U.S. v. Rucinski, 80-2247
| Decision Date | 24 September 1981 |
| Docket Number | No. 80-2247,80-2247 |
| Parties | UNITED STATES of America, Plaintiff-Appellant, v. Bill RUCINSKI, and Alfred Medina, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Marianne Wesson, Asst. U. S. Atty., Denver, Colo. (Joseph Dolan, U. S. Atty., Denver, Colo., with her on the brief), Asst. U. S. Atty., D. Colo., Denver, Colo., for plaintiff-appellant.
Jonathan L. Olom of Marks & Olom, Denver, Colo., for defendant-appellee, Alfred Medina.
Sander Karp of Karp, Goldstein & Stern, Denver, Colo., for defendant-appellee, Bill Rucinski.
Before McWILLIAMS and DOYLE, Circuit Judges, and TEMPLAR *, District Judge.
In a two-count indictment, the defendants Bill Rucinski and Alfred Medina were charged with the theft of government property in violation of Title 18, United States Code, Section 641; 1 defendant Medina was charged in both counts, defendant Rucinski in the second count alone. Defendant Rucinski filed a pretrial motion, adopted by defendant Medina, for the suppression of certain real evidence and testimony of a statement given by Rucinski. After holding an evidentiary hearing, the court below granted the defendants' motion. In addition, the court below severed the trials of the two defendants. The court's stated reason for the severance was the existence of an incriminating statement of defendant Rucinski, but the court also ruled that the Rucinski statement would be suppressed as a "fruit" of illegal surveillance. By Notice of Appeal, the United States signified its intention to seek appellate review of the orders of the court below. 28 U.S.C. § 1291.
The facts, as claimed by defendant Rucinski, are these:
In March of 1979, an investigation was started by the United States Forest Service concerning some possible irregularities in the scaling of cut timber by the Jackson Lumber Company. Officials of the United States Forest Service had received reports that Jackson Lumber Company was manipulating the reports of timber cutting at the Treasure Pass Timber Sale. "Scaling" is a term of art in the timber business which describes the volume that a cut log may produce in board feet. Live logs are worth considerably more than dead logs, and the essential allegations of this case involved the manipulation of live logs and dead logs so as to deprive the government of the value of live logs which had been cut by Jackson Lumber Company on the Treasure Pass Timber Sale.
Paddy Ryan, a United States Forest Service official, first became aware of these reported irregularities in March of 1979. In September of 1979, when Jackson Lumber Company resumed work on the Treasure Pass Timber Sale, the investigation started up again. This investigation led to the events of September 12, 1979, which are at issue in this case.
After the Forest Service received this information, they decided to conduct a telescopic and photographic surveillance of the Jackson Lumber Company.
The Jackson Lumber Company is a privately owned lumber company 2 located in an isolated valley in South Fork, Colorado. The lumber company mills timber which is largely obtained from the United States Forest Service. Public access to the Jackson Lumber Company is only allowed on business, and there is only one road into and out of the lumber company, this being the access road which runs off of State Highway 160.
Half way up the road which leads to the main business office and the residence of defendant Rucinski is a gate and a sign which says, "No Admission Except on Business." Rucinski's residence is adjacent to the main lumber company office. The area is posted with no trespassing signs, and the entire lumber company is surrounded by a barbed wire fence. The general public does not have access to the lumber company without the consent and permission of the owner. Any person desiring access must stop at the office and receive permission to enter the mill and business area.
The south side of the Jackson Lumber Company is bounded by the BAR Cattle Company. This is private land, which is part of a ranch managed by Mr. Clinton Landon. On September 5, 1979, Charlie Burd of the Forest Service approached Mr. Landon and asked for his permission to go onto the BAR land. Landon and Burd had been acquainted for several years.
Burd's reason for requesting permission to go on the BAR land was so that he could set up the surveillance of the operations of the Jackson Lumber Company, but he did not tell Mr. Landon what his purpose would be.
In addition to the foregoing, the record discloses that the evidence against the defendants, and suppressed by the trial court, consists of the observations of agents of the United States Forest Service, who observed the defendants in the act of manipulating the contents of loads of lumber purchased from the Forest Service in order to avoid paying for higher-priced live lumber by substituting cheaper dead logs. The activities took place in an open outdoor millyard, enclosed only by a barbed wire fence. The millyard is situated in a valley and consequently may be observed from several local vantage points. Their observations were aided by a "spotting scope" (a telescope-like instrument) and a camera with a telescopic lens. The agents used the camera to photograph the activities that they observed.
It also appears, and the defendant admitted, that in order to purchase government timber, the Jackson Lumber Company was required, by contract, to permit the Forest Service "scaling" personnel to arrive unannounced at random intervals and inspect the logging business. This inspection was for the purpose of detecting irregularities or fraud in the defendants' logging operation.
The district court in its spoken opinion explained its ruling with the statement that the testimony had made clear what a "reasonable expectation of privacy is in the mountains of Colorado" and that the law enforcement activity, although perhaps legitimate in other environs, violated that expectation because "living in that community is based on a heightened sense of privacy and a heightened sense of respect for the concept of private property."
Having obtained access to the land of the BAR Cattle Company on September 12, 1979, Burd and Ryan went upon the land to set up the surveillance. They positioned themselves some distance from the Jackson Lumber Company, a distance which was variously estimated as 800 to 1,000 feet. They took with them a telescope of 50-60 power, and a Pentax Camera with a 500 mm lens and a 2x tele-converter, which, when interposed between the lense and the camera body, creates a magnification of 1,000 mm. This leads to magnification of 20 power, that is to say, objects are magnified 20 times larger than the human eye would normally see.
Ryan took up surveillance with the telescope, while Burd manned the camera. The agents concealed themselves so that they could not be seen by personnel at the Jackson Lumber Company. They did not have permission from anybody at the Jackson Lumber Company to conduct this surveillance.
The telescope was used to see if logs coming into the lumber mill were live or dead, and to read the numbers on the sides of the logs. Ryan needed the spying scope to see the numbers written on the sides of the logs which identified where the logs came from. The camera was used for the same purpose, and Burd used the camera and its magnification equipment as a telescope to tell live logs from dead logs and to observe the numbers painted on the sides of the logs. The camera was also used to take numerous pictures of logging operations which pictures were also suppressed.
We now reach the pivotal issue in the case. Was there a violation of defendants' Fourth Amendment rights which would require not only the suppression of the photographs taken by the agents but also the suppression of evidence of what their observations disclosed without the aid of the telescopic and photographic equipment?
Defendants argue that somehow the agents conducting the surveillance were guilty of reprehensible deceit in obtaining permission to go upon the BAR Cattle Company property and that they, in fact, became and were trespassers at the time the observations and the photographs were made. There is no claim that the agents were at any time on Jackson Lumber Company property. Nor does the court consider the agents to be trespassers on BAR Cattle Company land. It would be a strange requirement indeed if agents of the Forest Service must broadcast to the countryside the purpose of a surveillance undertaken to protect a federal interest. They had permission, not by any...
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