US v. David

• Decision Date: 28 January 1991
• Docket Number: No. CR-S-90-121-PMP (LRL).,CR-S-90-121-PMP (LRL).
• Citation: 756 F. Supp. 1385
• Parties: UNITED STATES of America, Plaintiff, v. Artem Bautista DAVID, Defendant.
• Court: U.S. District Court — District of Nevada

756 F. Supp. 1385

UNITED STATES of America, Plaintiff, v. Artem Bautista DAVID, Defendant.

No. CR-S-90-121-PMP (LRL).

United States District Court, D. Nevada.

January 28, 1991.

COPYRIGHT MATERIAL OMITTED

Bradford R. Jerbic, Asst. U.S. Atty., Las Vegas, Nev., for plaintiff.

Seymour Amster, Woodland Hills, Cal., for defendant.

ORDER

PRO, District Judge.

On July 13, 1990, Defendant Artem Bautista David filed a Motion for Return of Property and Suppression of any Evidence Received from Said Property (# 15). On January 8, 1990, the Honorable Lawrence R. Leavitt entered a Report and Recommendation (# 63) recommending granting in part Defendant's above-referenced Motion. No Objections were filed in accordance with Local Rule 510-2 of the Rules of Practice of the United States District Court for the District of Nevada. On January 28, 1991, the Clerk of Court referred Defendant's Motion to the undersigned for consideration.

The Court has conducted a de novo review of the record in this case in accordance with 28 U.S.C. § 636(b)(1)(B) and (C) and Local Rule 510-2 and determines that the Report and Recommendation entered January 8, 1991, should be affirmed.

IT IS THEREFORE ORDERED that the Report and Recommendation of Magistrate Judge Leavitt entered January 8, 1991 (# 63) is affirmed and Defendant's Motion for Return of Property and Suppression of any Evidence Received from Said Property (# 15) is granted to the extent that any information and any evidence derived from that information which the Government obtained from Defendant David's computer memo book from that point forward at which Agent Peterson first accessed the book in David's presence is hereby suppressed.

REPORT AND RECOMMENDATION OF U.S. MAGISTRATE JUDGE

(Motion for Return of Property and Suppression of Evidence — # 15)

Filed Jan. 8, 1991.

LAWRENCE R. LEAVITT, United States Magistrate Judge.

On June 21, 1990, the federal grand jury returned a one-count Indictment charging the defendant, Artem Bautista David, with conspiracy to import more than 20 kilos of heroin into the United States.

On July 13, 1990, David filed a Motion for Return of Property and Suppression of Evidence Received from Said Property (# 15). He seeks an order (1) requiring the U.S. Customs Service to return a hand-held computer memo book (hereafter "book") which it seized from him on May 7, 1990, and (2) suppressing as evidence all information which Customs obtained from the book and all evidence derived from that information. The defendant contends that the book was seized without benefit of a search warrant, and that the seizure of the book, and the search for and seizure of its contents, cannot be justified under any exception to the warrant requirement.

Acknowledging that no search warrant was issued herein, the government nevertheless justifies the searches and seizures on the alternate grounds of plain view, consent, exigent circumstances and abandonment.

I. The Evidence

An evidentiary hearing was conducted before the undersigned Magistrate Judge on September 12, 1990. The testimony established that in late April, 1990, David flew from Hong Kong to Las Vegas and was taken into custody by Customs agents on a charge of conspiracy to smuggle heroin into the United States. Government counsel engaged in discussions with David's then counsel, John R. Lusk, with a view toward enlisting David's cooperation in exchange for a favorable plea bargain. An agreement was reached whereby David, who would remain in custody under a detention order, would meet periodically with the agents in their office and make full disclosure of his knowledge of drug trafficking activities in an "off the record" proffer. It was expressly agreed that nothing David said would be used against him in the event the negotiations fell through and he were fully prosecuted. It was also expressly agreed that derivative use of David's statements was not covered by the immunity agreement. That is, in the event the discussions did not result in a plea agreement, and full prosecution of David were initiated, the government would be able to use against David all evidence obtained from leads derived from David's statements. The agreement was silent, however, on the subject of David providing the government with documents, records, receipts, and all like material which David had in his custody, or to which he had access. The agreement also provided that at the agents' direction, David would place consensually monitored telephone calls to his criminal associates. The telephone numbers of those associates were kept in David's computer memo book, access to which required the use of a password — "fortune" — which was known only to David.

