Petition — Cook v. United States

ra

Office-Supreme Court, U.S.

: FILED

MAY 6 1961

8 0 ss ] 9 3 }' ALEXANDER L. STEVAS,

CLERK

IN THE SUPREME COURT OF THE

UNITED STATES

OCTOBER TERM, 1981

THOMAS COOK,

Petitioner,

Ve

THE UNITED STATES OF AMERICA,

Respondent.

ON APPEAL FROM THE UNITED STATES COURT OF

APPEALS, SECOND CIRCUIT

PETITION FOR CERTIORARI-CRIMINAL CASE

J. BYRON O'CONNELL, ESQ.

O'CONNELL & WOLFE, ESOS.

Attorneys for Petitioner

Office and P.O. Address

10 Healey Avenue

Plattsburgh, NY 12901

Tel. No. (518) 561-1440

QUESTIONS PRESENTED

Did the district court err in holding that

petitioner had no standing to suppress as evidence

words illegally seized fran his own mouth, fron

motel room rented to a co-defendant?

Did the district court err in refusing to ho?

that the creation of a "tunnel" between adjoining

motel rooms, made by the xemoval of the telephone

plate, was an “enhanced” listening and, therefore,

a seizure in violation of petitioner's Fourth Amend

ment rights?

‘Did the district court err in refusing to hold

that, as the search warrants herein were based on

the illegally seized conversations, all evtiaiie

obtained by reason of these search warrants must be.

suppressed?

Coenen Premera, . . + 6 os 0 6 0 ee i

Opinions Below oo . J - s . ° _ a - ss ~*~ eo - me

- Jurisdictional Statement ........ .2

Constitutional and Statutory Provisions. .4

ee, Ce tae CRBS, 5 cs tc 0 os 0 0D

Dt «skis + oe «6 6 6 * » se 6. 0 e eae

(Note: p. 3 omitted)

Opinion, Court of Appeals. ........ A-1

CASES CITED

Campoat ¥. U.S., 267 UB. 132 . « « c.

Chambers v. Maroney, 399 U.S. 42... .

Rakas v. Illinois, 439 U.S. 129... .

U.S. Vv. Agapito, 620 F. 2d 324 ae es

(2nd Cir. 1980)

U.S. v. Jackson, 588 F.2d 1046. ....

(Sth Cir. 1978)

cert. den. 422 U.S. 931

U.S. v. Taborda, NO. 80-1251. .....

(2nd Cir. November 24, 1980) -

OPINIONS BELOW

The opinion of the Court of Appeals below (A-1

is reportedin F2d_. The petition for re-

hearing en banc was denied, no opinion (A-7 ). The

opinion of the District Court below (A-9 ) is .

reported in 493 FS 948.

)

JURISDICTIONAL STATEMENT

The judgment ‘of the Court of Appeals (A- )

was entered on February 5, 1980. The Petition for

Rehearing was denied (A- ); the order entered

March 31, 1981. The jurisdiction of this Court is

invoked under 28 USC §1254(1).

CONSTITULIONAL PROVISION INVOLVED

The Fourth Amendment, United States Constitution,

provides

The right of the people to

be secure in their persons,

houses, papers, and effects,

against unreasonable searches

and seizures, shall not be

violated, and no Warrants

shall issue, but upon probable

cause, supported by Oath or

affirmation, and particularly

describing the place to be

searched, amd the persons or

things to be seized.

PRECEDING PAGE WAS BLANK

_ STATEMENT OF THE CASE

Petitioner, with 3 co-defendants, were charged

with certain drug-related offenses. Thomas Cook

was indicted for conspiring to violate the Narcotics

and Dangerous Drug Laws (Title 21, §841(a) (1), §846)

and possessing with intent to distribute a controlled

substance (Title 21, §84l1(a) and Title 18, §2)

The defendants were arrested in the parking lot

of the Holiday Inn in Plattsburgh, New York on

March 24, 1980; the van in which the marijuana was

allegedly being transported was seized by the govern-

ment agents, driven to the U.S.-Canadian border,

searched by a drug-detecting dog, then, after a search

warrant was obtained by the agents, marijuana was

found. ;

Prior to the trial, a suppression hearing was

held. At that hearing, Theodore Handoga, an agent

of the Drug Enforcement Agency, testified that he

was the supervising agent in this case and that he

|

6

made the decision to arrest the defendants when and

where they were arrested.

