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Ninth Circuit:
Secret Recording of Gun Purchase Was Not a ‘Search’
Panel Says Consent to Enter Motel Room Was Not Negated by Making Audio/Video Recording of Transaction; Applicability of U.S. Supreme Court Decision Disapproving Use of Drug-Sniffing Dog on Porch Rejected
By a MetNews Staff Writer
Two undercover agents and a confidential informant who were granted entry into a motel room for the ostensible purpose of purchasing a firearm and who recorded the transaction by means of audio- and video-devices concealed on their persons did not exceed the implied license granted by the occupant, the Ninth U.S. Circuit Court of Appeals held yesterday.
Senior Circuit Judge Carlos T. Bea wrote for a three-judge panel in affirming the denial in the District Court for the Central District of California of defendant Christopher Esqueda’s motion to suppress the recordings as evidence. Judge John F. Walter rejected the assertion that those recordings were made in violation of the Fourth Amendment.
Esqueda conditionally pled guilty to being a felon in possession of a firearm, preserving his challenge to the denial of his suppression motion.
Bea declared that “where, as here, an officer enters a premises with express consent, and secretly uses recording equipment to capture only what he can see and hear by virtue of that consented entry, no Fourth Amendment search occurs under the trespassory, unlicensed physical intrusion framework as articulated” in two recent U.S. Supreme Court decisions.
The holdings came in 2012, in United States v. Jones, and in 2013, in Florida v. Jardines. Esqueda primarily relied on Jardines.
Drug-Sniffing Dog
In Jardines, the high court held that police, in bringing a drug-sniffing dog to the front porch of a residence in investigating a tip that cannabis was present on the premises, conducted an unlawful warrantless search,
Writing for the majority, Justice Antonin Scalia said that an “implicit license typically permits the visitor to approach the home by the front path, knock promptly, wait briefly to be received, and then (absent invitation to linger longer) leave,” remarking:
“Complying with the terms of that traditional invitation does not require fine-grained legal knowledge; it is generally managed without incident by the Nation’s Girl Scouts and trick-or-treaters.”
He continued:
“But introducing a trained police dog to explore the area around the home in hopes of discovering incriminating evidence is something else. There is no customary invitation to do that. An invitation to engage in canine forensic investigation assuredly does not inhere in the very act of hanging a knocker. To find a visitor knocking on the door is routine (even if sometimes unwelcome); to spot that same visitor exploring the front path with a metal detector, or marching his bloodhound into the garden before saying hello and asking permission, would inspire most of us to—well, call the police. The scope of a license—express or implied—is limited not only to a particular area but also to a specific purpose.”
Esqueda’s Contention
Esqueda argued in his opening brief that under Jardines, “even if an officer has permission to be in a specific area, the officer’s conduct in that area will constitute a search if the owner didn’t permit the officer, either explicitly or implicitly, ‘to do that’ conduct.” He set forth:
“…It is not a ‘habit of the country,’ or a widely shared social expectation, that a person might secretly videotape the interior of a person’s living space after being invited to enter….An invitation into the home might, for instance, imply a right to use the bathroom, to sit on the sofa, or to gaze at the bookshelf or the art on the walls. It might even permit a glimpse into the refrigerator (but probably not the medicine cabinet). If the owner is celebrating his birthday, social norms might permit the partygoers to film; at the very least, when the camera is visible, consent might easily be implied from the circumstances.”
The appellant continued:
“But entering with a hidden video camera—a ‘silent, unblinking lens,’…—to capture everything within sight—and, specifically, to record the resident’s misdeeds to be broadcast in court—far exceeds the implied scope of the imitation into one’s home. Just as an ordinary homeowner does not expect someone to bring a dog to one’s curtilage to sniff for drugs…, or to knock on the door at 4 a.m. to effect an arrest…, a person does not expect someone to bring far more sophisticated equipment, like a concealed video camera, into his or her home to record.”
Bea’s Opinion
Bea responded:
“There is no dispute that the officers stayed within the physical confines of Esqueda’s express consent when inside the motel room. The officers did not, for example, physically attach the recording devices to Esqueda’s property…, surreptitiously enter any part of the motel room without consent…, or leave the recording devices inside the room after they departed…. The officers, rather, merely saw and heard precisely what Esqueda contemplated they would see and hear when he consented to the officers’ entry and voluntarily engaged in an illicit firearms transaction in their presence. As relevant here, Esqueda voluntarily showed the buyers the firearm that he had and that was being sold. Under these circumstances, the officers could plainly testify from memory as to the encounter with Esqueda.”
The surreptitious recordings, he declared, did not transform the invited presence of the officers and the informant into a trespass, in violation of the principles set forth in Jardines. The judge noted that the officers in Jardines has no consent to be snooping on the suspect’s front porch and, by contrast, Esqueda expressly consented to the entry of the three men into his motel room.
“[B]ecause the officers’ physical entry was expressly licensed and therefore itself permissible,” Bea wrote, “the officers’ use of recording equipment once inside did not transform their physical presence into a Fourth Amendment search under Jardines.”
Not New Law
He noted that Jones and Jardines did not establish new law. The senior judge said the “property-based approach to Fourth Amendment search doctrine” utilized in those cases “had governed from the founding” of the nation until the Supreme Court’s 1967 decision in Katz v. United States which established that a reasonable expectation of privacy test.
Jones, Bea explained, made clear that a search takes place either under the test articulated in Katz or under the traditional “physical intrusion” test.
Katz, therefore, did not dilute the force of existing Supreme Court precedents, he wrote. Those cases, Bea pointed out, include On Lee v. United States, decided in 1952, and Lopez v. United States, handed down in 1963, both standing for the proposition that where an undercover officer has express permission to enter an area, the making of a secret recording does not negate the consent.
The case is United States v. Esqueda, 22-50170.
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