## F I L E D United States Court of Appeals Tenth Circuit 

### APR 27 1999 

### PATRICK FISHER Clerk PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. ABEL LONGORIA, Defendant-Appellant. No. 98-3022

Appeal from the United States District Court for the District of District of Kansas (D.C. No. 97-CR-20034-06)
Leon J. Patton (Jackie N. Williams, United States Attorney, with him on the brief), Assistant United States Attorney, Kansas Ci ty, Kansas, for PlaintiffAppellee. James T. George, Lawrence, Kansas, for Defendant-Ap pellant.

Before BRORBY, McKAY and EBEL , Circuit Judges.

BRORBY , Circuit Judge.

Defendant-Appellant Abel Longoria appeals the distr ict court order dismissing his motion to suppress certain audio andvideo taped conversations1 In his motion to suppress and on appeal, Mr. Long oria only argues for the

suppression of the tape recorded conversations betw een himself and his codefendants. He does not contest admission of the c onversations between himself -2- between Mr. Longoria and his co-defendants. Mr Lon goria argues the tapes, recorded by a government informant, are inadmissibl e because the government recorded the conversations without the prior court approval required under Title III of the Omnibus Crime Control and Safe Street Ac t of 1968, 18 U.S.C. §§ 2510 - 2522. We exercise jurisdiction pursuant to 28 U. S.C. § 1291 and affirm.

I. Background Federal agents, with the help of a confidential inf ormant, conducted a lengthy investigation of a drug smuggling operationcentered in Kansas City, Kansas. The smuggling operation transported drugs from Mexico to the Kansas City metropolitan area via airtight metal container s placed inside the tires and gas tanks of vehicles. The government’s informant owne d a tire shop in Kansas City at which Mr. Longoria and his co-defendants alleged ly unloaded drug shipments and conducted drug transactions. Under FBI supervi sion, the informant surreptitiously recorded conversations occurring atthe tire shop on video and audio tape. The tapes not only captured conversati ons between Mr. Longoria and the informant, but also recorded Mr. Longoria conve rsing with his co-defendants in the informant’s presence. 1 Based on these recordings and other informationand the informant.

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provided by the informant, a grand jury indicted Mr . Longoria and his codefendants on various drug-related offenses. Mr. L ongoria subsequently pleaded guilty to one count of conspiring to distribute coc aine and marijuana in violation of 21 U.S.C. § 846. The district court sentenced h im to seventy months imprisonment and imposed a $100 assessment.

II. The Motion to Suppress Prior to entering the plea agreement, Mr. Longoria moved to suppress certain audio and video tapes recorded by the gover nment’s informant, arguing they violated Title III of the Omnibus Crime Contro l and Safe Street Act of 1968, 18 U.S.C. §§ 2510 - 2522 (“Title III” or “the Act”) . Title III governs the interception of wire, electronic and oral communications by the government and private parties. Specifically relevant to this cas e, Title III defines the manner in which law enforcement personnel and persons working under color of state law, such as an informant, may conduct electronic survei llance and whether or not a prior court order is required. See 18 U.S.C. §§ 2510, 2511, 2516. Wire and oral communications intercepted in violation of Title II I may not be received in evidence DURING any trial, hearing, or other procee ding before any court. 18-4-

U.S.C. § 2515.

Title III only regulates the interception of certai n types of communications; and, in order to receive Title III’s protections, t he communication at issue must fall within the definitions set out in § 2510 of th e Act. See generally1 James G. Carr, The Law of Electronic Surveillance § 3.2 (199 8) (discussing the limited reach of definitions in Title III). Oral communications protected by Title III are those communications “uttered by a person exhibitin g an expectation that such communication is not subject to interception under circumstances justifying such expectation.” 18 U.S.C. § 2510(2). The legislativ e history of Title III instructs that Congress intended this definition to parallel the “reasonable expectation of privacy test” articulated by the Supreme Court in Katz v. United States , 389 U.S. 347 (1967). See S. Rep. No. 90-1097 (1968), reprinted in 1968 U.S.C.C.A.N. 2177-97 at 2178. Accordingly, for Title III to app ly, the court must conclude: (1) the defendant had an actual, subjective expectation of privacy – i.e., that his communications were not subject to interception; an d (2) the defendant’s expectation is one society would objectively consid er reasonable. Katz , 389 U.S. at 361 (Harlan, J., concurring); see also In re John Doe Trader Number One , 894 F.2d 240, 242-43 (7th Cir. 1990) (applying Katzin the Title III context).-5-

