Opinion
Cause No. IP 04-201-CR-1 H/F, IP 04-201-CR-2 H/F, IP 04-201-CR-3 H/F, IP 04-201-CR-4 H/F, IP 04-201-CR-5 H/F, IP 04-201-CR-6 H/F.
March 25, 2005
ENTRY ON MOTION TO SUPPRESS VIDEO AND AUDIO SURVEILLANCE FROM HOTEL ROOM
The issue in this case is whether the Fourth Amendment requires suppression of evidence of warrantless audio and video surveillance of a hotel room where several defendants were present. A cooperating individual allowed the defendants to use the room and also consented to the surveillance. One problem, however, is that the cooperating individual who consented to the surveillance was not present at all times that law enforcement agents monitored and recorded events in the room. As explained below, the court finds that defendants William Ingram and Deandre Douglas had a reasonable and subjective expectation of privacy in the hotel room. The surveillance of Ingram and Douglas carried out in the absence of the cooperating individual is inadmissible against them. Evidence of events for which the cooperating individual was present is admissible against all defendants. The cooperating individual's consent to the surveillance served to permit the surveillance of events that he could see and hear while present in the hotel room.
A grand jury indicted the six defendants in this case for conspiracy to possess more than five kilograms of cocaine with intent to distribute it. Defendants William Ingram, Deandre Douglas, Daniel Cannon, Andre Mann, and Stephen Coleman also face charges under 18 U.S.C. § 924(c)(1) of carrying firearms in furtherance of a drug trafficking crime. Defendants William Ingram, Deandre Douglas, Daniel Cannon, and Andre Mann are charged under 18 U.S.C. § 922(g)(1) with unlawful possession of firearms as persons with prior felony convictions. Mann is also charged with possession of a firearm with an obliterated serial number in violation of 18 U.S.C. § 922(k).
The government charges that the defendants conspired among themselves and with others to carry out an armed robbery of what they expected would be twenty kilograms of cocaine. In fact, an undercover agent and a cooperating individual participated in the planning of the robbery. At the time and place of the expected robbery, according to the government's charges, the defendants were arrested. The arrests occurred on Sunday, December 5, 2004.
Defendants Ingram, Douglas, Cannon, Mann, and Coleman have moved to suppress as evidence several hours of audio and video surveillance conducted of a hotel room where Ingram and Douglas spent the early hours of December 5th, and where Cannon, Mann, and Coleman met them later that morning. The court heard evidence on the motion on March 11, 2005. The court also held the record open to give the government an opportunity to submit an affidavit on one unexpected issue — whether the confidential informant had in fact consented to the audio and video surveillance in the hotel room. The government has submitted an affidavit establishing such consent. No defendant has taken up the invitation to have a hearing on the issue of whether there are any factual disputes concerning such consent. This written entry sets forth the court's findings of fact and conclusions of law pursuant to Rule 12(d) of the Federal Rules of Criminal Procedure.
The defendants also moved to suppress recordings of their conversations among themselves after arrest in a police van used to transport them to jail. The court orally denied that separate motion, finding that the defendants had no right or reasonable expectation to privacy for their conversations in the police van. See United States v. Turner, 209 F.3d 1198 (10th Cir. 2000); United States v. Clark, 22 F.3d 799 (8th Cir. 1994); United States v. McKinnon, 985 F.2d 525 (11th Cir. 1993).
Findings of Fact
On Saturday, December 4, 2004, an undercover agent registered as a guest in Room 102 of a Lee's Inn hotel on the northwest side of Indianapolis. The undercover agent paid for the room and obtained two keys. Law enforcement officers then installed a hidden camera and microphone in Room 102. The equipment allowed law enforcement officers in another location to monitor and record events in the room as they occurred.The undercover agent told the cooperating individual that Room 102 would be used that night for staging the drug robbery. He also informed the cooperating individual that Room 102 would be subject to the audio and video surveillance. The microphone picked up any conversation in the room and even allows one to listen to the television shows that were on. The camera was set about even with the height of the two double beds in the room and showed both beds. The cooperating individual agreed to go forward with the surveillance equipment in place and consented to the surveillance. The undercover agent then gave one key to Room 102 to the cooperating individual.
