United States v. Yang, You Bin

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 06-3017 & 06-3095
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
YOU BIN YANG and
YOU LIN YANG,
Defendants-Appellants.
____________
Appeals from the United States District Court
for the Western District of Wisconsin.
No. 05-CR-186-S—John C. Shabaz, Judge.
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ARGUED FEBRUARY 7, 2007—DECIDED MARCH 7, 2007
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Before FLAUM, ROVNER, and EVANS, Circuit Judges.
FLAUM, Circuit Judge. On October 30, 2002, You Bin
Yang called the Eau Claire Police Department (“ECPD”)
to report a burglary at his home. After processing the
scene, Officer Brian Schneider asked Yang if he could take
five notebooks for fingerprinting. Yang acceded to the
request. At the time, the IRS was investigating Yang
and his brother, You Lin Yang, for tax fraud. One of the
officers who knew about the IRS investigation flipped
through the notebooks’ pages and saw what appeared to
be accounting information, which ultimately led to an
indictment against Yang and his brother. They filed a
motion to suppress the notebooks, which the district court
2 Nos. 06-3017 & 06-3095
denied. Yang and his brother subsequently entered con-
ditional guilty pleas, reserving their right to appeal the
denial of the motion to suppress. They now appeal. For
the following reasons, we affirm the district court’s ruling.
I. BACKGROUND
On October 30, 2002, You Bin Yang called the ECPD to
report a burglary at his home. Officer Dave Kleinhaus
responded to Yang’s call. When he arrived at Yang’s
residence, Yang told him that the burglars had taken a
DVD player from his bedroom and $2,500 from his par-
ents’ bedroom. Officer Kleinhaus surveyed the ransacked
home, noting that the burglars had displaced the dresser
drawers in both Yang’s and his parents’ bedroom. After
viewing the residence, Kleinhaus requested an evidence
technician.
Officer Brian Schneider arrived to process the scene. In
the course of his work, he found five notebooks in and
around the dresser in Yang’s parents’ room. Three of the
notebooks were spiral bound and two were bound book-
style. The three spiral notebooks were each labeled with
a year: 2000, 2001, and 2002. None of the notebooks
were sealed. Officer Schneider told Yang that he wanted
to take the notebooks to the police department to process
them for fingerprints, and Yang gave him permission to
do so. At the time of the burglary, Yang, his brother, and
his father were under investigation for tax fraud in
connection with their ownership of the China Buffet
Restaurant in Eau Claire.
On November 1, 2002, Yang called the police depart-
ment and asked Sergeant Eric Larsen when he could
retrieve his notebooks. Larsen, who knew about the IRS
investigation, told Yang that he could probably have them
back by November 4. Yang asked Larsen if the fingerprint-
Nos. 06-3017 & 06-3095 3
ing could be done earlier because Yang needed one note-
book in particular. Larsen told Yang that he would talk
to the evidence technician and ask if the tests could be
run sooner.
Sergeant Larsen checked the notebooks out of evidence
and reviewed their contents. Larsen saw that the note-
books appeared to contain the restaurant’s financial
records written in Chinese. Larsen began copying the
2002 notebook. While he was making the copies, the
evidence technician arrived and told Larsen that most
of the fingerprinting tests would be performed on the
notebook covers but that if the fingerprinting powder
touched the inside pages, it could make the writing
difficult to read.
Larsen stopped copying the 2002 notebook and called
Yang. Larsen told Yang that the fingerprint powder
might damage the writing in the notebooks, but he did
not inform Yang that he had already started to copy one
of them. Yang gave Larsen permission to copy the con-
tents of each notebook, and Larsen told Yang that he could
pick up any of the notebooks that he needed. Later that
day, Yang picked up the 2002 notebook.
Larsen contacted IRS Criminal Investigations Special
Agent Steven Makowski and told him that the police
possessed what appeared to be accounting notebooks from
Yang’s residence. Makowski obtained a grand jury sub-
poena for copies of the notebooks and served it on the
evidence technician on November 4, 2002. The evidence
technician gave the notebooks to Makowski, who trans-
lated the writing into English and discovered that the
notebooks contained evidence of tax fraud.
On December 13, 2005, a grand jury indicted Yang and
his brother for conspiracy to commit tax fraud, filing
false tax returns, and conspiracy to structure currency
4 Nos. 06-3017 & 06-3095
transactions for the purpose of evading currency trans-
action reporting requirements.
On March 10, 2006, the brothers moved to suppress
the evidence from the notebooks, arguing that the
ECPD violated You Bin Yang’s Fourth Amendment rights.
The magistrate judge denied the defendants’ motion to
suppress, holding that Yang had no expectation of privacy
in the notebooks once he turned them over to the police.
The district court issued an order adopting the magistrate
judge’s report and recommendation. On May 2, the defen-
dants entered conditional guilty pleas, reserving the
right to appeal the suppression issue. On July 12, the
district court sentenced the defendants to 34 months in
prison.
II. ANALYSIS
Yang and his brother contend that the district court
erred by denying their motion to suppress. Specifically,
Yang and his brother argue that the government violated
their Fourth Amendment rights by searching through
the contents of the notebooks. The government responds
that Yang had no expectation of privacy in the note-
books after he gave them to Officer Schneider. This
Court reviews legal determinations related to a motion to
suppress de novo and findings of fact for clear error.
United States v. Lawshea, 461 F.3d 857, 859 (7th Cir.
2006).
The Fourth Amendment provides that “[t]he right of the
people to be secure in their persons, houses, papers, and
effects . . . shall not be violated, and no Warrants shall
issue, but upon probable cause . . .” U.S. Const. amend. IV.
