United States v. Joaquin Emilio Mesa-Rincon, United States of America v. Peter Scott Stoppe

Defendants Mesa-Rincon and Stoppe appeal from a Judgment filed after their conviction under a conditional plea of guilty to counterfeiting. We consolidated the two appeals because they present virtually the same issues for review and the underlying facts are identical.

I. Facts

On March 15, 1988, the United States Secret Service applied for an order to authorize the interception of nonverbal conduct via closed circuit television to be installed by surreptitious entry. The application was approved by the district court the same day it was filed. The district court’s order authorized the interception and rec-ordation of nonverbal conduct in a specified building in Lenexa, Kansas. The order also authorized the surreptitious entry by Secret Service agents to install and maintain the video surveillance equipment.

On March 16, 1988, the Secret Service installed a television camera at the authorized location. Government agents later used the television camera to observe and record both defendants counterfeiting United States currency. The agents also observed other activities, including an apparent act of masturbation by an unknown male who had entered the premises in a manner not known to those conducting the surveillance.

Defendants moved to suppress all video evidence in the district court. The district court denied the suppression motion and subsequently entered a judgment pursuant to defendants’ conditional plea of guilty. Defendants reserved the suppression issue for appellate review in their conditional guilty plea. Defendants now challenge the video evidence on three grounds. First, they claim that the district court did not have statutory or inherent power to authorize this type of search. Second, defendants argue that the application for surveillance did not satisfy traditional fourth amendment requirements. Finally, defendants claim that the government failed to follow the limitations for television surveillance required by United States v. Torres, 751 F.2d 875 (7th Cir.1984).

Defendant Stoppe presents one separate issue dealing with sentencing. Mr. Stoppe argues that his full confession, his implication of his accomplice, and his full cooperation with the government justified a departure below the sentencing guidelines.

II. Standard of Review

The district court’s power to authorize video surveillance, and the sufficiency of that authorization, present questions of law. The application of the sentencing guidelines is also a question of law. We review questions of law de novo. Bill’s Coal Co. v. Board of Public Utilities, 887 F.2d 242, 244 (10th Cir.1989). When using the non-deferential de novo standard of review, the appellate court is not constrained by the district court’s conclusions of law. United States v. Ortiz, 804 F.2d 1161, 1164 (10th Cir.1986); State Distrib. Inc. v. Glenmore Distilleries, 738 F.2d 405, 412 (10th Cir.1984). The appellate court must review the record in light of its own independent judgment. See Ocelot Oil Corp. v. Sparrow Indus., 847 F.2d 1458, 1464 (10th Cir.1988).

*1436 III. The District Court’s Power to Authorize Covert Television Surveillance

Defendants argue that the district court is without statutory or inherent power to order covert television surveillance. We hold that Fed.R.Crim.P. 41(b) grants authority to the district court to authorize the surveillance that took place in this case. 2

Rule 41(b) authorizes the issuance of a warrant to:

[SJearch for and seize any (1) property that constitutes evidence of the commission of a criminal offense; or (2) contraband, the fruits of crime, or things otherwise criminally possessed; or (3) property designed or intended for use or which is or has been used as the means of committing a criminal offense; or (4) person for whose arrest there is probable cause, or who is unlawfully restrained.

Fed.R.Crim.P. 41(b). The Supreme Court has interpreted Rule 41 to authorize the issuance of a search warrant to install a “pen register,” a device that records the phone numbers dialed from a telephone. United States v. New York Telephone Co., 434 U.S. 159, 169, 98 S.Ct. 364, 370, 54 L.Ed.2d 376 (1977). The New York Telephone Court stated that Rule 41 “is sufficiently flexible to include within its scope electronic intrusions authorized upon a finding of probable cause.” Id. at 169, 98 S.Ct. at 370. See also Katz v. United States, 389 U.S. 347, 355-56 n. 16, 88 S.Ct. 507, 513-14, 19 L.Ed.2d 576 (1967); cf. Osborn v. United States, 385 U.S. 323, 329-31, 87 S.Ct. 429, 432-34, 17 L.Ed.2d 394 (1966). Thus, although the language of Rule 41 concerns conventional searches, the Supreme Court has interpreted the rule to cover “electronic intrusions,” including wiretaps. New York Telephone, 434 U.S. at 169, 98 S.Ct. at 370.

