United States Court of Appeals
For the First Circuit
Nos. 08-1299, 08-1527, 08-1987
UNITED STATES OF AMERICA,
Appellee,
v.
JOSE LARIOS, BENITO ROBLES, JULIO AGRON,
Defendants, Appellants.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. F. Dennis Saylor, IV, U.S. District Judge]
Before
Lynch, Chief Judge,
Gajarsa* and Lipez, Circuit Judges.
J. Hilary Billings for appellant Agron.
Oscar Cruz, Jr., Assistant Federal Public Defender, for
appellant Robles.
Stephen Paul Maidman for appellant Larios.
Mark T. Quinlivan, Assistant United States Attorney, with whom
Michael K. Loucks, Acting United States Attorney, was on brief, for
appellee.
January 29, 2010
*
Of the Federal Circuit, sitting by designation.
LIPEZ, Circuit Judge. Benito Robles, Jose Larios and
Julio Agron (collectively, "appellants") were captured on
audio/videotape participating in a controlled cocaine transaction
in a motel room with an undercover agent. Robles and Larios
entered guilty pleas to charges of conspiracy to distribute cocaine
and possession of cocaine with intent to distribute, 21 U.S.C. §§
846, 841(a)(1), and, as to Robles, distribution of cocaine, 21
U.S.C. § 841(a)(1). They were each sentenced to 120 months in
prison. Agron proceeded to trial and was convicted of conspiracy
to distribute cocaine and possession of cocaine with intent to
distribute, 21 U.S.C. §§ 846, 841(a)(1), and was sentenced to a
prison term of 168 months.
On appeal, Robles and Larios contend that the district
court erred in admitting the audio recording at sentencing, because
the unauthorized recording was obtained in violation of the federal
wiretap statute, 18 U.S.C. §§ 2510-22 (enacted as Title III of the
Omnibus Crime Control and Safe Streets Act) ("Title III"). Agron
contends, on the same basis, that the court erroneously admitted
the audio recording at trial. Appellants contend that they had a
reasonable expectation of privacy in the motel room where the
controlled transaction took place, and therefore the audio
recording was an "oral communication" protected by Title III. The
government argues that all three appellants lacked a legitimate
expectation of privacy and therefore cannot invoke the protection
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of Title III. Alternatively, it argues that, as to Robles and
Larios, the audio recording was admissible at sentencing as
impeachment evidence.
The government's sweeping assertions as to the legality
of the unauthorized, nonconsensual audio surveillance that took
place here raise some difficult issues. However, because of the
particular facts of this case, we need not address the broader
implications of the government's contentions. As to Robles and
Larios, who only challenge the admission of the audio recording at
sentencing, we conclude that any error in admitting the recording
was harmless, and therefore we do not address whether Robles and
Larios had a reasonable expectation of privacy in the motel room.
As to Agron, who challenges the admission of the audio recording at
trial, we conclude that his brief engagement with the motel room
did not justify a reasonable expectation of privacy in the room,
and thus his communications were not protected by Title III.
I.
A. The Investigation
We draw the facts from the trial transcript and, where
appropriate, the sentencing hearing transcripts.1
In late 2006, the Drug Enforcement Administration (DEA),
together with state and local law enforcement agencies, initiated
1
As noted, Agron proceeded to trial, while Robles and Larios
entered guilty pleas and proceeded to sentencing. Essentially the
same facts were adduced at the trial and sentencing proceedings.
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an investigation of cocaine trafficking in Worcester,
Massachusetts. The investigation was triggered by a tip from a
cooperating source that a drug trafficker in the area was selling
kilogram quantities of cocaine.
On November 1, an undercover DEA agent purchased 125
grams of cocaine from Robles, the target of the investigation, and
arranged to make future purchases of kilogram quantities of
cocaine. On November 9, the undercover agent met with Robles and
flashed him $100,000 in cash to prove the agent's ability to
purchase large drug quantities. The undercover agent agreed to buy
eleven kilograms of cocaine from Robles at a price of $21,500 per
kilogram, and they planned for the transaction to take place the
following day at a local Super 8 motel.
On November 10, DEA agents rented two rooms at the Super
8 motel in Leominster, Massachusetts. Without first obtaining a
warrant, they installed a concealed audio/video recording device in
Room 125, where the planned transaction would take place. From the
second rented room across the hall, agents were able to conduct
electronic surveillance of activities in Room 125 on an audio/video
monitor and to observe the outside of Room 125 through the peephole
in the door. After the rooms had been rented, the undercover agent
met with Robles and gave him an electronic key to Room 125. Later
that day, however, Robles informed the undercover agent that he
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would not be able to deliver the cocaine until the following day,
November 11.
