U.S. v. Mancini

• Decision Date: 06 August 1993
• Docket Number: No. 93-1417,93-1417
• Citation: 8 F.3d 104
• Parties: UNITED STATES, Appellant, v. Salvatore MANCINI, Defendant, Appellee. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 104

8 F.3d 104

UNITED STATES, Appellant, v. Salvatore MANCINI, Defendant, Appellee.

No. 93-1417.

United States Court of Appeals First Circuit.

Heard Aug. 6, 1993.

Decided Nov. 4, 1993.

Craig N. Moore, Asst. U.S. Atty., with whom Edwin J. Gale, U.S. Atty., Ira Belkin, and Margaret E. Curran, Asst. U.S. Attys., Providence, RI, were on brief, for appellant.

John A. MacFadyen, Providence, RI, with whom Richard M. Egbert, Boston, MA, and Peter DiBiase, Providence, RI, were on brief, for appellee.

Before BOUDIN and STAHL, Circuit Judges, and FUSTE, ^* District Judge.

STAHL, Circuit Judge.

In this criminal appeal, we must decide whether the Mayor of North Providence, Rhode Island, defendant Salvatore Mancini ("Mancini"), has standing ¹ to challenge a search of the town's archive attic and subsequent seizure of the Mayor's 1987 appointment calendar. The district court ruled in Mancini's favor. ² The government timely filed this interlocutory appeal. ³ We affirm the district court's ruling.

I. FACTUAL BACKGROUND

We recount only those facts relevant to resolving the issue on appeal. On November 20, 1992, a grand jury indicted Mancini on one count of attempted extortion under color of official right, in violation of 18 U.S.C. § 1951. According to the indictment, in November 1987, Mancini accepted a $2,000 payment from real estate developers in exchange for the issuance of certain certificates of occupancy for residential apartments owned by the developers.

Prior to the indictment, in the course of investigating the allegations against Mancini, the FBI attempted to obtain the relevant certificates of occupancy. At approximately 4:30 p.m. on October 29, 1992, two FBI agents, Timothy O'Keefe and Charles Prunier, went to the North Providence Town Hall to interview the town's building inspector, Albert DiPetrillo, and to serve him with grand jury subpoenas calling for his testimony and for the production of the eleven allegedly illegal certificates of occupancy. The subpoenas required production of the certificates by 9:30 the following morning.

DiPetrillo told the agents that Town Hall records were kept in a room known as the archive attic. Both the maintenance and personnel departments had keys to the attic. At DiPetrillo's direction, another town employee, Robert Hennessey, obtained the keys to the attic from a maintenance worker and accompanied the two agents through two locked doors and into the attic. The attic, which is above and runs the length of the Town Hall, contained boxes of records and miscellaneous equipment, none of which appeared to the agents to be organized in any particular manner.

When the three men first entered the attic, Hennessey suggested to the agents that they might find the certificates in boxes of Building Department records located near the door through which they had just passed. An initial examination of those boxes did not uncover the certificates. Hennessey then informed the agents that there were two other rooms in the attic containing town records. After a cursory examination of the other rooms indicated that only records from before 1940 were present, the three men returned to the room they had entered first. The agents again began looking for the certificates in the boxes located in this room. According to Hennessey's testimony at the suppression hearing, he directed the agents to a particular stack of boxes. Agent Prunier, however, "wandered off" in another direction. At some point, Prunier came across a box labelled "Mayor's Appointment Books." The flaps on the box were turned down to cover the top of the box, but they were not interlocked. Prunier lifted the flaps and saw that the box did, in fact, contain appointment books, including a book for 1987. ⁴ Prunier browsed through the 1987 book and replaced it in the box. Meanwhile, Agent O'Keefe located the sought-after certificates of occupancy in one of the boxes in the area that Hennessey had originally suggested. This search lasted approximately two hours.

On November 16, 1992, the FBI applied for a warrant to search the archive attic and seize the 1987 appointment calendar. A Magistrate Judge signed the warrant, and it was executed the same day. The calendar was retrieved. According to the government, the calendar is significant because of an entry made on November 24, 1987, a few days before the alleged illegal payoff and one day before the certificates were issued. That entry indicates that Mancini had a noon appointment with Art Aloisio, who, according to Kenneth Stoll, arranged the meeting where Stoll allegedly made the payoff to the Mayor. ⁵

Prior to trial, Mancini moved to suppress the appointment calendar because 1) the agents' initial discovery of the calendar was the result of a warrantless, illegal search, and 2) the later search, executed pursuant to a warrant, was both the fruit of the first, illegal search and the product of a misleading affidavit. Following a suppression hearing, ⁶ the district court first found that Mancini had standing to contest the search and seizure. Addressing the merits, the court then rejected Mancini's claim that the agents' conduct in discovering the calendar was illegal. The court concluded, however, that the subsequent search warrant should never have been issued due to the government's failure to disclose the negative information concerning Stoll. Therefore, the court granted the motion to suppress. As noted earlier, the government only challenges the court's standing determination.

