Petition — Buettner-Janusch v. United States

80-2054

Office-Supreme Court, U.S. |

—— FILE D

JUN 4 1981

IN THE ALEXANDER L. STEVAS

: CLERK

Supreme Court of the United-States—

OCTOBER TERM, 1980

JOHN BUETTNER-JANUSCH,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

PETER L. ZIMROTH

80 Pine Street

New York, New York 10005

(212) 422-4030

Attomey for

KOSTELANETZ & RITHOLZ John Buettner-Janusch

Jules Ritholz

Stuart E. Abrams

Of Counsel

THE PAUL M. HARROD COMPANY, BALTIMORE, MARYLAND 21234

i

QUESTIONS PRESENTED FOR REVIEW

1. Whether agents of the Drug Enforcement Adminis-

tration can engage in a planned, warrantless entry into a

university professor’s scientific laboratory, seize chemicals,

notes, and scientific equipment, all on the unstated “implied

consent” of third parties who had lawful access to the labora-

tory but did not have authority over the laboratory in their

own right.

2. Whether, in court, the Government can justify the

planned, warrantless entry, search and seizures on the basis of

alleged consents upon which the agents did not in fact rely at

the time of the entry.

3. Whether a research scientist at a university has an

expectation of privacy concerning the nature and composition

of chemical substances found in closed jars stored in sophisti-

cated scientific equipment designed to keep those substances

secure and safe, and whether the scientist loses that expectation

of privacy simply because an observer walking through the

laboratory may be able to see what the substances look like.

4. When, by using their natural senses, government

agents can discern only the physical appearance of substances

seized from within closed containers stored in scientific equip-

ment in a university laboratory, may the agents augment their

natural senses by subjecting these substances to chemical

analysis in a Government laboratory without first obtaining

a search warrant?

5. When government attorneys represent to a subject

of a grand jury investigation that they will respect his expressed

desire to the help of his retained counsel while they are ques-

tioning him about the case, may these same attorneys, at the

same time, dispatch informants to conduct interviews sur-

reptitiously with the subject in the absence of his counsel and

then use the fruits of these surreptitious interviews against the

subject in court?

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW................ i

OPINIONS OF COURTS BELOW 6. ciccccsctecncneceviss F

JURIBDACTOON . ccnccevcsess0saeusd00bns e508 ceaeae 2

CONSTITUTIONAL PROVIBRIGS os ccccbvevvecscreaces 2

STATEMENT OF Tite CAB soc saccechedeacesseutanete 3

Prominaty Statement... cccocressccsisnvesvasenun 3

DACKMOURE. oc ccdcccsnencoceansvaveheteebusaeen 3

The Investigation That Led To the Indictment Of

Dr. BuctinePsaeess (sss vp ccecevecnsadeeaeeesavan 4

Thee Opinions BOW cnc cccccirsccdsspetscsneenne 11

REASONS FOR GRANTING THE WRIT................ 15

I. The Second Circuit’s test for deciding when the

consent of “third parties” validates warrantless

searches and seizures gives insufficient weight to

important interests protected by the Fourth

Amendment and conflicts with this Court’s

decision in United States v. Matlock and with

the decisions of other Courts of Appeals......... 15

II. The Second Circuit’s decision upholding the

search of the closed containers conflicts with

decisions of this and other courts, relates to an

issue that is sub judice before this Court and

presents important issues concerning whether

and when people have legitimate expectations

of privacy in closed containers ................19

iv

Page

III. The Second Circuit’s decision upholding the

warrantless search of the chemicals conflicts

with this Court’s decision in Walter v. United

States and presents an important issue concern-

ing when an augmentation of the natural senses

amounts to a separate search. ..........0eee00- 21

IV. The refusal to suppress the fruits of surreptitious

interviews conducted in the absence of counsel

raises important issues, about which there are

conflicting decisions, concerning the rights of

those under investigation who express a desire

for the assistance of their lawyers and the cor-

responding obligation of government attorneys

to respect these expressed desires ............-. 23

SE evebehaacheUsecinwl sdetnsvnteaehenee 26

TABLE OF CITATIONS

Cases

Arkansas v. Sanders, 442 U.S. 753 (1979). ......... 18, 19-20

Bettuo v. Pelton, 260 N.W. 2d 423 (Iowa 1977)......... 17 n,.

Chandler v. Fretag, 348 U.S. 3 (1954). ......cccceevccees 24

Chapman v. United States, 365 U.S. 610 (1961)........... 18

Coolidge v. New Hampshire, 403 U.S. 443 (1971) .... 15 n. 21

Frazier v. Cupp, 394 U.S. 731 (1969)... ..... cc eeeeeeces 18

House v. Mayo, 324 U.S. 42 (1945) 2... 2... cece ceeesvees 24

Jones v. Latexo Independent School District,

499 F. Supp. 223 (E.D. Tex. 1980). ...........66- 22 n.

Mancusi v. DeForte, 392 U.S. 364 (1968). ..........0000. 16

Massiah v. United States, 377 U.S. 201 (1964)............ 24

McDonald v. United States, 335 U.S. 451 (1948)........ Sn.

Miller v. California, 392 U.S. 616 (1968) ..........00006. 24

People v. Hobson, 39 N.Y. 2d 479 (1976). .....--eeeee- 24n.

Page

People v. Riegler, 111 Cal. App. 3d 580, 168 Cal. Rptr. 816

(1980), 28 Cr. L. 4189 (Feb. 11, 1981) ........ 23, 23 n.

People v. Robbins, 103 Cal. App. 3d 34, 162 Cal. Rptr.

786 (1980) cert. granted, 66 L.Ed.2d

Pee Ee ROE Ua VaGh whee keua coewebeeee awk 19

People v. Skinner, 52 N.Y. 2d 24 (1980).............. 25-26

People v. Smith, 42 N.Y. 2d 961 (1977). .......ce0eees 22 n.

Rakas v. Illinois, 439 U.S. 128 (1978). ..........cceeeees 18

Roaden v. Kentucky, 413 U.S. 496 (1973). .............. 16

United States v. Clark, 531 F.2d 928

SN MIME iss kaise ewido keer ce e'n oun bone &% 21

United States v. Cook, 530 F.2d 145 (7th Cir.),

cert, denied, 426 U.S. 904 (1976)... .... cee eee 17 n.

United States v. Durham, 475 F.2d 208

es SE nado aee kA Ew vee Ko S8 bee 8'0'e's 0 24 n.

United States v. Glasby, 576 F.2d 734 (7th Cir. 1978)...... 19

United States v. Gradowski, 502 F.2d 563

C20 Cit. 1974) Goer CNTR). oie veccceces 12-13, 16-18

United States v. Hare, 589 F.2d 1291

Ss BPE S 2s be ea cet peek onal kdakebé-es awe’ 21

United States v. Harris, 534 F.2d 95

ey | Oe ere et oe 18-19

United States v. Heisman, 503 F.2d 1284

Ss STE ah i dcbheods babel eeaeceecinees 04 17 n,

United States v. Henry, -—U.S.——, 65 L.Ed.2d

Se a ness kab a ha OeN ad PER ee Cee 8008s 24

United States v. Holmes, 452 F.2d 249 (7th Cir. 1971),

cart. Gented,; GOT U.S. FOP CISTI ADs oc ccccccnccvceves 24

United States v. Howard, 426 F. Supp. 1067

UE oe Fn oak Wists Ga a's 6 0Oio.s @Nw 906 Valde's ase 25 n.

