Appendix — Taylor v. United States

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

NO. 81-1570

UNITED STATES OF AMERICA

Appellee

Ve

JOHN TAYLOR

Defendant-Appellant

NO. 81-1580

UNITED STATES OF AMERICA

Appellee

Vv.

KELLY TWOMEY

Defendant~-Appellant

NO. 81-1585

UNITED STATES OF AMERICA

Appellee

Vv.

WAYNE LAFRANCE

Defendant-Appellant

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[HON. JUAN R. TORRUELLA, U.S. District Judge*]

Before

Coffin, Chief Judge

eet |

|

ALDRICH and BREYER, Circuit Judges,

Marvin D. Miller, with whom Jay

Colangelo, Richard Emerson, Jr. and Ronald

Chisholm were on brief for appellants, Margaret

McGau , Assistant United States Attorney, with

whom S. Cohen, United States Attorney,

was on brief for appellee.

JULY 19, 1982

*Of the District Of Peurto Rico, sitting by

designation.

a-2 U.S. wv. TAYLOR

ALDRICH, Senior Circuit Judge. We add herewsth

to our collection of Tall Tales concocted by drug

Smugglers on the coast of Maine. Compare United

States v. Weber, 1 Cir., 1981, 668 F.2d 552,cert.

denied, 50 U.S.L. W. 3960, boat allegedly detained

by “storm” on calm moonlight night with instant

yacht choosing to stay in poorly protected spot

with concededly inadequate anchor, although warned

of coming high winds and sea. More will appear in

due course.

On July 24, 1979, defendant Taylor, having exe-

cuted a three-weeks bareboat charter, took possession

of the 51 foot ketch I FORGOT at Curacao, Dutch Antill

paying a charter fee of $6,600, plus a $5,C90 deposit.

On September 6, three weeks after the charter's ex-

piration, the yacht was seen anchored in upper French-

mens Bay, Maine, where she ignored the fisherman's

warning. The next morning she was discovered on

tocks near a deserted beach, slightly holed, and

Coosa taken water thereby. Wo one was on board,

end all personal effects, including linen, had been

removed. The boat was littered, from bow to stern

bm deck and below, with marijuana debris. In addition

bome 4 pounds of marijuana were subsequently found

in the woods behind the beach. Warrantably marijuana

i we ee. ee ee aie § 2. Bae eee ok . _ 7 .

A-3 U.S. v. Taylor

had recently been off-loaded.1 An onshore

wind of 30 knots, or more, had blown during

the night. At high water lobstermen hauled

her off. Her sails were badly torn, her

batteries under water, and nothing functioned.

They towed her to Sorrento Harbor, where the

harbormaster put her on a mooring and

placed a pump on board.

An hour or so afterwards the yacht was

searched by one, later by a second, state

police officer. Parelleling the custom of de-

fendants making up stories in such cases,

the search and seizure was conducted without

@ warrant, and far exceeded a permissible

search for evidence of ownership. At the

suppression hearing one of the officers

testified that the harbormaster had said

the boat was in danger of sinking, but the

harbormaster denied this, and with him in

charge, and a pump aboard, the denial

seems logically correct. If there were a

fhe Bn endy sngeegery hear Taylor conceded

something not identified, had been off-

loaded the night of September 6.

Ae U.S. v. Taylor

a @anger of sinking, obviously he would beach

her. A magistrate was not far away.

That officers are not told to obtain warrants,

or, if they are told, should place themselves

above instructions in such cases, is inexcus-

able. This omission cost a one day court

hearing, with a witness and expense. In

addition, the court had to prepare findings

and three judges now have to review them.

Beside such wasted time and effort, a warrant-

less search always risks the loss of evidence

altogether. All this because of a little

laziness on the part of the officers whose

duty is to obey a very simple requirement.

