US v. Conley

• Decision Date: 03 February 1993
• Docket Number: Crim. No. 91-178.
• Parties: UNITED STATES of America v. John F. "Duffy" CONLEY, William C. Curtin, Sheila F. Smith, John Francis "Jack" Conley, Thomas "Bud" McGrath, Mark A. Abbott, Thomas Rossi, William Steinhart, Roberta Fleagle, Robin Spratt, Monica C. Kail, William J. Reed, Joanne T. Smith, Kenneth "Ron" Goodwin, Lawrence N. "Neudy" Demino, Sr., Christopher "Chris" Kail, Frank Garofalo, Thomas D. Ciocco, Michael Sukaly, Phillip M. "Mike" Ferrell, Anestos "Naz" Rodites and William E. Rusin, Defendants.
• Court: U.S. District Court — Eastern District of Pennsylvania

813 F. Supp. 372

UNITED STATES of America v. John F. "Duffy" CONLEY, William C. Curtin, Sheila F. Smith, John Francis "Jack" Conley, Thomas "Bud" McGrath, Mark A. Abbott, Thomas Rossi, William Steinhart, Roberta Fleagle, Robin Spratt, Monica C. Kail, William J. Reed, Joanne T. Smith, Kenneth "Ron" Goodwin, Lawrence N. "Neudy" Demino, Sr., Christopher "Chris" Kail, Frank Garofalo, Thomas D. Ciocco, Michael Sukaly, Phillip M. "Mike" Ferrell, Anestos "Naz" Rodites and William E. Rusin, Defendants.

Crim. No. 91-178.

United States District Court, W.D. Pennsylvania.

February 3, 1993.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Thomas W. Corbett, Jr., U.S. Atty., W.D. Pa., and James R. Wilson and Paul E. Skirtich, Asst. U.S. Attys., Pittsburgh, PA, for plaintiff.

James Wymard, William Difenderfer, Ellen Viakley, Gary Gerson, Anthony Mariani, Lee Markovitz, Ray Radakovich, Stanley Greenfield, Martha Bailor, Frank W. Ittel, Jr., Raymond M. Maloney, John Zagari, Foster Stewart, Edward J. Osterman, Carl M. Janavitz, Carmen A. Martucci, Joel Johnston, John Goodrich, Vincent Baginski, Samuel J. Reich, William Acker, Joseph Kanfoush, Michael Foglia, Carl Parise and Caroline Roberto, Pittsburgh, PA, for defendants.

MEMORANDUM OPINION

LEE, District Judge.

Before the Court is the issue of the suppression of the fruits of a September 23, 1988 search of a building located at 930 Saw Mill Run Boulevard.

I. Standing

A. Findings of Fact

1. In September 1988, 930 Saw Mill Run Boulevard ("930 Saw Mill Run" or "the premises") was a two-story, brown-brick building located between a gasoline station and a salt or cinder pile in a strip of commercial properties. The words "Conley Motor Freight" were painted on the outside of the building.

2. The building had two entrances, one facing the street and one in the rear of the building. The front door could be unlocked from the outside, and the first floor office space could be accessed by the use of a second key. The back entrance consisted of a storm door and an inner door. The back entrance could not be unlocked from the outside.

3. "No trespassing" signs were posted in the front door, the back door and a window on the right side of the building (viewed from the street). Persons seeking to enter the premises were directed by a sign to the back entrance.

4. Inside the back doors was a storage room. Beyond the storage room, through another doorway, was the first floor office space. The second story also contained office space.

5. Defendant John Francis "Jack" Conley ("Jack Conley") owned the real estate and building comprising the premises.

6. Two businesses occupied the premises: Conley Motor Freight, a steel hauling and trucking business, and Duffy Vending Company ("Duffy Vending"), a vending company.

7. Jack Conley owned Conley Motor Freight. He had two employees. One worked in the first-floor office space, and the other worked in a garage in the same building. Six or seven independent truckers were associated with Conley Motor Freight. They each made an average of two visits per week to the premises.

8. Jack Conley maintained a desk in the first floor office space of the premises, situated near the right-side window to afford him a view of persons entering and exiting the premises.

9. Jack Conley worked at the premises on a daily basis, spending a considerable amount of time there each week.

10. Conley Motor Freight's business at the premises was conducted by telephones registered to Conley Motor Freight. Conley Motor Freight did not solicit walk-in business at the premises in any manner.

11. Defendant John F. "Duffy" Conley ("Duffy Conley"), Jack Conley's son, owned Duffy Vending. Defendants Sheila F. Smith and William C. Curtin were employees of Duffy Vending. Defendant Sheila Smith and one Helen Grosskopf worked at the premises as full-time secretaries.

12. Duffy Conley, as owner of Duffy Vending, maintained operational control over its business and records. All Duffy Vending business records were maintained at the premises.

13. Duffy Conley had a desk in the first-floor office space of the premises, in which he kept customer contracts, bills, notes and agreements. In a filing cabinet next to his desk, he kept checkbooks, canceled checks, bank statements and deposit slips.

14. Helen Grosskopf and Sheila Smith each had a desk on the premises and maintained Duffy Vending records in their desks.