United States v. Lemonakis, 485 F.2d 941

ee ee BITE Waianae Bie wk hha ewin ce Um bie died 25 n.

United States ex rel. Chabonian v. Lick, 366 F.Supp.

Fe ey NE PEPE bic We pee cveneakdwehebeeddse 24n,

United States v. Long, 524 F.2d 660

De i) Ber ee ge i ee 17 n.

Page

United States v. Matlock, 415 U.S. 164 (1974)......... 15-19

United States v. Michael, 622 F.2d 744

Se CU a 0o-5 656 Fede abeenseveweseanseue 22 n.

United States v. Pretzinger, 542 F.2d 517

Ss Eo Pe ee re ee 22 n.

United States v. Ross, No. 79-1624 (D.C. Cir.

a Se ON ED 6nd civ is Svacnduetetens 19

United States v. Solis, 536 F.2d 880

ST Oh BPE Vic eda Canova 646 vdeo heensaesees 22 n.

United States v. Springer, 460 F.2d 1344

SEG SETS a alee dso ckpaws ce cuebanneee cen 25-26

United States v. Taborda, 635 F.2d 131

es SENG bas de dtas ed acebawncd Wana seeee ee 22 n.

United States v. Thomas, 474 F.2d 110 (10th Cir.)

cert, denied, 412 U.S. 932 (1973). ............ 25, 25n.

United States v. United States District Court,

eT REPT Ss Kodettwieessahensneed 15 n.

United States v. Wedra, 343 F. Supp. 1183

Greek. 3972) COMING, 5.) ov cvccccciccscccsices 25 n.

United States v. Williams, 523 F.2d 64 (8th Cir.),

cert, denied, 423 U.S. 1090 (1975)..........0.00. 17 n.

United States v. Wright, 449 F.2d 1355

cc SCE s aks c ees one a wean ben eens 22 n.

Walter v. United States, 447 U.S. 649,

SF Ramee See CAD 04s 00:0 0.0enddecnees 14, 21-23

Statutes

NG TD ae'ein 94:6 60> 6-0k6 840 SER SOO eee ee 3

ACEI DS kc si bas 0940 bu Ouk a6 ew ee wa einen 3

a 4 é:.0'0-0.0 b6 kad 64 668s DERG OR RADE R 3

ees SB 6 n0'6's 000s 004045040 KeeNREA eee 3

et EI G4 64-0 sie dicncinndbe sod cclnaeeeonsaneaene 3

i Ten and co oe cen esadens’ sons seen waeeeeee 3

es WBE +o is Kak ene eecees.cacadeen nccneuaees 2

Federal Rules of Criminal Procedure, | eer

Page

Miscellaneous

American Bar Association Code of Professional Responsibility,

Disciplinary Rule 7-104(A)(1)......... 14n, 14-15, 25-26

Kamisar, Brewer v. Williams, Massiah and Miranda:

What is Interrogation? When Does it Matter,

67 Georgetown Law Journal 1 (1978)............. 24 n.

a

IN THE

Supreme Court of the United States

OCTOBER TERM, 1980

JOHN BUETTNER-JANUSCH,

Petitioner,

we

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Petitioner, Dr. John Buettner-Janusch, prays that a writ of

certiorari issue to review a decision of the United States Court

of Appeals for the Second Circuit entered on April 6, 1981.

2

OPINIONS OF COURTS BELOW

The opinion of the United States Court of Appeals for

the Second Circuit is printed in Appendix A hereto and is

published at - - F. 2d - - (2d Cir. 1981). The opinions of the

United States District Court for the Southern District of New

York are printed in Appendices B, C, D, and E hereto. The

opinion dated October 29, 1980, is published at 500 F. Supp.

1285 (S.D.N.Y. 1980).

JURISDICTION

The judgment of the United States Court of Appeals

was entered on April 6, 1981. Jurisdiction of this Court is

invoked pursuant to 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISIONS

Amendment IV

“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, and the persons

or things to be seized.”

Amendment V

“No person * * * shall be compelled in any criminal

case to be a witness against himself, nor be deprived of life,

liberty or property, without due process of law. * * *”

Amendment VI

“In all criminal prosecutions, the accused shall enjoy the

right * * * to have the Assistance of Counsel for his defense.”

3

STATEMENT OF THE CASE

Preliminary Statement

Dr. John Buettner-Janusch was indicted on October 3,

1979, and charged in a six-count indictment with: (1) con-

spiracy to manufacture and distribute certain controlled

substances (Count 1), [21 U.S.C. § § 812, 841(a), 841(b)(1)

(B) and 841(b)(2)] ; (2) manufacture and distribution of metha-

qualone (Count 2), and cylert pemoline (Count 3) [21 U.S.C.

§ 812, 841(a)(1), 841(b)(1)(B) and 841(b)(2), and 18 U.S.C.

§ 2]; (3) conspiracy to obstruct a criminal investigation (Count

4), [18 U.S.C. § § 371, 1503]; and (4) knowingly making false

statements to government investigators (Counts 5 and 6),

{18 U.S.C. § 1001].

Beginning on June 30, 1980, Dr. Buettner-Janusch was

tried before the Honorable Charles L. Brieant and a jury. At the

end of the Government’s case, Judge Brieant entered a judg-

ment of acquittal on Count 4 (conspiracy to obstruct justice).

On July 18, 1980, the jury returned a verdict of not guilty on

Count 3 and guilty on Counts 1, 2, 4 and 6.

On November 14, 1980, Dr. Buettner-Janusch was sen-

tenced to a term of imprisonment of five years (concurrent

terms of two years imprisonment on Counts 5 and 6, to be

followed by concurrent terms of three years imprisonment on

Counts | and 2). On April 6, 1981 the United States Court of

Appeals for the Second Circuit affirmed the conviction.

Background

At the time that the investigation in this case began, Dr.

Buettner-Janusch was a distinguished academic scientist whose

work had bridged the fields of anthropology and chemistry (Tr.

1542).* He has written extensively about the role of chemistry

and genetics in the evolution of primate behavior. These stu‘lies

have revolutionized many aspects of ani \ropology (Tr. 1544).

During the 1970’s, Dr. Buettner-Janusch vecame very interested

*“Tr.” refers to the trial transcript.

4

in how the introduction of chemicals into lemurs could modify

their behavior (Tr. 1509, 1543). This interest was heightened by

the work of one of his former graduate students who had ob-

served abnormal behavior patterns in female lemurs after they

gave birth. In order to test some of his hypotheses, Dr. Buettner-

Janusch suggested that chemicals could be given to the female

lemurs to block the secretion of certain hormones after birth.

His preparatory work on these experiments, as well as his

efforts to fund the project, were begun well before the govern-

ment investigation commenced (Tr. 1613, 1799).

The Investigation That Led To The

Indictment Of Dr. Buettner-Janusch

A. NYU builds a laboratory especially for Professor Buettner-

Janusch.

In 1973, Dr. Buettner-Janusch was lured from Duke to

NYU and made chairman of the Anthropology Department.

The District Court found that an important attraction for Dr.