At 9:30 on Saturday evening, the undercover agent, the cooperating individual, and one other person met with defendants Ingram, Douglas, and Cannon at a Holiday Inn on the east side of Indianapolis. As that meeting ended, the cooperating individual gave Ingram the key to Room 102 at the Lee's Inn and told Ingram to be at the room at 1:00 a.m. The cooperating individual told Ingram that the undercover agent had paid for the hotel room.
Ingram did not arrive at Room 102 until about 3:00 a.m. on Sunday, December 5th. He arrived alone, locked the door, turned on the television, made one or more telephone calls to friends or family members, then went to sleep. Much of the surveillance recording shows only a dark room with flickering light from the television showing that Ingram was in bed. About 5:00 a.m., defendant Deandre Douglas knocked at the door. Ingram let him in. They told stories and talked about people they knew. They ate. They relaxed. They watched television (ironically, a television show about prison life and problems of criminal recidivism). They fell asleep with the television on. Ingram and Douglas obviously thought they were alone in a private setting. Ingram considered himself a guest in the hotel room. He also knew that he was there to prepare for an armed robbery of cocaine. From Douglas's behavior, it also appears that he considered himself a guest in the hotel room. The court assumes that he also knew what he was preparing to do the next morning.
The cooperating individual arrived at Room 102 at about 9:30 a.m. on Sunday, December 5th. He did not have a key. He knocked, and Ingram let him enter the room. Defendants Cannon, Mann, and Coleman soon arrived at Room 102. The surveillance recording shows a number of telephone calls and conversations about meeting together. Some of those present put on masks and gloves. Firearms were displayed and checked. Those present had some discussions about how the profits from the expected robbery should be divided, e.g., should the driver of a getaway car be entitled to full "bird" or kilogram of cocaine, or just two or three ounces? They also discussed a variety of personal subjects, as well as where certain firearms were obtained, and whether they had duct tape handy.
After the cooperating individual arrived at Room 102, he was present in the room for all but two brief periods until the entire group left to go to the location of the expected armed robbery of cocaine. All were arrested at the location.
The audio and video monitoring and recording of Room 102 by law enforcement continued from the time that Ingram arrived at 3:00 a.m. until the entire group left late on the morning of December 5th. Law enforcement officers did not obtain a warrant for carrying out the audio and video surveillance.
Defendant Emerson was not present in Room 102 or the location where the other defendants were arrested on December 5th. He does not appear to be in any of the recordings that are the subject of the motion to suppress.
Conclusions of Law
The Fourth Amendment provides in part 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 Fourth Amendment protects persons from unreasonable searches or seizures of places or items in which they have a subjective and reasonable expectation of privacy. Rakas v. Illinois, 439 U.S. 128, 143 n. 12 (1978), citing Katz v. United States, 389 U.S. 347, 361 (1967); United States v. Pitts, 322 F.3d 449, 460 (7th Cir. 2003). It is well established that a hotel room rented for a short visit can "clearly be the object of Fourth Amendment protection as much as a home or office." Hoffa v. United States, 385 U.S. 293, 301 (1966); accord, United States v. Jerez, 108 F.3d 684, 690 n. 4 (7th Cir. 1997) (reversing denial of motion to suppress results of police entry into hotel room late at night). Electronic surveillance can constitute a search. Katz, 389 U.S. at 353. Thus, warrantless electronic surveillance could violate the Fourth Amendment rights of any person with a privacy interest in the hotel room or in the conversations that took place there, unless some exception applies, such as the consent of another person present. See United States v. White, 401 U.S. 745 (1971) (consent by one party to a private conversation to a wiretap or other electronic surveillance eliminates Fourth Amendment warrant requirement).I. The Defendants' Expectations of Privacy in the Hotel Room
The government argues that no defendant had a reasonable expectation of privacy in the hotel room because each was present briefly and solely for the purpose of staging the planned robbery. In support, the government relies on the decisions and analysis in Minnesota v. Carter, 525 U.S. 83 (1998), and Minnesota v. Olson, 495 U.S. 91 (1990).
