Darrell T. Kind v. Sheriff Frank

1 Corona-Chavez refers to himself as Corona, and so will we.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 02-2647
___________
United States of America, *
*
Plaintiff - Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
Emilio Corona-Chavez, *
*
Defendant - Appellant. *
___________
Submitted: December 10, 2002
Filed: May 15, 2003
___________
Before WOLLMAN, JOHN R. GIBSON, and MELLOY, Circuit Judges.
___________
JOHN R. GIBSON, Circuit Judge.
Emilio Corona-Chavez 1 appeals his conviction of conspiracy and aiding and
abetting an attempt to possess more than 500 grams of a methamphetamine mixture
with intent to distribute it, 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846 (2000), and 21
U.S.C. § 2 (2000) (attempt and conspiracy). Corona was caught in a controlled
delivery that was monitored by police using video and audio surveillance of the hotel

-- 1 of 12 --

2 The Honorable Paul A. Magnuson, United States District Judge for the District
of Minnesota.
-2-
room where the delivery took place. He contends that the district court 2 erred in
denying his motion to suppress the videotape of the transaction and a recording of a
telephone call in which he participated. We hold that neither recording was obtained
in contravention of Corona's constitutional or statutory rights. Accordingly, we
affirm his conviction.
On August 6, 2001, at a highway rest stop in Wyoming, police stopped Maria
Munoz, who was driving a Ford Excursion that contained nineteen bags of
methamphetamine. Munoz told police that she was supposed to deliver the drugs to
a man named Carlos in Minnesota, and she agreed to participate in a controlled
delivery of the drugs. At the direction of the police, Munoz called Carlos that
evening and told him that her car had broken down in Lincoln, Nebraska, but that she
would be in Minnesota as soon as she could. Also at the request of the police, Munoz
told Carlos that there was a bad smell in the car. The next day, police loaded Munoz
and the Excursion on an airplane and flew them to Minneapolis.
At the direction of the police and in their presence, Munoz called Carlos from
her cell phone at about 12:45 in the afternoon. Police recorded the call. Munoz told
Carlos that a hose on the car had broken and she had to stay overnight in Lincoln to
get it fixed, but that she would be in Minnesota in five or six hours. She complained
to him that there was an alcohol-acetone smell in the car that was making her and her
passengers sick. The case agent testified at trial that methamphetamine has a strong
alcohol-acetone odor.
Police rented two adjacent hotel rooms at the downtown St. Paul Holiday Inn.
They installed Munoz in one room and set up that room for video and audio
surveillance. The audio surveillance was conducted by two recording devices: a

-- 2 of 12 --

3 United States Magistrate Judge Jonathan Lebedoff.
-3-
microphone in the video camera and a body wire on Munoz. They used the adjoining
room to monitor the surveillance. At about 6:15 that same day, Munoz again called
Carlos from her cell phone. Again, police were present during the call and they
recorded the conversation. Munoz told Carlos where she was and that she was not
feeling well. Carlos put someone else on the telephone to get the directions to the
Holiday Inn. Carlos Gaytan testified at trial that he participated in the call, and it was
Emilio Corona who got on the line to get the directions. The recording of the
telephone call was introduced into evidence at trial.
Shortly after the telephone call, Carlos Gaytan arrived at the hotel room,
accompanied by Emilio Corona and Jaime Corona. Munoz testified at trial that she
did not know Corona before he walked in the room, but that he told her he had talked
to her on the phone. When they walked in the room, Gaytan handed Munoz $1,000.
Munoz gave Gaytan a Ford key, which was supposed to be for the Ford Excursion,
but which was actually a dummy key. Munoz complained to Gaytan that she was
dizzy and felt bad because of the smell in the car, and Gaytan explained that "they
probably hadn't fixed everything well." The conversation was in Spanish, and Emilio
Corona said something which the case agent translated as meaning, "They were high,"
apparently referring to the effect of the odor in the car on Munoz and her passengers.
At trial, the government introduced the audio-videotape of the meeting.
The three men left the room after about five minutes and went to the hotel
parking lot. Emilio Corona walked up to the Excursion with the dummy key in his
hand and tried to get in. Police arrested the men.
Corona moved to suppress the recording of the telephone call and the audio and
video recordings of him in the hotel room. The motion was referred to a Magistrate
Judge,3 who conducted an evidentiary hearing. The case agent testified that he sat

