United States v. Kim

• Decision Date: 09 June 1976
• Docket Number: Cr. No. 75-0154,75-0155 and 76-0005.
• Citation: 415 F. Supp. 1252
• Parties: UNITED STATES of America, Plaintiff, v. Earl K. H. KIM, Sr., also known as "the Old Man" and "E. K.", et al., Defendants. UNITED STATES of America, Plaintiff, v. Charles A. WONG, also known as "C. W.", et al., Defendants. UNITED STATES of America, Plaintiff, v. Earl K. H. KIM, Sr., also known as "the Old Man" and "E. K.", et al., Defendants.
• Court: U.S. District Court — District of Hawaii

415 F. Supp. 1252

UNITED STATES of America, Plaintiff, v. Earl K. H. KIM, Sr., also known as "the Old Man" and "E. K.", et al., Defendants.

UNITED STATES of America, Plaintiff, v. Charles A. WONG, also known as "C. W.", et al., Defendants.

UNITED STATES of America, Plaintiff, v. Earl K. H. KIM, Sr., also known as "the Old Man" and "E. K.", et al., Defendants.

Cr. Nos. 75-0154, 75-0155 and 76-0005.

United States District Court, D. Hawaii.

June 9, 1976.

Howard T. Chang, Asst. U.S. Atty., Harold M. Fong, U.S. Atty., Honolulu, Hawaii, Michael L. Sterrett, Sp. Atty., San Francisco Strike Force, San Francisco, Cal., for plaintiff.

David C. Schutter, Honolulu, Hawaii, for defendants Earl K. H. Kim, Sr. and Charles A. Wong.

Ernest Y. Yamane, Honolulu, Hawaii, for defendants Sam Kobayashi, Thomas K. Arai, Michael H. Tanaka.

Wayne W. S. Luke, Honolulu, Hawaii, for defendant Peter J. Kim, Jr.

John S. Edmunds, Honolulu, Hawaii, for defendants Charles A. Wong, Robert R. Martinez.

Michael T. I. Kim, Honolulu, Hawaii, for defendants Ernest Nakamura, Joseph H. Kawamoto, Eugene Yamamoto.

Rogers M. Ikenaga, Honolulu, Hawaii, for defendants Marcello Molina, Patrick Sambueno.

Richard Turbin, Honolulu, Hawaii, for defendant Lawrence S. Motoda.

Steven E. Kroll, Honolulu, Hawaii, for defendant Wallace S. Furukawa.

Felix A. Maciszewski, Honolulu, Hawaii, for defendant Patrick Nagao.

Milton M. Motooka, Honolulu, Hawaii, for defendant Melvyn Wise.

Joseph A. Ryan, Honolulu, Hawaii, for defendant Clinton K. Burns.

Edward R. Lebb, Honolulu, Hawaii, for defendant Dennis H. Higa.

James Kawashima, Honolulu, Hawaii, for defendant Randall W. Y. Ng.

Jason F. Oliver, Honolulu, Hawaii, for defendant Kenneth K. Komoto.

Wilfred H. C. Youth, Honolulu, Hawaii, for defendant Nancy Yamada.

Lester L. Peetz, Honolulu, Hawaii, for defendant Isamu Toguchi.

Thomas Bowers, Honolulu, Hawaii, for defendant Joseph Barrozo, Jr.

Matthew S. K. Pyun, Jr., Honolulu, Hawaii, for defendant Thomas T. Nishigaya.

MEMORANDUM AND ORDER SUPPRESSING CERTAIN EVIDENCE

SAMUEL P. KING, Chief Judge.

As part of their investigation into suspected gambling activities, agents of the Federal Bureau of Investigation (FBI) used an 800 millimeter telescope with a 60 millimeter opening to observe activities in defendant Peter Kim's apartment and on his balcony. The building from which the surveillance was conducted was approximately a quarter of a mile from Kim's building; there were no buildings in the line of sight located significantly closer to Kim's building.

With the telescope, the agents were able to see defendants Kobayashi and Nakamura on Kim's balcony and within his apartment. In addition, they observed Kim making numerous telephone calls while reading what the telescope revealed to be the J. K. Sports Journal. The latter was allegedly used in connection with Kim's operation of the "telephone spot" for a major gambling operation.

From a different vantage point in a building on the opposite side of, and approximately 160 feet from, Kim's building, a different group of agents kept under surveillance an outdoor terrace which connected the apartment building elevator in Kim's building with the entrance to his apartment. In the course of this surveillance, the purpose of which was to keep track of who frequented Kim's apartment, the agents used a pair of high-powered (7 × 35) binoculars.

The information acquired during the surveillance of Kim's apartment was used both to establish probable cause for court approval of a wiretap on Kim's phone and, somewhat paradoxically, to demonstrate that the wiretap was necessary since the surveillance and other "normal" investigative procedures could not produce enough evidence to convict the suspected gamblers. See 18 U.S.C. § 2518(1)(c). Defendant Peter Kim is joined by all other defendants in moving to invalidate these and any other uses of the surveillance of Kim's apartment.