At the suppression hearing, resolved in

the government's favor, it appeared that de-

fendant Taylor and co-defendants Twomey

and LaFrance, had sat in the woods watching

the rescue without attempting to make them-

selves known, and that Taylor hitchhiked

towards theharbor, but had taken off on seeing

the lights of a police car. The other de-

i

mo

re

Pr

Be ics Te eS el

aA-5 U.S. v. Taylor

fendants had taken off without approaching

the harbor. None were apprehended until

some months later. Convicted of conspir-

acy to possess marijuana with intent to

Gistribute, in violation of 21 U.S.C. §846,

they appeal. We affirm.

Defendant's first conplaint is the

warrantless search and seizure. We do

not accept the government's claim that

defendants had lost their privacy interest

in the vessel due to the charter's ex-

piring. (Nor, of course, could the officers

know the status of the charter). Unlike

the vacated hotel room cases cited by the

government, e.g., United States v. Buchanan,

5 Cir.,1980, 633 F. 24 423, 426, cert. denied ,

451 U.S. 912: United States v. Cowan, 2 Cir.,

1968, 396 F. 24 83, termination of the char-

ter did not restore the owner's physical

possession. Rather,defendants manifestly re-

mained in charge with, doubtless, contractual

A-6 U.S. v. Taylor

rights and obligations. We do, however,

accept the court's finding that when the de-

fendants left the vessel ashore, they aban-

Goned her. Wo line had been made fast, and

no writing left advising the name and where-

abouts of the owner or master, or stating an

intent to return. This was an obvious salvage

situation, and any mariner would know he

should leave some kind of notification. This

lack, coupled with the removal of all personal

affects for abandonmert, more than warranted

the court's finding.2 Abandonment meant loss

of any expectation of privacy. Able v. United

States, 1960, 362 U.S. 217, 241; United States

v. Miller, 1 Cir.,1978, 5869 F.2d 1117, 1131,

re enss:. of this last inference

was confirmed by Taylor's testimony that fear

of arrest was why they did not make themselves

known. While no one was aware of this at the

time, neither can defendants better the’r.case

by saying their fear made their abandon.ent

involuntary. Uni Kendall, 9

Cir. 1981, 655

L.W. 3649; Uni

1973, 474 F.

U.S. v. Taylor

bert denied, 440 U.S. 958. The motion to

suppress the various items seized from the

yacht was properly denied.

There was also no merit in defendant's

critcism of the charge. The court also charged

as follows:

*{YJou must then determine the purpose of

the conspiracy...You may find the defendant

in question guilty of conspiracy to possess

with the intent to distribute. If you find

that the object was not distribution you

shall enter a not guilty verdict as to the

charge. If you find the defendant not guilty

of conspiracy with the intent to distribute

then you must determine if a conspiracy existed

for the purpose of simple possession rather

than distribution."

Defendants objected because the court failed

to grant the_r request that if the jury found

they possessed marijuana with “intent to dis-

tribute to other members of the conspiracy

you must find them not guilty." We are

not clear what this confusing statement means.

If it had any substance beyond the charge

given, it could only have been that there was

no intent to distribute if the unknown persons

ashore were to be considered personal use co-

conspirators. In defendanté' case of United

A-8 U.S. v. Taylor

States v. Swiderski, 2 Cir. 1977, 548 F. 24

445, there was evidence that the two alleged

conspirators, husband and wife, had simultaneously

and jointly acquired possession of a drug for

their own personal use, without intending to

distribute the drug further. The Gourt held

that an instruction which allowed a conviction

of distribution under such facts was error.

Without passing on the soundness of that case,

it has no application here, since the complex

nature of the operation and the amount of

marijuana confiscated belies defendant's con-

tention - that they did not intend to trans-

fer the drugs to other persons. United States

v. Wright, 9 Cir.,1979, 593 F.2d 105,108.

There is no obligation to charge with respect

to circumstances not conceivably made out.

E.g., United States v. Preiskorn, 8 Cir,1981,

658 F. 24 631, 636; United States v. Irwin, 1 Cir.

1979, 593 F. 24 138, 140-41. The charge given

defined defendants’ intent to distribute as

a-9 U.S. v. Taylor

Gistribution “to others" and referred to the

lesser included offense of simple possession,

and was fully adequate under the facts of

this case.

