# Appendix — Buettner-Janusch v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_2231%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1981 - **Citation:** 454 U.S. 830 ## Text 80-2054 ————lEEEEEEo ESS Office- Supreme Court, U.S. _ kILLED jun 4 1981 IN THE ALEXANDeté L STEVAS, 3 ERK Supreme Court of the Unit OCTOBER TERM, 1980 JOHN BUETTNER-J ANUSCH, Petitioner, Vv. UNITED STATES OF AMERICA, Respondent. APPENDIX TO 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 Attorney for KOSTELANETZ & RITHOLZ John Buettner-Janusch Jules Ritholz Stuart E, Abrams Of Counsel THE PAUL M. HARROD COMPANY, BALTIMORE, MARYLAND 21234 TABLE OF CONTENTS APPENDIX A-- Opinion of United States Court of Appeals for the Second Circuit......... APPENDIX B— Opinion of District Court, GIES HERICR 27, TFOG. oi cccecencccces APPENDIX C— Opinion of District Court, A: SUN 6.55 6k bb tddewnenes APPENDIX D— Opinion of District Court. SE Fy Nb vnc oececas voennes APPENDIX E- Opinion of District Court, Dated October 29, 1980 .............. APPENDIX F-— Photograph of Fume Hood............ Page a IN THE Supreme Court of the United States OCTOBER TERM, 1980 JOHN BUETTNER-J ANUSCH, Petitioner, v. UNITED STATES OF AMERICA, Respondent. APPENDIX TO PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT App. | APPENDIX A UNITED STATES COURT OF APPEALS FoR THE SECOND CIRCUIT + No. 876—September Term, 1980 (Argued March 5, 198} Decided April 6, 1981) Docket No. 80-1430 + UNITED STATES OF AMERICA, Appellee, —against— JOHN BUETTNER-JANUSCH, Defendant-Appellant. Before: KAUFMAN and TIMBERS, Circuit Judges, and WarD, District Judge.* - Appeal from a judgment entered in the United States District Court for the Southern District of New York, ° Of the United States District Court for the Southern District of New York, sitting by designation. App. 2 Charles L. Brieant, Jr., Judge, convicting appellant of narcotics offenses and of knowingly making false state- ments to government officials. Affirmed. -- ROANNE L. MANN, Assistant United States Attorney for the Southern District of New York (John S. Martin, Jr., United States Attorney, Robert S. Litt, Assistant United States Attorney, of counsel), for Appellee. Peter L. ZIMROTH (Jules Ritholz, Stuart E. Abrams, Kostelanetz & Ritholz, New York, N.Y., of counsel), for Defendant- Appellant. — KAUFMAN, Circuit Judge: This case chronicles the tragic culmiration of the career of Dr. John Buettner-Janusch, one of the world’s leading authorities on physical anthropology. The Government established that Dr. Buettner-Janusch, in violation of both the criminal law and his duty to the academic community, manufactured illegal drugs in his laboratory at New York University (“NYU”). Buettner-Janusch’s illicit activities were first brought to light by the private investigative work of his undergraduate research assis- tant, Richard Macris, and a fellow Professor of Anthro- pology, Dr. Clifford Jolly. This appeal derives its legal significance from the Government’s response to Macris’s App. 3 and Jolly’s contentions. Deciding to eschew the custom- ary procedure of securing a warrant to search the defen- d-nt’s laboratory, the Government relied instead on the a,.yarent authority of Macris and Jolly to consent to the investigation. We are thus faced with the difficult task of evaluating the power of third parties to permit govern- mental intrusion into an area which a defendant reasona- bly regards as private. We are of the view that the circumstances present here confirm that Macris and Jolly had the requisite authority. Accordingly, we agree with Judge Brieant that the Government’s conduct did not violate the Fourth Amendment. Because the constitutionality of an allegedly unlawful search depends to a large degree on underlying circum- stances, we must set out the facts in some detail. A grand jury filed a six count indictment on October 3, 1979, charging Buettner-Janusch with: conspiracy to manufacture and distribute LSD, methaqualone, and other controlled substances; manufacturing and possess- ing with intent to distribute approximately 1.2 kilograms of methaqualone; distributing and possessing with intent to distribute cylert pemoline, a controlled stimulant; con- spiracy to obstruct a criminal investigation, and, in counts 5 and 6, knowingly making false statements to two Assistant United States Attorneys. Shortly thereafter, Buettner-Janusch moved to suppress certain evidence seized from his laboratory on May 17, 1979 by agents of the Drug Enforcement Administration (DEA). Judge Brieant filed three comprehensive opinions, in which he summarized five days of evidentiary hearings and dis- cussed all of the defendant’s claims. App. 4 These hearings established that in 1973, Buettner- Janusch relinquished his position as Professor of Anthro- pology at Duke University to become Chairman of the Anthropology Department at NYU. To accommodate the defendant's research, and to house the equipment he had brought with him from Duke,' the University remodeled a section of the fourth floor of Rufus Smith Hall. Prior to Buettner-Janusch’s arrival, the front two-thirds of that floor were occupied by offices. Professor Jolly’s labora- tory was located at the rear of the building. During the remodeling process, the offices were eliminated. But the masonry wall that separated them from Jolly’s research facility was left intact, except that the door in the middle of the wall was taken off its hinges, leaving an open passageway. After the remodeling, access to Jolly’s labo- ratory could be gained either by passing through Buett- ner-Janusch’s new laboratory and through the open door- way, or by using a freight elevator situated at the rear of Jolly’s laboratory. At Buettner-Janusch’s invitation, Jolly and the gradu- ate students who assisted him made frequent use of some of the equipment in the new laboratory, including the deionized water, the aspirator, the gas line, and the measuring scales. They used the rest of the new facilities less regularly; for example, Jolly could not remember using the fume hood at all in 1979. Access to the laboratory was not limited to Buettner- Janusch and Jolly. Richard Macris, an NYU undergradu- ate whom Buettner-Janusch had hired as a laboratory assistant in 1977, also had keys to the door of the new ' One of the items of equipment Buettner-Janusch transported from Duke was a fume hood, a glass walled enclosure designed to prevent tonic gases from escaping into the laboratory. App. 5 laboratory. The defendant attempted to portray Macris as a mere errand boy, but Judge Brieant found that Macris had “full use of all the chemicals [in Buettner-Janusch’s laboratory], and he frequently performed experiments . . . at defendant’s request.” United States v. Buettner- Janusch, No. 79 Cr. 710-CLB, slip op. at 5 (S.D.N.Y. July 7, 1980).? In early February 1979, Macris began to suspect that some of the chemicals Buettner-Janusch had asked him to synthesize were illegal drugs, or so-called controlled sub- stances. He reported his suspicions to Jolly, who advised him to keep a diary of what he observed. Jolly, too, commenced an inquiry into Buettner-Janusch’s work, taking samples of various chemicals, recovering scraps of paper from garbage pails, and photographing suspicious containers. Alarmed by what they found, Macris and Jolly met with Macris’s brother Robert, a practicing New York attorney, to teil him they believed Buettner-Janusch was matufacturing methaqualone. Fearful of making a false accusation against someone of Buettner-Janusch’s promi- nence, they decided to secure more evidence before going to the authorities. Robert arranged, through interme- diaries, to have the surreptitiously obtained samples tested on a confidential basis at the DEA laboratory in New York City. In mid-May, the Macris brothers and Jolly received word that the DEA had found the samples to contain a high concentration of methaqualone. Several days later, in the early afternoon of. May 16, they conveyed their startling findings to Dr. John Sawhill, 2 During the evidentiary hearings, Macris testified that he had permis- sion to “enter all areas within the laboratory to locate chemicals and for other purposes.” App. 6 then-President of NYU, and to Andrew Schaffer, NYU's general counsel. Later that day, Schaffer, Jolly, and Rich- ard and Robert Macris met with Assistant United States Attorney Dominic Amorosa and DEA Agent Jack Toal in the U.S. Attorney’s office for the Southern District of New York. There, Richard turned over the diary he had compiled on Buettner-Janusch’s activities, and Jolly de- livered samples of the compounds the defendant had synthesized and relinquished certain photographs he had taken in defendant’s laboratory. Macris and Jolly also apprised the federal authorities of the results of the confidential tests the DEA had conducted. Confident that this evidence satisfied the requirement of probable cause, Amorosa proposed obtaining a warrant to search the laboratory. In response, Schaffer suggested that NYU could consent to a search, thereby obviating the need for a warrant. He added, however, that final authorization would have to come from President Sawhill. Hopeful that permission would soon be forthcoming, Amorosa asked Jolly and Richard Macris to assist the DEA agents in the search of defendant’s research facility. They readily agreed. Schaffer relayed Sawhill’s consent the following day, and the quest to discover whether Buettner-Janusch had ventured into illegal drug-making was planned for ap- proximately 10 o’clock that night. At the appointed hour, while Buettner-Janusch was attending a formal dinner, Richard and Robert Macris met Jolly, Toal, and five other DEA agents, including supervisory chemist Jeffrey Web- er, outside Rufus Smith Hall. After assuring himself that no one was in the laboratory, Jolly admitted the search party, using his key to gain entry. He and Richard Macris pointed out suspicious containers to the agents, who, at Weber’s instructions, seized several controlled substances. App. 7 They found methaqualone in the fume hood and on a laboratory bench, marijuana in the new laboratory’s “cold room,” lysergic acid hydrazide on a laboratory bench, and a receptacle containing two vials of ergota- mine tartrate, a precursor of LSD, which Jolly retrieved from the laboratory freezer. Much of the testimony at the hearing centered on the circumstances under which Weber ordered the seizure of the methaqualone and the LSD precursors. Weber stated that he observed four translucent plastic containers lying in the fume hood almost as soon as he entered the laboratory. He did not inspect them immediately, how- ever, for his attention was drawn to an open notebook lying on a laboratory bench. The notebook contained a series of entries which Weber interpreted as the melting points of methaqualone-containing compounds in various stages of purification. These entries corresponded to the markings on the receptacles in the fume hood. But this was not the only information Weber had to support his belief that these receptacles contained methaqualone. As a result of Jolly’s prior investigation, Weber already knew that methaqualone had been detected in the laboratory, and during the search he discovered several jars filled with methaqualone precursors. Upon examining the con- tainers, he observed that they held a white, granular solid, resembling an impure form of the drug.’ The chemist admitted, however, that even with all of this information he was not sure that the receptacles contained a controlled substance. But his strong suspicion ripened into certainty when he unscrewed the ton of one of the containers and ’ Judge Brieant described these containers as “sufficiently transparent to allow observation of the nature and appearance of the substances inside.” United States v. Buetiner-Janusch, No, 79 Cr. 710-CLB, slip op. at 7, (S.D.N.¥. May 28, 1980). App. 8 detected the powerful odor of toluene, a solvent regularly used in methaqualone synthesis. In contrast, the translucent container Jolly retrieved from the freezer provided Weber with little information as to its contents. Although this receptacle was con- structed of plastic with the same opacity as that used in the methaqualone containers, the contents of this recepta- cle—two vials which proved to hold ergotamine tartrate— were not discernible through the container walls. And because Weber had no prior information that LSD was being synthesized in the laboratory, he had no reason to believe that this receptacle contained LSD precursors. Based on these factual findings, and relying primarily on Arkansas v. Sanders, 442 U.S. 753 (1979), and United States v. Dien, 609 F.2d 1038 (2d Cir. 1979), adhered to, 615 F.2d 10 (2d Cir. 1980), Judge Brieant suppressed the receptacle retrieved from the freezer, but determined that the seizure of the containers of methaqualone did not offend the Fourth Amendment.‘ The judge also ruled that only Macris and Jolly had authority to consent to the search; the University did not. At trial, the Government introduced the admissible fruits of the May 17 search, supplemented by the testi- mony of Schaffer, Richard Macris, Jolly, Toal, and Web- er. Before the case went to the jury, Judge Brieant dismissed the obstruction of justice count. The jury convicted the defendant on four of the five remaining counts, and acquitted him of distributing cylert pemoline. Judge Brieant sentenced Buettner-Janusch to a total of five years’ imprisonment, to be followed by a two-year special parole term on the manufacturing count. 4 The lower court also suppressed evidence seized during a warrantless search of a locked enclosure in the basement of Rufus Smith Hall on August 2, 1979. The legality of that search is not before us. App. 9 II. Having stated the factual background with some detail, we approach our discussion of the law. It is basic Fourth Amendment jurisprudence that when the Government seeks to intrude upon an individual’s legitimate expecta- tions of privacy, it must either obtain a warrant from a neutral magistrate or bring its search within one of the few “jealously and carefully drawn” exceptions to the warrant requirement, Jones v. United States, 357 U.S. 493, 499 (1958). Throughout this litigation, the -prosecu- tion has maintained that the May 17 search was validated by the consent of Jolly and Richard Macris.’ To satisfy the burdens imposed on it by the third party consent principle, the Government must show, by a prepon- derance of the evidence, that the consent to search was freely and voluntarily given, see Schneckloth v. Busta- monte, 412 U.S. 218 (1973), and was obtained from someone “who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected.” United States v. Matlock, 415 U.S. 164, 171 (1974). Since third party consent does not involve the vicarious waiver of a defendant’s constitutional rights, it validates a search only when a defendant can be said to have assumed the risk that someone having authority over the area to be searched would permit the governmental intrusion in his own right. See id. at 171 n.7; United States v. Block, 590 F.2d 535, 539-40 & n.5 (4th Cir. 1978). Buettner-Janusch assails the constitutionality of the May 17 search both on the ground that consent was $ Although the Government urges us to uphold the University’s power to consent to the search, in light of our disposition of the other issues raised in this appeal, we need not reach that question. App. 10 - not given voluntarily and on the theory that Jolly and Macris lacked the requisite authority to grant permission to search.° A. The question of the voluntariness of Macris’s and Jolly’s consent need not detain us long. Whether consent was given voluntarily is an issue of fact, to be determined by the trial judge, who is to draw his findings from all of the appropriate and relevant circumstances. Schneckloth v. Bustamonte, supra, 412 U.S. at 248-49. The court’s findings will not be set aside on appeal unless they are clearly erroneous. United States v. Sanchez, 635 F.2d 47 (2d Cir. 1980); United States v. Griffin, 530 F.2d 739, 742 (7th Cir. 1976); United States v. Bronstein, 521 F.2d 459, 463 (2d Cir. 1975), cert. denied, 424 U.S. 918 (1976). Moreover, it is well settled that consent may be inferred from an individual’s words, gestures, or conduct. United States v. Griffin, supra, 530 F.2d at 742. Thus a search may be lawful even if the person giving consent does not recite the talismanic phrase: “You have my permission to search.” Judge Brieant’s finding that both Macris and Jolly impliedly consented to the May 17 search is amply sup- 6 As a preliminary matter, we must address Buettner-Janusch’s conten- tion that because the DEA agents who conducted the search relied only on the University’s power to consent, the prosecuticn cannot now assert that Macris and Jolly could also authorize this intrusion. This argument must be rejected, since it “ignores the settled rule that in judging the legality of a search, courts must apply an objective standard and will not be bound by the subjective ‘beliefs of the arresting officer [or] the Assistant United States Attorney at trial.’ United States v. Tramontana, 460 F.2d 464, 466 (2d Cir. 1972).” United States v. Jenkins, 496 F.2d 57, 72-73 (2d Cir. 1974), cert. denied, 420 U.S. 925 (1975). See United States v. Ochs, $95 F.2d 1247, 1256 (2d Cir.), cert. denied, 444 U.S. 955 (1979). App. 11 ported by the record. These two initiated the investigation of Buettner-Janusch’s illegal activities; they reported their findings to the University and to the U.S. Attorney’s Office, among others; and they readily agreed to assist the DEA agents during the raid. Moreover, the coopera- tive relationship that existed among Macris, Jolly, and the DEA agents on the night of the search provides strong evidence that these informants freely acquiesced in the investigation. See United States v. Kurck, 552 F.2d 1320 (8th Cir. 1977) (per curiam). In short, there is “no evidence . . . of coercion or other circumstances that would render consent invalid.” United States v. Candella, 469 F.2d 173, 175 (2d Cir. 1972), citing United States v. Rothberg, 460 F.2d 223, 224 (2d Cir. 1972). B. This brings us to the heart of defendant’s constitutional objections—that neither Jolly nor Macris had the author- ity to consent to the warrantless search of May 17. We have had several opportunities since the Supreme Court decided United States v. Matlock, supra, to consider the scope of the third party consent principle. The well established rule in this Circuit is that “[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.” United States v. Gradowski, 502 F.2d 563, 564 (2d Cir. 1974) (per curiam). See United States v. Pravato, 505 F.2d 703, 704 (2d Cir. 1974) (dictum); United States v. Jenkins, 496 F.2d 57, 72 (2d Cir. 1974), cert. denied, 420 U.S. 925 (1975). Judge Brieant, applying this standard, found that both Macris and Jolly had access to Buettner-Janusch’s labora- App. 12 tory, that Macris had common authority over it, and that both Macris and Jolly had express or implied permission to use the facility. We find ourselves in total agreement. The simple answers are that both Macris and Jolly had keys to the defendant's laboratory, thus satisfying the access requirement of Gradowski. Furthermore, to per- form his laboratory duties, Macris was authorized to enter any part of the laboratory and to open any jars of chemicals found there. These facts clearly establish both “common authority” and “permission to exercise ac- cess.”’ Jolly also satisfied the second branch of the Gradowski test because he had standing permission to use the equipment in Buettner-Janusch’s laboratory, and was required to pass through it to reach his own facility. But the constitutional inquiry does not end at this point, as Buettner-Janusch correctly contends. He main- 7 Macris, feigning mononucleosis, asked Buettner-Janusch for a leave of absence in early May. The defendant, who had been unable to pay Macris for any part of the work he performed in 1979, granted the request, but invited Macris to return as soon as he recovered. Buettner- Janusch now argues that these circumstances undercut the Govern- ment’s assertion that Macris could consent to the search. But the questions of implied permission and common authority are not to be decided simply on the basis of an employment relationship. While such a relationship may be strong evidence of the third party's power to consent, see United States v. Murphy, 506 F.2d 529 (9h Cir. 1974) (per curiam), cert. denied, 420 U.S. 996 (1975); United States v. Sells, 496 F.2d 912 (7th Cir. 1974) (per curiam), its absence is not determinative, see United States v. Matlock, 415 U.S. 164 (1974) (joint tenant could consent to a search of common area); Frazier v. Cupp, 394 U.S. 731, 740 (1969) (joint user could consent to search of duffel bag); United States v. Long, 524 F.2d 660 (%h Cir. 1975) (wife could consent to search of house she formerly shared with husband); United Srates v. Jenkins, supra (joint tenant could consent to search of apartment); United States v. Cataldo, 433 F.2d 38 (2d Cir. 1970), cert. denied, 401 U.S. 977 (1971) (same). Moreover, Buettner-Janusch did not regard Macris’s departure as permanent. He understood that Macris would resume working in the laboratory as saon as he “recovered” from his feigned illness. Indeed, Macris returned to the facility in June, 1979, several weeks after the search, and began to work for Jolly. App. 13 tains that even if Macris and Jolly could allow the DEA agents to enter the laboratory, they could not authorize an examination of its enclosed areas, such as the fume hood, cabinets, cold room, and freezer. This is so, the defendant argues, because he had an independent expectation of privacy in these areas. To evaluate this claim, we must explore the relationship between the doctrine of ‘hird party consent and the concept of expectation of privacy. Without engaging in “metaphysical subtleties,” Frazier v. Cupp, 394 U.S. 731, 740 (1969), we recognize that not all the areas or con- tainers in a room are equally private. As an illustration, a person has a greater expectation of privacy related to items hidden in his wall safe than in those scattered over his kitchen table. If a specific area is in fact surrounded by an independent privacy interest, a government agent must either obtain a warrant to search it or is required to bring his examination within one of the exceptions to the warrant requirement. Thus, the Government may scruti- nize even the most private enclosure if the third party has the authority to permit the intrusion. Here too, the third party’s power to consent is to be tested under the familiar Gradowski standard. We agree with the district court that Buettner-Janusch forfeited any reasonable expectation of privacy by grant- ing permission to use the enclosed area of his laboratory to Macris, Jolly, and at least eight other persons.* But 8 The defendant argues that because he transported the fume hood from Duke University to NYU, he must have had a heightened expectation of privacy concerning it. But even if we were to regard this as evidence that Buettner-Janusch enjoyed some sort of property right to the hood, his reliance on the law of property is misplaced. Standing alone, such rights do not necessarily give rise to interests protected by the Fourth Amendment. See Katz v. United States, 389 U.S. 347 (1967); Jones v. United States, 362 U.S. 257 (1960). And although the App. 14 assuming arguendo that Buettner-Janusch retained an independent privacy interest in these areas, both Macris and Jolly had access and at least implied permission to use them. Thus, ihis aspect of the May 17 search was also lawful. See United States v. Gradowski, supra. Finally, Buettner-Janusch maintains that even if the Government could search the fume hood and the other enclosed areas, it could not examine the containers of methaqualone found in the hood or the receptacle con- taining the LSD precursors which Jolly retrieved from the freezer. Our response to this is that the analysis we have recited has disposed of this claim. If the defendant had an independent, reasonable expectation of privacy in these containers, the agents either had to secure a warrant or obtain valid third party consent. To determine whether the defendant had a legitimate privacy interest in a particular receptacle, we look to Arkansas v. Sanders, 442 U.S. 753 (1979), which instructs that: Not all containers and packages found by police during the course of a search will deserve the full protection of the Fourth Amendment. Thus, some containers (for example, a kit of burglar tools or a gun case) by their very nature cannot support any reasonable expectation of privacy because their con- tents can be inferred from their outward appearance. Similarly, in some cases the contents of a package will.be open to “plain view,” thereby obviating the need for a warrant. Id. at 764 n.13. See United States v. Mannino, No. 80-1206, slip op. at 340 (2d Cir. Nov. 18, 1980) (requiring defendant may have derived a legitimate expectation of privacy by exercising his right to prevent others from using the hood, see Rakas v. Miinois, 439 U.S. 128, 143 n.12 (1978), the fact remains that he did not exercise this right with respect to Macris or Jolly. App. 15 some “objective, external evidence of an expectation of privacy.”); United States v. Dien, 609 F.2d 1038 (2d Cir. 1979), adhered to, 615 F.2d 10 (2d Cir. 1980) (holding that marijuana hidden within sealed cardboard boxes was not within “plain view,” so that the boxes could not be opened without a warrant). Judge Brieant correctly applied the Sanders rule to the various containers seized in Buettner-Janusch’s labora- tory. Agent Weber lawfully examined the containers dis- covered in the fume hood since he could properly infer they contained methaqualone from their outward appear- ance.*® Indeed, when viewed in the context in which they were seized, the compounds were, for all practical pur- poses, in “plain view.” See United States v. Callabrass, 607 F.2d 559, 564 (2 Cir. 1979), cert. denied, 446 U.S. 940 (1980). In contrast, Buettner-Janusch retained a legitimate expectation of privacy in the container Jolly removed from the freezer, since this object divulged no clues as to: its contents until Weber removed its top.'® But applying: ’ At the moment Weber opened these items, he already knew that Jolly had obtained a sample of methaqualone from the laboratory. He had also discovered partially empty jars containing precursors to methaqualone, and had examined the melting point data in the laboratory notebook. Furthermore, he could perceive through the containers’ translucent walls that they were filled with a whitish granular substance that resembled methaqualone in an impure state. 10 Judge Brieant concluded his analysis of the legality of Weber’s search at this point, relying on United States v. Dien, supra, for the principle that once a government agent discovers a container in which a defendant retains a legitimate expectation of privacy, the agent may not examine it without a warrant. Although not strictly necessary to our holding, it may be useful if we explain the bearing of Dien on the issues before us. In Dien, we held unlawful an examination of three cardboard boxes partially secured with tape and found in defendants’ van. We noted that the expectation of privacy surrounding a sealed package is not vitiated merely because it is found in an automobile, which itself is subject to a diminished expectation of privacy. See App. 16 Gradowski to that object, we note that Macris had Buettner-Janusch’s clear permission to open any of the jars of chemicals in the laboratory. Presumably then, he could have examined the two vials of LSD precursors that Jolly removed from the freezer. Thus, it was lawful for DEA chemist Weber, who searched the laboratory and vials at Macris’s invitation, to do the same. * Chambers v. Maroney, 399 U.S. 42 (1970); Carroll v. United States, 267 U.S. 132 (1925). Dien’s rationale was that the twin policies underlying the automobile exception—the inherent mobility of automobiles and the presumably lesser expectations of privacy that surround them—do not apply to luggage or similar containers discovered during an automobile search. See Arkansas v. Sanders, supra. \n contrast, the third party consent exception rests on totally different considerations. As we have stated at some length, this principle is premised on the notion that the third party has authority to consent to the search in his own right. See United States v. Matlock, supra. Thus, it is incorrect to hold that because the automobile exception is inapposite in a particular case, the third party consent exception also has no application. In short, nothing in Dien prevents a third party from permitting a search of a sealed container, provided his authority to consent satisfies the Gradowski requirements. Finally, we reject the defendant’s argument that Walter v. United __ States,_447 U.S. 649 (1980), required the Government to secure a search warrant before analyzing either the samples of methaqualone it received from Jolly or the substances it seized during the May 17 search. In Walter, a divided Court held that although FBI agents had lawfully obtained an allegedly obscene film, they could not screen it without first obtaining a warrant. Walter