U.S. v. Taketa

• Citation: 923 F.2d 665
• Decision Date: 08 January 1991
• Docket Number: 88-1024,Nos. 88-1022,s. 88-1022
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. David TAKETA and Thomas O'Brien, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 665

923 F.2d 665

59 USLW 2478

UNITED STATES of America, Plaintiff-Appellee, v. David TAKETA and Thomas O'Brien, Defendants-Appellants.

Nos. 88-1022, 88-1024.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 12, 1988.

Decided Jan. 8, 1991.

Richard R. Shreves, Oscar B. Goodman, and David Z. Chesnoff, Goodman, Stein, Chesnoff & Quintana, Las Vegas, Nev., for defendants-appellants.

Howard J. Zlotnick and Camille W. Chamberlain, Asst. U.S. Attys., Las Vegas, Nev., for plaintiff-appellee.

Appeal from the United States District Court for the District of Nevada.

Before: FLETCHER, BEEZER and O'SCANNLAIN, Circuit Judges.

BEEZER, Circuit Judge:

David Taketa, a Drug Enforcement Administration ("DEA") agent, and Thomas O'Brien, an officer of the Nevada Bureau of Investigations ("NBI"), appeal their convictions for illegal wiretapping. The appellants contend that their convictions were obtained through the use of evidence seized in violation of the fourth amendment, that videotape evidence was improperly admitted, and that the district court improperly commented on the evidence. We hold that there was no fourth amendment violation by the warrantless search of O'Brien's office. However, we hold that the admission into evidence of a videotape of O'Brien and Taketa violated the fourth amendment, and consequently reverse their convictions.

I

The facts of this case resemble a bad spy novel. David Taketa was the Special Agent in charge of the DEA office at McCarran International Airport in Las Vegas, Nevada. He shared the office with Thomas O'Brien, an NBI officer assigned to the DEA airport office for the purpose of joint federal-state investigations, but not working directly for the DEA. Another DEA agent, Leroy Kenneth Hartung, also worked at the airport office.

On April 3, 1986, DEA Agent Beth Walther Latheberry reported to Joseph Catale, the Resident Agent in Charge of DEA operations in Las Vegas, that Taketa had shown her how to modify a pen register to intercept telephone conversations illegally. ¹ Catale initiated an investigation. DEA Special Agent Peter MacVean from the Los Angeles technical operations group was sent to assist.

The airport office consisted of a large office with two smaller offices attached. Hartung used the larger general office, while Taketa and O'Brien each used one of the smaller private offices. Although the airport office was under Catale's authority, its operations tended to be independent from those of the downtown office.

On the night of April 24, 1986, Catale and MacVean entered the airport office by means of a master key Catale had obtained from Hartung. The doors to the inner offices were open. Catale and MacVean examined the airport office to determine the feasibility of installing video surveillance equipment the next time the office was authorized to operate a pen register.

In May 1986, the airport office received authority to use a pen register in an investigation of one Eugenio Rodriguez. On the night of May 15, 1986, Catale, MacVean, and another agent reentered the airport office. They did not see the pen register in the large general office or in Taketa's office. The agents determined that the pen register was operating in O'Brien's office because that was where the phone lines terminated. O'Brien's door was locked, and the agents did not have a key. They forced the lock with a plastic card and entered O'Brien's office. Inside, they found a pen register in operation. A cable ran from the pen register to a briefcase. The agents opened the briefcase. Inside it they found a Bell & Howell "intelligence kit" used for covert audio surveillance. The intelligence kit was recording telephone calls picked up by the pen register; in fact, a call was recorded while the agents were in O'Brien's office.

The agents removed and copied the audio tape found in the intelligence kit and then inserted a duplicate tape in place of the original. They took photographs of the scene, and installed a hidden video camera in the ceiling of the office. The video camera photographed only the area of the office in which the pen register and intelligence kit were located; it did not have audio capability. On May 16, MacVean obtained a search warrant for the airport office based on what he had learned during his covert entry. Between May 16 and May 19, MacVean entered the airport office twice more at night to replace tapes in the surveillance camera. The doors to the inner offices were open on both occasions. On May 19, 1986, DEA agents executed the search warrant, seizing numerous personal and business items from Taketa and O'Brien.

