U.S. v. Wells, CR 10–116 BDB.

CourtUnited States District Courts. 10th Circuit. Northern District of Oklahoma
Writing for the CourtBRUCE D. BLACK, Chief Judge.
Citation789 F.Supp.2d 1270
PartiesUNITED STATES of America, Plaintiff,v.Harold WELLS, Nick Debruin, and Ernest Bruce Bonham, Defendants.
Docket NumberNo. CR 10–116 BDB.,CR 10–116 BDB.
Decision Date12 May 2011

789 F.Supp.2d 1270

UNITED STATES of America, Plaintiff,
Harold WELLS, Nick Debruin, and Ernest Bruce Bonham, Defendants.

No. CR 10–116 BDB.

United States District Court, N.D. Oklahoma.

May 12, 2011.

[789 F.Supp.2d 1271]

Jane W. Duke, United States Attorney's Office, Little Rock, AR, for Plaintiff.Julia Lynn O'Connell, Federal Public Defender's Office, Shannon Michelle McMurray, Shannon M. McMurray Law Office, William Dixon Lunn, Tulsa, OK, for Defendants.
Memorandum Opinion and Order
BRUCE D. BLACK, Chief Judge.

THIS MATTER comes before the Court for consideration of several motions to suppress filed by all three Defendants (Docs. 112, 120, 122, 129, 156). The Court held a hearing on these motions and other motions on May 2, 2011. Based on the arguments contained in the parties' briefs and the arguments provided at the May 2 hearing, the motions to suppress will be denied.

The motions to suppress concern videotapes and audiotapes obtained as a result of a “sting” operation conducted by the federal government. At the time of the operation Defendants were police officers employed by the city of Tulsa, Oklahoma. An officer other than Defendants was suspected of stealing money and drugs from various individuals who had been detained or arrested on charges of drug-dealing. In order to investigate this officer, FBI agents set up the sting operation. An unidentified individual informed the suspect officer that a drug dealer carrying a large amount of controlled substances, and presumably a large amount of cash, was coming into Tulsa from a different city and would be staying at a certain motel in Tulsa. The “drug dealer” was in fact an undercover officer working for the FBI. A motel room was rented in the name of the undercover officer, and the room was “bugged” with several video/audio recording cameras. No warrant was obtained prior to the bugging or at any time thereafter.

[789 F.Supp.2d 1272]

While the undercover officer was staying at the motel, the suspect officer, Defendants, and other Tulsa police officers arrived at the motel. The undercover officer left his room at some point, at which time he was detained by law enforcement officers, who obtained written consent from the undercover officer to search his room. The suspect officer and one Defendant entered the room in the absence of the undercover officer, to be joined later by another Defendant and, at various times, other officers. Their activities in the room need not be detailed; suffice it to say the Government believes the video and audio tapes contain evidence of incriminating behavior. In addition to recording Defendants' and other officers' activities and conversations taking place during the undercover officer's absence from the room, the video and audio surveillance also recorded activities and conversations that occurred after the undercover officer had been brought into the room. Defendants have moved to suppress the video and audio recordings obtained as a result of the warrantless electronic surveillance of the motel room. These recordings constitute a portion of the evidence the Government wishes to present against Defendants, who have been charged, inter alia, with conspiracy to steal funds belonging to the Government, as a result of activities that took place in the undercover officer's motel room.

DISCUSSIONUndercover Officer's Presence in the Room

Defendants do not challenge admission of the recordings to the extent they depict periods of time during which the undercover officer was present in the room. This concession is in line with pervasive case law holding that while an informant who has consented to the recording is present, video and audio surveillance of a hotel room or other premises is not prohibited by either the Fourth Amendment or federal statute. See United States v. Lee, 359 F.3d 194, 201–03 (3d Cir.2004); United States v. Nerber, 222 F.3d 597, 604 (9th Cir.2000); United States v. Longoria, 177 F.3d 1179, 1184 (10th Cir.1999); United States v. Yonn, 702 F.2d 1341, 1347 (11th Cir.1983) (no Fourth Amendment distinction between an informant using a motel room bug or wearing a wire).