Buettner-Janusch was the laboratory which would be con-

structed especially for his use (A. 25a).* At the center of this

case is one piece of equipment which Dr. Buettner-Janusch

moved from Duke to NYU, his fume hood. The fume hood is

a glass walled enclosure designed to prevent toxic gases from

escaping into the laboratory.** All of the controlled substances

seized during the Government’s raid of Dr. Buetter-Janusch’s

laboratory were taken from closed jars found in the fume hood.

Because of its importance to the work of Dr. Buettner-

Janusch’s laboratory, there were rules concerning the use of the

fume hood. No one was permitted to open its door or touch

or remove any of its contents without approval of the person

whose experiment was then being conducted (A. 670, 698a).

This practice accomplished two goals. First, it insured that there

-

*“A” refers to the Joint Appendix filed in the Court of Appeals.

**A photograph of Dr. Buettner-Janusch’s fume hood is included as

Appendix F hereto. :

5

would be only a limited exposure to health-endangering sub-

stances. Second, the practice was designed to safeguard the

efforts of the researcher from mishaps which could destroy

years of research (A. 607a, 698a, 314a).

As a research scientist in a university, Dr. Buettner-Janusch

had expectations of privacy concerning his laboratory and his

work. He expected that the physical integrity of his laboratory

would be respected. More important, he expected, as any

research scientist would (see testimony of Biology Professor

Gunther Stotzky, A. 729-37), t! at the integrity of his research

would be respected — that is, that there would be no inspection,

without his permission, of his notes, laboratory books, research

articles, scientific documents, and chemicals, any of which

might indicate the nature of the research being conducted.

Of course, because Dr. Buettner-Janusch’s research re-

quired teams of workers, people other than Dr. Buettner-

Janusch had access to and used the laboratory. However, that

access and use were controlled by Dr. Buettner-Janusch

(A. 690a, 698a). For example, Richard Macris had keys to the

laboratory. He was an undergraduate student of Professor

Clifford Jolly but worked as an assistant in Dr. Buettner-

Janusch’s laboratory under the latter’s supervision. Macris left

the laboratory in mid-April 1979 claiming to have contracted

mononucleosis. He took an unofficial leave of absence from the

University (A. 225a).

Clifford Jolly, Professor of Physical Anthropology at NYU

since 1968, also had keys to Dr. Buettner-Janusch’s laboratory

(A. 383a). Jolly had his own laboratory in Room 409 of Rufus

Smith Hall, next door to Dr. Buettner-Janusch’s laboratory.

Because Room 409 had no direct means of access to the passen-

ger elevator, Jolly needed keys to Dr. Buettner-Janusch’s

laboratory not so that he could share the laboratory, but so

that he could walk from the passenger elevator through Dr.

Buettner-Janusch’s laboratory in order to reach his own work-

place in Room 409 (A. 230a, 384a).

Dr. Buettner-Janusch’s laboratory and Jolly’s laboratory

were financially and functionally independent (A. 691a). Each

laboratory had separate equipment (A. 692a-694a). Dr.

Buettner-Janusch and Jolly had separate research projects

6

(A. 703a). Although on occasion Jolly and his research assist-

ants used some of the less sophisticated equipment in Dr.

Buettner-Janusch’s laboratory (A. 393a), they “rarely” used

any of the advanced equipment Dr. Buettner-Janusch brought

with him from Duke (A. 607a). With respect to the fume hood,

Jolly testified that he could not recall a single instance in 1979

when he had used it (A. 607a).

B. Macris and Jolly begin stealing chemicals, equipment and

papers from Dr. Buettner-Janusch’s laboratory.

In December 1978, Dr. Buettner-Janusch told Richard

Macris, who had worked in the laboratory since 1977, that

there was no more money in the Salary Account and that

Macris could no longer be paid (A. 223a). Shortly thereafter,

according to Macris, he became suspicious that certain chemi-

cals in Dr. Buettner-Janusch’s laboratory could be used to

manufacture controlled substances (A. 202a). In early February

1979, Macris told his suspicions to Jolly (A. 202a). The two

then began to spy on Dr. Buettner-Janusch, to take surrep-

titious photographs of the laboratory and of the conterits of

laboratory notebooks, to scavenge the wastepaper baskets, and

to steal papers, chemicals and equipment from places through-

out Dr. Buettner-Janusch’s laboratory, including the fume hood

(A. 293a, 46la, 467a, 469a, 471a). Jolly stole a key to Dr.

Buettner-Janusch’s storage room in the basement of Rufus

Smith Hall and subsequently searched it (A. 425a).

Macris and Jolly spied for several months before contact-

ing law enforcement officials. On May 2, 1979, through inter-

mediaries, Macris and Jolly arranged to have the chemicals

stolen from Dr. Buettner-Janusch’s laboratory tested by the

Drug Enforcement Administration (“DEA”) (A. 358a). An

understanding was reached that Macris and Jolly would not

“have to worry about prosecution” (A. 360a). Government

officials took the stolen chemicals and, without obtaining

judicial approval, subjected them to an intensive analysis

(A. 370a). Approximately one week later, the Government

reported that the chemicals stolen by Macris and Jolly con-

tained controlled substances (A. 349a).

7

C. Government agents break into Dr. Buettner-Janusch’s

laboratory after deciding not to obtain a warrant.

On May 16, 1979, after consulting with the President and

the General Counsel of NYU, Macris and Jolly met with govern-

ment officials. The government officials suggested a search

warrant for Dr. Buettner-Janusch’s laboratory but then made

a deliberate decision, at the urging of NYU’s counsel, not to

obtain one (A. 132a-133a, 214a). NYU wanted to be saved the

“notoriety” that would result from filing a search warrant in

court (A. 65a). So, the officials decided to make a warrantless

search on the basis of NYU’s consent. Neither Macris nor Jolly

was asked to consent (A. 258a, 421a). At the request of the

government attorney, they did agree to “go along’’ with agents

on the raid (A. 421a).

The next day, May 17, NYU’s counsel met with the

President of NYU, then called an Assistant United States

Attorney and told her that “the University” would consent to

the search of Dr. Buettner-Janusch’s laboratory (A. 135a).

Aiter receiving this consent, the government officials decided to

wait until nighttime to make sure that Dr. Buettner-Janusch

would be out of his laboratory. At about 10 p.m., thirty (30)

hours after the Government had been informed of the alleged

manufacture of controlled substances in the laboratory

(A, 464a), six DEA agents entered the laboratory together with

Richard Macris, his brother Robert Macris, and Jolly. They

opened the door with Jolly’s key (A. 465a, 492a).

DEA chemist Jeffrey Weber was in charge of deciding what

in the laboratory should be seized (A. 756a). While the agents

were entering enclosed areas of the laboratory and removing

things from them, Weber noticed on a lab table a plastic con-

tainer tightly closed with a screw-on top (G.X. 106; A. 776a).*

This container apparently had been removed from the fume

hood by someone in the raiding party.** The container was

*“G.X.” refers to Government Exhibit.

