Opinion
Case No. 2:99-CR-589C
December 17, 2001
ORDER DENYING ESEAN MORRIS' SECOND MOTION TO SUPPRESS EVIDENCE
The Federal Grand Jury for the District of Utah returned a superceding indictment charging Defendants Esean Morris and Sabrina Prince with a number of drug crimes. Mr. Morris filed a motion to suppress evidence found during a warrantless search of his vehicle. The court denied Mr. Morris' motion on November 21, 2000. Mr. Morris filed a second motion seeking to suppress evidence found during a search, carried out pursuant to a warrant, of a residence in St.George, Utah. Because the court concludes that Mr. Morris did not have a reasonable expectation of privacy in the area searched, his motion is denied.
FINDINGS OF FACT
Garen Brecke and Richard Farnsworth are police officers with the St. George Police Department in St. George, Utah. Both officers were assigned as detectives to the Washington County Drug Task Force. In the early morning of June 24, 1999, the two officers were on property located at 3000 East and 1300 South, St.George, Utah, watching a modular home ("the residence") located on the property. Both the property and the residence were owned by the L.D.S. Church. The officers had information that a methamphetamine laboratory was inside the residence.
Brecke soon left to obtain a warrant to search the residence, while Farnsworth remained. While waiting for Brecke to return with the warrant, Farnsworth saw a man, later identified as Joe Puffer, come onto the property. Farnsworth approached Puffer and identified himself as a police officer. Puffer stated that he was the manager of the property. A third man, Jerry Swanger, appeared and identified himself as the occupant of the residence.
Neither Puffer nor Swanger testified at the evidentiary hearing held on June 18, 2001. Morris' counsel objected to the receipt of testimony concerning statements made by them on the ground that it was hearsay. However, in a hearing on a motion to suppress evidence, hearsay evidence can be admitted. See, U.S. v.Radatz, 447 U.S. 667, 679(1987); U.S. v. Merritt, 695 F.2d 1263, 1269 (10th Cir. 1982), cert. denied 461 U.S. 916 (1983).
Farnsworth questioned Swanger, and Swanger told him that he lived alone in the house. When Farnsworth told Swanger that he believed there was a methamphetamine laboratory in the home, Swanger admitted that there was. Farnsworth asked Swanger for permission to search the residence, and Swanger handed Detective Farnsworth a key to the residence and told him, "It's all in there. Here, go ahead."(Transcript of June 28, 2001 Suppression Hearing at 11 [hereinafter "Tr.".)
Farnsworth did not enter the residence because he knew that Brecke was in the process of obtaining a search warrant. Farnsworth did, however, use the key to unlock the front door of the residence. Farnsworth opened the door "believing there was a meth lab in there, . . . to start the ventilation process." (Id. at 11.)
Farnsworth called Detective Brecke by telephone and told him that Swanger had admitted that a methamphetamine laboratory was inside the residence. Farnsworth also told Brecke that Swanger had given him consent to search the house. (Tr. at 11, 22.) Brecke told Farnsworth that he would include that information in the affidavit he was then writing in support of a search warrant for the residence.
Judge Rand Beacham of the Fifth District Court for the State of Utah issued the search warrant on June 24, 1999. (The Affidavit and the warrant were received as Ex. A at the June 28, 2001 hearing.) When Brecke returned, he, Farnsworth and other law enforcement officers executed the search warrant. During the search of the residence, in a room that was locked with a deadbolt lock, the officers discovered various items which they seized as evidence of the manufacture of methamphetamine.
During the search of the residence, the officers found no evidence that Esean Morris lived there. (As described previously, Swanger stated that he lived alone in the residence.) In an earlier interview with Joe Puffer, the manager of the property, Puffer told Special Agent of the D.E.A. Bradley Cox that he did not know Morris and that Morris would have had to receive Puffer's permission to live in the residence. According to Puffer, only Swanger had permission to live there.
The night before the search of the residence, Esean Morris was arrested. Officers used a key taken from Morris when he was arrested to unlock the deadbolt to the room in where items alleged to be evidence of methamphetamine manufacturing were found. On June 24, 1999, the day of the search, Swanger told Farnsworth that it was Morris who had begun the methamphetamine laboratory in the residence. According to Swanger, Morris had access to the room where the methamphetamine was manufactured and Swanger did not. Swanger claimed that he had allowed Morris to operate the laboratory in the residence because Morris had blackmailed him.
At the hearing, Morris did not testify and presented no evidence, other than the evidence concerning the key that has been discussed, that he lived at the residence.
CONCLUSIONS OF LAW
To challenge the legality of a search or seizure, a defendant must first establish standing by showing that his own Fourth Amendment rights have been violated. United States v. Marchant, 55 F.3d 509, 512 (10th Cir. 1995); United States v. Gordon, 168 F.3d 1222, 1226 (10th Cir. 1999). In determining whether a defendant has successfully met that burden, a court must inquire whether the defendant has established a subjective expectation of privacy in the property searched which society would recognize as objectively reasonable in light of the surrounding circumstances. Marchant, 55 F.3d at 513. "'Important considerations include ownership, lawful possession or lawful control of the place searched.'" Id. (quoting United States v. Abreu, 935 F.2d 1130, 1133 (10th Cir. 1991)).
