United States v. Mancini

United States Court of Appeals
For the First Circuit

No. 93-1417

UNITED STATES,

Appellant,

v.

SALVATORE MANCINI,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Francis J. Boyle, Senior U.S. District Judge]

Before

Boudin and Stahl, Circuit Judges,

and Fuste,* District Judge.

Craig N. Moore, Assistant United States Attorney, with whom Edwin

J. Gale, United States Attorney, Ira Belkin, Assistant United States

Attorney, and Margaret E. Curran, Assistant United States Attorney,

were on brief for appellant.
John A. MacFadyen, with whom Richard M. Egbert and Peter DiBiase,

were on brief for appellee.

November 4, 1993

*Of the District of Puerto Rico, sitting by designation.

STAHL, Circuit Judge. In this criminal appeal, we

must decide whether the Mayor of North Providence, Rhode

Island, defendant Salvatore Mancini ("Mancini"), has

standing1 to challenge a search of the town's archive attic

and subsequent seizure of the Mayor's 1987 appointment

calendar. The district court ruled in Mancini's favor.2

The government timely filed this interlocutory appeal.3 We

affirm the district court's ruling.

I.

FACTUAL BACKGROUND

We recount only those facts relevant to resolving

the issue on appeal. On November 20, 1992, a grand jury

indicted Mancini on one count of attempted extortion under

color of official right, in violation of 18 U.S.C. 1951.

1. The inquiry turns, in this case, on whether the defendant
demonstrated a legitimate expectation of privacy, see Rakas

v. Illinois, 439 U.S. 128 (1978), and we use the term

`standing' in the present context as shorthand for that
inquiry. United States v. Sanchez, 943 F.2d 110, 113 n.1

(1st Cir. 1991).

2. After finding that Mancini had standing to contest the
search and seizure, the district court went on to grant
Mancini's motion to suppress the appointment calendar on the
ground that the affidavit used to acquire the search warrant
omitted certain facts which, if disclosed to the Magistrate,
would have demonstrated a lack of probable cause. On appeal,
the government does not contest this finding. Therefore, the
only issue before us is the standing question.

3. In relevant part, 18 U.S.C. 3731 provides: "An appeal
by the United States shall lie to a court of appeals from a
decision or order of the district court suppressing or
excluding evidence . . . ."

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According to the indictment, in November 1987, Mancini

accepted a $2,000 payment from real estate developers in

exchange for the issuance of certain certificates of

occupancy for residential apartments owned by the developers.

Prior to the indictment, in the course of

investigating the allegations against Mancini, the FBI

attempted to obtain the relevant certificates of occupancy.

At approximately 4:30 p.m. on October 29, 1992, two FBI

agents, Timothy O'Keefe and Charles Prunier, went to the

North Providence Town Hall to interview the town's building

inspector, Albert DiPetrillo, and to serve him with grand

jury subpoenas calling for his testimony and for the

production of the eleven allegedly illegal certificates of

occupancy. The subpoenas required production of the

certificates by 9:30 the following morning.

DiPetrillo told the agents that Town Hall records

were kept in a room known as the archive attic. Both the

maintenance and personnel departments had keys to the attic.

At DiPetrillo's direction, another town employee, Robert

Hennessey, obtained the keys to the attic from a maintenance

worker and accompanied the two agents through two locked

doors and into the attic. The attic, which is above and runs

the length of the Town Hall, contained boxes of records and

miscellaneous equipment, none of which appeared to the agents

to be organized in any particular manner.

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When the three men first entered the attic,

Hennessey suggested to the agents that they might find the

certificates in boxes of Building Department records located

near the door through which they had just passed. An initial

examination of those boxes did not uncover the certificates.

Hennessey then informed the agents that there were two other

rooms in the attic containing town records. After a cursory

examination of the other rooms indicated that only records

from before 1940 were present, the three men returned to the

room they had entered first. The agents again began looking

for the certificates in the boxes located in this room.