Finally, we deal with the court's failure

to suppress certain photographs, positives

ordered by the police from -. four rolls

of negatives left by one of the defendants

with a Massachusetts processor for development.

By happenstance an officer was conversing

socially with the owner of the establishment

while an employee, engaged in running off

samples for test purposes, noticed some unusual

Gepiétions and exclaimed, calling the officer's

attention thereto. The prints showed tropical

scenes, baies,apparently of marijuana, on a

yacht, and one for instance of a man sitting

on a bale with a shotgun or rifle. The

officer ordered an extra set t6 be made for

him. No warrant was sought. Defendants,

prior to trial, moved,unsuccessfully, to

suppress and for the return of the prints and

A-10 U.S. v. Taylor

now appeal from their introduction into evidence.

Defendants’ argument is a pot pourri. Al-

though at one point they argue they, or at

least LaFrance, the delivering defendant, had

an expectation of privacy iff the films, they

concede that “none of their Fourth Amendment

rights were implicated by the police observa-

tion of the print sheet inadvertantly (sic)

exposed to the officer by the employee."

This concession is not only correct, it

covers the whole case. The court warrantably

found this to be a situation where exposure,

in the broad sense, by an employe could reason-

ably be expected. Cf. Smith v. Maryland, 1979,

442 U.S. 735. Once lost by this plain view

exposure, the concept of privacy cannot be

revived to prevent copying. The police undertook

no impermissible seizure by making a copy,

leaving the negative ,and defendants’ copies

undisturbed. See Coolidge v. New Hampshire, 1971,

403 U.S. 443, 465-466. Affirmed.

APPENDIX B

UNITED STATES DISTRICT COURT

DISTRICT OF MAINE

UNITED STATES OF AMERICA

ve Crim. No. 80-100024

MEMORANDUM OF OPINION AND ORDER

ON DEFENDANT'S MOTION TO SUPPRESS

GIGNOUX, J.

Defendants John Edward Taylor, Kelly Stephen

Twomey and Wayne Paul LaFrance are charged in a

one-count indictment with conspiring to

possess with intent to distribute a large

guantity in violation of 21 U.S.C. §§841(a)

{1), 846. Presently before the Court are

Gefendants' motions to suppress evidence pur-

suant to Fed. R. Crim. P. 12(b)(3) and 41.

An evidentiary hearing has been held and

the issues have been comprehensively briefed

and argued by counsel. The following memorandum

opinion contains the Court's findings of fact

and conclusions of law, as required by Fed. P.

Crim. P. 12 (e).

I.

THE FACTS

A. The Vessel “I FORGOT"

At approximately 8:00 a.m. on the morning

of September 7, 1979, Bryant Sutherland, a

lobster fisherman from Sorrento, Maine, dis-

covered a 51 foot Morgan sailing yacht, the

I FORGOT, aground on ledge in the vicinity

of Taft Point near Gouldsboro, Maine. The

vessel's sails were down and no one appeared

to be on board. Sutherland called other

fisherman in the area to help. He then left

and returned a few hours later, joining

another fisherman who had arrived at the

scene. The two men boarded the yacht. Suther-

land observed green and brown vegetable

matter, which he thought was marijuana - “every-

where you looked” on the deck and below in

the cabin. He also noted that the vessel

appeared to be abandoned; there was no crew

and there was no linens on the beds or

personal effects on the boat.

At about 11:45 a.m. two other fishing boats

arrived. They hooked onto the I FORGOT, floated

it off the ledge, and towed the vessel to

Sorrento. En route, Charles Bunker, one of

the fishermen involved in the operation,

called law enforcement authorities through

a local citizens band radio network known as

REACT. Bunker relayed the information that

the vessel had been recovered and was being

taken to Sorrento. While in tow, the I FORGOT

rode low in the water, apparently because of

the amount of water it had taken in. A

small pump was used to remove some of the water.

Upon arrival at Sorrento, Bunker secured the

vessel to a mooring in the harbor and made

arrangements to obtain a larger pump in order

to keep the boat from sinking.

