Swygert, Chief Judge, Duffy, Senior Circuit Judge, and Kerner, Circuit Judge. Duffy, Senior Circuit Judge (dissenting).
The district court pursuant to a pre-trial hearing, granted a motion made by defendants-appellees, Paul Case, Gilbert Sagaser and Frances Sagaser, under Rule 41(e) of the Federal Rules of Criminal Procedure, and suppressed the admission of counterfeit currency, plates and equipment. The judge found that the warrantless arrest, search and seizure by Secret Service agents violated the defendants' rights under the Fourth Amendment; that the forcible entry by the agents into defendant Case's store without being refused admittance by the defendants violated 18 U.S.C. § 3109; and that the overhearing of conversations between the defendants by agents stationed in a hallway adjacent to the store violated the rules enunciated in Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967). We affirm.
Secret Service agents suspected that defendants, Paul Case and Gilbert and Frances Sagaser, were involved in the manufacturing of counterfeit money, and that they were operating out of Case's printing store located in a Milwaukee building complex. On June 14, 1969, agents were stationed in a hallway in the complex which they had entered by use of a key obtained from the landlord of the building complex. The hallway was connected to Case's store as well as a drugstore, restaurant and a poodle shop. The district court found that the hallway was used by "a very confined group" and was not open to the general public. It was generally locked, and the proprietors were the only ones with keys.
The agents stationed in the hallway heard the sound of a printing press coming from Case's store. They also heard a female voice say: "How do you put on the seals and serial numbers?" and a male voice say, "There's two hundred thousand down, one hundred thousand to go." A male voice asked, "Can they hear you in the drugstore?"; another replied that there was nothing to worry about. These statements were relayed to agents stationed outside the complex through a radio transmitter placed in the hallway. At 8:45 p.m., one of the agents overheard a voice say, "I am leaving now. I want to be there before it gets dark."
Moments later, Case walked into the hallway and was arrested and searched. Two other agents went to the door of the store and noticed Gilbert and Frances Sagaser begin to walk briskly to the rear of the store. One of them yelled, "Federal agents, you're under arrest," breaking through the glass in the door and apprehending the Sagasers. An agent observed a printing press with a plate bearing the impression of currency.
On the basis of these arrests and the search of Case's store, the three defendants were indicted for possession of currency equipment, and Case and Sagaser for manufacturing United States currency. Before the trial, the district court suppressed the use of the currency, plates and equipment as evidence. The government appeals this ruling.
The surreptitious listening to the conversations in Case's store by the agents stationed in the hallway was an invasion of the defendants' right to privacy, guaranteed by the Fourth Amendment. Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967). The defendants sought to keep their discussion private, and did not expect that federal agents would be located just a few feet away in the hall. As this court said in United States v. Haden, 397 F.2d 460 (7th Cir. 1968): "One who intends a conversation or transaction to be private and takes reasonable steps to keep it private is protected from government intrusion * * *." The trial judge found and we agree that:
This is not a careless babbling on the street corner. Part of the overheard language * * * was to the effect that they were concerned that someone might be hearing in the drugstore. And they also evidenced their concern by changing locks. The fact that their conduct may have been designed to protect evil operations is immaterial as far as their right to privacy is concerned in the Constitutionally protected quarters. They did nothing, it seems to me, to expose themselves to the uninvited ear.
The government claims, however, that the defendants do not have a right to privacy in conversations conducted in a tone of voice audible to someone situated next to, but outside of, the store. For this proposition, it cites United States v. Llanes, 398 F.2d 880 (2d Cir. 1968), which allowed admission of conversations overheard by an agent stationed in the hallway of an apartment building outside of the defendant's apartment. The court explained that "* * * conversations carried on in a tone quite audible to a person standing outside the home are conversations knowingly exposed to the public."
Llanes, however, is based upon the finding that the hallway was a public place and that the defendants could hardly expect conversations audible to someone in a public place to be regarded as private. On the contrary, the district judge in this case found that the hallway "* * * was not such a public area as to entitle the Court to consider it a non-protected area" and we concur. See e.g., United States v. Watkins, 369 F.2d 170, 171 (7th Cir. 1966). The hallway was kept locked. The lock to one of the doorways had been changed by defendant Case. The hallway was used by a very confined group, and, most of the time, limited to the proprietors of the stores in the building.
Since the evidence gathered as a result of the overhearing by the agents in the hallway violated the Fourth Amendment, it cannot be used to sustain a finding of probable cause upon which to justify the subsequent arrests and searches. Therefore, the arrest of Case and the Sagasers was unlawful. It follows that the subsequent warrantless searches incident to the invalid arrests are likewise unlawful. United States v. Jeffers, 342 U.S. 48, 72 S. Ct. 93, 96 L. Ed. 59 (1951); McDonald v. United States, 335 U.S. 451, 69 S. Ct. 191, 93 L. Ed. 153 (1948); Johnson v. United States, 333 U.S. 10, 68 S. Ct. 367, 92 L. Ed. 436 (1948). As Mr. Justice Jackson explained in his concurring opinion in McDonald : "Having forced an entry without either a search warrant or an arrest warrant to justify it, the felonious character of * * * [the officers'] * * * entry, it seems to me, followed every step of their journey inside * * * and tainted its fruits with illegality. * * *" 335 U.S. at 459, 69 S. Ct. at 195.
Even if the agents' investigation did not invade the privacy of the defendants under the Fourth Amendment, we believe the better practice by the agents would have ...