He testified that, at the Holiday Inn in

Burlington, Vermont, on March 20, 1980, he and his

agent (s) were conducting a surveillance of Walter

Burnett; that they were in an adjoining roam, that

he, during the afternoon removed a face plate from

the electrical outlet on the wall in an attempt to

listen to conversations in Burnett's roan.

He testified that on March 21, 1980, he had

followed Burnett to the Plattsburgh, New York

Holiday Inn, again arranged for an adjoining room,

that he removed the plastic face plate fram the

telephone jack where the telephone cord comes out

of the wall, between his room and Burnett's, using

a screwdriver; that in order to gain access to the

jack he had to move two beds. He testified that the

jack was 6" off the floor; a picture in evidence

corroborated this. ~ Agent Handoga testified that he

could see light through the hole he had created.

°F

73

Agent Handoga ordered the arrest of the

defendants, in the parking lot of the Holiday Inn,

in the afternoon of the 24th.

A second agent of the DEA, Clifford Radbourn,

also testified at the suppression hearing. Agent

Radbourn testified that he, too, had listened at the

hole in the wall between the DEA agents’ room and

Burnett's room in the Plattsburgh Holiday Inn; that

the switchplate had been removed by Handoga.

At the continuation of the suppression hearing,

the defense called Norman R. Dotti, an acoustical

engineer. After Mr. Dotti informed the Court of

his education and professional experience, the Court

accepted him as an expert in the field of acoustical

engineering. Mr. Dotti testified in detail as to

two occasions upon which he had studied the trans-

missions of sounds between the two rooms in the

Plattsburgh Holiday Inn involved herein. Mr. Dotti

testified that, with the telephone jack in plac,

he could hear no sounds coming from the room Burnett

4%

a

8

had taken into the room of the DEA agents. He could,

with a TV in the Burmett room turned to full voli,

hear undistinguishable noise in the other room.

Mr. Dotti testified that a second series of

tests was made, with the telephone jack removed. At

optimum conditions, with his ear against the hole;,:

he could distinguish less than 50 percent of the

words being spoken in the Burnett room. Six inches

from the hole, he could distinguish no words. Mr.

Dotti testified that from an engineering point of

view, the removal of the telephore plate "increased

substantially the available amount of sound energy

in [the agents’ room] by creating that pathway, in

doing so made it both audible and to some extent

more intelligible.”

The Court denied defendants’ motions to suppress

based on the overheard conversations.

Subsequently, Thomas Cook pleaded guilty to one

of the two counts against him, reserving his right

to appeal the denial of the suppression motions. He

9

was sentenced to two years' incarceration, and was

released on bail pending determination of his appeal.

"Ss

10

ARGUMENT

The panel of judges who heard this case held,

that Thomas Cook was only a casual visitor in the

motel room rented to co-defendant Walter Burnett and

had no reasonable expectation of privacy therein;

therefore, he had no standing to challenge the search

which was allegedly based on conversations heard by

DEA agents listening through a tijnnel between the

motel room and an adjoining room. It is petitioner's

contention that this holding is erroneous, that the

situation here is distinguishable fram that in Rakas

v. Illinois, 439 US 129, in which an individual was

held to not have standing to suppress evidence

allegedly removed fran the purse of a companion in

the same roam, in that Mr. Cook's own words were

seized from his own mouth; his words are personal

property.

By evaluating this Court's decision in U.S. v.

Agapito, 620 F.2d 324 (1980), contrasting the facts

ll

in that situation with those in the present situation,

and distinguishing the law and facts, it becames

obvious that, using that decision as the most recent,

most definitive holding on this subject, the seizure

of words herein was in violation of Thomas Cook's

Fourth Amendment rights. In Agapito, the goverrment

agents, in a motel room adjoining that of the

defendants, were, from the time of their entry into

the room, able to hear "sounds and parts of conversa-

tuons." Their room and that of the defendnats had

a connecting doore, with a crack between the door

and frame; by pressing their naked ears to the crack,

the agents were able to hear more (at 328). The

Court based its decision in Agapito on the presump-

tions that 1) the voices could be heard in the

adjoining room, unaided by any artificial, mechanical

or electrical device (330), and 2) the agents had

a right to be where they were, their ears were where

ears had a right to be (331), citing U.S. v. Jackson,

588 F.2d 1046, 1054 (Sth cir, 1978), cert. den.

12

422 U.S. 931 (1979). Further, the Court in Agapito

held that the "location of the goverrment surveillant

vis-a-vis the individual surveilledis.. . a factor

to be considered in assessing the justifiability of

the individual's privacy expectations." (331)

Finally, the Court held, at 332, that the occupant

of motel room with an adjoining door cannot .

reasonably assume conversations will not be over-

heard.

