Summary
using the AWA in order to "prevent[] frustration of this court's previously issued . . . warrant"
Summary of this case from Democracy N.C. v. N.C. State Bd. of ElectionsOpinion
MISC. NO. 03-89,
August 22, 2003
MEMORANDUM OPINION
Currently before the court is the government's application for an order directing an apartment complex to provide the Federal Bureau of Investigation ("FBI") access to videotapes recorded by the security camera system located on its premises. In support of its application, the government submitted an affidavit. A telephone conference was held with the Assistant United States Attorney. The matter is thus ripe for decision. Having considered the evidence presented, the court grants the government's application, for the reasons set forth below.
I. Background
This case involves the government's application for an order directing an apartment complex in Maryland to provide access to videotapes, recorded by the security camera system currently located on its premises, from a certain date onward.
The government seeks such access pursuant to the All Writs Act, 28 U.S.C. § 1651, in order to locate defendant Y and to execute a warrant for the arrest of defendant Y previously issued by a judge of this Court. Specifically, the government asserts that the video records sought are of significant importance in locating defendant Y.
In support of its application, the government submitted an affidavit of a Special Deputy United States Marshal assigned to the FBI's Fugitive Task Force in which that agent has averred: (1) that a complaint has been filed in this Court charging defendant Y with Unlawful Flight to Avoid Confinement, 18 U.S.C. § 1073; and (2) that defendant Y, who is aware of an obligation to return to state custody, has fled the state, but may return to visit his/her spouse who resides in a certain apartment complex in Maryland. The affiant states that periodic review of security camera tapes recorded and maintained by the apartment complex where defendant Y's spouse resides is thus likely to lead eventually to the apprehension of defendant Y.
The apartment complex's security cameras record, on videotape, images of visitors entering and leaving the apartments located along the corridor where defendant Y's spouse resides, which is located in a secure part of the complex to which residents and employees have routine access. The security cameras do not, however, record sounds or aural communications.
Employees of the apartment complex have indicated that they will provide FBI agents access to the videotapes recorded by the security camera located along the corridor nearest the apartment in which defendant Y's spouse resides, but only pursuant to a court order. Thus, the apartment complex does not contest the government's application for such an order. The government has further informed the court that access to the desired videotapes may be provided easily to law enforcement agents by the apartment complex employees. The agents plan merely to review the tapes periodically by using apartment complex equipment that is currently in operation and routinely used by complex employees.
II. Discussion
The All Writs Act provides, inter alia:
The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.28 U.S.C. § 1651(a).
In United States v. New York Tel. Co., the United States Supreme Court held that a federal court may issue an order under the All Writs Act when "necessary or appropriate to effectuate and prevent the frustration of orders it has previously issued in its exercise of jurisdiction otherwise obtained." 434 U.S. 159, 172, 98 S.Ct. 364, 372 (1977). The All Writs order of New York Telephone was issued to prevent frustration of a Rule 41 pen register order. Id. However, as this court has observed, other orders, such as arrest warrants, "may also serve as the predicate for an All Writs Act Order. The All Writs Act, read with the New York Telephone gloss, permits the district court, in aid of a valid warrant, to order a third party to provide nonburdensome technical assistance to law enforcement officers." United States v. X, 601 F. Supp. 1039, 1042 (D.Md. 1984) (internal quotation marks and citations omitted) (ordering telephone companies in two different states to provide toll records of two subscribers who were close relatives of a criminal defendant for whom an arrest warrant had been issued and who had not been apprehended). See also United States v. Hall, 583 F. Supp. 717 (E.D.Va. 1984) (ordering a bank to produce credit card records of the former girlfriend of a federal fugitive to assist in his location and apprehension).
The Court held that: (1) Title III did not govern the authorization of the use of pen registers; (2) the district court, under FED. R. CRIM. P. 41, had the power to authorize the installation of the pen registers, as Rule 41 was sufficiently flexible to include within its scope electronic intrusions authorized upon a finding of probable cause; and (3) the order compelling respondent to provide assistance was clearly authorized by the All Writs Act and comported with the intent of Congress. 434 U.S. 159, 98 S.Ct. 364 (1977). The Court based its holding largely on the text of FED. R. CRIM. P. 41(b), read in conjunction with FED. R. CRIM. P. 57(b), stating that it had "repeatedly recognized the power of a federal court to issue such commands under the All Writs Act as may be necessary or appropriate to effectuate and prevent the frustration of orders it has previously issued in its exercise of jurisdiction otherwise obtained." Id. at 172. The Court also found that citizens have a duty to assist in enforcement of the laws as a predicate to FED. R. CRIM. P. 17, which "clearly contemplates" the power to "issue subpoenas and subpoenas duces tecum to nonparty witnesses and to hold noncomplying, nonparty witnesses in contempt." Id. at 175.
The Fourth Circuit has only addressed use of the All Writs Act in the civil context, recently stating that the Act "authoriz[es] a federal court `to issue such commands . . . as may be necessary or appropriate to effectuate and prevent the frustration of orders it has previously issued in its exercise of jurisdiction otherwise obtained.'" Am. Honda Motor Co., Inc., Dealerships Relations Lit., 315 F.3d 417, 437 (4th Cir. 2003) (quoting New York Telephone and holding that the district court had the authority under the Act to enter an injunction to prevent dealers from enforcing an arbitration award obtained pursuant to state arbitration procedures).