Relying primarily on New York Telephone, two circuit courts have held that Rule 41 authorizes district courts to issue warrants for video surveillance. See United States v. Torres, 751 F.2d 875, 877-78 (7th Cir.1984), cert. denied, 470 U.S. 1087, 105 S.Ct. 1853, 85 L.Ed.2d 150 (1985); United States v. Biasucci, 786 F.2d 504, 509 (2d Cir.1986). We are in agreement with the Seventh Circuit’s statement that “[w]e cannot think of any basis on which the rule might be thought sufficiently flexible to authorize a pen register, bug, or wiretap, but not a camera.” Torres, 751 F.2d at 877-78. Thus, we conclude that Rule 41(b) provides the district court with authority to issue the order involved in this case.

IV. Search and Seizure Requirements

The fourth amendment states that “no Warrants [for searches and seizures] shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const, amend. IV. Thus, the fourth amendment creates two requirements for all search warrants. There must be probable cause supported by an oath or affirmation and a particular description of the place, persons, and things to be searched and seized.

In many search and seizure areas Congress has specifically defined the probable cause and particularity requirements of the fourth amendment. See, e.g., Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-20 (1988); the Foreign Intelligence Surveillance Act, 50 U.S.C. §§ 1801-11 (1982). The failure of the government to comply with the statutory requirements for intrusive search techniques such as wiretaps and bugs results in suppression of the evidence obtained.

[CJongress intended to require suppression where there is failure to satisfy any of those statutory requirements that directly and substantially implement the congressional intention to limit the use of intercept procedures to those situations *1437 clearly calling for the employment of this extraordinary investigative device.

United States v. Giordano, 416 U.S. 505, 527, 94 S.Ct. 1820, 1832, 40 L.Ed.2d 341 (1974). Unfortunately, Congress has not yet specifically defined the constitutional requirements for video surveillance. Nevertheless, the general fourth amendment requirements are still applicable to video surveillance; and suppression is required when the government fails to follow these requirements.

Although Congress has not yet delineated the requirements for video surveillance, we find guidance in case law and congressional enactments concerning similar search and seizure techniques. We have considered carefully the underlying purposes of the fourth amendment and the intrusiveness of video surveillance. Having done so, we now adopt the following five requirements for video surveillance that define more specifically the probable cause and particularity requirements of the fourth amendment. These requirements have been formulated for other search techniques, and we hold that they must be satisfied before video surveillance will be permitted. An order permitting video surveillance shall not be issued unless: (1) there has been a showing that probable cause exists that a particular person is committing, has committed, or is about to commit a crime; (2) the order particularly describes the place to be searched and the things to be seized in accordance with the fourth amendment; (3) the order is sufficiently precise so as to minimize the recording of activities not related to the crimes under investigation; (4) the judge issuing the order finds that normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or appear to be too dangerous; and (5) the order does not allow the period of interception to be longer than necessary to achieve the objective of the authorization, or in any event no longer than thirty days.

We adopt these five requirements from three separate sources that discuss search techniques similar to video surveillance: Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-20 (1988); the Foreign Intelligence Surveillance Act, 50 U.S.C. §§ 1801-11 (1982); and the common law concerning audio surveillance prior to the passage of Title III. Each of these sources contains at least four of the five requirements.

Title III establishes elaborate warrant requirements for wiretapping and bugging. See 18 U.S.C. §'§ 2516, 2518 (1988). Unfortunately, Title III does not discuss television' surveillance in any way. Thus, its requirements are not binding on this court in the context of video surveillance. However, the fact that Title III does not discuss television surveillance is no authority for the proposition that Congress meant to outlaw the practice. 3 Despite Congress’ silence concerning video surveillance, we believe that Title ' Ill’s provisions ■ provide strong guidance for establishing video surveillance requirements. For example, Title III provides requirements for the surreptitious interception of oral communications within a private or business dwelling. We believe that the interception of oral communications provides a strong analogy to video surveillance even though video surveillance can be vastly more intrusive, as demonstrated by the surveillance in this case that recorded a person masturbating before the hidden camera.