-- 3 of 12 --

-4-
down with Munoz before the meeting in the hotel room and asked for permission to
videotape what went on in the hotel room and to record the conversation that took
place there. Munoz gave her consent.
The Magistrate Judge understood the videotape to be a silent recording, rather
than one that included a soundtrack. He held that Corona had no expectation of
privacy in Munoz' hotel room, and therefore the videotaping did not violate his
Fourth Amendment rights. As for the recording of the telephone conversation, the
Magistrate Judge remarked that the government presented no evidence that Munoz
explicitly consented in advance to the taping of the conversation. However, he
concluded that the facts supported an inference that Munoz consented to the taping
in that Munoz told police about the planned transaction and agreed to cooperate in a
controlled delivery and she gave the police the keys to the Excursion. On the same
day as the phone conversation, she agreed to be wired for sound and consented to the
videotaping of the delivery of the events in the hotel room. The Magistrate Judge
therefore recommended a finding of prior consent to the phone recording by one party
to the conversation, which rendered lawful the interception of the conversation. The
district court adopted the Magistrate Judge's recommendations and thus denied the
motion to suppress.
On appeal of the denial of a motion to suppress evidence, we review the court's
factual findings for clear error and its conclusions of law de novo. United States v.
Ramires, 307 F.3d 713, 715 (8th Cir. 2002), cert. denied, No. 02-9605, 2003 WL
1609399 (U.S. Apr. 28, 2003). We must affirm the district court's ruling unless it is
unsupported by substantial evidence or reflects an erroneous view of the law, or
unless the record as a whole leaves us with the definite and firm conviction that a
mistake has been made. Id.

-- 4 of 12 --

4 Title I amended Title III of the Omnibus Crime Control and Safe Streets Act
of 1968, Pub. L. No. 90-351, 82 Stat. 212.
-5-
I.
Corona first contends that the district court erred in finding that Munoz
consented to the interception of her telephone conversation with Carlos Gaytan and
Emilio Corona. Corona challenges the district court's finding of consent in fact,
rather than raising the related question of whether such consent was voluntary.
Title I of the Electronic Communications Privacy Act of 1986, Pub. L. No. 99-
508, Title I, 100 Stat. 1851,4 regulates the interception of wire, oral and electronic
communications. 18 U.S.C. § 2510-22 (2000). Title I provides that it is not unlawful
to intercept such a communication if a party to the communication has given prior
consent to the interception. 18 U.S.C. § 2511(2)(c) (2000). Nor does such an
interception violate the Fourth Amendment. United States v. White, 401 U.S. 745,
753 (1971). The government bears the burden of proving consent. United States v.
Gomez, 900 F.2d 43, 44 (5th Cir. 1990). Generally, we review a district court's
determination that a person expressed consent under the clearly erroneous standard.
United States v. Jones, 254 F.3d 692, 695 (8th Cir. 2001) (consent to search of
defendant's person); see also Griggs-Ryan v. Smith, 904 F.2d 112, 118 (1st Cir. 1990)
(treating consent under § 2511(2)(d) as legal issue where facts undisputed).
Consent may be express or implied, but in either case, there must be actual
consent. Deal v. Spears, 980 F.2d 1153, 1157 (8th Cir. 1992). When someone
voluntarily participates in a telephone conversation knowing that the call is being
intercepted, this conduct supports a finding of implied consent to the interception.
For instance, in United States v. Horr, 963 F.2d 1124, 1125 (8th Cir. 1992), a prison
inmate used the prison telephone to plan an escape with actual knowledge that the
Bureau of Prisons monitored and taped inmate calls. The inmate argued that whether

-- 5 of 12 --

5 This court considers the entire record, including trial testimony, in reviewing
denial of a motion to suppress. United States v. Blom, 242 F.3d 799, 807 n. 4 (8th
Cir. 2001), cert. denied, 534 U.S. 880 (2001).
-6-
or not he knew of the monitoring, he had not consented to it. Even though the district
court had upheld the interception on a different theory, we held that knowledge of the
monitoring plus the voluntary use of the telephone proved consent under section
2511(2)(c): "Horr was aware of the telephone monitoring policy. It was his choice
to use the telephone to conduct his illegal business. Having gambled by discussing
his escape on the prison telephone, Horr cannot now be heard to complain that he
lost." Id. at 1126. Accord United States v. O'Connell, 841 F.2d 1408, 1422 n.8 (8th
Cir. 1988); United States v. Diaz, 685 F.2d 252, 254-55 (8th Cir. 1982); Griggs-Ryan,
904 F.2d at 116. Cf. Deal, 980 F.2d at 1157 (holding as matter of law that consent
could not be inferred where interceptors told the party to the conversation that they
might monitor the phone, but not that they were in fact doing so).
The Magistrate Judge inferred Munoz' consent to the telephone interception
from her consent to cooperate in the controlled delivery and her participation in the
elaborate preparations for that delivery, such as allowing herself to be wired for
sound, giving the officers the keys to the Excursion, and consenting to the installation
of videotaping equipment in the hotel room, all of which happened roughly
contemporaneously with the telephone interception. This finding was bolstered by
the trial testimony5 of the case agent, David Rodriguez, who testified about how
Munoz' cell phone conversation was recorded: "[W]e had a little, mechanical
attachment that attaches to the recorder, which an individual can place the other end
into their–the ear and which will pick up the recording. . . ." If Munoz was required
to place a mechanical device into her ear in order to record the conversation, there can
be little doubt that she was aware the conversation was being intercepted. Munoz
herself testified that the police were with her when she made the call. Furthermore,
Rodriguez indicated that he and Munoz listened to the tape after the call was over:

-- 6 of 12 --

-7-
Q: And did you hear the call as it was being made?
A: I heard one side. I heard Maria's side of it.
Q: And when you–the call was over, did you listen to the recording?
A: Yes, sir, we did.
Q: And did it reflect what you had heard?
A: Yes, sir.
Q: And was there an indication from Maria that that was what took
place?
A: Yes, sir. . . .
Rodriguez would hardly have played the tape back for Munoz if he had taped it
without her knowledge.
The evidence that Munoz placed the call with knowledge that it was being
intercepted distinguishes this case from United States v. Gomez, 900 F.2d 43, 44 (5th
Cir. 1990), on which Corona relies. In Gomez there was no evidence of consent. Id.
We cannot say that the district court clearly erred in accepting the Magistrate
Judge's recommendation of a finding of consent or in denying the motion to suppress
the audiotape.
II.
Corona contends that the videotaping of the meeting in the hotel room violated
his rights under Title I of the Electronic Communications Privacy Act of 1986, 18
U.S.C. § 2510-22 (amending and retitling Title III of the Omnibus Crime Control and
Safe Streets Act of 1968), and the Fourth Amendment.
The Magistrate Judge reasoned that silent video surveillance is not regulated
or prohibited by Title I. This conclusion is supported by our opinion in United States

-- 7 of 12 --

-8-
v. Falls, 34 F.3d 674, 678-80 (8th Cir. 1994), in which we held that a district court
can issue an order authorizing video surveillance. Our own analysis of Title I
discerned no congressional intent to regulate video surveillance, and we also relied
on the analysis of other circuits who concluded that Title I neither regulates nor
prohibits silent video surveillance. Id.
Corona points out that the videotape was not silent, but included an audio
recording. The Magistrate Judge may have been confused by Corona's concession
that the audio recording from Munoz' body wire was admissible. The audiotape from
the body wire and the audio component of the videotape were separate recordings.
In any case, Munoz expressly consented to the videotaping of the hotel meeting.
Therefore, the government's audio recording of the conversation was permissible
under section 2511(2)(c), under the authorities discussed in Part I.
As to the video component of the tape, the Magistrate Judge recognized that
video surveillance is subject to the Fourth Amendment. See Falls, 34 F.3d at 678
(video surveillance is regulated by the requirements of the Fourth Amendment). The
Fourth Amendment does not protect people from observation in places where they
have no reasonable expectation of privacy. Minnesota v. Carter, 525 U.S. 83, 88-91
(1998). In Carter, a policeman peeked through the blinds in a ground-floor window
of a house where Carter and Johns were bagging cocaine. Carter and Johns did not
live in the house, but had only come there for two and a half hours, to bag up the
cocaine. Id. at 86. The policeman peering through the window did not intrude on the
Fourth Amendment rights of Carter and Johns, who had no connection with the house
except for their fleeting presence there for the purpose of conducting business. Id.
at 91. The Supreme Court held that Carter and Johns had no expectation of privacy
in the house, because they were neither residents nor overnight guests at the house
and because they were there for a commercial, not a social purpose. It was therefore
not necessary to decide whether the police officer's peeking through the window was
a search. Under the rule of Carter, Corona had no expectation of privacy in Munoz'

-- 8 of 12 --

6 Corona argues that there is no evidence that he came to the room for a
commercial purpose. In fact, there is plenty of evidence, including the testimony of
Gaytan that he and Corona were awaiting Munoz' arrival in Minnesota with
knowledge that she was bringing drugs and that Corona was supposed to make $5000
from the sale of the drugs. Even without Gaytan's testimony, the meeting itself was
patently a business meeting at which Gaytan and Munoz exchanged money for the
keys to a car. Munoz and Corona had no previous relationship.
-9-
hotel room, where he was present for five minutes in connection with a commercial
transaction with a stranger.6 See United States v. Sturgis, 238 F.3d 956, 958-59 (8th
Cir. 2001) (no reasonable expectation of privacy where police searched hotel room
rented by someone other than defendant, which defendant visited for commercial
purpose).
Corona argues that surreptitious video surveillance is more intrusive than
direct observation and therefore it is reasonable to expect not to be videotaped even
in places where there is no reasonable expectation of privacy from mere observation.
The Ninth Circuit developed such a line of reasoning in United States v. Nerber, 222
F.3d 597, 600-05 (9th Cir. 2000). Nerber held that the defendants were justified in
having an expectation not to be subject to video surveillance when left alone (with
co-defendants) in someone else's hotel room, although they were there for a
commercial rather than social purpose. But cf. United States v. Jackson, 213 F.3d
1269, 1280 (10th Cir.) ("The use of video equipment and cameras to record activity
visible to the naked eye does not ordinarily violate the Fourth Amendment."), vacated
on other grounds, 531 U.S. 1033 (2000); United States v. McIver, 186 F.3d 1119,
1125 (9th Cir. 1999) ("We reject the notion that the visual observation of the site
became unconstitutional merely because law enforcement chose to use a more cost-
effective 'mechanical eye' to continue to the surveillance."). Judge Gould dissented
in Nerber, viewing the case as "clearly, fairly and inescapably controlled by
Minnesota v. Carter," 222 F.3d at 606. In his opinion, "Those who would hatch illicit

