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UNITED STATES v. DURAN

March 15, 1995

UNITED STATES OF AMERICA
v.
FRANCISCO MARTIN DURAN, Defendant.



The opinion of the court was delivered by: CHARLES R. RICHEY

 Before the Court are the Defendant Duran's Motion to Suppress Evidence Seized During Warrantless Searches of Workplace, and the Government's Opposition thereto. The Court held an evidentiary hearing on said Motion on March 14, 1995. Upon careful consideration of the pleadings, the oral argument of counsel, the relevant law and the entire record herein, the Court finds that the Defendant's Motion to Suppress shall be denied.

 The Defendant argues that he had a reasonable expectation of privacy in his workplace, the upholstery shop at the Broadmoor Hotel in Colorado Springs, Colorado, and that he did not consent to a search of his workplace or otherwise relinquish his expectation of privacy in his items there. The Defendant asserts that the agents should have sought a warrant before searching his workplace and that, absent proof that the search fell within one of the exceptions to the warrant requirement, all items seized from his workplace must be suppressed.

 BACKGROUND

 On October 29, 1994, the Defendant was arrested by agents of the United States Secret Service after allegedly firing numerous rounds of ammunition from a Norinco SKS semiautomatic weapon in the vicinity of the White House. Federal authorities, including the Secret Service, the Federal Bureau of Investigation (FBI) and Bureau of Alcohol, Tobacco and Firearms (ATF), immediately began an investigation, and learned that the Defendant was most recently employed as an upholsterer at the Broadmoor Hotel in Colorado Springs, Colorado.

 On October 31, 1994, United States Secret Service Agent Robert His lop travelled to the Broadmoor Hotel where he was introduced to a Mr. Dennis Lesko, the Vice President of Marketing at the hotel, who was designated the "contact person" with respect to the shooting at the White House. Mr. Lesko gave him a business card from Duran Upholstery which read "Death to all government officials" on the back. Agent Hilsop was advised that the hotel had terminated the Defendant's employment due to failure to report to work, which was the hotel's automatic but unwritten policy following a failure to report within a 3-day period. It had also changed the locks in case the Defendant, who had a key, should return.

 Agent Hislop was further informed that the Defendant's wife had contacted the Defendant's supervisor and the hotel engineer, Mr. Kirk Robinson, on or about Monday, October 3, 1994, in search of her husband, asking whether he had reported for work. She further indicated that the Defendant had left home the Friday before, that she had filed a missing persons report on him, and that she did not anticipate his returning to work. The agent was informed that when Denise Phillips, the administrative assistant to Mr. Robinson, went to the upholstery shop looking for the Defendant, she found a note on Broadmoor stationary on his desk which read "See Ya, Wouldn't Wanna Be Ya!" The hotel considered this a resignation statement and removed the note, placing it in the Defendant's personnel file.

 On October 31, 1994, the Defendant's former supervisor, Mr. Kirk Robinson, who retained a key to the upholstery shop, invited Agent Hilsop to examine the Defendant's work space and desk area, and signed a consent form to this effect. Agent Hilsop searched the drafting table, bookshelves and other areas in plain view, and seized several items.

 On November 1, 1994, Agent Hilsop returned along with FBI Special Agent Don Kusulas. They were again admitted to the upholstery shop by Mr. Robinson and permitted to look around, whereupon they seized additional items.

 DISCUSSION

 
I. THE COURT FINDS THAT THE DEFENDANT ABANDONED THE PROPERTY IN HIS WORKPLACE AND RELINQUISHED ANY REASONABLE EXPECTATION OF PRIVACY IN THE SAME

 "Within the workplace context, the Supreme Court has recognized that employees may have a reasonable expectation of privacy against intrusions by police." O'Connor v. Ortega, 480 U.S. 709, 716, 94 L. Ed. 2d 714, 107 S. Ct. 1492 (1987). "The workplace includes those areas and items that are related to work and are generally within the employer's control," and "these areas remain part of the workplace context even if the employee has placed personal items in them . . . ." Id. at 715-16. However, "employees' expectations of privacy in their offices, desks, and file cabinets . . . may be reduced by virtue of actual office practices . . . ." Id. at 717. Thus, whether an employee has a reasonable expectation of privacy in his or her workplace must be assessed on a case-by-case basis, "in the context of the employment relation. An office is seldom a private enclave free from entry by supervisors, other employees, and business and personal invitees." Id. at 717-18.

 Against this backdrop, the facts of the instant case invoke yet another principle of law. "It is well established that the warrantless search or seizure of 'abandoned' property does not violate the fourth amendment." United States v. Wider, 293 U.S. App. D.C. 16, 951 F.2d 1283, 1285 (D.C. Cir. 1991). "Although the abandonment inquiry focuses on the intent of the person alleged to have abandoned the property, the test for abandonment is an objective one under which 'intent may be inferred from words spoken, acts done, and other objective facts.'" Id. (quoting United States v. Thomas, 275 U.S. App. D.C. 21, 864 F.2d 843, 846 (D.C. Cir. 1989) (internal quotation marks omitted)). ...


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