Around 11 a.m. on November 11, Robles and two
unidentified males entered Room 125. The men sat down, drank beer,
and watched television for a few hours. At some point, Robles left
the motel, and the two other men left sometime later. Around 2:00
p.m., Robles returned to Room 125 with Larios, but they were unable
to enter the room because the key had been deactivated. The
undercover agent met Robles in the motel parking lot about a half
hour later, and Robles explained that his key was not working and
he could not get into the room. The undercover agent took the key
to the front desk, had it reactivated for an additional twenty-
four-hour period, and returned the key to Robles. Robles and
Larios then entered Room 125, first cautiously looking around to
see if anyone else was in the room. Shortly thereafter, they left
the motel.
Later that afternoon, Robles called the undercover agent
and said he was ready to do the cocaine transaction. Around 5:30
p.m., Robles, Larios and Agron left Larios's home and got into a
silver pick-up truck. One of the men carried a dark gym bag to the
truck and threw it in the truck bed.2 At around 6:00 p.m.,
2
A law enforcement officer conducting surveillance outside
Larios's home on the afternoon of November 11 observed appellants
leave Larios's home and get into the silver pick-up truck. The
surveilling officer could not identify, at that time, the
individual carrying the dark gym bag.
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appellants arrived at the Super 8 motel and parked beside a red
pick-up truck registered to Robles and occupied by a fourth
individual, Miguel Mayoral. Larios retrieved the gym bag from the
truck bed, while Agron looked around the parking lot. An agent who
conducted surveillance from the parking lot testified that Agron
appeared to be conducting "countersurveillance," looking for any
law enforcement officers in the area. Robles, Larios, and Agron
entered Room 125, again first looking around to see whether anyone
else was there. When they entered the room, Agron was carrying the
gym bag, and he placed it at the foot of the bed.3
After learning from surveillance agents that Robles was
accompanied by two other men, the undercover agent called Robles
and informed him that he would not make the cocaine purchase if
anyone else was there. Robles insisted that his cousin, Larios, be
present, and the undercover agent agreed. The three appellants
then had a discussion, and Robles said to Agron, "Keep your eyes
peeled there, in case you see something strange, you talk to me or
you talk to him . . . ." Agron then left the motel room, walked
out to the parking lot, again looking around, and got into the
parked red pick-up truck with Mayoral.
3
DEA Agent Jamie Vitale, who conducted surveillance from the
motel room on November 11, testified that he could not see who was
carrying the gym bag through the peephole in the door. However,
the video recording of the motel room showed that Agron was
carrying the gym bag when appellants entered Room 125.
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Once the undercover agent received notice that only
Robles and Larios were present in Room 125, he entered the room,
and Robles and Larios explained that they had only been able to
obtain seven kilograms of cocaine, not the eleven kilograms
originally agreed upon. The undercover agent inspected the seven
kilograms of cocaine, which were in the gym bag on the bed. The
undercover agent then gave an arrest signal, and agents arrested
Larios and Robles in Room 125, and Agron and Mayoral in the motel
parking lot. In a search incident to Agron's arrest, agents found
a loaded nine millimeter handgun tucked into the waistband of his
pants.
B. District Court Proceedings
Following their arrests, appellants were indicted by a
federal grand jury. The multi-count indictment charged all three
appellants with conspiracy to distribute cocaine and possession of
cocaine with intent to distribute, 21 U.S.C. §§ 846, 841(a)(1), and
further charged Robles with distribution of cocaine, 21 U.S.C. §
841(a)(1), and Agron with possession of a firearm in furtherance of
a drug trafficking crime, 18 U.S.C. § 924(c)(1). Robles and Larios
pled guilty to the charges against them, while Agron proceeded to
trial.