Here, the only evidence that Morris has presented is that, when he was arrested, he was in possession of a key to a locked room in the Swanger house. This fact is not sufficient to establish that Morris possessed an objectively reasonable expectation of privacy in the residence or the room, particularly in light of the evidence that Morris obtained use of the room through illegal means, was not given permission to live in the residence (and apparently did not) and used the room only for the operation of a methamphetamine laboratory. See United States v. Gordon, 168 F.3d 1222, 1226-27 (10th Cir. 1999) (holding that defendant who possessed key to motel room had no standing as room registered to someone else, no evidence defendant helped pay for the room, defendant had been present in room for short time and had been present for purpose of conducting drug business); see also United States v. Conway, 73 F.3d 975, 979 (10th Cir. 1995) (defendant must present evidence of legal entitlement to possession before challenging a search).
Because Morris has failed to meet his burden of showing that he had a reasonable expectation of privacy in the Swanger home, he is precluded from challenging the legality of the search.
Although he did not argue the issue in his memorandum in support of his second motion to suppress, Morris alleged previously that certain tape recordings made by confidential sources before the execution of the search warrant on June 24, 1999, were illegally obtained and should be excluded on that ground. Again, Morris' claim must fail because the tapes were lawfully made and turned over to law enforcement.
The federal Wiretap Act, Title III of the Omnibus Crime Control and Safe Street Act of 1968, prohibits the unauthorized interception and disclosure of oral communications. 18 U.S.C. § 2511. For purposes of the Act, "oral communications" are defined as "any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation." Id. § 2510(2). Under the plain language of that definition, if a defendant has no reasonable expectation of privacy regarding his or her conversation, the statements are not "oral communications" under the Act and the Act's prohibitions are not implicated. United States v. Longoria, 177 F.3d 1179, 1181-82 (10th Cir. 1999).
Courts examining the application of the Wiretap Act have used a two-part inquiry: 1) did the defendant manifest a subjective expectation of privacy, and; 2) if so, is society is prepared to recognize that expectation as reasonable? Longoria, 177 F.3d at 1181-82. While a defendant's subjective expectation of privacy is a question of fact, whether society is prepared to recognize that expectation as reasonable is a question of law for the court. See id. at 1182. Here, the issue is whether Morris' expectation that a confidential source would not disclose the substance of his conversation is one which society would objectively consider reasonable. The Court of Appeals for the Tenth Circuit has found that it is not.
In United States v. Longoria, 177 F.3d 1179 (10th Cir. 1999), the defendant argued that tape recordings made by a confidential informant of certain conversations regarding a drug smuggling operation violated Title III. In that case, the informant, under FBI supervision, surreptitiously recorded conversations occurring at a tire shop, both on video and audio tape. Id. at 1181. In those tapes, the defendant spoke with co-defendants in Spanish, a language the informant did not understand. Id. at 1182. The defendant argued in his motion to suppress that he knew the informant could not understand Spanish and therefore, he had a reasonable expectation of privacy. Id. The district court disagreed and the Tenth Circuit affirmed.
In Longoria, the court based its holding on a long-standing principle that "'[t]he risk of being overheard . . . is . . . inherent in the conditions of human society. It is the kind of risk we necessarily assume whenever we speak.'" 177 F.3d at 1182 (quoting Hoffa v. United States, 385 U.S. 293, 303 (1966)). Stating that "[t]his principle applies with equal force to statements knowingly exposed to government informants," the court noted that "one contemplating illegal activities assumes the risk that his companions may be reporting to the police and has no reasonable expectation of privacy in conversations he knowingly exposes to them." Id. at 1182-83.
Here, the evidence shows that several confidential sources, acting on behalf of the DEA, taped conversations in which they participated and turned those tapes over to Agent Brad Cox. As the Longoria opinion makes clear, anyone speaking with a confidential informant has no reasonable expectation of privacy that the informant will not disclose the conversation to police.
Moreover, while the Longoria court relied on an analysis based on the definition of "oral communications" and a defendant's reasonable expectation of privacy, other provisions of the Wiretap Act specifically allow consensually monitored oral communications by informants working for police:
It shall not be unlawful under this chapter for a person acting under color of law to intercept a wire, oral, or electronic communication, where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception.18 U.S.C. § 2511(2)(c). Therefore, even if Morris had a reasonable expectation of privacy in the conversations, the tapes made by confidential sources working on behalf of the DEA were not illegal for purposes of Title III and may not be excluded on that ground.
ORDER
For the reasons set forth above, Esean Morris' second motion to suppress is DENIED.