Petition — Frazier v. United States

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SEP 28 1977

AK. JR., CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1977

UNITED STATES OF AMERICA

JOHN D. FRAZIER,

Petitioner.

PETITION FOR WRIT OF CERTIORARI

To the United States Court of Appeals

for the Eighth Circuit

LEONARD J. FRANKEL

RICHARD S. McCONNELL, JR.

WOLFF, FRANKEL, McCONNELL & PASSANANTE

8019 Forsyth Avenue

Clayton, Missouri 63105

Attorneys for Petitioner

an aT NE ED

St. Louis Law Printing Co.. Inc., 812 Olive Street 6310! $44-231-4477

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TABLE OF CONTENTS

Page

PRP eV ye Cee eT eee te eee l

Arid bho dnksds dawns ewes ee en eee net 2

IDS cp ca wedcswesndewereselnkees 3

Constitutional Provisions, Statutes and Rules of Court In-

RE icy cance kis eek) C40 Kaa Kee A eae 3

A ee Pee Oe ee ey ee eee 6

Ressous for Granting the Writ... . 0.0 c cece cece 10

I. The Government Should Be Required to Prove

Racketeering for a Hobbs Act Violation ........ 10

II. The Use of an Electronic Beeper Is a Search .... 13

III. Lack of Exigent Circumstances .............. 17

Se 5 0's ico alos a oese's wa Eira ye aheg aie 20

EE OO 6G. 6.60s.6 ud 600656 aws cee ed sense ekae O46 A-1

EN 6. oka one thes ae Oa eos eee ee Os A-12

ERE ae ae aera A marae ere Ter ree ae A-13

PN A is a ba eeh Cane Kee eeesehadeeesene ae A-14

SE ee eae ee ee ae Ser ee ee A-15

PEE 4:06 48k Chane eewene Rae ek cekee ee eee A-25

EEE eS ere ee rae ee rae A-29

CITATIONS

Cases

Cw. LR, GET GE Te ong ok ce cece nsns 15

Ratz v. United States, 369 U.S. 347 .. 0... eee ee 14, 15

Rewis v. United States (1971), 401 U.S. 808 .......... 13

United States v. Bass (1971), 404 U.S. 336 ............ 13

United States v. Bobisink (D.C. Mass., 1976), 415 F.

EE GEG oss Void Sa bch ous hoeaeneereded 14

United States v. Carpenter (D.C. Mass., 1975), 403 F.

en a 66 Grae rd eae Te oe 14

United States v. Culbert (9 Cir., 1977), 548 F.2d 1355 .10, 12

United States v. Emmons (1973), 410 U.S. 396 ...... 11, 13

United States v. Frazier (8 Cir., 1976), 538 F.2d 1322 ..13,17

United States v. Golay (8 Cir. 6/24/77, Mo. 76-1166)

ie aaa ¢ xu ut Pecan rakes ca ere ea kas 10

United States v. Holmer (5 Cir., 1975), 521 F.2d 859 ..13, 16

United States v. Holmer (5 Cir., en banc, 1976), 537 F.2d

i Cece Petes eh Cdchy eds edee dk tee ce ke eoss <4 13

United States v. Hufford (9 Cir., 1976), 539 F.2d 32..... 13

United States v. Martynink (D. Ore., 1975), 395 F. Supp.

soled deh SOE ees owes ane Ce ike eka 13,14

United States v. Yokley (6 Cir., 1976), 542 F.2d 300 . .10, 11

wramiee ©. Cane, SE WE. BOG... ks ccc ecccccenuves 20

Constitutional Provision

Fourth Amendment to Constitution of United States .... 3

Statutes

Missouri Revised Statutes § 560.130 ................ 12

Title 18, United States Code § 195! .............. 3, 4,6

Title 18, United States Code § 3731 ................ 5,6

Miscellaneous

S. Rep. No. 1440, 73rd Cong., 2d Sess. (1934) ........ 11

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1977

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UNITED STATES OF AMERICA

JOHN D. FRAZIER,

Petitioner.

ee ee he

PETITION FOR WRIT OF CERTIORARI

To the United States Court of Appeals

for the Eighth Circuit

John D. Frazier, your Petitioner, respectfully prays that a

writ of certiorari be issued to review the judgment of the United

States Court of Appeals for the Eighth Circuit entered in the

above entitled cause on August 5, 1977.

OPINIONS BELOW

This cause was decided by a panel of the United States Court

of Appeals on August 5, 1977, in an opinion which has not yet

been officially reported. The opinion is reproduced as Appendix

A hereto (App. A-1 to A-11).

a oe

On August 29, 1977, the Court of Appeals denied Petition-

er’s petition for rehearing or in the alternative for transfer to the

Court en banc. The Court's order is reproduced as Appendix

B hereto (App. A-12). Thereafter, on September 12, 1977, the

Court of Appeals entered its order staying its mandate until

final disposition by this Court. The Court’s order is reproduced

as Appendix C hereto (App. A-13).

This case was previously before the Supreme Court on Peti-

tioner’s petition for writ of certiorari which was denied on

January 10, 1977, — U.S. —, 97 S. Ct. 751. The Court's

order is reproduced as Appendix D hereto (App. A-14).!

Prior thereto, this cause was decided by a panel of the United

States Court of Appeals on an appeal by the government from

a ruling by the District Court sustaining in part Petitioner's

Motion to Suppress. The Court of Appeals reversed the District

Court by an opinion entered on July 16, 1976, reported at 538

F.2d 1322. The opinion is reproduced as Appendix E hereto

(App. A-15 to A-24). The District Court's order, which was

not Officially published, is reproduced as Appendix F hereto

(App. A-25 to A-28).

JURISDICTION

The judgment of the United States Court of Appeals was

entered on August 5, 1977 (See Appendix A). A timely peti-

tion for rehearing or in the alternative for transfer to the court

en banc was denied on August 29, 1977 (See Appendix B).

The jurisdiction of this Court is invoked under 28 United

States Code § 1254 (1).

' In the government's brief in opposition, the Solicitor General

argued that the application was premature and if Petitioner were

later convicted and the conviction affirmed, a petition for writ of

certiorari would then be timely.

