BRUCE D. BLACK, Chief Judge.
THIS MATTER comes before the Court for consideration of several motions to suppress filed by all three Defendants (Docs. 112, 120, 122, 129, 156). The Court held a hearing on these motions and other motions on May 2, 2011. Based on the arguments contained in the parties' briefs and the arguments provided at the May 2 hearing, the motions to suppress will be denied.
The motions to suppress concern videotapes and audiotapes obtained as a result of a "sting" operation conducted by the federal government. At the time of the operation Defendants were police officers employed by the city of Tulsa, Oklahoma. An officer other than Defendants was suspected of stealing money and drugs from various individuals who had been detained or arrested on charges of drug-dealing. In order to investigate this officer, FBI agents set up the sting operation. An unidentified individual informed the suspect officer that a drug dealer carrying a large amount of controlled substances, and presumably a large amount of cash, was coming into Tulsa from a different city and would be staying at a certain motel in Tulsa. The "drug dealer" was in fact an undercover officer working for the FBI. A motel room was rented in the name of the undercover officer, and the room was "bugged" with several video/audio recording cameras. No warrant was obtained prior to the bugging or at any time thereafter.
Defendants do not challenge admission of the recordings to the extent they depict periods of time during which the undercover officer was present in the room. This concession is in line with pervasive case law holding that while an informant who has consented to the recording is present, video and audio surveillance of a hotel room or other premises is not prohibited by either the Fourth Amendment or federal statute. See United States v. Lee, 359 F.3d 194, 201-03 (3d Cir.2004); United States v. Nerber, 222 F.3d 597, 604 (9th Cir.2000); United States v. Longoria, 177 F.3d 1179, 1184 (10th Cir.1999); United States v. Yonn, 702 F.2d 1341, 1347 (11th Cir.1983) (no Fourth Amendment distinction between an informant using a motel room bug or wearing a wire).
A federal statute ("the wiretap statute") regulates the interception and recording of audio communications, as well as the admissibility of such recordings into evidence in a judicial proceeding. Title III, 18 U.S.C. §§ 2510-20. No such statute applies to video surveillance and recording. See United States v. Larios, 593 F.3d 82, 91 (1st Cir.2010); United States v. Taketa, 923 F.2d 665, 675 (9th Cir.1991). Instead, video surveillance is governed by the strictures of the Fourth Amendment. United States v. Mesa-Rincon, 911 F.2d 1433, 1437 (10th Cir.1990). However, with respect to the crucial question in this case, there is no difference in analysis between the wiretap statute and the Fourth Amendment. This is because the wiretap statute applies only to communications that are made while the communicator has exhibited "an expectation that such communication is not subject to interception under circumstances justifying such expectation." 18 U.S.C. § 2510(2). That phrase has been construed by the Tenth Circuit and other courts to mean the wiretap statute is the equivalent of the Fourth Amendment with respect to the communications it protects. See Larios, 593 F.3d at 92; Longoria, supra, 177 F.3d at 1181-82. In other words, if the communicator has no constitutionally reasonable expectation of privacy at the time the communication is made, the communication will not be subject
Courts agree that an individual's reasonable expectation of privacy can vary depending on the nature of the government's conduct. See Larios, 593 F.3d at 94; Nerber, 222 F.3d at 603. That is, the Fourth Amendment will be applied more strictly to protect individuals where the government utilizes more intrusive methods of performing searches. Id. Video and audio surveillance are highly intrusive forms of investigative mechanisms and, for that reason, have been subjected to a high level of scrutiny under the Fourth Amendment and the wiretap statute, with video surveillance deemed even more intrusive than audio "bugging." See Nerber, 222 F.3d at 603-05; Mesa-Rincon, 911 F.2d at 1442-43. However, neither video nor audio surveillance automatically violates the Fourth Amendment; when such surveillance is conducted in a public place such as a bank, where no reasonable expectation of privacy exists, the surveillance is not subject to suppression. See Taketa, supra, 923 F.2d at 677; see also United States v. Vankesteren, 553 F.3d 286, 291 (4th Cir. 2009) (video surveillance of defendant's open field, where he had no reasonable expectation of privacy, did not violate Fourth Amendment). The Court will bear in mind this heightened level of protection against audio and especially video surveillance, in deciding the reasonable-expectation-of-privacy question.