Defendants witnesses the salvaging of the

I FORGOT. Taylor testified that the three

defendants, hiding in the woods, observed for

several hours fishing boats come and go, and

hover about the stranded vessel. They watched

as the fishermen floated it off the rocks and

towed it away. After the boats had left, de-

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7

aan

fendants departed. Taylor split from the

other two and hitched a ride to Sorrento.

When he arrived there, he saw the I FORGOT

moored in the harbor. Observing a police

car at the dock he did not make any effort

to claim the vessel.

Once the yacht had been moored in the

harbor, Bunker, also the harbormaster, took

his boat to the town dock and picked up Corporal

Terry Parsons of the Maine State Police. Cpl.

Parsons had answered the call put through

earlier by Bunker. As Parsons boarded the

vessel, he saw on its deck vegetable matter

scraps which he recognized as marijuana debris.

Below in the cabin he saw more marijuana de-

bris scattered throughout - on the steps, on

the floor, and floating on the water that covered

the floor of the cabin. Parsons went back

on deck, talked with several other fishermen

and then went ashore. After calling police

barracks, he drove to Taft Point, where the

I FORGOT had been found.

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= £ a

The point on the shore where the boat was

discovered lay about one mile from the main

road that ran south from the town of West

Gouldsboro. Parsons described the shoreline

as a large pebble beach. He observed con-

siderable marijuana debris on the shore,

and found a flashlight, gas cap, hat and

two full cans of starting fluid on the beach.

About 3:00 p.m. Parsons returned to Sorrento

harbor and joined Sergeant Harry Bailey and

Trooper Michael Vittum of the Maine State Police,

who had responded to Parsons’ earlier call.

Parsons reported to them his findings.

Vittum was ferried out to the I FORGOT by

harbormaster Bunker. Bunker indicated concern

that the Coast Guard arrive soon, because of

his fear that the vessel was still taking on

a lot of water. As he was boarding the I FORGOT,

Vittum also observed marijuana debris on the

deck and a strong marijuana like odor emanating fre

the cabin. He went below to look for information

pertaining to the vessel's crew. In a desk

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ae be found a navigational chart

) with certain markings and a tablet of writing

paper. 3

3 Vittum returned to shore and drove to the

area where the vessel had been found. At the

end of the dirt road leading to the shore he

observed tire impressions of a four wheel

drive vehicle. He also saw marijuana debris

along the road. %3n the woods beside the

road, about 1000 feet from the shore, he

found two car batteries. He also found a

storage bag for an inflatable Zodiac raft,

paddles, a receipt for the car batteries,

and a gas can. Marijuana residue covered

the shore. As he had done on the I FORGOT,

Vittum collected samples of the debris.

Around midnight the Coast Guard took

custody of the vessel in Sorrento and towed

it to Southwest Harbor. On the next day,

September 8, Drug Enforcement Administration

(DEA) Agent Wayne Stedsman, accompanied by

Vittum, took additional samples of the marijuana.

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"Te iF .

It was subséquently discovered that the

owner of the I FORGOT was U.S. Northeast Leasing

Co. and that on July 20, 1979, Norris Ashe,

the president of U.S. Northeast Leasing Co.,

had leased the vessel for a three-week period

to a John Taylor of 821 79th Street, New York,

New York. Taylor took possession of the vessel

in Curacao on July 24. After giving inconsistent

testimony with respect to the lessee's signature

on the lease, which is illegible, Taylor finally

acknowledged that he signed it. The address

on the lease was not Taylor's. Ashe could not

identify Taylor as the man who signed the lease.

B. PHOTOGRAPHS

On September 24, 1979, defendant LaFrance

went to the Sea Mist Photo Finishing, Inc. in

Hyannis, Massachusetts and left four rolls

of 110 color film to be developed. He ordered

three sets of 3 1/2" x 5" prints. Sea Mist gener-

ally told customers they could pick up the

film within 24 to 48 hours.