According to Hennessey's testimony at the suppression

hearing, he directed the agents to a particular stack of

boxes. Agent Prunier, however, "wandered off" in another

direction. At some point, Prunier came across a box labelled

"Mayor's Appointment Books." The flaps on the box were

turned down to cover the top of the box, but they were not

interlocked. Prunier lifted the flaps and saw that the box

did, in fact, contain appointment books, including a book for

1987.4 Prunier browsed through the 1987 book and replaced

it in the box. Meanwhile, Agent O'Keefe located the sought-

after certificates of occupancy in one of the boxes in the

4. The appointment book here at issue is a rather typical
red-covered office calendar, with one page devoted to each
day of 1987. The hard cover reads "Appointments," with
"1987" appearing underneath. The inside front cover is
denoted "1987 Half Hourly Standard Appointment Diary."

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area that Hennessey had originally suggested. This search

lasted approximately two hours.

On November 16, 1992, the FBI applied for a warrant

to search the archive attic and seize the 1987 appointment

calendar. A Magistrate Judge signed the warrant, and it was

executed the same day. The calendar was retrieved.

According to the government, the calendar is significant

because of an entry made on November 24, 1987, a few days

before the alleged illegal payoff and one day before the

certificates were issued. That entry indicates that Mancini

had a noon appointment with Art Aloisio, who, according to

Kenneth Stoll, arranged the meeting where Stoll allegedly

made the payoff to the Mayor.5

Prior to trial, Mancini moved to suppress the

appointment calendar because 1) the agents' initial discovery

of the calendar was the result of a warrantless, illegal

search, and 2) the later search, executed pursuant to a

warrant, was both the fruit of the first, illegal search and

5. The calendar entry took on greater importance in the face
of Stoll's credibility problems. During the suppression
hearing, F.B.I. Agent Joyce, who signed the search warrant
affidavit, conceded that Stoll, who was to be a prosecution
witness, had lied on several occasions to the F.B.I. and
United States Attorney's office. In fact, the government had
rescinded a non-prosecution agreement it had previously
reached with Stoll because it believed that Stoll had
breached his obligation to speak truthfully. None of Stoll's
credibility problems were divulged to the Magistrate, leading
to the portion of the district court's suppression order that
is not here appealed.

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the product of a misleading affidavit. Following a

suppression hearing,6 the district court first found that

Mancini had standing to contest the search and seizure.

Addressing the merits, the court then rejected Mancini's

claim that the agents' conduct in discovering the calendar

was illegal. The court concluded, however, that the

subsequent search warrant should never have been issued due

to the government's failure to disclose the negative

information concerning Stoll. Therefore, the court granted

the motion to suppress. As noted earlier, the government

only challenges the court's standing determination.

II.

STANDARD OF REVIEW

In reviewing the district court's suppression

order, we uphold findings of fact, including mixed fact/law

findings, unless they are clearly erroneous. See United

States v. Carty, 993 F.2d 1005, 1008 (1st Cir. 1993) (factual

6. At the suppression hearing, Prunier, Joyce, and Mayoral
Chief of Staff Leo J. Perrotta were called to testify by the
government. Hennessey was the only witness called by the
defense. Mancini did not testify, but submitted an affidavit
stating that in 1987 he kept a daily calendar diary which was
"maintained as a personal rather than a public document,"
that the diary was "kept in a closed box marked Mayor's
Appointment Books" located in the locked archive room, and
that he instructed his Chief of Staff that "no one was to
have access to any of my boxes, including the box containing
the calendars, without permission." Mancini further stated
that "[a]t all times, I believed that my boxes, including the
one containing the calendars, were my private property, were
under my control, and were to be left alone by all persons,
including town personnel."

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findings); United States v. Rodriguez-Morales, 929 F.2d 780,

783 (1st Cir. 1991)

(mixed findings), cert. denied, 112 S. Ct. 868 (1992). We

review conclusions of law de novo. Carty, 993 F.2d at 1008.