**The record is unclear about who in the raiding party removed

the container. Danny Coryetz, the director of Professor Buettner-

Janusch’s laboratory, testified that he placed the container in the fume

hood before he left the laboratory at about 5:00 P.M. on the day of the

break-in. (A. 667a; Tr. 420).

translucent and not transparent, and by shaking it, Weber could

tell only that it contained a “‘clumpy” powder (A. 775a). The

container was labeled “starch’’, but because starch is not

“clumpy”, Weber thought it contained something else

(A. 775a). He needed more information to determine what the

contents were, so he unscrewed the top of the container. He

smelled toluene, a common laboratory solvent that could be

used to make methaqualone. This smell was the “determining

factor” in Weber’s decision to seize G.X. 106 (A. 776a).

Weber then turned his attention to the other containers

in the fume hood (A. 768a). He saw four plastic containers

which were tightly closed with screw-on tops (G.X. 103A and B

and G.X. 104A and B), Weber also saw two evaporating dishes

(G.X. 105A, 105B) with labels indicating melting points close

to that of methaqualone. These dishes were covered with silver

foil (A. 774a, 1240a).

Weber was curious about the contents of the four plastic

containers and wanted to learn more about them (A. 773a). He

had seen a notebook in the laboratory but had not yet read its

contents ( .. 7“'. “ow, after he had already opened G.X. 106,

he read tl. © ....¢ 2° = the notebook and saw that it contained

a series Of nurynaca entries (A. 761a), These entries corres-

ponded to labc.s on the containers remaining in the fume hood

(A. 77 1a).

When Weber saw the containers, he had no more than a

suspicion that there was methaqualone somewhere in the

laboratory and not necessarily in the four plastic containers.

According to Weber, visual examination of the containers

told him little about their contents (A. 769a, 770a). Weber

testified that he interpreted the notations in the notebook as

representing the melting points of the substances in the con-

tainers (A. 771a). The melting points in the notebook, however,

were up to 100° Celsius higher than the melting point of

methaqualone (A. 76la, 77la-773a).* Macris and Jolly had

*According to Weber, the melting point of methaqualone is 115° C.

(A. 772a). The melting points recorded in the notebook for the substances

in G.X. 103A, G.X. 103B, G.X. 104A and G.X. 104B ranged from 185°

to 220° C. (A. 71a), There are 275 organic compounds that have the

melting points recorded in the laboratory notebook. CRC, Handbook of

Chemistry and Physics, 645, 648 (1974).

9

joined the raiding party to help direct the search, but they did

not identify these particular jars as containing controlled

substances. Accordingly, Weber decided that he needed more

information about the substances in the containers before he

could decide whether to seize them. Therefore, he unscrewed

the tops of the containers, peered into them and smelled their

contents (A. 774a). He again smelled toluene (A. 775a). He said

that he did not smell toluene until he opened the containers

(A. 775a) and that the smell of toluene was the “determining

factor” in his decision to seize the four containers (A. 776a).

Even with the information gathered in the raid, including

the smell of toluene, Weber still was not certain whether there

was methaqualone or any other controlled substance in any of

the containers (A. 767a). Therefore, Weber decided that the

chemicals had to be seized, taken to a government laboratory,

and subjected to extensive analysis (A. 773a). The agents

gathered up their seizures and left (A. 497a-499a, 640a, 777a).

On the way out, the agents ripped off the lock and frame of the

laboratory door with a tire iron (A. 261a-266a, 500a). They did

so to make the break-in look to Dr, Buettner-Janusch as if there

had been a burglary by someone who did not have a key

(A. 262a). The agents thus shielded Jolly and Macris so that

they could continue as spies.

In all, the agents seized seven containers of chemicals from

the fume hood, twelve containers of chemicals from the closed

cabinets under the fume hood, four containers of chemicals

from the cold room, one container of chemicals from the

freezer compartment adjacent to the fume hood, nine con-

tainers of chemicals from open areas in the laboratory, a reac-

tion vessel and stand from a table near the fume hood, and a

heating mantle rheostat device and separatory funnel from lab

carts near the fume hood and took photographs of notes in the

laboratory (A. 794a-798a, 497a-499a). The Government con-

ceded that most of the chemicals seized were not controlled

substances (A. 790a-794a). All of the methaqualone found in

the laboratory on May 17 came from the containers taken from

inside the fume hood (A, 790a-794a).*

_ “Nonetheless, almost all of the items seized on May 17 were used

by the Government at trial.

10

Since the government agents were not acting pursuant

to a search warrant, they made no return and did not notify

Dr. Buettner-Janusch that his laboratory had been subjected

to a search and that his materials had been seized. Instead, the

agents simply kept the materials for some time, and then, again

without judicial authorization, subjected all of the seized

substances to a chemicals analysis, a much more intensive and

thorough search than the one Weber had conducted when he

looked at the chemicals and opened the jars in the laboratory

(Tr. 1240).

D. The Government continues its undercover investigation

and attempts to elicit statements from Dr. Buettner-

Janusch.

After the break-in, government attorneys attempted to

further their investigation by obtaining statements from Dr.

Buettner-Janusch, both overtly and covertly. During the overt

attempts, government attorneys repeatedly told Dr. Buettner-

Janusch that they would deal with him through the lawyer they

knew he had retained and would honor his right to the help of

that lawyer. They did so by issuing grand jury subpoenas and

attaching forms which informed Dr. Buettner-Janusch that he

had the right to consult with his attorney outside the grand

jury room (A. 799a). When Dr. Buettner-Janusch appeared be-

fore the grand jury, government attorneys repeated this advice

(A. 803a, 806a). When Dr. Buettner-Janusch made it clear that

he would not give statements to the grand jury, while his re-

tained counsel was not present, arrangements were made for

Dr. Buettner-Janusch to appear in the United States Attorney’s

Office, twice, with his counsel present (A. 8i2a, 934a). By per-

mitting the lawyer to be present during these interviews, and by

telling Dr. Buettner-Janusch that he had an “absolute right” to

consult with his attorney in private (A. 934a), the government

lawyers communicated that they would respect his desire and

honor his right to the help of his lawyer.

While the government lawyers were making these explicit

and implicit representations to Dr. Buettner-Janusch, they were

also sending three undercover informers to elicit statements

from him in the absence of his lawyer. In all, government

attorneys supervised at least ten surreptitious interviews with

Dr. Buettner-Janusch (A. 80la-1240a). These surreptitious

interviews (without counsel) spanned a period of six weeks and

were interspersed with the many representations that the

Government would honor his right to the help of his lawyers.

In their recorded conversations with Dr. Buettner-Janusch,

the government informers were not simply passive listening

posts. On the contrary, they initiated all of the conversations

after the first one on May 23 (A. 277a-280a). The informers

questioned Dr. Buettner-Janusch about the alleged illegal manu-

facture of controlled substances, the very subject matter for

which he retained an attorney. When conversations lagged or

when Professor Buettner-Janusch was not incriminating himself

sufficiently, the informers made up stories to prod him. (See,

e.g., A. 1162a, A. 1220a, Affidavit of AUSA Roanne Mann

filed November 14, 1979, 4 15).