-7J-

Gerald Schmeer and his brother Victor own

and operate Sea Mist, a photo development lab-

oratory located in a small, one-story addition

to a residential struction in Hyannis. The

- be rae ee ke

a

:

laboratory area occupies most of the building.

In the front corner of the ground floor is

the customer area. A small counter eindaoede

the customer area from the processing area.

Gerald Schmeer testified that customers fre-

quently went behind the counter and entered

the processing area, and that he used the

counter regularly to roll out and correct

color test prints.

Correcting color prints is a standard

process which involves making partial test

prints from the developed negatives. A partial

print is a photographic print with only the

center 2 1/2" developed. All the prints are

contained on a roll of photo paper, which

Gerald Schmeer customarily takes to the customer

counterand unrolls. He examines each partial

print individually to insure proper color

-8-

and density, and marks any corrections on the

print itself.

On September 26, 1979, while Gerald Schmeer

was examining the partial test prints of the

LaFrance order, Deputy Robert White of the

Barnstable County Sheriff's office was talking

with Victor Schmeer in the customer area of

the shop next to the counter. White routinely

visited the shop several times a week either

for coffee and conversation with the Schmeers

or to deliver or pick up film for the Shériff's

office. His September 26 visit was a social

call. Gerald Schmeer unrolled the test print

so that about 15 individual prints were visible.

Examining the prints, he discovered that one

showed a man holdi-g a rifle surrounded by

large bales. When he expressed surprise-"“Jesus!"-

at what the prints showed, White reflexively

glanced at the unrolled prints which were upside

down from his vantage point. White then moved

around the counter to get a better view.

Gerald Schmeer continued to unroll the photo

paper making visible the remaining test prints.

a

White, an experienced police officer, recognized

that the series of prints “appeared” to depict

@ marijuana smuggling enterprise “from start

to finish." There were photographs of a three

man crew sailing a large yacht, the I FORGOT,

in apparently tropical waters; and of men

sporting a large rifle, holding wads of plant

material that looked like marijuana, and

sitting on large bales. Several photographs

showed large amounts of money.

White asked Gerald Schmeer to hold the film

and called his supervisor, Edward Woodin.

Woodfin arrived within 30 minutes and examined

the test prints. The officers asked Gerald

Schmeer to make a fourth set of prints for the

police and to take down the license number

of LaFrance's car. When LaFrance returned to

the shop, he picked up the developed film and

the three sets of prints he had ordered. The

fourth set of prints were given to the police

that same day.

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II.

THE LAW

Defendants move to suppress all evidence

obtained as a consequence of the seizure and

search of the vessel I FORGOT. They also seek

to suppress the fourth set of color prints

which were obtained by the police from Sea

Mist Photo Finishing. They contend that

their Fourth Amendment rights were violated

because there existed no exigent circum-

stances to excuse the warrantless seizure

and search of the vessel and because a

warrant was required in order to obtain the

color prints.+ The Court finds no merit

in defendants’ contentions.

The Fourth Amendment protects only those

who have a “legitimate expectation of privacy "

in the premises searched or the property seized.

I7 Defendant LaFrance also had moved to suppress

all evidence obtained in a search of his residence

in Orleans, Massachusetts on January 14, 1980.

The Government has represented it does not intend

to use any of the items seized. The parties

presented no evidence or argument concerning that

seizure. Accordingly, it is not necessary to

rule upon that motion. :

3

*

al

Rawlings Vv. Kentuc ye 448 U.s. 98, 103-06

(1980); Rakas v. Illinois, 439 U.S. 128, 130-

31 n.1 140, 148-49 (1978). The evidence

Clearly establishes that defendants did not

have such a legitimate privacy expectation

in either the vessel or the photographs

sufficient to support their Fourth Amendment

challenges.

A. _The Vessel

Defendants have failed to show a sufficient

proprietary or possessory interest in the vessel

to support their claim of a feasonable expectation

of privacy therein.

Defendants established no property interest

in the I FORGOT at the time it was seized.?

