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Rebecca Cochran, University of Dayton (OH), Law, Legal Professions, Sample Appellate (brief) Part 2, Brief for the Appellant,DISTRICT COURT,covert video surveillance,Fourth Amendment,DEA,probable cause,Exigent circumstances,United States Supreme Court ,United States Court of Appeals ,United States District Courts ,State Supreme Courts ,U.S. Const. Amend. IV,STATEMENT OF JURISDICTION ,STANDARD OF REVIEW,STATEMENT OF THE ISSUES.
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In the UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT Fall Term, 2002 No. 02- JENNIFER HANSEL, AppellantV. UNITED STATES OF AMERICA Appellee.
Appeal from Order denying Defendant’s Motion to Suppress Evidence From the United States District Court for the Southern District of Ohio.
Brief for the Appellant
Attorney # University of Dayton School of Law 300 College Park Drive Dayton, Ohio 45469 Professor Cochran
A. Mrs. Hansel’s overt activities established that she had a subjective expectation of privacy at her workplace against covert video surveillance. B. Mrs. Hansel’s expectation of privacy from covert video surveillance can beconsidered reasonable by society because such an expectation is rooted in the Framers of the Fourth Amendment intent that the workplace deserves protection from government intrusion.
Cases
State v. McDaniel , 44 Ohio App.2d 163 (1975)………………………………………………… State v. Thomas U.S. v. Torres , 751 F.2d 875 (N.D.Ill. 1984)……………………………………………………24, 642 N.E.2d 240 (Ind. App.1994)……………….……………………….…22,
State Supreme Courts Cowles v. State , 23 P.3d 1168 (Alaska 2001)………………………………………….18,20,22, State v. Bonnell, et al. State v. McLellan , 144 N.H. 602 (N.H. 1999)…...………………………………………………19, 856 P.2d 1265 (Haw.1993)…………………………………...18,23,24,
United States Constitution U.S. CONST. amend. IV……………………………………………………………………..16,
Statutes 18 U.S.C. §3231 (West 2000)…………………………………………………………………6, 38 21 U.S.C. §841 …………………………………………………………………………...6,9,13,3828 U.S.C. §1291 (West 1993)…………………………………………………………………6, 38
“clearly erroneous” standard. U. S. v. Morgan , 743 F.2d 1158, 1162 (6 th^ Cir.1984); U. S. v. Sangineto-Miranda , 859 F.2d at 1512; U. S. v. Rohrig, 98 F.3d at 1511.
At 2:00 in the morning on April 30, 2002, a hidden, no sound video camera was installed in record time by a Drug Enforcement Agency agent (“DEA”) and a Ohio Southern University College of Law (“COL”) technology director, behind the office wall clock, hanging 80 inches from the floor, facing Jennifer Hansel’s (“Mrs. Hansel”) desk. U.S. v. Hansel, No. 02- (S.D. Ohio July 15, 2002); Diagram of Wilber Wright Hall Room 425. (“Ex. B”). The office clock was the best location for the clock to be installed on short notice. Rpt. Of Drug Enforcement Administration Agent Kenneth J. Kandaras. (“Ex. D”). Mrs. Hansel began her employment as a faculty secretary at the COL when her husband, William Hansel, began law school there, two years ago. Hansel, slip op. at 1. Mrs. Hansel, when she began her work for the COL, received and signed a copy of her job description, which described specific information relating to security and confidential aspects expected of her. Mrs. Hansel shares her office with the senior secretary, forty-year old Nancy Matlock (“Informant”), who has worked in the office for ten years. Id. The job description stated that the faculty secretaries’ office hours are from 8:30a.m. until 5:00 p.m. Ohio S.U. College of Law Admin. Asst. Duties and Resps., 1: 2-3 (Aug. 15, 2000). (“Ex A”). The secretaries are expected to be in the office during office hours. Id. During the first three days of each term, at noon, the secretary is to take cash and checks to the Bursar’s Office for deposit. Ex. A, 1:5. The faculty orders approximately five hundred supplements to serve the 450 students. Id. A one-hour lunch break is suggested to be coordinated with a co- worker so the office is not understaffed for an excessive time. Ex. A, 2:8. Secretaries are also responsible for, to ensure confidentiality, administering faculty evaluation forms to the students and therefore, both may be absent from the office. Ex. A, 2:11. When both secretaries are gone,
they leave the door slightly ajar, with a post-it note indicating when the office will be staffed again. Hansel, slip op. at 2. Office keys are issued only to the two secretaries, the Dean, Associate Dean, Dean of Students, and maintenance staff. Ex. A, 1:3. Office and supply room keys are signed out for personal use only. Id. In addition, each secretary has the keys to her own 28-inch high/ 30-inch deep/ 80-inch long desk and 17 inch wide/ 65-inch high/ 16-inch deep filing cabinet located between the secretaries workspaces. Hansel, slip op. at 2; Ex. B. The two secretaries cannot see each other when sitting at their desks. Mot. To Suppress Hrg. Tr. p. 1:6 (July 1, 2002). (“Ex. C”). The L-shaped nature divides the office into two separate personal work areas. Hansel, slip op. at 1. In the secretary office, each secretarial station is provided with a small desktop printer for use when the shared printer is unavailable. Ex. A, 2:9. Occasionally, a secretary will go behind the other’s desk if her own printer is not working and the short document needs to be printed quickly. Hansel, slip op. at 2. The twenty faculty members perform their own word processing and correspond with the secretaries via e-mail, voicemail, or infrequently through coming into the office to use the drop box in front of each secretary’s desk. Hansel, slip op. at 2; Ex. A, 1:4. During the lunch hour on April 29, 2002, informant needed to print a letter and decided to use Mrs. Hansel’s printer, although she was due back from lunch shortly. Hansel, slip op. at 2. Because the toner was low, informant opened the file cabinet door where she though she would find the printer toner and noticed about a half a dozen plastic bags stacked on top of the cartridge. Ex. C, 2:11. Informant, looked at the bags and saw pills inside of them and also noticed a post-it note stuck inside the drawer with five, colon, zero, zero, four, slash, three, zero written in pencil. Id. at 2:13. Twenty years ago, in 1970, informant’s brother was treated with
indicted for possession with intent to distribute methamphetamines, in violation of 21 U.S.C. § 841 (a) (1). Hansel, slip op. at 3.