is distinguishable from the instant case in two respects. Unlike the defendant in Walter, Buettner- Janusch had no independent expectation of privacy in the chemicals seized from his laboratory. These substances were either lying open on laboratory benches or were in containers that exposed their contents to the casual observer. Moreover, the governmental intrusion in Walter was not authorized by the consent of a third party who satisfied the Gradowski requirements. Here, however, the DEA obtained the sam- ples from individuals who had access to them and permission to exercise that access. Accordingly, Walter does not require us to sup- press this evidence. App. 17 Il. We have carefully considered the remainder of Buett- ner-Janusch’s contentions and find them to be without merit. This is one of those hard cases in which it is difficult to explain the motives for criminal acts ruinous of an otherwise distinguished career. We do not possess the omniscience to supply the answer. The judgment of conviction is affirmed. App. 18 APPENDIX B OPINION OF JUDGE BRIEANT (filed March 27, 1980) UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK -<—<(8 <<< ee ee ee eee ew ee ween ew ewe ee x UNITED STATES OF AMERICA age 79 Cr. 710-CLE JOHN BUETTNER-JANUSCH, _ MEMORANDUM * AND ORDER Defendant. ee ee ee x Brieant, J. Defendant, Dr. John Buettner-Janusch, was indicted on October 3, 1979 and charged with: (1) conspiracy to manufacture and dis- tribute certain controlled substances [21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(B) and 841 (b)(2)]; (2) actual manufacture and dis- tribution of certain controlled substances (21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(B) anc 841(b)(2), and 18 U.S.C. § 2]; (3) conspiracy to obstruct a criminal investigation [18 U.S.C. §§ 1503, 1510, 1001]; and (4) knowingly making false statements to Government App. 19 investigators [18 U.S.C. §1001]. By motion filed October 29, 1979, defendant moves, pursuant to Rule 12(b)(3), F.R.Crim.P., to suppress certain physical evidence which the Governmentobtained throught two searches and seizures, without warrant and through a private individual, who took the items seized and turned them over to the Government. Defendant also moves by sotion dated November 5, 1979, pursuant to Rule 12(b)(1), F.R.Crim.P., to suppress certain tape recordings of con- versations that defendant had with third parties during the Government's investigation that led to defendant's indictment. Finally, defendant moves, by motion docketed November 16, 1979, for an order either dismissing the indictment pursuant to Rule 12(b), F.R.Crim.P., or striking prejudicial sur- plusage, pursuant to Rule 7(d), F.R.Crim.P. An evidentiary hearing was held on December 3, 12, 13 and 26, 1979, and January sie App. 20 3, 1980 to resolve disputed factual issues on the motion to suppress physical evidenc:. All the motions were fully submitted on February 26, 1980. Facts Stated below are my findings of fact on the evidentiary hearing, and certain disputed facts presented in connection with the motions to dismiss the indictment and to suppress the tape recordings. In 1973 Buettner-Janusch left Duke University, where he had been a professor of anthropology, to become the Chairman of the Anthropology Department at New York University ("NYU"). To enable Buettner- Janusch to continue his research, and to house the large amount of special equipment that was involved in that research, NYU redesigned a portion of the fourth floor of Rufus Smith Hall, located at 25 Waverly Place, New York City, as a physical anthro- pology laboratory (the "new lab"). Adjoining an App. 21 this new lab is the existing laboratory of NYU anthropology professor Clifford Jolly (the "old lab"). Although the old lab and the new lab are separated by a masonry wall, an open doorway allows easy access between them. Because the new lab contains equipment that is not available in the old lab, and presumably motivated by professional courtesy, Buettner-Janusch informed the NYU administration that he would permit Professor Jolly to use "his" laboratory, and the equipment. therein, and there is evidence that Jolly did use the new lab on those occasions when he required access to the de-ionized water, the aspirator, the gas line and the measuring scales, all items found only in the new lab. In addition, the physical layout of the fourth floor of Rufus Smith Hall requires persons entering Jolly's lab to pass through Buettner-Janusch's lab, unless a rear freight elevator is used. Thus, if an ordinary visitor enters Rufus pa App. 22 Smith Hall by the front door, and takes the passenger elevator to the fourth floor, that person will have to walk through the new lab constructed for Buettner-Janusch in order to reach the existing lab of Jolly. The only alternative is to take the freight elevator from the first floor, which opens in the rear of the old lab. This elevator is normally used only for freight and requires an operator, but is occasionally employed as a passenger elevator when the regular front elevator is out of service. This notwithstanding posted signs to the contrary. The door on the fourth floor which opens into the new lab and which also provides access to Jolly's lab, was secured by two locks prior to May 17, 1979. There is some dispute over who had keys to those locks, but it is conceded that Buettner- Janusch, Jolly and Richard Macris, whose =§e App. 23 status as a laboratory assistant and NYU graduate student is discussed below, all had keys to unlock this door. This new lab was the setting for the first Government search, which occured on May 12, 1979. In early February 1979, Richard Macris, a NYU student and a laboratory assistant who had been hired to work for NYU in the new lab by Buettner- Janusch in June 1977, became of certain chemicals present in the new lab, believing them to be controlled substances that were being manufactured illegally. Macris related these suspicions to Jolly, who advised him to keep a diary of what he saw in the lab. Jolly himself began taking samples of various chemicals in the new laboratory, and stored these samples in plastic tubes with labels indicating the date of collection. From these dates, it is apparent that Jolly collected chemicals from the new lab on February 12, 18, March 7, 21, April 1, and 16, 1979. elke App. 24 In addition to these samples, Jolly collectec other evidence of illegal activity during March, April and early May. He found marijuana seeds in a drawer in his lab, gelatin capsules on top of that drawer, and a trace of a substance alieged to be LSD from the cold room in Buettner-Janusch's lab. He also retrieved several scraps of paper and an envelope from a garbage pail in the new lab, and took a number of photo- graphs of the suspicious containers and experiments therein. The photographs were turned over to the Government on May 16, 1979. The marijuana seeds and trace of substance alleged to be LSD were turned over to the Government on May 24, 1979. During this time, on March 7th, Richard Macris and Jolly met with Macris' brother Robert, a practicing attorney in New York, and told him of their suspicions and that they had taken samples. Robert Macris told them to continue their close oe App. 25 watch of the situation, and on March 26th, Robert Macris met with Edward Boyle, a cousin, who was also an attorney. Macris told Boyle of the possibility that controlled substances were being manufactured at the NYU lab where Richard was working, and that some samples of the substances had been taken. On April 25th, after speaking to Richard Macris the day before, Boyle called the United States Attorney's Office for the Eastern District of New York, and was referred to Chief Assistant Bernard Fried, with whom he was acquainted. Boyle told Fried that he wanted to have a substance tested by a reputable laboratory, that the source of the substance would have to remain undisclosed, and that he could offer no explanation on the results of such a test. Fried offered to have the samples tested on a confidential basis at the Drug Enforcement Agency ("DEA") laboratory, and Boyle, after wie App. 26 speaking with Robert Macris, accepted this offer. On Friday evening, April 27th, Robert Macris, delivered five samples that he had received from Jolly, to Boyle, and Boyle turned these over to Fried on May 2, 1979 in the presence of a DEA agent. Boyle told Fried that a relative had collected the samples from a university laboratory where he worked, but did not disclose the name of the relative, nor the name of the university lab. Shortly before the samples were turned over to the DEA for testing, Richard Macris stopped attending classes at NYU and at the suggestion of his brother Robert, did not report for work at the lab. He told Professor Buettner-Janusch that he had contracted mononucleosis, and Buettner- Janusch told him to return when he recovered. He remained absent from work until June, when he began working the old lab for Jolly. -9- App. 27 Approximately, two weeks later Fried received an oral report from DEA that the samples contained a controlled substance, methaqualone. Fried then called Boyle and told him the results of the test, but did not insist that Boyle's relative go to the proper authorities. He only cautioned Boyle that the relative would have to be careful if he did not report what he knew .2/ Furthermore, Fried did not request that Boyle or his relative continue to collect samples from the lab, or pursue any other activity that might provide additional evidence for the Government. Boyle relayed the results of the tests to Richard and Robert Macris, and they in turn informed Jolly. In the early afternoon of May 16, 1979, a few days after receiving the test results, the Macris brothers and Jolly met with the then President of NYU, Dr. John Sawhill, «ite App. 28 and NYU's general counsel, Andrew Schaffer, Esq. Richard Macris and Jolly related their suspicions and described the events ‘that had occurred over the past three months. Schaffer recommended that the entire matter be referred to the federal authorities. Robert Macris approved this course of action after conferring with his counsel, and with President Sawhill's approval Schaffer called the United States Attorney's Office for the Southern District of New York. A meeting was scheduled for that afternoon, and Schaffer accompanied Richard and Robert Macris and Jolly to the United States Attorney's Office for that meeting. Richard Macris and Jolly presented their information and evidence to an Assistant United States Attorney and to a DEA agent, Jack Toal, and informed them of the prior participation of the United States Attorney's Office for the Eastern District, ati App. 29 which had caused the DEA to test the samples on a confidential basis. In addition, Richard Macris turned over his diary of the events that had occurred in the lab, and Jolly turned over some samples collected from the new lab, as well as a number of photographs that he had taken in the laboratory. At that time, Schaffer suggested that NYU could consent to a search of the labora- tory by the Government, thereby obviating the need for a search warrant, and stated that he would consent to such a search. However, he stated that he would have to talk with President Sawhill before final consent was given. When asked by the Assistant U.S. Attorney, both Jolly and Richard Macris agreed to go along and assist the Government on a search of the laboratory. <2. App. 30 Schaffer spoke with Sawhill on May 17th and received the President's approval for a search of the new lab by the Government. Schaffer then relayed this information to the United States Attorney's Office for the Southern District, and the search was planned for that evening. */ That afternoon, Jolly visited the new lab, and took several more photographs. At approximately 10 o'clock that night, Jolly, Richard Macris, Robert Macris and six DEA agents, including Jack Toal, met outside Rufus Smitn Hall. Toal and Jolly went up to the fourth floor together to see if anyone was present in the new lab, and found it to be empty. There was no risk of inter- ruption of the search by Buettner- Janusch, who was known to be attending a formal dinner that evening. Jolly opened the door to the lab with his keys, and the other agents and Richard a App. 31 Macris were brought up to commence the search. Both Jolly and Richard Macris assisted the agents, pointing out what they considered to be suspicious, and the agents seized a number of objects and chemicals which are fully set forth in the stipulation herein dated December 26, 1979. The items seized were described as controlled sub- stances, and are as follows: methaqualone found within the fume hood (DEA Exs. 3-5); marijuana found in the new lab cold room (DEA Ex. 10); and lysergic acid hydrazide found on a lab bench (DEA Ex. 16). Some of the evidence was discovered in plain view, lying out on the lab benches, and some was behind closed cabinet doors and inside the cold room and the freezer. As the search was going on, either Robert or Richard Macris suggested that the entry be disguised as a burglary, so that Buettner-Janusch would not suspect those with keys, including thn App. 32 Richard Macris and Jolly, when he found that a number of items were missing or disturbed in the new lab. Ome of the DEA agents, using a tire iron found in the lab, accom- plished this desired appearance by ripping off the lock and frame of the laboratory door. Following the May 17th search, Jolly continued his citizen's investigation, apparently without the knowledge, permission or request of the Government. He took more photographs of the new lab during May, and also taped a telephone conversation that he had on May 20th with Buettner-Janusch. Although Jolly met with DEA agent Toal on May 25th, and turned over the marijuana seeds and the trace of a substance alleged to be LSD that he found in March, he did not then inform Toal of his tape. Additionally, Jolly taped a face-to-fact meeting on June 10, 1979 with Buettner-Jansuch and Danny Cornyetz, a student and lab assistant. -15- App. 33 Richard Macris also taped conversations that he had with Buettner-Janusch after the May 17th search, but this was done under the supervision of the Government. On May 23, 1979 Richard Macris taped a telephone con- versation that he had with Buettner-Janusch, and then met him later in Buettner-Janusch's office wearing a Nagra recording device, thereby obtaining a tape of their face-to- face conversation. Macris wore and used this Nagra device twice more, on June lst when he met again with Buettner-Janusch, and on June 5th when he met both with Buettner- Janusch and fellow student Danny Cornyetz. Finally, Macris