They did not own the vessel, which was owned by

U.S. Northeast Leasing Co. The only legal interest

defendants could claim in the vessel derives from

the lease which Taylor signed. Under the terms

property interests are not dispositive

of the issue, are relevant to consideration

in determining one's reasonable and legitimate

st 105-067. fakas ¥. mer v- Kentucky supra

at ; Po ' nois, Supra 4 -44 F.

n. 12, 149-50 n.

-12-

of this lease, however, the vessel was chartered

for a three week period. The lease was dated

July 20, 1979. Although the effective date

of the charter was not specified in the docu-

ment itself, Taylor testified that he took

custody of the vessel on July 24, 1979. Accepting

that latter date as the effective date of the

charter, the lease had expired and defendants'

leasehold interest had terminated long before

the discovery of the vessel on September 7, 1979.3

e ts suggest that their right to the

use of the vessel continued beyond the expiration

date of the lease under the doctrine of demurrage

As defined by Black's Law Dictiona 519 (4th

ed. 1957), demurrage is

[t]he sum which is fixed by the contract of

carriage or which is allowed, as renumeration

to the owner of a ship for the detention of

his vessel beyond the number of days allowed

by the charter party ...for sailing.

Even assuming that defendants derived corres-

ponding possessory rights vis-a-vis all but the

rightful owner of the vessel under this doctrine

such a right would merely bring the Fourth Amendme!

analysis to the threshold inguiry of whether they

nonetheless had a legitimate expectation of pri-

vacy therein. A person with a right to possess

an item can use it in such a way as to forfeit

a legitimate expectation of privacy therein.

See uited States v. Miller, 589 F.2d 1117, 1131

(lst Cir.) cert. : 0 U.S. 958 (19790.

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Defendants failed to show a possessory interest

in the vessel at the time it was discovered. The

evidence discloses that they had abandoned

the vessel. Abandonment is primarily a question

of intent which may be inferred from “words

spoken, acts done, and other objective facts.”

United States v. Colbert, 474 F. 24174, 176

(5th Cir. 1973)(en banc). See United States

v. Miller, supra, note 3, at 1131. In the

instant case, the defendants’ actions and the

other objective facts cénclusively establish

abandonment.

The vessel was discovered hard aground on

ledge in an unpopulated area along the Maine

coast. There was no crew on board and no

sign of anyone along the shore. There were

no linens on the beds; no personal effects

of any kind on the boat; and only a few scraps

of food in the cabin. There was no message

anywhere on the vessel and on other indication

that the crew intended to return. The vessel

was littered throughout with marijuana debris,

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ae

ite: = . = o Bs

suggesting that the vessel's cargo had been

unloaded and the vessel then left behind on

the rocks.‘ Although watching from the shore

Gefendants made no attempt to claim the vessel

while the fishermen were salvaging it. The

objective facts negate any plausible inference

that defendants intended to return to the

vessel.

Defendants maintain that evén if the objective

facts justify a finding of abandonment, such

abandonment was “involuntary”. This argument

is based upon the contention that defendants

were forced by circumstances not to claim the

vessel in order to avoid arrest. See, Walter

vy. United States, 447 U.S. 649, 658 n.11 (1980).

Taylor testified that although he, Twomey and

LaFrance were hiding in the woods close to

shore and witnesses the salvaging of the I

FORGOT, they did not lay claim to the vessel

out of fear that the Coast Guard would soon

arrive and they would be inviting arrest.

Taylor further testified that he hitchhiked

(pe Pentre grofflee pon ao

of a heavy storm the previous night.

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to Sorrento to claim the vessel once it

had been towed away, but upon arriving at

the harbor was deterred from coming forward

by the presence of the police. Defendants

argue that their subjective intent was not

to abandon the vessel and they were pre-

vented from asserting ownership by the

iminent threat of arrest.

The Court rejects this argument. The

suggestion that defendants were deterred

by the prospect of the Coast Guard's arrival

while the fishermen were salvaging the

vessel or by the existence of police at

Sorrento harbor is unpersuasive. “Police

pursuit or the existence of a police investi-

gation does not of itself render abandonment

involuntary." United States v. Colbert, supra

at 176. In the instant case defendants failure

to claim the I FORGOT occurred substantially

prior to police seizure and search of the

vessel. See United States v. Colbert, supra

at 177; United States v. Masiello, 491 F.