By knowingly circumventing Professor Buettner-Janusch’s

counsel, government lawyers obtained statemenis that were

critical to the Government’s case. A major portion of the prose-

cutor’s summation was taken up with a discussion of the

statements Dr. Buettner-Janusch made to the government

informants in the absence of counsel (Tr. 1949-1956). In

addition, because two of the informants represented that they

were engaged in a joint defense with him, they were able to

elicit from him secrets of his defense and sometimes even

confidential attorney-client communications. (See, e.g.,

A. 1090a, 1164a, 1204a, 1210a, 1225a, 1229a, 1235a).

The Opinions Below

A. The entry into the laboratory.

The Government’s principal argument in the District

Court was that, as the owner of the premises in which the

laboratory was located and as employer of Dr. Buettner-

Janusch, NYU had authority to break down the door in order

to enter the laboratory. Therefore, according to the Govern-

ment, NYU administrators also had the right to grant the

12

Government permission to make forcible entry. The District

Court rejected this argument (App. 78) but upheld the entry

nonetheless on the basis of an unstated “implied” consent of

Macris and Jolly (App. 84).* The Court of Appeals upheld the

entry on the same ground (App. 3).

In deciding that Macris and Jolly could lawfully give

consent to the entry into Dr. Buettner-Janusch’s laboratory,

the courts below applied the test stated in United States v.

Gradowski, 502 F.2d 563, 564 (2d Cir. 1974) (per curiam).

Under Gradowski, “‘[C]onsent to a search by one with access

to the area searched, and either common authority over it, a

substantial interest in it or permission to exercise that access,

express or implied, alone validates the search.” 502 F.2d at

564 (emphasis supplied). The courts below reasoned that

because Macris and Jolly had keys to the laboratory, as well as

Dr. Buettner-Janusch’s permission to enter his laboratory, they

had authority to consent to the Government’s warrantless entry

into the laboratory (App. 3, 84).In substance, the courts below

concluded that lawful access to Dr. Buettner-Janusch’s labora-

tory was all that was required to empower Macris and Jolly

to consent to the entry.

B. The search of the fume hood and the closed containers.

The courts below upheld the search of the fume hood on

the basis of the same unstated “‘implied”’ consent of Macris and

Jolly that was held to justify the entry into the laboratory. The

courts concluded that since Dr. Buettner-Janusch had not

exercised his “‘right” to exclude Macris or Jolly from the fume

hood, he lost his legitimate expectation of privacy in it (App.

13, 96). In any event, since Macris and Jolly had “implied” per-

mission to use the fume hood, they had authorization to con-

sent to the government’s warrantless search of it (App. 14 ).

The courts below found no significance in the uncontradicted

testimony concerning the rules limiting access to the fume hood

to the person whose experiment was being conducted or in

*“App.” refers to the appendix hereto.

13

Jolly’s testimony that he could not recall using the fume hood

at all in the year 1979.*

The District Court did not find that the unstated

“implied” consent to enter the laboratory extended to the

opening of the closed containers in the laboratory. In suppress-

ing G.X. 108, a container found in the freezer, the District Court

explicitly rejected the government’s claim of consent (App.

126). Nonetheless, the District Court upheld the opening and

seizure of the closed containers taken from the fume hood on

the ground that the substances in these containers were in

“plain view”. Even though Weber’s observations in the lab-

oratory did not tell him what was in the jars, the District

Court conciuded that these observations, together with his

knowledge that the chemicals stolen by Macris and Jolly con-

tained methaqualone, made it reasonable for Weber to infer

that these particular jars also contained methaqualone (App.

124). The Court of Appeals adopted a similar analysis and

found that the contents of the jars were in “plain view” in part

because Weber was aware of what had been stolen by Jolly and

Macris (App. 15).**

*The Court of Appeals also said it was agreeing with the District

Court’s conclusion that Dr. Buettner-Janusch forfeited his expectation

of privacy in all the enclosed spaces in the laboratory by allowing several

people access to them (App. 13). Although the District Court expressed

doubts about whether Dr. Buettner-Janusch had an expectation of privacy

in the laboratory (App. 139), it could not have based its decision on these

doubts because it suppressed some evidence seized from an enclosed space

in the laboratory (App. 127). In the District Court, the Government

conceded that Dr. Buettner-Janusch had a legitimate expectation of

privacy in his laboratory (App. 139).

**In its discussion of the one container which was suppressed by the

District Court, the Court of Appeals appeared to say that, in its view, the

initial unstated “implied” consent to enter the laboratory also extended

to opening closed containers which had been rer ed from enclosed

spaces within the laboratory (App. 15-16).

14

C. The analysis of the chemicals.

Both the District Court and the Court of Appeals held that

the Government could, without a warrant, subject two groups

of chemicals to analysis in a government laboratory. (One group

was stolen by Jolly from Dr. Buettner-Janusch’s laboratory,

and the other was seized by the DEA agents during the raid).

The Court of Appeals held that Walter v. United States, 447

U.S. 649 (1980) did not apply to the analysis of either group

(App. 16).

First, the Court of Appeals stated that Dr. Buettner-

Janusch had no expectation of privacy in the chemicals seized

from the laboratory because their appearance was exposed to

view by the “casual observer” (App. 16). Second, with respect

to the samples stolen by Jolly, the Court of Appeals noted that

the DEA obtained them from individuals “‘who had access to

{the samples] and permission to exercise that access’’ (App.

16). The Court of Appeals apparently concluded, without

citation of legal authority or reference to the record, that

someone with permission to exercise access to someone else’s

materials also has the right to take those materials, give them

to the Government and consent to a much more thorough

search of them than the person could or did perform.

D. The surreptitious interviews in the absence of counsel.

The District Court held that the surreptitious tape record-

ings were admissible because Dr. Buettner-Janusch was neither

under indictment nor in custody when they were made (App.

53). The District Court ruled that the government lawyers did

not violate Disciplinary Rule 7-104(A)(1)* of the American Bar

*Disciplinary Rule 7-104(A)1) states:

“During the course of his representation of a client a lawyer

shall not:

Communicate or cause another to communicate on the

subject of the representation with a party he knows to be

represented by a lawyer in that matter unless he has the prior

consent of the lawyer representing such other party or is

authorized by law to do so.”

15

Association’s Code of Professional Responsibility because

the lawyers did not conduct the interrogations themselves

(App. 56). Although this issue was urged upon the Court of

Appeals, it did not discuss the question.

REASONS FOR GRANTING THE WRIT

I.

THE SECOND CIRCUIT’S TEST FOR DECIDING WHEN

THE CONSENT OF “THIRD PARTIES” VALIDATES

WARRANTLESS SEARCHES AND SEIZURES GIVES

INSUFFICIENT WEIGHT TO IMPORTANT INTERESTS

PROTECTED BY THE FOURTH AMENDMENT AND

CONFLICTS WITH THIS COURT’S DECISION IN

UNITED STATES V. MATLOCK AND WITH THE

DECISIONS OF OTHER COURTS OF APPEALS.

This case presents important questions about the doctrine

of third-party consent. This is a doctrine which deserves the

careful attention of the Court. First, it is a doctrine which may

be used, as it was in this case, to plan a deliberate avoidance of

the warrant requirement.* Second, it is a doctrine which

removes from citizens their own control over those privacy

interests which are protected by the Fourth Amendment and

puts that control in the hands of “third parties”. Third, unless

it is strictly contrued, the doctrine of third-party consent may

be used, as it was in this case, to justify intrusions well beyond

either the expression of consent or the authority of those

consenting. For example, here Jolly’s and Macris’ decision to

*See e.g., McDonald v. United States, 335 U.S.451 at 455-56 (1948);

Coolidge v. New Hampshire, 403 U.S. 443, 471 n. 27; United States v.

