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IN THE
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
Fall Term, 2002 No. 02- UNITED STATES OF AMERICA Appellee v. JENNIFER HANSEL Appellant
Memorandum Opinion and Order Denying Defendant’s Motion to Suppress EvidenceOn appeal from from the United States District Court, Southern District of Ohio
BRIEF FOR JENNIFER HANSEL
ADJUNCT PROFESSOR MORMAN Attorney for Jennifer Hansel University of Dayton# School of Law 300 College Park Drive Dayton, Ohio 45469- BLUE
TABLE OF CONTENTS
Table of Authorities……………………………………………………………………... Statement of the Jurisdiction and Standard of Review………………………………….. Statement of the Question Presented for Review……………………………………….. Statement of the Case……………………………………………………………………. Statement of the Facts……………………………………………………………………8Summary of the Argument…………………………………………….………………… Argument………………………………………………………………………………... I. MS. HANSEL, A PUBLIC EMPLOYEE, IS ENTITLED TO FOURTH AMENDMENT PROTECTION AGAINST TECHNOLOGICALSEARCHES BECAUSE SHE HOLDS A REASONABLE EXPECTATION OF PRIVACY IN HER WORKPLACE. A. Ms. Hansel, a public employee, is entitled to Fourth Amendment protection against technological searches in her workplace,because she conducts herself in a manner consistent with one who holds a subjective expectation of privacy. B. Ms. Hansel’s expectation of privacy is one society considers as reasonable, because the nature of the office and Ms. Hansel’s jobare such that the government overreached their authority in the installation of highly invasive video equipment.
- The general public’s right to access Ms. Hansel’s office is highly limited; therefore society recognizes an expectationof privacy from an invasive technological search by the government.
- Ms. Hansel’s job is administrative and requires very low security precautions; therefore society recognizes anexpectation of privacy from an invasive technological search by the government.
- The highly invasive nature of hidden video surveillance is such that society reasonably recognizes an expectation ofprivacy from it. II. THE GOVERNEMNT FAILS TO DEMONSTRATE THE REQUISITE PROBABLE CAUSE AND OBTAIN THE NECESSARY WARRANT PRIOR TO CONDUCTING THEIR INVASIVE TECHNOLOGICALSEARCH OF MS. HANSEL’S OFFICE.
TABLE OF AUTHORITIES
Cases State Court Cases
- Agnello v. United States, 269 U.S. 20 (1925)………………13, Supreme Court Cases
- Carroll v. United States, 267 U.S. 132 (1925)………………13, 22Katz v. United States, 389 U.S. 347 (1967)…………………13,14, 15, 16, 17, 19, 26,
- O’Connor v. Ortega, 480 U.S. 709 (1987)…………………..16, 20,
- Ornelas v. United States, 517 U.S. 690 (1996)………………22,
- Roaden v. Kentucky, 413 U.S. 496 (1973)…………………..
- United States v. Karo, 468 U.S. 705 (1984)…………………28Welsh v. Wisconsin, 466 U.S. 740 (1984)…………………..
- Thompson v. Johnson Cty. Community Coll., 930 F.Supp. 501 (10 th Cir. 1997).. Circuit Court of Appeals Cases
- Vega-Rodriguez v. Puerto Rico Telephone Co., 110 F.3d 174 (1 st Cir. 1997) ….
- United States v. Ball, 90 F.3d 260 (8 th Cir. 1996)…………………………….….
- United States v. Buckner, 179 F.3d 834 (9 th Cir. 1999)………………………….
- United States v. Campbell, 261 F.3d 628 (6United States v. Cuevas-Sanchez, 821 F.2d 248 (5 th Cir. 2001)………………………...29, 30 th Cir. 1987)…………………
- United States v. Halliman, 923 F.2d 873 (D.C. Cir. 1991)………………………
- United States v. Howard, 984 F.Supp. 31 (D.C. Cir. 1997)……………………...
- United States v. Johnson, 9 F.3d 506 (6 th Cir. 1993)…………………………….
- United States v. Lewis, 231 F.3d 238 (6United States v. Morales, 238 F.3d 952 (8 th Cir. 2000)…………………………….6 th Cir. 2001)………………………….24,
- United States v. Morgan, 743 F.2d 1158 (6 th Cir. 1984)…………………………26,
- United States v. Ogbuh, 982 F.2d 1000 (6 th Cir. 1993)…………………………..