All five of the requirements we adopt for video surveillance are found in Title III. 4 *1438 These five requirements are the only requirements of Title III that deal with the probable cause and particularity requirements of the fourth amendment. We do not apply the remaining statutory provisions of Title III to video surveillance because we believe such a course to require congressional action. The provisions we do not adopt are not required by the fourth amendment. We simply look to Title III for guidance in implementing the fourth amendment in an area that Title III does not specifically cover.

Three United States circuit courts have adopted at least four of these requirements from Title III in television surveillance cases. 5 Our holding puts us into substantial agreement with these three courts. We simply articulate the additional requirement of probable cause, almost certainly assumed by all three courts.

We next look for guidance to the only congressional enactment that specifically addresses video surveillance, namely, the Foreign Intelligence Surveillance Act (FISA). See 50 U.S.C. §§ 1801-11 .(1982). FISA establishes procedures for the electronic surveillance, including television surveillance, of foreign agents. The act applies only to the surveillance of foreign agents. Thus, the act does not apply to the kind of domestic surveillance that took place in this ease. However, we believe that FISA provides strong guidance as to the minimum requirements for domestic surveillance. FISA was enacted in the face of the President’s strong constitutional authority over foreign affairs. See U.S. Const, art. II, §§ 2-3. Thus, FISA covers an area in which there is more deference to governmental searches than in the area of domestic surveillance. In light of this fact, we believe that FISA provides strong guidance for the minimum standards of domestic surveillance.

FISA contains language closely approximating four of the five requirements we have adopted. The statute requires the government submission requesting video surveillance to include: (1) “a statement of the proposed minimization procedures,” 50 U.S.C. § 1804(a)(5); (2) “a detailed description of the nature of the information sought and the type of communications or activities to be subjected to the surveillance,” id. at § 1804(a)(6); (3) “a certification ... that such information cannot reasonably be obtained by normal investigative techniques,” id. at § 1804(a)(7); and (4) “a statement of the period of time for which the electronic surveillance is required to be maintained,” 50 U.S.C. § 1804(a)(10) (1982). “An order issued under this section may approve an electronic surveillance for the period necessary to achieve its purpose, or for ninety days, whichever is less.” 50 U.S.C. § 1805(d)(1) (1982).

FISA contains requirements that are nearly identical to the ones we adopt in this case concerning domestic video surveillance. The only differences are that FISA allows ninety days while we provide for only thirty days, with the possibility of extensions, and that FISA does not require *1439 a probable cause finding. 6 Thus, we find FISA’s provisions supportive of the requirements we adopt in domestic video surveillance cases.

Finally, we look to Supreme Court case law for guidance in identifying the requirements for video surveillance. The Supreme Court has not specifically dealt with the constitutionality of video surveillance. However, the Court’s discussions, prior to the enactment of Title III, of surreptitiously installed listening devices provides substantial guidance as to the requirements we should impose on video surveillance in the absence of congressional action. Cf. Biasucci, 786 F.2d at 510; People v. Teicher, 52 N.Y.2d 638, 422 N.E.2d 506, 514, 439 N.Y.S.2d 846, 854 (1981).

The Supreme Court found the interception of oral communications through surreptitiously installed listening devices unconstitutional in two cases predating Title III. See Berger v. New York, 388 U.S. 41, 59, 87 S.Ct. 1873, 1883, 18 L.Ed.2d 1040 (1967); Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). In Berger, the Court specifically outlined several deficiencies in a New York statute covering listening devices. In so doing, the Court condemned the absence of the five minimum requirements that we apply to video surveillance in this case. The weaknesses of the statute were: (1) “eavesdropping is authorized without requiring belief that any particular offense has been or is being committed,” Berger, 388 U.S. at 58-59, 87 S.Ct. at 1883-84; (2) “[likewise the statute’s failure to describe with particularity the conversations sought gives the officer a roving commission to ‘seize’ any and all conversations,” id. at 59, 87 S.Ct. at 1883; (3) The statute does not require minimization by allowing “eavesdropping for a two-month period_ During such a long and continuous (24 hours a day) period the conversations of any and all persons coming into the area covered by the device will be seized indiscriminately and without regard to their connection with the crime under investigation,” id; (4) “the statute places no termination date on the eavesdrop once the conversation sought is seized,” id. at 59-60, 87 S.Ct. at 1883-84; and (5) the statute “permits uncontested entry without any showing of exigent circumstances,” id. at 60, 87 S.Ct. at 1884. Thus, analogous Supreme Court precedent supports our adoption of the five requirements for domestic video surveillance.