The appellants were indicted on several counts of illegal interception of wire communications, conspiracy to intercept such communications, and use of intercepted communications, all in violation of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. Secs. 2510-20. ² They moved to suppress all the aforementioned evidence under the exclusionary rule. The district court denied the motion. The court, relying on O'Connor v. Ortega, 480 U.S. 709, 107 S.Ct. 1492, 94 L.Ed.2d 714 (1987), found that the appellants did not have a reasonable expectation of privacy in O'Brien's office because of DEA policy and the shared nature of the offices; that the surveillance was "reasonably related" to the legitimate goal of uncovering "work-related misconduct"; that probable cause was not required under O'Connor, and that the agents' actions were not unreasonably intrusive.

The appellants were convicted after a jury trial of four of the six counts, and given suspended sentences of five years imprisonment, with 300 hours of community service. They timely filed a consolidated appeal. We have jurisdiction. 28 U.S.C. Sec. 1291 (1988); Fed.R.App.P. 4(b). As a mixed question of law and fact, we review de novo the ultimate lawfulness of a search. United States v. Feldman, 788 F.2d 544, 550 (9th Cir.1986), cert. denied, 479 U.S. 1067, 107 S.Ct. 955, 93 L.Ed.2d 1003 (1987).

II

Counsel for the appellants argues that a determination of the search's constitutionality will apply equally to Taketa and O'Brien. We disagree. The incriminating evidence came only from O'Brien's office. We must first consider, therefore, whether Taketa has standing to challenge the search of O'Brien's office.

The term "standing" is often used to describe an inquiry into who may assert a particular fourth amendment claim. See, e.g., Rakas v. Illinois, 439 U.S. 128, 139-40, 99 S.Ct. 421, 428-29, 58 L.Ed.2d 387 (1978). Fourth amendment standing is quite different, however, from "case or controversy" determinations of article III standing. Id. Rather, it is a matter of substantive fourth amendment law; to say that a party lacks fourth amendment standing is to say that his reasonable expectation of privacy has not been infringed. See id. It is with this understanding that we use "standing" as a shorthand term.

In Rakas, the Supreme Court explicitly rejected concepts of "vicarious" or "target" standing to assert fourth amendment rights. Id. at 133-38, 99 S.Ct. at 425-28. Reiterating that fourth amendment rights are personal rights, the Court stated that "[a] person who is aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person's premises or property has not had any of his Fourth Amendment rights infringed." Id. at 134, 99 S.Ct. at 425.

Before reaching the merits of the question of Taketa's standing, we must determine whether the government has waived this issue. The government has not specifically claimed on appeal that Taketa has no personal fourth amendment standing. ³ Rather, it has generally asserted that the appellants lacked reasonable expectations of privacy in their offices. In Steagald v. United States, 451 U.S. 204, 208-11, 101 S.Ct. 1642, 1646-47, 68 L.Ed.2d 38 (1981), the Court declined to consider the argument, not raised before either the district or the appellate courts, that the petitioner lacked an expectation of privacy in his house. The Court held that the government's failure to object to contrary findings waived the issue. Id.

Similarly, in United States v. Sherwin, we did not consider a challenge to fourth amendment standing not raised in the district court or as an original ground for appeal. 539 F.2d 1, 5 n. 4 (9th Cir.1976) (en banc). Moreover, Judge Kennedy cited his Sherwin precedent a decade later in a case that correctly distinguished fourth amendment from Article III standing in light of Rakas, and declined to consider a fourth amendment standing argument that apparently would have been decided in favor of the government if timely raised. United States v. Spilotro, 800 F.2d 959, 962-63 (9th Cir.1986).

We conclude that both Steagald and the Sherwin line of case law can be distinguished from the present appeal. In Steagald, the government repeatedly had acquiesced in the district and appellate courts incorrect findings of fact regarding Steagald's status. 451 U.S. at 210, 101 S.Ct. at 1646. Here, although the government did not press the issue in the district court, it neither assented to contrary findings of fact nor abandoned the issue. The reliance issue raised by Steagald does not concern us here.

Sherwin and Spilotro involved government appeals of suppression motions that had been granted. It was proper that in that circumstance the appellate courts declined to consider government arguments untimely raised. In this case, by contrast, we consider a defendant's appeal of a suppression motion that was denied, when the question was raised in the district court. The burden of demonstrating that the evidence should have been suppressed is upon the appellants. See United States v. Nadler, 698 F.2d 995, 998 (9th Cir.1983). Taketa must demonstrate that he had a reasonable expectation of privacy in O'Brien's office even if the government has not argued on appeal that...