- United States v. Pear, WL 22796 (6 th Cir. 1991)…………………………………
- United States v. Ukomadu, F.3d 333 (6United States v. Walsh, 299 F.3d 729 (8 th th Cir. 2001)……………………………26, 28, 29 Cir. 2002)……………………………
- United States v. Williams, 10 F.3d 590 (8 th Cir. 1993)…………………………..
- United States v. Worley, 193 F.3d 380 (6 th Cir. 1999)…………………………...
- United States v. Hansel, No. 02-00140 (S.D. Ohio July 15, 2002)………………..8, District Court Cases
- Dist. 2001)…………………………………………………………………………. Brannen v. Kings Loc. Sch. Dist. Bd. of Educ., 144 Ohio App. 3d 620 (Ohio App. 12th
- Cowles v. Alaska, 23 P.3d 1168 (Alaska 2001)…………………………..17,
- State v. Thomas, 642 N.E.2d 240 (Ind. App. 1st Dist. 1994)……………...20,
Constitutional Provisions U.S. Const. Amend. IV…………………………………………………….
Statutes 21 U.S.C. § 841 (2002)……………………………………………….……..6, 8 28 U.S.C. § 1291 (2002)……………………………………………………. 18 U.S.C. § 3231 (2002)……………………………………………………. Fed. R. Crim. P. 41 (2002)…………………………………………………..
STATEMENT OF THE QUESTIONS PRESENTED FOR REVIEW
- Under the Fourth Amendment, does a public employee have a reasonable expectation of privacy in the filing cabinet located within her area of the office against an intrusive, warrantless search, via hidden video equipment, by thegovernment?
- Under the Fourth Amendment, does the government have probable cause to search a public employee’s office via a hidden video camera, based on information regarding alleged drug distribution, as offered by a lay person’s pastbrief interaction with the drug?
- Under the Fourth Amendment, do exigent circumstances exist when there is neither imminent threat that the employee will destroy the evidence prior to the federal agent’s arrival, nor imminent threat to public safety?
STATEMENT OF THE CASE
This is an appeal from a memorandum opinion and final order of the United States District Court, Southern District of Ohio, rendered July 15, 2002. The lower court refused to suppress evidence seized by a federal agent during a warrantless search of Ms. Jennifer Hansel’s office. U.S. v. Hansel, Judgm. Case No. 02-00140 (July 29, 2002). Absent probable cause and exigent circumstances, federal agent Kenneth J. Kandaras (“Agent Kandaras”) installed a hidden video surveillance camera behind the wall clock inside Ms. Hansel’s office, so as to search Ms. Hansel’s office for possible criminal activity. Rpt. Of Drug Enforcement Administration Agent Kenneth J. Kandaras (n.d.) (“Exhibit D”). Subsequent to the government’s warrantless search, Agent Kandaras arrested Ms. Hansel and charged her with possession with intent to distribute methamphetamines, pursuant to 21 U.S.C. § 841. Ms. Hansel filed a motion to suppress the evidence Agent Kandaras seized via the hidden video camera. The lower court denied the motion and on July 29, 2002 Ms. Hansel entered a conditional plea of guilty reserving her right to appeal this decision. On August 5, 2002, Ms. Hansel filed this timely appeal. STATEMENT OF THE FACTS Ms. Hansel, a devoted public employee of the Ohio Southern University College of Law (“COL”), was striped of her Fourth Amendment protection against unreasonable searches by the government when a federal agent, absent probable cause and exigent circumstances, installed a hidden video camera inside Ms. Hansel’s office. Ms. Hansel is one of two administrative assistants for the COL, in Kettering, Ohio. The other secretary is Ms. Nancy Matlock. Each secretary is required to sign an
working, she may use the other secretary’s printer. Id. Also, Ms. Hansel and Ms. Matlock each keep all of their office supplies in their personal file cabinets, so as to keep them out of sight from the faculty. Mot. To Suppress Hrg. Tr. p.2:1 (July 1, 2002) (“Exhibit C”). At approximately one o’clock in the afternoon, Ms. Matlock was typing a letter for a professor. Her printer was jammed and the common room printer had a long line of jobs in front of hers; therefore Ms. Matlock decided to use Ms. Hansel’s printer, which is located on the opposite side of the partition. Because Ms. Hansel was still at lunch, Ms. Matlock knew her printer would be available. (Exhibit C, p.1:2). Once in front of the printer, Ms. Matlock noticed that the toner light was on, and she decided to refill the toner in Ms. Hansel’s printer. As is customary for each secretary to keep their own office supplies inside of the file cabinet, Ms. Matlock opened the top drawer of the cabinet to look for toner. While searching Ms. Hansel’s file cabinet