US v. Shabazz
| Decision Date | 27 April 1995 |
| Docket Number | No. 4-95-CR-3.,4-95-CR-3. |
| Citation | 883 F. Supp. 422 |
| Parties | UNITED STATES of America v. Qubilah Bahiyah SHABAZZ. |
| Court | U.S. District Court — District of Minnesota |
Scott F. Tilsen, Daniel Martin Scott, U.S. Public Defenders Office, Larry Burton Leventhal, Leventhal Law Office, Minneapolis, MN, William M. Kunstler, Kunstler & Kuby, Percy E. Sutton, Sutton Law Office, New York City, for Qubilah Bahiyah Shabazz.
Toni A. Beitz, Sr. Asst. Co. Atty., Hennepin Cty. Atty., Minneapolis, MN, for County of Hennepin.
Jeanne J. Graham, U.S. Atty. Office, Minneapolis, MN, for the U.S.
The government and the defendant have filed timely objections to the Report and Recommendation issued April 11, 1995, by the Honorable Franklin L. Noel, United States Magistrate Judge. The objections are filed, pursuant to Local Rule 72.1(c)(2).
The Magistrate recommended that defendant's motion to dismiss the indictment be denied; that defendant's motion for a hearing to dismiss the indictment based on outrageous government conduct be denied; that defendant's motion for a change of venue be denied; that defendant's motion to suppress eyewitness identifications be denied as moot; that defendant's motion to suppress intercepted wire or oral communications be denied; that defendant's motion to suppress evidence obtained as a result of search and seizure be denied; and that defendant's motion to suppress statements, admissions, and answers be granted.
The Court received the submissions of the parties and heard oral argument on April 24, 1995. Based on a de novo review of the record, the Court adopts the Recommendations of the Magistrate Judge in all but two respects. The Court now determines that the September 6, 1994, audio and video recordings made in the Holiday Inn Express Hotel in St. Paul, Minnesota, must be suppressed. Further, the Court determines that defendant's motion to suppress her December 20, 1994, statement is denied.
On September 6, 1994, Michael Fitzpatrick, the government informant, using government-supplied funds, rented a hotel room for Ms. Shabazz.1 The room was to be the defendant's and her young son's temporary residence upon her arrival in Minneapolis, Minnesota, from New York, New York. Mr. Fitzpatrick gave his consent to have the room wired for audio and video recordation. The monitoring devices were in the next room and were controlled by federal investigative agents. No recordings were made by body microphone.
According to the government, the recording device was deactivated when Mr. Fitzpatrick was absent from the room. There is no evidence suggesting that the agents were formally instructed to minimize their intrusion when Mr. Fitzpatrick was out of the room, nor was there evidence of a log of his comings and goings. The government did not apply to the Court for authorization to intercept audio or visual communications in the hotel room either by way of search warrant or under the authority of 18 U.S.C. §§ 2516(1)(c) or 2518.
The defendant seeks to suppress both the audio and video records of matters occurring in the hotel room. She argues that, however temporary, the hotel room was her home, and she was entitled to a reasonable expectation of privacy while she occupied it. The defendant further argues that even though Fitzpatrick paid the room rental, he had no right to consent to surveillance.
The government opposes suppression, citing United States v. Yonn, 702 F.2d 1341 (11th Cir.1983), United States v. Laetividal-Gonzalez, 939 F.2d 1455 (11th Cir.1991), and United States v. Cox, 836 F.Supp. 1189 (D.Md.1993). The defendant relies upon United States v. Padilla, 520 F.2d 526 (1st Cir.1975) and the Court's discussion in Cox.
The audio and video tapes made in the hotel room will be suppressed. While it is the law that the Fourth Amendment protects people, not places, Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), it is a fact that people occupy those places. And the most respected of all places is an individual's abode. Payton v. New York, 445 U.S. 573, 601, 100 S.Ct. 1371, 1387, 63 L.Ed.2d 639 (1980).2 In this case, the government's intrusion into the defendant's rented home is so massive and unregulated as to require the suppression of its product.
