UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF WASHINGTON (HONORABLE LONNY R. SUKO)

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1 Peter S. Schweda Attorney for Defendant Steven Randock UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF WASHINGTON (HONORABLE LONNY R. SUKO) UNITED STATES OF AMERICA, ) Plaintiff, ) ) NO. CR-0-0-LRS ) vs. ) DEFENDANTS REPLY BRIEF TO ) DIXIE ELLEN RANDOCK, ) STEVEN KARL RANDOCK, SR., ) HEIDI KAE LORHAN, and ) ROBERTA LYNN MARKISHTUM, ) ) Defendants. ) ) The Defendants provide this joint Reply. The Government asserts [t]he Defendants are [attempting] to create at will a shield impenetrable to law enforcement view even in the most public places. (Government Response, Ct. Rec. at 1.) This is not true. DEFENDANTS REPLY BRIEF TO - 1

2 The Defendants had a written Rental Contract dated August, 0 for Suite B-. A written extension of the Rental Contract was signed on February, 0, again for Suite B-. Id., at -. The Government maintains this is a typographical error, Id., at, however, a factual dispute exists as to the area rented to the Defendants. Defendants were rented an office with the B- on its and a storage area adjacent to it. The storage area was locked and entry by others who stored material in the storage area was through the Defendants office. This is verified by statements given to Safeco Insurance Company on different occasions by Steve Randock, Roberta Markishtum and Amy Hensley. These statements, two of which were recorded, will be presented as evidence at the suppression hearing. The discovery of the boxes on March, 0, by Agent Neirinckx was not inadvertent. On the contrary, we expect the evidence to show: That he intended to make this discovery; that he rummaged through the boxes to discover what there was to be seen, including floppy diskettes; and then that he enlisted the help of the landlord to carry on a surreptitious and unconstitutional search of the storage area. The subsequent search warrant was issued on March, 0 at 1: p.m., Id., at, a day before the affidavit and support of the search warrant was signed. Id., at. DEFENDANTS REPLY BRIEF TO -

3 The Agents then waited for the Defendants to close their office and leave for the day before executing the warrant at : p.m. on March, 0. Id., at 0. Instead of giving a copy of the warrant and its return to any person interested in the property seized, the Agents delivered it to the landlord. The Agents were keenly aware who owned the boxes, i.e., the Defendants now before the court. Id., at 0, -. This brief replies to two issues presented by the Government s Response. First, the Defendants had a reasonable expectation of privacy in the storage hallway. And second, the Agents failure to serve or leave a copy of the warrant and its return with the Defendants violated the Fourth Amendment particularity requirement and violated Federal Rule of Criminal Procedure 1(f)(). ARGUMENT (1) THE DEFENDANTS HAD A REASONABLE EXPECTATION OF PRIVACY TO PROPERTY STORED IN THE STORAGE HALLWAY. The Fourth Amendment protects the right of people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures Const. amend.. Unless searches and seizures are based on probable cause, and executed pursuant to a search warrant, they generally violate the Fourth Amendment. Katz v. United States, U.S., (). The Fourth Amendment prohibits unreasonable searches and seizures in those areas in which a person has a reasonable expectation of privacy. United States v. Nohara,. F.d, 1 ( th Cir. ), quoting Katz v. United States, U.S., 0 () (Harlan, J., concurring). One must have a subjective expectation of privacy, as well as an expectation of privacy DEFENDANTS REPLY BRIEF TO -

4 that will be recognized, by society, as reasonable. Id., citing Katz v. United States, U.S. at 1 (Harlan, J., concurring). The basic purpose of this Amendment is to safeguard the privacy and security of individuals against arbitrary invasions by government officials. Camara v. Municipal Court, U.S., (). One s expectation of privacy, in his work place, is based upon societal expectations that have deep roots in the history of the Amendment. O Connor v. Ortega, 0 U.S. 0, () quoting Oliver v. United States, U.S. 0, n. (). When a government official enters a commercial area, without a warrant, he stands in no better position than a member of the public. What is observable by the public is observable by the Government inspector as well. Marshall v. Barlow s, Inc., U.S. 0, (). When a government official goes into an area which is not permissible for members of the public, the official s actions fall under Fourth Amendment scrutiny. Id. Sharing a space that is not open to the public, with other employees, does not restrict one s reasonable expectation of privacy. Marshal v. Barlow s, Inc., U.S. 0 (). The owner of a business has not, by the necessary utilization of employees in his operation, thrown open the areas where employees alone are permitted to the warrant less scrutiny of Government agents. Id. at. Some areas, such as the common hallways behind locked front doors in apartment complexes, are not considered places in which one has a reasonable DEFENDANTS REPLY BRIEF TO -

5 expectation of privacy, even though the general public is not automatically granted access inside. However, apartment hallways, even behind security doors, are distinguished in that [t]he common hallways... [are] available for the use of residents and their guests, the landlord and his agents and others having legitimate reasons to be on the premises. Nohara, at. The court in Nohara also determined that the purpose behind locks on apartment common area doors is for security, rather than for privacy. [E]ntry, without consent, upon portions of commercial premises not open to the public may only be compelled through the framework of a warrant procedure. See v. City of Seattle, U.S. 1. (). The Defendants had both subjectively, and objectively, a reasonable expectation of privacy in the storage area adjacent to B. The Defendants subjective expectation is fulfilled in that they felt comfortable storing their documentation in this area, and because they had been told that they were welcome to store their private business materials in that area. Defendants believed they were permitted to store their records without the potential for the public, or government agents, rummaging through their private business materials. Because the Defendants reasonably believed that the boxes would be safely stored, and not rummaged through by others, the Defendants had a subjectively reasonable expectation of privacy. DEFENDANTS REPLY BRIEF TO -