United States District Court, 407 U.S. 297, 315 (1972). Because of its

decision not to obtain a warrant, the Government deprived Professor

Buettner-Janusch of the right to have a neutral magistrate pass on the

existence of probable cause, the right to have the search and seizure limit-

ed by the specific terms of a warrant, the right to a public filing of the

warrant and return in court (unless the warrant or return was sealed by

proper authority), and the right to an inventory of the items seized pur-

suant to the warrant. F.R.Cr.P. 41.

16

“go along” on the raid was used to justify the entry into the

laboratory, the search of enclosed spaces within the laboratory,

the opening of closed containers taken from within the enclosed

spaces, the seizure of large amounts of chemicals, papers and

scientific equipment, and the subsequent analysis of these

chemicals at a government laboratory.

Finally, there are good reasons why the application of the

third-party consent doctrine in this case warrants this Court’s

particular attention. The Government’s search was of an

eminent scientist’s research laboratory in a major university.

The seizures were of chemicals, equipment, and papers used in

the laboratory. For good reasons, society does, and should,

encourage research scientists to expect that their laboratories

and the materials in them will remain private. Failure to respect

those expectations will affect how secure scientists can feel in

their relations with their colleagues, their students, and univer-

sity and government officials. Where the government’s activities

affect such interests, they must be held to a standard of scrup-

ulous exactitude under the Fourth Amendment. Roaden y.

Kentucky, 413 U.S. 496 (1973); Walter v. United States, 447

U.S. 649 (1980).

A. The Second Circuit’s test for “Third-Party Consent”

conflicts with this Court’s decision in United States v.

Matlock.

Following its rule in United States v. Gradowski, 502 F.2d

563 (2d Cir. 1974), the Court of Appeals held that Macris and

Jolly had authority to consent to the government’s warrantless

entry into Dr. Buettner-Janusch’s laboratory because they had

access to the laboratory and permission to exercise that access.

This rule, in essence, makes lawful access the basis for authority

to consent and thus emasculates privacy interests that exist in

many areas, most particularly in workplaces like Dr. Buettner-

Janusch’s laboratory. See Mancusi v. DeForte, 392 U.S. 364,

369 (1968). In any modern law office, dozens of people such as

cleaning personnel and clerical staff have express permission to

exercise access. Under the Gradowski test, all such persons

17

would have authority to permit a warrantless governmental in-

trusion into the privacy of the office. Law clerks and secretaries

have lawful access to judicial chambers; should such persons be

permitted to authorize warrantless governmental intrusions?

The Gradowski test, and its application in this case, gives

insufficient weight to the most important element of this

Court’s ruling in United States v. Matlock, 415 U.S. 164 (1974).

Under Matlock, before a third party may consent to a warrant-

less search, he must have authority over the premises to be

searched “in his own right”. 415 U.S, at 171 n.7. Neither in

Matlock, which was decided in 1974, nor subsequently, has this

Court explained the meaning of the phrase, “in his own right”’.

Without guidance from this Court, it is not surprising that the

courts have dealt with questions of third party consent on an

ad hoc basis, without analysis, and have reached conflicting

conclusions. *

One court that has attempted an analysis has announced

a test which conflicts with that of the Second Circuit. In

United States v. Heisman, 503 F.2d 1284, 1288 (8th Cir. 1974),

the Eighth Circuit suggested that third-party consent would be

valid only if the third party’s interest in the area searched would

itself be recognized under the Fourth Amendment. This

approach is more consistent with the analytical basis for the

third-party consent doctrine than is the Second Circuit’s

Gradowski test. The validity of a third-party’s consent is not

based on vicarious waiver of the defendant’s rights. United

States v. Matlock, supra, 415 U.S, at 171. Rather, a warrantless

search is valid in such cases because a third-party has relin-

quished his own Fourth Amendment interests in the premises.

Id., 415 U.S. at 171 n.7, Under this analysis, the issue of

whether a third-party has authority to consent to a search

depends on whether that person had a protected Fourth

*Compare, ¢.g., United States v. Williams, 523 F.2d 64, 66 (8th Cir.),

cert. denied, 423 U.S. 1090 (1975) (a landlord may not consent to a

search of a tenant’s premises, even if the landlord reserved the right of

entry), with United States v. Cook, 530 F.2d 145 (7th Cir.), cert. denied,

426 U.S. 904 (1976) (contra); compare Bettuo v. Pelton, 260 N.W.2d 423

(lowa 1977) (an estranged spouse who has left the marital abode may

not consent to a search of the premises), with United States v, Long,

524 F.2d 660 (9th Cir. 1975) (contra).

Amendment interest (i.e., a legitimate expectation of privacy)

in the place searched.

The Eighth Circuit’s approach harmonizes the decisions of

this Court while the Gradowski test does not. An absentee

landlord, even if he has lawful access to the leased premises,

does not have a legitimate expectation of privacy in the

premises, Rakas vy. Illinois, 439 U.S. 128 (1978) (a property in-

terest alone is not sufficient to give rise to an interest protected

by the Fourth Amendment). Therefore, the landlord could not

consent to a warrantless search of the premises. Chapman y.

United States, 365 U.S. 610 (1961). On the other hand, a joint

user of a piece of luggage does have a legitimate expectation of

privacy in the luggage, Arkansas v, Sanders, 442 U.S. 753

(1979), Therefore, he may consent to a warrantless search of

the luggage. Frazier v. Cupp, 394 U.S. 731 (1969).

We respectfully urge the Court to review this case in order

to consider the conflicting approaches and to articulate

standards for deciding when “third-parties” may consent to a

search.

B. By upholding the search on the basis of consents not relied

' upon by the agents who conducted the search, the Court

of Appeals reached a decision in conflict with decisions of

another Court of Appeals.

The first time the Government suggested that the searches

and seizures were justified by the consent of Macris and Jolly

was during the pre-trial proceedings, when it appeared that the

justification relied on at the time of the entry - - NYU's consent

- - might not withstand scrutiny. In upholding the search on the

basis of purported consents upon which the Government agents

did not in fact rely at the time of the entry (A. 258a, 421a), the

Second Circuit has created a conflict with the decisions of the

Seventh Circuit. According to the Seventh Circuit, third-party

consent should not be allowed to justify a warrantless search

unless the officers actually relied on the consent and reasonably

believed that the third party “possessed the necessary common

authority over the premises to validly consent to the warrantless

search”, United States v. Harris, 534 F.2d 95, 97 (7th Cir.

19

1976). In United States v. Glasby, 576 F.2d 734 (7th Cir.

1978), the defendant’s father allegedly consented to a warrant-

less search of an apartment. The agents who conducted the

search, however, did not know of the alleged consent. Since

the agents who searched did not act in reliance upon the

father’s words, the Seventh Circuit held that his alleged consent

could not justify the warrantless search. 576 F.2d at 737.

The requirement that officers actually rely on an alleged

consent in order to justify a warrantless search is a salutary rule.

Officers who wish to dispense with a search warrant and justify

a search on the basis of a third-party’s consent should be re-

quired to make reasonable inquiries to determine whether the

third-party actually had authority to consent. The officers

should be required to rely in fact on the consent of that party.

They should not be allowed to look for justification after the

intrusion has already occurred.

