United States District Court, Northern District of Illinois, E.D
June 7, 1985
UNITED STATES OF AMERICA, PLAINTIFF,
LOUIS GOLDSTEIN, DEFENDANT.
The opinion of the court was delivered by: Shadur, District Judge.
MEMORANDUM OPINION AND ORDER
Louis Goldstein ("Goldstein") has been charged under
18 U.S.C. § 659 with possession of gold salts and an emerald
stolen from a Federal Express facility while in interstate
commerce, knowing the items to have been stolen. Goldstein now
moves to suppress the emerald, which federal agents seized at
his home. For the reasons stated in this memorandum opinion and
order, the motion is denied.
Goldstein (a Chicago jeweler) bought the emerald from
co-defendant and long time acquaintance Louis Cane for $3,500.
Later Cane began cooperating with federal law enforcement
officials and agreed to help the government retrieve the
emerald from Goldstein.
On December 21, 1983 Cane went to Goldstein's store and
offered to buy back the emerald on behalf of an undisclosed
buyer. Goldstein told Cane he had given the emerald to his
wife. When Goldstein then called her on the telephone, she
expressed an unwillingness to sell it.
On January 31, 1984 Cane returned to the store and again
offered to buy the emerald, this time talking directly with
both Goldstein and his wife. Again Mrs. Goldstein said she was
unwilling to part, with the stone, but Cane offered her $9,500
and asked her to think about it for a few days.
On February 3, 1984 Cane and FBI agent Al Jennerich
("Jennerich") went directly to the Goldsteins' home. Goldstein
was at the store, but Mrs. Goldstein was at home. Cane
introduced Jennerich to Mrs. Goldstein as the prospective
buyer of the emerald and she allowed them to enter the house.
Once more she explained her reluctance to sell the emerald,
but at Cane's urging she agreed at least to show it to them.
When she did so Jennerich identified himself as an FBI agent
and seized the emerald.
Fourth Amendment Standards
Goldstein argues the emerald should be suppressed because
Jennerich's deceit in gaining entrance to the home and
persuading Mrs. Goldstein to show him the emerald:
1. unreasonably violated Goldstein's
expectation that the emerald would remain private
in his home; and
2. vitiated Mrs. Goldstein's consent to allow
Cane and Jennerich into the home.
Those arguments miss the constitutional mark by a wide margin.
Goldstein's arguments are premised on an incorrect
categorization of Jennerich's actions as a consent search of
the Goldstein home. Goldstein first invokes United States v.
Dichiarante, 445 F.2d 126, 129-30 (7th Cir. 1971) for the
unimpeachable proposition that consent searches are reasonable
only if kept within the bounds of the actual consent. Then he
cites numerous decisions suppressing evidence obtained by
when law enforcement officers, acting in their official
capacity, obtained consent for limited searches and then
searched for and seized items beyond the scope of the consent.
Those cases are inapposite here because Jennerich was acting
in an undercover capacity rather than in his official
capacity. Hoffa v. United States, 385 U.S. 293, 301-02, 87
S.Ct. 408, 413-414, 17 L.Ed.2d 374 (1966) explained the Fourth
Amendment is not implicated when a person invites an undercover
agent into his or her home and voluntarily divulges
incriminating information or evidence. In that circumstance the
person relies not on the security interest protected by the
Fourth Amendment ("unwarranted governmental intrusion," id. at
301, 87 S.Ct. at 413), but rather on his or her "misplaced
confidence" the invitee (unknown to be a government agent) will
not reveal his or her wrongdoing (id. at 302, 87 S.Ct. at 413).
Looked at in a slightly different way, the cases on which
Goldstein relies involve deceit as to the object of the entry
or search by a person known to be a government agent — and to
whom consent was given based on that knowledge. But Jennerich's
deceit concerned only his identity as an agent. Entry of an
undercover agent is not illegal if he enters a home for the
"very purposes contemplated by the occupant." United States v.
Ressler, 536 F.2d 208, 211 (7th Cir. 1976) (quoting Lewis v.
United States, 385 U.S. 206, 211, 87 S.Ct. 424, 427, 17 L.Ed.2d
312 (1966)). If the occupant reveals private information to the
visitor under such circumstances, he or she assumes the risk
the visitor will reveal it. United States v. Jacobsen,
466 U.S. 109, 104 S.Ct 1652, 1658, 80 L.Ed.2d 85 (1984).
And that rule is not altered by the fact the visitor is
(without the knowledge of the occupant) a government agent.
Goldstein cannot possibly argue Jennerich's deceit as to his
identity was constitutionally infirm, in light of the approval
of comparable undercover operations in Hoffa and more recent
cases such as United States v. Walker, 760 F.2d 144, 147 (7th
Cane and Jennerich unquestionably gained entrance to the
Goldstein home for the purpose understood by Mrs. Goldstein:
to discuss the possible purchase of the emerald. She
voluntarily showed them the stone as a result of her misplaced
trust in them. No Fourth Amendment privacy interest was
implicated in those actions.
This Court rejects Goldstein's effort to suppress the
emerald. His motion is denied.
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