The opinion of the court was delivered by: NICKERSON
Defendant was indicted for possession with intent to distribute of 230 grams of cocaine, in violation of 21 U.S.C. § 841(a)(1). He moves under the Fourth Amendment to suppress evidence seized at Apartment 1G, 139-55 35th Avenue, Flushing, New York (the Apartment), in which he had been living.
The items were seized in the Apartment pursuant to a search warrant, and the issue is whether the magistrate properly issued the warrant. The affidavit submitted to him recited that commencing October 4, 1979, detectives and other agents of the Drug Enforcement Administration conducted surveillance on the Apartment "at times by means of a high-powered telescope (i. e. a Monolux # 4352 telescope with a 22mm viewer) located in apartment 3G of 139-50 35th Avenue, Flushing, New York which was directly across the street from" the Apartment.
The affidavit then describes what was seen. At about 8:00 P.M. on October 4, 1979, the detectives observed two males and a female in the kitchen. On a table were some "baggies" and two jars labelled "Inositol", a substance used to dilute cocaine. The males, sitting near the window, were cutting off the ends of some 100 small black objects (about 4 inches tall) and emptying white powder from them into a plastic bag. They touched their faces only with the backs of their hands. Another clear plastic bag containing white powder was on the window sill. Occasionally the males drew their heads back, grimaced and waved their hands before their faces as if to disperse an offensive odor. At about 10:00 P.M. they finished the procedure and washed their hands with a honey-colored liquid. The three then departed, one of the males appearing to carry something inside his jacket.
At about 6:55 P.M. on October 10, 1979 an agent "by the same means described above" saw one of the individuals opening several bags containing white powder, sifting it through a strainer, and then placing it in smaller plastic bags.
On October 23, 1979, at about 4:50 P.M., agents "by the same means described above" observed two of the individuals empty some white powder into a clear plastic bag which they sealed with a tie.
Nowhere does the affidavit state which, if any, of the observations were made with unaided eyes. Nor does the affidavit reveal how distant the agents were from the Apartment.
In order to obtain a full record the court held a hearing at which four members of the New York City Police Department testified. They identified defendant as one of the two males and said, in substance, that with their naked eyes they saw almost everything from some 200 feet away, and that the telescope, although it was in almost constant use, was needed only to read the labels on jars and to count the number of black objects. The court granted the motion, holding that the affidavit was insufficient to support the warrant.
The Fourth Amendment to the United States Constitution reads as follows:
"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 describing the place to be searched, and the persons or things to be seized."
The court may, of course, look only to what was before the magistrate and not to what developed at the hearing. United States v. Menser, 360 F.2d 199, 203 (2d Cir. 1966). To do otherwise would make meaningless the requirement that probable cause be shown to a judicial officer before issuance of the warrant. Where information in the affidavit is based entirely on the product of an "unreasonable search" no "probable cause" for issuance is shown. United States v. Stoner, 487 F.2d 651, 653 (6th Cir. 1973).
Here, so far as the affidavit reveals, every fact critical to a showing of probable cause might have been observed exclusively through the telescope. This is not a case, such as those cited by the government, where the language of the affidavit is ambiguous and can be read to support issuance of the warrant. See, e.g., United States v. Pond, 523 F.2d 210, 213 (2d Cir. 1975), cert. denied, 423 U.S. 1058, 96 S. Ct. 794, 46 L. Ed. 2d 649 (1976). The affidavit says the telescope was used "at times" and sets forth no facts from which one may infer what those "times" were. The court must therefore address the validity under the Fourth Amendment of government use without a warrant of a high powered telescope, a matter which the Supreme Court has not yet considered.
The amendment assures "the people" that they will be secure against official investigative "tactics" which are "unreasonable". Schneckloth v. Bustamonte, 412 U.S. 218, 225, 93 S. Ct. 2041, 2046, 36 L. Ed. 2d 854 (1973). "It is thus the arbitrary and unreasonable activities of the police against which the Fourth Amendment protects." United States v. Iovine, 444 F. Supp. 1085, 1088 (E.D.N.Y.1978). As long ago as Boyd v. United States, 116 U.S. 616, 6 S. Ct. 524, 29 L. Ed. 746 (1886), it was said that the amendment protects a person not just against "the breaking of his doors, and the rummaging of his drawers" but against "the invasion of his indefeasible right of personal security, personal liberty, and private property, where that right has never been forfeited by his conviction of some public offense". 116 U.S. at 630, 6 S. Ct. at 532.
The Supreme Court thereafter appeared to retreat from that principle, holding in a series of cases that a search required a physical penetration. See, e.g., United States v. Lee, 274 U.S. 559, 47 S. Ct. 746, 71 L. Ed. 1202 (1927); Olmstead v. United States, 277 U.S. 438, 48 S. Ct. 564, 72 L. Ed. 944 (1928); Goldman v. United States, 316 U.S. 129, 86 L. Ed. 1322, 62 S. Ct. 993 (1942). However, in Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967), the court broadened the amendment's protection and found invalid a "search" without a warrant by Federal Bureau of Investigation agents who had overheard a defendant's telephone conversations after attaching an electronic listening and recording device to the outside of a public telephone booth. The court said that the Fourth Amendment "protects people, not places," and that "(w)hat a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection," but "what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected." 389 U.S. at 351, 88 S. Ct. at 511. The court held that "(t)he Government's activities in electronically listening to and recording the petitioner's words violated the privacy upon which he justifiably relied while using the telephone booth and thus constituted a "search and seizure' within the meaning of the Fourth Amendment." 389 U.S. at 353, 88 S. Ct. at 512.
If government agents are required to obtain a warrant before listening with a sophisticated monitoring device, one would suppose that the same requirement should apply to watching with a sophisticated telescope. Indeed, this is what United States v. Kim, 415 F. Supp. 1252 (D.Haw.1976), decided in circumstances indistinguishable in principle from the present case. Although there are opinions which look the other way and sustain government use without a warrant of binoculars to detect activities in private premises, Fullbright v. United States, 392 F.2d 432 (10th Cir.), cert. denied, 393 U.S. 830, 89 S. Ct. 97, 21 L. Ed. 2d 101 (1968), and Commonwealth v. Hernley, 216 Pa.Super. 177, 263 A.2d 904 (1970), cert. denied, 401 U.S. 914, 91 S. Ct. 886, 27 L. Ed. 2d 813 (1971), to "the people", including the innocent and law abiding, United States v. Garcia, 450 F. Supp. 1020, 1024 (E.D.N.Y.1978), a "high-powered" telescope is hardly less intrusive and offensive than a hidden microphone. Both devices could ...