
USCA1 Opinion

	




                            United States Court of Appeals                            United States Court of Appeals                                For the First Circuit                                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.                                          I.                                          __                                  FACTUAL BACKGROUND                                  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 . . . ."                                         -2-                                          2            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.                                         -3-                                          3                      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."                                         -4-                                          4            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.                                         -5-                                          5            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.                                         II.                                         ___                                  STANDARD OF REVIEW                                  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."                                         -6-                                          6            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.                                                        _____________                                         -7-                                          7            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.                                         III.                                         ____                                      DISCUSSION                                      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            A.  The Mayor's Appointment Calendar            ____________________________________                      In finding that Mancini's appointment calendar is a            "non-public  record,"  the   district  court  analogized  the                                         -8-                                          8            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.                                         -9-                                          9            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.                                         -10-                                          10            B.  The Attic Archive Room in City Hall            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.                                          -11-                                          11            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."                                           -12-                                          12            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.                               ___                                         -13-                                          13                      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                                         -14-                                          14            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.                                         -15-                                          15            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.                                         IV.                                         ___                                      CONCLUSION                                      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].                                         -16-                                          16