drawer, Ms. Matlock found six plastic bags containing white pills lying on top of the toner cartridges. (Exhibit C, p.2:3). Ms. Matlock decided in the few seconds she saw the pills that they were methamphetamines, the same drugs her brother had taken over twenty years ago to combat Attention Deficit Disorder. (Exhibit C, p.2:4). Ms. Matlock also discovered a small yellow post it note stuck to the inside of the drawer, which had five, colon, zero, zero, then four, slash, three, zero written on it. (Exhibit C, p.2:6). Although the vague note was not affixed to the bags, Ms. Matlock determined the numbers to be the date and time of the pills distribution. (Exhibit C, p.2:6). Finally, Ms. Matlock retrieved the toner cartridges from beneath the plastic bags and replaced the toner in the printer.
At approximately four thirty in the afternoon, Ms. Matlock left for home, never mentioning the bags to Ms. Hansel, nor any of her supervisors. Finally, at one o’clock in the morning, nearly twelve hours after finding the bags, Ms. Matlock decided to contact the Dean and tell him of her suspicions. (Exhibit C, p.3:1). The Dean subsequently called the police and the Drug Enforcement Agency (“DEA”) was alerted of the “situation.” Federal agent Kenneth J. Kandaras, an employee of the DEA, worked with a tech director of the COL to install a hidden video camera behind the wall clock in the secretaries’ office, so as to record criminal activity. The camera that was installed records and transmits the picture for viewing, but does not transmit any sound. According to Agent Kandaras, they worked from two in the morning until installation was complete at approximately four thirty in the morning. (Exhibit D). Although Agent Kandaras purports that installation of a camera such as this one can take a full working day, he and the tech director completed installation in only two and one half hours. (Exhibit D). At no point did Agent Kandaras or any other government agent, attempt to obtain the requisite search warrant necessary prior to a search. Subsequently, at approximately 5:01am, Ms. Hansel entered the office, wrote something on a post-it note, walked out of the camera’s range and returned to her desk. (Exhibit D). At 5:11am, Ms. Hansel stood up, walked to the office door and returned with three individuals. Ms. Hansel then opened the file cabinet drawer and exchanged the bags for money. (Exhibit D). The three individuals left and five others came into the camera’s sight. Agent Kandaras, after viewing the entire transaction, approached the
search of the office. Finally, in failing to obtain the necessary search warrant, the government fails to excuse such improper behavior in their lack of demonstrating exigent circumstances. Therefore, the government infringes upon Ms. Hansel’s Fourth Amendment Constitutional protection from unreasonable searches and seizures. Accordingly, the District Court’s holding should be reversed and the motion to suppress the illegally obtained evidence granted. ARGUMENT Ms. Hansel, a public employee, has a reasonable expectation of privacy in her office; therefore the government’s installation of hidden video surveillance equipment constitutes an unreasonable search infringing upon Ms. Hansel’s Fourth Amendment rights. In order for Ms. Hansel to prevail against the government’s intrusion and to trigger the protections offered by the Fourth Amendment, she must first establish both a (1) subjective and (2) objective expectation of privacy in her workplace. Katz v. U.S. , 389 U.S. 347 (1967). Inasmuch, Ms. Hansel has conducted herself in a manner consistent with one who holds an expectation of privacy, as well as one which society is prepared to recognize as reasonable. Moreover, the government failed to obtain both the requisite probable cause and warrant prior to conducting their invasive technological search. The government is obligated to demonstrate probable cause and acquire a warrant prior to conducting any search for criminal activity. Agnello v. U.S. , 269 U.S. 20 (1925). Finally, the government failed to demonstrate any exigent circumstances, such as imminent destruction of evidence and/or threat to public safety, so as to excuse their lack of a warrant. Carroll v. U.S. , 267 U.S. 132, 158-59 (1925). Therefore, Ms. Hansel’s
Fourth Amendment protection from unreasonable searches by the government has been violated by the warrantless installation of hidden video surveillance inside her workplace.