telephone Buettner-Janusch on June 8th and recorded that conversation. Three other tapes were made during the investigation, two by Danny Cornyetz after he began to cooperate with the Government, and one by laboratory assistant Lisa -16- App. 34 Forman. Cornyetz recorded telephone con- versations that he had with Buettner- Jansuch on June 27 and July 2, 1979, and Forman recorded a telephone conversation with Buettner-Janusch on an unspecified date. In addition to these tape recordings, the Government began an official investi- gation through a Grand Jury, and Buettner- Janusch was subpoenaed to appear before this Grand Jury on May 22, 1979. He appeared on that date with an attorney, but his testimony was adjourned until a later date. Defendant then accompanied the Assistant U.S. Attorney in chrge of the investigation to an office, where, with is attorney present, he answered questions asked by the Assistant. Buettner- Janusch was questioned again by the Assistant on June 14, 1979, and in the presence of counsel he answered several questions. alte App. 35 On August 2, 1979 the Government also searched, without a warrant, Busttiner- Janusch's storeroom in the basement of Rufus Smith Hall. This storeroom was an 8' by 4' area, surrounded by three walls and a large building pillar that made up the fourth wall. A gap between one of the walls and the building pillar was closed off by a floor-to-ceiling bookcase filled with books, and the storeroom was thus totally enclosed. The only door to the room had a lock. On July 17, 1979 Buettner-Janusch called Dr. Anna Marie Cantwell, a research associate in anthropology at NYU and asked her to have several locks in the anthropology department changed, including the lock to the basement storage room used by him. The reason given by Buettner-Janusch for this request was that he discovered a student making drugs in the new lab, and that he ath. App. 36 was afraid that the student would try to "frame" him. According to Dr. Cantwell, Buettner-Janusch did not trust anyone else to supervise the changing of the locks .2/ Dr. Cantwell arranged for a locksmith not affiliated with NYU to change the locks on June 19th, and on that date she took the locksmith down to the basement by the freight elevator to install a new lock on the store- room door. Professor Jolly asked to come along to supervise, and Richard Macris was also present While the locksmith changed the lock to Buettner-Janusch's storeroom, Jolly memorized the serial number on the new Medeco lock that was being installed. +/ Later that day, Jolly went to a different locksmith, and obtained a duplicate key to the lock by using the serial number which he had observed while the new lock was being installed. Therefore, although Dr. Cantwell had been instructed by defendant to hold the new keys to the storage room until his -19- App. 37 return, and to give these keys to no one, Jolly had a key to the new lock on the very day it was installed. Neither Cantwell nor the Government knew in advance of Jolly's plan to secure this key. After obtaining the duplicate key, Jolly went down to the storage room and inspected it himself, finding a few chemicals and bottles of gelatin capsules. Some of these items were in cartons, but Jolly testified that he did not open any sealed cartons during this search. When he con- cluded this inspection, he reported to the United States Attorney's Office for the Southern District of New York that he had a key to the storeroom and that he had entered and searched that room. Some time later, Jolly spoke with DEA Agent Toal and gave him the key. =-20- App. 38 At the end of July, the United States Attorney's Office for the Southern District called General Counsel Schaffer of NYU and asked him for consent to enter and search the basement storage room assigned to Buettner-Janusch. Schaffer gave this consent for the University and on August 2, 1979 DEA agents Toal and Petrucci, accompanied by Richard Macris, opened the storeroom door with Jolly's key and seized several cartons of incriminating substances. The Indictment Motions Defendant moves first to dismiss the indictment in this case pursuant to Rule 12(b)(1), F.R.Crim.P., because of the prosecution's alleged abuse of the Grand Jury proceedings. In the alternative, defendant moves to have certain alleged prejudicial surplusage stricken from the indictment pursuant to Rule 7(d), F.R.Crim. sie App. 39 P. and also to have Count 6 stricken from the indictment pursuant to Rule 12(b)(1), F.R.Crim. P. on the grounds that it is duplicitious. Defendant cites three examples of Grand Jury abuse by the prosecution. First, he claims that the Government suppressed exculpatory evidence favorable to the defense. Specifically, defendant contends that the prosecution failed to provide the Grand Jury with two letters from fellow scientists attesting to Buettner-Janusch's character and explaining his research, as well as testimony from one of his former assistants that Buettner-Janusch spent little time in the laboratory, and was involved more in administrative duties. On the other hand, the Government claims that it did introduce some evidence in the Grand Jury proceedings that was favorable to the defense. =22- App. 40 The Court of Appeals has recognized that "a prosecutor is not presently obli- gated to search for and submit to a grand jury evidence favorable to the defense or negating guilt, when it has not been requested by the grand juyr." United States v. Ciambrone, 601 F.2d 616, 622 (2d Cir. 1979). However, “where a prosecutor is aware of any substantial evidence negating guilt he should, in the interest of justice, make it known to the grand jury, at least where it might reasonably be expected to lead the grand jury not to indict." Id., at 623. Applying these rules to the case before us, I conclude that the letters from the two scientists and the testimony of Buettner-Janusch': former assistant were not substantial evidence that "might reasonably be expected to lead the grand jury not to indict." Id. This is the sort of crime which could only be committed by -23- App. 41 an academic of good character and reputa- tion; who else would be entrusted with control of the laboratory in a leading University? Although the letters provide some explanation for Buettner-Janusch's pos- session of chemicals in general, they are not specific, and any evidence of good character that they contain is at most a matter for the trial jury where the standard of proof is higher than that required to indict. The testimony of Buettner-Janusch's former assistant may show that defendant was not in the lab every day, but it does not negate the Government's theory that Buettner- Janusch was the head of a conspiracy to manufacture and distribute certain controlled substances using NYU personnel and facilities. Defendant also contends that the prose- cution "mistreated" two witnesses, Martin Marion and Bruce Greenfield, who offered -24- App. 42 exculpatory testimony. The Government allegedly threatened to prosecute Marion, an honorary research associate in anthro- pology at NYU, if he persisted in his story. In addition, Bruce Greenfield allegedly tried to make a favorable statement to the Government, but the Assistant refused to listen to him. None of this "mistreatment" is claimed to have occurred in the presence of the Grand Jury. The prosecution neither admits nor denies these allegations, but argues that the Grand Jury was unaffected in any event. Even if we assume that the prosecu- tion threatened Marion with prosecution, and refused to listen to Greenfield, it is difficult to perceive how defendant's right to an unbiased Grand Jury was affected thereby. See, United States v. Bruzgo, 373 F.2d 383 (3d Cir. 1967). These charges, even if true, do not justify dismissal of the indictment. -25- App. 43 Finally, defendant claims that the indictment should be dismissed because the Government acted improperly with respect to certain telephone company records. Defendant alleges that when the United States Attorney's Office subpoenaed the toll records of Bruce Greenfield, Selma Greenfield (Bruce's mother) and Martin Marion from the telephone company for the Grand Jury proceedings, notice to the customers of such a subpoena was deferred for ninety days at the request of the Government. Defendant argues that this is a violation of Rule 6(e), F.R.Crim.P., and an unlawful interference with defense counsel's access to the telephone company as a witness. Defendant admits that he received these toll records from the Government in the course of pre-trial discovery. Defendant must have known that the telephone company records were -26- App. 44 potential exhibits, and there is no alle- gation that the prosecution prohibited de- fense counsel from speaking with respresent- atives of that company about the records. The only persons who appear possibly to have been prejudiced are the Greenfields and Martin Marion. Defendant lacks standing to assert their claims. I decline to dismiss the indictment because of the prosecution's request made of the telephone company. In the alternative, defendant seeks to strike certain alleged prejudicial sur- plusage from the indictment, pursuant to Rule 7(d), F.R.Crim.P. For example, de- fendant wishes to exclude claimed "inflam- matory language" such as the word "drug," which appears before the words "controlled substance" a number of times through the indictment. Defendant also claims that “prejudicial factual allegations" should be stricken. An example of these preju- dicial allegations occurs in 4 6(a), 7 =27- App. 45 (2) and 7(4) of Count One, where the indictment alleges that Buettner-Janusch's possession of a book and articles relating to the synthesis of LSD is an overt act in furtherance of the conspiracy to manufac- ture and distribute controlled substances. A motion to strike prejudicial sur- plusage pursuant to Rule 7(d) "will be granted only where it is clear that the allegation[s] complained of [are] not relevant to the charge contained in the indictment and [are] inflammatory and prejudicial." United States v. Klein, 124 F.Supp. 476, 479-80 (S.D.N.Y. 1954), aff'd. 247 F.2d 908 (2d Cir. 1957), cert. denied 355 U.S. 924 (1958); United States v. DePalma, 461 F.Supp. 778 (S.D.N.Y. 1978). This is an exacting standard, and alleged surplusage is seldom stricken. United States v. DePalma, supra at 797. After a careful reading of the indictment, =28- App. 46 I conclude that the language of the in- dictment is neither inflammatory nor prejudicial. The Court has already ruled orally that the reference "also known as B-J" shall be stricken wherever it appears in the pleading. This is un- necessary prejudicial verbiage. The remainder of the allegations complained of are or may be relevant to the charges. Therefore, defendant's motion to strike must be and it is denied. Defendant's final argument with respect to the indictment urges that the fourteen violations of 18 U.S.C. §1001 alleged in Count Six render this Count duplicitous. He contends that the Count must be stricken or reduced to one alleged violation. Specifically, Count Six charges Buettner-Janusch with making a number of false statements to the United States Attorney's Office, and defendant contends -29- App. 47 that this violates Rule 8(a), F.R.Crim.P., as well as his rights under the Fifth and Sixth Amendments to the United States Constitution. On the other hand, the Government contends that the false state- ments made by Buettner-Janusch constituted a continuing course of conduct that amounts to one offense. "An indictment is invalidly duplicit- ous when it joins a single count two or more distinct, separate offenses."" United States v. Droms, 566 F.2d 361, 363 (2d Cir. 1977). However, although an indictment may not charge multiple offenses in a single count, the "charging of multiple means constituting a single and continuing offense [is allowed], even if the com- ponents of that single offense may other- wise be treated as separate offenses." United States v. Kearney, 451 F.Supp. 33, 36 (S.D.N.Y¥. 1978). The alleged false =30- App. 48 statements made by Buettner-Janusch to the United States Attornye's Office appear to be "multiple means constituting a single and continuing offense" referred to above. The answers that are alleged to be false were given in response to only four or five principal questions, and all the questions deal with Buettner-Janusch's conversations with three individuals. A false answer regarding one of the questions would contemplate in the name of consistency additional false answers in response to similar questions. The statute, by its terms, 18 U.S.C. §1001, contemplates the making of false statements. This wording justifies the inference that a series of false statements concerning a single fact or event would constitute a single crime. I conclude that Count Six is not dupli- citous, and there is no need to separate the false statements. At trial the jury Sis App. 49 will be instructed on request that in order to convict they must be unanimous as to the wilful falsity of at least one of the claimed statements and all must agree as to the same statement. Defendant's Motion to Suppress Tape Recordings. Defendant also moves, pursuant to Rule 12(b)(3), F.R.Crim.P., to suppress seven tape recordings. These tapes include five conversations between Richard Macris and Buettner-Janusch, dated May 23, June l, 5 and 8, 1979, and two conversations between Cornyetz and Buettner-Janusch dated June 27 and July 2, 1979. Apparently, defendant does not challenge the two tapes, recorded by Jolly, dated May 20 and June 10, 1979, of conversations between himself and Buettner-Janusch. In addition, the Govern- ment asserts that it does not intend to offer at trial on its main case, the tapes made by Lisa Forman of conversations with Buettner-Janusch. =32- App. 50 There are several arguments raised by defendant in support of his motion to suppress. First, defendant claims that surreptitious tape recordings of his conversations by persons who were, "in effect,"’ Government agents amounted to interrogation in the absence of counsel in violation of the Sixth Amendment. The Government replies, quite correctly, that defendant's Sixth Amendment right to counsel does not attach until the "initiation of adversary criminal proceedings [against the defendant] - whether by way of formal charges, preliminary hearing, indictment, information, or arraignment." Kirby v. Illinois, 406 U.S. 682, 689 (1972). Accord, Brewer v. Williams, 430 U.S. 387 (1974). Because the tape recordings were made in this case before the initiation of any adversary criminal proceedings, the presence or waiver of counsel during those o$3e App. 51 recordings