United States v. Kahan

• Decision Date: 31 October 1972
• Docket Number: No. 71 CR. 1327.,71 CR. 1327.
• Citation: United States v. Kahan, 350 F.Supp. 784 (S.D. N.Y. 1972)
• Parties: UNITED STATES of America, Plaintiff, v. Norbert Nisan KAHAN and Bertha Limo Newman, Defendants.
• Court: U.S. District Court — Southern District of New York

350 F. Supp. 784

UNITED STATES of America, Plaintiff, v. Norbert Nisan KAHAN and Bertha Limo Newman, Defendants.

No. 71 CR. 1327.

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

October 31, 1972.

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Whitney North Seymour, Jr., U. S. Atty., by Robert P. Walton, Asst. U. S. Atty., New York City, for plaintiff.

Jesse Berman, New York City, for Kahan.

Joseph F. Minutolo, New York City, for Newman.

MOTLEY, District Judge.

OPINION

Defendants, Norbert Nisan Kahan and Bertha Limo Newman, were indicted on November 30, 1971 in sixty-seven counts charging them with conspiracy and various substantive offenses relating to the submission and adjudication of certain applications by the Immigration and Naturalization Service of the United States INS. More specifically, Mrs. Newman was charged with making false statements on numerous applications which she submitted to the INS for extensions of stay on behalf of non-immigrant aliens. 18 U.S.C. § 1001. She was also charged with giving gratuities to Mr. Kahan, who was, at the time, an INS employee involved in adjudicating applications on behalf of aliens. 18 U. S.C. § 201(f). Mrs. Newman was alternatively charged with aiding and abetting these offenses. 18 U.S.C. § 2. Mr. Kahan was also charged under 18 U.S.C. § 1001 with making false statements on three INS documents and with accepting the money offered by Mrs. Newman for or because of his official duties. 18 U. S.C. § 201(g). In addition, Mr. Kahan was charged in two counts with perjury, which he allegedly committed on November 11, 1971 and again on November 15, 1971, by testifying falsely before a grand jury which was investigating these activities. 18 U.S.C. § 1623 (1970). During the course of the trial, two suppression motions, which should have been made before trial, were made by defense counsel. Despite the untime-liness of both motions, the court allowed a hearing on each and ruled on some from the bench. This opinion sets forth the reasons for the court's rulings on both motions.

Decision on Motion to Suppress Evidence Obtained in Search of Defendant Kahan's Wastebasket

Defendant Kahan moved to suppress a 3" by 5" piece of paper from a government-issued note pad and various pieces of carbon paper and other components of government forms found in a wastebasket by a criminal investigator of the INS. At the time the evidence was discovered, the wastebasket was either beside or under defendant's desk and was reserved for his exclusive use. Defendant claims that the evidence in question was obtained by the government as the result of unconstitutional searches and seizures. The court agreed and, therefore, the challenged items were not admitted into evidence.

The items at issue were seized by the criminal investigator on May 17, 1971 and June 4, 1971 during the course of a search of the wastebasket. Searches of defendant's wastebasket had been made on every weekday from mid-March 1971 to June 4, 1971 and continued in like manner through November, 1971. On each day, the search was carried out in the late afternoon after the defendant had left the office for the day. The searches were conducted as part of a criminal investigation of defendant which had begun many months earlier. The express purpose of the investigation was to "determine whether he Kahan had unlawfully conspired with the defendant Newman to defraud the INS and to violate federal law in connection with the performance of his official duties." Government's Memorandum of Law 2. At no time did the government investigator obtain a search warrant to authorize any of the searches of defendant's wastebasket. However, the INS investigator did conduct the searches with the consent of defendant's supervisor in the office who was also involved in the investigation.

The issue for the court involved the resolution of three interrelated questions. The first question is whether the actions of the investigator, as described above, constituted "searches and seizures" within the meaning of the Fourth Amendment. See Terry v. Ohio, 392 U. S. 1, 16, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Second, if they did, does defendant have standing to object to them? See Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960). Finally, if defendant can properly raise the Fourth Amendment issue, were the searches of the wastebasket and the seizure of the items, in the absence of a warrant, "unreasonable" by Fourth Amendment standards and, therefore, unconstitutional? See Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 19 L.Ed.2d 576 (1967).

