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U.S. v. VEGA

March 20, 2004.


The opinion of the court was delivered by: JOHN KOELTL, District Judge


The defendants were charged in a six-count superseding indictment filed on August 21, 2003. Count One charges all of the defendants with conspiracy to distribute and possess with intent to distribute 50 grams and more of mixtures and substances containing a detectable amount of cocaine base, in a form commonly known as "crack," in violation of 21 U.S.C. § 846, Counts Two through Six charge each defendant with one count of distribution and possession with intent to distribute unspecified amounts of mixtures and substances containing detectable amounts of cocaine base, in a form commonly known as "crack," in violation of 21 U.S.C. § 812, 841(a)(1), and 841(b)(1)(C).

Defendants Burton, Mitchell, and Hunter have filed pre-trial motions discussed below. Defendant Vega has moved to suppress certain post-arrest statements made by him, or, in the Page 2 alternative, for a hearing to resolve whether the post-arrest statements were made in violation of his rights under the Fifth Amendment and Miranda v. Arizona, 384 U.S. 436 (1966). A hearing has been scheduled for March 23, 2004, and that motion is not at issue in this Opinion and Order.


  Defendant Burton moves to suppress videotape surveillance evidence that recorded visual non-verbal conduct occurring within the commercial space occupied by MP Wine and Liquors, which was doing business as Valentin Liquor Store in the Bronx.*fn1 The surveillance was authorized for two discrete thirty-day periods pursuant to orders issued by Chief Judge Mukasey and Judge Knapp on November 9, 2000 and January 18, 2001, respectively.*fn2 Defendant Burton argues that the surveillance evidence should be suppressed because it was obtained in violation of the Fourth Amendment. Page 3

  The Supreme Court has held that a person seeking to invoke the protections of the Fourth Amendment must claim a "legitimate expectation of privacy" that has been invaded by Government action. See Rakas v. Illinois, 439 U.S. 128, 143 (1978). This issue is normally resolved through two separate inquiries. the first is whether the person has exhibited through his conduct a subjective expectation that he could keep something private. See Smith v. Maryland, 442 U.S. 735, 740 (1979). The second inquiry is whether the person's subjective expectation of privacy is one that society is prepared to recognize as reasonable. See id. Therefore, where a defendant invokes the Fourth Amendment's protections with respect to a particular location, the defendant "must demonstrate that he personally has an expectation of privacy in the place searched, and that his expectation is reasonable." Minnesota v. Carter, 424 U.S. 83, 88 (1998).

  Defendant Burton contends that he had a subjective expectation of privacy in the liquor store. However, the evidence submitted by the defendant does not support this contention. He argues that the conduct recorded on the videotape included private conversations outside the view and earshot of other customers in the liquor store. But he does not Page 4 state that he himself participated in these conversations.*fn3 And, in any event, assuming that he did participate in the conversations, the defendant does not explain what measures he took to ensure that the existence of the conversations would remain private and beyond the view of other customers. The defendant also cites no case to support his position that the existence of such conversations in a public place evinces a subjective expectation of privacy in the liquor store.*fn4

  Even if the defendant had a subjective expectation of privacy in the liquor store, it was not a legitimate or reasonable expectation. Burton did not own the liquor store and he did not work there, facts which might otherwise support a claim to a legitimate expectation of privacy. See United States v. Osorio, 949 F.2d 38, 40 (2d Cir. 1991) (noting that in assessing Fourth Amendment protections, "[t]he court generally Page 5 considers whether the defendant had any property or possessory interest in the place searched or the items seized.") Rather, Burton maintains that he was an innocent customer of the liquor store. However, this claim makes it more difficult for Burton to establish that he had a legitimate expectation of privacy in the liquor store. The Supreme Court has explained that commercial premises are treated differently from residential property under the Fourth Amendment because there is less expectation of privacy in commercial premises. See Carter, 525 U.S. at 90. As a customer in a liquor store open to the public, the defendant was present in a public place where commercial transactions were the regular course of business — presumably buying liquor — and the defendant should have expected to be viewed by anyone who entered the store. He could not reasonably expect that his visual non-verbal conduct would remain private, and therefore he cannot claim the protections of the Fourth Amendment. United States v. Davis, 326 F.3d 361, 365 (2d Cir. 2003) ("[W]hat a person knowingly exposes to the public . . . does not receive Fourth Amendment protection."); Rodriguez v. United States, 878 F. Supp. 20, 24 (S.D.N.Y. 1995) ("[A]s the activity monitored by the video surveillance occurred entirely within a public place, Rodriguez had no reasonable expectation of privacy on the public street.") Page 6

  Indeed, in United States v. Glisson, No. 03 Cr. 148, 2003 WL 21709502 (S.D.N.Y. July 23, 2003), a case not cited by the defendant, Judge Batts rejected a defendant's motion to suppress videotape surveillance in the same liquor store and authorized by the same orders as in this case, because the defendant "had no privacy interests implicated by the Government's surveillance" and thus could not "invoke the protections of the Fourth Amendment." Id. at *2.

  Defendant Burton also challenges the validity of the orders issued by Chief Judge Mukasey and Judge Knapp authorizing the videotape surveillance. However, the Court need not assess the validity of these orders, because the defendant has failed to establish that his Fourth Amendment rights were implicated. See Glisson, 2003 WL 21709502, at *2 (declining to address defendant's challenge to sufficiency of orders by Chief Judge Mukasey and Judge Knapp because defendant "failed as a threshold matter to carry his burden to demonstrate that the Government violated his Fourth Amendment rights.") The motion to suppress is denied.


  Defendant Mitchell moves for a severance pursuant to Federal Rules of Criminal Procedure 8(b) or 14 so that he can be tried separately from the other defendants. Page 7

  Defendant Mitchell first contends that his joinder with the other defendants is improper under Rule 8(b) because, he claims, the superseding indictment appears to charge multiple conspiracies. Under Rule 8(b), joinder of defendants is proper if "they are alleged to have participated in the same act or transaction, or in the same series of acts or transactions, constituting an offense or offenses." Fed.R. Crim. P. 8(b). The Court of Appeals for the Second Circuit has construed Rule 8(b) to mean that "joinder is proper where two or more persons' criminal acts are unified by substantial identity of facts or participants, or arise out of a common plan or scheme." United States v. Attanasio, 870 F.2d 809, 815 (2d Cir. 1989) (internal quotation marks and citation omitted). According to its plain language, "Rule 8(b) . . . specifically turns on what is `alleged' against the defendants." United States v. Gallo, No. 98 Cr. 338, 1999 WL 9848, at *2 (S.D.N.Y. Jan. 11, 1999). It is an "established rule" that "a non-frivolous conspiracy charge is sufficient to support joinder of defendants under Fed.R.Crim.P. 8(b)." United States v. Nerlinger, 862 F.2d 967, 973 (2d Cir. 1988); see also United States v. Henry, 861 F. Supp. 1190, 1200 n.5 (S.D.N.Y. 1994) (holding defendants were properly joined "because they are alleged to have participated in the underlying conspiracy"). Page 8

  In this case, the Government has alleged in Count One of the superseding indictment that the co-defendants in this case conspired "together and with each other" to violate the federal narcotics laws. This allegation is sufficient to satisfy the joinder requirements of Rule 8(b). There is nothing before the Court from which to conclude that the conspiracy charge is frivolous or that it improperly combines what should be two or more distinct conspiracies. Therefore, the defendants are properly joined pursuant to Rule 8(b), and defendant Mitchell's motion for a severance pursuant to Rule 8(b) is denied. See United States ...

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