The room in the Plattsburgh Holiday Inn in which

Thomas Cook and the co-defendants allegedly held

their conversations about "stuff" did not have a

connecting door with the agents’ room. The agents

did not present any evidence that they were able to

hear anything fran defendants' room before they

pressed their ears to the hole created by their

removal of the telephone cover plate fram the wall;

the acoustical expert testified that nothing could

be heard fran the agent's room until the plate was

removed, then only 50 percent of the sounds came

ss

13

through clearly enough to be understood.

The expert testified that the removal o1 the

plate fran the wall of the agents’ room augnented

the sound level; this is certainly such an "artificial"

device as to negate the first element in Agapito.

The agents testified that the switchplate which

they removed was six inches from the floor, that in

order to hear they had to lie on the floor, with

their ears pressed to the hole.: They also testified

that in order to gain access to the hole, they had

to move the bed. The agents’ ears were not where

they had a right to be; their positions vis-a-vis

the defendants were not those an individual would

expect in assessing his reasonable expectation of

privacy.

It was on the basis of these conversations about

"stuff" the agents allegedly overheard that the

warrantless arrests'of Thomas Oook and the co-

defendants were made, and the warrantless search of

the van occurred. As the overhearing of the

14

cormversations was accomplished only by means of an

artificial device, and the defendants’ reasonable

expectations of privacy were brutally violated, the

seizures of their words, including those of Thomas

Cook, were in violation of their Constitutional

rights; all evidence must be suppressed.

Cook also contends that the recently-decided

Taborda (U.S. v. Taborda, Docket #80-1251 Second

Circuit 11/24/80) was not adhered to or properly

applied in his case; that the Taborda holding that

a telescopic intrusion into a room, an "enhanced

viewing” did impair a legitimate expectation of

privacy and “encounters the Fourth Amendment's warrant

requirement" where an observation by unenhanced vision

fran a location where the observer may properly be

did not, manilates that the use by agents of an

artificially created tunnel be classified as an

"enhanced listening" which requires Fourth Amendment

safeguards.

Cook also contends that the Court also failed

15

to properly construe or apprehend the facts surround

ing the warrantless search of the van by the drug

sniffing dog, and/or to apply the law thereto.

Briefly, he contends there were no exigent ciram-

stances requiring an immediate search (Carroll v.

U.S., 267 US 132, Chambers v. Maroney, 399 US 42),

nor was the search incident to the arrest.

Office and P.O. Address

10 Healey Avenue

Plattsburgh, NY 12901

Tel. No. (518) 561-1440

pia iy

%

UNITED STATES COURT OF APPEALS

FOR THE

SECOND CIRCUIT

At a stated Term of the United States Court of Appeals

for the Second Circuit held at the United States Court-

house in the City of New York, on the fifth day of

February one thousand nine hundred and eighty-one,

WILLIAM H. TIMBERS

JON O. NEWMAN,

CIRCUIT JUDGES, and

THOMAS C. PIAIT,

DISTRICT JUDGE

sitting by designation.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

~against- 80-1352.

1354

THOMAS COOK, CARL KIPP BURNETT 1356

and WALTER BURNEIT III,

Defendants-Appellants.

ON APPEAL FROM THE UNITED STATES

DISTRICT COURT FOR THE NORTHERN

DISTRICT OF NEW YORK.

Appeal from the United States District Court

for the NORTHERN District of New York

This cause came on to be heard on the transcript

of record from the United States District Court for

the NORTHERN District of New York, ond wae gegees

by counsel.

ON CONSIDERATION WHEREOF, it is now hereby

ordered, adjudged, and decreed that the JUDGVYENTS

of said District Court he, and they hereby are,

affirmed, substantially for the reasons set forth

in Judge Mac Mahon's opinion dated July 9, 1980,

493 F.Supp. 948, so far as Fourth Amendment claims

are involved, together with the following reasons

of our own.