A central issue at the sentencing of both Robles and
Larios was whether they were entitled to safety valve relief under
18 U.S.C. § 3553(f), which requires, inter alia, that the defendant
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"truthfully provide[] to the Government all information and
evidence the defendant has concerning the offense or offenses that
were part of the same course of conduct or of a common scheme or
plan . . . ." Id.; see also U.S.S.G. § 5c1.2(a)(5). The
government contended that Robles and Larios had not given complete
and truthful proffers, because they had falsely stated in their
safety valve debriefings that Agron had no involvement in the
November 11 transaction. The government sought to present evidence
of Agron's involvement in the transaction, including a five-and-a-
half to six minute segment of the audio/video recording of the
motel room where the transaction occurred and a translated
transcript of the audio recording. The government also notified
Agron of its intention to present this segment of the audio/video
recording and the accompanying transcript at his upcoming trial.
At the outset of Larios's sentencing hearing, he objected
to admission of the audio portion of the recording under the Fourth
Amendment. The court overruled his objection, correctly concluding
that the exclusionary rule ordinarily does not bar the use of
evidence obtained in violation of a defendant's Fourth Amendment
rights in sentencing. See United States v. Acosta, 303 F.3d 78, 86
(1st Cir. 2002) ("Given the great weight of the precedent and
following the unanimous, reasoned approach of our sister circuits,
we hold that the exclusionary rule does not bar the use of evidence
seized in violation of a defendant's Fourth Amendment rights in
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sentencing."); accord United States v. Stark, 499 F.3d 72, 80-81
(1st Cir. 2007). After hearing testimony from law enforcement
officers and viewing and listening to the audio/video recording,
the court concluded that Larios was ineligible for safety valve
relief because he failed to prove that he had made a complete and
truthful proffer. The court found that the evidence showed that
Agron knowingly and willingly participated in the November 11
transaction: he arrived at the motel with Robles and Larios,
entered the motel room carrying the gym bag containing seven
kilograms of cocaine, was asked to leave after the undercover agent
insisted only two people be present, and then waited in the parking
lot with a loaded, concealed firearm. The court was "strongly
influenced by the government's argument that someone doing a
significant drug deal would not bring a random person to the deal,
not a friend who had no involvement and was just there for the ride
. . . ." Larios was sentenced to the mandatory minimum 120-month
term of imprisonment.
The following day, Robles filed a motion to exclude the
audio/video recording at his own upcoming sentencing hearing,
contending that the recording was inadmissible under Title III.
Robles claimed that admission of the recording would violate 18
U.S.C. § 2515, which provides that wire or oral communications
intercepted in violation of Title III may not be received into
evidence in "any trial, hearing, or other proceeding in or before
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any court. . . ." Robles relied solely on Title III, and did not
contend that admission of the recording would violate his rights
under the Fourth Amendment.4 That same day, Larios filed a motion
to stay judgment and reopen his sentencing hearing, arguing that
there were additional grounds for exclusion of the audio/video
recording that had not been advanced at his sentencing hearing.
Several days later, Agron filed a motion to suppress the
audio/video recording at his upcoming trial, also relying solely on
Title III.
The court granted Larios's motion to reopen his
sentencing hearing and stay judgment, and set a briefing schedule
on the issue of whether the audio/video recording was admissible
under Title III. The following month, Robles filed a memorandum in
support of his motion to exclude evidence. In that memorandum, he
expressly disavowed making any Fourth Amendment claim, stating that
he was "not raising any Fourth Amendment violation as the basis for
suppression of the DVD recording at issue," and instead relied
exclusively on Title III. Larios and Agron moved to join in
Robles's motion and supporting memorandum, which the district court
allowed, and did not file separate memoranda in support of their
motions.
4
We surmise that Robles's reliance on Title III as the basis
for his motion to exclude reflected an awareness that, as the
district court had correctly concluded during Larios's sentencing
hearing the previous day, the Fourth Amendment did not provide a
basis for excluding the audio/video recording at sentencing.
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After an evidentiary hearing and arguments from counsel,
the district court denied Agron's motion to suppress and Robles's
and Larios's motions to exclude evidence at sentencing in a ruling
from the bench. First, the court concluded that appellants did not
have an objectively reasonable expectation of privacy in the motel
room under Minnesota v. Carter, 525 U.S. 83 (1998), and therefore
the communications that appellants sought to exclude were not "oral
communications" within the meaning of Title III. In support of its
determination that appellants lacked a reasonable expectation of
privacy, the court found that appellants were in the motel room
only briefly for commercial purposes, the room was rented by law
enforcement agents rather than appellants, and only one appellant,
Robles, had a key to the room. Second, as an alternative ground
for its ruling as to Robles and Larios, the court concluded that
even if the audio/video recording was obtained in violation of
Title III, it was admissible to impeach the truthfulness of
Robles's and Larios's statements in their safety valve proffers.
