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UNITED STATES v. CONLEY

January 7, 1994

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

 I. "Standing"

 
(A) Searches and Seizures of Machines from Approximately 80 Locations
 
(i) Findings of Fact
 
(ii) Discussion
 
(a) Procedural Background
 
(b) The Applicable Legal Standard
 
(c) Duffy Conley's Contentions
 
(d) The Government's Contentions
 
(e) The Court's Analysis
 
(iii) Conclusions of Law
 
(B) Reasonable Expectations of Privacy in 930 Saw Mill Run
 
(i) Findings of Fact
 
(ii) Conclusions of Law

 II. The Merits

 
(A) The Issuance of Search Warrants on September 22, 1988
 
(i) Finding of Fact
 
(ii) Discussion
 
(iii) Conclusions of Law
 
(B) Material Omissions from the September 23, 1988 Search Warrant Application for 930 Saw Mill Run
 
(i) Findings of Fact
 
(a) The Existence of 3100 Windgap Road
 
(b) Date of Conduct underlying Prior Conviction
 
(c) Date of Applications for Permits then on Current Display
 
(ii) Discussion
 
(a) The Applicable Law
 
(b) The Existence of 3100 Windgap Road
 
(c) Date of Conduct underlying Prior Conviction
 
(d) Date of Applications for Permits then on Current Display
 
(iii) Conclusions of Law
 
(C) The Execution of the Search Warrant for 930 Saw Mill Run on September 23, 1988
 
(i) Findings of Fact
 
(ii) Discussion
 
(a) Choice of Law
 
(b) Reasonableness under Fourth Amendment Standards
 
(iii) Conclusions of Law

 ORDER OF COURT

 MEMORANDUM OPINION

 Before the Court are the Defendants' motions challenging various searches conducted on September 23, 1988 by state officers pursuant to state warrants. *fn1"

 I. "Standing"

 (A) Searches and Seizures of Machines from Approximately 80 Locations

 (i) Findings of Fact

 1. On September 23, 1988, state and local police officers, pursuant to state warrants, simultaneously searched approximately 100 separate locations--bars, delicatessens, coffee shops, etc.-- for evidence of illegal video poker machine gambling.

 2. At approximately 80 locations, video poker machines owned by Defendant John F. "Duffy" Conley ("Duffy Conley"), the sole proprietor of Duffy's Vending Company, were seized. The police seized poker machines, removed them to a secure location, and then forced opened the compartments of the machines. No further search warrants were obtained.

 4. The seized video poker machines were visible to all patrons of the searched businesses. The video poker machines were in areas that were open to the public.

 5. A typical video poker machine was encased in a cabinet approximately five feet tall, three feet wide and three feet deep. The video display monitor, where a player viewed the game, was located at the top front of the cabinet. Below the video display monitor was the control panel, which contained the buttons that enabled a player to operate the machine. Two compartments, an upper compartment and a lower compartment, were located below the control panel and made up the remainder of the machine.

 6. In a typical video poker machine, *fn2" the upper compartment, with a volume of about three cubic feet, contained the electronics that made the machine a video poker machine. It contained a circuit board and meters. Duffy's Vending Company employees also stored service slips and keys to the lower compartment in the upper compartment.

 7. The upper compartment was secured by a lock and key. Only Duffy Conley and certain employees whom he designated had access to the keys to the upper compartments of machines. Only those with access to the keys had access to the upper compartments.

 8. The owners and operators of the locations in which the machines were placed did not have access to the keys to the upper compartment. Therefore, they did not have access to the upper compartments.

 9. The lower compartment contained a detachable receptacle into which the bills and coins fed into the machine by players fell.

 10. The lower compartment was also secured by a lock and key. The owners and operators of the machines had keys to the lower compartment. For each machine, the keys to the upper and lower compartments were different.

 11. The seized video poker machines were equipped with electronic "knock off" switches, which removed accumulated credits when players were paid-off. They were also equipped with meters to record the total amount of credits granted for money deposited and the amount of credits "knocked off" when players were paid-off. With each credit worth twenty-five cents, the machine recorded both its own gross receipts and receipts net of money paid out as winnings to players.

 12. By pressing the buttons on the control panel in a certain sequence, the information stored in the meter functions could be displayed on the video display monitor.

 13. When a collector from Duffy Vending arrived to service a machine and collect money from the machine, the collector accessed the meter functions. The information then shown on the video display monitor, although unintelligible to the uninitiated, was available to be viewed by anyone present at the location who cared to look at it.

 14. The capias clauses of the warrants executed at the eighty locations authorized the seizure of numerous items including remote or internal "knock-off" switches, all money wagered in the machines, money intended for pay-offs on machines, records of pay-offs, meters, keys to machines and other paraphernalia indicative of illegal gambling.

