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UNITED STATES v. KAHAN

October 31, 1972

UNITED STATES of America, Plaintiff,
v.
Norbert Nisan KAHAN and Bertha Limo Newman, Defendants


Motley, District Judge.


The opinion of the court was delivered by: MOTLEY

MOTLEY, District Judge.

Defendants, Norbert Nisan Kahan and Bertha Limo Newman, were indicted on November 30, 1971 in sixty-seven counts charging them with conspiracy and various substantive offenses relating to the submission and adjudication of certain applications by the Immigration and Naturalization Service of the United States [INS]. More specifically, Mrs. Newman was charged with making false statements on numerous applications which she submitted to the INS for extensions of stay on behalf of non-immigrant aliens. 18 U.S.C. § 1001. She was also charged with giving gratuities to Mr. Kahan, who was, at the time, an INS employee involved in adjudicating applications on behalf of aliens. 18 U.S.C. § 201(f). Mrs. Newman was alternatively charged with aiding and abetting these offenses. 18 U.S.C. § 2. Mr. Kahan was also charged under 18 U.S.C. § 1001 with making false statements on three INS documents and with accepting the money offered by Mrs. Newman for or because of his official duties. 18 U.S.C. § 201(g). In addition, Mr. Kahan was charged in two counts with perjury, which he allegedly committed on November 11, 1971 and again on November 15, 1971, by testifying falsely before a grand jury which was investigating these activities. 18 U.S.C. § 1623 (1970). During the course of the trial, two suppression motions, which should have been made before trial, were made by defense counsel. Despite the untimeliness of both motions, the court allowed a hearing on each and ruled on some from the bench. This opinion sets forth the reasons for the court's rulings on both motions.

 Decision on Motion to Suppress Evidence Obtained in Search of Defendant Kahan's Wastebasket

 Defendant Kahan moved to suppress a 3 inch by 5 inch piece of paper from a government-issued note pad and various pieces of carbon paper and other components of government forms found in a wastebasket by a criminal investigator of the INS. At the time the evidence was discovered, the wastebasket was either beside or under defendant's desk and was reserved for his exclusive use. Defendant claims that the evidence in question was obtained by the government as the result of unconstitutional searches and seizures. The court agreed and, therefore, the challenged items were not admitted into evidence.

 The items at issue were seized by the criminal investigator on May 17, 1971 and June 4, 1971 during the course of a search of the wastebasket. Searches of defendant's wastebasket had been made on every weekday from mid-March 1971 to June 4, 1971 and continued in like manner through November, 1971. On each day, the search was carried out in the late afternoon after the defendant had left the office for the day. The searches were conducted as part of a criminal investigation of defendant which had begun many months earlier. The express purpose of the investigation was to "determine whether he [Kahan] had unlawfully conspired with the defendant Newman to defraud the INS and to violate federal law in connection with the performance of his official duties." [Government's Memorandum of Law 2.] At no time did the government investigator obtain a search warrant to authorize any of the searches of defendant's wastebasket. However, the INS investigator did conduct the searches with the consent of defendant's supervisor in the office who was also involved in the investigation.

 The issue for the court involved the resolution of three interrelated questions. The first question is whether the actions of the investigator, as described above, constituted "searches and seizures" within the meaning of the Fourth Amendment. See Terry v. Ohio, 392 U.S. 1, 16, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). Second, if they did, does defendant have standing to object to them? See Jones v. United States, 362 U.S. 257, 80 S. Ct. 725, 4 L. Ed. 2d 697 (1960). Finally, if defendant can properly raise the Fourth Amendment issue, were the searches of the wastebasket and the seizure of the items, in the absence of a warrant, "unreasonable" by Fourth Amendment standards and, therefore, unconstitutional? See Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967).

 Ordinarily, Fourth Amendment problems arise in the context of a search of the person or his property. In such situations, it is clear that the person, if he does not consent to the search or seizure, is protected by the Fourth Amendment. And the government must justify its search either on the ground that it was made pursuant to a valid search warrant or that it was within one of the specifically established and well-defined exceptions to the warrant requirement. Katz, supra, at 357, 88 S. Ct. 507.