Following its denial of appellants' motions, the court
lifted the stay of judgment as to Larios and proceeded to Robles's
sentencing. Based on findings similar to those made at Larios's
sentencing hearing, the court concluded that Robles's proffer that
Agron had no involvement in the November 11 transaction was not
complete and truthful, and he was therefore ineligible for safety
valve relief. The court reasoned that "someone doing a drug deal
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would not bring a stranger or a friend along for the ride; and
conversely, somebody going along for the ride would not be waiting
in the parking lot with a gun." The court sentenced Robles to the
mandatory minimum term of 120 months in prison.
After a three-day trial, a jury found Agron guilty of
conspiracy to distribute cocaine and possession of cocaine with
intent to distribute, 21 U.S.C. §§ 846, 841(a)(1), but found him
not guilty of possession of a firearm in furtherance of a drug
trafficking crime, 18 U.S.C. § 924(c)(1). The court sentenced
Agron to a prison term of 168 months.
These consolidated appeals followed.
II.
A. Safety Valve Relief for Robles and Larios
Robles and Larios contend that the district court erred
in denying their motions to exclude the audio/video recording at
sentencing, and ask that their cases be remanded for resentencing.
They argue that they had an objectively reasonable expectation of
privacy in their communications in the motel room, and therefore
the intercepted statements were inadmissible "oral communications"
within the meaning of Title III. They further contend that the
recording was not properly admitted as impeachment evidence,
because they did not testify at their sentencing hearings and
therefore the impeachment exception to the exclusionary rule does
not apply. However, we need not reach the issue of whether the
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audio recording was properly admitted into evidence, either
affirmatively or as impeachment evidence. As we explain below, the
district court had ample evidence, independent of the challenged
audio recording, from which to conclude that Robles and Larios had
not given truthful proffers and were ineligible for safety valve
relief. Therefore, any error in admission of the audio recording
at sentencing was harmless.
Congress enacted the safety valve provision, 18 U.S.C. §
3553(f), in order to "mitigate the harsh effect of mandatory
minimum sentences" for certain first-time, low-level offenders in
drug-trafficking schemes. United States v. Padilla-Colón, 578 F.3d
23, 30 (1st Cir. 2009) (internal quotation marks and citation
omitted). Under this provision, a court may impose a sentence
below the statutory minimum for that offense if the defendant meets
five requirements. 18 U.S.C. § 3553(f); U.S.S.G. § 5C1.2. Here,
only the fifth element is in dispute.5 That element requires that
5
The parties do not dispute that Robles and Larios satisfied
the first four criteria for safety valve relief, which are:
(1) the defendant does not have more than 1
criminal history point, as determined under
the sentencing guidelines;
(2) the defendant did not use violence or
credible threats of violence or possess a
firearm or other dangerous weapon (or induce
another participant to do so) in connection
with the offense;
(3) the offense did not result in death or
serious bodily injury to any person;
(4) the defendant was not an organizer,
leader, manager, or supervisor of others in
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not later than the time of the sentencing
hearing, the defendant has truthfully provided
to the Government all information and evidence
the defendant has concerning the offense or
offenses that were part of the same course of
conduct or of a common scheme or plan, but the
fact that the defendant has no relevant or
useful other information to provide or that
the Government is already aware of the
information shall not preclude a determination
by the court that the defendant has complied
with this requirement.
U.S.S.G. § 5C1.2(a)(5). A defendant who seeks the benefit of the
safety valve bears the burden of proving, by a preponderance of the
evidence, "that he has made truthful, complete, and timely
disclosures to the government." United States v. Bermúdez, 407
F.3d 536, 542 (1st Cir. 2005); see also Padilla-Colón, 578 F.3d at
30. In making this showing, "nothing short of truthful and
complete disclosure will suffice." Bermúdez, 407 F.3d at 542
(internal quotation marks and citations omitted).
Assuming, arguendo, that the district court erred in
admitting the audio recording at sentencing, we review the
proceeding below to determine whether Robles and Larios suffered
prejudice because of the error. See Fed R. Crim. P. 52(a). We
need not remand for resentencing if we conclude, "on the record as
the offense, as determined under the
sentencing guidelines and was not engaged a
continuing criminal enterprise, as defined in
section 408 of the Controlled Substances Act.
. . .