QUESTIONS PRESENTED

Whether the government must prove that Petitioner was in-

volved in racketeering in order to convict him of attempted

extortion in violation of Title 18, United States Code § 1951.

Whether the District Court correctly ruled that government

agents were required to obtain a search warrant prior to install-

ing an electronic bumper beeper on Petitioner's automobile.

Ill

Whether the Court of Appeals erred in holding that exigent

circumstances existed which justified the failure of agents to

obtain a search warrant prior to installing an electronic bumper

beeper on Petitioner's automobile.

CONSTITUTIONAL PROVISIONS, STATUTES AND

RULES OF COURT INVOLVED

Amendments to Constitution of the United States

The right of the people to be secure in their persons, houses,

papers, and effects, against unreasonable searches and seizures,

shall not be violated, and no warrants shall issue, but upon

probable cause, supported by oath or affirmation, and particu-

larly describing the place to be searched, and the persons or

things to be seized.

Statutes of the United States

Title 18, United States Code

§ 1951. Interference with commerce by threats or violence.

(a) Whoever in any way or degree obstructs, delays, or affects

commerce or the movement of any article or commodity in

commerce, by robbery or extortion or attempts or conspires so

to do, or commits or threatens physical violence to any person

or property in furtherance of a plan or purpose to do anything

in violation of this section. shall be fined not more than $10,000

or imprisoned not more than twenty years, or both.

(b) As used in this section—

(1) The term “robbery” means the unlawful taking or ob-

taining of personal property from the person or in the

presence of another, against his will, by means of actual

or threatened force, or violence, or fear of injury, im-

mediate or future, to his person or property, or property

in his custody or possession, or the person or property

of a relative or member of his family or of anyone in

his company at the time of the taking or obtaining.

(2) The term “extoration” means the obtaining of property

from another, with his consent, induced by wrongful

use of actual or threatened force, violence, or fear, or

under color of official right.

(3) The term “commerce” means commerce within the Dis-

trict of Columbia, or any Territory or Possession of the

United States; all commerce between any point in a

State, Territory, Possession, or the District of Columbia

and any point outside thereof; all commerce between

points within the same State through any place outside

—

such State; and all other commerce over which the

United States has jurisdiction.

affect section 17 of Title 15, sections 52, 101-115, 151-166 of

Title 29 or sections 151-188 of Title 45.

§ 3731. Appeal by United States.

In a criminal case an appeal by the United States shall lie to

a court of appeals from a decision, judgment, or order of a dis-

trict court dismissing an indictment or information as to any one

or more counts, except that no appeal shall lie where the double

jeopardy clause of the United States Constitution prohibits fur-

ther prosecution.

An appeal by the United States shall lie to a court of appeals

from a decision or order of a district court suppressing or ex-

cluding evidence or requiring the return of seized property in a

criminal proceeding, not made after the defendant has been put

in jeopardy and before the verdict or finding on an indictment

or information, if the United States attorney certifies to the dis-

trict court that the appeal is not taken for purpose of delay and

that the evidence is a substantial proof of a fact material in the

proceeding.

The appeal in all such cases shall be taken within thirty days

after the decision, judgment or order has been rendered and

shall be diligently prosecuted.

Pending the prosecution and determination of the appeal in

the foregoing instances, the defendant shall be released in ac-

cordance with chapter 207 of this title.

The provisions of this section shall be liberally construed to

effectuate its purposes.

STATEMENT

On December 2, 1975, Petitioner was arrested and charged

with a violation of § 1951, Title 18, United States Code, at-

tempted extortion. Thereafter, Petitioner duly filed a motion

to suppress evidence, which is reproduced as Appendix G hereto

(App. A-29 to A-30). A hearing was held on March 19, 1976,

and by memorandum and order dated March 29, 1976, the

Honorable James H. Meredith sustained in part and denied in

part Petitioner's motion to suppress evidence (See Appendix F).

The government then took an appeal from the District Court’s

order pursuant to § 3731, Title 18, United States Code. On

July 16, 1976, the United States Court of Appeals for the Eighth

Circuit reversed the District Court ruling (See Appendix E).

Petitioner then filed a petition for writ of certiorari which was

denied by this Court on January 10, 1977 (See Appendix D).

The Solicitor General, in his brief in opposition argued that the

application was premature and, if Petitioner were later convicted

on the merits and the conviction affirmed, a petition for writ

of certiorari would then be timely. After the petition for certio-

rari was denied the case was set for trial in District Court. Trial

commenced on February 7, 1977.

The trial testimony pertinent to this appeal essentially is as

follows. On November 24, 1975, Mr. James Clayton, a super-

visor for McDonnell Douglas Corporation, received an anony-

mous telephone call from a person suggesting an opportunity

to Clayton to earn $50,000.00. (Tr. 4-5). Clayton reported the

call to the F.B.I. which immediately began an investigation.

(Tr. 6). Subsequently, Clayton received similar calls, some of

which were recorded. (Tr. 18, 23). On November 25, 1975,

the caller described a scheme to obtain money from a wealthy,

but unidentified resident of Ladue, Missouri. He told Clayton

that an explosive belt was to be attached to the victim with its

removal contingent upon the payment of a significant sum of

oa pe nee eyes

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money. No arrangements were ever made for Clayton to receive

his share of the money. (Tr. 42).

The F.B.1. identified the caller as John D. Frazier on No-

vember 30, 1975, when they traced his automobile license num-

ber after observing him at the Sheraton Airport Motor Inn.

(Tr. 162). When Clayton was told the caller's name, Clayton

stated he knew Frazier. (Tr. 15). Clayton said that Frazier was

previously employed at McDonnell Douglas Corporation, that

he was a retired naval officer and expert in the handling of

explosives. On December 1, 1975, at approximately 2:00 p.m.,

Clayton was advised by Petitioner of the name and address

of the intended victim, Clarence Barksdale, President of the

First National Bank in St. Louis. Clayton was also told the

scheme would be carried out the following morning. (Tr. 29).

On December 1, 1975, at approximately 6:30 p.m., Special

Agent Warren Wyman attached an electronic bumper beeper to

Petitioner's car while it was parked at the Sheraton Inn. (Tr. 55).

A search warrant was not obtained prior to utilizing the device.