-- 9 of 12 --

-10-
plots to traffic in drugs while brandishing firepower should rent their own rooms."
Id. at 607.
We need not decide whether Nerber's reasoning is consistent with Minnesota
v. Carter, because the facts of this case would not justify suppression of the tape even
under Nerber. Corona was not videotaped while alone (or alone with a co-defendant)
in the hotel room, but only while meeting with Munoz, who had consented to the
taping.
It is well-established in Fourth Amendment jurisprudence that a person
engaged in a conversation assumes the risk that another party to the conversation
might choose to divulge or even record the conversation. See United States v. White,
401 U.S. 745, 752-53 (1971). The Sixth Circuit recently held that the FBI did not
violate defendants' rights by videotaping them at a meeting in the hotel room of an
informant who had consented to the videotaping. United States v. Yang, 281 F.3d
534, 548 (6th Cir. 2002), cert. denied, 123 S. Ct. 1015 (2003). Yang analogized
videotaping a meeting to audiotaping a conversation, in which the informant's consent
is all that is necessary to render the taping permissible. Accord United States v.
McKneely, 69 F.3d 1067, 1073-74 (10th Cir. 1995); United States v. Laetividal-
Gonzalez, 939 F.2d 1455, 1461 (11th Cir. 1991), overruled on other grounds, United
States v. Giltner, 972 F.2d 1563, 1565 (11th Cir. 1992); United States v. Myers, 692
F.2d 823, 859 (2d Cir. 1982).
Nerber relied on this principle to hold that the presence of an informer who had
consented to video surveillance so diminished the expectation of privacy that video
surveillance would not be inconsistent with reasonable expectations. 222 F.3d at 604.
Nerber therefore denied the motion to suppress the videotape taken while the
informer was in the hotel room, even though the court suppressed videotape taken
while the defendants were alone. By the same token, Munoz' presence and consent

-- 10 of 12 --

-11-
to the surveillance rendered it unreasonable for Corona to expect privacy with regard
to their meeting.
This case does not require us to decide whether there is perfect parity between
audiotaping a conversation and videotaping a meeting. Cf. United States v. Torres,
751 F.2d 875, 878 (7th Cir. 1984) ("It is true that secretly televising people (or taking
still or moving pictures of them) while they are in what they think is a private place
is an even greater intrusion on privacy than secretly recording their conversations.").
Videotaping a person in his home, even while engaged in a conversation with an
informer, could invade the privacy of the home in a way that audiotaping the same
conversation would not. But this case has nothing to do with anyone's home. Here,
Corona entered a stranger's hotel room for a five-minute meeting to conduct a
business deal, which the stranger had consented to having videotaped. Not only did
he lack an expectation of privacy in the place, but he also lacked an expectation of
privacy in the meeting itself. Both the rule of Minnesota v. Carter and the rule of
United States v. White show he had no reasonable expectation of privacy in this
situation, and his case presents no facts that would cast doubt on the applicability of
either rule.
Corona further argues that we should adopt by analogy the guidance of Title
I in determining the parameters of permissible videotaping. See Falls, 34 F.3d at 680
(while Eighth Circuit does not adopt "every technical requirement of Title I" in the
video surveillance context, we look to Title I "for guidance in implementing the
Fourth Amendment with regard to silent video surveillance.") Section 2511(2)(c) of
Title I allows warrantless interception of a communication with prior consent of a
party to the conversation; analogizing to that section would lead us to conclude that
videotaping a meeting with an informer who has consented to videotaping is
permissible even without a warrant. Therefore, analogy to Title I would not compel
suppression of the video.

-- 11 of 12 --

-12-
We hold that the videotaping of the meeting in the hotel room did not intrude
upon Corona's Fourth Amendment rights and the district court correctly denied his
motion to suppress the videotape.
The conviction is affirmed.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

-- 12 of 12 --