United States v. Edward Allen Schuster

JOHNSON, Circuit Judge,

dissenting:

I dissent. The majority holds that consent given by defendant Schuster to Charles Poteat — an employee of Schuster at a hotel pool — to enter an apartment also authorized entry and search of the apartment by Secret Service Agent Bowron. I cannot join such a ruling.

Schuster’s consent to a search was narrowly circumscribed: he authorized one individual, Poteat, to enter his girlfriend’s apartment to find some counterfeit money. That he gave consent to Poteat to enter the apartment did not mean that he also consented to Bowron’s entry. The narrowness of Schuster’s consent delimits the extent of the legitimate expectation of privacy that he agreed to give up, which consisted solely of allowing one person whom he knew and employed to enter the apartment. That a person has relinquished a portion of his legitimate expectation of privacy does not strip Fourth Amendment protections from his remaining expectation. Walter v. United States, 447 U.S. 649, 658-59 , 100 S.Ct. 2395, 2402-2403 , 65 L.Ed.2d 410 (1980) (plurality opinion by Stevens, J.); Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 328-29 , 99 S.Ct. 2319, 2325-2326 , 60 L.Ed.2d 920 (1979). The Secret Service agent who invaded the apartment without permission from Schus-ter violated legitimate expectations of privacy that were not lost when Schuster told his employee that he could enter the apartment. That invasion, without a warrant and under circumstances that did not render applicable some exception to the warrant requirement, abridged Schuster’s Fourth' Amendment rights. This Circuit recently has so concluded under substantially identical circumstances. United States v. Bulman, 667 F.2d 1374 , 1384 n.16 (11th Cir. 1982).

The cases that the majority cites are not contrary to my position. In the wiretap eases, the Supreme Court has reasoned that an individual could, without violating the Fourth Amendment, write down for official use his conversations with a suspect. It found no constitutional difference between such activity and using equipment that transmits conversations to agents or recording devices located elsewhere. “If the conduct and revelations of an agent operating without electronic equipment do not invade the defendant’s constitutionally justifiable expectations of privacy, neither does a simultaneous recording of the same conversations made by the agent or by others from transmissions from the agent to whom the defendant is talking and whose trustworthiness the defendant necessarily risks.” United States v. White, 401 U.S. 745, 751 , 91 S.Ct. 1122, 1126 , 28 L.Ed.2d 453 (1971); see also United States v. Caceres, 440 U.S. 741, 750-51 , 99 S.Ct. 1465, 1470-1471 , 59 L.Ed.2d 733 (1979) (quoting White). The key element in the Court’s analysis is that transmitting conversations to agents located elsewhere involves no greater invasion of privacy than occurs when a defendant is duped into talking to an undercover agent. Here, unlike the situation in the wiretap *750 cases, the search by agent Bowron resulted in an invasion of privacy greater than Schuster had sanctioned. United States v. Brand, 556 F.2d 1312, 1317 (5th Cir. 1977), cert. denied, 434 U.S. 1063 , 98 S.Ct. 1237 , 55 L.Ed.2d 763 (1978), the Circuit case on which the majority relies, is similarly distinguishable. In Brand police originally had legally entered a defendant’s home because of a medical emergency. The Court ruled that a police officer entering the home after the emergency had ended had not violated the defendant’s Fourth Amendment rights. “The amendment protects the citizen against invasion of privacy. Once that interest is invaded legally by an official of the State, the citizen has lost his reasonable expectation of privacy to the extent of the invasion ”, allowing other police to enter. Id. at 1317 (emphasis added). The Court added in a footnote that “[o]f course, the later officials must confine their intrusion to the scope of the original invasion unless a warrant or one of the exceptions to the warrant requirement justifies a more thorough or wide ranging search.” Id. at 1317 n.9. Again the critical facet of the Court’s reasoning was that the later police intrusion into an individual’s expectations of privacy was no greater than an earlier, and. legal, intrusion. The facts of this case differ from Brand because the extent of the permissible invasion of the defendant’s privacy is limited not only by the area invaded but by who might invade that area. Since, as I noted above, Schuster gave permission to enter the apartment only to Poteat, the entry by agent Bowron expanded the scope of the privacy interests invaded and therefore was not made legal by the permission given to Poteat.

I would affirm the action of the district court in invalidating this warrantless search and seizure.