(Tr. 61). The beeper allowed the F.B.I. to locate Petitioner's

automobile by receiving the signal emitted from the beeper.

(Tr. 57).

Also on December !, 1975, the F.B.I. received the bomb

belt which was to be used in the scheme by Clayton (Tr. 76,

87). After checking it out, it was determined that the bomb

was a hoax. (Tr. 97).

During the course of its investigation, the F.B.1. contacted

Clarence Barksdale and told him of the proposed scheme.

(Tr. 47, 49). Mr. Barksdale agreed to cooperate and it was

decided that an agent would be substituted for him. (Tr. 50).

Agents spent the night of December 1, 1975, at the Barksdale

residence and on December 2, 1975, pretended to carry out

the scheme as described by Petitioner. (Tr. 47, 50, 104). No

—

contact was ever made by Petitioner with Mr. Barksdale or any

member of his family. (Tr. 50, 51).

The scheme began by Clayton and his associate, also an

F.B.I. agent, accosting Mr. Barksdale’s stand-in as he left the

residence the morning of December 2, 1975. (Tr. 32, 94, 104).

They went through a charade of placing a belt and chain around

the stand-in. (Tr. 32, 41, 94). Petitioner was observed in the

area of the Barksdale residence, but he made no contact with

anyone. (Tr. 33). Later that morning, Petitioner was seen in

downtown St. Louis. (Tr. 59, 71, 169). He called the Bank

and told the person he spoke with, supposedly Barksdale, to get

$150,000.00 together and take it to the airport parking lot

where it would be picked up. (Tr. 113). One hundred five

dollars was put in First National Bank bags, filled with paper,

and taken to the airport parking lot. (Tr. 111, 114). Although

Petitioner was seen in the vicinity of the airport earlier in the

day, no attempt was made to pick up the money. (Tr. 61, 64,

73, 84, 115, 120, 163, 174).

When the agents were unable to arrest Petitioner at the air-

port, two agents went to procure an arrest warrant and others

were ordered to arrest him as soon as he could be found. Agent

Ahler went aloft in a helicopter and through the use of the

bumper beeper located him in O'Fallon, Missouri. (Tr. 121).

Other agents were notified of Petitioner’s whereabouts, and at

approximately 3:30 p.m. on December 2, 1975, he was arrested

by six to ten agents as he exited a telephone booth. (Tr. 122,

164, 182). Petitioner was searched and the agents seized two

business cards containing the name of Clarence Barksdale and

a page from a telephone book bearing the name of James Clay-

ton. (Tr. 125-129). The items were admitted into evidence at

trial over Petitioner's objection. (Tr. 122-124, 153).

At the close of the government's case, Petitioner's Motion

for Judgment of Acquittal was overruled. (Tr. 184). The defense

GPR mee 8

_ lon

in this case was premised on a claim of insanity. Petitioner

presented eight witnesses including himself. Since no error was

claimed in regard to the insanity defense, an abbreviated tran-

script was prepared excluding the defense and government re-

buttal testimony. At the close of all the evidence, Petitioner's

Motion for Judgment of Acquittal was overruled. The jury

returned a verdict of guilty.

On February 18, 1977, Petitioner was sentenced to a term of

imprisonment for ten years, under § 4205(b)(2), Title 18, United

States Code. Thereafter, Petitioner duly filed his notice of

appeal to the United States Court of Appeals for the Eighth

Circuit. The appeal was argued on June 14, 1977. On August

5, 1977, Petitioner's conviction was affirmed (Appendix A).

Petitioner's timely petition for rehearing en banc or, in the

alternative, for rehearing was overruled (Appendix B). Peti-

tioner is currently at liberty on bond in the amount of $10,-

000.00, the Court of Appeals having stayed its mandate (Ap-

pendix C).

This petition for a writ of certiorari seeks to review the

judgment of the Court of Appeals in reversing the District

Court’s ruling sustaining Petitioner's motion to suppress and

affirming Petitioner's conviction and sentence.

REASONS FOR GRANTING THE WRIT

Two basic issues are presented in this petition both of which

are important questions which have never been addressed by

the Supreme Court. The first deals with the question of whether

the government is required to offer evidence of racketeering

before a person can be convicted of participating in a scheme in

violation of the Hobbs Act. The second is whether attaching an

electronic bumper beeper to an automobile constitutes a search

and, if so, whether the government agents must have a search

warrant before using such a device. In both instances, there is

a split of decisions among the various circuit courts of appeal.

The result is a varying degree of justice depending upon the

circuit in which the acts are performed.

The Government Should Be Required to Prove Racketeering

for a Hobbs Act Violation.

Petitioner submits that if he had performed the very same

acts in either the Sixth or Ninth Circuits that he did in the Eighth

Circuit, he would not be found guilty of a violation of federal

law. Although the Court below declined to consider whether

it believed Petitioner’s acts constituted racketeering, it did

recognize the division between the circuits. See, United States

v. Culbert (9 Cir., 1977), 548 F.2d 1355 and United States

v. Yokley (6 Cir., 1976), 542 F.2d 300. The opinion in the

instant case referenced its recent decision in United States v.

Golay (8th Cir. 6/24/77, No. 76-1166) ... F.2d .., which

reviewed the legislative history of the Hobbs Act and concluded

that a broad construction, covering all acts of extortion affect-

ing interstate commerce, was required. Petitioner submits the

legislative history will not support such a conclusion.

—

The legislative history of the Anti-Racketeering Act of 1934,

was also examined by the Sixth Circuit Court of Appeals in

United States v. Yokley, supra, 303-304. A Senate subcom-

mittee undertook an investigation of rackets and racketeering.

A report on the bill which was eventually passed stated it was

designed “to close gaps in existing Federal laws and to render

more difficult the activities of predatory criminal gangs of the

Kelly and Dillinger types.” S. Rep. No. 1440, 73rd Cong., 2d

Sess. (1934). Certainly John Frazier does not come within

that classification. He is a retired Naval Lieutenant Commander

of twenty-six years service, an expert in the handling and trans-

portation of hazardous cargoes who, except for a short period

during the winter months of 1975, led an exemplary life. Testi-

mony by F.B.I. Special Agent Harlan Phillips was that this was

a one-man scheme perpetrated by Petitioner (Tr. 115).