I. MS. HANSEL, A PUBLIC EMPLOYEE, IS ENTITLED TO FOURTH AMENDMENT PROTECTION AGAINST TECHNOLOGICALSEARCHES BECAUSE SHE HOLDS A REASONABLE EXPECTATION OF PRIVACY IN HER WORKPLACE. Ms. Hansel has both a subjective and objective expectation of privacy in her workplace, therefore Agent Kandaras’ installation of a hidden video camera constitutes an unreasonable search. The Fourth Amendment guarantees people the right to “be secure in their persons, houses, papers and effects, against unreasonable searches and seizures.” U.S. CONST. AMEND. IV. The United States Constitution prohibits unreasonable physical searches, as well as technological searches. Katz , 389 U.S. at 347. In determining whether a search triggers the protection of the Fourth Amendment, the defendant must demonstrate both (1) a subjective and (2) an objective expectation of privacy. Id. at 361. Here, Ms. Hansel, a public employee, conducted herself in a manner consistent with a person who has a reasonable expectation of privacy. Furthermore, Ms. Hansel’s expectation of privacy is one society recognizes as reasonable. Therefore, Ms. Hansel’s expectation of privacy was violated when the government installed hidden video surveillance inside her office.
A. Ms. Hansel, a public employee, is entitled to Fourth Amendment protection against technological searches in her workplace, because she conducts herself in a manner consistent with one who holds a subjective expectation of privacy. Ms. Hansel has a subjective expectation of privacy within her work area. Whether a subjective expectation of privacy exists is determinative upon the defendant’s
to the defendant in Katz , Ms. Hansel made the affirmative acts of placing the bags inside the file cabinet and shutting the drawer. (Exhibit C, p.2:1). Therefore, Ms. Hansel, like the defendant in Katz, did not expose anything to the public. Additional evidence of Ms. Hansel’s state of mind, consistent with an expectation of privacy, includes the fact the plastic bags were stacked on top of the toner in the file cabinet drawer, not hidden within the file cabinet itself. (Exhibit C, p.2:3). Therefore, if she did not have any expectation of privacy within the file cabinet, she would have hidden the bags underneath the toner packages, or at the back of the drawer. Also, Ms. Hansel did not deem it necessary to lock the file cabinet drawer. (Exhibit C, p.2:3). This implies that she did not believe anyone would be invading her personal area within the office. Thus, Ms. Hansel has a subjective expectation of privacy within her workplace area. B. Ms. Hansel’s expectation of privacy is one society considers as reasonable, because the nature of the office and Ms. Hansel’s job are such that the government overreached their authority in theinstallation of highly invasive video equipment. Ms. Hansel’s expectation of privacy is one which society is prepared to recognize as reasonable. In order for the Court to determine a search was conducted and thus Fourth Amendment protections triggered, both a subjective and an objective expectation of privacy must be established. Katz , 389 U.S. at 361. In the Court’s consideration of whether an objective expectation of privacy is reasonable, the Court considers three factors, (1) the nature of the area, (2) the nature of the job, and (3) the character of the invasion employed. O’Connor v. Ortega , 480 U.S. 709, 717-719 (1987) (balancing the nature and quality of the intrusion on individuals’ Fourth Amendment interests against the importance of government interests). Here, the access to Ms. Hansel’s office is very
limited, her job is not one of high security, which would require the surveillance of her duties, and the invasion the utilized by the government is one of such a highly intrusive nature society recognizes an expectation of privacy from it.
