United States v. Stevens

• Decision Date: 19 July 1982
• Docket Number: No. 82 CR 122.,82 CR 122.
• Citation: 543 F. Supp. 929
• Parties: UNITED STATES of America, Plaintiff, v. Michael STEVENS, Dan Cotsirilos, John P. Heck, and David Shlagman, Defendants.
• Court: U.S. District Court — Northern District of Illinois

543 F. Supp. 929

UNITED STATES of America, Plaintiff, v. Michael STEVENS, Dan Cotsirilos, John P. Heck, and David Shlagman, Defendants.

No. 82 CR 122.

United States District Court, N. D. Illinois, E. D.

July 19, 1982.

COPYRIGHT MATERIAL OMITTED

Robert Breisblatt, Asst. U. S. Atty., Chicago, Ill., for plaintiff.

Kent R. Brody, Herbert Abrams, Edward M. Genson, Robert J. Cooley, Chicago, Ill., for defendants.

MEMORANDUM OPINION AND ORDER

HART, District Judge.

The defendants Michael Stevens, Dan Cotsirilos, John P. Heck, and David Shlagman were named in a four-count indictment returned by the February 1982 Grand Jury. Each was charged with receiving two stolen motion pictures, "Raiders Of The Lost Ark" and "On The Right Track", in violation of 18 U.S.C. §§ 2315 and 2, and infringing the copyrights of these two films in violation of 17 U.S.C. § 506(a) and 18 U.S.C. § 2.

Defendants Stevens, Cotsirilos, and Shlagman each have filed a number of pretrial motions. Defendants Heck and Stevens have filed general motions to adopt the pretrial motions and briefs filed by their codefendants.

The Court has previously denied the motions to sever. In this Memorandum Opinion and Order, the Court rules on the following motions: (1) motions to suppress evidence seized pursuant to a search warrant; (2) motions to suppress statements; (3) Stevens' motion to dismiss the indictment; (4) Cotsirilos' motion to dismiss the indictment (adopted by his codefendants); (5) motions for a bill of particulars; and (6) motions for production of exculpatory material (including Stevens' motion to produce evidence concerning inducements, promises and compensation to prospective government witnesses).

I. Motions to Suppress Evidence

The defendants have filed motions to suppress evidence seized pursuant to a search warrant issued by Magistrate Sussman on June 11, 1981, and executed on the same date. Pursuant to this warrant, prints of the movies "Raiders Of The Lost Ark" and "On The Right Track", as well as an assortment of video cassette recorders, tapes, and film materials, were seized.

Shlagman, Cotsirilos, and Heck affirmatively state that they have "standing" to challenge the legality of the search warrant, while the government contests their "standing" to raise this defense. For the reasons stated below, the Court finds that Cotsirilos, Shlagman, and Heck lack the capacity to challenge the legality of the search warrant. Their motions to suppress are denied.

Stevens also claims "standing" to challenge the legality of the search warrant, which right the government does not contest. The Court finds that Stevens has capacity to challenge the warrant, but denies his motion to suppress as well.

A. Legal Capacity of Cotsirilos, Shlagman, and Heck to Challenge the Search Warrant

These three defendants state that the evidence seized as a result of the search at 531 Wrightwood, Elmhurst, Illinois, included "one or two of the defendants' video recorders," that they were playing cards with friends in a "once a week game" at the location searched (which they state was owned by their codefendant Stevens), and that pursuant to Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), they have "standing" to challenge the sufficiency of the search warrant.

In Rakas v. Illinois, supra, the Court rejected the analysis of "standing" as the measure of the legal capacity to assert, by way of a motion to suppress evidence, the protection of the Fourth Amendment. The Court stated that in order to challenge the legality of a search warrant, a defendant must allege that his "legitimate expectation of privacy" was violated by the search. See United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980); Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980).

These defendants, who played cards once a week at Stevens' place of business, cannot be said to have had a legitimate expectation of privacy in the premises searched. They have alleged no right to exclude others from this location, no right to use the premises in Stevens' absence, the possession of no key, nor the presence of clothes, books, food, or anything else even arguably creating a legitimate expectation of privacy in the premises searched. Cf. United States v. Swart, 679 F.2d 698 (7th Cir. 1982) (legitimate expectation of privacy in defendant's place of business, allowing defendant to challenge warrantless search); United States v. Posey, 663 F.2d 37 (7th Cir. 1981), cert. denied ___ U.S. ___, 102 S.Ct. 1473, 71 L.Ed.2d 679 (1982) (defendant driving his wife's car had legitimate expectation of privacy in the car to contest warrantless search); and United States v. Lupo, 652 F.2d 723 (7th Cir. 1981) (no legitimate expectation of privacy in trunk of codefendant's car). The fact that one or two video recorders owned by some of these defendants were present at the location searched does not by itself give them legal capacity to challenge the search. The "automatic standing" rule of Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), seemingly relied on here by these defendants, was rejected and Jones overruled by United States v. Salvucci, supra. Thus the motions of Cotsirilos, Shlagman, and Heck to suppress the evidence seized, and their derivative motions to suppress statements made after the search, under Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), are denied.