It is easy to think of the question in terms of whether the defendants have "standing" to challenge the surveillance in the hotel room where they were temporary visitors. The Supreme Court has tried to discourage references to standing. The Court has said that "the question is whether the challenged search or seizure violated the Fourth Amendment rights of a criminal defendant who seeks to exclude the evidence obtained during it. That inquiry in turn requires a determination of whether the disputed search and seizure has infringed an interest of the defendant which the Fourth Amendment was designed to protect." Rakas v. Illinois, 439 U.S. 128, 140 (1978).
In Minnesota v. Olson, police made a warrantless, non-consensual entry to arrest the defendant in a house where he was staying as an overnight guest. The Supreme Court held that an overnight guest in the home of another has the sort of expectation of privacy that the Fourth Amendment protects. The arrest violated the defendant's rights. 495 U.S. at 99-100.
In Minnesota v. Carter, a police officer peered through a window of an apartment to see the defendants bagging cocaine at a kitchen table. The Court held that the defendants did not have any reasonable expectation of privacy in the place because the defendants:
were essentially present for a business transaction and were only in the home a matter of hours. There is no suggestion that they had a previous relationship with [the apartment lessee], or that there was any other purpose to their visit. Nor was there anything similar to the overnight guest relationship in Olson to suggest a degree of acceptance in the household. While the apartment was a dwelling place for [the lessee], it was for these respondents simply a place to do business.Carter, 525 U.S. at 90.
The government urges the court to place all five of the moving defendants on the Carter side of the line and to hold that all five were present only for "commercial" purposes for a brief period, so that none had Fourth Amendment rights violated by the warrantless surveillance.
But for the planned robbery, none of the defendants would have been in Room 102 of the Lee's Inn on December 5, 2004. Thus, their purpose for being there was inseparable from the planned robbery. Defendants Mann, Cannon, and Coleman were in Room 102 less than one hour on the morning of December 5th.
However, defendants Ingram and Douglas arrived at Room 102 in the night and spent in excess of seven and five hours there, respectively. Defendants Ingram and Douglas also slept several hours in Room 102. The surveillance recording shows that they made themselves comfortable, ate, talked, relaxed, and generally settled in for a short but restful overnight stay.
In Minnesota v. Olson, the Supreme Court placed particular emphasis on the fact that an overnight guest sleeps at the premises in question:
We are at our most vulnerable when we are asleep because we cannot monitor our own safety or the security of our belongings. It is for this reason that, although we may spend all day in public places, when we cannot sleep in our own home we seek out another private place to sleep, whether it be a hotel room, or the home of a friend. Society expects at least as much privacy in these places as in a telephone booth — "a temporarily private place whose momentary occupants' expectations of freedom from intrusion are recognized as reasonable," Katz, 389 U.S. at 361 (Harlan, J., concurring).Id. at 99.
The Olson Court rejected a 12-factor test proposed by the government to determine an individual's Fourth Amendment privacy interests in a dwelling as "needlessly complex" and as erroneously assuming that such interests were limited to one's own home. The Court stated: "Olson's status as an overnight guest is alone enough to show that he had an expectation of privacy in the home that society is prepared to recognize as reasonable." 495 U.S. at 96-97 (emphasis added). The Court's reasoning in Olson applies whether one is staying overnight some place "for business or pleasure," and also "whether it be a hotel room, or the home of a friend." Id. at 98-99.
In Minnesota v. Carter the Court emphasized that the premises in question were for the defendants "simply a place to do business," and the defendants were in fact there for the "sole purpose of packaging the cocaine." Carter, 525 U.S. at 86, 90. Regardless of whether Ingram and Douglas were in Room 102 ultimately for the purpose of staging the robbery, they were also staying there, sleeping there, and relaxing there in privacy. Their conduct was enough to establish Room 102 as "a temporarily private place whose momentary occupants' expectations of freedom from intrusion are recognized as reasonable." See Olson, 495 U.S. at 99, quoting Katz, 389 U.S. at 361 (Harlan, J., concurring).
