Appeal from a judgment entered in the United States District Court for the Southern District of New York, Charles L. Brieant, Jr., Judge, convicting appellant of narcotics offenses and of knowingly making false statements to government officials. Affirmed.
Before Kaufman and Timbers, Circuit Judges, and Ward, District Judge.*fn*
This case chronicles the tragic culmination of the career of Dr. John Buettner-Janusch, one of the world's leading authorities on physical anthropology. The Government established that Dr. Buettner-Janusch, in violation of both the criminal law and his duty to the academic community, manufactured illegal drugs in his laboratory at New York University ("NYU"). Buettner-Janusch's illicit activities were first brought to light by the private investigative work of his undergraduate research assistant, Richard Macris, and a fellow Professor of Anthropology, Dr. Clifford Jolly. This appeal derives its legal significance from the Government's response to Macris's and Jolly's contentions. Deciding to eschew the customary procedure of securing a warrant to search the defendant's laboratory, the Government relied instead on the apparent authority of Macris and Jolly to consent to the investigation. We are thus faced with the difficult task of evaluating the power of third parties to permit governmental intrusion into an area which a defendant reasonably regards as private. We are of the view that the circumstances present here confirm that Macris and Jolly had the requisite authority. Accordingly, we agree with Judge Brieant that the Government's conduct did not violate the Fourth Amendment.
Because the constitutionality of an allegedly unlawful search depends to a large degree on underlying circumstances, we must set out the facts in some detail.
A grand jury filed a six count indictment on October 3, 1979, charging Buettner-Janusch with: conspiracy to manufacture and distribute LSD, methaqualone, and other controlled substances; manufacturing and possessing with intent to distribute approximately 1.2 kilograms of methaqualone; distributing and possessing with intent to distribute cylert pemoline, a controlled stimulant; conspiracy to obstruct a criminal investigation, and, in counts 5 and 6, knowingly making false statements to two Assistant United States Attorneys. Shortly thereafter, Buettner-Janusch moved to suppress certain evidence seized from his laboratory on May 17, 1979 by agents of the Drug Enforcement Administration (DEA). Judge Brieant filed three comprehensive opinions, in which he summarized five days of evidentiary hearings and discussed all of the defendant's claims.
These hearings established that in 1973, Buettner-Janusch relinquished his position as Professor of Anthropology at Duke University to become Chairman of the Anthropology Department at NYU. To accommodate the defendant's research, and to house the equipment he had brought with him from Duke,*fn1 the University remodeled a section of the fourth floor of Rufus Smith Hall. Prior to Buettner-Janusch's arrival, the front two-thirds of that floor were occupied by offices. Professor Jolly's laboratory was located at the rear of the building. During the remodeling process, the offices were eliminated. But the masonry wall that separated them from Jolly's research facility was left intact, except that the door in the middle of the wall was taken off its hinges, leaving an open passageway. After the remodeling, access to Jolly's laboratory could be gained either by passing through Buettner-Janusch's new laboratory and through the open doorway, or by using a freight elevator situated at the rear of Jolly's laboratory.
At Buettner-Janusch's invitation, Jolly and the graduate students who assisted him made frequent use of some of the equipment in the new laboratory, including the deionized water, the aspirator, the gas line, and the measuring scales. They used the rest of the new facilities less regularly; for example, Jolly could not remember using the fume hood at all in 1979.
Access to the laboratory was not limited to Buettner-Janusch and Jolly. Richard Macris, an NYU undergraduate whom Buettner-Janusch had hired as a laboratory assistant in 1977, also had keys to the door of the new laboratory. The defendant attempted to portray Macris as a mere errand boy, but Judge Brieant found that Macris had "full use of all the chemicals (in Buettner-Janusch's laboratory), and he frequently performed experiments at defendant's request." United States v. Buettner-Janusch, 500 F. Supp. 1285 at 1288 (S.D.N.Y.1980).*fn2
In early February 1979, Macris began to suspect that some of the chemicals Buettner-Janusch had asked him to synthesize were illegal drugs, or so-called controlled substances. He reported his suspicions to Jolly, who advised him to keep a diary of what he observed. Jolly, too, commenced an inquiry into Buettner-Janusch's work, taking samples of various chemicals, recovering scraps of paper from garbage pails, and photographing suspicious containers.
Alarmed by what they found, Macris and Jolly met with Macris's brother Robert, a practicing New York attorney, to tell him they believed Buettner-Janusch was manufacturing methaqualone. Fearful of making a false accusation against someone of Buettner-Janusch's prominence, they decided to secure more evidence before going to the authorities. Robert arranged, through intermediaries, to have the surreptitiously obtained samples tested on a confidential basis at the DEA laboratory in New York City. In mid-May, the Macris brothers and Jolly received word that the DEA had found the samples to contain a high concentration of methaqualone.
Several days later, in the early afternoon of May 16, they conveyed their startling findings to Dr. John Sawhill, then-President of NYU, and to Andrew Schaffer, NYU's general counsel. Later that day, Schaffer, Jolly, and Richard and Robert Macris met with Assistant United States Attorney Dominic Amorosa and DEA Agent Jack Toal in the U. S. Attorney's office for the Southern District of New York. There, Richard turned over the diary he had compiled on Buettner-Janusch's activities, and Jolly delivered samples of the compounds the defendant had synthesized and relinquished certain photographs he had taken in defendant's laboratory. Macris and Jolly also apprised the federal authorities of the results of the confidential tests the DEA had conducted. Confident that this evidence satisfied the requirement of probable cause, Amorosa proposed obtaining a warrant to search the laboratory. In response, Schaffer suggested that NYU could consent to a search, thereby obviating the need for a warrant. He added, however, that final authorization would have to come from President Sawhill. Hopeful that permission would soon be forthcoming, Amorosa asked Jolly and Richard Macris to assist the DEA agents in the search of defendant's research facility. They readily agreed.
Schaffer relayed Sawhill's consent the following day, and the quest to discover whether Buettner-Janusch had ventured into illegal drug-making was planned for approximately 10 o'clock that night. At the appointed hour, while Buettner-Janusch was attending a formal dinner, Richard and Robert Macris met Jolly, Toal, and five other DEA agents, including supervisory chemist Jeffrey Weber, outside Rufus Smith Hall. After assuring himself that no one was in the laboratory, Jolly admitted the search party, using his key to gain entry. He and Richard Macris pointed out suspicious containers to the agents, who, at Weber's instructions, seized several controlled substances. They found methaqualone in the fume hood and on a laboratory bench, marijuana in the new laboratory's "cold room," lysergic acid hydrazide on a laboratory bench, and a receptacle containing two vials of ergotamine tartrate, a precursor of LSD, which Jolly retrieved from the laboratory freezer.
Much of the testimony at the hearing centered on the circumstances under which Weber ordered the seizure of the methaqualone and the LSD precursors. Weber stated that he observed four translucent plastic containers lying in the fume hood almost as soon as he entered the laboratory. He did not inspect them immediately, however, for his attention was drawn to an open notebook lying on a laboratory bench. The notebook contained a series of entries which Weber interpreted as the melting points of methaqualone-containing compounds in various stages of purification. These entries corresponded to the markings on the receptacles in the fume hood. But this was not the only information Weber had to support his belief that these receptacles contained methaqualone. As a result of Jolly's prior investigation, Weber already knew that methaqualone had been detected in the laboratory, and during the search he discovered several jars filled with methaqualone precursors. Upon examining the containers, he observed that they held a white, granular solid, resembling an impure form of the drug.*fn3 The chemist admitted, however, that even with ...