Ordinarily, Fourth Amendment problems arise in the context of a search of the person or his property. In such situations, it is clear that the person, if he does not consent to the search or seizure, is protected by the Fourth Amendment. And the government must justify its search either on the ground that it was made pursuant to a valid search warrant or that it was within one of the specifically established and well-defined exceptions to the warrant requirement. Katz, supra, at 357, 88 S.Ct. 507.

At times, however, there is the question whether a search has taken place at all, so that the person can claim Fourth Amendment protection. This question is often confused with the question of whether the circumstances of the search fall within one of the well-defined exceptions.¹ For example, "what a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection." Katz, supra, at 351, 88 S.Ct. at 511. Similarly, where an officer is authorized to make an inventory of a person's property which is in police custody for the purpose of protecting the property, the officer may seize objects which are in plain view without violating the Fourth Amendment prohibition. Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968). See Coolidge v. New Hampshire, 403 U.S. 443, 466, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) (Stewart, J., plurality opinion) and cases cited therein. The Supreme Court has also held that no Fourth Amendment search takes place when a caseworker makes a home visit under the Aid to Dependent Children program in New York. Wyman v. James, 400 U.S. 309, 91 S.Ct. 381, 27 L.Ed.2d 408 (1971).

This court finds that, in the circumstances presented by this case, the activity of the government agent clearly constituted a Fourth Amendment search. The criminal investigator's express purpose in rummaging through the wastepaper basket was to obtain evidence which could be used to prove the defendant guilty of a crime. This case is thus in stark contrast to Wyman v. James, supra, at 317-318, 91 S.Ct. 381, where the Supreme Court's holding that no search had occurred turned precisely on the absence of "the traditional criminal law context." Nor is there any contention that the contents of the receptacle were in plain view and, therefore, within the exception carved out by the language in Katz, supra.

This is not a case where an office supervisor or fellow employee in a government office is looking for some needed document or record and inadvertently happens upon incriminating evidence in the desk or wastebasket of another employee. Nor is it a situation where a supervisor is inspecting the area used by a subordinate in order to examine his work or to evaluate his performance on the job. There is no doubt that the government should be able to manage its agencies and offices effectively and without undue restrictions on the supervision of its employees. What would be normal in the supervision and control of employees in a private business should be allowable in government offices as well. Thus, to assure efficiency and honesty, government supervisors have authority to oversee the work of their employees. However, when it comes to a specifically focused investigation of the suspected criminal activities of an employee in the course of his employment, it is obvious that the government, as employer, stands in a position much different from that of a private organization. If a private employer suspects misconduct on the part of an employee, he will not ordinarily conduct an investigation to substantiate criminal charges against him. Rather, he will simply fire that employee. If any private investigation of criminal conduct takes place at all, it will usually be for the purpose of retrieving the employer's property or correcting his accounts. In any event, the Fourth Amendment does not apply to such private action.

In contrast, when a government supervisor begins an investigation of suspected criminal activities of an employee in the course of his work, the supervisor's role is no longer that of a manager of an office, but that of a criminal investigator for the government. The purpose of the supervisor's surveillance is no longer simply to preserve efficiency in the office. It is specifically designed to prepare a criminal prosecution against the employee. In that case, searches and seizures by the supervisor or by other government agents are governed by the Fourth Amendment admonition that a warrant be obtained in the absence of exigent circumstances. There is no dispute that this type of ongoing criminal investigation of Mr. Kahan occurred in this case and, hence, the intrusion into his wastebasket must be considered a Fourth Amendment search.

However, the fact that a search did take place does not automatically give defendant standing to raise the Fourth Amendment issue. Jones v. United States, supra. A defendant can waive his Fourth Amendment rights by voluntarily consenting to a search of his person or property. No such consent was given in this case. Moreover, a defendant may lose his Fourth Amendment standing for other reasons as well, since the "capacity to claim the protection of the Amendment depends . . . upon whether the area searched was one in ...