The Constitution thus protects against warrantless
intrusions, but only where an individual has a “legitimate
expectation of privacy.” Rakas v. Illinois, 439 U.S. 128, 143
Nos. 06-3017 & 06-3095 5
(1978). Whether an expectation of privacy exists for
Fourth Amendment purposes depends upon two ques-
tions: 1) whether the individual, by his conduct, has
exhibited an actual expectation of privacy; and 2) whether
the individual’s expectation of privacy is one that society
is prepared to recognize as reasonable. Katz v. United
States, 389 U.S. 347, 361 (1967). A defendant objecting
to a search bears the burden of proving that he or she
had a legitimate expectation of privacy in the item
searched. United States v. Pitts, 322 F.3d 449, 456 (7th Cir.
2003).
The Supreme Court has noted that an individual claim-
ing a subjective expectation of privacy must exhibit
that expectation, i.e., he or she must not have manifested
by his or her conduct a voluntary consent to the defen-
dant’s allegedly invasive actions. Kyllo v. United States,
533 U.S. 27, 33 (2001). In other words, Yang must demon-
strate that he sought to preserve the contents of the
notebooks as private. See United States v. Walker, 426
F.3d 838, 844 (6th Cir. 2005). Moreover, a hope of privacy
is not an expectation of privacy. California v. Rooney, 483
U.S. 307, 321 (1987) (White, J., dissenting).
Courts applying the subjective expectation prong have
looked to the individuals’ affirmative steps to conceal and
keep private whatever item was the subject of the search.
See MacWade v. Kelly, 460 F.3d 260, 272 (2d Cir. 2006)
(noting that “a person carrying items in a closed, opaque
bag has manifested his subjective expectation of privacy”);
United States v. Davis, 332 F.3d 1163, 1168 (9th Cir. 2003)
(stating that “by placing his gym bag under the bed, [the
defendant] ‘manifested an expectation that the contents
would remain free from public examination’ ”); United
States v. Mackey, 626 F.2d 684, 687 (9th Cir. 1980) (hold-
ing that the defendant had no expectation of privacy in
the contents of a paper bag because it is among the
6 Nos. 06-3017 & 06-3095
least private of containers, is easily torn, cannot be
latched, and its contents can be easily discerned); People v.
Sutherland, 415 N.E.2d 1267, 1271 (Ill. App. Ct. 1980)
(holding that the defendant did not have a subjective
expectation of privacy in his clothes when he took them
off for treatment of a gunshot wound at a hospital be-
cause he did not specify that the clothes should not be
given to anyone else).
Yang did not manifest a subjective expectation of privacy
in the notebooks. Rather, he voluntarily allowed Officer
Schneider to take the notebooks in their entirety to the
police station and hold them for several days. He placed
no limitations on access to the notebooks. He did not
separate the notebook covers and keep the written con-
tents to himself. He did not request that the officers
perform the fingerprint analysis in his presence. He
did not close or secure the contents of the notebook in
anyway so that only the covers could be accessed. Indeed,
Yang permitted Sergeant Larsen to make copies of the
notebooks’ pages. In short, because Yang took no affirma-
tive steps to demonstrate any expectation of privacy in the
notebooks, he cannot prevail.
Yang maintains that although the ECPD had lawful
possession of his notebooks, that possession did not
give Officer Larsen the right to search their contents.
Yang cites Walter v. United States, 447 U.S. 649 (1980),
in support of his argument. In Walter, the Supreme
Court recognized the privacy right of an owner of porno-
graphic films who shipped them by private carrier. The
films were labeled, then wrapped and sealed. The packages
were erroneously delivered to a recipient who opened the
boxes and saw explicit drawings depicting the films’
content. The recipient called the FBI, whose agents later
viewed the films without obtaining a warrant. The
Court held that “the fact that the FBI agents were lawfully
in possession of the boxes of film did not give them author-
Nos. 06-3017 & 06-3095 7
ity to search their contents.” Id. at 654. The Court ex-
plained that the defendant had a reasonable expectation
of privacy in the films because he “expected no one ex-
cept the intended recipient either to open the 12 packages
or to project the films.” Id. at 658. Walter is distinguish-
able from our case. There, the owner manifested his
expectation of privacy in the films’ contents by securely
wrapping, sealing, and sending them to a private party. As
explained above, Yang took no such precautions.
Yang also asserts that this case is governed by LeClair
v. Hart, 800 F.2d 692 (7th Cir. 1986). In LeClair, the
plaintiffs were the subject of two separate federal investi-
gations, one by the Fish and Wildlife Service (“FWS”) and
one by the IRS. Id. at 693. The IRS agent running the
investigation learned that the FWS had obtained a war-
rant and scheduled a search of the plaintiffs’ home. The
IRS agents asked to accompany the FWS agents on the
search as observers. The IRS agents did not wear badges
or identify themselves as IRS agents. Id. One of the IRS
agents searched the home for three hours dictating
verbatim into a tape-recorder from certain financial
records not covered by the FWS warrant. The plaintiffs
were indicted for tax evasion as a result of the dicta-
tions, and the plaintiffs sued. This Court, reviewing the
denial of qualified immunity, held that the plaintiffs had
alleged a constitutional violation. Id. at 696. In LeClair,
unlike in our case, there was never any question of the
plaintiffs’ legitimate privacy expectation in their financial
documents. They were at all times within the confines of
the plaintiffs’ home, they were not the subject of the
FWS warrant, and the plaintiffs never gave the docu-
ments to the IRS agents for perusal.
Because Yang had no subjective expectation of privacy
in the notebooks, we need not reach the objectively reason-
able inquiry.
8 Nos. 06-3017 & 06-3095
III. CONCLUSION
For the above stated reasons, we AFFIRM the judgment
of the district court.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—3-7-07