The legal standard used by the district court is also subject

to plenary review. Sanchez, 943 F.2d at 112.

It is well settled that a defendant who fails to

demonstrate a legitimate expectation of privacy in the area

searched or the item seized will not have "standing" to claim

that an illegal search or seizure occurred. Rakas, 439 U.S.

at 138-48; Sanchez, 943 F.2d at 112-13. In order to make such

a demonstration, the defendant must show both a subjective

expectation of privacy and that society accepts that

expectation as objectively reasonable. California v.

Greenwood, 486 U.S. 35, 39 (1988); Katz v. United States, 389

U.S. 347, 361 (1967)(Harlan, J. concurring). The burden of

proving a reasonable expectation of privacy lies with the

defendant. Sanchez, 943 F.2d at 113. The defendant must

demonstrate a privacy expectation in both the item seized and

the place searched. United States v. Salvucci, 448 U.S. 83,

93 (1980) ("[W]e must . . . engage in a conscientious effort

to apply the Fourth Amendment by asking not merely whether

the defendant had a possessory interest in the items seized,

but whether he had an expectation of privacy in the area

searched.")(internal quotations omitted); United States v.

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Aguirre, 839 F.2d 854, 856 (1st Cir. 1988)("Before embarking

upon the merits of a suppression challenge, a criminal

defendant must show that he had a reasonable expectation of

privacy in the area searched and in relation to the items

seized.").

III.

DISCUSSION

In determining that Mancini had standing to contest

the search, the district court first ruled that the

appointment book was not a public record. United States v.

Mancini, No. 92-117B, slip op. at 4 (D.R.I. April 12, 1993).

Then, the court concluded that the act of placing the book

into a box "does not remove the document from the mayor's

files." Id. Finally, the court stated that it is not

"significant that the record was not found in the physical

confines of the Mayor's office. It was where it could

expected [sic] to be, a 1987 document, in the archives." Id.

at 4-5. On this appeal, the government argues that the

district court erroneously found that the calendar was a non-

public document, and further contends that Mancini did not,

and could not, demonstrate a privacy expectation in the

archive attic. We address the two issues in turn.

A. The Mayor's Appointment Calendar

In finding that Mancini's appointment calendar is a

"non-public record," the district court analogized the

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calendar to the personal effects located in the desk and file

cabinets of a public employee in O'Connor v. Ortega, 480 U.S.

709 (1987).

In Ortega, the Supreme Court ruled that the

defendant, Dr. Ortega had a reasonable expectation of privacy

in his desk and file cabinets, both of which were located in

his office. Id. at 718.7 The Court found significant the

personal nature of the items in the desk and file cabinets,

"which included personal correspondence, medical files,

correspondence from private patients unconnected to the

Hospital, personal financial records, teaching aids and

notes, and personal gifts and mementos." Id. The papers

were not exclusively private, however, as was demonstrated by

the testimony of one of the investigators who tried to

separate the personal items from the public documents. Id.

at 713 ("`Trying to sort State from non-State, it was too

much to do, so I gave it up and boxed it up.'").

Like the papers contained in Dr. Ortega's files and

desk, the Mayor's personal and public calendar entries are

intermingled. In many instances, it is impossible to

classify an appointment as one or the other. Names of public

officials alone, jotted down next to a preprinted hour of the

7. Before addressing the specifics of Dr. Ortega's case, the
Court first rejected the Solicitor General's position that
public employees can never have a reasonable expectation of
privacy in their place of work. Ortega, 480 U.S. at 717.

The government here makes no such claim.

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day, do not reveal the context of the intended meeting.

Thus, we are not persuaded by the government's argument that

we should resolve this issue mathematically, by calculating

and comparing the number of facially public versus non-public

appointments contained in the calendar. Even if the ratio

could be divined, we believe the proper inquiry to be one of

composite nature, not number. A perusal of the calendar

reveals that many of the Mayor's entries were intended to

remind him of such clearly personal activities as

christenings, bachelor dinners, doctor appointments and

weddings; some even concern his personal plans for holidays.