The defendants contend that using the artificial viewing aids constituted a search and that the search was unreasonable since no warrant had been obtained. See Cady v. Dombrowski, 413 U.S. 433, 439, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973).¹ The government's most forceful response is that since the activities in and around Kim's apartment were in plain view, and since all parties agree that the agents had a right to be where they were during the surveillance, no search took place. It would follow, of course, that no warrant was required.

Thus, the issue on which resolution of this motion turns is which, if any, of the agents' activities were searches within the meaning of the Fourth Amendment.

In Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), a case involving electronic eavesdropping on an individual placing a telephone call from a public telephone booth, the Supreme Court held that government agents are considered to have engaged in search activities when they intrude on an individual's privacy. See Katz v. United States, supra, 389 U.S. at 353, 88 S.Ct. 507. There can be no question, contrary to the government's assertion at oral argument, that the protection recognized by Katz includes protection against unreasonable visual intrusions. See United States v. Capps, 435 F.2d 637, 641, n. 7 (9th Cir. 1970) and State v. Bryant, 287 Minn. 205, 177 N.W.2d 800, 803 (1970). Visual intrusions can interfere with an individual's right to be left alone just as powerfully as the eavesdropping at issue in Katz.

Not all surveillances with visual aids, however, constitute invasions of privacy. There are cases upholding police surveillance with telescopes or binoculars of non-private places. See, e.g., United States v. Loundmannz, 153 U.S.App.D.C. 301, 472 F.2d 1376 (1972) (observing defendant's bookmaking activities on the street); United States v. Grimes, 426 F.2d 706 (5th Cir. 1970) (observing defendants placing contraband in a car). See also United States v. Minton, 488 F.2d 37 (4th Cir. 1973). These cases do not answer the question of whether using artificial aids to observe activities within an individual's home intrudes on that individual's privacy and therefore constitutes a search.

We are not concerned here with police observations into a home which were made unaided by a telescope or binoculars. Nor are we deciding the extent to which an agent may "crane his neck, or bend over, or squat, . . . so long as what he saw would have been visible to any curious passerby." See James v. United States, 135 U.S.App.D.C. 314, 418 F.2d 1150, 1151, n. 1 (1969). At least two cases which have upheld unaided police observations into private premises have done so only after making clear that no artificial amplification devices were involved. See, e.g., United States v. Fisch, 474 F.2d 1071, 1078 (9th Cir. 1973) and Ponce v. Craven, 409 F.2d 621, 625 (9th Cir. 1969), cert. denied, 397 U.S. 1012, 90 S.Ct. 1241, 25 L.Ed.2d 424 (1970). Court approval of such warrantless observations might be considered the traditional rule.

On the other hand, several cases have considered and upheld the use of visual aids to detect activities in private premises. In Fullbright v. United States, 392 F.2d 432 (10th Cir.), cert. denied, 393 U.S. 830, 89 S.Ct. 97, 21 L.Ed.2d 101 (1969) the court upheld the introduction of evidence which government agents had gathered by looking into the defendant's shed with binoculars. The court stated that "observations from outside the curtilage of activities within are not generally interdicted by the Constitution. Indeed, to so hold might require passing officers to close their eyes to the commission of felonies on front door steps." Id. at 434. See also Johnson v. State, 2 Md. App. 300, 234 A.2d 464 (Ct. of Sp.App., 1967). Similarly, the Supreme Court of Pennsylvania upheld the warrantless use of binoculars by a police agent to look through the window of the defendant's shop. See Commonwealth v. Hernley, 216 Pa.Super. 177, 263 A.2d 904 (1970), cert. denied, 401 U.S. 914, 91 S.Ct. 886, 27 L.Ed.2d 813 (1971). The agent was approximately 35 feet from the defendant's window during the surveillance. The court held that "it was incumbent on the suspect to preserve his privacy from visual observation" by drawing his curtains. See Commonwealth v. Hernley, supra, 216 Pa.Super. at 181-182, 263 A.2d at 907.²

This court respectfully declines to follow Fullbright and Hernley. After Katz, the concept of curtilage and the presence or absence of a physical intrusion can have "no constitutional significance" in determining whether or not a search has taken place. See Katz v. United States, supra, 389 U.S. at 353, 88 S.Ct. 507; United States v. Holmes, 521 F.2d 859, 865 (5th Cir. 1975). It is of the utmost significance, however, and this court so finds, that the sophisticated visual aids available to the government can intrude on individual privacy as severely as the electronic surveillance in Katz or the wiretapping in Berger v. State of New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967).³ It is inconceivable that the government can intrude so far into an individual's home that it can detect the material he is reading and still not be considered to have engaged in a search. See also Amsterdam, Perspectives on the Fourth Amendment, 58 Minn.L.Rev. 349, 404 (1974). If government agents have probable cause to suspect criminal activity and feel the need for telescopic surveillance, they may apply for a warrant; otherwise, they have no right to peer into people's windows with special equipment not generally in use.

The quest for evidence directed at Kim's apartment is not exempted from Fourth Amendment regulation by the plain view doctrine. Compare Hester v. United States, 265 U.S. 57, 59, 44 S.Ct. 445, 68 L.Ed. 898 (1924). A "plain" plain view of Kim's apartment was impossible; only an aided view could penetrate. In view of the powerful technology used by the law enforcement agents in this case, the "plain" in plain view must be...