18 U.S.C. § 3553(f)(1)-(4); see also U.S.S.G. § 5C1.2(1)-(4).
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a whole, that the error was harmless, i.e., that the error did not
affect the district court's selection of the sentence imposed."
Williams v. United States, 503 U.S. 193, 203 (1992).
As a preliminary matter, we note that regardless of
whether the audio recording was admissible under Title III, the
court could nevertheless consider the video recording in reaching
its safety valve determination. At Larios's initial sentencing
hearing, he objected to the admission of the audio/video recording
on Fourth Amendment grounds, but the district court overruled that
objection. Subsequently, all three appellants filed motions to bar
admission of the audio/video recording, relying exclusively on
Title III. Indeed, appellants expressly disavowed making any
Fourth Amendment claim. Robles stated in his memorandum in support
of the motion to exclude that he was "not raising any Fourth
Amendment violation as the basis for suppression of the DVD
recording at issue." Larios and Agron moved to join in Robles's
motion and memorandum rather than filing separate memoranda in
support of their motions.
By its terms, Title III regulates the interception and
disclosure of "wire, oral, or electronic communication[s]." 18
U.S.C. § 2511. The statute defines "intercept" as "the aural or
other acquisition of the contents of any wire, electronic, or oral
communication through the use of any electronic, mechanical, or
other device." 18 U.S.C. § 2510(4). Every circuit court to
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address the issue has concluded that Title III does not regulate
silent video surveillance. See United States v. Falls, 34 F.3d
674, 679-80 (8th Cir. 1994); United States v. Koyomejian, 970 F.2d
536, 538 (9th Cir. 1992) (en banc); United States v. Mesa-Rincon,
911 F.2d 1433, 1436-37 (10th Cir. 1990); United States v. Cuevas-
Sanchez, 821 F.2d 248, 251 (5th Cir. 1987); United States v.
Biasucci, 786 F.2d 504, 508-09 (2d Cir. 1986); United States v.
Torres, 751 F.2d 875, 880-81 (7th Cir. 1984). Appellants make no
argument and cite no authorities to the contrary.
We agree with our sister circuits that, by its plain
meaning, the text of Title III does not apply to silent video
surveillance. See Koyomejian, 970 F.2d at 538-39; see also
Biasucci, 786 F.2d at 508; Torres, 751 F.2d at 880. Moreover, the
legislative history of the statute and its more recent amendments
indicate that Congress did not intend the statute to regulate video
surveillance. See Koyomejian, 970 F.2d at 539-40. Thus,
appellants' motions to exclude evidence under Title III challenged
only the admission of the audio recording.6
6
In addition, at the hearing on the motion to exclude
evidence, counsel for Larios expressly conceded that the video
portion of the recording was admissible and argued that the video
recording was consistent with Larios's safety valve proffer.
Defense counsel stated: "the video portion of the -- of the tape,
which is admissible, I think, under -- because it's not the audio
portion, I don't think speaks to somebody who was involved."
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In this case, even without consideration of the
challenged audio recording, the district court had more than
sufficient evidence from which to conclude that Robles's and
Larios's safety valve proffers were untruthful. Robles and Larios
each asserted at their safety valve debriefings that Agron knew
nothing about the November 11 transaction and was not involved in
any way. At sentencing, appellants' proffers were contradicted by
the testimony of three law enforcement agents who conducted
surveillance on November 11, and by the video portion of the
surveillance recording. The testimony and video recording
demonstrated that on the evening of November 11, Agron arrived at
the Super 8 motel with Robles and Larios. As Agron exited the
truck, he looked around the parking lot, conducting what a
surveilling law enforcement agent described as
"countersurveillance." Agron carried a gym bag containing seven
kilograms of cocaine into the motel room. After the undercover
agent called Robles and insisted that no more than two people be
present for the transaction, appellants had some kind of
discussion. Agron then left the motel room and joined Mayoral in
the parked red pick-up truck, again looking around the parking lot.
At Agron's arrest shortly thereafter, agents found a loaded nine
millimeter handgun concealed in his waistband.