In Yokley, supra, the Court was faced with a situation where

two men forced their way into the home of the manager of a

K-Mart Department Store. One held his family hostage while

the other took him to the store and emptied the safe of more

than $78,000.00. In affirming dismissal of the indictment the

Court relied on legislative history and the decision of this Court

in United States v. Enmons (1973), 410 U.S. 396. It noted

that the language of the Hobbs Act is extremely broad. Taken

literally, (1.c. 303) “(A)ny robbery or extortion, or an attempt

or conspiracy having a de minimis effect on interstate com-

merce, might be held to be punishable under the Act.” After

reviewing the history, the Court stated, l.c. 304:

“Accordingly, although an activity may be within the literal

language of the Hobbs Act, it must constitute ‘racketeer-

ing’ to be within the perimeters of the Act . . .(W)e are

not persuaded that the robbery of the K-Mart Store

amounted to ‘racketeering’ under the Act. Rather, the

activity was within the exclusive criminal jurisdiction of

the State of Michigan.”

eS ee

—

The Ninth Circuit has recently agreed with the Sixth Circuit

that in order to come within the scope of the Hobbs Act there

must be evidehce of racketeering. United States v. Culbert,

supra. The panel, in a per curiam split decision, reversed the

conviction of Culbert who was charged with telephoning threats

to a bank president to cause him to drop off $100,000.00 at a

specified site. The Court stated:

“The Sixth Circuit recently examined, with the utmost care,

the legitimate scope of the Hobbs Act. United States v.

Yokley, 542 F.2d 300 (6 Cir., 1976). The Court there

concluded that, “although an activity may be within the

literal language of the Hobbs Act, it must constitute ‘racke-

teering’ to be within the perimeters of the Act.” Id. at 304.

A review of the Act’s legislative history reveals, without

question, that this was the Congressional intent; thus, we

adopt the reasoning of the Sixth Circuit’s eminently sensible

opinion. Given the applicable de minimis burden on inter-

state commerce rule (See United States v. Shackelford,

494 F.2d 67, 75 (9 Cir.), cert. denied, 417 U.S. 934, 94

S.Ct. 2647, 41 L.Ed.2d 237 (1974) a contrary interpreta-

tion of the Act would justify federal usurpation of virtually

the entire criminal jurisdiction of the states. Considera-

tions of federalism, apart from the legislative history also

emphasized in Yokley, cannot permit a conclusion that

Congress intended to work such an extraordinary and un-

precedented encroachment into the realm of state sov-

ereignty.

Here, the facts do not suggest that the attempted extortion

of the bank assets related, in any way, to ‘racketeering.’

Consequently, the offensive activity fell within the exclu-

sive criminal jurisdiction of the state of California.”

Although the government's proof may well have constituted

a violation of Missouri law (Mo. Rev. Stat. § 560.130) Peti-

tioner submits that the Hobbs Act should not be so broadly

woe

— ren

construed. In light of this Court's more recent trend to refrain

from defining as federal crimes conduct which is considered

criminal by the State, Petitioner respectfully requests this Court

grant his petition and define the limitations of the Hobbs Act.

See, Rewis v. United States (1971), 401 U.S. 808, United States

v. Bass (1971, 404 U.S. 336 and United States v. Enmons,

supra.

The Use of an Electronic Beeper Is a Search.

The issue of whether the installation of an electronic bumper

beeper by law enforcement officials is a search within the am-

bit of the Fourth Amendment has been characterized by vari-

ous courts as a recurring question of exceptional importance.

See, dissenting opinion of Judge Ainsworth, United States v.

Holmes (5 Cir. en banc), 537 F.2d 227, 228, and concurring

opinion of Judge Ross, United States v. Frazier (8 Cir., 1976),

538 F.2d 1322. The question has not heretofore been decided

by the Supreme Court. Three appellate courts have now ruled

on the issue and there is a split among the circuits. The Fifth

Circuit in United States v. Holmes, supra, by an evenly divided

en banc court, affirmed its holding at 521 F.2d 859, that the

installation of the beeper device without a warrant is a search

in violation of the Fourth Amendment. The Ninth Circuit re-

cently held to the contrary in United States v. Hufford (9 Cir.,

1976), 539 F.2d 32, which reversed the prior holding in favor

of the defendant in United States v. Martyniuk (D. Ore., 1975),

395 F.Supp. 42. The Eighth Circuit in United States v. Frazier,

supra, also reversed a District Court ruling in favor of the

defendant and held that even if the installation of the beeper

was a search, it was justified by probable cause and exigent

circumstances. Judge Ross, concurring, stated he would hold

the use of the beeper was not a search. Petitioner preserved

— ww — —_—

—_" yon

this issue by an appropriate objection at trial and re-raised the

issue on appeal. The Eighth Circuit refused to review its prior

position. District Courts in other circuits have also divided on

the issue. Cf. United States v. Carpenter (D.C. Mass., 1975),

403 F.Supp. 361, and United States v. Bobisink (D.C. Mass.,

1976), 415 F.Supp. 1334.

Initially it is important to understand what a bumper beeper

is and what use of it is made by law enforcement agencies.

The Court in Frazier, supra, explained that (l.c. footnote 2):

The “bumper beeper” (is) a battery-operated device,

(which) emits periodic signals which can be picked up

on a radio frequency. These signals can establish the ap-

proximate location of the object to which the beeper is

attached by providing a line of position, to the left or

to the right, between the transmitter and the intercepting

equipment.

Its primary use, as Agent Wyman testified, is for locating as

opposed to following. Therefore, the government's argument

that the use of the beeper is not a search because it monitors

unprotected, non-private movements of an automobile, is fal-

lacious. The fact that agents could have visually followed pe-

titioner in his automobile is of no moment. As stated in Katz

v. United States, 389 U.S. 347, 352, “But what he sought to

exclude when he entered the booth was not the intruding eye

—it was the uninvited ear.” The Court in Martyniuk, supra,

which was later reversed, explained this distinction by stating

(Lc. 44):

However, the uninvited shadower and the uninvited ear

are not entirely discrete phenomena. The beeper does not

monitor conversation. It does monitor movement and lo-

cation, both of which may be decidedly private.