In United States v. Padilla, the United States Court of Appeals for the First Circuit suppressed a recorded audio statement where an undercover agent rented a hotel room to be used by the defendant. Recording devices were planted in the room and controlled from a remote location. The room was occupied as the defendant's temporary home. Padilla, 520 F.2d at 527. The government claimed it did not record when the consenting undercover agent was absent. Id. The First Circuit rejected the government's argument that surveillance was constitutionally permitted since it recorded only when the consenting agent was present. The Court concluded that "when one's confidante leaves his premises, he is left with an expectation of privacy in his surroundings which is not only actual but justifiable." Id. (citing Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)). The recordings were suppressed.
A peripatetic informant can wear a body transmitter wherever he chooses. When the body-transmitting informant stands before his subject, the speaker impliedly consents to the hearer doing as he will with the spoken words. The speaker naturally assumes that the hearer will protect the exchanged confidences, but bears the penalty if the hearer is perfidious. See Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966).
The emplacement of continuously operable transmission and recording devices is not the same as a conversation with a wired informant. When a conversant knows that the hearer is present, the information is freely given and the speaker bears the risk. On the other hand, if microphones and cameras are hidden in one's home and are operable even in the absence of the informant, then Big Brother is literally within the walls. Even if the devices are turned off when the informant is absent, the government, at its whim and ungoverned discretion, retains the capacity to invade the occupant's room. The government's option to surveil continues, even in the absence of the implicit consent shown when speaking to another person.
The First Circuit's analysis was rejected in United States v. Yonn, 702 F.2d 1341 (11th Cir.1983). The Yonn court declined to differentiate between a body microphone and one emplaced in a wall. The Eleventh Circuit found that the location of the recording device did not determine the defendant's reasonable expectation of privacy in his hotel room. Yonn, 702 F.2d at 1347. In the Eleventh Circuit's view, "a constitutionally protected expectation of privacy does not attach to a `wrongdoer's misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it.'" Id. (citing Hoffa v. United States, 385 U.S. 293, 302, 87 S.Ct. 408, 413, 17 L.Ed.2d 374 (1966)).
The Court finds that Padilla is better reasoned. Its reasoning, plus the government's retained capacity to intrude, compels the Court's decision. Here, the government did not seek a warrant. The government declined to outfit its informant with a body microphone. There was no exigent circumstance; the alleged plot had been in the planning for months. The putative victim was at no risk; the presumed executioner was the government's informant.
The defendant arrived in Minnesota with her minor child. Mr. Fitzpatrick lured her as both an alleged conspirator and apparently under the guise of marriage. Her presumed life companion gave her the room in which she would sleep. On these facts, the Court determines that the defendant had an expectation of privacy in her surroundings. Ms. Shabazz's expectation was not only actual, but justifiable. Padilla, 520 F.2d at 527.
The conclusion reached today is supported by the discussion, and caveat, in United States v. Cox, 836 F.Supp. 1189 (D.Md.1993). In denying suppression in that case, Judge Legg recognized that:
Clandestine video surveillance of a private room is intrusive and that the law generally requires the approval of a neutral judicial officer before the police may wiretap, search, or bug a room. The `consent of one of the parties' exception creates a large exception to this rule. Under different facts, the Court might find that the intrusion so great as to be constitutionally impermissible.
The Court finds that this is such a case. Here, Mr. Fitzpatrick had no right to consent to the placement of recording devices in Ms. Shabazz's room. The government had no warrant or judicial supervision. The government was free to surveil at will and was not constricted when the informant was gone, except by the investigator's presumed discretion. The recordings are properly suppressed. The government could have minimized this massive intrusion by obtaining a warrant, or even by being constrained by a minimization instruction or order. The failure to take these steps is fatal under the Fourth Amendment.
The Magistrate recommended suppression of the defendant's December 20, 1994, written statement. The defendant claimed the government violated her rights under the Fourth and Fifth Amendments. The statement was made within the apartment she rented after moving from her temporary home in the hotel. The apartment was occupied by the defendant and her minor child.
On December 20, 1994, two plain clothes FBI agents went to the defendant's apartment building. The agents had no search warrant. The agents avoided using the security buzzer, preferring to wait until they could be admitted by a tenant or visitor. Their effort to avoid the security system was successful when the defendant came into the lobby to check her mail. When the defendant opened the security door,...
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...with impunity and with the hope that some usable conversations with agents would occur. Id. at 528. See also United States v. Shabazz, 883 F.Supp. 422 (D.Minn.1995) (audio and video In contrast to the First Circuit, the Second and Eleventh Circuits have held that the Fourth Amendment is not......