchez.

John F. DePue, Atty., Dept. of Justice, Crim. Div., Washington, D.C., Helen M. Eversberg, U.S. Atty., San Antonio, Tex., for U.S.

Appeal from the United States District Court for the Western District of Texas.

Before WRIGHT ^*, GEE, and JOLLY, Circuit Judges.

GEE, Circuit Judge:

Jesus Fernando Cuevas-Sanchez appeals his conviction of possession of marijuana with intent to distribute. In the district court, Cuevas moved to suppress the evidence used to convict him on the ground that it was derived from the unlawful video surveillance of his property. The district court denied this motion and, after Cuevas waived a jury trial, found him guilty. Cuevas raises only the suppression issue in his appeal.

In early 1986, federal law enforcement agents suspected that Cuevas's home was being used as a drop house for drug traffickers. On March 13, the United States Attorney for the Western District of Texas applied to the district court for an order authorizing video surveillance of the exterior of Cuevas's property. The application included a letter from the Director, Office of Enforcement Operations of the Department of Justice Criminal Division, authorizing the application and an extensive affidavit from a narcotics detective describing the premises and the reasons behind the police's suspicions. The affidavit provided information gathered from confidential informants as well as from police surveillance of the property. The affidavit also contained a false statement that the appellant had been arrested while in possession of 47 grams of cocaine. Finally, it explained that conventional law enforcement techniques, although attempted, had failed to uncover enough evidence to convict the drug traffickers. The order issued that same day, limiting surveillance to 30 days and directing the police to minimize observation of innocent conduct and to discontinue the surveillance when none of the suspected participants were on the premises.

On March 19, Agents installed the video camera atop a power pole overlooking the appellant's 10-foot-high fence bordering the back of the yard. ¹ This camera allowed officers to observe the removal of drugs from vehicles' false gas tanks in Cuevas's yard; observations that led to the arrest of another participant in the drug ring. On April 30, the United States Attorney asked for an extension of the video surveillance order based on an additional affidavit that included information obtained from the first 30 days of surveillance. A district judge granted the extension on May 5. On May 15, the video surveillance revealed the appellant loading his car with garbage bags believed by the monitors to contain drugs. After he drove off, police stopped Cuevas and made a warrantless search of his car, finding 22 pounds of marijuana. They then obtained a warrant to search his property and found 58 more pounds.

The appellant argues that the government's application for the surveillance order did not conform to statutory or constitutional standards; therefore, the initial stop, based upon information obtained from the surveillance, was tainted and illegal. He also argues that a false statement contained in the affidavit supporting the government's application for surveillance voided the entire order.

The government first attempts to bypass Cuevas's contentions by arguing that Cuevas "had no reasonable expectation of privacy in activities conducted in his backyard visible to a casual observer," and that therefore the government did not need an order to put the camera on top of the pole. For the factual basis of this argument it points out that activities in the driveways and on the southwestern portion of the property were visible from the street; that some of the activity in the rear portion was visible from the street; that because the east fence was only five to six feet high, a person of average height could observe activity from that vantage point; and finally that power company lineman on top of the pole or a policeman on top of a truck could peer over the 10-foot rear fence. For the legal basis it relies on California v. Ciraolo, 476 U.S. 207, 106 S.Ct. 1809, 90 L.Ed.2d 210 (1986), in which the Supreme Court held that the "Fourth Amendment simply does not require the police traveling in the public airways at [1,000 feet] to obtain a warrant in order to observe what is visible to the naked eye." Id. at 1813. ² At first blush, this argument has a certain appeal. Close inspection, however, discloses the sophistry underlying the government's argument.

The government applied to a United States District Judge for authority to use a potentially indiscriminate and most intrusive method of surveillance. To justify its application, a narcotics officer swore that "conventional law enforcement techniques, such as debriefing defendants, undercover investigations, informants, and surveillance had been attempted but had failed...." Affidavit of Phil Harrold, Gov't Exhibit 1A at 13. Yet now the government argues, in effect, that conventional surveillance would have revealed the activities that led to Cuevas's arrest. It cannot have it both ways: "A juxtaposition of such contentions trifles with the Court." United States v. de Luna, 815 F.2d 301, slip op. at 3498 (5th Cir., 1987).

Furthermore, the government wishes to stretch Ciraolo 's holding far beyond its natural reach. Ciraolo reaffirmed the Katz fourth amendment analysis of whether a person has a constitutionally protected reasonable expectation of privacy. Katz v. United States, 389 U.S. 347, 360-62, 88 S.Ct. 507, 516-17, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring). That analysis uses a two-part inquiry: "first, has the individual manifested a subjective expectation of privacy in the object of the challenged search? Second, is society willing to recognize that expectation as reasonable?" Ciraolo, 106 S.Ct. at 1811. We do not doubt that Cuevas manifested the subjective expectation of privacy in his backyard necessary to satisfy the first part of the inquiry: he erected fences around his backyard, screening the activity within from views of casual observers. In addition, the area monitored by the camera fell within the curtilage of his home, an area protected by traditional fourth amendment analysis.

The second part focuses on "whether the government's intrusion infringes upon the personal and societal values protected by the Fourth Amendment." Oliver v. United States, 466 U.S. 170, 182-83, 104 S.Ct. 1735, 1742, 80 L.Ed.2d 214 (1984). To measure the government's intrusion we must consider the expectations of society. Ciraolo teaches us that a fly-over 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. ³ 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. Indeed, the Supreme Court recently denied review of a California Appeals Court decision suppressing evidence gained through the aerial observations of a helicopter hovering at 400 to 500 feet above the defendant's backyard. ⁴ People v. Sabo, 185 Cal.App.3d 845, 230 Cal.Rptr. 170 (4 Dist.1986), cert. denied, --- U.S. ----, 107 S.Ct. 2200, 95 L.Ed.2d 855 (1987). 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.

The government's actions therefore qualify as a search under the fourth amendment, entitling Cuevas to judicial protection. The government recognized the intrusiveness of the video camera by applying to the district court for an order...