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UNITED STATES v. CONLEY

February 3, 1993

UNITED STATES OF AMERICA,
v.
JOHN F. "Duffy" CONLEY, WILLIAM C. CURTIN, SHEILA F. SMITH, JOHN FRANCIS "Jack" CONLEY, THOMAS "Bud" McGRATH, MARK A. ABBOTT, THOMAS ROSSI, WILLIAM STEINHART, ROBERTA FLEAGLE, ROBIN SPRATT, MONICA C. KAIL, WILLIAM J. REED, JOANNE T. SMITH, KENNETH "Ron" GOODWIN, LAWRENCE N. "Neudy" DEMINO, SR., CHRISTOPHER "Chris" KAIL, JOSEPH A. DEVITA, FRANK GAROFALO, THOMAS D. CIOCCO, MICHAEL SUKALY, PHILLIP M. "Mike" FERRELL, ANESTOS "Naz" RODITES, and WILLIAM E. RUSIN, Defendants.



The opinion of the court was delivered by: DONALD J. LEE

MEMORANDUM OPINION

 February 3, 1993.

 Before the Court is the issue of the suppression of the fruits of a September 23, 1988 search of a building located at 930 Saw Mill Run Boulevard.

 I. Standing

 A. Findings of Fact

 1. In September 1988, 930 Saw Mill Run Boulevard ("930 Saw Mill Run" or "the premises") was a two-story, brown-brick building located between a gasoline station and a salt or cinder pile in a strip of commercial properties. The words "Conley Motor Freight" were painted on the outside of the building.

 2. The building had two entrances, one facing the street and one in the rear of the building. The front door could be unlocked from the outside, and the first floor office space could be accessed by the use of second key. The back entrance consisted of a storm door and an inner door. The back entrance could not be unlocked from the outside.

 3. "No trespassing" signs were posted in the front door, the back door and a window on the right side of the building (viewed from the street). Persons seeking to enter the premises were directed by a sign to the back entrance.

 4. Inside the back doors was a storage room. Beyond the storage room, through another doorway, was the first floor office space. The second story also contained office space.

 5. Defendant John Francis "Jack" Conley ("Jack Conley") owned the real estate and building comprising the premises.

 6. Two businesses occupied the premises: Conley Motor Freight, a steel hauling and trucking business, and Duffy Vending Company ("Duffy Vending"), a vending company.

 7. Jack Conley owned Conley Motor Freight. He had two employees. One worked in the first-floor office space, and the other worked in a garage in the same building. Six or seven independent truckers were associated with Conley Motor Freight. They each made an average of two visits per week to the premises.

 8. Jack Conley maintained a desk in the first floor office space of the premises, situated near the right-side window to afford him a view of persons entering and exiting the premises.

 9. Jack Conley worked at the premises on a daily basis, spending a considerable amount of time there each week.

 10. Conley Motor Freight's business at the premises was conducted by telephones registered to Conley Motor Freight. Conley Motor Freight did not solicit walk-in business at the premises in any manner.

 11. Defendant John F. "Duffy" Conley ("Duffy Conley"), Jack Conley's son, owned Duffy Vending. Defendants Sheila F. Smith and William C. Curtin were employees of Duffy Vending. Defendant Sheila Smith and one Helen Grosskopf worked at the premises as full-time secretaries.

 12. Duffy Conley, as owner of Duffy Vending, maintained operational control over its business and records. All Duffy Vending business records were maintained at the premises.

 13. Duffy Conley had a desk in the first-floor office space of the premises, in which he kept customer contracts, bills, notes and agreements. In a filing cabinet next to his desk, he kept checkbooks, canceled checks, bank statements and deposit slips.

 14. Helen Grosskopf and Sheila Smith each had a desk on the premises and maintained Duffy Vending records in their desks.

 15. William Curtin did not have a desk on the premises.

 16. Duffy Conley worked at the premises at least forty-five minutes a day, five days a week. He occasionally worked there on evenings and weekends. He reviewed and balanced customer accounts using all the records maintained on the premises.

 17. Duffy Vending did not solicit walk-in business in any manner. No showroom existed on the premises, and customers were not invited to the premises.

 18. Persons who regularly frequented the premises were limited to Jack Conley, his two employees, the independent truckers, Duffy Conley, Sheila Smith, Helen Grosskopf and Patrick Barth, a United Parcel Service driver who made deliveries an average four times a week.

 19. Occasionally, other employees of Duffy Vending visited the premises, as did personal friends of Jack Conley.

 20. The indictment charges that William C. Curtin was had an interest in and much supervisory control over the charged illegal gambling business. Specifically, it charges that he was the general manager of Duffy Vending Co. Indictment at 2, P 3. It charges that he, among others, conducted, managed and owned an illegal gambling business.