was not required by the Sixth Amendment. The first contention of defendant must be rejected. See, Massiah v. United States, 377 U.S. 201 (1964); United States v. Knohl, 379 F.2d 427 (2d Cir.), cert. denied 389 U.S. 973 (1967). Defendant's second argument in favor of suppression attempts to circumvent the Kirby rule set forth above by claiming a violation of defendant's Fifth Amendment rights. His argument appears to be as follows: The Government knew on May 22, 1979 that defendant was represented by counsel, because he appeared at the Grand Jury proceedings on that day accompanied by an attorney. Although no adversary criminal proceedings had been initiated against him at that time, defendant con- tends that once an attorney entered the situation with respect to Buettner-Janusch, the Government could not interrogate him -34- App. 52 either directly or indirectly. Thus, the Government's use of agents to interrogate Buettner-Janusch, by secretly taping con- versations with him, without an attorney present, is claimed to violate defendant's right against self-incrimination. See United States v. Wedra, 343 F.Supp. 1183 (S.D.N.Y. 1972); People v. Arthur, 22 N.Y. 2d 325, 292 N.Y.S.2d 661 (1968). The Government counters this claim with two arguments. First, the prosecution contends that its knowledge that a target had obtained counsel does not afford him thereafter with a special privilege to have counsel present at all conversations with undercover Government agents, prior in time to initiation of adversary criminal proceedings. Further, the Government alleges that the Fifth Amendment right against self-incrimination is inapplicable here, as the conversations were not «$5- App. 53 “custodial interrogations" containing elements of potential coercion or compulsion. I conclude that the Government's taping of conversations between Buettner-Janusch, Macris and Cornyetz, without defendant's lawyer present, was not a violation of Buettner-Janusch's right against self-in- crimination. At the time these tapes were made, defendant was not in custody, Escobedo v. Lllinois, 378 U.S. 478 (1964), and there is no evidence of coercion on the part of the Government in obtaining the statements. Hoffa v. United States, 385 U.S. 293 (1966). Without any indicia that the statements by defendant were compelled, there is no need to hold that the presence of counsel was necessary to protect defendant's right against self-incrimination. See, Hoffa v. United States, supra; United States v. Craig, 573 F.2d 455, n.14 (7th Cir. 1977), cert. denied 439 U.S. 820 (1978); United States atiie App. 54 v. Lemonakis, 485 F.2d 941, 954, n.20 (D.C. Cir. 1973), cert. denied, 415 U.S. 989 (1974). United States v. Wedra, supra, relied on by defendant, is distinguishable because the defendant in that case had been indicted, arrested and was in custody when he was interrogated without his attorney, the police knowing that he was represented by counsel. The potential for coercion or unfairness in such a case is far greater than in the one at bar. The third argument advanced by defendant in support of suppression of the tapes is that the Government's actions violated the ABA Code of Professional Responsibility. Specifically, defendant alleges that the tape recording of Buettner-Janusch's conversations was, in effect, an interrogation of defendant by agents of the attorneys for the prosecution a8 App. 55 without the presence or consent of defendant's attorney, who has known to have been retained with respect to the matter. 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 represent- ing such other party or is authorized by law to do so." The cases cited by defendant, see, e.g., United States v. Thomas, 474 F.2d 110 (10th Cir.), cert. denied, 412 U.S. 932 (1973); United States v. Wedra, supra, involved actual custodial interrogation by prosecution attorneys after an arrest. The scenario involved in this case is more like the facts in United States v. Lemonakis, supra, relied on by the Government. In Lemonakis , the =$8~ App. 56 Court of Appeals for the District of Columbia held that the communication proscribed by Discoplinary Rule 7-104(A)(1) does not include the "initiation and recording of conversations" between a Government in- formant and a defendant. Id., at 955. Accordingly, I conclude that the prosecuting attorneys in this case did not violate Canon 7 of the ABA Code of Professional Responsibility, and if they did, it should not provide a basis for terminating a criminal prosecution on grounds unrelated to guilt or innocence. Defendant's fourth contention is that because he reasonably believed a joint defense was being conducted, which included co-conspirators Richard Macris and Cornyetz, his statements to them summarizing legal advice he had received should be protected by the attorney-client privilege. However, "it is vital to the claim of privilege that <%e App. 57 the communications between client and attorney were made in confidence and have been maintained in confidence." In re Horowitz, 482 F.2d 72, 81-82 (2d Cir.), cert. denied, 414 U.S. 867 (1973). I find that Buettner-Jansuch waived the attorney- client privilege when he disclosed such otherwise privileged communications to Macris and Cornyetz. The fact that a joint defense was contemplated is of no consequence. A similar claim is raised by defendant regarding the Government's interference with his attorney-client relationship. Defendant contends that the prosecution "sent a spy into the defense camp" by including or allowing Macris and Cornyetz to tape con- versations with Buettner-Janusch, which included some discussion of defenses and strategy, and thereby deprived defendant of his Sixth Amendment right to counsel. -40- App. 58 In United States v, Dien, 609 F.2d 1038 (2d Cir. 1979), the Court of Appeals for the Second Circuit stated: "In Weatherford v. Bursey, [429 U.S. 545 (1977)] the Supreme Court held that to establish a Sixth Amendment violation where an informant sat in on defense strategy sessions defendants were required to establish that privileged information had been passed to the government or that the government had intentionally invaded the attorney-client relationship, and resulting prejudice." Id., at p. 1043. Because defendant in the instant case is claiming that Macris and Cornyetz were participants in the defense strategy and privy to confidential informa- tion, he must meet the standard set forth in Weatherford and Dien. This he has failed to do. The information given by Buettner- Janusch in the taped conversations was certainly passed along to the Government, but there is no credible evidence to show wht App. 59 that the Government intentionally invaded the attorney-client relationship. The conversations recorded were not between Buettner-Janusch and his attorney, but between Buettner-Janusch and his students and alleged former co-conspirators. It seems clear that the purpose of recording defendant's statements was not to discover trial strategy, but rather to aid in the investigation. Defendant has demonstrated no prejudice, as the comments by Buettner- Janusch concerning his attorney's advice were very general, trite and insignificant .2/ Therefore, I conclude that defendant was no- deprived of his Sixth Amendment right to counsel when the information on the tapes was passed on to the Government. Finally, defendant claims that the Government should have obtained a warrant to tape these conversations, because the consent by Macris and Cornyetz, which would obits App. 60 permit secret recordings under 18 U.S.C. §2511(2)(c) was coerced by the Government. The Government must prove that such consent was given, but this standard of proof is far less stringent than that required to show consent to a physical search. United States v. Bonanno, 487 F.2d 654 (2d Cir. 1973). In this case, the Government has met the necessary standard, and defendant's claim on this point must be denied. See, United States v. Fuentes, 563 F.2d 527 (2d Cir.), cert. denied, 434 U.S. 959 (1977). Defendant's Motion to Suppress Physical Evidence Defendant's final motion, pursuant to Rules 12(b)(3) and 4l1(e)(1), F.R.Crim.P., seeks to suppress all the evidence seized (1) from the new laboratory during the search on May 17, 1979; (2) from the basement storage room during the search on August 2, 1979; (3) by Professor Jolly from the old ~-43- App. 61 and new laboratories prior to May 17, 1979; and (4) any photographs taken in the labora- tories by Jolly prior to the night of May 1/7, 1979. Because the first two searches and seizures raise similar issues, they will be considered together, and the search and seizure by Jolly will be considered last. The Search of the Laboratory and Storage Room Defendant's argument that the warrant- less searches of the new lab and the storage room were unconstitutional is as follows: He contends that he had a reasonable expec- tation of privacy in both areas, and that the Fourth Amendment proscription against unreasonable searches applies in this case. He further contends that warrantless searches of the new lab and storeroom are prima facie invalid, and that the Government must prove an exception to the warrant requirement and exigent circumstances in bbe App. 62 order to justify its search of these pro- tected areas. Defendant claims that the Government has filed to prove either an exception or exigent circumstances, and that the Government's searches must be declared unlawful, and the evidence seized must be suppressed, The Government has not argued that Buettner-Janusch had no reasonable expec- tation of privacy in his laboratory and storage room, although the Court regards the situation of the laboratory as differing from that of the storage room. The Government relies on third party consent to the searches, given by the President and General Counsel of NYU, and also by Richard Macris and/or Professor Jolly. The Supreme Court has stated many times that, under the Fourth Amendment to iia App. 63 the United States Constitution, a search by the Government without a properly issued search warrant is "per se unreasonable ... subject only to a few specifically estab- lished and well delineated exceptions." Katz v. United States, 389 U.S. 347, 357 (1967); see, e.g., Schneckloth v. Bustamonte, 412 U.S. 218 (1973); Coolidge v. New Hampshire, 403 U.S. 443 (1971). A well recognized exception to this requirement of a properly issued warrant is a search conducted pursuant to consent. Schneckloth v. Bustamonte, supra, at 219. But "[w]Jhen a prosecutor seeks to rely upon consent to justify the lawfulness of a search, he has the burden of proving that consent was, in fact, freely and voluntarily given." Bumper v. North Carolina, 391 U.S. 543, 548 (1968); United States v. Bracer, 342 F.2d 522 (2d Cir.), cert. denied, 382 U.S. 954 (1965). aitiie App. 64 Defendant argues that the prosecution has the burden of proving not only consent, but exigent circumstances as well, in order to validate the searches at issue here. In support of this theory, defendant relies on Supreme Court's language that "a warrantless search must be strictly circumscribed by the exigencies which justify its initiation." Mincey v. Arizona, 437 U.S. 385, 393 (1978), citing Terry v. Ohio, 392 U.S. 1 (1968). Defendant concludes that because the Govern- ment knew of the unlawful substances in the new lab and the storage room long befvore the searches actually took place, and because there was no immediate threat that the evidence might be destroyed or removed, there was no reason for the warrant requirement to be disregarded in this case. I do not agree. Although exigent circumstances must be present to justify art App. 65 certain warrantless searches, see e.g., Arkansas v. Sanders, 99 S.Ct. 2586 (1979); Coolidge v. New Hampshire, supra, any mention of exigency is noticeably absent from the recent Supreme Court decisions concerning consent searches. See, United States v. Matlock, 415 U.S. 164 (1974); Schneckloth v. Bustamonte, 412 U.S. 218 (1973); Frazier v. Cupp, 394 U.S. 731 (1969). Therefore, I conclude that the prosecution need only prove consent, and not exigent circumstances, to justify the two searches in dispute here. See, Ringel, Searches and Seizures, Arrests and Convictions, § 9.1 (2d Ed. 1979). In order to determine whether valid consent was given in this case, a brief review of the legal principles involved is necessary. Our discussion begins with United States v. Matlock, 415 U.S. 164 -48- App. 66 (1974). In Matlock, the Supreme Court held that a person other than the defendant could consent to a search of an area in which the defendant had a reasonable expectation of privacy, and that this consent would validate a search without a warrant. However, for such "third party consent", to be effective, the prosecution must show "that permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected." In footnote 7, the Court defined common authority: "Common authority is, of course, not to be implied from the mere property interest a third party has in the property. The authority which justifies the third-party consent does not rest upon the law of property, with its attendant historical and legal refinements, see Chapman v. United States, 365 U.S. 610 (1961) (landlord -49- App. 67 could not validly consent to the search of a house he had rented to another), Stoner v. California, 376 . 