Our adoption of the five requirements for valid domestic video surveillance leaves us with the task of applying the requirements to the facts of this case.

A. Probable Cause

Defendants suggest that the order authorizing video surveillance in this case was not supported by probable cause because the government only alleged lawful conduct in its affidavit supporting the request for the order. Probable cause is a common-sense standard that requires facts sufficient “to warrant a man of reasonable caution in the belief that an offense has been or is being committed.” Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879 (1949); see also Berger, 388 U.S. at 55, 87 S.Ct. at 1881. More recently the Court has stated that “so long as the magistrate had a ‘substantial basis for ... concluding]’ that a search would uncover evidence of wrongdoing, the Fourth Amendment requires no more.” Illinois v. Gates, 462 U.S. 213, 236, 103 S.Ct. 2317, 2331, 76 L.Ed.2d 527 (1983) (quoting Jones v. United States, 362 U.S. 257, 271, 80 S.Ct. 725, 736, 4 L.Ed.2d 697 (1960)). Thus, the Supreme Court does not require that knowledge of unlawful conduct be asserted. Instead, the Court requires the judge reviewing the evidence to conclude that a substantial basis exists for the conclusion that a search would uncover evidence of wrongdoing. Our search of the record convinces us that the judge issuing the order in this case had sufficient evidence to satisfy this standard.

*1440 The supporting affidavit alleges that the following conduct was observed. The defendants legally purchased all of the printing equipment and accessories necessary for the printing process most commonly used by counterfeiters. When making these purchases, defendants used aliases and on one occasion gave a fictitious address. There were large purchases of white bond paper similar to the weight used to print genuine United States currency. Although the defendants were purportedly setting up a printing business, they did not obtain a business permit. No telephone was located in the warehouse, and there was no sign indicating the location of the business. The window to the warehouse was covered with duct tape, and a printing press serviceman was required to wait outside when he returned to the warehouse to retrieve a tool he had left. The defendants were also observed carrying bags of trash out of the warehouse and disposing of them at defendant Stoppe’s rural residence.

The affidavit was prepared by a special agent of the United States Secret Service who had extensive training in the detection and manufacture of counterfeit United States currency. The agent began his investigation based on information provided by two previously reliable confidential informants.

We hold that the above information allows a reasonable person to conclude that an offense had been or was being committed and that a search would uncover evidence of wrongdoing. Thus, we hold that probable cause existed to issue the order contested in this case.

B. Particularization

The second requirement we have imposed upon video surveillance orders is particularization. The fourth amendment states that warrants shall “particularly describ[e] the place to be searched, and the persons or things to be seized.” U.S. Const, amend. IV. The purpose of this requirement is to provide guidance to police and to avoid general searches without specific limits. See United States v. Leary, 846 F.2d 592, 602 (10th Cir.1988).

Title III requires

a particular description of the nature and location of the facilities from which or the place where the communication is to be intercepted, ... a particular description of the type of communications sought to be intercepted, ... the identity of the person, if known, committing the offense and whose communications are to be intercepted.

18 U.S.C. § 2518(l)(b) (1988). Thus, particularization under Title III requires three things: (1) a description of the place to be put under surveillance; (2) a description of the type of activity sought to be intercepted; and (3) the identity of the person committing the offense. Three other cases have adopted a fourth requirement that the warrant must also particularly describe the crime under investigation. See United States v. Cox, 449 F.2d 679, 687 (10th Cir.1971) (outlining all four requirements); United States v. Tortorello, 480 F.2d 764, 779-80 (2d Cir.), cert. denied, 414 U.S. 866, 94 S.Ct. 63, 38 L.Ed.2d 86 (1973); Teicher, 439 N.Y.S.2d at 854, 422 N.E.2d at 514. We apply all four particularity requirements to video surveillance.