II. STANDARD OF REVIEW

In reviewing the district court's suppression order, we uphold findings of fact, including mixed fact/law findings, unless they are clearly erroneous. See United States v. Carty, 993 F.2d 1005, 1008 (1st Cir.1993) (factual findings); United States v. Rodriguez-Morales, 929 F.2d 780, 783 (1st Cir.1991) (mixed findings), cert. denied, --- U.S. ----, 112 S.Ct. 868, 116 L.Ed.2d 774 (1992). We review conclusions of law de novo. Carty, 993 F.2d at 1008. The legal standard used by the district court is also subject to plenary review. Sanchez, 943 F.2d at 112.

It is well settled that a defendant who fails to demonstrate a legitimate expectation of privacy in the area searched or the item seized will not have "standing" to claim that an illegal search or seizure occurred. Rakas, 439 U.S. at 138-48, 99 S.Ct. at 427-33; Sanchez, 943 F.2d at 112-13. In order to make such a demonstration, the defendant must show both a subjective expectation of privacy and that society accepts that expectation as objectively reasonable. California v. Greenwood, 486 U.S. 35, 39, 108 S.Ct. 1625, 1628, 100 L.Ed.2d 30 (1988); Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 516, 19 L.Ed.2d 576 (1967) (Harlan, J. concurring). The burden of proving a reasonable expectation of privacy lies with the defendant. Sanchez, 943 F.2d at 113. The defendant must demonstrate a privacy expectation in both the item seized and the place searched. United States v. Salvucci, 448 U.S. 83, 93, 100 S.Ct. 2547, 2553, 65 L.Ed.2d 619 (1980) ("[W]e must ... engage in a conscientious effort to apply the Fourth Amendment by asking not merely whether the defendant had a possessory interest in the items seized, but whether he had an expectation of privacy in the area searched.") (internal quotations omitted); United States v. Aguirre, 839 F.2d 854, 856 (1st Cir.1988) ("Before embarking upon the merits of a suppression challenge, a criminal defendant must show that he had a reasonable expectation of privacy in the area searched and in relation to the items seized.").

III. DISCUSSION

In determining that Mancini had standing to contest the search, the district court first ruled that the appointment book was not a public record. United States v. Mancini, No. 92-117B, slip op. at 4 (D.R.I. April 12, 1993). Then, the court concluded that the act of placing the book into a box "does not remove the document from the mayor's files." Id. Finally, the court stated that it is not "significant that the record was not found in the physical confines of the Mayor's office. It was where it could expected [sic] to be, a 1987 document, in the archives." Id. at 4-5. On this appeal, the government argues that the district court erroneously found that the calendar was a non-public document, and further contends that Mancini did not, and could not, demonstrate a privacy expectation in the archive attic. We address the two issues in turn.

A. The Mayor's Appointment Calendar

In finding that Mancini's appointment calendar is a "non-public record," the district court analogized the calendar to the personal effects located in the desk and file cabinets of a public employee in O'Connor v. Ortega, 480 U.S. 709, 107 S.Ct. 1492, 94 L.Ed.2d 714 (1987).

In Ortega, the Supreme Court ruled that the defendant, Dr. Ortega had a reasonable expectation of privacy in his desk and file cabinets, both of which were located in his office. Id. at 718, 107 S.Ct. at 1498. ⁷ The Court found significant the personal nature of the items in the desk and file cabinets, "which included personal correspondence, medical files, correspondence from private patients unconnected to the Hospital, personal financial records, teaching aids and notes, and personal gifts and mementos." Id. The papers were not exclusively private, however, as was demonstrated by the testimony of one of the investigators who tried to separate the personal items from the public documents. Id. at 713, 107 S.Ct. at 1495 (" 'Trying to sort State from non-State, it was too much to do, so I gave it up and boxed it up.' ").

Like the papers contained in Dr. Ortega's files and desk, the Mayor's personal and public calendar entries are intermingled. In many instances, it is impossible to classify an appointment as one or the other. Names of public officials alone, jotted down next to a preprinted hour of the day, do not reveal the context of the intended meeting. Thus, we are not persuaded by the...