U.S. v. Taborda, 1536

Citation635 F.2d 131
Decision Date24 November 1980
Docket NumberD,No. 1536,1536
PartiesUNITED STATES of America, Appellant, v. Miguel Angel TABORDA, Appellee. ocket 80-1251.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Edward R. Korman, U. S. Atty., E.D.N.Y., Brooklyn, N.Y. (David Eisenberg, Asst. U. S. Atty., E.D.N.Y., Brooklyn, N.Y.), for appellant.

Charles L. Weintraub, New York City, for appellee.

Before NEWMAN and KEARSE, Circuit Judges, and DUMBAULD, * District Judge.

KEARSE, Circuit Judge:

This appeal presents the question whether the government surveillance of a person in his own home by means of a telescope violates his right to be free from unreasonable searches and seizures under the Fourth Amendment to the Constitution. The United States appeals from an order of the United States District Court for the Eastern District of New York, Eugene H. Nickerson, Judge, granting the motion of defendant-appellee Miguel Angel Taborda to suppress evidence seized at his residence pursuant to a search warrant issued on the basis of an affidavit describing observations made, at least to some extent, by means of a high-powered telescope. For the reasons set forth below we vacate the order of suppression and remand for further proceedings.

I

On October 24, 1979, agents of the Drug Enforcement Administration ("DEA") entered and searched Taborda's residence at Apartment 1G, 139-55 35th Avenue, Flushing, New York ("Apartment 1G"), and seized various items pursuant to a warrant authorizing the entry and search. The items seized included several packets of cocaine, more than $10,000 in cash, and paraphernalia used to "cut" and package cocaine. Taborda was arrested and eventually was indicted by a Grand Jury on one count charging possession with intent to distribute approximately 230 grams of cocaine in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (1976). 1

Shortly after his indictment, Taborda moved under Fed.R.Crim.P. 41 for an order suppressing any evidence seized from his person or Apartment 1G. The premise of this motion was that the search warrant had been issued on the basis of an affidavit which described observations of Apartment 1G through a high-powered telescope, and that the use of the telescope itself, without prior issuance of a warrant, violated Taborda's Fourth Amendment right to be free from unreasonable searches and seizures.

The Affidavit Supporting the Warrant

The search warrant for Apartment 1G was issued on the basis of an affidavit prepared by DEA agent James G. Deignan. The affidavit, pertinent portions of which are quoted in the margin, 2 stated that on October 4, 10, and 23, 1979, DEA agents had conducted surveillance of Apartment 1G from an apartment directly across the street, viz., Apartment 3G at 139-50 35th Avenue, Flushing, New York ("Apartment 3G"). It noted that the surveillance had been conducted "at times by means of a high-powered telescope" located in Apartment 3G.

The affidavit recounted that the agents had observed, inter alia, a quantity of baggies and two jars labelled "Inositol"-a substance Deignan knew to be a diluent for cocaine; a clear plastic bag containing white powder on the kitchen window sill of Apartment 1G; two men cutting the ends off of more than 100 small black objects and emptying white powder from those objects into a plastic bag; the two men occasionally drawing their heads back and grimacing, and waving their hands in front of their faces as if to dispel an odor (Deignan noted that cocaine is frequently diluted with substances having offensive odors); and one or more persons sifting white powder through a strainer and transferring white powder from larger bags to smaller bags. There was no indication in the affidavit as to what observations were made by means of the telescope and what observations were made without its assistance.

The Suppression Hearing

Judge Nickerson held an evidentiary hearing at which he received the testimony of three DEA agents involved in the surveillance and an investigator retained by the defendant. The principal witness for the government was New York Police Detective Robert Bisbee who was assigned to the DEA Task Force. Bisbee, who had made most of the October 4 and 10 observations described in Deignan's affidavit, testified that on those dates the weather was clear, Apartment 1G was well lit, and its kitchen window was open with its blinds up and its curtains open. Bisbee stated that most of his observations, including the following were made without the aid of the telescope: he observed Taborda and another man seated at the kitchen table in Apartment 1G, opening packages of white powder and transferring the powder to bags of a different size, opening small (3-4 inches) dark cylindrical objects and dumping white powder from them into plastic bags; he saw one of the men place a plastic bag containing white powder on the window sill; he saw Taborda stick his head out of the window as if to get fresh air, and saw both men wipe their eyes frequently with the backs of their hands as if their eyes were tearing. Bisbee testified that he used the telescope only to help him count the small dark objects from which white powder was being removed (thus aided he counted four rows of 26, or 104-106 altogether), and to allow him to read the legends on containers and implements he had observed but could not read without the aid of the telescope to see what was happening in Apartment 1G.