THE SECOND CIRCUIT’S DECISION UPHOLDING THE

SEARCH OF THE CLOSED CONTAINERS CONFLICTS

WITH DECISIONS OF THIS AND OTHER COURTS,

RELATES TO AN ISSUE THAT IS SUB JUDICE

BEFORE THIS COURT AND PRESENTS IMPORTANT

ISSUES CONCERNING WHETHER AND WHEN PEOPLE

HAVE LEGITIMATE EXPECTATIONS OF PRIVACY IN

CLOSED CONTAINERS.

Before and since Arkansas v, Sanders, 442 U.S. 753

(1979), courts have been confounded by the question of how

to analyze whether and in what circumstances the outward

appearance of a container bears upon one’s reasonable expecta-

tion of privacy in its contents. In a recent en banc decision,

United States v. Ross, No. 79-1624 (D.C. Cir. March 31, 1980)

(en banc), one of the dissenting judges collected sixty-nine

conflicting decisions on the subject. Opinion of Judge Tamm,

pp. 6-10. This Court has granted certiorari to clarify the issue.

People v, Robbins, 103 Cal. App. 3d 34, 162 Cal. Rptr. 780

(1980), cert. granted, 66 L.Ed.2d 838 (Jan. 19, 1981) (argued

20

April 27, 1981). See Petition for a Writ of Certiorari, Question

No. 3 (No, 80-148, p.1).

This case presents a similar question. The Second Circuit

held that government agents could, without a search warrant,

open jars which contained all of the controlled substances

seized on the night of the raid. These jars were designed to

protect chemicals and to keep out air, moisture, and the prying

senses of uninvited intruders. They were kept in Dr. Buettner-

Janusch’s fume hood, an enclosed piece of sophisticated scien-

tific equipment designed to store chemicals and to keep secure

the results of experiments. No scientist should be expected to

do more to safeguard the privacy of his research.

Nonetheless, the Court of Appeals reasoned that Dr.

Buettner-Janusch had no reasonable expectation of privacy

in the contents of the jars because the DEA chemist “could

properly infer [the containers] contained methaqualone from

their outward appearance” (App. 15). According to the Second

Circuit, the contents of the jars ‘were, for all practical purposes

in ‘plain view’,” (App. 15). These conclusions by the Court

of Appeals represent fundamental errors about the rationale

of Arkansas v. Sanders and the nature of the “plain view”

doctrine.

A person who leaves something in “plain view” gives up

his reasonable expectation of privacy because he has exposed

to others that which, in court, he claims to be private. Although

Dr. Buettner-Janusch may have exposed the appearance of the

jars’ contents to a “casual observer’’, that appearance revealed

virtually nothing about what Dr. Buettner-Janusch, or any

scientist, would have wanted to keep private - - the nature and

chemical composition of the substances (A. 729a-37, Testimony

of Biology Professor Stotzky). The DEA chemist who con-

ducted the search testified that, even with the other informa-

tion gathered during the raid, he could not tell what was in the

containers (A. 769a). He had first to conduct a search of the

jars by opening them and smelling their contents before he even

decided that the jars should be seized (A. 775a). Even then,

he had to subject the contents of the jars to chemical analysis

in a government laboratory before he knew that the powders he

has seized were methaqualone (A. 769a).

21

In finding that the contents of the jars were in “plain

view”, both the District Court and the Court of Appeals relied

heavily on the fact that the DEA chemist knew that samples

stolen by Jolly and Macris from Dr. Buettner-Janusch’s labora-

tory had subsequently been analyzed in a government laboratory

and were found to contain some methaqualone (App. 8, 15 n. 9).

This reliance undercuts the rationale of the plain view doctrine.

A person may be said to sacrifice his expectation of privacy in

things he knowingly exposes to others. But a person should not

be said to sacrifice his interest in privacy based on the fact that,

without his knowledge, someone else has stolen substances from

his laboratory, given them to government agents who then,

without a warrant, subject them to chemical analysis in a

government laboratory. The Court of Appeals’ conclusion

that Dr. Buettner-Janusch did sacrifice his interest in privacy

thus conflicts with the decisions of this Court and other courts

holding that the “plain view” doctrine applies only if the

incriminating nature of the item seized is “immediately ap-

parent” from what one knowingly exposes to others, See, e.g.,

Coolidge v. New Hampshire, 403 U.S. 443, 466 (1971); United

States v. Clark, 531 F.2d 928 (8th Cir. 1976); United States v.

Hare, 589 F.2d 1291 (6th Cir. 1979),

THE SECOND CIRCUIT’S DECISION UPHOLDING THE

WARRANTLESS SEARCH OF THE CHEMICALS CON-

FLICTS WITH THIS COURT’S DECISION IN WALTER

V. UNITED STATES AND PRESENTS AN IMPORTANT

ISSUE CONCERNING WHEN AN AUGMENTATION OF

THE NATURAL SENSES AMOUNTS TO A SEPARATE

SEARCH.

When DEA agents took the samples stolen by Jolly and the

substances seized from Dr, Buettner-Janusch’s laboratory and

subjected these chemicals to analysis in a government labora-

tory, they were doing so in order to discover information about

the substances which was not, and could not be, discerned

through the use of the agents’ natural senses. The question

22

whether and when an augmentation of the natural senses

amounts to a separate search requiring a warrant has generated

substantial conflicts in both result and analysis.* The Second

Circuit's decision in this case conflicts with the reasoning of this

Court’s latest pronouncement on the subject.

In Walter v. United States, 447 U.S. 649, 65 L.Ed.2d 410

(1980), FBI agents had to augment their natural senses (by

using a projector) in order to see films, the frames of which

were too small to be seen by the naked eye. 65 L.Ed.2d at 415.

A plurality of the Court held that this augmentation of the

natural senses had to be ‘characterized as a separate search.”

Id. (Justice Marshall concurred in the result only).

The reasoning in Walter should have governed this case.

The District Court distinguished Walter on the ground that the

search in that case was of material possibly protected by the

First Amendment (App. 133). However, this case also involves

important interests - - namely, the privacy of 4 iniversity

laboratory and of substances used in scientific research. If these

interests are recognized, as they must be, then the search of

these chemicals to determine whether they were illegal contra-

band or whether instead they were protected research is no

different from the search of the films in Walter to determine

whether they were unprotected illegal pornography or pro-

tected expression.

The Court of Appeals held that Walter did not apply

because the contents of the containers had already been

exposed to the “casual observer.” One California court has

*E.g., compare Jones v. Latexo Independent School Dist., 499 F.

Supp. 223 (E.D. Tex 1980) (use of a “sniffer dog” is a search within the

meaning of the Fourth Amendment); with, United States v. Solis, 536

F.2d 880 (9th Cir. 1976) (contra); compare United States v. Michael,

622 F.2d 744 (Sth Cir. 1980) (attachment of electronic “beeper” to

automobile is a search within the meaning of the Fourth Amendment);

with, United States v, Pretzinger, 542 F.2d 517 (9th Cir. 1976) (contra);

compare United States v. Wright, 449 F.2d 1355 (D.C. Cir. 1971) (use of

flashlight is not a search within the meaning of the Fourth Amendment);

with, People v. Smith, 42 N.Y. 2d 961 (1977) (contra). The Second

Circuit itself has acknowledged that the use of a telescope to view an

apartment is a search within the meaning of the Fourth Amendment.