In United States v. X, the court found that two telephone subscribers had no legitimate expectation of privacy in telephone company records of their toll calls. 601 F. Supp. 1039, 1042 (D.Md. 1984). Therefore, as the Fourth Amendment was not implicated, the government did not need to show probable cause that the telephone line in question was being used in furtherance of a criminal offense. Id. at 1043. Rather, the court held that the government was only required to show that an order pursuant to the All Writs Act was "necessary and appropriate" so as to effectuate the bench warrant that had already been issued. Id. at 1042-43. The court found that the government had met its required showing by providing a law enforcement agent's affidavit that the defendant had disappeared; that it was likely the defendant maintained telephone contact with his close relatives; and that it was also likely that the requested toll records would provide information regarding the defendant's whereabouts. Id.
Significantly, as in United States v. X, the Fourth Amendment is not implicated in the instant case. The government is not required to obtain a search warrant prior to inspecting the video images already being recorded by the apartment complex, because there is no reasonable expectation of privacy, on the part of the apartment complex tenants or their visitors, in the hallway of the apartment building. United States v. Clark, 67 F.3d 1154, 1162 (5th Cir. 1997) (an apartment tenant had no reasonable expectation of privacy in a common stairs, walkway, or breezeway of the building) (rev'd on other grounds); United States v. Nohara, 3 F.3d 1239, 1241 (9th Cir. 1993) (holding that a tenant had no reasonable expectation of privacy in the hallway of a high security apartment building); United States v. Acosta, 965 F.2d 1248, 1252 (3d Cir. 1992) (holding that a defendant had no reasonable expectation of privacy in an apartment building hallway); United States v. Boden, 854 F.2d 983, 990 (7th Cir. 1988) (a tenant had no expectation of privacy in the common areas of the building); United States v. Holland, 755 F.2d 253, 256 (2d Cir. 1985) (no expectation of privacy in the halls and lobbies of a multi-tenant building, even where guarded by locked doors); United States v. Dickens, 695 F.2d 765, 778 (3d Cir. 1982) (no reasonable expectation of privacy in a staircase accessible to other building tenants).
Moreover, an order pursuant to the All Writs Act is both necessary and appropriate in the instant case. First, an arrest warrant has been issued for defendant Y by a judge of this court. Second, the investigating agent has stated that defendant Y has disappeared; that efforts to locate defendant Y have been unsuccessful; that it is likely defendant Y maintains contact with his/her spouse and may visit the apartment complex where the spouse resides; and that it is likely the requested access to security videotapes will provide information concerning defendant Y's current whereabouts, thereby preventing frustration of this court's previously issued arrest warrant.
Courts have held that neither Title I of the Electronic Communications Privacy Act of 1986 nor Title III of the Omnibus Crime Control and Safe Streets Act of 1968 apply to silent video surveillance, and have thus approved use of orders issued pursuant to the All Writs Act to implement prospective video surveillance even in situations where the Fourth Amendment is implicated upon a showing of probable cause. See United States v. Jackson, 213 F.3d 1269, 679 (10th Cir. 2000); United States v. Falls, 34 F.3d 674, 677 (8th Cir. 1994); United States v. Koyomejian, 970 F.2d 536, 540 (9th Cir. 1992); United States v. Mesa-Rincon, 911 F.2d 1433, 1436-37 (10th Cir. 1990); United States v. Biasucci, 786 F.2d 504, 508 (2d Cir. 1986); United States v. Torres, 751 F.2d 875, 884 (7th Cir. 1984).
Under the narrow scope of the instant facts, which do not require the installation of any new equipment, commitment of resources by apartment complex personnel, or deprivation of any property, it does not appear that notice or a hearing prior to entry of an order is required to avoid derogation of the Fifth Amendment. See United States v. X, 601 F. Supp. 1039 (D.Md. 1984) (granting the government's application for an order under the All Writs Act requiring telephone companies to provide toll records without discussing due process or any need for advance notice or hearing). Cf. United States v. Mountain States Tel. Tel. Co., 616 F.2d 1122, 1132-33 (9th Cir. 1980) (stating in dicta that a telephone company whose cooperation in conducting tracing is sought should be afforded reasonable notice and opportunity to be heard prior to the entry of any order compelling its assistance to ascertain the extent of the burdens imposed); In re Installation of a Pen Register or Touch-Tone Decoder a Terminating Trap, 610 F.2d 1148, 1157 (3d Cir. 1979) (holding that due process required hearing on issue of burdensomeness to telephone companies before compelling them to provide tracing assistance).
Here, the only cooperation required by the apartment complex is merely to provide access to surveillance tapes already in existence, rather than any substantive assistance, and nothing more. Therefore, the order directing the apartment complex to provide access to the security videotapes will not be burdensome for the apartment complex's business operations or its employees. No costs will be incurred by the apartment complex in complying with the order. Indeed, the tapes are readily available and are maintained in the ordinary course of business. Law enforcement agents will simply review the tapes using apartment complex equipment already in place and currently being used on the premises. In fact, the apartment complex employees have not objected to providing the requested access; rather, the employees indicated that they would await a court order before providing access merely to avoid potential legal liability. Thus, due process does not require advance notice and an opportunity to be heard in the instant case.
In conclusion, the government has demonstrated that an order pursuant to the All Writs Act is necessary and appropriate to prevent frustration of this court's earlier-issued arrest warrant. Accordingly, the application for the order was granted by separate Order dated May 15, 2003.