U.S. v. Gonzalez

• Decision Date: 05 May 2003
• Docket Number: No. 02-50160.,02-50160.
• Citation: 328 F.3d 543
• Court: U.S. Court of Appeals — Ninth Circuit
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jesus Dario GONZALEZ, aka Adrian Magdaleno, aka Jesse Gonzalez, Defendant-Appellant.

328 F.3d 543

UNITED STATES of America, Plaintiff-Appellee, v. Jesus Dario GONZALEZ, aka Adrian Magdaleno, aka Jesse Gonzalez, Defendant-Appellant.

No. 02-50160.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 5, 2003.

Filed May 5, 2003.

James H. Locklin, Deputy Federal Defender, Los Angeles, CA, attorney for the defendant-appellant.

Jacqueline Chooljian and Kevin Lally, Assistant United States Attorneys, attorneys for the plaintiff-appellee.

Appeal from the United States District Court for the Central District of California; Christina A. Snyder, District Judge, Presiding. D.C. No. CR-01-00417-CAS-1.

Before PREGERSON, THOMAS and RAWLINSON, Circuit Judges.

OPINION

THOMAS, Circuit Judge.

Does the Fourth Amendment protect those who wish to hide in plain sight? Under the circumstances presented in this appeal, we conclude it does not and affirm the district court's denial of the defendant's suppression motion.

I

A Federal Express employee noticed something out of the ordinary about a package in the Brussels, Belgium warehouse. The alert Brussels scout notified Belgium Customs officials who examined the parcel, which was addressed to "Dr. Miller" at Kaiser Permanente Medical Center in Bellflower, California. It contained MDMA, which turned out not to be materials concerning a physician with a master's degree, but rather 20,000 methylenedioxymethamphetamine (or, to use its street name, "ecstacy") tablets, concealed in video cassette boxes. To investigate this apparent "fed-ecstacy" scheme, Belgium Customs notified the United States Drug Enforcement Administration ("DEA") Belgium Country Office and requested the agency's assistance in effectuating a controlled delivery. The Los Angeles Field Division of the DEA agreed to conduct the requested controlled delivery.

DEA Special Agent Deanne Reuter then met with Roy Hill, the Area Director of Security Services for Kaiser Permanente and requested cooperation. Hill consulted the hospital's administration, which granted its full consent for the DEA to conduct a controlled delivery of the parcel on hospital grounds. After discussion of how best to conduct the delivery, Hill and Reuter agreed that because the MDMA was packaged in a Federal Express parcel, suspicion would not be aroused if delivery were made to the material management services mailroom. According to Hill, all packages received by and sent from the hospital were channeled through this mailroom so they could be logged and distributed.

The DEA obtained a warrant to install into the parcel an electronic tracking device and an agent alert device which would emit a signal when the parcel was opened. According to Reuter, the warrant was obtained so that the parcel could be monitored as it traveled throughout the hospital, including personal desks and areas where employees potentially possessed a legitimate expectation of privacy. However, no warrant was sought for the audiovisual equipment the DEA intended to use to surveil the mailroom. Reuter maintained that no warrant was necessary because the DEA had been assured that it was a quasi-public room in which hospital employees did not possess a reasonable expectation of privacy. On the morning of the controlled delivery, the DEA installed a covert video camera in the mailroom, positioned to face the mailroom desk which had been selected to receive delivery of the package.

The DEA then provided the package, complete with the enclosed tracking devices, to hospital security for delivery to the mailroom, as this was the customary manner in which parcels received after normal business hours were delivered to the mailroom. Security then notified the mailroom that a package had been delivered over the weekend; mailroom personnel asked security to bring the parcel down. In anticipation of this delivery, the receiver on the camera was activated. The receiving clerk, Jesse Standifer, accepted the package.

Approximately half an hour later, defendant Jesus Dario Gonzalez entered the mailroom. He is depicted on the tape leaning over the package with Standifer. Standifer picked up the package and shook it; he and Gonzalez then took the package to the rear of the mailroom where it was placed on a pallet marked "other deliveries," yet set apart from where other packages received that day had been placed. Gonzalez and Standifer returned to Standifer's desk. An ecstatic Gonzalez is then shown clapping his hands and acting in a manner usually reserved for post-touchdown end zone celebrations. Next, he and Standifer shook hands and engaged in a brief discussion before Gonzalez left the mailroom.

About fifteen minutes later, the DEA requested hospital security's assistance in locating Gonzalez, since he had handled the package in a "suspicious manner." Hospital personnel found Gonzalez, and informed him that the DEA wished to speak with him; he was interviewed by DEA and U.S. Customs agents in a room selected by the hospital. When asked about the parcel he and Standifer had placed on the back pallet, Gonzalez at first feigned ignorance until he was shown the videotape. He then claimed that his conversation with Standifer focused on the unusual shape of the parcel. This explanation aroused the suspicions of the agents, since the parcel was a conventional, unaltered mailing package.

Gonzalez was then advised of his Miranda rights. During the interrogation that followed, Gonzalez changed his story three times, implicating himself in the scheme each time. He was then arrested and removed from the hospital premises. He was charged with possession with intent to distribute 3,617 grams of MDMA in violation of 21 U.S.C. § 841(a)(1).

After entering a plea of not guilty, Gonzalez moved to suppress the videotape on the ground that it was obtained without a warrant in violation of his Fourth Amendment rights. After conducting a hearing, the district court denied his motion to suppress. After another hearing, the district court also denied his motion for reconsideration. Gonzalez then entered a plea of guilty, conditioned on his being able to appeal the district court's adverse determination of his motion to suppress. The court entered judgment against Gonzalez, imposing a sentence of 41 months imprisonment. This timely appeal follows.

II

The threshold inquiry in any Fourth Amendment analysis is whether the government's conduct is included in the Amendment's coverage, in other words, whether it amounts to a "search" for constitutional purposes. See 1 William E. Ringel, Searches and Seizures, Arrests and Confessions, § 8.1 (2nd ed.2000). "[A] Fourth Amendment search occurs when the government violates a subjective expectation of privacy that society recognizes as reasonable." Kyllo v. United States, 533 U.S. 27, 33, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001) (citing Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 19 L.Ed.2d 576(1967) (Harlan, J., concurring)). In this case, the district court concluded that the expectation of privacy in a hospital mailroom used by the public "is not one that society recognizes as reasonable in light of the facts and circumstances." The district court also concluded that the fact that the surveillance was conducted by videocamera did not change the privacy analysis. We agree.

A

A person's "capacity to claim the protection of the Fourth Amendment depends... upon whether the person who claims the protection of the Amendment has a legitimate expectation of privacy in the invaded place." Minnesota v. Carter, 525 U.S. 83, 88, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998) (quoting Rakas v. Illinois, 439 U.S. 128, 143, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978)).

Here, the space was a large, quasi-public mailroom at a public hospital during ordinary business hours. The mailroom has two doors — one that opens into the interior of the hospital and a large loading bay door. Both doors remain open throughout the business day. The room also has large windows through which the room is visible from the outside. The area receives heavy foot traffic during business hours. Both scheduled and unscheduled pickups and deliveries occur. It is accessed frequently by at least 50 hospital employees and it is open to any of the hospital's 800 employees who are permitted to deliver or retrieve packages. Gonzalez did not have the means or the authority to exclude others from the premises. In fact, as a transportation orderly, he was one of the few hospital employees who lacked a legitimate employment-related reason...