## Facts

- The U.S. Secret Service investigated Joaquin Emilio Mesa-Rincon and Peter Scott Stoppe for counterfeiting U.S. currency allegedly conducted from a warehouse-style building in Lenexa, Kansas.
- Agents sought and obtained a district court order under Fed. R. Crim. P. 41(b) authorizing covert closed-circuit video surveillance of the premises and surreptitious entry to install and maintain the equipment.
- The application relied on an affidavit from a trained agent, supported by information from two previously reliable confidential informants and corroborating investigative work (including defendants’ acquisition of printing materials and bond paper).
- The government represented that other investigative methods had been tried or were unlikely to succeed or were impractical, including use of informants and audio interception.
- The order specified the premises and targets, limited monitoring to suspected counterfeiting activity, imposed a 30-day limit (or earlier termination upon discovery of the crime), and required minimization of unrelated activity.
- Video recordings captured defendants engaged in counterfeiting and also captured an unrelated incident involving an unknown male.
- Defendants moved to suppress the video evidence; the district court denied suppression. Defendants entered conditional guilty pleas preserving the suppression issue for appeal.
- Stoppe also challenged sentencing based on the government’s failure to seek a cooperation-based downward departure.

## Issues

1. Whether Fed. R. Crim. P. 41(b) (and related judicial authority) permits a warrant authorizing covert, silent video surveillance and surreptitious entry to install the equipment.
2. Whether the application and order satisfied Fourth Amendment requirements, including probable cause, particularity, reasonableness, minimization, necessity, and temporal limits, given the intrusiveness of video surveillance.
3. Whether the incidental capture of unrelated conduct demonstrated an unconstitutional failure to minimize.
4. Whether the government was obligated to move for a downward departure for Stoppe’s cooperation, and whether the district court erred in refusing to depart.

## Decision

- The court affirmed the denial of the motion to suppress and affirmed the convictions and sentences.
- The court held that Rule 41(b) authorized the warrant for covert video surveillance and the surreptitious entry needed to install and maintain the camera.
- The court held that the surveillance order and its execution satisfied the Fourth Amendment and complied with heightened safeguards applicable to covert video monitoring.
- The court held that the recording of unrelated conduct did not, by itself, invalidate the surveillance where the order included constitutionally adequate minimization requirements.
- The court rejected Stoppe’s sentencing claim, concluding the government was not bound to seek a downward departure and that the district court’s refusal to depart was not reversible on the record presented.

## Legal Principles

- Fed. R. Crim. P. 41(b) may authorize warrants for covert, silent video surveillance when supported by probable cause and constrained by Fourth Amendment limits; the absence of express statutory regulation of silent video surveillance does not itself bar such warrants.
- Because covert video surveillance is highly intrusive, Fourth Amendment reasonableness requires safeguards comparable to stringent electronic-surveillance standards, including:
  - Probable cause that a serious offense is being or has been committed.
  - Probable cause linking the targeted premises to the offense or evidence of it.
  - Necessity: normal investigative procedures have failed or reasonably appear unlikely to succeed or too dangerous.
  - Particularity and minimization directions to limit capture of activity unrelated to the crime.
  - Strict time limits and termination upon attainment of the objective.
- A warrant may authorize surreptitious entry to install and service surveillance equipment when the entry is limited in scope and tied to execution of a valid warrant.
- Incidental interception of unrelated activity does not automatically require suppression where minimization requirements are imposed and there is no showing of a wholesale failure to minimize.

## Conclusion

The Tenth Circuit upheld covert, silent video surveillance authorized under Rule 41(b), including surreptitious entry, and required heightened Fourth Amendment safeguards—probable cause, necessity, particularity, minimization, and strict duration limits—while affirming the denial of suppression and rejecting a cooperation-based sentencing challenge.


United States v. Mesa-Rincon, 911 F.2d 1433 (10th Cir. 1990)