In this case, the government’s informant overheard and recorded Mr. Longoria conversing with his co-defendants in Spani sh – a language the informant did not understand. In his motion to suppress and on appeal, Mr. Longoria argues he knew the informant could not understand Spanish and, therefore, he had a reasonable expectation of privacy. As such, Mr. Lo ngoria contends the conversations with his co-defendants in Spanish wer e “oral communications” within the meaning of Title III and the government’ s failure to obtain court approval prior to recording the conversations warrants suppression. The district court disagreed, finding Mr. Longoria had no reason able expectation of privacy in his conversations in the presence of the informant. United States v. Torres , 983 F. Supp. 1346, 1352 (D. Kan. 1997). Without such an expectation, the court concluded the conversations were not oral communications protected by Title III and denied the motion to suppress. Torres , 983 F. Supp. at 1352.

We review the district court’s findings of fact forclear error, United States v. De la Cruz-Tapia , 162 F.3d 1275, 1277 (10th Cir. 1998), and the cou rt’s ultimate determination whether society would recogn ize the defendant’s subjective expectation of privacy de novo. United States v. Benitez-Arreguin , 973 F.2d 823, 827 (10th Cir. 1992).-6- III. Discussion As discussed above, to determine if the conversatio ns at issue constitute “oral communications” under Title III, we must cons ider whether (1) Mr. Longoria had an actual, subjective expectation of p rivacy and (2) whether that expectation is one that society is willing to recog nize as reasonable. See Katz , 389 U.S. at 361 (Harlan, J., concurring). The dist rict court made no specific findings as to the first issue. Nevertheless, base d on Mr. Longoria’s undisputed assertion that he had such an expectation, we assum e for the purposes of this appeal Mr. Longoria did have an actual, subjective expectation of privacy. Thus, the key issue remaining is whether or not Mr. Longo ria’s expectation that the confidential informant would not disclose the subst ance of his conversation is one which society would objectively consider reasonable . We do not believe it is.

The Supreme Court has recognized that “[w]hat a per son knowingly exposes to the public, even in his own home or offi ce, is not a subject of Fourth Amendment protection.” Cf. Katz , 389 U.S. at 351; United States v. Burns , 624 F.2d 95, 100 (10th Cir.) (“What a person knowingly exposes is not constitutionally protected from observation.”), cert. denied, 449 U.S. 954 (1980). If a person knowingly exposes statements to the “pl ain view of outsiders,” such statements are not protected under the Fourth Amend ment because the speaker has-7-

not exhibited an “intention to keep them to himself.” Katz , 389 U.S. at 361 (Harlan, J., concurring); see also Burns , 624 F.2d at 100 (concluding the Fourth Amendment provides no protection for conversations overheard by law enforcement officers from a vantage point they righ tfully occupy). As the Court noted, “‘[t]he risk of being overheard ... is ... i nherent in the conditions of human society. It is the kind of risk we necessarily ass ume whenever we speak.’” Hoffa v. United States , 385 U.S. 293, 303 (1966) (quoting Lopez v. United States , 373 U.S. 427, 465 (1963) (Brennan, J., dissenting)).

This principle applies with equal force to statemen ts knowingly exposed to government informants. Hoffa , 385 U.S. at 302-03. In Hoffa , defendants knowingly conversed with and in front of a man theybelieved to be an trusted accomplice but who in fact was a government informa nt. Id. at 295. The Court allowed the informant to testify to conversations h e overheard, noting the Fourth Amendment offers no protection for “a wrongdoer’s m isplaced belief that a person to whom he voluntarily confides his wrongdoi ng will not reveal it.” Id. at 302. Thus, one contemplating illegal activities as sumes the risk that his companions may be reporting to the police and has n o reasonable expectation of privacy in conversations he knowingly exposes to th em. Id. ; United States v. White , 401 U.S. 745, 752 (1971).2We emphasize that “the Fourth Amendment protects people, not places .”

Katz , 389 U.S. at 351 (emphasis added). If a defendantsuch as Mr. Longoria knowingly exposes his conversations to accomplices, even in a room not accessible to the general public, his conversations are not subject to Fourth Amendment protection from disclosure by such accomp lices. Id.; see also Hoffa , 385 U.S. at 302 (finding no expectation of privacy in conversations knowingly conducted in the presence of a government informanteven though the conversations occurred in a hotel suite).