The government points out that Ingram and Douglas had not rented the hotel room themselves. Ingram obtained the key from the cooperating individual, who in turn had obtained it from the undercover agent who had actually rented the room. The government points out the Seventh Circuit's observation in United States v. McNeal, 77 F.3d 938, 945 (7th Cir. 1996): "Whether the guest of a guest has standing to invoke the Fourth Amendment against a warrantless entry of a residence is an interesting issue, but deciding it is unnecessary here." Here the problem is not a warrantless entry and search but warrantless electronic surveillance. In any event, here the "interesting" guest-of-a-guest issue must be addressed.
The Ninth Circuit has faced the issue. In United States v. Nerber, 222 F.3d 597 (9th Cir. 2000), as in the present case, police agents rented a hotel room and installed audio and video surveillance equipment. The police gave informants keys to the room, and the informants consented to the surveillance. The informants brought the targets of the investigation to the room to prepare for a cocaine sale. 222 F.3d at 599. The informants later left the room. The surveillance of the targets in the hotel room continued. The targets were, as in this case, guests of a guest.
The district court suppressed evidence of warrantless surveillance of the targets while the informants were not present. The Ninth Circuit affirmed. The majority found that the targets had a protected Fourth Amendment interest in not being subjected to such highly intrusive surveillance in the hotel room, at least while the informants were not present in the room. 222 F.3d at 604. The majority reached this conclusion despite the targets' limited guest-of-a-guest connection to the hotel room and their presence there for what Carter called "commercial" purposes. The majority emphasized the highly intrusive nature of the surveillance as an important factor in determining the objective reasonableness of the defendants' expectations of privacy.
Judge Gould dissented, arguing that the targets had no protected interest in the hotel because they were there only briefly, they were there only for commercial purposes, and they had no prior relationship with the police officers who had actually rented the room. "Those who would hatch illicit plots to traffic in drugs while brandishing firepower should rent their own rooms." Id. at 607 (Gould, J., dissenting).
The governmental intrusion was severe. Hidden video surveillance is one of the most intrusive investigative mechanisms available to law enforcement. The sweeping, indiscriminate manner in which video surveillance can intrude upon us, regardless of where we are, dictates that its use be approved only in limited circumstances. As we pointed out in [ United States v. Taketa, 923 F.2d 665 (9th Cir. 1991)], the defendant had a reasonable expectation to be free from hidden video surveillance because "the video search was directed straight at him, rather than being a search of property he did not own or control . . . [and] the silent, unblinking lens of the camera was intrusive in a way that no temporary search of the office could have been." Id. at 677. . . . [A]s the Fifth Circuit said, hidden video surveillance invokes images of the "Orwellian state" and is regarded by society as more egregious than other kinds of intrusions. [ United States v. Cuevas-Sanchez, 821 F.2d 248, 251 (5th Cir. 1987)].Id. at 603.
In United States v. Torres, 751 F.2d 875, 882-83 (7th Cir. 1984), the Seventh Circuit, though on facts different from those here and in Nerber, discussed the severity of the intrusion as an important factor in determining the necessity for a search warrant.
We think it . . . unarguable that television surveillance is exceedingly intrusive, especially in combination (as here) with audio surveillance, and inherently indiscriminate, and that it could be grossly abused to eliminate personal privacy as understood in modern Western nations.
The usual way in which judges interpreting the Fourth Amendment take account of the fact that searches vary in the degree to which they invade personal privacy is by . . . being more insistent that a warrant be obtained if at all feasible, the more intrusive the search is.Torres, 751 F.2d at 882-83, citing Gooding v. United States, 416 U.S. 430, 464-65 (1974) (dissenting opinion), and United States v. Karo, 468 U.S. 705 (1984). In Torres, the Seventh Circuit reversed a district court order suppressing evidence of video surveillance of bomb-making where a judicial warrant had authorized the use of video surveillance.
Guided by this reasoning, this court finds the Ninth Circuit majority view in Nerber persuasive and concludes that Ingram and Douglas had a protected Fourth Amendment privacy interest in the hotel room. They were there at the invitation of a person whom they knew and trusted. They were in a private and locked hotel room, and they slept there. As the Supreme Court found in Olson, we all expect privacy in places where we sleep, even if we are there only temporarily and as a guest. 495 U.S. at 99. Perhaps the fact that these defendants were guests of a guest might have lessened their objective expectations of privacy if less intrusive search techniques had been used, as in Carter, or under other circumstances. But at least with regard to the severe intrusion of "unblinking" video and audio surveillance, defendants Ingram and Douglas had reasonable expectations of privacy as overnight guests in Room 102. The Fourth Amendment protects such interests, so a warrant was required for the surveillance conducted in the absence of the cooperating individual. The evidence obtained against Ingram and Douglas by the warrantless audio and video surveillance in the absence of the cooperating individual is therefore inadmissible against them.
