U.S. v. De La Paz

• Citation: 43 F.Supp.2d 370
• Decision Date: 24 March 1999
• Docket Number: No. 98 CR 1237 (MBM).,98 CR 1237 (MBM).
• Parties: UNITED STATES of America, v. Domingo DE LA PAZ, Rafael Caba, Jose Martinez, and Raul Romero Bulton, Defendants.
• Court: U.S. District Court — Southern District of New York

43 F.Supp.2d 370

UNITED STATES of America, v. Domingo DE LA PAZ, Rafael Caba, Jose Martinez, and Raul Romero Bulton, Defendants.

No. 98 CR 1237 (MBM).

United States District Court, S.D. New York.

March 24, 1999.

Maria P. Horn, Asst. U.S. Atty., Mary Jo White, United States Attorney for the Southern District of New York, William Silverman, Assistant United States Attorney, New York City, for U.S.

Edward M. Kratt, New York City, for Domingo De La Paz.

Lawrence K. Feitell, New York City, for Raul Romero Bulton.

OPINION AND ORDER

MUKASEY, District Judge.

Raul Romero Bulton moves to suppress evidence of post-arrest telephone calls to his cellular telephone. Bulton is charged with conspiracy to traffic in narcotics, in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(A) and 846. Bulton argues that an agent of the Federal Bureau of Investigation ("FBI") violated his Fourth Amendment rights by answering his cellular telephone, without his consent and without a warrant, when it rang between the time of his arrest and the time of his arraignment. For the reasons stated below, the motion is denied.

I.

The facts relevant to the present motion can be stated briefly. Bulton was arrested on October 7, 1998, at approximately 1 p.m.,¹ following a three-month investigation into alleged drug dealing activities. At the time of Bulton's arrest, the arresting agents searched him and found in his possession a cellular telephone, which they seized as evidence. Thereafter, the agents took Bulton to FBI headquarters, where they began processing his arrest. While the agents were doing so — at approximately 4 p.m. — Bulton's cellular telephone rang. Altogether, the telephone rang at least nine times. Each time, without seeking Bulton's consent and without a warrant, one of the agents answered the telephone. Each time, the person on the other end of the call asked for "Nino," a name which the government contends was used by Bulton in the course of his illegal activities and which appears in drug ledgers that were earlier seized by the government. Later on the day of Bulton's arrest, the agents inventoried the telephone and placed it in storage. It has not been answered since.

II.

Bulton does not seek to suppress the cellular telephone itself, conceding that it was lawfully seized incident to his arrest. Cf. United States v. Hernandez, 738 F.Supp. 779, 779 (S.D.N.Y.1990) (upholding, in a drug case, the seizure of a cellular telephone as incident to a lawful arrest). Instead, he seeks to suppress evidence of the post-arrest telephone calls, on the ground that answering his cellular telephone constituted a search for which the agents required a warrant. This issue — whether, or under what circumstances, officers can, without a warrant, answer a cellular telephone seized pursuant to an arrest — appears to be one of first impression. But cf. United States v. Kim, 803 F.Supp. 352, 361-63 (D.Haw.1992) (holding that law enforcement officers may not, without a warrant, lawfully answer a cellular telephone "seized pursuant to federal forfeiture law"), aff'd, 25 F.3d 1426 (9th Cir.1994); People v. Lucas, 188 Mich.App. 554, 470 N.W.2d 460, 471-72 (1991) (upholding admission of calls to a car telephone answered by a police officer following arrest of the defendant).

Whether a warrant was required to answer Bulton's cellular telephone depends, first, on whether Bulton "can claim a `justifiable,' a `reasonable,' or a `legitimate expectation of privacy' that has been invaded by government action." Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979) (citing cases); accord Minnesota v. Carter, ___ U.S. ___, 119 S.Ct. 469, 473, 142 L.Ed.2d 373 (1998). Although no court has answered this question with respect to a cellular telephone, several courts have with respect to conventional telephones, and have reached divergent conclusions. Compare, e.g., United States v. Sangineto-Miranda, 859 F.2d 1501, 1513-14 (6th Cir.1988) (holding that no legitimate expectation of privacy is implicated when police officers answer a telephone while lawfully on the premises); United States v. Passarella, 788 F.2d 377, 379-81 (6th Cir.1986) (same); United States v. Vadino, 680 F.2d 1329, 1335 (11th Cir.1982) (same); United States v. Kane, 450 F.2d 77, 84-85 (5th Cir.1971) (same), with United States v. Ordonez, 737 F.2d 793, 810-11 (9th Cir.1983) (holding, by necessary implication, that one can challenge the answering of one's telephone under the Fourth Amendment); United States v. Gallo, 659 F.2d 110, 114 (9th Cir.1981) (same); United States v. Fuller, 441 F.2d 755, 760 (4th Cir.1971) (same); cf. United States v. Stiver, 9 F.3d 298, 302-03 & n. 8 (3d Cir.1993) (assuming, arguendo, that answering another's telephone implicates a legitimate expectation of privacy and explicitly questioning whether Passarella, which found otherwise, remains good law). Notwithstanding that some courts have held otherwise, I believe for the reasons set forth below that answering Bulton's telephone did implicate a legitimate expectation of privacy.