Petitioner does not complain that he could have been visually

followed, but he does complain when his privacy is breached

—=—

by a device that calls out to specially equipped persons, “Here

I am, Here I am.”

The courts below which have held that the use of the beeper

does not constitute a search all rely on the decision in Cardwell

v. Lewis, 417 U.S. 583, 590, wherein the Court stated that,

“One has a lesser expectation of privacy in a motor vehicle

because its function is transportation and it seldom serves as

one’s residence or as the repository of personal effects.” How-

ever, the Court continued (l.c. 591):

This is not to say that no part of the interior of an auto-

mobile has Fourth Amendment protection; the exercise of

a desire to be mobile does not, of course, waive one’s

right to be free of unreasonable governme.it intrusion.

But insofar as Fourth Amendment protection extends to

a motor vehicle, it is the right to privacy that is the touch-

stone of our inquiry. (emphasis added)

The Court thereafter stressed that nothing was seized from the

interior of the vehicle.

In the instant case petitioner was located only after an agent

went aloft in a helicopter with a device equipped to receive

the signal from the bumper beeper on petitioner’s automobile.

He was arrested as he exited a telephore booth. The evidence

which was seized and ordered suppressed by the trial court

was found on petitioner’s person. Certainly this is not akin

to taking paint scrapings from the exterior of an automobile.

The question of probable cause to justify the installation of

the beeper has never been disputed by petitioner. What has

been disputed is whether in the final analysis, the decision to

intrude on one’s right to privacy should be made by the agents

working on a case or an impartial judge. As stated in Katz v.

United States, supra (1.c. 357):

Searches conducted without warrants have been held

unlawful “notwithstanding facts unquestionably showing

probable cause,” Agnello v. United States, 269 U.S. 20,

33, 46 S.Ct. 4, 6, 70 L.Ed. 145, for the Constitution re-

quires “that the deliberate, impartial judgment of a judicial

officer * * * be interposed between the citzen and the

police * * *.” Wong Sun v. United States, 371 U.S. 471,

481-482, 83 S.Ct. 407, 414, 9 L.Ed. 2d 441. “Over and

again this Court has emphasized that the mandate of the

(Fourth Amendment) requires adherence to judicial proc-

esses,” United States v. Jeffers, 342 U.S. 48, 51, 72 S.Ct.

93, 95, 96 L.Ed. 59, and that searches conducted outside

the judicial process, without prior approval by judge or

magistrate, are per se unreasonable under the Fourth

Amendment—subject only to a few specifically established

and well-delineated exceptions.

Petitioner does not believe the evidence in the instant case

supports any exceptions to the warrant requirement.

Petitioner respectfully suggests that the panel decision in

Holmes, supra, presented a sound, well-reasoned opinion which

logically applies the Fourth Amendment protection to the use

of the electronic device without prior court approval. As the

Court framed the issue (l.c. 865-866):

The real question, then, in cases of this type and the

proper focal point for inquiry is whether the government,

in searching out information not otherwise available, in-

vades an individual's “right of personal security, personal

liberty, and private property,” Boyd v. United States,

1886, 116 U.S. 616, 630, 6 S.Ct. 524, 532, 29 L.Ed.

746, 751, and violates “the privacy upon which he justi-

fiably relied.” Katz, supra, 389 U.S. at 353, 88 S.Ct. at

512, 19 L.Ed. 2d at 583. By this approach, courts are

able to distinguish visual surveillance from electronic sur-

veillance, eavesdropping from wiretapping, a plain view

from a breaking and entering.

No rational basis occurs to us for distinguishing the vio-

lation of the expectation of privacy involved in the in-

stallation of a “beeper” on a car, in order to trace its

movement, from the placing of a tap on the outside of a

teelphone booth in order to overhear and record conver-

sations, Katz, supra. . . .

A person has a right to expect that when he drives his

car into the street, the police will not attach an electronic

surveillance device to his car in order to track him. Al-

though he can anticipate visual surveillance, he can rea-

sonably expect to be “alone” in his car when he enters it

and drives away.

Because of the conflict which exists among the circuits and

because of the importance of this issue in the administration of

law enforcement, we respectfully suggest that certiorari should

be granted as to this Question.

Ill

Lack of Exigent Circumstances

The Court of Appeals in the first Frazier decision based its

finding of exigent circumstances on the need to insure the

safety of Clarence Barksdale, the concomitant requirement for

constant surveillance of petitioner, and the limited time frame

within which the FBI agents were operating. However, a re-

view of the transcript in this case makes it clear that the gov-

ernment agents were not faced with such exigent circumstances

that they could ignore the warrant requirements of the Fourth

Amendment. Nor did the District Court in its opinion find that

there were exigent circumstances.

On November 24, 1975, the FBI was informed by James

Clayton that a proposal was made to him whereby he could

make a large amount of money. The following day, November

25, 1975, they learned everything about the scheme except the

name of the intended victim, and the day it was to take place.

On November 30, 1975, through a surveillance at the Sheraton

Airport Motor Inn, petitioner was identified as to his name

and address. The FBI also knew that petitioner was to talk

to Clayton the following day. At approximately 2:00 p.m. on

December 1, 1975, Clayton was told the name and address of

the intended victim. He was also told to call petitioner at 6:30

p.m. at the Sheraton Airport Motor Inn phone number. It was

during the 6:30 p.m. telephone call that Agent Wyman placed

the bumper beeper on petitioner’s automobile.

At the time the decision was reached to install the beeper,

and certainly at the time of the actual installation, there was

never any danger to Mr. Barksdale. The FBI and local au-

thorities were providing complete protection for Mr. Barksdale.

They were stationed at his house and an agent was substituted

for Mr. Barksdale on the day of the alleged extortion attempt.

Furthermore, the person who was acting as petitioner’s accom-

plice (Clayton) was actually working with the FBI and Clayton's

assistant was an FBI agent. Also, the plan was that the ac-

complice was to pick up the “explosive belt” and with his helper

accost Mr. Barksdale. Petitioner was not going to have direct

contact with him until time to pick up the money. Long before

then, the agents established that the “explosive belt” was in fact

a harmless fake. Petitioner submits that the installation of the

beeper had no relationship to the safety of Mr. Barksdale, all

necessary steps having either already been planned or taken by

the authorities.