Video Surveillance Versus Audio Surveillance

A federal statute (“the wiretap statute”) regulates the interception and recording of audio communications, as well as the admissibility of such recordings into evidence in a judicial proceeding. Title III, 18 U.S.C. §§ 2510–20. No such statute applies to video surveillance and recording. See United States v. Larios, 593 F.3d 82, 91 (1st Cir.2010); United States v. Taketa, 923 F.2d 665, 675 (9th Cir.1991). Instead, video surveillance is governed by the strictures of the Fourth Amendment. United States v. Mesa–Rincon, 911 F.2d 1433, 1437 (10th Cir.1990). However, with respect to the crucial question in this case, there is no difference in analysis between the wiretap statute and the Fourth Amendment. This is because the wiretap statute applies only to communications that are made while the communicator has exhibited “an expectation that such communication is not subject to interception under circumstances justifying such expectation.” 18 U.S.C. § 2510(2). That phrase has been construed by the Tenth Circuit and other courts to mean the wiretap statute is the equivalent of the Fourth Amendment with respect to the communications it protects. See Larios, 593 F.3d at 92; Longoria, supra, 177 F.3d at 1181–82. In other words, if the communicator has no constitutionally reasonable expectation of privacy at the time the communication is made, the communication will not be subject

[789 F.Supp.2d 1273]

to the wiretap statute. Similarly, of course, video surveillance will not run afoul of the Fourth Circuit if the individual whose actions are being recorded has no reasonable expectation of privacy at the time of the surveillance. See, e.g., Nerber, supra, 222 F.3d at 604. For purposes of this case, therefore, there is no difference in analysis between the audio surveillance and the video surveillance; the dispositive issue is whether Defendants had a reasonable expectation of privacy in the undercover officer's hotel room, while the undercover officer was not present.Reasonable Expectation of Privacy

Courts agree that an individual's reasonable expectation of privacy can vary depending on the nature of the government's conduct. See Larios, 593 F.3d at 94; Nerber, 222 F.3d at 603. That is, the Fourth Amendment will be applied more strictly to protect individuals where the government utilizes more intrusive methods of performing searches. Id. Video and audio surveillance are highly intrusive forms of investigative mechanisms and, for that reason, have been subjected to a high level of scrutiny under the Fourth Amendment and the wiretap statute, with video surveillance deemed even more intrusive than audio “bugging.” See Nerber, 222 F.3d at 603–05; Mesa–Rincon, 911 F.2d at 1442–43. However, neither video nor audio surveillance automatically violates the Fourth Amendment; when such surveillance is conducted in a public place such as a bank, where no reasonable expectation of privacy exists, the surveillance is not subject to suppression. See Taketa, supra, 923 F.2d at 677; see also United States v. Vankesteren, 553 F.3d 286, 291 (4th Cir.2009) (video surveillance of defendant's open field, where he had no reasonable expectation of privacy, did not violate Fourth Amendment). The Court will bear in mind this heightened level of protection against audio and especially video surveillance, in deciding the reasonable-expectation-of-privacy question.

The test for determining whether a reasonable expectation of privacy exists for a particular Defendant in a particular location is two-fold: first, the defendant must establish that he “had an actual, subjective expectation of privacy-i.e., that his communications were not subject to interception[.]” Longoria, supra, 177 F.3d at 1181–82. Second, the defendant's expectation must be one “society would objectively consider reasonable.” Id

The Court accepts that Defendants had an actual or subjective expectation of privacy in the motel room while they were alone in the room. As evidenced by their alleged actions, they did not expect anyone to be conducting surveillance, and did not think anyone was observing them through any means, electronic or otherwise. The crucial issue in this case is whether Defendants' subjective expectation of privacy is one society would accept as objectively reasonable. As discussed below, the Court...

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2 cases
  • Mocek v. City of Albuquerque, CIV 11–1009 JB/KBM.
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • February 28, 2014
    ...actors can assert a reason for their interference. 2012 Tr. at 24:21–25:5 (Boelcke). Mocek pointed out that, in United States v. Wells, 789 F.Supp.2d 1270 (N.D.Okla.2011), the United States District Court for the Northern District of Oklahoma found that police officers had no privacy intere......
  • Mocek v. City of Albuquerque, CIV 11-1009 JB/KBM
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • January 14, 2013
    ...actors can assert a reason for their interference. Tr. at 24:21-25:5 (Boelcke). Mocek pointed out that, in United States v. Wells, 789 F. Supp. 2d 1270 (N.D. Okla. 2011), the United States District Court for the Northern District of Oklahoma found that police officers had no privacy interes......

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