New York Police officers Gerald Kieran and Stephen Berk, who also were assigned to DEA, testified, inter alia, that they made observations of activity in Apartment 1G on October 23. Kieran stated that on that date he conducted surveillance from Apartment 3G for nearly six hours, making no use of the telescope. He saw two persons sitting at the kitchen table in Apartment 1G transferring white powder from one clear plastic bag into another. Berk testified that he made the same observation, with and without use of the telescope.

As to the configuration of 139-55 35th Avenue and the distances involved, Bisbee testified that Apartment 1G is above the street level, although less than a full story above it. The entrance to Number 139-55 is topped by a slanting roof which partially obscures windows in Apartment 1G. Thus, much of the interior of Apartment 1G is not visible from the street. The building is set back from the street and its base is approximately 189 feet from the base of Number 139-50. Apartment 3G is on the third floor of Number 139-50 and is about one and one-half stories higher than Apartment 1G. The two apartments are thus about 190 feet apart. 3

The testimony of the agents revealed that at the beginning of October the landlord of Number 139-50 had given them permission to use Apartment 3G. Surveillance of Apartment 1G had begun shortly thereafter, and continued every weekday between October 4 and October 10, and at least 2-3 days a week thereafter until October 24. The telescope, which the government states had a magnification power of 36, 4 was brought to Apartment 3G on the first or second day of the surveillance, so that the agents could read the labels on containers that Bisbee had seen in Apartment 1G. There were usually two or more agents observing from Apartment 3G, and the telescope was in virtually constant use by one of them. All of the agents discussed their observations.

The defense called as a witness Kenneth Bynoe, a private investigator who had been a police sergeant for sixteen years. Bynoe and Taborda's attorney had taken photographs of Number 139-55 from its driveway and from the sidewalk in front; these photographs were received in evidence. Bynoe testified that if a person were sitting at the window-end of the kitchen table in Apartment 1G, it would not be possible from the street to see into the kitchen beyond that person. Bynoe had also been inside Apartment 3G and had attempted to take photographs from there, but those photographs did not "come out." He did not offer testimony as to the visibility of the interior of Apartment 1G from Apartment 3G.

The Decision To Suppress

The district court granted Taborda's motion to suppress the evidence seized pursuant to the search warrant. Judge Nickerson ruled, on the basis of Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), and United States v. Kim, 415 F.Supp. 1252 (D.Haw.1976), that "the government must obtain judicial sanction before using a telescope." 491 F.Supp. at 52. Rejecting any subjective test as to privacy expectations, the court stated as follows:

This court reads the Katz case to mean, as a minimum, that the people may demand privacy unless a policeman can see or hear them from a place accessible to those members of the public not preternaturally inquisitive.

(Id. at 53.)

The court observed that the affidavit underlying the search warrant did not state "which, if any, of the observations were made with unaided eyes" (id. at 51), nor indicate the distance between Apartments 1G and 3G. Despite having received testimony at the hearing as to what was observed without aid of the telescope, the court granted the motion to suppress on the ground that the affidavit was insufficient to draw such distinctions: "so far as the affidavit reveals, every fact critical to a showing of probable cause might have been observed exclusively through the telescope." (Id. at 51.) Judge Nickerson concluded that even if the agents had been able to see Taborda from Apartment 3G, "we must assume that without the telescope they could not have determined what he was doing." (Id. at 53.).

This appeal followed pursuant to 18 U.S.C. § 3731 (1976).

II

Warrantless searches are, "subject only to a few specifically established and well-delineated exceptions," per se unreasonable and are therefore prohibited by the Fourth Amendment. Katz v. United States, supra, 389 U.S. at 357, 88 S.Ct. at 514; Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043,...

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