United States v. Taborda, 635 F 2d 131 (2d Cir. 1980).

23

already interpreted Walter in a contrary manner and has held

that Walter applies even when a second search uncovers no more

than what a first, lawful, search has already uncovered, People

v. Riegler, 111 Cal. App. 3d 580, 168 Cal. Rptr. 816 (1980).*

Here, moreover, the subsequent search in the government

laboratory revealed precisely what was not accessible to the

“casual observer” in Dr. Buettner-Janusch’s laboratory, namely,

the composition of the chemicals.**

This Court should grant certiorari in order to review this

fundamental misunderstanding of the principles enunciated

in Walter and also to give guidance on the more general question

of when an augmentation of the natural senses amounts to a

separate search,

IV,

THE REFUSAL TO SUPPRESS THE FRUITS OF SUR-

REPTITIOUS INTERVIEWS CONDUCTED IN THE

ABSENCE OF COUNSEL RAISES IMPORTANT ISSUES,

ABOUT WHICH THERE ARE CONFLICTING DE-

CISIONS, CONCERNING THE RIGHTS OF THOSE

UNDER INVESTIGATION WHO EXPRESS A DESIRE

FOR THE ASSISTANCE OF THEIR LAWYERS AND

THE CORRESPONDING OBLIGATION OF GOVERN-

MENTAL ATTORNEYS TO RESPECT THESE EX-

PRESSED DESIRES.

While government attorneys were leading Dr. Buettner-

Janusch to believe that they would respect his expressed desire

*Justice Rehnquist has recently granted the state’s application for a

stay of the California Court’s mandate because he found the issues raised

by that case sufficiently important to make it likely that four Justices

would vote to grant certiorari. 28 Cr.L. 4189 (Feb. 11, 1981).

**As an alternative ground, the Court of Appeals found that the

same unstated implied consent by Macris and Jolly that authorized entry

into the laboratory also authorized the government agents to subject the

chemicals to analysis in a government laboratory. This conclusion warrants

the Court’s review for the reasons already stated in Point I above. In

addition, with regard to the analysis of the chemicals stolen by Jolly, it

is especially anomalous to allow the consent of those who stole substances

to justify a further and much more substantial intrusion.

24

for the assistance of his retained counsel, they were at the same

time directing informants surreptitiously to elicit statements

from him in the absence of counsel. In doing so, these govern-

ment officials made meaningless Dr. Buettner-Janusch’s right

to the assistance of his counsel.

In Massiah v. United States, 377 U.S. 201 (1964), this

Court held that it was unlawful for the Government to conduct

surreptitious interviews of a defendant in the absence of his

retained counsel, See also, United States v. Henry, - - U.S. - -,

65 L.Ed.2d 115 (1980). The District Court held Massiah in-

applicable because the interrogation here took place prior to

indictment (App. 50). In Miller v. California, 392 U.S. 616,

624 (1968), four Justices, dissenting from a dismissal of cer-

tiorari, described the contention that Massiah does not apply

prior to indictment as being “patently without substance”’.

There is substantial authority holding that Massiah does apply

prior to indictment.*

Even if Dr. Buettner-Janusch did not have a right to have

appointed counsel under the Sixth Amendment prior to indict-

ment, he had a right under the Due Process Clause of the Fifth

Amendment to hire his own lawyer to assist him during the

investigative stages of this case. Chandler v. Fretag, 348 U.S. 3,

9 (1954); House v. Mayo, 324 U.S. 42, 46 (1945). The Govern-

ment should not be allowed to use informers to bypass counsel

and to deprive Dr. Buettner-Janusch of a fair chance to obtain

advice when he most needed and wanted it. Justice (then Judge)

Stevens wrote in a dissenting opinion what is surely the correct

view:

In a civil context I would consider this behavior

{interviewing a defendant in the absence of known

counsel] unethical and unfair. In a criminal context

I regard it as such a departure from “procedural

regularity” as to violate the Due Process Clause of the

*See United States v. Durham, 475 F.2d 208, 210-11 (7th Cir.

1973); United States v. Holmes, 452 F.2d 249, 269 (7th Cir. 1971)

(Stevens, Cir. J.), cert. denied, 407 U.S. 909 (1972); United States ex rel.

Chabonian v. Liek, 366 F Supp. 72, 78-80 (E.D. Wis. 1973); People v.

Hobson, 39 N.Y. 2d 479 (1976) (Breitel, CJ.); Kamisar, Brewer v. Williams,

Massiah and Miranda: What is Interrogation? When Does it Matter, 67

Geo. L.J. 1, 81 (1978).

25

Fifth Amendment. United States v. Springer, 460

F.2d 1344, 1355 (7th Cir. 1972).

By interrogating Dr. Buettner-Janusch in the absence of

his retained counsel, government lawyers violated their obliga-

tions under D.R. 7-104(A)(1) of the Code of Professional

Responsibility.* The courts have reached conflicting conclu-

sions as to whether interrogation in violation of professional

ethics requires the suppression of the statements.”” The Tenth

Circuit, we believe, states the correct rule which conflicts with

the rule announced by the District Court in this case:

“{O}]nce a criminal defendant has either retained

an attorney or had an attorney appointed for him by

the court, any statement obtained by interview from

such defendant may not be offered in evidence for °

any purpose unless the accused’s attorney was

notified of the interview which produced the state-

ment and was given a reasonable opportunity to be

present. To hold otherwise, we think, would be to

overlook conduct which violated both the letter and

the spirit of the canons of ethics.” (Emphasis sup-

plied). United States v. Thomas, 474 F.2d 110, 112

(10th Cir.) cert. denied, 412 U.S. 932 (1973).

In addition, the decision below has created a conflict

with the highest court of New York State, which has recently

found a violation of Disciplinary Rule 7-104(A)(1) requiring

suppression when state officials interviewed a person in the

absence of his known counsel even though that person was

neither in custody nor under indictment. People v. Skinner,

52 N.Y.2d 24 (1980). Although the statements in that case

were suppressed as a matter of state law, nonetheless, we

believe that lawyers practicing in the same state should not be

*Quoted at p. 14, supra.

**E.g., compare United States v. Thomas, 474 F.2d 110 (10th Cir.),

cert. denied, 412 U.S. 932 (1973) (stating suppression would be required);

United States v. Wedra, 343 F Supp. 1183 (S.D.N.Y. 1972) (Weinfeld, J.)

(accord); United States v. Howard, 426 F.Supp. 1067 (W.D.N.Y. 1977)

(accord); with United States v. Lemonakis, 485 F 2d 941 (D.C. Cir. 1973)

(contra).

26

faced with conflicting pronouncements concerning their obliga-

tions under a code of professional responsibility which is

supposed to govern their professional conduct whether they are

practicing in federal or state courts. See Opinion No. 160 of the

New York State Bar Association (October 9, 1970).

We urge this Court to grant certiorari to resolve the con-

flict in the law as to the lawfulness of surreptitious interroga-

tion under the direction of government attorneys in the absence

of known retained counsel.

CONCLUSION

For the reasons above stated, the petition for a writ of

certiorari should be granted.

Respectfully submitted,

PETER L. ZIMROTH

Attorney for Petitioner,

Dr. John BuettnerJanusch

KOSTELANETZ & RITHOLZ

Jules Ritholz

Stuart E. Abrams

Of Counsel