Appellants Walter Burnett III, Carl Kipp Burnett

and Thomas Cook were indicted on charges of conspiracy

to distribute a controlled substance, marijuana, in

violation of 21 U.S.C. § 841(a) (1) (1976). The

Burnett brothers also were charged with knowingly

and intentionally distributing 40 pounds of marijuana,

in violation of 21 U.S.C. § 84l(a) (1976) and 18 U.S.C.

§ 2 (1976). Cook also was charged with possession

of marijuana with intent to distribute, in violation

of 21 U.S.C. § 8ll(a) (1976) and 18 U.S.C. § 2 (1976).

Walter Burnett and Cook pled guilty to the

substantive charges against them, reserving the right

to appeal from the denial of their motions to suppress

evidence. Carl Burnett was tried before a jury and

was convicted on both counts with which he was charged.

All three appellants claim on appeal that the

district court erred in refusing to suppress (a)

statements which were overheard by Drug Enforcement

Administration (DEA) agents in a motel in Plattsburgh,

New York, and (b) 40 pounds of marijuana which were

found in a van leased by Cook and in Walter Burnett's

possession.

The statements, made by Walter Burnett, Cook,

and a fourth defendant who was acquitted by the jury,

were overheard by DEA agents who had rented a motel

ne occupied by Walter Burnett. The

agents were able to overhear normal conversations

in Burnett's room by removing a plastic face plate

covering the telephone connection in the wall of

their roam (which corresponded with a similar connector

in Burnett's room), amd by listening at the place

where the face plate had been removed. No artificial,

any statements overheard by the agents should

493 F.Supp. 948.

Judge MacMahon correctly held that only Walter

Burnett had even an arguable "reasonable expectation

ya privacy" in the motel room which would enable him

to challenge the search. (ok was only a “casual

visitor", who entered the motel room just minutes

before the conversation in question took place, and

had no reasonable expectation of privacy in the room.

Rakas v. Illinois, 439 U.S. 128, 142 (1978); United

States v. Agapito, 620 F.2d 324, 335 (2 Cir. 1980).

' Wfayn illegal search only violates the rights of

those who have ‘a legitimate expectation of privacy'

in the invaded place." United States v. Salvucci,

100 S.Ct. 2547, 2553 (1980). Thomas Burnett, who

was never present in the motel room, had ro "reasonable

expectation of privacy” in a roam he never saw. No

right of his conceivably could have been violated

when the goverrment listened to a conversation in

which he did not participate.

Walter Burnett, who rented the acted rece and

occupied it for several days, stands on a different

footing. We agree with Judge MacMahon, however, that

any expectation of privacy which Burnett may have

had was not “reasonable” under our prior holding in

United States v. Agapito, supra. The agents were

to ar Burnett's conversation in their room

with their naked ears, “unaided by an artificial,

mechanical or electronic device,"Id., 620 F.2d at

330; c.f., United States v. Taborda, Slip Op. 6469

(2 Cir. Nov. 24, 1980). There is no question that

the agents had a right to be where they were. They

merely made a minor physical alteration in their own

roan in order to enhance their ability to hear.

Agapito makes clear our reluctance to interfere in

the activities of law enforcement officers who use

no more than physical means to enhance their ability

to hear what is being said in an adjoining room.

Absent the use of electronic or other artificial

devices, we adhere to our position in Agapito.

Finally, we note that the occupant of a motel room

F

We hold that Judge MacMahon was correct in

refusing to suppress the statements overheard by the

e

e

-

i

i

g

drug sensitive dog, was not improper. Even assuming

Fourth Amendment purposes, but see United States v.

Bronstein, 521 F.2d 459 (2 Cir. 1975), cert. denied,

424 U.S. 918 (1976), the warrantless search was

constitutionally valid, as in the case of a search

of an automobile subsequent to an arrest. Texas v.

a

White, 423 U.S. 67 (1975); Cady v. Dombrowski, 413

U.S. 433, 441-42 (1973); United States v. ites v. Mannino,

slip op. 333, 342 (2 Cir. Nov. 18, 1980).

We reject the claim by Walter Burnett and Cook

that their arrests were not supported by probable

cause. The motel room conversations overheard by

the DEA agents were more than ample to give the

a “reasonable objective basis for belief in

[Burnett's and Cook's] guilt.” United States v.

