# Appendix — Taylor v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_0808%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1982 - **Citation:** 459 U.S. 945 ## Text 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- -3- 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. -4- = £ 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 -5- 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. -6- "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. -10- 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. -13- 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, -14- 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. -15- 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 -17- 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 -18- 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 -19- — 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 | a me tare f wipe ks,” Se | eI | 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. Lge sie emt --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_0808%3A2. Public record. Not legal advice.