The test for determining whether a reasonable expectation of privacy exists for a particular Defendant in a particular location is two-fold: first, the defendant must establish that he "had an actual, subjective expectation of privacy-i.e., that his communications were not subject to interception[.]" Longoria, supra, 177 F.3d at 1181-82. Second, the defendant's expectation must be one "society would objectively consider reasonable." Id.
The Court accepts that Defendants had an actual or subjective expectation of privacy in the motel room while they were alone in the room. As evidenced by their alleged actions, they did not expect anyone to be conducting surveillance, and did not think anyone was observing them through any means, electronic or otherwise. The crucial issue in this case is whether Defendants' subjective expectation of privacy is one society would accept as objectively reasonable. As discussed below, the Court finds against Defendants on this point. An analysis of the applicable case law, especially Tenth Circuit case law, leads to that conclusion. Furthermore, public policy considerations militate against finding a reasonable expectation of privacy under the circumstances of this case.
There is a crucial difference between Defendants' position in this case and the position of the defendants in Nerber. In Nerber the defendants were guests invited into the hotel room by the informants, albeit for commercial purposes. They were there for a purpose that was ostensibly of benefit both to them and to the informants. In this case, on the other hand, Defendants obtained access to the room not as guests, but as law enforcement officers using the power of the state to obtain consent from the room's occupant. Defendants cannot be considered guests, either social or commercial, of their target, the undercover officer. This is an important point under Supreme Court jurisprudence. When an individual claims an expectation of privacy in someone else's residence, hotel room, or other premises, the Supreme Court has required that the individual demonstrate some type of societal recognition of the value of the individual's privacy rights in that particular situation. See, e.g., Minnesota v. Olson, 495 U.S. 91, 98, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990) (holding that an overnight guest in a residence had a reasonable expectation of privacy in that residence, because "[s]taying overnight in another's home is a long-standing social custom that serves functions recognized as valuable by society.") Id.
The Supreme Court in Minnesota v. Carter, supra, analyzed this requirement as a spectrum of privacy rights. 525 U.S. at 91, 119 S.Ct. 469. On one end of the spectrum are overnight guests, who are entitled to share in the Fourth Amendment protection granted to individuals in their own homes, hotel rooms, etc. On the other end are individuals who are merely "legitimately on the premises;" such individuals have no expectation of privacy at all that society is prepared to recognize as reasonable. Id. Somewhere in between, according to Carter, are individuals who are on the premises at the invitation of the resident but are merely there to perform a commercial transaction. Id. Here, rather than being invited social or even commercial guests of the undercover officer, Defendants were merely "legitimately on the premises" of the undercover officer's motel room. Due to the intrusive nature of video surveillance, the Nerber court was able to
Defendants also rely heavily on Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). In Katz the Supreme Court held that electronically eavesdropping on a telephone call made from a public telephone booth violated the defendant's Fourth Amendment rights. Katz famously stated that "the Fourth Amendment protects people, not places" and added that what an individual "seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected." Id., 389 U.S. at 351, 88 S.Ct. 507. Defendants argue, in essence, that a motel room should be given just as much protection as a public telephone booth, and that warrantless video or audio surveillance of such a room should not be countenanced. However, a public telephone booth is different than a motel room that "belongs" to someone else, at least temporarily. Under societal norms, a public telephone booth belongs to no one individual until it is occupied by a person. At that point, the occupier is at least temporarily in sole control of the premises, in somewhat the same way a guest of a hotel is in sole control of his own room (with some limitations, of course, due to the rights of management to enter the room for various reasons). In that sense, the defendant in Katz was not occupying premises that legally "belonged" to a different individual. On the other hand, Defendants in this case did occupy someone else's premises, not their own. It makes sense that society would reject their right to privacy in premises to which they had not been invited as guests and had no ownership or residence rights. In sum, there is a crucial difference between premises one is entitled to occupy at one's own initiative, and premises one may only occupy at the invitation or with the consent of another person.