15. William Curtin did not have a desk on the premises.

16. Duffy Conley worked at the premises at least forty-five minutes a day, five days a week. He occasionally worked there on evenings and weekends. He reviewed and balanced customer accounts using all the records maintained on the premises.

17. Duffy Vending did not solicit walkin business in any manner. No showroom existed on the premises, and customers were not invited to the premises.

18. Persons who regularly frequented the premises were limited to Jack Conley, his two employees, the independent truckers, Duffy Conley, Sheila Smith, Helen Grosskopf and Patrick Barth, a United Parcel Service driver who made deliveries an average four times a week.

19. Occasionally, other employees of Duffy Vending visited the premises, as did personal friends of Jack Conley.

20. The indictment charges that William C. Curtin had an interest in and much supervisory control over the charged illegal gambling business. Specifically, it charges that he was the general manager of Duffy Vending Co. Indictment at 2, ¶ 3. It charges that he, among others, conducted, managed and owned an illegal gambling business. Id. at 8, ¶ 21(a), 34. It further charges that he and Duffy Conley used the proceeds of the illegal gambling business to pay cash supplements to the employees of Duffy Vending. Id. at 14, ¶ 32.

21. Jack Conley had a subjective expectation that the premises would remain free from private and governmental intrusions.

22. Duffy Conley had a subjective expectation that the premises would remain free from private and governmental intrusions.

23. Sheila Smith had a subjective expectation that the premises would remain free from private and governmental intrusions.

B. Conclusions of Law

24. "Whether these defendants can demonstrate an invasion of their own Fourth Amendment privacy interests `depends not upon a property right in the invaded place but upon whether the person who claims the protection of the amendment has a legitimate expectation of privacy in the invaded place.'" United States v. Acosta, 965 F.2d 1248, 1256 (3d Cir.1992) (emphasis deleted) (quoting Rakas v. Illinois, 439 U.S. 128, 143, 99 S.Ct. 421, 430, 58 L.Ed.2d 387 (1978)). Standing to challenge a search cannot be founded only on a legitimate expectation of privacy in the items seized; there must be a legitimate expectation of privacy in the areas searched. United States v. Leary, 846 F.2d 592, 595 (10th Cir.1988).

25. Notwithstanding the use of the word "houses" in the Fourth Amendment, persons may have a legitimate expectation of privacy in commercial premises. See Mancusi v. DeForte, 392 U.S. 364, 88 S.Ct. 2120, 20 L.Ed.2d 1154 (1968); See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967); United States v. Chuang, 897 F.2d 646, 649-50 (2d Cir.), cert. denied, 498 U.S. 824, 111 S.Ct. 77, 112 L.Ed.2d 50 (1990); Leary, 846 F.2d at 595-96; see also United States v. Forsythe, 560 F.2d 1127, 1132 n. 5 (3d Cir.1977).

26. One seeking to challenge a search of a commercial premises bears the burden of establishing a reasonable expectation of privacy. See Rakas, 439 U.S. at 130 n. 1, 99 S.Ct. at 424 n. 1; Acosta, 965 F.2d at 1256 n. 9. This entails establishing that the challenger had a subjective expectation of privacy in the searched premises and that the expectation of privacy is "one that society accepts as reasonable." Chuang, 897 F.2d at 649.

27. Whether an expectation of privacy is reasonable depends on several factors. Courts have looked at whether the challenger had a property or possessory interest, id., whether the area searched or items seized were knowingly exposed to the public, California v. Greenwood, 486 U.S. 35, 108 S.Ct. 1625, 100 L.Ed.2d 30 (1988); Oliver v. United States, 466 U.S. 170, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984), whether a commercial premises is part of a "`closely regulated' industry," New York v. Burger, 482 U.S. 691, 107 S.Ct. 2636, 96 L.Ed.2d 601 (1987), and whether there is a significant relationship between the area searched and the challenger's work spaces. Chuang, 897 F.2d at 649.

28. Jack Conley owned the land and building, as well as Conley Motor Freight and all its materials on the premises. Duffy Conley owned all of the Duffy Vending materials on the premises, and had a possessory interest through those materials. Additionally, Duffy Conley maintained his own desk on the premises, and had daily access to the desks of Sheila Smith and Helen Grosskopf. Sheila Smith, as a full-time secretary of Duffy Vending, occupied the premises all day of every business day as a part of her secretarial and record-keeping duties. Because only five persons regularly worked within the relatively small office area occupied by these two family businesses, there is a significant nexus between each person's work spaces and the premises as a whole.

29. The limited number of persons frequenting the premises on a regular basis, the lack of solicitation of walk-in business, the posting of "no trespassing" signs and Jack Conley's monitoring of persons entering and leaving the premises demonstrates that the premises were not knowingly exposed to the public.

30. Neither the trucking business nor the vending business are "closely regulated industries" in any relevant sense. Cf. Chuang, 897 F.2d at 650-51 (no reasonable expectation of privacy in bank records subject to statutorily mandated bi-annual government review).

31. This Court concludes that the subjective expectations of privacy of Jack Conley, Duffy Conley...