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November 6, 1986

LUKE J. KUSEK and HOM GURUNG, Defendants

The opinion of the court was delivered by: KRAM


Presently before the Court is defendant Luke J. Kusek's motion to suppress evidence seized from his home pursuant to a search warrant. Kusek argues that the evidence seized was beyond the scope of the search warrant and not admissible under the "plain view" doctrine. Coolidge v. New Hampshire, 403 U.S. 443, 29 L. Ed. 2d 564, 91 S. Ct. 2022 (1971). *fn1"

 On February 23, 1984, Judge Ernest L. Alvino of the Superior Court of New Jersey issued a search warrant authorizing a search of the Kusek residence. The search warrant authorized the search of the Kusek residence for:

 evidence of possession and distribution of controlled dangerous substances and including, but not limited to controlled dangerous substances and related para-phernalia, records, documents and other items relating to the possession and distribution of controlled dangerous substances.

 Affirmation of Don. D. Buchwald, Exh. A.

 The police officers who executed the warrant seized, among other things, a tape recorder containing one cassette tape, a slip of paper containing the name Joseph Gallacher and his passport number, an airline boarding pass, a response to a visa application, a slip of paper with a quote from Huysmans, and two slips of paper containing the names, bank account numbers, and social security numbers of Anthony and Luke E. Kusek. Kusek claims these items were outside the scope of the search warrant and not immediately apparent to the police as evidence. Coolidge, supra. The Government has indicated it will seek to introduce only the tape recorder, the tape, and the airline boarding pass at the trial. The Government also concedes that these items were not within the scope of the warrant, but contends that they are admissible under the plain view doctrine.

 The Fourth Amendment requires that a search warrant state with specificity the objects to be seized. United States v. $10,000 in U.S. Currency, 780 F.2d 213, 216 (2d Cir. 1986). See Walter v. United States, 447 U.S. 649, 656, 65 L. Ed. 2d 410, 100 S. Ct. 2395 (1980) (scope of a search is limited by the terms of its authorization). An exception exists, however, for items in "plain view". Id. In order for objects not specified in the warrant to be admitted under the plain view doctrine, the police officer must be lawfully on the premises, the discovery of the evidence must be inadvertent, and the incriminating nature of the evidence must be immediately apparent. United States v. Grubczak, 793 F.2d 458, 461 (2d Cir. 1986). The incriminating nature of an object is immediately apparent when the police have probable cause to believe it Is evidence of a crime. United States v. Ochs, 595 F.2d 1247, 1258 (2d Cir.), cert. denied, 444 U.S 955, 62 L. Ed. 2d 328, 100 S. Ct. 435 (1979). In this case, the defendants have placed only the third element of the plain view doctrine -- that the criminal nature of the evidence be immediately apparent -- in issue.

 The evidence indicates that the New Jersey police officers who executed the search warrant knew that the alleged drug conspiracy involved international travel and dealing with individuals in Nepal. The cassette that the police found in the Kusek residence contained a recording of a telephone call between defendant Luke J. Kusek, who was, at the time of the recording, in New Jersey, and his son Luke E. Kusek, who was in Kathmandu, Nepal. The cassette contained no markings or writing of any kind. Police learned of its contents only after playing it. The airline boarding pass found by the police during their search lists Philadelphia as the origin and London as the destination. During the search the police also found cash in the amount of $45,000, scales, and marijuana.

 Regarding the airline boarding pass, the police knew that the investigation of Kusek involved allegations of international drug dealing. Thus, the police had probable cause to believe that the boarding pass was evidence of a crime, and it is admissible under the plain view doctrine.

 The admissibility of the cassette and the tape recorder, however, presents a more difficult question. The Court begins by noting that the defendant does not challenge the playing of the tape without a warrant. See United States v. Bonfiglio, 713 F.2d 932 (2d Cir. 1983); United States v. Castellano, 610 F. Supp. 1359, 1437-38 (S.D.N.Y. 1985). Rather, defendant claims that the police did not have probable cause to believe that the tape was evidence of a crime, and thus could not have seized it in the first place, much less play it. See Ochs, supra, 595 F.2d at 1257-58 (when police see suspicious object in Plain view, they may test their suspicion proceeding with a limited inspection of the object).

 Bonfiglio, supra, provides guidance as to when an inference of criminality from a cassette tape is justified. In Bonfiglio, an agent of the Bureau of Alcohol, Tobacco, and Firearms obtained a warrant to search Bonfiglio's residence for a specific rifle. In executing the search, the agent seized an envelope marked "Tap on Ben Bon Hoft". Inside the envelope was a cassette tape marked "Ben". The agent played the tape the next day, and found that it contained a recording of a conversation between Bonfiglio and his co-defendant. The Second Circuit ruled that the tape was legally seized under the plain view doctrine. The court ruled that the inscription on the envelope gave the police probable cause to believe the tape contained evidence of a crime, as non-consensual wiretapping is illegal under federal law. The court also ruled that the context in which the cassette was found, under a floorboard and next to a rifle, handguns, and other suspicious items, justified an inference that the tape was evidence of a crime. Id. at 936.

 Other cases in which courts have admitted cassette tapes pursuant to the plain view doctrine also indicate that tangible evidence of criminality is required to support a belief of probable cause that a cassette is evidence of a crime. See United States v. Falcon, 766 F.2d 1469, 1476 (10th Cir. 1985) (tape found near kidnapping tools and a telephone recording device to which defendant's business cards were taped); United States v. Rizzo, 583 F.2d 907, 910 (7th Cir. 1978), cert. denied, 440 U.S. 908, 59 L. Ed. 2d 456, 99 S. Ct. 1216 (1979) (defendant allegedly was involved in illegal wiretap activities); Castellano, supra, 610 F. Supp. at 1436-38 (S.D.N.Y. 1985) (Police, who had order to seize and Inventory the contents of alleged house of prostitution, discovered voice activated recorders connected to telephone, and observed one of the devices recording a phone conversation).

 In the instant case, there is absolutely no evidence that the police had probable cause to believe that the cassette tape was evidence of a crime. Nor is the crime one which might naturally involve tape recordings. The tape contained no marking's and was not discovered near other suspicious items. Nothing about the outward appearance of the tape indicated that it contained records of drug dealing. United States v. Gazzara, 587 F. Supp. 311, 328-29 (S.D.N.Y. 1984). The police had no reason to believe that Kusek recorded his phone conversations involving his alleged drug dealing, nor is there any evidence that the police knew from their expertise that drug dealers often record their phone conversations.

 It is clear that the incriminating nature of the tape become apparent only after it was played by the police. However, in the absence of any basis for believing that the tape was incriminating, the police were not justified in playing the tape to determine the nature of its contents. See United States v. Berenguer, 562 F.2d 206, 210-11 (2d Cir. 1977) ( examination of billfold, which offered no immediately apparent evidence of an inculpatory nature, is not justified). Accordingly, the cassette tape and the recorder must be suppressed.



 Dated: New York, New York November 6, 1986

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