The opinion of the court was delivered by: Decker, District Judge.
MEMORANDUM OPINION AND ORDER
Defendant William Clesen has been charged in four counts of
a seven-count indictment with having printed and transferred
counterfeit federal currency and with knowing possession of
plates designed for printing such currency. Clesen's arrest
and seizure of much of the crucial evidence against him
resulted at least in part from binocular assisted observation
of Clesen's activities inside a private place of business.
Clesen has moved to suppress all of the evidence that can be
linked to these observations on the grounds that visual
intrusion into a private place of business through the use of
binoculars and without the authority of a search warrant is a
violation of the Fourth Amendment. On April 27, 1981, this
court denied Clesen's motion to suppress, holding on the
authority of U.S. v. Allen, 633 F.2d 1282, 1288-1289,
1291-1292 (9th Cir. 1980), that the surveillance in this case
did not infringe Clesen's Fourth Amendment rights. Clesen has
moved to reconsider that decision.*fn1 The government, not
surprisingly, has opposed this motion, arguing that the court's
initial decision was correct, and that, even if it were not,
the arrest and most of the disputed evidence in this case were
not tainted by the binocular assisted observations. On mature
reflection, the court remains convinced that the motion to
suppress must be denied.
The events leading to Clesen's arrest and to discovery of
the challenged evidence are fully described in the affidavits
submitted in connection with this motion. Insofar as they are
relied on below, none of the affidavits' contents are
The investigation that led to Clesen's indictment began when
another defendant in this case, Edward Christensen, sold a
small amount of counterfeit money to a government informant in
early May of 1980. Beginning on May 23, on the basis of this
initial sale, regular contact was made with Christensen by
Secret Service agent Alex Falcon acting undercover. Falcon and
Christensen entered into negotiations concerning a substantial
sale of counterfeit bills, and it was these negotiations that
eventually led the government to Clesen.
Initially, the government became aware of Clesen's existence
as a result of a variety of circumstantial evidence. Thus, at
one point Christensen told Falcon that he would shortly be
meeting with the person who would supply the counterfeit
money. Christensen promptly met with Clesen. Similarly, there
was a time when Falcon was told that Christensen was going to
immediately telephone his supplier. A pen register attached to
Christensen's telephone indicated an immediately subsequent
call to Clesen's phone number. On July 19 Falcon was informed
by Christensen that the counterfeit would be printed on July
21 or 22. Consequently, Secret Service agents began periodic
surveillance of Clesen's activities.
On the evening of July 22 agents observed Clesen's car
parked in front of a building belonging to a company called
Presstige Printing. Presstige Printing is owned by Thomas
Stanley. Clesen had been observed meeting with Stanley at
Presstige on June 24 and again, this time in a parking lot, on
June 25. Consequently, subsequent to the discovery of Clesen's
car, the Presstige building was placed under surveillance.
Using binoculars, the agents were able to peer through an open
window into a lighted room in which Clesen and Stanley were
working. The agents were
able to discern that Clesen and Stanley were printing and
cutting what appeared to be federal reserve notes. This
printed material was loaded into some boxes which, somewhat
after midnight, were in turn loaded into Clesen's car. Clesen,
followed by Secret Service agents, then drove to a nearby
restaurant where he was observed to meet Christensen. After
coming out of the restaurant, Clesen opened his car and handed
the boxes to Christensen. As Christensen turned away to walk
to his own car, the two were approached by the Secret Service
agents and arrested. During the course of these events, one of
the boxes fell to the ground and its contents spilled out. The
contents of the box resembled federal reserve notes. Both
boxes were seized. They later proved to contain $171,000 in
counterfeit money. Shortly after the arrests, search warrants
were obtained for Clesen's car and Presstige Printing. Both
searches produced incriminating evidence, including the plates
used to print the counterfeit.
In support of his motion for reconsideration Clesen has
submitted an affidavit which admits that he printed the
counterfeit on a press that was directly opposite an
uncurtained window and that this window faced directly onto a
public street. The affidavit also admits that the printing
took place at night and that the room was lighted. Finally,
the affidavit and a diagram attached to it indicate that it
would be possible to observe the lighted window from a
distance of somewhat over 200 feet without being observed from
within the Presstige building. Thus, the affidavit essentially
admits that it would be possible to discern the existence of
some activity in the Presstige building even without the aid
of binoculars. At the same time, the affidavit asserts, and
this is not disputed, that it would be impossible to discern
any detail as to activity in the Presstige building with the
naked eye while avoiding observation from within the Presstige
building. In short, it is undisputed that, without the use of
binoculars, the agents could not have been sure that Clesen
was the one who was using the Presstige press or that he was
using it to print something resembling federal reserve notes.
The merit of this motion turns on the propriety of these
binocular assisted observations and on their significance in
the sequence of events that led to Clesen's arrest.
2. The Binocular Assisted Surveillance.
There is no dispute in this case but that surveillance of
the Presstige building was effected without a search warrant,
and none that, if that surveillance amounted to a
constitutional "search," it was improper. The question, thus,
is whether or not a binocular assisted surveillance of a
private place of business, under the aforementioned
circumstances, is a search within the meaning of the Fourth
Amendment. The starting point in analyzing this question is
the decision of the United States Supreme Court in Katz v.
United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576
Prior to Katz it had, at least arguably, been the rule that
common law concepts of trespass controlled the question of
whether or not a search had taken place. E. g., Olmstead v.
U.S. 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944 (1928). Thus,
under these earlier cases, the threshold issues in Fourth
Amendment analysis were essentially questions of the law of
property and tort. In Katz, however, the Court gave Fourth
Amendment analysis a very different foundation:
"The Fourth Amendment protects people, not
places. What a person knowingly exposes to the
public, even in his own home or office, is not a
subject of Fourth Amendment protection.
(Citations omitted.) But what he seeks to
preserve as private, even in an area accessible
to the public, may be constitutionally protected.
[Citations omitted.]" 389 U.S. 351-352, 88 S.Ct.
This emphasis on the expectation of privacy, though clearly
tinged with subjective elements, was patently not meant to
ground Fourth Amendment protections on the individual's mere
desire for secrecy. Thus, as the government correctly points
out, the fact that Clesen chose to print counterfeit
late at night in a location where unaided observation of his
activities was unlikely and where such observation could
readily be detected is not, by itself, sufficient to trigger
the Fourth Amendment's protections. See, e. g., Rakas v.
Illinois, 439 U.S. 128, 143 n. 12, 99 S.Ct. 421, 430 n. 12, 58
L.Ed.2d 387 (1978). Rather, as Justice Harlan's often quoted
concurrence makes clear, the Katz rule has a distinctly
"My understanding of the rule that has emerged
from prior decisions is that there is a twofold
requirement, first, that a person have exhibited
an actual (subjective) expectation of privacy
and, second, that the expectation be one that
society is prepared to recognize as `reasonable'.
Thus, a man's home is, for most purposes, a place
where he expects privacy, but objects,
activities, or statements that he exposes to the
`plain view' of outsiders are not `protected'
because no intention to keep them to himself has
been exhibited. On the other hand, conversations
in the open would not be ...