83 (1964) (night hotel clerk could not validly con- sent to search of customer's room) but rests rather on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the in- spection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched." The Supreme Court's foundation for this rule is not that the third party is able to waive the defendant's Fourth Amendment rights. Rather, this principle developed by the Supreme Court recognizes that the third party could permit the warrantless search of the premises or effects sought to be inspected in his own right, and the defendant is thought to have assumed the risk that this third -50- App. 68 party might permit such a search. See, LaFave, Search and Seizure; A Treatise on the Fourth Amendment, § 8.3 (1978); Wefing and Miles, Consent Searches and the Fourth Amendment: Voluntariness and Third Party Problem, 5 Seton Hall L. Rev. 211 (1974). Our Court of Appeals has interpreted this holding in Matlock in several cases, and the "clearly established rule" is that "consent 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." United States v. Gradowski, 502 F.2d 563, 564 (2d Cir. 1974); United States v. Pravato, 505 F.2d 703 (2d Cir. 1974); United States v. Jenkins, 496 F.2d 57 (2d Cir. 1974), cert. denied, 420 U.S. 925 (1975). Sis App. 69 Defendant contends at length that the test developed by the Second Circuit is far to broad, and not in accordance with Matlock, Presumably, the defense regards "express or implied permission" to enjoy access eas an extension of the definition of "common authority" provided in footnote 7 of Matlock. However, this argument carries no weight at the trial court level. The mischief caused by the exclusionary rule justifies this Court in strict adherence to decided Second Circuit cases on the subject. I conclude that the Government need only prove by a preponderance of the credible evidence that the President of NYU directly or through his subordinates, or Richard Macris, or Professor Jolly (1) has access to the new lab and the storage room; and (2) also had common authority over the areas, a substantial interest = App. 70 in them, or express or implied permission to exercise the access, and allow others to do so. For the sake of clarity, we will discuss this test first with respect to the new lab, and thereafter consider access to the storage room in the basement. Although I reject for obvious reasons the Government's theory that the privilege or ability of NYU as owner to break down its own door to the new lab constituted access, I find on the basis of the evidence adduced at the hearing that NYU officials did have access to the new lab, a fact which must have been known to defendant . °/ Both the Director of Maintenance at NYU and the Building Manager testified, and I find that to the best of their knowledge, they had keys to the new lab on May 17th. There was also testimony that it was NYU's policy to have keys to all NYU facilities, including the new lab. 2/ The possession =$3- App. 71 of these keys certainly constitutes access under the Second Circuit's test. See United States v. Gradowski, supra; United States v. Gargiso, 456 F.2d 584 (2d Cir. 1972). It is clear that the freight elevator opened into the labs without the necessity of any key except that needed to operate the car. This elevator served the entire building for freight. It carried an operator, and such additional persons necessary to accompany and handle freight. When the automated passenger elevators were not operating, it also carried passengers. Through his non-academic subordinates President Sawhill had control of the freight elevator, and access thereto, and to all areas opening therefrom without other doors or closures. This includes the new lab. Defendant claims that the locks on the fourth floor were in fact changed in «iin App. 72 November and December 1975 in response to unrelated thefts of property from the labs, and that the "administration" was never given a copy of the new keys. In support of this argument, the defense has submitted reports issued by the NYU Department of Protection, which indicate that the security officers patrolling Rufus Smith Hall were unable to obtain a key to certain doors in that building on three occasions. (Ex. W). However, these reports carry little weight, as the first two are dated before the locks allegedly were changed, and the third report shows merely that the guards did not have a key to room 401 which is an office at the opposite end of the hall from the laboratory door, Defendant also argues that certain memoranda from Vice President John O'Mara (Ex. 15) suggest that NYU did not have keys ol -55- App. 73 to all the rooms at NYU, and that NYU's "policy" was not always enforced. How- ever, the areas referred to in these memoranda do not include the new lab. Finally, defendant contends that the testimony and a letter dated July 26, 1979 (Ex. 16) from Gene Coe, the Assistant Building Manager, also indicates that NYU did not have keys to the locks in Rufus Smith Hall, which housed the new lab, in late July, 1979. Again, this evidence does not prove that NYU did not have the keys on May 17th, as it asserts. Even if we assume that NYU did not have the keys to the new lab, it always had access to the new lab through the old lab, connected by a doorway having no door, and in turn entered by means of the freight elevator. This elevator was utilized by the NYU maintenance and security forces. «Se App. 74 As noted above, this elevator also was occasionally used as a passenger elevator. Accordingly, I find that the NYU officials who gave consent for the search of the new lab had access to that lab through the freight elevator. The next issue, after finding access, is whether NYU President John Sawhill and General Counsel Andrew Schaffer had common authority over the new lab, a substantial interest therein, or express or implied permission to exercise their access into the lab. The Government contends that NYU had common authority over, and a substantial interest in, the new lab because the University owned the premises, assigned space therein to faculty members, and had an interest in protecting the students from any dangerous activity in the laboratory. The Government also claims oR? App. 75 that NYU permitted Buettner-Janusch to use the premises on the implied condition that he allow the University unrestricted access, and thus there was permission to enter the new lab. The fact that NYU owned the building housing the new lab, with certain rights and duties therein, does not amount to common authority under footnote 7 of Matlock. There, the Supreme Court stated that "[t]he authority which justifies the third-party consent does not rest on the law of property, with its attendant historical and legal refinements." United States v. Matlock, supra, at 171 n.7, citing Chapman v. United States, 376 U.S. 610 (1961) (landlord lacked power to consent to the search of a house he had rented to another). In this case, the laboratory was built especially for Buettner-Janusch's -58- App. 76 professional activities and assigned to him. There was no "mutual use" of the property by any non-academic NYU officials or personnel. The cleaning staff was allowed to enter only by appointment, and the fact that maintenance and security forces were allowed to enter for specifically defined duties does not demonstrate mutual use. See Stoner v. California, 376 U.S. 483 (1964). The Government also produced several University regulations that purported to show NYU's common authority over, or a substantial interest in, all premises in- cluding the new lab. (Ex. 1). It seems clear that accepting faculty tenure subject to these regulations cannot be construed as a waiver by defendant of his Fourth Amendment rights. However, the principle of third-party consent is not based on waiver. There is recognized authority -59- App. 77 to the effect that while a university has the right to enter a room assigned to a student in furtherance of educational objectives or in case of emergencies, this right does not extend, by means of such university regulations, to warrant- less searches for evidence of a crime. See, e.g., Piazzola v. Watkins, 442 F.2d 284 (Sth Cir. 1971); Smyth v. Lubbers, 398 F.Supp. 777 (W.D. Mich. 1975). Finally, the Goverment raises the argument that Buettner-Janusch gave the University express or implied permission to exercise access into the lab. There was no proof that Buettner-Janusch took occupancy under an express condition reserving to the University administrative authorities the right to exercise any possessory authority or access with respect to the new lab. They were not exercising -60- App. 78 such access on any regular basis, That they would have done os in event of fire, flood or other emergency is of no relevance. The landlord of a rented apartment would do no less. Therefore, I conclude that NYU had access, but did not have common authority over the new lab, a substantial interest therein, or permission to exercise that access into the lab. The Government's second contention was. that Richard Macris, Buettner-Janusch's lab assistant and NYU student, had access, common authority, and express or implied permission. Macris clerly had access to the new lab for the first six months of 1979, as he had keys to the door with the knowledge of Buettner-Janusch. See, United States v. Gradowski, supra. Also, the fact that he was an employee of NYU ofits App. 79 in the lab does not necessarily preclude a finding of common authority. United States v. Murphy, 506 F/2d 529 (9th Cir. 1974), cert. denied, 420 U.S. 996 (.975); United States v. Sells, 496 F.2d 912 (7th Cir. 1974). However, defendant contends that because Macris did not receive wages for his work in the lab after December, 1978, and his personnel record shows termination on that date, he cannot be considered an employee on May 17, 1979. Also, Macris concedes that he stopped reporting to the lab on April 20, 1979 under a feigned claim of illness, and did not return until sometime in June, when he began working as an assistant to Jolly. Defendant asserts that the logical conclusion to be drawn from this evidence is that Macris did not have "mutual use," and thus common authority, over the new lab on May 17, 1979. -62- App. 80 The Government offered some evidence at the hearing that Macris was still an employee for the first six months of 1979 because he received tuition remission for his owrk in the lab, and because Buettner- Janusch told Macris in February, 1979 that he would resume receiving wages for his work in the lab retroactively, as soon as some budgetary problems were resolved. In addition, the Government contends that while Macris stopped coming to work on after April 20, 1979, Buettner-Janusch told him to return whenever he "recovered" from his feigned illness, and fully expected him to return. I conclude from this evidence that Richard Macris was so employed in the lab with defendant's knowledge and had common authority over the new lab on May 17, 1979, the date of the search. Paraphrasing the -63- App. 81 Matlock test set forth in footnote 7, I find that it is reasonable to recognize that Macris had the right to permit in- spection of the new lab in his own right and that defendant assumed the risk that Macris might permit the common area to be searched. Even though Macris was not then receiving wages for his work in the new lab, it seems clear that he was told that funds would be forthcoming, and he con- tinued to work for the University under Buettner-Janusch in the new lab until April. Although Macris was absent for approximately four weeks before the search, this was considered by defendant to be a temporary leave, as Macris had been invited to returned when he recovered. Even if common authority were not present, I find that Macris had express or implied authority to exercise his access -64- App. 82 to the lab, and thus could have consented to a search in any event. Although Macris stopped coming to the lab on April 20, 1979, he was told by defendant that he should return whenever his "health" per- mitted, and this surely gave permission to enter the new lab at any time in the future. Defendant further argues ¢ iat Macris did not actually give consent to the search, but only went along on May 17th because he was asked to do so by the Government. I find that Macris' conduct implied consent even though the precise words of authorization may not have been spoken. See, United States v. Candella, 469 F.2d 173 (2d Cir. 1973). In sum, I find that Macris' consent is an indepen- dently valid basis for the May 17th search. -65- App. 83 The Government also claims that Jolly had common authority over the new lab, or at least express permission to use that laboratory, and that he too gave valid consent to the search. It is certainly true that Jolly had access to the new lab, since he had keys to the door at all times. On the issue of common aut*ority or per- mission, the prosecution offered an un- signed memorandum to Dean Stuart of NYU which spoke of the floor plans for the new lab and stated that Jolly could use the new facilities as well (Ex. 4). I have no doubt that this memo was written contemporaneously with the new construction by Buettner-Janusch, and infer from it that defendant permitted Jolly to share his laboratory facilities. Also, there was testimony at the hearing that Jolly did use Buettner-Janusch's lab on occasion, -66- App. 84 and that defendant never objected to this. It is hard to imagine that such an objection would be raised, because the two labs were adjacent to each other, connected by an open doorway, and defendant's lab contained facilities not available to Jolly in the old lab. Therefore, I find that even if Jolly's use of the new lab did not rise to the level of common authority, he certainly had permission, express or implied, to enter the new lab and use the facilities therein. I also conclude that Jolly's offer to accompany the Government on the May 17th search, and his actions that oventinn such as opening the doors | for the agents, constituted consent. United States v. Candella, supra. It provides a valid independent basis for the May 17th search. -67- App. 85 Accordingly, the Government has proved that there was valid consent to the May 17, 1979 search of the new lab, and that no search warrant was required to comply with the Fourth Amendment. Defendant also contends that the Government's warrantless search of the new lab violated his First Amendment right ~* to engage in research. Specifically, defendant argues that his research is a form of expression protected by the First Amendment ("academic freedom") and that any search which infringes on First Amendment expression must satisfy a higher standard of "reasonableness" in order to comply with the Fourth Amendment. In support of this, defendant cites the case of Roaden v. Kentucky, 413 U.S. 496 (1973), which held that a warrantless seizure of an obscene film to be shown in a commercial theater, although incident to an arrest, -68- App. 86 was unreasonable because of the First Anend- ment proscription against prior restraint. However, the Roaden case also states that "[a] seizure reasonable as to one type of material in one setting may be unreasonable in a different setting or with respect to another kind of material .... The seizure of instruments of a crime, such as ... ‘contraband ...' are to be distinguished from quantities of books and movie films when a court appraises the reasonableness of the seizure under Fourth ... Amendment standards." Id., at 501-502. Therefore, the Roaden case is clearly distinguishable from the case at bar. Even if we assume that the manufacture of controlled sub- stances in the context of a teaching facility in the field of scientific research is a form of expression protected by the First Amendment or privileged under con- ~69- App. 87 cepts of academic freedom, the Government ‘s search for such substances is not subject to a higher standard of reasonableness. Because this Court concludes that valid consent was given for the search of the