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July 9, 1980


The opinion of the court was delivered by: MACMAHON

Defendants Walter Burnett III and Thomas Cook moved before the Honorable Neal P. McCurn to suppress statements overheard by government agents in two motel rooms in Burlington, Vermont, and Plattsburgh, New York, as well as marijuana later seized from a van leased by Cook. *fn1" Judge McCurn referred the suppression motion to us.

We held a hearing on May 29 and June 16-18, 1980 and denied the motion prior to trial. *fn2" This opinion constitutes our findings of fact and conclusions of law with respect to the suppression motion.

 The facts relevant to this motion, as set out in the papers and developed at the hearing, appear as follows:

 On March 19, 1980, Carl Kipp Burnett, who is Walter Burnett's brother and also a co-defendant in this case, was observed crossing the border between Canada and the United States into Vermont in a dark brown or black Dodge van with Ontario license plates. Customs officials stopped and searched the vehicle and found two secret compartments which they were unable to inspect because they lacked a specially designed tool necessary to open them. No contraband was found elsewhere in the van, but, nevertheless, United States Customs alerted agents of the Federal Drug Enforcement Administration who placed the van under surveillance after it had crossed the border into Vermont.

 On March 20, Carl Kipp Burnett drove the van to the Holiday Inn in Burlington. After parking the van, he went to a room rented to his brother Walter. DEA agents rented an adjoining room and removed a plastic face plate from an electrical outlet in the wall of their own room in an attempt to overhear the suspects' conversations. Although the agents could overhear Walter's telephone conversations and other sounds coming from the neighboring room, nothing of a criminal nature came to light. Later that day, Walter and Carl Kipp Burnett drove to the Burlington airport where Carl Kipp boarded a commercial flight; Walter returned to his room at the Holiday Inn.

 On March 21, Walter Burnett drove the van to Plattsburgh, New York, where he checked into Room 458 of the Holiday Inn. This time, the agents rented both Room 460, which had a common wall with Room 458, as well as a room across the hall from which they could observe the Dodge van in the motel parking lot.

 The wall separating Room 458 from Room 460 was constructed of masonry approximately eight inches thick. There was no door connecting the rooms. Behind the headboard of the bed in the agents' room, some six to twelve inches above the floor, was a plastic face plate through which telephone wires led into the wall. Apparently there was a similar telephone face plate directly opposite leading to Burnett's room. The agents moved the bed out of the way and used a screwdriver to remove the plate from their own side of the wall. For the next several days, they attempted to overhear Burnett's conversations by taking turns lying on the floor and placing an ear near the opening in the wall where the plate had been removed. At no time did the agents use any electronic device to record sounds coming through the wall, nor did they commit a technical trespass into Burnett's room or place anything inside the wall itself.

 An acoustical engineer, qualified as an expert witness, testified at the suppression hearing that with the telephone face plate in place no ordinary conversation in Room 458 could possibly be overheard and understood in Room 460. He also testified that when the plate was removed, speech of a normal conversational volume from various places in Room 458 would be only partially intelligible to a listener in Room 460 with his ear close to the opening.

 The substance of what the DEA agents overheard from Burnett's room is important since it bears on the existence of probable cause to arrest the defendants and later search the van. The key conversation occurred when Thomas Cook and Hermann Wallner entered Walter Burnett's room on March 24. Special Agent Rabourn testified that a conversation among all three ensued concerning the border stop of Carl Kipp Burnett on March 19; in particular, one of them said they could have been convicted of conspiracy if the residue in the traps had been discovered. There was also talk of western Canada being "dry" and that they could make quite a bit of money. Before leaving the room, Cook asked Walter Burnett which one of the traps the "stuff" was in, and Burnett replied that it was in the trap underneath the stove. All three individuals then went out to the parking lot where Cook and Walter Burnett opened the Dodge van and removed some of Walter's clothing. At that point they were all arrested.

 After the defendants were in custody, Agent Rabourn drove the van to a United States Customs post in Rouses Point, New York, but no search of the vehicle was made at that time. Later the same day, while still under the control of government agents at Rouses Point, the van was inspected by Champion, a dog specially trained to detect controlled drugs. Under the supervision of a Customs dog handler, Champion first toured the outside of the vehicle where he reacted positively to two tanks beneath the carriage. The van was then opened and Champion taken inside where the dog reacted positively to the stove and a gold metal suitcase. No warrant was obtained in connection with this dog search.

 Relying largely on the overheard conversation and the results of the dog search, the government then obtained a warrant to search the van, which led to the discovery of forty pounds of marijuana hidden in a secret compartment under the stove. Cook and Walter Burnett now invoke the Fourth Amendment's prohibition against unreasonable searches and seizures in asking the court to suppress both the statements made in Burnett's hotel rooms and the marijuana later seized in the van.

 In Rakas v. Illinois, 439 U.S. 128, 99 S. Ct. 421, 58 L. Ed. 2d 387 (1978), the Supreme Court reaffirmed the principle that "Fourth Amendment rights are personal rights (which, like some other constitutional rights,) may not be vicariously asserted." *fn3" Thus, the Court held that the question in Fourth Amendment cases which had previously come under the rubric of standing since Jones v. United States, 362 U.S. 257, 80 S. Ct. 725, 4 L. Ed. 2d 697 (1960), should instead be determined by addressing the substantive issue of whether the proponent of a suppression motion had his own Fourth Amendment rights infringed by a challenged search or seizure. This in turn depends on whether the movant himself had a reasonable expectation of privacy in the area searched.

 We find that Cook lacked any reasonable expectation of privacy in a hotel room which was neither registered in his name nor occupied by him. Although "legitimately on the premises" by virtue of having been invited in by Burnett, Cook had never been in the room before his brief visit on March 24, and on that occasion he was in the room for only a few moments before agents overheard the incriminating statements. Considering that a hotel room gives even its registered occupant only a very limited reasonable expectation of privacy, *fn4" we do not believe that a casual visitor, such as Cook, is afforded any protection by the Fourth Amendment under these circumstances. Accordingly, we deny his motion to suppress the conversation overheard in the Plattsburgh Holiday Inn.

 Walter Burnett, on the other hand, could reasonably expect that his privacy interest would receive at least some limited protection since he was the registered occupant of the hotel room and had actually stayed there several days. United States v. Agapito, 620 F.2d 324 (2d Cir. 1980). Unquestionably, he did in fact believe that his conversations behind the closed door of his room would remain private; the question ...

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