Webb, 623 F.2d 758, 761 (2 Cir. 1980). Among other

things, the agents heard appellants discuss the

possibility that they might be arrested for conspiracy

if the van was inspected, heard one appellant disclose

where in the van the "stuff" hidden, and heard

fact

Moreover, we are not persuaded that the evidence

was insufficient to support Carl Burnett's conviction

for distributing marijuana. He was liable as an aider

and abettor of an illegal transfer from Walter Burnett

to Cook pursuant to 18 U.S.C. §2. The statute

prohibiting the distribution of a controlled substance

prohibits the "actual, constructive or attempted

transfer of a controlled substance.” 21 U.S.C. § §

802 (8), 841(a). Based on the evidence, especially

testimony by Cook that at the time he was arrested

he was about to get into the van and drive to

§

E

5

z

when they were interrupted by the DEA agents. We

find unpersuasive Carl Burnett's argument that the

transfer of marijuana between co-conspirators in

scheme commercially to distribute the drug is rot

a transfer prohibited by 21 U.S.C. § 84 41 (a), His

reliance on United States v. Swiderski, 548 F.2d 445

(2 Cir. 1977), is misplaced. That case expressly .

. the circumstance there from prosecution

ot a. a

distribution.” Id. at °

Finally, we reject Gook's claim that his sentence

of two years imprisorment constitutes cruel and

unusual punishment and should be reduce by this Court.

Aside from his failure to mve in the district court

for reduction of sentence, Fed. R. Crim. P. 35, his

sentence being well within the statutory limit pre-

scribed for the crime to which hw pled guilty, does

not violate the Eighth Amendment. United States v.

Dawson, 400 F.2d 194, 200 (2 Cir. 1968).

We order that the mandate issue forthwith.

United States Circuit Judge

/S/ JON O. NEWMAN

JON O. NEWMAN

United States Circuit Judge

/S/ THOMAS C. PLAIT

THOMAS C. PLAIT

United States District Judge

Sitting by Designation

A 6

UNITED STATES COURT OF APPEALS

SECOND CIRCUIT

At a stated term of the United States Court of

Appeals in and for the Second Circuit, held at the

United States Court House, in the City of New York,

on the 3lst day March, of one thousand nine hundred

and eighty-one.

——X

UNITED STATES OF AMERICA

. Plaintiff-Appellee 80-1354

~against-

THOMAS COOK, CARL KIPP BURNETT and

WALTER BURNEIT III,

Deferndants-Appellants.

— -X

Petitions for rehearing containing suggestions

that the action be reheard in banc having been filed

herein by counsel for the defendants-appellants

Thomas Cook, Carl Kipp Burnett and Walter Burnett

III,

Upon consideration by the panel that heard the

A-7

appeal, it is

Ordered that said petitions for rehearing are

DENIED.

It is further noted that the suggestions for

rehearing in banc have been transmitted to the judges

of the court in regular active service and to any

other judge on the panel that heard the appeal and

that no such judge has requested that a vote be

taken thereon.

8

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

UNITED STATES OF AMERICA, :

:

t

MacMAFON, D.J.

Defendants Walter Burnett III and Thomas Cook

moved before the Honorable Neal P. McCurn to suppress

statements overheard by goverrment agents in two

motel roams in Burlington, Vermont and Plattsburgh,

New York, as well as marijuana later seized fram a

1

van leased by Cook.” Judge McCurn referred the

suppression motion to us.

ed Chief Judge of the United States District Court

for the Southern District of New York, —" by

designation.

We held a hearing on May 29 and June 16-18, 1980

and denied the motion prior to ei” This opinion

constitutes our findings of fact and conclusions of

law with respect to the suppression motion.

The facts relevant to this motion, as set out

in the papers and developed at the hearing, appear

as follows:

On March 19, 1980, Carl Kipp Burnett, who is

Walter Burnett's brother and also a co-defendant in

this case, was observed crossing the border between

Canada and the United States into Vermont in a dark

brown or black Dodge van with Ontario license plates.

Customs officials stopped and searched the vehicle

and found two secret compartments which they were

unable to inspect because they lacked a specially

designed tool necessary to open them. No contraband

was found elsewhere in the van, but, nevertheless,

United States Customs alerted agents of the Federal

Drug Enforcement Administration who placed the van

under surveillance after it had crossed the poser

into Vermont.

On March 20, Carl Kipp Burnett drove the van

to the Holiday Inn in Burlington. After parking the

van, he went to a room rented to his brother Walter.