The beeper was not installed to provide a constant surveil-

lance of petitioner as suggested by the Appellate Court. Agent

Wyman testified on direct examination (Tr 4-5):

= =

Q. Does it also allow you to follow the object if it

should move?

A. Following the object is very difficult because you—

the vehicle is moving and you have no idea if it is moving

parallel to you or running in the same direction. It is a

locating device as opposed to a tracking, to a following

device.

Q. So the primary object is location?

A. Yes, sir.

Clearly, the beeper was not installed for surveillance purposes.

It was installed, and in fact used, to determine location when

means of surveillance-4vere unsuccessful. This does not con-

tribute to a finding of exigent circumstances.

The government argued that it was not physically possible

under the facts to obtain a warrant in time to attach the bumper

beeper at 6:30 p.m. on December 1, 1975. This theory simply

cannot be supported and an examination of the facts shows its

fallacy.

One day after the FBI first learned of the call to Clayton, they

learned the full details of the scheme. Petitioner submits that

at that time they had sufficient information with which to ap-

proach a Magistrate for a warrant to use a bumper beeper. It

was not necessary to know petitioner's name at that time. Even

if the Court believes that sufficient information was not available

on November 25, between then and November 30 the FBI com-

piled adequate data to support a warrant application. They

learned that telephone calls to Clayton were being made from

the Sheraton Airport Motor Inn, and petitioner was observed

making the calls. In fact, it was during a surveillance on one

of these calls on November 30 that petitioner’es name and ad-

dress were established. Certainly, at the very least, the agents

had all day on December | to obtain the necessary warrant.

The evidence does not show that a Judge or Magistrate was un-

available to consider a warrant application nor was any attempt

made to contact a judicial officer. The fact that a warrant could

not have been served is not material. They are not served in ad-

vance in wiretap-pen register cases or in the bumper beeper cases

where warrants are obtained.

The Court of Appeals cited Warden v. Hayden, 387 U.S. 294,

for the proposition that exigent circumstances justified the lim-

ited intrusion in this case. However, petitioner disputes that the

use of a bumper beeper is a “limited intrusion”. Petitioner sub-

mits that a significant constitutional right—the right to privacy

—was violated. The Court in Warden, supra, recognized (l.c.

304), “. .. the principal object of the Fourth Amendment is the

protection of privacy . . .”. Petitioner urges that such a sig-

nificant right should not be violated without the intervention of

a detached judicial officer. Because we believe the Appellate

Court to have erred on this crucial point, we request that cer-

tiorari be granted.

CONCLUSION

For these reasons, it is respectfully submitted that this Petition

for Certiorari should be granted.

LEONARD J. FRANKEL

RICHARD S. McCONNELL, JR.

WOLFF, FRANKEL, McCONNELL

& PASSANANTE

8019 Forsyth

Clayton, Missouri 63105

Attorneys for Petitioner

APPENDIX

APPENDIX A

United States Court of Appeals

For the Eighth Circuit

No. 77-1195

United States of America, .

Appeal from the

Appellee,

United States Dis-

> trict Court for the

Eastern District of

John D. Frazier, Mi ;

issouri

Appellant. )

Submitted: June 14, 1977

| Filed: August 5, 1977

Before LAY and ROSS, Circuit Judges, and MILLER, Judge.*

ROSS, Circuit Judge.

Defendant-appellant John D. Frazier (herein either defend-

ant or Frazier) was convicted and sentenced in district court on

a one count indictment for attempted extortion of bank assets

in violation of the Hobbs Act, 18 U.S.C. § 1951. For the rea-

sons stated herein, we affirm.

* JACK R. MILLER, Judge, United States Court of Customs and

Patent Appeals, sitting by designation.

“Ys

So far as they are material to this appeal, the facts may be

briefly stated.' Through a series of telephone calls defendant

proposed to one James Clayton a scheme to obtain money from

the First National Bank in St. Louis, Missouri, through its presi-

dent Clarence Barksdale. The plan called for Clayton to attach

to the person of Barksdale what appeared to be an explosive

belt, safe removal of the belt being contingent upon payment

of a substantial sum of money. The belt would be chained to

Barksdale, who would also be given a walkie-talkie so the de-

fendant could monitor his movements.

After receiving the first telephone call from the defendant on

November 24, 1975, Clayton contacted the FBI, which immedi-

ately began an investigation. Clayton agreed to cooperate with

the FBI by feigning compliance with the requests of the defend-

ant. On December 1, 1975, the explosive belt, which had been

made by defendant sometime prior, was delivered to Clayton

with instructions that the scheme was to be carried out the fol-

lowing morning. With the aid of Clayton, and using an FBI

agent as a stand-in for Barksdale, the plot was acted out. Clay-

ton attached the belt to the person of the FBI agent as he left

the Barksdale residence on the morning of December 2d. Later

that morning the defendant telephoned Barksdale’s office at the

bank. This call was received by another FBI agent representing

himself to be Barksdale. The defendant gave instructions to

take $150,000 to the parking lot of Lambert International Air-

port. One hundred five dollars in currency was placed at the

top of bank bags stuffed with paper and taken to the designated

location.

' This case was previously before this court on the government’s

appeal from the district court’s order sustaining defendant's motion

to suppress the introduction of certain evidence obtained as a result

of attaching an electronic tracking device to defendant's automobile.

The facts are more fully set out in that opinion, reported at United

States v. Frazier, 538 F.2d 1322 (8th Cir. 1976), cert. denied, —

U.S. — (1977).

—*

Although the agents planned to arrest Frazier at the airport

when he came to pick up the money, no pickup attempt was

ever made. Two agents then sought to procure an arrest war-

rant, while others were instructed to arrest Frazier wherever he

might be found. From a helicopter, Frazier was located in

O’Fallon, Missouri, and was arrested without a warrant as he

exited a telephone booth. Frazier was then driven to his home,

some ten miles distant, in one of the agent’s cars. While in

custody, Frazier signed two hand-written consent forms; one

giving permission to search his automobile and the other to

search his home. Frazier’s wife also signed a form giving con-

sent to search the home.