 (ii) Discussion

 (a) Procedural Background

 The Court has been "instructed that in Rakas v. Illinois, 439 U.S. 128, 99 S. Ct. 421, 58 L. Ed. 2d 387 (1978), the Supreme Court 'abandoned a separate inquiry into a defendant's "standing" to contest an allegedly illegal search in favor of an inquiry that focused directly on the substance of the defendant's claim that he or she possessed a "legitimate expectation of privacy" in the area searched,'" United States v. Felton, 753 F.2d 256, 259 (3d Cir. 1985) (quoting Rawlings v. Kentucky, 448 U.S. 98, 104, 65 L. Ed. 2d 633, 100 S. Ct. 2556 (1980)). Nonetheless, the Court, in an effort to simplify and expedite the lengthy pretrial proceedings in this case, has employed the "standing" terminology as "short-hand" for expectations protected by the Fourth Amendment. The Court has attempted to adjudicate, without reference to the merits, the defendants' Fourth Amendment motions and joinders therein, where it has been clear that no federally secured right of a particular defendant has been violated. Cf. Rawlings v. Kentucky, 448 U.S. 98, 111-12, 65 L. Ed. 2d 633, 100 S. Ct. 2556 (1980) (Blackmun. J., concurring); see, e.g., General Order of Court 13, P 3, United States v. Conley, 856 F. Supp. 1010, 1994 U.S. Dist. LEXIS 7281 (W.D. Pa. 1993) (Document No. 616). Generally, this approach has had a salutary effect. *fn3"

 With reference to the eighty searches conducted on September 23, 1988, the Court held a hearing pursuant to Simmons v. United States, 390 U.S. 377, 19 L. Ed. 2d 1247, 88 S. Ct. 967 (1968), at which Defendant Duffy Conley testified. *fn4" The hearing was to determine whether or not the Court, without referring to probable cause and the warrants for the eighty locations, could properly conclude that the police violated none of Duffy Conley's Fourth Amendment rights. For the following reasons, the Court regrettably concludes that it cannot reach such a conclusion and must review the circumstances of each of the eighty searches.

 (b) The Applicable Legal Standard

 Early in the twentieth century, a defendant's Fourth Amendment rights were intimately dependent on the defendant's property rights. See, e.g., Gouled v. United States, 255 U.S. 298, 309-11, 65 L. Ed. 647, 41 S. Ct. 261 (1921), overruled, Warden v. Hayden, 387 U.S. 294, 18 L. Ed. 2d 782, 87 S. Ct. 1642 (1967); Olmstead v. United States, 277 U.S. 438, 464-67, 72 L. Ed. 944, 48 S. Ct. 564 (1928), overruled, Katz v. United States, 389 U.S. 347, 19 L. Ed. 2d 576, 88 S. Ct. 507 (1967); see also Warden v. Hayden, 387 U.S. 294, 303-04, 18 L. Ed. 2d 782, 87 S. Ct. 1642 (1967). By the late 1960's, however, the Supreme Court was shifting the focus of its Fourth Amendment jurisprudence away from property rights and towards privacy rights. Katz v. United States, 389 U.S. 347, 19 L. Ed. 2d 576, 88 S. Ct. 507 (1967); Hayden, 387 U.S. at 304-08. Emphasizing the dual innovations of recognizing privacy interests under the Fourth Amendment and excluding items seized in violation of the Fourth Amendment pursuant to the exclusionary rule, Hayden, 387 U.S. at 304-08, the Court concluded that "the premise that property interests control the right of the Government to search and seize has been discredited." Id. at 304.

 Shortly after the Court's decision in Hayden, the privacy innovation was clearly declared in Katz v. United States, 389 U.S. 347, 19 L. Ed. 2d 576, 88 S. Ct. 507 (1967). The Supreme court recognized that the Fourth Amendment "protects individual privacy against certain kinds of governmental intrusion, but its protections go further, and often have nothing to do with privacy at all." Id. at 350. The Court emphasized that "the Fourth Amendment protects people, not places." Id. at 351. Holding that the defendant's Fourth Amendment rights were violated when the government listened to and recorded his conversations within a telephone booth, the Court stated that a "'search and seizure'" occurred when the government "violated the privacy upon which he justifiably relied." Id. at 353.