DEA agents rented an adjoining roam and removed a

plastic face plate fram an electrical outlet in the

wall of their own roam in an attempt to overhear the

suspects’ conversations. Although the agents could

overhear Walter's telephone conversations and other

sounds coming fram the neighboring room, nothing of

a criminal nature came to light. Later that day,

Walter and Carl Kipp Burnett drove to the Burlington

airport where Carl Kipp boarded a commercial flight;

Walter returned to his room at the Holiday Inn.

On March 21, Walter Burnett drove the van to

Plattsburgh, New York, where he checked into Room

458 of the Ebliday Inn. This time, the agents rented

both Room 460, which had a common wall with Roan 458,

as well as a room across the hall from which they

could observe the Dodge van in the motel —_- ist.

The wall separating Room 458 fram Room 460 was

constructed of masonry oundiaataty eight inches

thick. There was no door connecting the roans.

Behind the headboard of the bed in the agents’ roan,

some six to twelve inches above the floor, was a

plastic face plate through which telephone wires led

into the wall. Apparently there was a similar tele

phone face plate directly opposite leading to

Burnett's room. The agents moved the bed out of the

way amd used a screwdriver to remove the plate from

their own side of the wall. For the next several

days, they attempted to overhear Burnett's conversa-

tions by taking turns lying on the floor and placing

an ear near the opening in the wall where the plate

had been removed. At no time did the agents use any

electronic device to record sounds coming through

the wall, nor did they commit a technical trespass

into Burnett's room or place anything inside the wall

itself. Pe 12

An acoustical engineer, qualified as an expert

witness, testified at the suppression hearing that

with the telephone face plate in place no ordinary

conversation in Room 458 could possibly be overheard

and understood in Roam 460. He also testified that

when the plate was removed, speech of a nomal

conversational volume from various places in Room

458 would be only partially intelligible to a listener

in Roam 460 with his ear close to the opening.

The substance of what the DEA agents overheard

fran Burnett's room is important since it bears on

the existence of probable cause to arrest the

defendants and later search the van. The key

conversation occurred when Thomas Cook and Hermann

‘Wallner entered Walter Burnett's roam on March 24.

Special Agent Rabourn testified that a conversation

among all three ensued concerning the border stop

of Carl Kipp Burnett on March 19; in particular, one

of them said they could have been convicted of

conspiracy if the residue in the traps had heen

7's

discovered. There was also talk of western Canada

being "dry" and that they could make quite a hit of

money. Before leaving the room, Cook asked Walter

Burnett which one of the traps the "stuff" was in,

and Burnett replied that it was in the trap under-

neath the stove. All three individuals then went

out to the parking lot where Cook and Walter Burnett

Opened the Dodge van and removed same of Walter's

Clothing. At that point they were all arrested.

After the defendants were in custody, Agent

Rabourn drove the van to a United States Customs post

in Rouses Point, New York, but no search of the

vehicle was made at that time. Later the same day,

while still under the control of goverrment agents

at Rouses Point, the van was inspected by Champion,

a dog specially trained to detect controlled drugs.

Under the supervision of a Customs dog handler,

Chanpion first toured the outside of the vehicle

where he reacted positively to two tanks beneath the

carriage. rn en ee er ee

inside where the dog reacted positively to the stove

and a gold metal suitcase. No warrant was obtained

in connection with this dog search.

Relying largely on the overheard conversation

and the results of the dog search, the goverrment

then obtained a warrant to search the van, which led

to the discovery of forty pounds of marijuana hidden

in a secret compartment under the stove. Cook and

Walter Burnett now invoke the Fourth Amendment's

prohibition against unreasonable searches and seizures

in asking the court to suppress both the statements

made in Burnett's hotel rooms and the marijuana later

seized in the van.

In Rakas v. Illinois, 439 U.S. 128 (1978), the

Supreme Court reaffirmed the principle that "Fourth

Amendment rights are personal rights which, like same

other constitutional rights, may not ke vicariously

EES Thus, the Court held that the question

in Fourth Amendment cases which had previously come

under the rubric of standing since Jones v. United

States, 362 U.S. 257 (1960), should instead be

determined by addressing the substantive issue of

whether the proponent of a suppression motion had

his own Fourth Amendment rights infringed by a

challenged search or seizure. This in turn depends

on whether the movant himself had a reasonable

expectation of privacy in the area searched.