This evidence amply supports the district court's
conclusion that, contrary to Robles's and Larios's proffer, Agron
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knowingly participated in the November 11 transaction. In making
its determination, the district court reasonably inferred that
participants engaged in a drug deal "would not bring a stranger or
a friend along for the ride." See United States v. Azubike, 564
F.3d 59, 65 (1st Cir. 2009) ("[D]rug organizations do not usually
take unnecessary risks by trusting critical transactions to
outsiders." (quotation marks and citation omitted)). The court
made the further reasonable inference that a mere bystander who was
simply "going along for the ride" would not have waited in the
parking lot with a concealed, loaded handgun. Although the audio
portion of the recording was presented and considered by the court
at sentencing, it was not necessary to the court's conclusion.7
Even without consideration of the audio recording, the court had
ample evidence from which to conclude that Robles and Larios did
not make the "truthful and complete disclosure" required for safety
valve relief. Bermúdez, 407 F.3d at 542. In light of these facts,
we are satisfied that any error in the admission of the audio
recording was harmless.
7
Indeed, the only portion of the audio recording that appears
relevant to the court's safety valve determination is Robles's
statement to Agron to "Keep your eyes peeled there, in case you see
something strange, you talk to me or you talk to him . . . ."
Agron's own observable conduct indicated that he was at the scene
to provide some kind of surveillance.
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B. Admission of Audio Recording at Agron's Trial
Unlike Robles and Larios, who challenge the introduction
of the audio recording at sentencing, Agron challenges the
admission of the recording at trial. He contends that he had both
a subjective and an objectively reasonable expectation of privacy
in his communications in the motel room, and therefore the
intercepted statements were "oral communications" as defined by 18
U.S.C. § 2510(2). He argues that the audio recording, obtained
without a warrant or his consent, was inadmissible under 18 U.S.C.
§ 2515, and requests that his conviction be vacated and his case
remanded for a new trial. We disagree, concluding that Agron's
fleeting interaction with the motel room did not give rise to an
objectively reasonable expectation of privacy, and therefore his
statements were not "oral communications" governed by Title III.
We note that, in his brief on appeal, Agron appears to
contend that the admission of the audio/video recording violated
not only Title III but also the Fourth Amendment. However, Agron
did not make any Fourth Amendment claim in the district court. As
discussed above, Agron joined in Robles's motion and memorandum
disavowing any Fourth Amendment claim and instead relying solely on
Title III, which does not regulate silent video surveillance.
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Therefore, we address only whether the audio recording was
admissible under Title III.8
1. Legal Background
In evaluating the district court's denial of Agron's
motion to suppress, we apply a mixed standard of review. We review
"the court's findings of fact for clear error and the application
of the law to those facts de novo." United States v.
Vilches-Navarrete, 523 F.3d 1, 12 (1st Cir. 2008) (quotation marks
and citation omitted). To succeed, Agron "must show that no
reasonable view of the evidence supports the district court's
decision." United States v. Dunbar, 553 F.3d 48, 55 (1st Cir.
2009) (quotation marks and citation omitted).
Title III governs the interception of wire, oral, and
electronic communications by the government and private parties.
See 18 U.S.C. § 2511. If a wire or oral communication has been
intercepted in violation of Title III, "no part of the contents of
such communication and no evidence derived therefrom may be
received in evidence in any trial, hearing, or other proceeding in
or before any court . . . ." 18 U.S.C. § 2515.
The statute defines "oral communication" as "any
communication uttered by a person exhibiting an expectation that
8
Of course, silent video surveillance is subject to the
Fourth Amendment, see, e.g., Torres, 751 F.2d at 882, and if Agron
had raised a Fourth Amendment claim, he could have challenged the
admission of the video recording. However, he made no Fourth
Amendment claim in the district court.
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such communication is not subject to interception under
circumstances justifying such expectation." 18 U.S.C. § 2510(2).
We have held that "[t]he legislative history of [this statutory
provision] shows that Congress intended this definition to parallel
the 'reasonable expectation of privacy test' articulated by the
Supreme Court in Katz [v. United States, 389 U.S. 347 (1967)]."
Dunbar, 553 F.3d at 57 (quotation marks and citation omitted).
Thus, "for Title III to apply, the court must conclude: (1) the
defendant had an actual, subjective expectation of privacy -- i.e.,
that his communications were not subject to interception; and (2)
the defendant's expectation is one society would objectively
consider reasonable." United States v. Longoria, 177 F.3d 1179,
1181-82 (10th Cir. 1999) (citing Katz, 389 U.S. at 361 (Harlan, J.,
concurring)).