lab, the search was reasonable and did not infringe on any of defendant's First Amendment rights. Before we consider the validity of the seizure of evidence from the lab, we now turn to the validity of the search of the basement storage area on August 2, 1979. The Government contends that the NYU administration, Richard Macris and Professor Jolly all had access to this storage room, as well as common authority over it and permission to exercise their access. A careful review of the evidence finds this argument unsupported by the facts. + App. 88 President Sawhill and General Counsel Schaffer had no access to the basement storage room cn August 2, 1979. It is undisputed that Buettner-Janusch had Professor Cantwell change the lock on the door to this room on July 19, 1979 and the two new keys resulting from her efforts and paid for by the University, were not turned over to the NYU adminis- tration, or to anyone else. The only way to gain entry into the storeroom without a key would be to break down the door or to push over the bookshelves that closed a gap in one wall of the room. These bookshelves went from the floor to the ceiling, and were filled with books. A fair reading of the relevant cases on consent searches leads to the conclusion that "access" must be ready and lawful, and not by force. See, Chapman v. United = App. 89 States, 365 U.S. 610 (1961); United States v. Gradowski, supra. A similar conclusion may be reached with regard to Macris. Jolly obtained his key surreptitiously, and this may constitute access under the test set forth in the Second Circuit cases cited supre. Nevertheless, I conclude that neither Jolly, nor for that matter NYU officials, or Richard Macris, had common authority over, a substantial interest in, nor permission to use, the storage room. Buettner-Janusch specifically told Ms. Cantwell to change the locks and to with- hold the keys from everyone but himself. She elected to follow these orders. This clearly implies an intent to keep the room private from all outsiders, including the owner of the building. There can be no finding that defendant "assumed the risk" that an outsider would permit a search of this room. Further, the changing of the =e App. 90 locks and secreting of the keys implies that any prior permission to use the storage room was thereby revoked. There is no showing that NYU had keys prior to Ms. Cantwell's activity. For these reasons, the search of the storage room on August 2nd was not conducted pursuant to valid third party consent. Because the Government relied on no other expectations to the warrant requirement, the Government's entry into the storeroom was an unreasonable search under the Fourth Amendment, Katz v. United States, supra; Coolidge v. New Hampshire, supra, and the evidence seized as a result of that search must be suppressed. The Seizure in the New Lab Thusfar, we have considered only the lawfulness of the two warrantless searches. Defendant also contends that, 73s App. 91 assuming the search of the new lab was lawful by reason of third party consent, the seizure of certain items in the new lab violated his Fourth Amendment rights. The evidence seized from the new lab was located in two general ares. First, there were chemicals and other items including the lab notebook lying out on lab benches. In addition, there were various substances located in enclosed aveas such as the cold room, the freezer, the fume hood, and the cabinets beneath the fume hood. The Government contends that no warrant was required to seize the evidence lying out on the lab benches because this evidence was in "plain view", and thus within a well-delineated exception to the warrant requirement. See, Harris v. United States, 390 U.S. 234 (1968); United States in ihn App. 92 v. Diaz, 577 F.2d 821 (2d Cir. 1978); United States v. Block, 590 F.2d 535, fn. 5 (4th Cir. 1978). On the other hand, defendant claims that the plain view doctrine only applies to "inadvertent discoveries" of evidence during an otherwise lawful search, Coolidge v. New Hampshire, supra, and that the DEA agents in the new lab were delib- erately looking for the evidence that they found on the lab benches. The requirement of "inadvertence" in plain view cases concerning contraband has recently been questioned in this Circuit, United States v. Liberti, Dkt. No. 79-1127 (2d Cir. January 25, 1980), and may not be necessary element of the Government's proof. Even if inadvertent discovery is required in some cases, no third party consent decision has imposed such a rule. See, United States v. a App. 93 Gradowski, supra. Therefore, I conclude that evidence in plain view may be seized without a warrant if valid third party consent is given, regardless of whether the seizure was inadvertent. Defendant also contends that the evidence seized from inside the fume hood, the cabinets beneath the fume hood, the cold room and the freezer should be sup- pressed, on the grounds that consent to search the lab does not authorize searches in enclosed areas. This argument has support in two Fourth Circuit cases. United States v. Block, 590 F.2d 535 (4th Cir. 1978); Reeves v. Warden, 346 F.2d 915 (4th Cir. 1965). However, there are also decisions to the contrary, United States v. Richardson, 562 F.2d 476 (7th Cir. 1977), cert. denied, 434 U.S. 1072 (1978); United States v. Robinson, 479 a ee App. 94 F.2d 300 (7th Cir. 1973); White v. United States, 444 F.2d 724 (10th Cir. 1971); and United States v. Matlock, supra, seems to reject the Fourth Circuit analysis by holding that third party consent to search a bedroom extends to the contents of a bag within a closet. This question has been raised in two Second Circuit cases, United States v. Isom, 588 F.2d 858 (2d Cir. 1978) and United States v. Pravato, supra. In Isom, the Court of Appeals upheld a search, based on third party consent, of a locked metal box, because the defendant never asserted ownership of the box and thus had no interest under the Fourth Amendment in keeping the contents of the box private. The Court went on to state: "Guests [such as the defendant] have a justifiable expectation under Katz v. United States, 389 U.S. 347, 83 S.Ct. 507, 19 L.Ed.2d 576 (1967), that the my App. 95 ° contents of locked arti- cles that they bring to the host's premises will remain private. This justifiable expectation should not be vitiated by a strained application of the third-party consent doctrine; the consent of the host should ordinarily be insufficient to justify a warrantless search when it is obvious that the searched item is the ex- clusive property of the guest. If the police wish to search such an article, then under Chadwick [v. United States, 433 U.S. 1(1977)] they may seize it upon probable cause, which they surely had here once the sawed- off shotgun was discovered in the pillow; they may then search the box after they have obtained a warrant."' [Matter in brackets added]. The principle of United States v. Chadwick, supra, has recently been reiterated bv the Supreme Court in Arkansas v. Sanders, 99 S.Ct. 2586 (1979), and by the Second Circuit in United States v. Dien, 609 F.2d 1038 (2d Cir. 1979), -78- App. 96 amplified on rehearing, January 31, 1980. Therefore, the issue before this Court is whether defendant had a reasonable expec- tation that the fume hood, the cabinets underneath, the cold room and the freezer, were areas where his contrabnad possessions would remain private. I conclude that these enclosed areas were not places in which Buettner-Janusch had a reasonable expectation of privacy. Richard Macris, Professor Jolly and a number of students had express or implied permission to use the cold room, the freezer, the fume hood and the cabinets, and exercised access to all of these areas. None of the enclosed areas were locked, or placed off-limits to others by defendant. Because of this access, and permission to exercise such access, existing in favor of of persons other than defendant, this case -79- App. 97 is distinguishable as to the items in the enclosed areas, from those decisions con- cerning locked metal boxes, United States v. Isom, supra, sealed cardboard boxes, United States v. Dien, supra, and locked . footlockers, Arkansas v. Sanders, supra. By allowing such a substantial number of persons to enter, use and observe these enclosed areas of the new lab as they wished, Buettner-Janusch forfeited any reasonable expectation of privacy that he might otherwise have had. . Furthermore, the access to these enclosed areas by Jolly, Macris, and other students, and defendant's permission to exercise that access, supports a conclusion that Jolly and Macris validly consented to the search of these areas. In conclusion, the search and seizure of evidence from these enclosed areas was permitted by the third party consent to the search of the lab, and no search warrant was necessary. -80- App. 98 An indeterminate number of the sub- stances that were seized were located in tightly fastened opaque containers which did not, from their appearance or labelling, betray the nature of the contents. Defendant again relies on United States v. Dien, supra, and argues that while the seizure of such containers may have been proper, those con- tainers should not have been opened until a warrant was obtained. The facts in Dien are directly in point. In that case, narcotics dealers, followed by a DEA agent, were transporting their stock in trade through congested city traffic. The drugs were within plain card- board boxes sealed with tape, placed within a van the windows of which had been painted over and in which opaque plywood had been placed behind the driver's seat, thereby manifesting an “expectation that the contents =Si« App. 99 would remain free from public examination" United States v. Dien, supra, at 1045. The Court of Appeals found that the warrantless search of the van and the seizure of the cartons was lawful, but that under its interpretation of the rationale of Arkansas v. Sanders, 99 S.Ct. 2586 (1979) a warrantless search of the cartons themselves was improper. Within that rule, as to any sealed opaque containers in the lab which do not show, by label or other obvious indicia that they contain relevant evidence, the opening and seizure of the contents was unlawful. Such items only will be suppressed. Counsel are directed to meet forthwith and prepare an agreed schedule of the items meeting such criteria, and in event of in- ability to agree thereon, the Court will reopen the record to make more specific findings as to what is suppressed within -82- App. 100 the rule of the Dien case. The Court has considered the Government's attempt by argument to narrow or distinguish the holding therein as limited to such items as briefcases, suitcases and footlockers which are the traditional means by which personal effects and papers are carried and stored. The words of the decision do not justify such a construction, so we ‘must leave it for a higher authority to do so. The Search and Seizure by Professor Jolly Defendant also contends that the substances and photographs gathered by Jolly after April 25th, but before the May 17, 1979 search, should be suppressed. Defendant argues that after April 25th, when Edward Boyle took substances gathered by Jolly to the United States Attorney's Office for tests, the Government assumed «83- App. 101 an active and indispensable role in the investigation, and that any further action on Jolly's part could not be considered "private" under the Fourth Amendment. On the other hand, the Government asserts that there is no proof of affirmative participation by federal agents until May 17th, and that the evidence gathered by Jolly prior to that date is therefore admissible as the produce of a private search. The Fourth Amendment proscription against unreasonable searches and seizures applies only to activities of the sovereign, and not to those conducted independently by a private individual, Burdeau v. McDowell, 256 U.S. 456 (1921). In order for evidence gathered by a private indi- vidual to be suppressed, the search and seizure must be "infused with governmental -84- App. 102 participation" United States v. Cangiano, 464 F.2d 320 (2d Cir. 1972). Expressed differently, there must be some affirmative participation or encouragement by the Government. See, United States v, Keuylian, 602 F.2d 1033 (2d Cir. 1979). On the evidence before me, I find and conclude that the investigation conducted by Jolly was truly private, and not infused by government participation until the night of May 17, 1979. The Government did inspect certain substances gathered by Jolly, but on an anonymous basis and as a result of the voluntary intervention of intermediaries. Further, the Government did not encourage Jolly to conduct or continue his investi- gations in any way. I find that Jolly's actions were motivated not by Government participation or encouragement, but rather by understandable outrage that the facilities -85- App. 103 of an institution of higher learning should be used by a colleague for the manufacture of alleged illegal drugs. The motions are disposed of in accordance with the foregoing which con- stitutes findings and conclusions. Settle an order on five (5) days notice or waiver of notice, with schedules identifying with particularity the items suppressed. A pre-trial conference and status report will be held before me on April 10, 1980 at 9:30 A.M. in Courtroom 307. Dated: New York, New York March 27, 1980 Charles L. Brieant i RRs -86- App. 104 FOOTNOTES 1. Fried telephone Boyle to furnish the results of the DEA tests. Boyle testified that: "He [Fried] said to me and these are his exact words, "I have good news and bad news.' He said, ‘The good news is that your relative who is working the labora- tory is one Hell of a chemist, [and] that this is the purest, strongest sample of the particular controlled substance that his agents had tested." The bad news was implicit." (Tr. p. 240). 