 Concurring in Katz, Justice Harlan stated, "My understanding of the rule that has emerged from prior decisions is that there is a twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as 'reasonable.'" Id. at 361 (Harlan, J. concurring). Justice Harlan's formulation of the "reasonable expectation of privacy" test is the formulation now applied by the majority of the Court. See, e.g., Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 616, 103 L. Ed. 2d 639, 109 S. Ct. 1402 (1989); California v. Greenwood, 486 U.S. 35, 39, 100 L. Ed. 2d 30, 108 S. Ct. 1625 (1988); Oliver v. United States, 466 U.S. 170, 177, 80 L. Ed. 2d 214, 104 S. Ct. 1735 (1984).

 Prior to the property/privacy innovations of Hayden and Katz, it was well established that Fourth Amendment rights were personal and one who was not aggrieved by the search or seizure could not object to the admission of the seized evidence. Jones v. United States, 362 U.S. 257, 261, 4 L. Ed. 2d 697, 80 S. Ct. 725 (1960), overruled, United States v. Salvucci, 448 U.S. 83, 65 L. Ed. 2d 619, 100 S. Ct. 2547 (1980); United States v. Jeffers, 342 U.S. 48, 96 L. Ed. 59, 72 S. Ct. 93 (1951); Hatch v. Reardon, 204 U.S. 152, 160, 51 L. Ed. 415, 27 S. Ct. 188 (1907). That is, "[a] person who is aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person's premises or property has not had any of his Fourth Amendment rights infringed." Rakas v. Illinois, 439 U.S. 128, 134, 58 L. Ed. 2d 387, 99 S. Ct. 421 (1978) (citing Alderman v. United States, 394 U.S. 165, 174, 22 L. Ed. 2d 176, 89 S. Ct. 961 (1969)).

 In Rakas, as noted supra, Part I(A)(ii)(a), the Supreme Court abandoned previous case law that had suggested that a separate inquiry into who was an aggrieved party, an inquiry into "standing," was required or useful. The Court instructed that a court's inquiry should be directed to "the substantive question of whether or not the proponent of the motion to suppress has had his own Fourth Amendment rights infringed by the search and seizure which he seeks to challenge." Rakas, 439 U.S. at 133, 138-40.

 Further, the Court cited the Katz "legitimate expectation of privacy" test as providing guidance in defining protected Fourth Amendment interests. Id. at 143 & n.12. The Court took care to state that property interests were neither necessary nor sufficient conditions precedent to a reasonable expectation of privacy. *fn5" Id.

 In United States v. Salvucci, 448 U.S. 83, 65 L. Ed. 2d 619, 100 S. Ct. 2547 (1980) and its companion case, Rawlings v. Kentucky, 448 U.S. 98, 65 L. Ed. 2d 633, 100 S. Ct. 2556 (1980), the Court placed almost exclusive reliance on reasonable expectations of privacy in defining the scope of Fourth Amendment rights. The Salvucci Court, as one of the reasons for rejecting the "automatic standing" rule of Jones V. United States, 362 U.S. 257, 4 L. Ed. 2d 697, 80 S. Ct. 725 (1960), "declined to use possession of a seized good as a substitute for a factual finding that the owner of the good had a legitimate expectation of privacy in the area searched." Salvucci, 448 U.S. at 92; see also id. at 91 & n.6.

 In Rawlings, the defendant contended that his ownership of the items seized conferred the right to challenge the search of another's purse, where the items seized had been located. The Supreme Court rejected his contention, stating:

 Id. at 105 (emphasis added). Notwithstanding Salvucci and Rawlings, the Supreme Court's subsequent cases have reaffirmed that the Fourth Amendment protects certain property interests.

 Adopting distinct definitions of a "search" and a "seizure," the Court has held that the Fourth Amendment's prohibition against unreasonable "seizures" protects property interests. Soldal v. Cook County, 121 L. Ed. 2d 450, U.S. , 113 S. Ct. 538, 544 (1992) (citing cases); United States v. Jacobsen, 466 U.S. 109, 80 L. Ed. 2d 85, 104 S. Ct. 1652 (1984). In Jacobsen, the Court first clearly enunciated the distinction, stating:

 
[The Fourth Amendment] protects two types of expectations, one involving "searches," the other "seizures." A "search" occurs when an expectation of privacy that society is prepared to accept as reasonable is infringed. A "seizure" of property occurs when there is some meaningful interference with an individual's possessory interests in that property.

 Id. at 113 (emphasis added). The Court has also distinguished the manner in which the Fourth Amendment protects the two expectations.

 Absent a recognized exception, the probable cause, particularity and warrant requirements of the Fourth Amendment apply equally to searches and seizures. The Court has recently stated, "Time and again, this Court has observed that searches and seizures conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment--subject only to a few specifically established and well delineated exceptions." Minnesota v. Dickerson, 124 L. Ed. 2d 334, U.S. , 113 S. Ct. 2130, 2135 (1993) (internal quotations and citations omitted). What distinguishes the Fourth ...


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