6 Furthermore, the Defendants had an objectively reasonable expectation of privacy. The hallway door was locked. The area in question is not open to the public, and is easily discernible from the areas in which the public is permitted. The main hallways are carpeted, well-lit, and lead general consumers to the entrances of a number of businesses located within the building. The storage area is behind a locked door and has no carpet, but rather, an unfinished floor. The walls are not painted, as they are in the main hallway. There are no light fixtures, but rather nothing more than a single light bulb that hangs from the ceiling. The storage area is not cleaned by the custodian, and is littered with spiders and spider webs. The storage area does not lead a patron to a different area of the building, as a shortcut; rather, it simply leads to the locked side door of B, and to a fire-resistant vault. It would be obvious to a member of the public looking inside that the storage hallway is nothing more then a dead end. Because the public was not granted access to this area and because one could easily see that the public was restricted from entering that area, the Defendants had a reasonable expectation of privacy in the storage area adjacent to their office, in which the public (and therefore, governmental agents) were not permitted to go. Other employers, as well as employees, were granted access to this storage area; however, this does not bar the Defendants reasonable expectation of privacy, for a few reasons: first, the act of sharing one s space with other employees does not DEFENDANTS REPLY BRIEF TO -

7 rid one of their reasonable expectations of privacy. Second, the storage area is distinguished from the hallways behind the locked front doors of apartment complexes, in that the hallways in apartment complexes are meant for members of the public to enter. They must be granted access, whether they are there to deliver a package or see a relative but, they are still allowed, with any guest s permission, to enter the hallways. They can bring friends with them, a parent, a government agent. However, this right to access does not exist for the storage area. The right of access to the storage area would be more akin to the back rooms, storage closets, and employees only zones of a store. Therefore, having other employees in the storage hallway does not eliminate the reasonable expectation of privacy already accompanying that area, nor does access by employees make this area similar to that of a well-lit, carpeted, painted, open-to-the-public hallway in an apartment complex. Because the Defendants had both a subjective and objective reasonable expectation of privacy, the actions of the governmental agent must be scrutinized under Fourth Amendment standards. Here, government agents entered an area in which the Defendants had a reasonable expectation of privacy. Government agents did so without a warrant, and without probable cause, and therefore the agents committed an unlawful search. Because the agents committed an unlawful search, the items and information obtained in the storage hallway, and derivative thereto, should DEFENDANTS REPLY BRIEF TO -

8 be suppressed.. THE AGENTS FAILURE TO SERVE OR LEAVE A COPY OF THE WARRANT WITH THE DEFENDANTS VIOLATES THE PARTICULARITY REQUIREMENT OF THE FOURTH AMENDMENT AND VIOLATES FEDERAL RULE OF CRIMINAL PROCEDURE 1(F)(). The Agents waited until the Defendants office closed and Defendants left before executing the search warrant on March, 0 at : p.m. See Ct. Rec. - at 0. A copy of the search warrant and its return were given to the landlord, Ray Guerra. Id. The Government argues [t]he agent complied with Rule 1(f)() by giving a copy of the warrant and inventory to the person from whose premises the property was taken. Id., at. (Emphases by the Government). This amounts to intentional and deliberate disregard of Rule 1(f)() of constitutional proportions and demonstrates an intent by the Agents to flout the Rule. In United States v. Gantt, 1 F.d, 0 ( th Cir. ), the Court interpreted Rule 1 (d) which is now codified in Rule 1(f)(), stating, Rule 1(d) must be interpreted in the light of the important policies underlying the warrant requirement-to provide the property owner assurance and notice during the search. The Supreme Court has repeatedly held that an essential function of the warrant is to assure [ ] the individual whose property is searched or seized of the lawful authority of the executing officer, his need to search, and the limits of his power to search. (Numerous citations and annotations omitted). DEFENDANTS REPLY BRIEF TO -

9 A conventional warrant ordinarily serves to notify the suspect of an intended search. Katz v. United States, U.S., n. (). To allow the landlord, Ray Guerra, to be served with the search warrant and its return completely goes against the grain of Rule 1(f)() and the particularity requirement because there is no reason why the landlord would need or want notice, as he has no interest in the property seized. The Agents knew whose property they had seized. While not exposing an ongoing investigation can be an important police tactic, it should not be allowed to flout the constitutional requirements expressed above. CONCLUSION The Defendants had a reasonable expectation of privacy in the storage area. By manipulating the time of the search and failing to provide the Defendants with a copy of the search warrant or its return, the Agents violated the particularity of the Fourth Amendment and Rule 1(f)(). RESPECTFULLY SUBMITTED this th day of September, 0. WALDO, SCHWEDA, & MONTGOMERY, P.S. By: /s/ PETER S. SCHWEDA Peter S. Schweda, WSBA # Attorney for Defendant Steven Karl Randock, Sr. DEFENDANTS REPLY BRIEF TO -

10 CERTIFICATE OF SERVICE I HEREBY CERTIFY that I electronically filed a true and correct copy of the foregoing DEFENDANTS REPLY BRIEF TO by delivering same to each of the following attorneys of record, as follows: George JC Jacobs, IIIusa-wae-gjacobs@usdoj.gov By: /s/ PETER S. SCHWEDA Peter S. Schweda, WSBA # Attorney for Defendant Steven Karl Randock, Sr DEFENDANTS REPLY BRIEF TO -