The order in this case identified the place to be searched by its address and further described it as a unit in a one-story rectangular warehouse-style building. Order, March 15, 1988, at 1. We hold that this description satisfies the first particularity requirement of describing the place to be put under surveillance. The Torres court held that a mere address was sufficient. See Torres, 751 F.2d at 884. Another recent circuit case held that particularization did not require the judge issuing a warrant to approve the precise location in the house where each listening device would be placed. See United States v. Lambert, 771 F.2d 83, 91 (6th Cir.), cert. denied, 474 U.S. 1034, 106 S.Ct. 598, 88 L.Ed.2d 577 (1985).

The order in this case also authorized the interception of nonverbal conduct “concerning offenses involving the counterfeiting of obligations or securities of the Untied [sic] *1441 States, or the uttering of counterfeit United States obligations or securities, in violation of Sections 471 and 472 of Title 18, United States Code.” Order, March 15, 1988, at 3. We hold that this language contains an adequate description of the type of activity sought to be captured by the camera, the second requirement, and an adequate description of the crimes under investigation, the fourth requirement. Another federal court has held that language in a warrant authorizing the interception of “communications relating to the offenses of bookmaking and conspiracy” is a sufficiently particular description of the type of communication sought to be intercepted. See United States v. Ripka, 349 F.Supp. 539, 542 (E.D.Penn.1972), aff'd, 480 F.2d 918 (3d Cir.), cert. denied, 414 U.S. 979, 94 S.Ct. 285, 38 L.Ed.2d 223 (1973).

The third requirement of particularity requires the specific identification of individuals committing the offense under investigation. The order in this case authorized televised surveillance of “Peter Scott Stoppe, Joaquin Emilio Mesa, and others as yet unknown....” Order, March 15, 1988, at 3. We hold that this language sufficiently identifies defendants Stoppe and Mesa-Rincon. In addition, the Supreme Court has held that “the failure to identify additional persons who are likely to be overheard engaging in incriminating conversations could hardly invalidate an otherwise lawful judicial authorization.” United States v. Donovan, 429 U.S. 413, 435, 97 S.Ct. 658, 671, 50 L.Ed.2d 652 (1977). The particularity requirement of Title III only requires the specific identity of suspects if they are known. In addition, the Second Circuit has specifically upheld a search warrant that included the language “others yet unknown.” See United States v. Fiorella, 468 F.2d 688, 691 (2d Cir.1972), cert. denied, 417 U.S. 917, 94 S.Ct. 2622, 41 L.Ed.2d 222 (1974). Thus, the order in this case fulfilled the requirement of identifying the individuals to be observed.

We conclude that the order of the district court in this case satisfied the requirements of particularity.

C. Minimization

The purpose of the minimization requirement is to avoid the recording of activity by persons with no connection to the crime under investigation who happen to enter an area covered by a camera. Teicher, 439 N.Y.2d at 854, 422 N.E.2d at 514. “The minimization question is one of reasonableness.” United States v. Apodaca, 820 F.2d 348, 350 (10th Cir.1987). Title III

does not forbid the interception of all nonrelevant conversations, but rather instructs the agents to conduct the surveillance in such a manner as to ‘minimize’ the interception of such conversations. Whether the agents have in fact conducted the wiretap in such a manner will depend on the facts and circumstances of each case.

Scott v. United States, 436 U.S. 128, 139-40, 98 S.Ct. 1717, 1724, 56 L.Ed.2d 168 (1978). We hold that the order involved in this case required adequate minimization procedures.

The order required that:

[Ijnterception shall be conducted in such a manner as to minimize the interception of visual, non-verbal conduct when it is determined that a named interceptee’s conduct is not criminal in nature....

IT IS FURTHER ORDERED that when it is determined that none of the named interceptees nor any person subsequently identified as an accomplice who uses the premises to commit or converse about the designated offenses is inside the premises, interception of visual, non-verbal conduct shall be discontinued, except that if such a determination is made, visual monitoring ceases, and agents are thereafter unable to ascertain whether any of the aforementioned persons is inside the premises, agents may engage in spot monitoring to determine whether any of the persons is once again inside the premises. Whenever it is determined that any of the aforementioned .persons is within the premises, interception of visual, non-verbal conduct may be initiated to determine whether such conduct involves the desig *1442 nated offenses. If the conduct relates to such offenses, it may be intercepted.