We find that Cook lacked any reasonable expecta-

tion of privacy in a hotel room which was neither

registered in his name ror occupied by him. Although

"legitimately on the premises" by virtue of having

been invited in by Burnett, Cook had never been in

the room before his brief visit on March 24, and on

that occasion he was in the room for only a few

moments before agents overheard the incriminating

statements. Considering that a hotel roam gives even

its registered occupant only a very limited reasonable

expectation of a we do not believe that a

casual visitor, such as Cook, is afforded any pro-

tection by the Fourth Amendment under thege, giroun-

stances. Accordingly, we deny his motion to suppress

the conversation overheard in the Plattsburqh

Holiday Inn.

Walter Burnett, on the other hand, could

reasonably expect that his privacy interest would

receive at least some limited protection since he

was the registered occupant of the hotel room and

had actually stayed there several days. United

States v. Agapito, No. 791257, slip op. at 1681

(2d Cir. Mar. 12, 1980). Unquestionably, he did in

fact believe that his conversations behind the closed

door of his room would remain private; the question

we must decide, however, is whether that expectation

is reasonable under the circumstances of this case.

In United States v. Agapito, supra, our Court

Of Appeals held that goverrment agents did not violate

the Fourth Amendment by pressing thekr ears against

a door connecting their hotel room with that of the

defendants in an attempt to overhear their conversa-

tions. The court stressed three factors +2 Eee

its decision: First, agents used only their naked

ears, unaided by any artificial, mechanical or

electronic device. Second, the eqenlih ted a legal

right to be in the adjoining room. "We decline to

restrict their movements in their own roam in order

to prevent the overhearing of conversations in an

adjoining cae The final factor was the reduced

privacy afforded by a hotel room when compared with

a private residence. "A person in a hotel roan

therefore takes a greater risk than one in a residence

that, instead of neighbors, an adjoining room may

contain strangers or, as in this case, even persons

with interests adverse to his ae”

The only significant factual difference between

Agapito and this case is that here the agents removed

a plastic face plate from their side of the wall to

enable them to overhear the defendants’ conversations.

By thus manipulating the envirorment, Burnett contends

the agents went beyond the range of activities

pemnitted by Agapito. lis

Although the question is not free from doubt,

we believe the actions by DEA agents violated no

Fourth Amendment rights of Walter Burnett. In so

deciding, we find particularly important the

reluctance of our Court of Appeals to restrict the

movements of goverrment agents in an area where they

are legally entitled to be. As long as the agents

remained wholly within their own roam, we believe

the fact they altered that room by removing a face

plate accessible only from their side of the wall

is the same type of “hair-splitting distinction"

which the Agapito court declined to make. In

addition, since the occupant of a hotel room takes

a significant risk that those in the adjoining roam

may be adverse to his own interests, it seems fair

to expect that a would-be listener might make what-

ever physical alteration in his own roam was necessary

to enable him to overhear a conversation next door

with his naked ear. Not being familiar with the

physical characteristics of the een

Walter Burnett took the risk that a fortuitously

positioned face plate might allow a goverrment agent

just such an opportunity.

Accordingly, we hold that DEA agents did not

violate the Fourth Amendment rights of defendant Walter

Burnett by their activities in either the Burlingtam

or Plattsburgh Holiday Inn, and we therefore deny

his motion to suppress all conversations overheard

in those places. It follows that defendants' March

24 conversation was propertly relied upon to support

the issuance of the search warrant which led to the

discovery of marijuana in the van. We also find that

this conversation provided ample probable cause to

believe that a cache of marijuana was hidden in the

Dodge van and that defendants were engaged in criminal

activity at the time of their arrest.

The next question we must decide is whether the

agents' seizure of the van at the time of defendants'

arrest and the warrantless dog search violated the

Fourth Amendment rights of either Cook or Walter

Burnett. Both men had a privacy interest in the

van entitling them to challenge the seizure and

search; Cook was the lessee and, as such, had ul-

timate authority to decide who should have access

to the vehicle, while Walter Burnett had actual

possession of the van with Qok's written permission.

Under these circumstances, both men could legitimately

exclude others from using or searching the van, and

they therefore have a Fourth Ameniment privacy

interest in it. Oompare United States v. Smith

and Cannon, No. 791293, slip op. at 2181 (2d Cir.

Apr. 2, 1980) (driver of a car who is neither the

owner nor lessee and who makes no showing that he

is lawfully using the car has no Fourth Amendment

rights in it).