- The general public’s right to access Ms. Hansel’s office is highly limited;therefore society recognizes an expectation of privacy from an invasive technological search by the government. It is reasonable for society to recognize an expectation of privacy inside Ms. Hansel’s office due to the general public’s limited right of access to the office. In determining the whether there is an expectation of privacy the Court first considers the nature of the area searched. O’Connor , 480 U.S. at 718 (holding that the defendant had a reasonable expectation of privacy in his desk and file cabinets after consideration of who had access to the defendant’s office, and who also had access to or shared in the use of his desk or file cabinets). Further, courts have declined to hold an expectation of privacy is objectively reasonable when the area is considered to be “open all the time” and there is “unfettered access” to the area. Brannen v. Kings Local School Dist. Bd. of Edn. , 144 Ohio App. 3d 620, 630 (Ohio App. 12th Dist. 2001); Thompson v. Johnson Cty. Community Coll. , 930 F.Supp 501, 507 (10th Cir. 1997) (holding that the defendants did not have a reasonable expectation of privacy in their break room because of the employees’ general access to the room and the nature of the room as an “all purpose utility room"). Finally, the Alaska Supreme Court found a reasonable expectation of privacy from hidden video surveillance did not exist when the defendant’s office was widely open to the public. Cowles v. State, 23 P.3d 1168, 1171, 1175 (Alaska 2001)
other’s file cabinet or desk. (Exhibit C). Inasmuch, the limited access to Ms. Hansel’s office is sufficient to justify society’s belief that it is reasonable to have an expectation of privacy from hidden video surveillance inside the office.
- Ms. Hansel’s job is administrative and requires very low securityprecautions; therefore society recognizes an expectation of privacy from an invasive technological search by the government. Society is prepared to recognize Ms. Hansel’s expectation of privacy as reasonable because she is permitted to keep personal effects in her office and she does not work in a high security capacity. In determining whether there is an expectation of privacy, the Court next considers the nature of the job. O’Connor , 480 U.S. at 718 (considering whether there were any policies or regulations discouraging employees from storing personal papers and effects in their desks or file cabinets). Without violating any regulations of the hospital, Dr. Ortega kept personal, as well as professional, materials in his office, including personal correspondence, personal financial records, teaching aids, notes, and personal gifts and mementos. Id. at 718. Courts also take into account the job’s security implications. In Cowles , the court looked to the capacity of a job in its handling of money. The court reasoned that a diminished expectation of privacy is to be held in a “high security job.” Id. at 1173- (holding that the defendant worked in a fiduciary capacity in an office where members of the public frequently exchanged money for tickets). Here, the nature of Ms. Hansel’s job is not one of “high security” and she is permitted to store personal effects within her office space. Similar to O’Connor , the “Administrative Assistant Duties and Responsibilities” agreement Ms. Hansel was required to sign fails to acknowledge any office regulation or policy that would
discourage Ms. Hansel from storing personal effects in her desk or file cabinets. (Exhibit A). Consequently, comparable to Dr. Ortega, Ms. Hansel did not violate any office regulation or policy and her expectation of privacy is thus further substantiated. Finally, as distinguishable from the defendant in Cowles , Ms. Hansel’s duties as an administrative assistant can in no way be construed as a “high security job.” Ms. Hansel, unlike the defendant in Cowles , does not work in a fiduciary capacity where members of the public exchange money for items on a regular basis. Although, Ms. Hansel does handle the sale and distribution of course supplements as well as exam questions, which may be construed as “confidential documents,” these duties are very limited in nature. During the course of an entire school year, Ms. Hansel acts in this capacity for only the first three days of each term, and no more than two weeks prior to examination time. (Exhibit A, p. 1-2, ¶¶ 5-7). As a result, in no way is Ms. Hansel’s expectation of privacy diminished by her requirement to complete these duties. Accordingly, Ms. Hansel’s expectation of privacy is reasonable and one which society recognizes as such.
- The highly invasive nature of hidden video surveillance is such that society reasonably recognizes an expectation of privacy from it. It is reasonable for society to recognize an expectation of privacy from highly intrusive surveillance by hidden video equipment. In the Court’s determination of whether the defendant has an objective expectation of privacy, the final factor considered is the invasive character of the invasion employed. O’Connor, 480 U.S. 709 at 719. Video surveillance has been recognized to be one of the most intrusive forms of searches performed by the government. U.S. v. Cuevas-Sanchez , 821 F.2d 248, 250-51 (5th Cir. 1987). The court in Thomas , citing to Cuevas-Sanchez , held that the defendant had an