Supp. 1154, 1160-61 (D.S.C. 1980). Defendants

had ample opportunity to assert an interest

in the vessel long before the police or the

Coast Guard were on the scene - at the time

the fishermen first appeared and tended to

the vessel. Defendants watched the fishing

boats for several hours without making an

effort to claim the I FORGOT. By failing

to assert control over the vessel, defendants

forfeited any legitimate expectation of

privacy in the vessel. See United States

v. Miller, supra at 1131. It is settled law

that one has no standing to challenge a search

or seizure of property he has voluntarily abandone:

See e.g., Abel v. United States, 362 U.S. 217,

240-41 (1960) .

B. THE PHOTOGRAPHS

Defendants have failed to show a reasonable

expectation of privacy in the film LaFrance de-

livered to Sea Mist Photo for processing.

"“[T)he application of the Fourth Amendment

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eee wT

depends on whether the person invoking its

protection can claim a ‘justifiable’, a '

*reasonable', or a ‘legitimate expectation

of privacy’ that has been invaded by govern-

ment action.” Smith v. Maryland, 442 U.S.

735, 740 (1979); Rakas v. Illinois, supra,

at 143-44 n. 12. In Order to merit con-

stitutional protection, an individual's

subjective expectation of privacy must be

"one that society is prepared to recognize

as ‘reasonable.'" Katz v. United States,

389 U.S. 347, 361 (1967) (Harlan J., con-

curring). Even if LaFrance had a subjective

expectation of privacy in the film given to

Sea Mist Photo for development, such an ex-

pectation was not reasonable.

LaFrance voluntarily gave a film depicting

apparent criminal activity to a commerical

establishment for development. In so doing,

he necessarily’ was aware that the employees

of Sea Mist Photo would view the prints of

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that film. He could have had no reasonable

expectation of privacy in information thus

voluntarily conveyed and necessarily so ex-

posed to the employees of a commercial estab-

lishment. See Smith v. Maryland, supra, at

743-44; United States v. Miller, 425 U.S.

435, 442-43 (1976); Couch v. United States,

409 U.S. 322, 335-36 (1973). Moreover, in

giving film depicting apparent criminal

activity to a commercial establishment for

development, LaFrance “[took]) the risk, in

revealing his affairs to another, that the

information will be conveyed by that person

to the Government.* United States v. Miller

supra, at 443.5 One participating in illegal

5/ The Court rejects LaFrance's testimony that

told him that he would be the only one

to see the film. Although Schmeer did not speci-

fically recall his conversation with LaFrance,

his unegquivécal testimony was that it was not

his practice to give assurances of confidentiality

to customers and that he had never done so.

In any event, the Supreme Court:

has held repeatedly that the Fourth Amend-

ment does not prohibit the obtaining of

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—

y »

as +

:

“

activities cannot reasonably expect that

Giscloures made to third persons will enjoy

constitutional protection simply because of

an aséumption that the information will not

be revealed to the government. Smith v.

Maryland, supra; United States v. Miller,

745, 751-52(1971); Hoffa v. United States,

385 U.S. 293, 302 (1966); Lopez v. United

States, U.S. 427 (1963). The police

"seized" no more than Schmeer had observed

and inadvertently revealed to White.

iil.

ORDER

Defendants’ motions to suppress evidence

are in all respects denied.

IT“IS SO ORDERED.

Dated this 10th day of June 1981.

ti .

orma revealed to a thifd party and

ed by him to Government authorities,

even if the information is revealed on the

assumption that itwill be used only for a

ree ngh oye yao and the confidence placed

in the will not be betrayed.

a sSupre at 443.