We are persuaded that these entries make the overall nature

of the calendar sufficiently non-public to justify a

legitimate expectation of privacy.

Moreover, although Mancini's secretaries had access

to the appointment calendar,8 shared access to a document

does not prevent one from claiming Fourth Amendment

protection in that document. See Mancusi v. DeForte, 392

U.S. 364, 369 (1968)(exclusive access to an office or to

documents contained within an office is not a prerequisite to

claiming Fourth Amendment protection).

8. By all accounts, Mancini's appointment calendar is
typical of the kind of calendar maintained by business and
professional people. The daily log appeared to be maintained
by secretaries who worked for the Mayor, the same way
business calendars are often maintained by personal
assistants.

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B. The Attic Archive Room in City Hall

Accepting the district court's conclusion that the

appointment book had a sufficiently personal character to

justify Fourth Amendment protection, the question remains

whether Mancini had a reasonable expectation of privacy in

the place searched. The district court said that the

appointment book was "not remove[d]...from the mayor's

files," but rather was found where a 1987 file could be

"expected to be [found], in the archives." We do not,

however, think this is conclusive. As we have stated:

The most intimate of documents, if
left strewn about in the most public
of places, would surely not [give
rise to an expectation of privacy].
That the items seized were
appellant's personal effects was a
mark in his favor--but without
competent evidence to show that they
were left in a place and under
circumstances which could (and did)
give rise to an expectation of
privacy, the mark fell far short.

United States v. Aguirre, 839 F.2d 854, 857 (1st Cir. 1988)

(footnote omitted). Accordingly, we turn our attention to

the question of Mancini's privacy interest in a box in the

archive attic.

On appeal, both sides rely on cases involving

searches of business premises.9 In the government's view,

9. We agree, for purposes of this appeal, that cases
involving business premises searches are sufficiently
analogous to provide guidance.

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these cases establish that an employee can have an

expectation of privacy only in his or her own work area. Not

surprisingly, Mancini takes the opposite view, i.e., that

case law establishes "beyond peradventure" that an employee's

expectation of privacy is not limited to his own work area.

The truth lies somewhere in between.

It is undisputed that, under certain circumstances,

a corporate officer or employee may assert a reasonable

expectation of privacy in his/her corporate offices even if

shared with others, and may have standing with respect to

searches of corporate premises and records. See, e.g.,

Mancusi 392 U.S. at 369 ("It has long been settled that one

has standing to object to a search of his office as well as

his home."). In addition, "[g]iven the great variety of work

environments in the public sector, the question whether an

employee has a reasonable expectation of privacy must be

addressed on a case-by-case basis." Ortega, 480 U.S. at 718.

We consider the following factors to be especially

relevant to the standing determination:

"ownership, possession and/or control;
historical use of the property searched
or the thing seized; ability to regulate
access; the totality of the surrounding
circumstances; the existence or
nonexistence of a subjective anticipation
of privacy; and the objective
reasonableness of such an expectancy
under the facts of a given case."

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See Sanchez, 943 F.2d at 113 (quoting United States v.

Aguirre, 839 F.2d 854, 856-57 (1st Cir. 1988)). We also take

notice of the position of authority held by the party

asserting his/her fourth amendment rights. United States v.

Brien, 617 F.2d 299, 306 (1st Cir. 1980).

In United States v. Moscatiello, 771 F.2d 589, 601

(1st Cir. 1985), we reversed a district court decision which

denied two individual defendants standing to contest the

search of a warehouse which was owned by a corporation and

used to store marijuana before transport. We rejected the

district court's reasoning that the defendants lacked

standing because they neither owned the warehouse nor used

any portion of it for personal matters. Id. at 601.

Instead, we noted that the defendants, along with two others,

furnished the money to buy the warehouse in the name of a

corporation in which they held all the stock. This, we

concluded, gave them a proprietary interest in the building.