In a single paragraph in his opening brief, Agron
suggests that Congress intended the "reasonable expectation of
privacy" analysis under Title III to conform to Fourth Amendment
law as it existed when the statute was enacted in 1968, and not to
evolve with later Fourth Amendment jurisprudence. This argument is
unavailing. Agron points to no authority supporting the
proposition that Congress intended the meaning of "oral
communication" to freeze in 1968. Our prior decisions addressing
whether statements are "oral communications" under Title III,
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although not expressly addressing this contention, have relied on
cases decided after 1968. See, e.g., Dunbar, 553 F.3d at 57.
We conclude that the most reasonable reading of the
statute is that the meaning of "oral communication" was intended to
parallel evolving Fourth Amendment jurisprudence on reasonable
expectations of privacy in one's communications. As one district
court opinion reasoned in rejecting an argument identical to
Agron's, in enacting Title III Congress was "on clear notice of the
dynamic quality of the law relating to the Fourth Amendment. . . .
Thus, when Title III was enacted it was foreseeable that the law
concerning the Fourth Amendment would continue to evolve." United
States v. Salemme, 91 F. Supp. 2d 141, 394 (D. Mass. 1999), rev'd
in part on other grounds, United States v. Flemmi, 225 F.3d 78 (1st
Cir. 2000). Therefore, we do not limit our analysis to the
universe of cases that existed in 1968.
2. Analysis
In its denial of Agron's motion to suppress, the district
court stated that it "assume[d] -- and no one seems to particularly
dispute -- that the defendants, indeed, had a subjective
expectation of privacy in the motel room." On appeal, the
government states that it does not challenge the court's conclusion
that appellants had a subjective expectation of privacy in the
motel room. Therefore, we focus on whether Agron had an
objectively reasonable expectation of privacy in his oral
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communications in the motel room. We do not need to, nor do we,
address whether he had a reasonable expectation of privacy in not
being filmed.
In denying Agron's motion to suppress, the district court
reasoned that under Minnesota v. Carter, Agron had no objectively
reasonable expectation of privacy in the motel room. In Carter, a
police officer looked through a gap in the closed blinds of an
apartment and saw the lessee of the apartment bagging cocaine
alongside the defendants, who were visiting the apartment for
approximately two-and-a-half hours. 525 U.S. at 85-86. The Court
upheld the denial of the defendants' motion to suppress, concluding
that the defendants, unlike an overnight house guest, had no
legitimate expectation of privacy in the apartment. The Court
noted, inter alia, that the defendants were only present in the
apartment for a few hours, they had no previous relationship with
the apartment-lessee, and there was nothing suggesting the "degree
of acceptance into the household" present in an overnight guest
relationship. Id. at 90-91; see also United States v. Rodríguez-
Lozada, 558 F.3d 29, 37 (1st Cir. 2009) (holding that a defendant
who was "a casual visitor for a brief period" in another person's
apartment had no reasonable expectation of privacy in the
apartment); United States v. Torres, 162 F.3d 6, 10 (1st Cir. 1998)
(same).
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Here, too, Agron's brief visit to the Super 8 motel room
did not give rise to an objectively reasonable expectation of
privacy in his communications in the room. Agron's interaction
with the motel room was limited to a span of minutes. He entered
the room for the first and only time at around 6:00 p.m. on the
evening of November 11. His purpose in coming to the motel room
was to conduct a brief transaction and then leave. He had not
rented the room and did not have a key. Instead, he entered with
Larios and Robles, who unlocked the door to the room. He left the
room just a few minutes later, after the undercover agent called
Robles and told him that he wanted no more than two people present
for the drug transaction. Agron's fleeting visit to another
person's motel room does not give him a privacy interest in his
communications in the room.
Agron contends that in concluding that he lacked a
reasonable expectation of privacy in the motel room, the district
court failed to sufficiently consider the severity of the
government's intrusion into his privacy.9 He argues that even if
he lacked a reasonable expectation of privacy from physical
9
In its ruling, the district court did acknowledge that
hidden audio/video surveillance was a particularly severe form of
government intrusion.
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observation in the motel room, he nevertheless had a reasonable
expectation of privacy from surreptitious audio surveillance.10
We agree that, at least in theory, privacy interests in
not being overheard may be greater than in not being seen, and vice
versa, depending on the circumstances of the case. We have
recognized that, as a general matter, whether an individual has a
reasonable expectation of privacy may depend in part on the nature
of the government intrusion. See Vega-Rodríguez v. P.R. Tel. Co.,
110 F.3d 174, 180 (1st Cir. 1997) ("The precise extent of an
employee's expectation of privacy often turns on the nature of an
intended intrusion."). However, the cases relied upon by Agron are
clearly distinguishable. In United States v. Nerber, 222 F.3d 597
(9th Cir. 2000), a hidden video camera captured two defendants
conducting a narcotics transaction with confidential informants in
a hotel room rented by law enforcement agents. Id. at 599. After
the informants left, the video camera recorded the motel room for
the next three hours, as two additional defendants entered the room
and the four defendants "brandished weapons and sampled cocaine."