APPENDIX C

CONSTITUTIONAL PROVISION

Fourth Amendment, United States

Constitution provides:

The right of the people to be secure in

their persons, houses, papers and effects,

against unreasonable searches and seizures,

shall not be violated, and no warrants shall

issue, but upon probable cause, supported

by oath or affirmation, and particularly

Gescribing the place to be searched, and

the versons or things to be seized.

ee -

21 U.S.C. §841. Prohibited acts A

Unlawful acts

(1) to manufacture, distribute, or dis-

pense, or possess with intent to manufacture,

distribute, or dispense, a controlled sub-

stance; or

i > e ry

i ae : : é

21 U.S.C. §844. Penalty for simple posses-

sion; conditional discharge

and expunging of records

for first offense

(a) It shall be unlawful for any person

knowingly or intentionally to possess a

controlled substance unless such substance

was obtained directly, or pursuant to a

valid prescription or order, from a

practitioner, while acting in the course

of his professional practice, or except

as otherwise authorized by this sub-

chapter or subchapter II of this chapter.

Any person who violates this subsection

shall be sentenced to a term of imprison-

ment of not more than one year, a fine

of not more than $5,000, or both, except

that if he commits such offense after

a prior conviction or convictions under

this subsection have become final, he

shall be sentenced to a term of imprison-

ment of not more than 2 years, a fine of

not more than $10,000, or both.

(b) (1) If any person who has not

previously been convicted of violating

subsection (a) of this section, any

other provision of this subchapter or

subchapter II of this chapter, or any

other law of the United States relating

to narcotic drugs, marihuana, or de-

pressant or stimulant substances, is

found guilty of a violation of sub-

section (a) of this section after trial

or upon a plea of guilty, the court

may, without entering a judgment of

guilty and with the consent of such

person, defer further proceedings and

place him on probation upon such

reasonable conditions as it may

require and for such period, not

to exceed one year, as the court may

prescribe. Upon violation of a

condition of the probation, the court may enter

an adjudication of guilt and proceed as other-

wise provided. The court may, in its dis-

cretion, dismiss the provesdings against such

person and discharge him from probation before

the expiration of the maximum period pre-

scribed for such person's probation. If

during the period of his probation such

person does not violate any of the con-

Gitions of the probation, then upon ex-

piration of such period the court shall dis-

charge such person and dismiss the pro-

ceedings against him. Discharge and dis-

missal under this subsection shall be with-

out court adjudication of guilt, but a non-

public record thereof shall be retained

by the Department of Justice solely for

the purpose of use by the courts in deter-

mining whether or not, in subsequent pro-

ceedings, such person qualifies under

this subsection. Such discharge or dis-

missal shall not be deemed a conviction

for purposes of disqualifications or

disabilities imposed by law upon convic-

tion of a crime (including the penalties

prescribed under this part for second

or subsequent convictions) or for any

other purpose. Discharge and dismissal

under this section may occur only once with

respect to any person.

(2) Upon the dismissal of such person

and discharge of the proceedings against

him under paragraph (1) of this sub-

section, such person, if he was not over

twenty-one years of age at the time of the

offense, may apply to the court for an

order to expunge from all official

records (other than the nonpublic records

to be retained by the Department of

Justice under paragraph (1)) all record-

ation relating to his arrest, indictment

or information, trial, finding of guilty,

and dismissal and discharge pursuant to

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|

this section. If the court determines, after ‘

hearing, that gpd perc was dismissed and

the proceedings against him discharged and

that he was not over twenty-one gn of

age at the time of the offense, it shall

enter such order. The effect of such

order shall be to restore such person,

in the contemplation of the law, to the

status he ied before such arrest or

indictment or information. No person as

to whom such order has been entered shall

be held thereafter under any provision

of any law to be guilty or perjury or

otherwise giving a false statement by

reason of his failures to recite or

acknowledge such arrest, or indictment

or information, or trial in response to

any inquiry made of him for any purpose.

APPENDIX P

21 U.S.C. §846. Attempt and conspiracy

Any person who attempts or conspires to

commit any offense defined in this sub-

chapter is punishable by imprisonnent or

fine or both which may not exceed the

maximum punishment prescribed for the

offense, the commission of which was

the object of the attempt or conspiracy.

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