B. Stevens' Challenge of the Search Warrant

The government has not challenged, on grounds of "standing" or the lack of a "legitimate expectation of privacy," Stevens' motion to suppress evidence seized pursuant to the search warrant. Thus this Court must reach the question of the sufficiency of the search warrant pursuant to which allegedly incriminating evidence was seized.

At the outset, the Court must state that the question of the existence of probable cause presented by the affidavit in support of the application for the search warrant is a close question. However, after careful consideration of the affidavit in light of the applicable precedent, the Court finds that probable cause did exist, and therefore denies Stevens' motion to suppress.

1. The Affidavit

On June 11, 1981, at 3:03 a. m., Special Agent of the FBI, Kenneth R. Misner swore to an 11-paragraph affidavit presented to Magistrate Sussman. The first four paragraphs of the affidavit sketch out in broad form Misner's background with the FBI, including his work investigating alleged criminal violations of the copyright act, and a lengthy general description of the practice of unauthorized duplications and sales of copyrighted motion pictures.

The parts of the affidavit relevant to the present inquiry state:

5. On June 9, 1981, at approximately 2:30 p. m., I received a telephone call from Ewing Layhew of the Film Security Office of the Motion Picture Association of America in Hollywood, California. He advised me that he is responsible for the investigation of illegal or bootleg reproduction of copyrighted films, and in that capacity he is familiar with those films which are copyrighted. The Film Security Office has previously provided me with accurate information concerning copyrighted material and films. During this conversation Layhew advised me that the film "Raiders Of The Lost Ark" is owned by Paramount Pictures Corporation and was published with requisite copyright notice and registration is pending.

6. On June 10, 1981, Layhew advised me that on June 8, an anonymous telephone call was received by Joseph Mascaret, Vice President, Film and Videotape Security, Paramount Pictures, New York, New York, to the effect that the anonymous caller advised that Dennis Johnson, Assistant Manager at the Fair Plain Cinema 5 Theatre located in Benton Harbor, Michigan, planned to take a .35 millimeter print of "Raiders Of The Lost Ark" to be duplicated during the night of June 10 to June 11, 1981, at a warehouse near the Indiana-Illinois border. The anonymous caller additionally advised that Johnson had previously transported films to this warehouse for duplication.

7. Layhew stated that a contract exists between Paramount Pictures and the Fair Plain Cinema 5 Theatre which states that the film "Raiders Of The Lost Ark" is to be used in the Fair Plain Cinema 5 Theatre from June 12, 1981 to July 10, 1981, and that the theatre has no right to duplicate the film or to have screenings in any other locations.

8. Robert Barenie, Special Agent of the Federal Bureau of Investigation assigned to the Benton Harbor, Michigan office of the FBI advised me that a Dennis Johnson was in fact the Assistant Manager at the Fair Plain Cinema 5 Theatre located at Fair Plain Plaza corner of M-139 and Napier Avenue, Benton Harbor, Michigan. Special Agent Barenie also advised that he is aware that the film "Raiders Of The Lost Ark" is due to begin showing at the theatre on June 12, 1981, and that a print of that film is on hand at that theatre currently.

9. Special Agent Barenie advised me that a physical surveillance was initiated at the Fair Plain Cinema 5 by Federal Bureau of Investigation Special Agents beginning at 11:00 p. m. Detroit time June 9, 1981. Johnson was visually observed entering the Fair Plain Cinema 5 Theatre at approximately 4:00 p. m. on June 10, 1981, and subsequently left the theatre at approximately 11:45 p. m. Johnson made two separate trips from the theatre to his automobile both of which times objects were taken from the theatre and placed in an automobile described as a 1978 Chevrolet Camaro, Michigan license number PZH 023. Johnson was under continual surveillance by James Hiller and Robert Kessler, Special Agents of the Federal Bureau of Investigation during his traveling from the Fair Plain Cinema 5 Theatre to 531 W. Wrightwood, Elmhurst, Illinois.

10. I was telephonically advised by Special Agent Wally Erickson of the Detroit FBI that Fred Behrends of the Film

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