 At times, however, there is the question whether a search has taken place at all, so that the person can claim Fourth Amendment protection. This question is often confused with the question of whether the circumstances of the search fall within one of the well-defined exceptions. *fn1" For example, "what a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection." Katz, supra, at 351, 88 S. Ct. at 511. Similarly, where an officer is authorized to make an inventory of a person's property which is in police custody for the purpose of protecting the property, the officer may seize objects which are in plain view without violating the Fourth Amendment prohibition. Harris v. United States, 390 U.S. 234, 88 S. Ct. 992, 19 L. Ed. 2d 1067 (1968). See Coolidge v. New Hampshire, 403 U.S. 443, 466, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971) (Stewart, J., plurality opinion) and cases cited therein. The Supreme Court has also held that no Fourth Amendment search takes place when a caseworker makes a home visit under the Aid to Dependent Children program in New York. Wyman v. James, 400 U.S. 309, 91 S. Ct. 381, 27 L. Ed. 2d 408 (1971).

 This court finds that, in the circumstances presented by this case, the activity of the government agent clearly constituted a Fourth Amendment search. The criminal investigator's express purpose in rummaging through the wastepaper basket was to obtain evidence which could be used to prove the defendant guilty of a crime. This case is thus in stark contrast to Wyman v. James, supra, at 317-318, 91 S. Ct. 381, where the Supreme Court's holding that no search had occurred turned precisely on the absence of "the traditional criminal law context." Nor is there any contention that the contents of the receptacle were in plain view and, therefore, within the exception carved out by the language in Katz, supra.

 This is not a case where an office supervisor or fellow employee in a government office is looking for some needed document or record and inadvertently happens upon incriminating evidence in the desk or wastebasket of another employee. Nor is it a situation where a supervisor is inspecting the area used by a subordinate in order to examine his work or to evaluate his performance on the job. There is no doubt that the government should be able to manage its agencies and offices effectively and without undue restrictions on the supervision of its employees. What would be normal in the supervision and control of employees in a private business should be allowable in government offices as well. Thus, to assure efficiency and honesty, government supervisors have authority to oversee the work of their employees. However, when it comes to a specifically focused investigation of the suspected criminal activities of an employee in the course of his employment, it is obvious that the government, as employer, stands in a position much different from that of a private organization. If a private employer suspects misconduct on the part of an employee, he will not ordinarily conduct an investigation to substantiate criminal charges against him. Rather, he will simply fire that employee. If any private investigation of criminal conduct takes place at all, it will usually be for the purpose of retrieving the employer's property or correcting his accounts. In any event, the Fourth Amendment does not apply to such private action.

 In contrast, when a government supervisor begins an investigation of suspected criminal activities of an employee in the course of his work, the supervisor's role is no longer that of a manager of an office, but that of a criminal investigator for the government. The purpose of the supervisor's surveillance is no longer simply to preserve efficiency in the office. It is specifically designed to prepare a criminal prosecution against the employee. In that case, searches and seizures by the supervisor or by other government agents are governed by the Fourth Amendment admonition that a warrant be obtained in the absence of exigent circumstances. There is no dispute that this type of ongoing criminal investigation of Mr. Kahan occurred in this case and, hence, the intrusion into his wastebasket must be considered a Fourth Amendment search.

 However, the fact that a search did take place does not automatically give defendant standing to raise the Fourth Amendment issue. Jones v. United States, supra. A defendant can waive his Fourth Amendment rights by voluntarily consenting to a search of his person or property. No such consent was given in this case. Moreover, a defendant may lose his Fourth Amendment standing for other reasons as well, since the "capacity to claim the protection of the Amendment depends . . . upon whether the area [searched] was one in which there was a reasonable expectation of freedom from governmental intrusion." Mancusi v. DeForte, 392 U.S. 364, 368, 88 S. Ct. 2120, 2124, 20 L. Ed. 2d 1154 (1968); Katz, supra.

 In DeForte, the Court held that a union official had Fourth Amendment standing to object to a warrantless search of a union office which he shared with other union officials. DeForte would be controlling here on the issue of standing, if it were not for three distinguishing circumstances in this case. First, Mr. Kahan was working in a government office as opposed to a private office. Second, his supervisor in the office consented to the search of his wastepaper basket. *fn2" Third, the fact that the evidence was obtained from a wastepaper basket raises certain additional problems.

 This court can see no distinction between a search of a government office specifically for the purpose of uncovering incriminating evidence and a similar search of a private office. Certainly, government employees have as much reason as private employees to expect that their desks and their wastebaskets will be free from the invasion of criminal investigators of the government. What a person "seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected." Katz, supra, at 351, 88 S. Ct. at 511. Perhaps it is even more true in the case of a wastebasket than of a desk that an employee expects that its contents will be left alone by others. Of course, this observation applies to government employees, as this court, its clerks, and secretaries will attest.