Id. The court held that "considering the totality of the
circumstances of this case, including but not limited to the nature
of the governmental intrusion," the defendants had a reasonable
10
Agron describes the intrusion in this case as secret
audio/video surveillance. However, as discussed above, Agron's
motion to suppress was premised solely on Title III, which applies
to audio surveillance, not silent video surveillance. Therefore,
we address only the government's audio surveillance.
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expectation that they would be free from video surveillance after
the informants left. Id. at 600, 604.11
In United States v. Padilla, 520 F.2d 526 (1st Cir.
1975), we held that secret audio surveillance of a motel room
violated the defendant's reasonable expectation of privacy. Id. at
528. Law enforcement agents had rented a motel room for the
defendant and installed a hidden microphone in his room. Id. at
527. The defendant stayed overnight in the room and used it as his
"temporary residence" while in San Juan, Puerto Rico. Id. We
concluded that when the defendant was left alone in his room, he
had a justifiable expectation of privacy in his surroundings. Id.
Agron's engagement with the motel room in this case was
far more fleeting than that of the defendants in Nerber and
Padilla. Unlike the defendant in Padilla, he did not stay in the
motel room overnight or use it as anything like a "temporary
residence." See id. And unlike the Nerber defendants, he did not
spend over three hours in the motel room, sampling drugs and
interacting with his co-defendants. See Nerber, 222 F.3d at 599.
Instead, Agron spent just minutes in the motel room before he was
asked to leave.12 We conclude that, considering the totality of the
11
In Nerber, the government conceded that audio surveillance
conducted after the informants departed the motel room was
inadmissible under Title III. Id. at 604. The government makes no
such concession in this case.
12
United States v. Ingram, No. 04-201-CR-1, 2005 WL 775930
(S.D. Ind. Mar. 25, 2005), a district court case that found the
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circumstances, Agron had no reasonable expectation that he would be
free from audio surveillance during his brief visit to another
person's motel room.13
reasoning in Nerber persuasive, is also readily distinguishable.
In Ingram, the court concluded that two defendants alone in a motel
room rented by law enforcement agents had a reasonable expectation
of privacy from secret video/audio surveillance. Id. at *6. The
defendants arrived at the motel room in the night, spent five to
seven hours there, two of them slept for several hours, and they
"made themselves comfortable, ate, talked, relaxed, and generally
settled in for a short but restful overnight stay." Id. at *4.
The court held that, based on the defendants' engagement with the
motel room and the severely intrusive nature of the audio/video
surveillance, they had a reasonable expectation of privacy in the
room. Id. at *6. In this case, Agron's few minutes in the motel
room did not in any way resemble a "short but restful overnight
stay."
13
Agron also filed a pro se supplemental brief raising several
claims that were not raised in the district court, and are
therefore reviewed for plain error. United States v. Stepanian,
570 F.3d 51, 59 (1st Cir. 2009). We find no error. First, Agron
contends that the government failed to establish that law
enforcement agents rented the motel room where the drug transaction
took place. However, law enforcement agent testimony demonstrated
that the DEA rented two rooms at the Super 8 motel and gave the key
for one of the rooms to Robles. Second, he argues that the
criminal complaint against him was not supported by probable cause,
noting that the complaint did not mention that the investigation
began after DEA agents received a tip from a cooperating source.
However, in an affidavit filed with the criminal complaint, Agent
Vitale set forth the events leading up to Agron's arrest and noted
that he was not providing an exhaustive list of all known facts
related to the investigation. The magistrate judge did not err in
finding probable cause based on this affidavit. Third, Agron
argues that the prosecutor knowingly elicited false testimony at
trial. He contends that Agent Vitale's testimony that the
investigation began after the DEA received a tip from a cooperating
source was false, because it was not included in Vitale's affidavit
in support of the criminal complaint. As noted, however, Vitale's
affidavit was not an exhaustive catalogue of every fact known to
him about the investigation, and there is no indication that his
testimony was false.
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Affirmed.
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