-8- In this case, Mr. Longoria voluntarily entered the informant’s tire shop and knowingly made incriminating statements in the info rmant’s presence. Although the conversations occurred in a back room not acces sible to the general public, it is clear Mr. Longoria spoke in a tone clearly audib le by the informant. 2 Because Mr. Longoria exposed his statements in such a manne r, we conclude he had no reasonable expectation that the person in whose pre sence he conducts conversations will not reveal those conversations t o others. He assumed the risk that the informant would reveal his incriminating s tatements to law enforcement. As such, the informant was free to report the conte nts of the conversations to the FBI and to testify regarding them. Hoffa , 385 U.S. at 302-03; White , 401 U.S. at 751 (“[A] police agent who conceals his police conn ections may write down for official use his conversations with a defendant and testify concerning them, without a warrant authorizing his encounters with t he defendant and without otherwise violating the latter's Fourth Amendment r ights.”).-9-

Mr. Longoria argues he had a reasonable expectation of privacy because he spoke in Spanish. Essentially, Mr. Longoria conten ds he did not “knowingly expose” his conversations to the informant because he spoke in a language he believed the informant could not understand. Howev er, we find no precedent recognizing expectations of privacy based on a list ener’s ability to comprehend a foreign language and decline to find such an expect ation in this case for several reasons. First, comprehension is a malleable conce pt not easily measured by either the defendant or the court. Attempting to d elineate a standard based on subjective evaluations of linguistic capabilities w ould be unworkable to say the least. Cf. United States v. Fisch , 474 F.2d 1071, 1077 (9th Cir.) (refusing to categorize expectations of privacy based on “hair-s plitting distinctions” in the degree of audibility of the conversation), cert. denied, 412 U.S. (1973). More important, we do not find such an expectation to be objectively reasonable. In our increasingly multilingual society, one exposing conversations to others must necessarily assume the risk his statements will be overheard and understood. Although Mr. Longoria contends he knew the informant could not understand Spanish, the informant very well may have concealed his ability to speak Spanish the same as he concealed the recording equipment an d his allegiance with law enforcement. Mr. Longoria exposed his statements b y speaking in a manner clearly audible by the informant. His hope that the informant wou ld not fully-10-

understand the contents of the conversation is not an expectation “society is prepared to recognize as ‘reasonable.’” Katz , 389 U.S. at 361 (Harlan, J., concurring).

Having thus established that Mr. Longoria had no re asonable expectation of privacy in statements made in the informant’s prese nce, the admissibility of tape recordings of the same conversations becomes appare nt. In White , the Supreme Court held “[i]f the conduct and revelations of an agent operating without electronic equipment do not invade the defendant's constitutionally justifiable expectations of privacy, neither does a simultaneou s recording of the same conversations made by the agent.” 401 U.S. at 751. The Court emphasized that one contemplating illegal activities assumes the ri sk that his companions will report to the police, either directly or via electr onic recording. Id. at 752. “If the law gives no protection to the wrongdoer whose trus ted accomplice is or becomes a police agent, neither should it protect him when that same agent has recorded or transmitted the conversations which are later offer ed in evidence to prove the
State’s case.” Id.

Accordingly, Mr. Longoria had no reasonable expectation that his3 Interception under Title III means “the aural or other acquisition of the

contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device.” 18 U.S.C . § 2510(4).

-11- conversations would not be “subject to interception ” by his accomplices. 3 18 U.S.C. § 2510(2); see Siripongs v. Calderon, 35 F.3d 1308, 1320 (9th Cir. 1994) (concluding defendant had no expectation of privacy in conversations conducted in Thai in the presence of a police officer), cert. denied, 513 U.S. 1183 (1995); In re Matter of John Doe Trader , 894 F.2d at 243-44 (holding defendant had no reasonable expectation of privacy in conversations conducted on trading floor in presence of government agent); United States v. Coven , 662 F.2d 162, 173 (2d Cir. 1981) (holding defendant had no reasonable exp ectation of privacy in conversations conducted in informant’s presence) , cert. denied, 456 U.S. 916 (1982)

. He assumed the risk that his conversations would be overheard and recorded by the informant. See In re John Doe Trader , 894 F.2d at 245 (“Doe exposed his discussions to those around him and too k the risk that his statements would be overheard and recorded.”). As such, the c onversations were not “oral communications” protected by Title III and the dist rict court property denied Mr. Longoria’s motion to suppress. The order of the di strict court is AFFIRMED

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