 The government contends that, since defendant was an INS employee, "his desk was subject to search without a warrant for evidence of criminal activity connected with his employment." [Memorandum at 3-4] United States v. Collins, *fn3" a Second Circuit Case, is relied upon in support of this proposition. The case is not on point. Although there was dicta in that decision which stated broadly that the search involved there "was a constitutional exercise of the power of the Government as defendant's employer, to supervise and investigate the performance of [the defendant's] duties as a Customs employee," the Court of Appeals for this Circuit hardly meant to imply that every office search in the course of investigating the work of a Customs employee would be immune from challenge by that employee. 349 F.2d at 868. Rather, the Court based its decision on the circumstances of that case and concluded that the search was "reasonable within the intendment of the Fourth Amendment." *fn4" Id. Indeed, the Court's analysis assumed sub silentio that the Customs employee did have standing to raise the Fourth Amendment claim. Furthermore, although Collins was a pre- Katz decision, it did implicitly recognize that the determinative issue in passing on Fourth Amendment standing is not whether a given "area" is "constitutionally protected," but whether the claimant's reasonable expectation of privacy was encroached upon by the Government. See DeForte and Katz, supra. The crux of the Collins opinion was that "the authority of [the Customs and postal agents] to search the public areas of a government building in order to retrieve a mail package or its contents and to investigate their disappearance must be no less [than their broad authority to open incoming mail.]" 349 F.2d at 868. (Emphasis supplied.) The Court went on to note that defendant's work jacket, which was the object of the challenged search, was hung in "his supervisor's outer office, a public area which was not shown to be segregated for private purposes from the other work areas of the Mail Division." Moreover, the Court specifically reserved judgment on the question of whether the search would have been constitutional had it been of "a locker devoted to [defendant's] exclusive use." Id. at 868 n. 6.

 The concept of privacy is paramount in deciding a claimant's standing to invoke the protection of the Fourth Amendment. Courts should be hesitant to narrow that concept because, in this society, the sphere of personal privacy has become more and more confined. In a real sense, if courts begrudge the scope of the privacy expectations of the populace, not only will there be less and less freedom of the person, but his or her expectations of freedom will wither and with them the values of individuality and privacy from increasingly intrusive governmental control.

 The Collins decision also pre-dated several significant Supreme Court cases involving the constitutional rights of governmental employees. The Supreme Court has asserted that "public employees are entitled, like all other persons, to the benefit of the Constitution. . . ." Uniformed Sanitation Men Association v. Commissioner, 392 U.S. 280, 284, 88 S. Ct. 1917, 1920, 20 L. Ed. 2d 1089 (1968). See Gardner v. Broderick, 392 U.S. 273, 88 S. Ct. 1913, 20 L. Ed. 2d 1082 (1968); Garrity v. New Jersey, 385 U.S. 493, 87 S. Ct. 616, 17 L. Ed. 2d 562 (1967). While each of these cases involved the Fifth Amendment privilege against self-incrimination, they imply, if they do not mandate, that a public employee retains the shield of the Fourth Amendment while employed in a government office. See United States v. Hagarty, 388 F.2d 713, 717-718 (7th Cir. 1968). At the least, these cases make clear that the fact that defendant was employed in a government office does not distinguish his case from Mancusi v. DeForte for the purpose of Fourth Amendment standing.

 In regard to the second characteristic of this case which distinguishes it from DeForte, consent to the search by defendant's INS supervisor, the court does not believe that the supervisor's consent in the situation presented here could bar defendant's challenge to the search. In DeForte, the Supreme Court remarked, in dicta, that "the Union or some of its officials might validly have consented to a search of the area where the records were kept." 392 U.S., at 369-370, 88 S. Ct., at 2124. (Emphasis supplied) This statement reflects the well-established principle that in some situations involving the joint ownership or control of property, one party in possession may validly consent to a governmental search and thereby negate the opportunity for objection to the search on Fourth Amendment grounds by another party against whom evidence is uncovered. See, e.g., Frazier v. Cupp, 394 U.S. 731, 89 S. Ct. 1420, 22 L. Ed. 2d 684 (1969). However, the question in each case remains whether ...


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