During one such meeting in early May, 1990, which Lusk attended, David retrieved and disclosed certain information contained in the book. At the time, the agents were sitting across the table from him and were unable to see the password which David used or the information displayed on the book's screen. David did not volunteer the password to the agents, or offer to show them the book.

Jail regulations prohibited David from taking the book back to the jail at night. For the sake of convenience, Lusk permitted the agents to maintain custody of the book at the end of each session. Lusk did not, however, give them permission to access the book. Neither did David. Nor, as noted above, did the assistance agreement itself expressly permit the agents to gain access to the book or, for that matter, to any other property in David's possession.

At the next meeting on May 7, 1990, David met with Customs Special Agent Eric Peterson and DEA Special Agent Don Ware. Lusk did not attend this meeting. According to David's testimony, when he initially accessed the book at this meeting, Agent Peterson got up and stood directly behind him. David was aware that Peterson was looking over his shoulder, but did not feel that he could demand that Peterson move away. David did, however, try to position the book so as to minimize Peterson's view of it.

According to David's testimony, after he made two telephone calls for the agents, Peterson grabbed the book and accused David of deleting certain information. David demanded the book back, but Peterson refused. At the evidentiary hearing, David denied having deleted information from the book. Agent Peterson's version of what occurred at the meeting is a little different. Peterson testified that on May 7, 1990, he first requested the access code from David, but David was unresponsive. Peterson admitted that he then stood behind David and observed David use the password "fortune" to access the book. A little later, while Agent Ware was criticizing David for not cooperating fully during a consensually monitored phone call, Peterson, without requesting David's permission, used the password "fortune" and accessed the book himself. He then reviewed several of its entries. David saw Peterson doing this, but said nothing. Peterson came across an entry which read "1 = 12,000; 2 = 23,000," which, based on his experience as a Customs agent, he knew to be a heroin price list per kilo in Thailand. He then turned off the computer and returned it to David. Peterson testified that he did not seek David's consent to access the book because he believed that the assistance agreement itself conferred upon him the right of access without David's express permission. He admitted, however, that he did not solicit either Lusk's or the prosecutor's opinion on whether the agreement gave him such a right.

According to Peterson's testimony, after he handed the book back to David, David turned it back on and immediately deleted the heroin price list. As David was getting ready to delete a firearms price list, Peterson grabbed the book out of David's hands. Although at the hearing David denied having deleted anything from the book, the Court finds Agent Peterson's testimony more credible on this point, and therefore concludes that it was David's act of deleting entries in the book that caused Peterson to seize it.

At that point the cooperation agreement between David and the government collapsed. Peterson has since maintained custody and control of the book, and has reviewed all the information contained in it. Peterson admitted that following his seizure of the book he had ample time to obtain a search warrant for the purpose of re-accessing the book if he had chosen to obtain one. However, he did not do so, nor did he seek the advice of the prosecutor as to whether a search warrant was required under the circumstances.

II. Discussion

The Fourth Amendment provides that the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated...." The Supreme Court has defined a search as an infringement of "an expectation of privacy that society is prepared to consider reasonable." United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 1656, 80 L.Ed.2d 85 (1984). Hence, a law enforcement officer who looks at something has not engaged in a "search" within the meaning of the Fourth Amendment unless someone else has a right to expect that the thing which is seen will remain private.

A seizure of tangible property is defined as "some meaningful interference with an individual's possessory interest in that property." Ibid. Therefore, unless an individual's control over or access to property in which he or she has a possessory interest is interrupted or otherwise interfered with by law enforcement officers in some meaningful way, there is no "seizure" within the meaning of the Fourth Amendment.

The Courts have also recognized that information, i.e., intangible items, may be seized within the meaning of the Fourth Amendment; see Berger v. New York, 388 U.S. 41, 59-60, 87 S.Ct. 1873, 1884, 18 L.Ed.2d 1040 (1967) (tape recorded conversations); United States v. Marbury, 732 F.2d 390, 399-400 (5th Cir.1984...