At trial, the court overruled defense objections to the admis-

sion of evidence seized during the search of Frazier’s automobile

and residence, and also denied defendant’s motions for judg-

ment of acquittal made at the close of the government's case and

again at the close of all the evidence. Defendant’s appeal raises

essentially four issues with respect to these rulings. The first

three deal with the sufficiency of the government’s evidence to

establish a violation of the Hobbs Act. Lastly, defendant asserts

violations of his fourth amendment rights.

Failure to Prove Racketeering

Defendant contends at the outset that his activities do not fall

within the perimeters of the Hobbs Act, urging that the Act ap-

plies only to “racketeering” and that his scheme did not amount

to a racket.2 This position has found some support in other

circuits. See United States v. Culbert, 548 F.2d 1355, 1357 (9th

* Because we disagree with defendant’s interpretation of the scope

of the Hobbs Act, we decline to consider whether his activities would

otherwise amount to “racketeering.”

— *

Cir. 1977); United States v. Yokley, 542 F.2d 300, 304 (6th

Cir. 1976). However, this court has consistently maintained that

the Hobbs Act means what it says. By its terms § 1951 applies

to:

(a) Whoever in any way or degree obstructs, delays, or

affects commerce or the movement of any article or com-

modity in commerce, by robbery or extortion or attempts

or conspires so to do * * *. (Emphasis supplied. )

We are likewise unpersuaded that anything in the legislative

history of the Act requires a more restrictive interpretation. In

United States v. Mitchell, 463 F.2d 187 (8th Cir. 1972), cert.

denied, 410 U.S. 969 (1973), we said:

When first proposed, the Act was described by its Con-

gressional sponsor in the following terms:

This bill is grounded on the bedrock principle that

crime is crime, no matter who commits it; and that

robbery is robbery and extortion, extortion, whether

or not the perpetrator has a union card. It covers

whoever in any way or decree [sic] interferes with in-

terstate foreign commerce by robbery or extortion.

89 Cong. Rec. 3217 (1943) (remarks of Representative

Hobbs.) See also United States v. Green, supra, 246 F.2d

at 160. It is our conclusion that § 1951 proscribes all forms

of extortion which affect interstate commerce.

Id. at 193. In United States v. Golay, No. 76-1166 (8th Cir.

June 24, 1977), this court was also confronted with an appeal

from a conviction under the Hobbs Act for extortion of bank

assets. After carefully reviewing the legislative history, we

again concluded that the Act was intended to be given a broad

construction to cover ali acts of extortion affecting interstate

commerce. /d., slip op. at 3-4. Accordingly, we reject defend-

ant’s contention that his acts are beyond the reach of the

Statute.

_— oo

Failure to Prove Attempt

Defendant next contends that the government's evidence failed

to establish two essential elements of the crime of attempted ex-

tortion, namely (1) that Frazier attempted to obtain property

from his victim, and (2) that Frazier’s acts generated fear in

bank president Barksdale.

Extortion is defined in the Hobbs Act, 18 U.S.C. § 1951(b),2),

as follows:*

The term “extortion” means the obtaining of property

from another, with his consent, induced by wrongful use

of actual or threatened force, violence, or fear, or under

color of official right.

On the record before us it is clear that Frazier did not attempt

to pick up the money from the airport parking lot before he was

arrested. Relying on this fact, defendant points to the statutory

language quoted above and argues that the government failed

to prove that Frazier attempted to carry out a plan for the

“obtaining of property from another.”* Defendant thus asks

this court to find that the term “obtaining of property,” as

used in the Hobbs Act, means “reducing to actual physical pos-

session.” We conclude that it does not carry that meaning. It

* “Attempted extortion” is not separately defined in the Act.

4 At trial, defense counsel hypothesized in closing argument that

Frazier wanted to embarrass the banking community and that his

scheme was complete when the money was delivered to the airport.

We note, however, that the defendant's motive is irrelevant to the is-

sue we are considering. We decline to decide here whether the evi-

dence produced was suflicient to warrant the jury in finding that

Frazier intended to pick up the money. Instead, we consider only

whether proof of a scheme designed to induce another to part with

money, combined with acts toward completion of the scheme, is

sufficient to establish an attempted extortion.

—

is well settled that, under the Hobbs Act, it is not necessary to

prove that the extortionist himself, either directly or indirectly,

received the fruits of his extortion or any benefit therefrom. The

gravamen of the offense is loss to the victim. United States v.

Jacobs, 451 F.2d 530, 535 (Sth Cir. 1971), cert. denied, 405

U.S. 955 (1972); United States v. Hyde, 448 F.2d 815, 843

(Sth Cir. 1971), cert. denied, 404 U.S. 1058 (1972); United

States v. Provenzano, 334 F.2d 678, 686 (3d Cir.), cert. denied,

379 U.S. 947 (1964). We hold, therefore, that for purposes of

the “obtaining of property” requirement, the offense of at-

tempted extortion is complete when the defendant has attempted

to induce his victim to part with property.

Defendant also asserts the insufficiency of the government’s

case in that fear generated in Clarence Barksdale was not the

inducing cause of the bank bags being delivered to the airport.

Defendant thus contends that the state of mind of the victim,

i.e. fear, is an essential element of the crime alleged. We express

no opinion as to whether the generation of fear in the victim

is an essential element of the crime of extortion. It will suffice

for present purposes to observe that Frazier was convicted, not

of extortion, but of attempted extortion. Proof of an attempt

to arouse fear is sufficient proof of an attempted extortion under

the Hobbs Act. United States v. Nadaline, 471 F.2d 340, 343-

44 (Sth Cir.), cert. denied, 411 U.S. 951 (1973); Carbo v.

United States, 314 F.2d 718, 741 (9th Cir. 1963), cert. denied,

377 U.S. 1010 (1964). In the instant case, the evidence shows

that Frazier attempted to induce Clarence Barksdale to sur-

render bank assets, and to that end directed James Clayton to

strap a bomb belt to Barksdale’s body accompanied with the

threat that the belt would be exploded unless his demands were

met. We are satisfied that this is a sufficicnt showing of an at-

tempt to arouse fear to allow the case to go to the jury.