The Fourth Amendment protects citizens against unreasonable search and seizures to ensure their personal privacy. Mrs. Hansel has a privacy right, as guaranteed by the Fourth Amendment, against covert video surveillance in her office; therefore, the District Court’s order should be reversed. First, Mrs. Hansel has exhibited, through her daily activities, an actual, subjective expectation to privacy and this expectation is one society is ready to recognize as reasonable. Second, the DEA did not have probable cause to conduct the warrantless search of Mrs. Hansel’s office. Lastly, the DEA should have reasonably obtained a warrant prior to covertly searching Mrs. Hansel’s office because the circumstances were not exigent and a warrant was procedurally feasible. For the foregoing reasons, and because the government interest in conducting the search did not outweigh Mrs. Hansel’s expectation to privacy, the District Court’s order should be reversed. Mrs. Hansel’s overt activities in her workplace establish she had an actual subjective expectation to privacy in her workplace. She took reasonable measures to ensure her privacy through entering the office with her key, closing the door behind her and knowingly placing her private items in a closed cabinet. What Mrs. Hansel did not voluntarily expose to the public is what she wanted to keep private. Mrs. Hansel’s activities of ensuring her privacy establish that she did not know or have reason to know she would be under covert video surveillance in her workplace. Mrs. Hansel’s expectation to privacy in the workplace is one that society is willing to recognize as reasonable. While other employees, students and the public had accessibility to her office, it was not so open all the time that others have unfettered access. Mrs. Hansel’s expectation to privacy reasonably can extend to the personal spaces designated for her exclusive
The Fourth Amendment protects Mrs. Hansel’s expectation of privacy at her workplace, against warrantless covert video surveillance by government officials. The Fourth Amendment guarantees “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search and seizures.” U.S. CONST. amend. IV. As with the expectation of privacy in one’s home, such an expectation of privacy in one’s place of work is based upon “social expectations that has deep roots in the history of the Fourth Amendment.” O’Connor v. Ortega , 480 U.S. 709, 716 (1987); U.S. v. Oliver, 466 U.S. 85, 178 (6 th^ Cir.1981). Therefore, a search is unreasonable when a person has a reasonable expectation of privacy in the area searched. Katz v. U.S. , 389 U.S. 347, 351 (1967). A person has a reasonable expectation of privacy against electronic surveillance when they: (1) exhibit an “actual (subjective) expectation of privacy,” and (2) that expectation to privacy is one “society is prepared to recognize it as reasonable.” Katz 389 U.S. at 361 (Harlan, J. concurring); U.S. v. King, 227 F.3d 732, 744 (6 th Cir.2000). Mrs. Hansel’s expectation of privacy against covert video surveillance was exhibited through her conduct and her expectation is one society would recognize as reasonable. A. Mrs. Hansel’s overt activities established that she had a subjective expectation ofprivacy at her workplace against covert video surveillance. Mrs. Hansel’s activities in the workplace exhibited a subjective expectation of privacy; therefore, the District Court correctly in concluded she did not know or have reason to know her private activities were being covertly videotaped. A legitimate expectation of privacy exists when the person has exhibited, by his conduct, an actual, subjective expectation of privacy.