The Court also recognizes that the Tenth Circuit has not been liberal in recognizing the privacy rights of individuals found in hotel rooms that were not rented in their names. The Tenth Circuit has insisted that such individuals present evidence establishing they are guests of the renter, rather than individuals merely present on the premises. See, e.g., United States v. Rios, 404 Fed.Appx. 258 (10th Cir.2010, unpublished) (defendant was found alone in locked motel room registered to someone else; this failed to demonstrate that he was an invited guest of the registered renter, and defendant therefore could not claim the protection of the Fourth Amendment); United States v. Conway, 73 F.3d 975, 979-80 (10th Cir. 1995) (individual found completely undressed in motel room, in possession of a key, had not demonstrated more than that he was merely in physical control and possession of the room; to be entitled to Fourth Amendment protections, individual had to demonstrate at minimum that he was an invited guest of the renter of the room). In addition, the Tenth Circuit has taken to heart the distinction in Carter between social guests and commercial
The Tenth Circuit has thus denigrated commercial invitees' privacy rights in someone else's premises, and has emphasized a guest's degree of acceptance into a resident's household in deciding whether to recognize a reasonable expectation of privacy in someone else's premises. This indicates the Tenth Circuit would look askance at Defendants' claimed expectation of privacy in the undercover officer's motel room, as they did not qualify as even commercial guests and had absolutely no acceptance into the undercover officer's "household."
At oral argument and in subsequent briefing Defendants emphasized the fact that they had obtained exclusive dominion and control over the motel room, which is one factor discussed in expectation-of-privacy cases. However, the only reason Defendants were able to obtain such exclusive dominion and control was their status as law enforcement officers. Defendants and/or other officers detained the undercover officer and kept him out of the room for a number of minutes after obtaining consent to search. Both the detention of the undercover officer outside the room, and the ability to obtain consent to search, were made possible only because Defendants and the other police officers were law enforcement officers carrying
Put another way, the purpose of the Fourth Amendment is to shield citizens from overreaching by government officials. If law enforcement officers are granted a reasonable expectation of privacy while they are carrying out searches of citizens' property, and are thus not subject to surreptitious oversight, such overreaching would be encouraged, or at least protected. As a result, all manner of Fourth Amendment violations could be committed without repercussions for the law enforcement officers. This case in fact is a good example. Defendants are accused of planning to steal money from a private citizen while they carried out a search of that citizen's premises. No expectation of privacy should be recognized that would allow Defendants, or any other law enforcement officers, to carry out such alleged activities in secret. Instead, while exercising the authority granted them by the state to enter other persons' premises, officers should expect to be monitored to ensure they use this great power in a manner that strictly comports with the requirements of the Fourth Amendment. In sum, the Court can conceive of no constitutional or societal interest that would be served by allowing Defendants to claim a reasonable expectation of privacy in the motel room rented by the undercover officer.
As discussed above, there are two significant factors militating against a recognition of a reasonable expectation of privacy in this case. First, Defendants were not invited guests of the undercover officer in any way, shape, or form. Second, they were able to obtain exclusive access to the premises only because of their status as law enforcement officers and their concomitant authority to both exclude the undercover officer from the premises and obtain his consent to a search of the premises. Under applicable case law and important principles of public policy, Defendants' attempt to assert an expectation of privacy over the undercover officer's motel room must be rejected.
Based on the foregoing Memorandum Opinion, it is ORDERED that Defendants'