Id. Of more importance, however, was the fact that only the

defendants and one of their coconspirators had keys to the

warehouse, that the warehouse was kept locked, that very few

people had access to it, and that the defendants did, in

fact, keep some personal property there. Id. We therefore

determined that the defendants had standing to contest the

warehouse search. Id.

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In United States v. Thornley, 707 F.2d 622, 624-25

(1st Cir. 1983), on the other hand, we upheld the district

court's rejection of a standing claim made by a defendant who

had removed incriminating documents from his business and had

stored them in the basement of a three-tenant apartment

building owned by a close friend. Id. at 624-25. We found

that several factors militated against defendant having an

objective expectation of privacy, including the facts that

the storage area was a common area that was not kept locked

and that access was possible through an old hole in a

sidewall. Id. at 624. Also, we noted that the area had been

used by a tenant long before defendant's use of it, and that

the tenant was never told that her use was prohibited. Id.

at 624-25. Finally, we observed that the basement was open

not only to tenants, but to children who used it as a play

area. Id. at 625. These facts, combined with the fact that

the defendant was not a tenant of the building and lacked any

evidence to support his expectation of privacy claim,

compelled us to conclude that the defendant "could not

insulate himself against the discovery of incriminating

material by . . . hiding it in a place . . . in which [he]

had no legal interest or even access rights." Id.

(quotations omitted).

Finally, in Brien, we affirmed the district court's

finding of an expectation of privacy on the part of corporate

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employees in business records seized from areas of the

corporate office other than their own work stations. Brien,

617 F.2d at 306. In so doing, we approved the district

court's focus on the following factors: 1) each defendant's

position in the firm; 2) his ownership interest; 3) his

responsibilities; 4) his power to exclude others from the

area; 5) whether he worked in the area; and 6) his presence

at the time of the search. Id. We also found it relevant

that the office in question was noteworthy for its extreme

security measures. Id. at n.9.10

Although we are clearly grappling with matters of

degree, the facts here, in light of the foregoing precedents,

persuade us that the Mayor has demonstrated an objectively

reasonable expectation of privacy in the archive attic.

Mancini was mayor of the city of North Providence for

nineteen years, throughout which he maintained his office in

the same building. The archive attic, as noted previously,

was upstairs in the very building in which Mancini worked

throughout his tenure in political office. Moreover, the

record shows that Mancini took steps to assure that no one

10. Some standing decisions turn on the applicability of
certain business regulations that may reduce one's reasonable
expectation of privacy. See, e.g. United States v. Leary,

846 F.2d 592, 596-98 (10th Cir. 1988) (exporting); United

States v. Chuang, 897 F.2d 646, 649-51 (2d Cir. 1990)

(banking), cert. denied, 498 U.S. 824 (1990). No such

regulations apply to this case.

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would have access to his files without his prior

authorization.11 Finally, we note that Mancini's

belongings were clearly labeled and were segregated from

other items in the secured archive attic.

Accordingly, Mancini could have expected that only

members of the maintenance or personnel staff, who had

instructions not to disturb the Mayor's boxes, could enter

the attic, and that his personal records would not be touched

except with his permission or that of his Chief of Staff.

Cf. Mancusi, 392 U.S. at 369. In our opinion, Mancini's

actions demonstrate an expectation of privacy in the archive

attic which we find to be objectively reasonable.

IV.

CONCLUSION

For the foregoing reasons, we hold that Mancini has

standing to challenge the search and seizure here at issue.

Accordingly, the ruling of the district court is affirmed.
affirmed

11. In addition to Mancini's sworn statement that he
specifically "instructed my Chief of Staff that no one was to
have access to any of my boxes, including the box containing
the calendars, without permission," Robert Hennessey, a city
employee, testified as follows:

Q. Did you have permission to go into this box?
A. No.
Q. Did you have permission to go into any of the
Mayor's property in the archives?
A. No.
Q. Who, if you know, was the only person authorized to
permit entry into those boxes?
A. I would say the Mayor or Leo Perrotta [the Mayor's
Chief of Staff].

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