The courts which have held that a person does not have a legitimate expectation of privacy in calls to his telephone have rested that conclusion on the ground that a person does not have a privacy interest in conversations to which he is not a party. See, e.g., Sangineto-Miranda, 859 F.2d at 1513-14; Passarella, 788 F.2d at 379-80; Vadino, 680 F.2d at 1335; Kane, 450 F.2d at 84-85. So long as the government agents are lawfully on the defendant's premises, these courts have held, the agents may answer his telephone freely. See, e.g., Passarella, 788 F.2d at 381.

If valid, this rationale presumably would apply to a cellular telephone as well — at least insofar as the telephone was lawfully in the possession of the government, as it was here. However, this rationale appears to me unpersuasive, because it confuses the privacy interest invaded by a search alone with the interest in whatever is uncovered by a search. That is to say, asserting that a defendant has no privacy interest in the substance of a conversation between a law enforcement agent and a caller does not resolve whether the defendant has a privacy interest in whether that conversation should occur in the first place. The relevant question is not whether a search necessarily uncovers something of a personal or private nature, but rather whether it might—and whether one must invade a legitimate privacy interest in order even to find out. Cf. Arizona v. Hicks, 480 U.S. 321, 325, 107 S.Ct. 1149, 94 L.Ed.2d 347 (1987) ("It matters not that the search uncovered nothing of any great personal value to respondent — serial numbers rather than (what might conceivably have been hidden behind or under the equipment) letters or photographs. A search is a search, even if it happens to disclose nothing but the bottom of a turntable."). Whatever Bulton's interest — or lack of it — in the actual conversations that took place between those trying to call him and the agents, he had a legitimate privacy interest in the fact that those calls were received and in the identity of the callers. These interests were necessarily invaded by the agents' actions — invasions which implicate Fourth Amendment rights.

To illustrate the point, consider the following. A tenant normally gives the landlord a right of access to his apartment, at least in cases of emergency. In the event of a leak, therefore, it would be reasonable — and lawful — for the landlord to authorize a plumber to enter the apartment in order to fix the leak. The plumber would not be an intruder in the apartment; his presence would be lawful. Notwithstanding the lawfulness of the plumber's presence, however, he would not have license to answer the telephone if it were to ring. If he were to do so without the tenant's consent, he would be acting unreasonably, and the tenant would be amply justified in complaining. What the tenant would be complaining about is an invasion of his privacy. Changing the facts to make the nonintruder a police officer does not change the analysis or the result. That the officer may have a reasonable investigative purpose in answering the telephone might be relevant to whether the act is ultimately justifiable — an issue treated below — but that is irrelevant to the question of whether the resident has a legitimate privacy interest in his telephone calls.²

My conclusion that the government did invade a legitimate privacy interest by answering Bulton's cellular telephone is further reinforced by reference to another line of cases, involving electronic pagers. In these cases, courts have consistently held that the owner of an electronic pager has a legitimate privacy interest in the numerical codes transmitted to the device, even when the transmissions are received while the pager is in the government's lawful possession. See, e.g., United States v. Ortiz, 84 F.3d 977, 984 (7th Cir.1996); United States v. Reyes, 922 F.Supp. 818, 832-33 (S.D.N.Y.1996); United States v. Lynch, 908 F.Supp. 284, 287 (D.V.I.1995); United States v. Chan, 830 F.Supp. 531, 534-35 (N.D.Cal.1993); United States v. Blas, No. 90-CR-162, 1990 WL 265179, at *21 (E.D.Wis. Dec.4, 1990). But cf. United States v. Meriwether, 917 F.2d 955, 958-59 (6th Cir.1990) (holding that a person who transmits a number to another party's electronic pager does not have a legitimate expectation that his communication will remain private). I see no basis for distinguishing between the hand-held personal communications devices involved in those cases and the hand-held personal communications device in this case. Indeed, if anything, the argument for privacy is even greater in cases involving cellular telephones insofar as the information communicated is likely to be at once more significant and more personal than a numerical code.³

III.

Because Bulton had a legitimate expectation of privacy in the calls to his cellular telephone, the next inquiry...