The court need not evaluate the privacy interests of the remaining defendants in Room 102. Except for two brief periods discussed below, their presence in the room coincided with the presence of the cooperating individual. The cooperating individual's consent to the surveillance, for reasons discussed below, eliminated the government's Fourth Amendment obligation, if any, to secure a warrant for the evidence obtained during the cooperating individual's presence.
II. Consent and Presence of the Cooperating Individual
The cooperating individual in this case consented to the police surveillance of his interactions with the defendants in Room 102. The government argues that the consent of the cooperating individual to the electronic surveillance of Room 102 renders the resulting evidence at issue admissible. The government does not distinguish between evidence obtained in and out of the presence of the cooperating individual. The distinction is important because, as noted above, defendants Ingram and Douglas had Fourth Amendment interests in Room 102, and each spent time in the room under surveillance in the absence of the cooperating individual.
An undercover agent of the police may remember and later testify at trial about his conversations with a criminal defendant "without a warrant authorizing his encounters with the defendant and without otherwise violating the latter's Fourth Amendment rights." United States v. Caceres, 440 U.S. 741, 750 (1979), citing Hoffa v. United States, 385 U.S. 293, 300-03 (1966) ("Neither this Court nor any member of it has ever expressed the view that the Fourth Amendment protects a wrongdoer's misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it.").
The Constitution does not require a different result where the agent, rather than merely listening and perhaps later transcribing the information, is fitted with an electronic recording device on his person. United States v. White, 401 U.S. 745, 752-53 (1971) (finding "no persuasive evidence that the difference . . . between the electronically equipped and the unequipped agent is substantial enough to require discrete constitutional recognition particularly under the Fourth Amendment"). The Supreme Court has reasoned that a defendant has no constitutional right to rely on an agent's flawed memory or to challenge an agent's credibility unencumbered by corroborating evidence not susceptible to impeachment. Caceres, 440 U.S. at 750-51.
The Courts of Appeals for the Third and Ninth Circuits have extended that reasoning to electronic surveillance of events the undercover agent could see and hear where the equipment was installed in the room rather than carried by the informant. United States v. Lee, 359 F.3d 194 (3d Cir. 2004) (affirming convictions based on electronic surveillance of target and informant with consent of informant); United States v. Nerber, 222 F.3d at 604 (when informants were in hotel room, defendants bore risk of surveillance with consent of informants); see also United States v. Yonn, 702 F.2d 1341, 1346-7 n. 5 (11th Cir. 1983) (affirming convictions based on audio recordings made with equipment installed in hotel room with consent of informant); contra, United States v. Padilla, 520 F.2d 526, 527-28 (1st Cir. 1975) (suppressing audio recordings made with equipment installed in hotel room rather than carried by informant).
The government in this case has not cited, and the court has not found, any case authorizing surveillance, based on an informant's consent, of events that the informant himself was not present to see and hear. Both Lee and Nerber allowed evidence from surveillance of events the informant was present to see and hear. Both cases also made it clear that such warrantless surveillance would not be permitted when the consenting informant was absent.
In Lee, the Third Circuit affirmed bribery and related convictions based on audio and video surveillance of a hotel suite where the target met with an informant and received cash from him. As in this case and Nerber, police in Lee obtained no warrant to conduct the surveillance. The informant agreed to allow the police to install and use the surveillance equipment. 359 F.3d at 199. The agents monitoring the surveillance equipment were instructed to turn the equipment on and record only when the informant was present in the suite. Id. The Third Circuit majority held that the informant's consent removed any need for a warrant for the surveillance of the target while the informant was present. Id. at 201-03.
Judge McKee wrote a thoughtful dissent arguing that the audio and video surveillance was so intrusive as to violate the Fourth Amendment. Lee, 359 F.3d at 210-26 (McKee, J., dissenting).