Having decided that Cook and Walter Burnett have

protectible Fourth Amendment rights in the van, we

must go on to consider whether these rights were

violated.

In Chambers v. Maroney, 399 U.S. 42 £2379). the

Supreme Court held admissible evidence seized from

an automobile in which the defendants had been

riding at the time of their valid arrest, where the

search of the car did not occur until it had been

driven to the police station. The Court appeared

to rely on the exigent circumstances inherent in a

vehicle's mobility to justify the later warrantless

search, even though the car was securely in police

custody and there was consequently little likelihood

of it being driven away. 399 U.S. at 51.

Later Supreme Court cases make it clear, however,

that the rationale for the “autamobile exception"

to the Fourth Amendment's warrant requirement is not

only a vehicle's mobility, but also the reduced reason-

able expectation of privacy one may have in a car

in contrast to a private home. Arkansas v. Saiders,

442 U.S. 753 (1979); Rakas v. Illinois, supra; United

States v. Chadwick, 433 U.S. 1 (1977); South Dakota

Vv. Opperman, 428 U.S. 364 (1976); Cady v. Dombrowski,

413 U.S. 433 (1973). As noted by the Court in Cady Ve

Dombrowski, supra, "warrantless searches of vehicles

by state officers have been sustained in cases in

which the possibilities of the vehicle's being

removed or evidence in it destroyed were renote, if

not nonexistent." 413 U.S. at 441-442. Although

evidence has been ruled inadmissible where seized

without a warrant from a closed suitcase inside a

car, Arkansas v. Sanders, supra, from a locked foot-

locker placed in the open trunk of a car, United

States v. Chadwick, supra, and from cartons sealed

with tape inside a van, United States v. Dien, 609

F.2d 1038 (2d Cir. 1979), the rationale for these

cases is the increased reasonable expectation of

privacy pertaining to sealed personal luggage.

None of these cases can affect the lawfulness

of the dog search at issue here, however, since no

luggage or other sealed containers were opened while

Champion and his handler inspected the vehicle. See

Dien, supra (opening sealed cartons in van at time

of arrest violates the Fourth Amendment, Ruf, search

of the van itself at the scene of the arrest is

constitutionally permissible).

Nor does it matter that the agents seized the

van amd drove it to the Customs post before conducting

the search. The "probable-cause factor" to search

the vehicle at the scene of the arrest "still obtained

at the station house." Chambers v. Maroney, supra,

399 U.S. at 52. Moreover, the Supreme Court has w-

held the seizure of a car won the arrest of its

occupants and a later search at the police station

even where there was no indication that an immediate

om-the-scene search of the car would have been

impractical. Texas v. White, 423 U.S. 67 (1975).

The case law is thus clear that under these

circumstances, the warrantless seizure and removal

Of the Dodge van, as well as the later dog search

of its interior, did not violate any of defendants'

Fourth Amendment rights. The dog's positive

response to various parts of the van was therefore

properly used in the goverrment's affidavjt.to

obtain the search warrant which ultimately led to

the discovery of the marijuana hidden in a trap under

the stove. Movants’ attempt to suppress the

marijuana at trial must consequently fail.

Accordingly, we deny defendants’ motion to

eocess as to both the atakéeente evaheent Ae

DEA agents in the motel rooms and the marijuana

seized from defendants' van.

So ordered.

Dated: New York, N. Y.

July 9, 1980

/S/ LLOYD F. MacMAHON

LLOYD F. MacMAHON

U. Ss. D. J.

A 25

ee

United States v. Burnett et al. Criminal No. 80-CR-32

FOOTNOTES

Hermann Wallner, a co-defendant in this case,

originally joined in the motion to suppress but

was acquitted by the jury.

Cook and Walter Burnett lated pled guilty to

one count of the indictment, but, with the goverr-

ment's consent, reserved the right to appeal the

denial of their suppression motion. This practice

has been approved by our Court of Appeals. United

States v. Bronstein, 521 F.2d 459, 460 n.1 (2d

Cir. 1975).

Rakas v. Illinois, 439 U.S. 128, 133-34 (1978).

United States v. Agapito, No. 791257, slip op.

at 1681 (2d Cir. Mar. 12, 1980).

Agapito, supra, slip op. at 1691.

Agapito, supra, slip op. at 1694.

Pe 26