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UNITED STATES v. CHRISTENSEN

June 8, 1981

UNITED STATES OF AMERICA
v.
EDWARD D. CHRISTENSEN AND WILLIAM J. CLESEN.



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.

1. The Facts.

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 disputed.

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 (1967).

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.
  at 511.

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 objective element:

  "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 ...

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