The majority in Lee explained that "the cases involving consensual monitoring do not apply if recordings are made when the cooperating individual is not present." 359 F.3d at 202. The court later observed that a tape of a conversation would not be admissible without proof that the cooperating individual was present. Id. at 203. The Lee court's observations could be treated as well-considered dicta, for the government there did not seek to admit evidence of surveillance when the informant was not present. In Nerber, however, the question was squarely presented. The surveillance was carried out at times when the cooperating individual was absent as well as when he was present. The district court suppressed recordings made when the consenting informant was absent and allowed recordings made when he was present. The Ninth Circuit affirmed on both points. 222 F.3d at 604-05; accord, Yonn, 702 F.2d at 1347 (allowing use of audio recordings made only when consenting informant was in the hotel room); see also United States v. Myers, 692 F.2d 823, 859-60 (2d Cir. 1982) (affirming use of videotapes of meetings between defendants and cooperating persons).
Defendants rely on United States v. Padilla, 520 F.2d 526 (1st Cir. 1975), and United States v. Shabazz, 883 F. Supp. 422 (D. Minn. 1995), to argue that such warrantless audio and video surveillance in a hotel room should be suppressed even if an informant consented to and was present during surveillance of the events.
In Padilla the First Circuit held that a defendant's Fourth Amendment rights were violated by audio surveillance of conversations in a hotel room where the defendant met with an informant who consented to the surveillance. The First Circuit found a constitutional difference between an informant who wears or carries a recording device on his person and the installation of a microphone that could be operated at any time. 520 F.2d 527-28.
In Shabazz, the district court suppressed audio and video recordings of a hotel room, again rented by a government informant who consented to installation of surveillance equipment. The room was the defendant's temporary residence. The court followed Padilla and found that the government's warrantless intrusion was too great to be tolerated. 883 F. Supp. at 424-25. Both the Padilla and Shabazz courts were deeply troubled by the fact that the surveillance equipment allowed the government to conduct surveillance at will even when the consenting informant was not present. 520 F.2d at 528; 883 F. Supp. at 425.
This court agrees with the reasoning and conclusion of the Third Circuit majority in Lee on this issue, and on the important limits of that reasoning:
Finally, we do not agree with the First Circuit that it is appropriate to suppress recordings of meetings between a defendant and a cooperating individual simply because the recording device was placed in the room rather than on the cooperating individual's person. To be sure, there are three circumstances in which this distinction would matter for Fourth Amendment purposes. First, if the defendant had an expectation of privacy in the premises at the time when the device was installed, the entry to install the device would constitute a search. Second, the cases involving consensual monitoring do not apply if recordings are made when the cooperating individual is not present. Third, the logic of those cases is likewise inapplicable if the placement of the recording device permits it to pick up evidence that the cooperating individual could not have heard or seen while in the room. Unless one of these circumstances is present, however, it does not matter for Fourth Amendment purposes whether the device is placed in the room or carried on the person of the cooperating individual. In either event, the recording will not gather any evidence other than that about which the cooperating witness could have testified.359 F.3d at 202; accord, Yonn, 702 F.2d at 1347 n. 5 (explaining disagreement with Padilla). Here, the defendants did not have an expectation of privacy in the premises when the surveillance equipment was installed. Some of the government's evidence consists of events recorded when the cooperating individual was present, and some when he was absent. The recordings of events while the informant was present in this case appear to record only events that the cooperating individual was able to see and hear himself.
In accord with the reasoning of Lee and Nerber, defendants' motion to suppress the surveillance recordings is granted in part and denied in part. Warrantless recordings of events when the cooperating individual was present may be used at trial without violating the defendants' Fourth Amendment rights. Admission of warrantless recordings of events in Room 102 when the cooperating individual was absent would violate the defendants' Fourth Amendment rights. To be more specific, the surveillance recordings on the digital video disk labeled "Lee's Inn 1" are hereby suppressed as evidence in the government's case-in-chief. The surveillance recordings on the digital video disk labeled "Lee's Inn 2" may be admitted, but only if the government establishes as a foundation for any offered portions that the cooperating individual was present and was able to see and hear the events depicted in the offered portions.
So ordered.