2. The Government offered no explanation at the hearing for its failure to obtain a search warrant in this case and thereby obviate any controversy. As counsel for defendant pointed out (Tr. pp. 43-45), if by procecding on third-party consent the Government sought to protect the anonymity of Macris and Jolly, it could have satisfied this necessity by obtaining warrants on affidavits founded on anonymous informants. The legitimate interest of the University were served by urging the Government, as Schaffer apparently did, to go forward with the search on the basis of consent without a warrant. If the consent search turned up nothing, that would have been the end of the matter. But if a search warrant had issued, it would have required a return to be filed in the public files of the Court under Rule 41, F.R.Crim. P., with resulting notoriety injurious to the University. App. 105 3. There is no reason to suspect that Dr. Cantwell, who was also an Assistant Professor of Anthropology at Rutgers University, acted with improper motives when she performed this service for defendant. However, she conceded that her participation in such an activity was highly unusual. She testified: "Q Is it an ordinary part of your duty as an honorary research fellow to supervise the changing of locks: A No, it is not. These were, I was led to understand, extraordinary circumstances. Who led you to understand that? Professor Buettner-Janusch. What did he tell you. -. O8:-? ££ He called me and told me that he had, was aware that one of the graduate students, one of the lab assistants, Danny Cornyetz, had been involved in the manufacture of drugs. He was worried that he was being framed -- it was during the summer, I should point out, when very few people were around and he asked me if I would change the locks for him. ii App. 106 THE COURT: I've never known any professor who was asked to supervise repairs to materials and equipment." (Tr. pp. 447-450). 4. The difference between a conventional cylinder lock and a Medeco lock has been described as follows: "A conventional lock has a series of spring-loaded pins which are moved vertically by the insertion of the key. When the pins are each raised to the proper designed height, which variew between locks, the lock tumbler can be turned by turning the key, thereby unlocking or opening the bolt. In order to raise the pins to the proper position, the key for such a conventional lock is cut with a plurality of cuts, called bits, to predetermined depths corresponding to the desired vertical positions of each of the pins at which the lock will open. Moreover, the ends of the spring-loaded pins which are in contact with the key are rounded, to permit easy sliding of the key. The Medeco lock adds a new feature to the conventional cylinder lock above described. In addition to lifting each of the pins to an appropriate height for that pin, as ina iii App. 107 conventional lock, insertion of the key also rotates the pins about their aces, to appropriate angular positions. This twisting or rotation to a predetermined point, approxi- mately 20 degrees either to the left or right, is made possible by the angling of the bits on the key and the fact that the ends of the pins contacing the key are wedge-shaped, rather than rounded as in a conventional lock, so that nen conform to the angle on the key. The thrusting in of the key both turns and lifts the pins. Both actions are necessary to turn the tumbler and unlock the lock. The key is wider than the usual key, at the point which bears on the wedge-shaped lower ends of the pins.'' Medeco Security Locks, Inc. v. Lock Technolo Corp., Dkt. No. 75 Ci oe (S.D.N.Y. Vv. December 37, 1976). To duplicate a Medeco key, a locksmith must possess special patented key-cutting equip- ment, and also must have the serial or pattern number of the original key to the lock. As a result of these safeguards, it is virtually impossible for a criminal or a locksmith to "pick" or otherwise open, a Medeco lock without special patented equip- ment available only under license, and the pattern or serial number of the specific key to that lock. iv _ App. 108 5. For example, in the June 1, 1979 con- versation between defendant and Richard Macris, defendant quoted his then attorneys as saying that they would not permit de- fendant to testify before the Grand Jury, and if he were subpoenaed, that he should assert his Fifth Amendment rights. De- fendant also stated that his then attorneys had assured him that neither Macris nor Cornyetz would be made a target of the investigation and that his attorneys could beat any charges against Buettner- Janusch on his reputation alone. For this and more of the same, Buettner- Janusch disclosed that he was paying a $40,000 legal fee for all services prior to indictment. In the same conversation, while speculating on who the "informant" in the case might be, defendant disclosed that his then attorneys could usually get information such as this "leaked out" of the U.S. Attorney's Office, but had not been able to do so in this case. In the June 27 and July 2, 1979 conversations between defendant and Danny Cornyetz, defendant divulged the hardly significant facts that his then attorneys "think Bruce [Greenfield] is slightly ga-ga," and believe that they could massacre" Richard Macris if he testified against them. By quoting defendant's disclosures of "trial strategy" we draw no inference as to whether such advice was in fact given, or whether it was quoted correctly by Buettner-Janusch on the tapes. We note only that a thorough review of the tapes shows he never disclosed any significant legal advice given to him by his then attorneys. App. 109 6. In addition to defendant, Professor Jolly and Richard Macris, a number of others had keys to the new lab. Richard Macris testified that, to his knowledge, Danny Cornyetz, Lon Alterman, Patricia Caratsis, Bruce Greenfield, Rhea Trienkis and Lisa Forman had keys (Tr. p. 89). Also, in a taped converstaion between defendant and Macris on June l, 1979, the following exchange took place: BUETTNER-JANUSCH: If they were sure, I'd be indicted now.... You know what it is, it's an informer .. someone got picked up with something and said he got it from B-J's lab, someone took something from the lab and got caught, which is entirely possible.... MACRIS: Yeah. You -- BUETTNER-JANUSCH: You know how open, you know how careless we are with that -- MACRIS: Yeah, that lab's always open. This evidence strongly suggests that defendant was well aware of the large number of people who had access to the new lab, and that he had no reasonable expectation of privacy. vi App. 110 7. General Counsel Andrew Schaffer testified that: "The University policy was to maintain a copy of keys to all academic premises, and to have access to all academic premises at all times to assure the safety and health of the university and the safety of people who work there and the premises themselves." (teu DP. Sa? Walter Murray, Director of Maintenance and Operations at NYU, confirmed in his testiminy that there was a policy at NYU requireing that the building manager and the engineers have “accessibility to each and every room in the University." (Tr. pp. 189-190). Murray further testified that if he discovered an NYU facility not complying with this policy, he would insist that the facility provide keys to NYU to maintain access. (Tr. p. 198). This was in accordance with memoranda from John O'Mara, Vice President for Institutional Facilities, which stated in part that "there cannot be places to which the building managers cannot have access in case of emergency."' (GX 15). Despite all this, there were places in the University, including Buettner- Janusch's storage room, with respect to which the University policy was honored in the breach by high placed academics such as this defendant. I am convinced vii App. 111 that the University had actual or constructive notice that it had no key to the storage room and that its enforcement of the unwritten "policy" was, to say the least, half-hearted with respect to this defendant and those of similar standing. viii App. 112 APPENDIX C OPINION OF JUDGE BRIEANT (Filed May 28, 1980) UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ees - ee se ee ee ee ee ee a a a ee a ee ee ee ee x UNITED STATES OF AMERICA, -vV- : 79 Cr. 710-CLB JOHN BUETTNER-JANUSCH, MEMORANDU™. Defendant. AND_ORDER -——— — — me ee ee ee ee eee ee ee ie ee x Brieant, J. In a memorandum decision and order dated March 27, 1980, this Court decided, inter alia, that the Government's warrant- less search of defendant John Buettner- Janusch's laboratory at New York University, and the seizure of a number of items therein, was lawful and not in violation of the Fourth Amendment of the United States Constitution. However, the decision left open the question of whether several "tightly fastened opaque containers" and App. 113 their conterts which were seized from defendant's lab and searched by the Government without a warrant, should be suppressed under the rule of Arkansas v. Sanders, 99 S.Ct. 2586 (1979), and United States v. Dien, 609 F.2d 1038 (2d -Cir. 1979). To resolve this problem, the record was reopened and a further evidentiary hearing was held on April 3, 1980. Defendant and the Government each submitted post-hearing memoranda, and the motion to suppress those containers was fully submitted on April 25, 1980. Familiarity with this Court's earlier decision of March 27, 1980 is assumed. The following constitutes my supplemental findings of fact and conclusions of law. At the hearing on April 3, 1980, the Government produced the plastic containers in dispute, which were identified as om. App. 114 Exhibits 103, 104, 106 and 108 (formerly DEA Exhibits 3, 4, 6 and 8), and was observed carefully by the Court. All of these containers had tops that screwed _ on tightly. The contents were visible, in varying degrees, through the plastic walls of the containers. A direct ob- servation of the containers differs from their generally more opaque appearance as shown in various photographs taken on the night of the raid and received in evidence at the prior hearing. While the exhibits themselves were available to the Court at the prior hearing, they remained inside evidence envelopes and were returned to Government custody at the end of the Court day. The photographs, however, were submitted to the Court and retained in Chambers for study at a later date when the matter was = App. 115 submitted for decision. There is a surprising and substantial difference in the apparent opacity noted in observing the photographs, as contrasted with a direct visual observation of the containers themselves, now looked at again by the Court. The increased opacity found in the photographs is attributed to the effect of the flash bulbs used to take the pictures. Exhibit 103 is two plastic containers found in the fume hood of defendant's laboratory, which allegedly contain methaqualone in variuos stages of refinement. On the side of one of the containers is an inverted V, shorthand for the word "approxi- mately," and the writing "160 grams." On the side of the second container, there is an inverted V and the writing "330 grams.' On the tops of both containers is a Roman ms App. 116 numeral II. The contents of these con- tainers, as perceived visually through the plastic walls, may be described, and are readily apparent, as a granular white or cream colored substance. Exhibit 104 is also two plastic con- tainers, slightly smaller than those of Exhibit 103, which were taken from the same hood. Both containers have indi- cations of quantity on the sides and writing on the tops. The contents, also alleged to be methaqualone in stages of purifi- cation, are visible through the plastic walls of these containers and may also be described as a white granular sub- stance in one, and a darker, more crys- talline substance in the other. Exhibit 106 is one plastic container, allegedly containing methaqualone, which was seized from a bench in defendant's laboratory. On the side is a notation oie App. 117 "resin No. 1"' and a Roman numeral I. Through the plastic, one may preceive the contents as a light colored powder. Exhibit 108 is one plastic container, found in the lab freezer, having three glass containers and a gravel-like sub- stance inside. On the side of the outer container is the notation "4BJ."" Two of the glass containers inside have factorv labels. At the hearing, the Government also elicited the testimony of Jeffrey Weber, a supervisory chemist at the Drug Enforce- ment Agency, Northeast Regional Laboratory. Mr. Weber was present during the May 17, 1979 search of defendant's laboratory, and he advised the DEA agents in charge to seize, among other items, these con- containers. Mr. Weber testified that his advice was based on several facts and in- nike App. 118 ferences. First, his prior analysis of rhe samples collected by Professor Jolly ives the lab revealed methaqualone and anthra- nilic acid, a direct chemical precursor to methaqualone in the customary process by which the latter is made. When he entered the laboratory on May 17, 1979, he saw a number of chemicals which were precursors to methaqualone, and he concluded from this information that the powders in nearby containers were probably methaqualone. These containers included Exhibits 103, 104 and 106. Also, Mr. Weber found a notebook in plain view in the laboratory next to Exhibit 106, that showed notations which corresponded to the writing on several of the containers, including the containers identified in Exhibits 103, 104 and 106. The notations also described the melting points of the contents of these containers, and Weber noticed that several of the i App. 119 melting points corresponded closely with that of methaqualone. Mr. Weber conceded that he could not tell, simply from looking at the contents of these containers through their plastic walls, whether the substances were methaqualone or something else. But he could tell that it might be, and became convinced that these powders or sulstances were contraband and should be seized when he opened the tops to the containers and smelled toluene. Toluene is a known solvent regularly used in the manufacture of methaqualone. Mr. Weber also advised seizing Exhibit 108 after he saw that two of the glass bottles contained therein were labeled “ergotamine tartrate,"' a chemical precursor to lysergic acid diethylamide. Defendant argues that the ineriminating nature of the contents of these plastic containers was not apparent from their outward appearance, and also that the "plain view" App. 120 doctrine is inapplicable in this case. Accordingly, defendant requests that Exhibits 103, 104, 106 and 108 be suppressed. On the other hand, the Government contends that the containers should not be suppressed because their contents were either in "plain view" or easily inferred by a trained chemist, Weber, from their outward appearance, other obvious indicia, and information known to the Government. In the alternative, the Government claims that the third party consent given by Professor Jolly and Richard Macris to search the laboratory extended to the seizure and search of the containers. In Arkansas v. Sanders, 99 S.Ct. 2586 (1979), the Supreme Court stated that while personal luggage is inevitably associated with the expectation of privacy, and thus protected from warrantless searches [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_2231%3A2. Public record. Not legal advice.