Katz, 389 U.S. at 361. A person has met this first requirement through demonstrating by their actions, they sought to preserve something as private. King, 227 F.3d at 744. Because an employee’s actions exhibited that he thought he would be alone and undisturbed, the court held he had a subjective expectation of privacy in the room. U.S. v. Anderson , 154 F.3d 1225, 1229 (10th^ Cir.1998). Specifically, the employee entered his office building over a holiday weekend when no other employees were in the building. Id. He entered through using his corporate key card and locked the door behind him. Id. Once inside, he closed the door. Id. Although the blinds and curtains were closed, the employee attached a towel over the window to prevent any view so that his privacy would be maintained. Id. Personal conduct provided support for the courts determination of an actual, subjective expectation of privacy in a personal hotel room. U.S. v. Nerber , 222 F.3d 597, 603 (9 th Cir.2000). Particularly, the court noted the acts of closing the door, drawing the blinds, and exercising dominion over the room to support its finding. Id. Furthermore, defendants subsequently engaged in activity in a way they clearly would not have had they thought outsiders would have seen them justified an actual subjective expectation to privacy. Id. Mrs. Hansel came into the office at 5:01 in the morning before the office opened at 8:30 a.m. Ex. D. She entered the office through a key, designated for her use only. Ex. A, 1:3. The morning of the surveillance, although she was alone, Mrs. Hansel placed a post-it-note with “be back soon” on the door the DEA found to be closed. Ex. D; Hansel, slip op. at 2. Shortly after she returned in camera view, Mrs. Hansel engaged in activity she would not have had she been aware of the video surveillance. Ex. D. The narcotics were discovered in a closed file cabinet door behind Mrs. Hansel’s personal desk. Ex. C, 2:8_._ Mrs. Hansel entered her locked office, closed the door and engaged in
to public observers. An employee’s expectation of privacy must be assessed “in the context of the employment relation.” O’Connor, 480 U.S. at 717. A subjective expectation of privacy can be objectively reasonable, although it is accessible to others, in private business offices given over to an employee for their exclusive use. Id. at 716-718 (finding that a person has a reasonable expectation of privacy in their desk and file cabinets when not shared by other employees); Taketa , 923 F.2d at 672 (finding that private business offices are often subject to the legitimate visits of coworkers, supervisors, and the public, without defeating the expectation of privacy). Therefore, even in areas other access, the Fourth Amendment protects what a person seeks to preserve as private although it may be unknowingly exposed to public view. Katz , 389 U.S. at 351-352. Furthermore, an employee’s expectation of privacy in a government office is only unreasonable when it is so open to fellow employees or the public. O’Connor , 480 U.S. at 718; State v. McLellan , 744 A.2d 611, 614 (N.H.1999) (finding that an expectation of privacy will be decreased in a work area that is less private because that employee has less control over it). Therefore, an employee’s expectation of privacy from video surveillance is reasonable when they exercise a certain dominion and control over the time and place where the videotaping occurred. Taketa, 923 F.2d at 673 (finding that a reasonable expectation to privacy existed because the videotaping occurred on a Sunday morning when other people would not normally be present, the office was not open to the public and only three people had regular access to it). Ultimately, privacy does not require solitude. Id. at 672. Employees did not have a reasonable expectation of privacy in their break room because other employees had “unfettered access” to the area. Brannen v. King Loc. Sch. Dist. Bd. of Ed. , 761 N.E.2d 84, 91 (Ct. of Appeals, Ohio 2001). Teachers could access the room whenever they
needed something contained inside because the room was “open all the time.” Id. Therefore, because the break room was so open all the time, employees could not have a reasonable expectation of privacy in the area. Id. The nature of the office atmosphere decreased an employee’s expectation of privacy in her office because the personal desk was observable though the open door and fellow employees walked continuously throughout the videotape. Cowles, 23 P.3d at 1174. Furthermore, other employees had regular access to the office, thereby eliminating the reasonable expectation to privacy. Id. Therefore, an office where tickets are sold to the public is not a private office designated for an employee’s exclusive use. Id. Mrs. Hansel shares her office with the senior secretary. Hansel, slip op. at 1. Occasionally, they go behind each other’s desk if their personal printer is not working or a short document needs to be printed quickly. Hansel , slip op. at 2. Nevertheless, a seventeen (17) inch wide by sixty-five (65) inch high by sixteen (16) inch deep filing cabinet separates the secretaries own twenty- eight (28) inch high by thirty (30) inch deep by eighty (80) inch long desk. Ex. B. Therefore, the two secretaries cannot see each other when sitting at their desks. Ex. C, 1:6. The L-shaped nature of the workspace separates the office into two personal areas. Hansel , slip op. at 2. While others may access the office, only the secretaries, Dean, the Associate Dean, the Dean of Students, and the cleaning staff have a key, for their exclusive use, to the office. Ex. A, 1:3. Furthermore, each secretary also has a key to her own desk, filing cabinet and locked supply room. Hansel , slip op. at 1; Ex. A, 1-2:7. The public, students and other faculty members have limited need to access the secretaries’ office. Ex. A. When visitors plan on coming to the office, the secretaries inform them that there is a directory located by the elevators to direct them to the office on the fourth