Order, March 15, 1988, at 4. This order specifically requires minimization and outlines the procedures to be followed. Although the sentence structure of the order concerning when visual monitoring is to stop is somewhat difficult to follow, we believe that it provides adequate guidance.

Other circuit courts have upheld very similar warrants for wiretaps or the interception of oral communications. The First Circuit explained that an order “should include a provision that the surveillance shall be conducted in such a way as to minimize the interception of extraneous communications and should specify the guidelines for accomplishing that purpose.” In re Application of the United States for an Order Authorizing the Interception of Oral Communications at the Premises Known as Calle Mayaguez 212, Hato Rey, Puerto Rico, 723 F.2d 1022, 1027 (1st Cir.1983). The order in this case satisfied both requirements. The Eleventh Circuit has upheld a warrant where government agents monitored conversations until they determined them to be nonpertinent to the crime involved. See United States v. Van Horn, 789 F.2d 1492, 1502 (11th Cir.1986). The Eighth Circuit has held that the monitoring of the first two to three minutes of each conversation to determine the conversation’s relevance satisfies the minimization requirement. United States v. Losing, 560 F.2d 906, 909 n. 1 (8th Cir.1977). The order in this case required surveillance to minimize the interception of conduct when it was determined that the conduct was not criminal in nature. The order also allowed spot checks to see if the targets of the investigation were in the building. We hold that on its face the order fulfilled the minimization requirement.

D. Alternative Investigation Techniques

The fourth amendment protects us against “unreasonable searches and seizures.” To determine whether a search is “reasonable” we must balance the intrusiveness of the method used and the expectation of privacy in the premises searched with the government’s showing of necessity for the search. “Unfortunately, there can be no ready test for determining reasonableness other than by balancing the need to search against the invasion which the search entails.” Camara v. Municipal Court, 387 U.S. 523, 536-37, 87 S.Ct. 1727, 1734-35, 18 L.Ed.2d 930 (1967). Thus, as the intrusiveness of the method used increases and the expectation of privacy in the premises searched increases, the government’s showing of necessity increases and must be more clearly established.

Title III requires a search warrant application to contain “a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous.” 18 U.S.C. § 2518(l)(c) (1988). In Berger v. New York, the Court refused to uphold a warrant statute that “permitted] unconsented entry without any showing of exigent circumstances.” Berger, 388 U.S. at 60, 87 S.Ct. at 1884. “Such a showing of exigency, in order to avoid notice, would appear more important in eavesdropping [and we add in video surveillance], with [their] inherent dangers, than that required when conventional procedures of search and seizure are utilized.” Id. We adopt these requirements in the video surveillance context by holding that the government must use the least intrusive means available to obtain the needed information.

The showing of necessity needed to justify the use of video surveillance is higher than the showing needed to justify other search and seizure methods, including bugging. The use of a video camera is an extraordinarily intrusive method of searching. Here, the incident in which an unidentified individual was observed masturbating provides an excellent example of this intrusiveness. No other technique would have recorded — at least in graphic visual detail — an apparently innocent individual engaging in this very personal and private behavior. “Television surveillance is identical in its indiscriminate character to wiretapping and bugging. [However,] [i]t is even more invasive of privacy, just as a *1443 strip search is more invasive than a pat-down search....” Torres, 751 F.2d at 885. Because of the invasive nature of video surveillance, the government’s showing of necessity must be very high to justify its use.

Another element of the intrusiveness equation that affects the government’s required showing of necessity is the nature of the premises to be put under surveillance. Our expectation of privacy lessens as we move from a private home to a public business. For example, an ordinary individual has a right to expect greater privacy in his own home than does an individual owning a business into which he invites the public. The Seventh Circuit emphasized the high expectation of privacy in the home when it stated: “[Mjaybe in dealing with so intrusive a technique as television surveillance, other methods of control as well, such as banning the technique outright from use in the home in connection with minor crimes, will be required, in order to strike a proper balance between public safety and personal privacy.” Torres, 751 F.2d at 882.

The business involved in this case falls somewhere between a private home, in which there is a high expectation of privacy, a