 Id. at 8, P 21(a), 34. It further charges that he and Duffy Conley used the proceeds of the illegal gambling business to pay cash supplements to the employees of Duffy vending. Id. at 14, P 32.

 21. Jack Conley had a subjective expectation that the premises would remain free from private and governmental intrusions.

 22. Duffy Conley had a subjective expectation that the premises would remain free from private and governmental intrusions.

 23. Sheila Smith had a subjective expectation that the premises would remain free from private and governmental intrusions.

 B. Conclusions of Law.

 24. "Whether these defendants can demonstrate an invasion of their own Fourth Amendment privacy interests 'depends not upon a property right in the invaded place but upon whether the person who claims the protection of the amendment has a legitimate expectation of privacy in the invaded place.'" United States v. Acosta, 965 F.2d 1248, 1256 (3d Cir. 1992) (emphasis deleted) (quoting Rakas v. Illinois, 439 U.S. 128, 143, 58 L. Ed. 2d 387, 99 S. Ct. 421 (1978)). Standing to challenge a search cannot be founded only on a legitimate expectation of privacy in the items seized; there must be a legitimate expectation of privacy in the areas searched. United States v. Leary, 846 F.2d 592, 595 (10th Cir. 1988).

 25. Notwithstanding the use of the word "houses" in the Fourth Amendment, persons may have a legitimate expectation of privacy in commercial premises. See Mancusi v. DeForte, 392 U.S. 364, 20 L. Ed. 2d 1154, 88 S. Ct. 2120 (1968); See v. City of Seattle, 387 U.S. 541, 18 L. Ed. 2d 943, 87 S. Ct. 1737 (1967); United States v. Chuang, 897 F.2d 646, 649-50 (2d Cir.), cert. denied, 498 U.S. 824, 112 L. Ed. 2d 50, 111 S. Ct. 77 (1990); Leary, 846 F.2d at 595-96; see also United States v. Forsythe, 560 F.2d 1127, 1132 n.5 (3d Cir. 1977).

 26. One seeking to challenge a search of a commercial premises bears the burden of establishing a reasonable expectation of privacy. See Rakas, 439 U.S. at 130 n.1; Acosta, 965 F.2d at 1256 n.9. This entails establishing that the challenger had a subjective expectation of privacy in the searched premises and that the expectation of privacy is "one that society accepts as reasonable." Chuang, 897 F.2d at 649.

 27. Whether an expectation of privacy is reasonable depends on several factors. Courts have looked at whether the challenger had a property or possessory interest, id., whether the area searched or items seized were knowingly exposed to the public, California v. Greenwood, 486 U.S. 35, 100 L. Ed. 2d 30, 108 S. Ct. 1625 (1988); Oliver v. United States, 466 U.S. 170, 80 L. Ed. 2d 214, 104 S. Ct. 1735 (1984), whether a commercial premises is part of a "'closely regulated' industry," New York v. Burger, 482 U.S. 691, 96 L. Ed. 2d 601, 107 S. Ct. 2636 (1987), and whether there is a significant relationship between the area searched and the challenger's work spaces. Chuang, 897 F.2d at 649.

 29. The limited number of persons frequenting the premises on a regular basis, the lack of solicitation of walk-in business, the posting of "no trespassing" signs and Jack Conley's monitoring of persons entering and leaving the premises demonstrates that the premises were not knowingly exposed to the public.

 30. Neither the trucking business nor the vending business are "closely regulated industries" in any relevant sense. Cf. Chuang, 897 F.2d at 650-51 (no reasonable expectation of privacy in bank records subject to statutorily mandated bi-annual government review).

 31. This Court concludes that the subjective expectations of privacy of Jack Conley, Duffy Conley and Sheila Smith ones that society accepts as reasonable.

 32. Because the record shows no substantial connection, by way of a desk, office, property or regular presence, between William Curtain and the premises of 930 Saw Mill Run Boulevard, the Court concludes that he cannot have a reasonable expectation of privacy sufficient to challenge the search, whatever his subjective expectations may have been. Cf. Leary, 846 F.2d at 595 ("There is no doubt that a corporate officer or employee may assert a reasonable or legitimate expectation of privacy in his corporate office") (emphasis added).

 II. Probable Cause

 A. Findings of Fact

 33. On September 23, 1988, Detective John Bosetti of the City of Pittsburgh police presented to District Justice Anne Marie Sharding an application and affidavit of probable cause for a search warrant for premises located at 930 Saw Mill Run Boulevard.

 34. After reviewing the warrant, a process that took between fifteen and thirty minutes, the District Justice issued the warrant. No other warrant applications were before the District Justice at the time Detective Bosetti presented the warrant application and affidavit.

 35. As part of process of issuance, the District Justice administered an oath to Detective Bosetti regarding the truth of the averments in the affidavit.

 36. The District Justice read the affidavit, but asked no questions of Detective Bosetti regarding it. Detective Bosetti did not orally ...


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