— *

Ill

Defense of Legal Impossibility

Defendant contends that even if his acts would otherwise have

constituted attempted extortion, they are not punishable as

such because the early intervention of the FBI and the coopera-

tion therewith of his assumed confederate Clayton rendered it

legally impossible for Frazier to accomplish his illegal aim.

A criminal attempt represenis the unsuccessful prosecution

of an intent to commit a crime. The defense of impossibility

operates with reference to the circumstances which rendered

the attempt unsuccessful. Under some circumstances, the im-

possibility of a defendant’s successfully committing a crime

eliminates the culpability of his having tried. However, the

range of such exonerating circumstances is very limited and

does not embrace every instance in which the defendant has

undertaken a hopeless venture. To constitute a defense to an

attempt prosecution the circumstances must be such as to ren-

der successful completion of the crime “legally” impossible.

Thus, a distinction is drawn between what is called “legal im-

possibility,” which acts as a defense, and mere “factual im-

possibility,” which does not.

Factual impossibility refers to those situations in which a

circumstance or condition, unknown to the defendant, renders

physically impossible the consummation of his intended criminal

conduct. Thus, the oft-recited example of the would-be thief

who attempts to pick an empty pocket. See United States v.

Berrigan, 482 F.2d 171, 188 (3d Cir. 1973); W. LaFave &

A. Scott, CRIMINAL LAW, § 60 at 440 (1972). See also

United States v. Darnell, 545 F.2d 595, 597 (8th Cir. 1976),

cert. denied, 97 S.Ct. 1134 (1977); United States v. Heng

Awkak Roman, 356 F.Supp. 434, 438 (S.D. N.Y.), aff'd, 484

F.2d 1271 (2d Cir. 1973), cert. denied, 415 U.S. 978 (1974);

United States v. Hair, 356 F.Supp. 339, 341-42 (D.C. 1973).

—_—~

Legal impossibility refers to those situations in which the

intended acts, even if successfully carried out, would not amount

to a crime. ‘Thus, attempt is not unlawful where success is not

a crime, and this is true even though the defendant believes his

scheme to be criminal. United States v. Berrigan, supra, at 186,

188; W. LaFave & A. Scott, supra, at 442.

With this distinction in mind, Frazier’s assertion of impossi-

bility as a defense must be rejected. Frazier desired to obtain

the bank’s money from Clarence Barksdale by instilling in him

the fear that he would be killed for his refusal. Had Frazier’s

scheme succeeded, had he brought about the desired conse-

quences, his acts would clearly have amounted to a crime.

Frazier nonetheless insists that his acts are not punishable

as an attempt because it was impossible for him to carry his

scheme to fruition. This argument should not be taken to mean

ihat the acts of the FBI in thwarting the scheme constitute

legal impossibility. If so viewed the argument is plainly mis-

placed. Indeed, one of the primary aims of the crithe of attempt

is to provide a basis whereby law enforcement officers may in-

tervene in time to prevent a completed crime.

Reduced to its bare bones, Frazier’s claim amounts to the

assertion that Clayton, instead of faithfully performing his part

of the arrangement, informed the FBI and thereby foiled the

scheme. This argument is unpersuasive. Clayton’s acts present

the type of circumstance, unanticipated by the defendant, which

merely render the intended crime physically impossible of con-

summation. The infidelity of a confederate, like the emptiness

of a pocket being picked, presents a simple illustration of factual

impossibility.

—S

Fourth Amendment Issues

Lastly, defendant asserts error in the trial court's failure to

exclude evidence obtained during the warrantless searches of

his automobile and residence.”

On the record before us, it is clear that with respect to both

his automobile and his residence, Frazier gave his consent to

the questioned searches. It is also clear that a search conducted

pursuant to a valid consent is constitutionally permissible.

Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973). The

question presented to us, then, is whether the prosecutor dis-

charged his burden of proving that Frazier’s consent was freely

and voluntarily given. Schneckloth v. Bustamonte, supra, at

222; Bumper v. North Carolina, 391 U.S. 543, 548 (1968).

We conclude that this burden was met.

At the pretrial suppression hearing, FBI agent Kubic testified

that on the day of his arrest. Frazier was observed using a public

telephone in front of a liquor store on Main Street in O'Fallon,

Missouri, at about 3:30 p.m. As Frazier hung up the phone and

moved toward his car, agent Kubic, accompanied by agent Fox,

approached Frazier and stated: “FBI. Don't move.” Frazier

was then told that he was being placed under arrest and of the

charges against him. From there Frazier was taken to an FBI

vehicle a short distance away and provided with an interroga-

tion advice of rights form. Agent Kubic further testified that

Frazier expressed a co-operative attitude, saying that there must

* Defendant also raises a question concerning the admissibility of

articles taken from his person, claiming that the seizure of these

articles was the consequence of an unlawful installation on his auto-

mobile of a “bumper beeper.” This issue, however, has previously

been disposed of by this court and we do not reiterate our position

here. See United States v. Frazier, 538 F.2d 1322 (8th Cir. 1976),

cert. denied, —U.S.— (1977).

— A-10 —

be some mistake but that he would be glad to help clear up any

misunderstanding. Agent Kubic then asked permission to search

Frazier’s automobile, explaining that if Frazier objected the car

would not be searched. Frazier again expressed a desire to help

in any way that he could. Agent Fox then prepared a hand-

written consent to search form, which Frazier signed. Follow-

ing the search of his car, Frazier was driven to his residence in

the FBI vehicle. While enroute, Frazier gave verbal permission

to have his residence searched, and following arrival at his house

several minutes later, signed another handwritten consent to

search form. Both consent forms were received into evidence

without objection.

Agent Kubic’s version of the events surrounding the ques-

tioned searches was unrebutted by the defendant. Testifying

in his own behalf, Frazier stated that he could not remember

signing the consent to search forms, but did identify his signa-

ture when the forms were shown to him. Frazier further testi-

fied that he could not now remember any of the other events

that took place that day following his arrest. However, there is

no evidence of any kind that Frazier was unaware of what he

was doinng at the time of his arrest, or at the time he signed

the consent forms.®

On the record before us we conclude that under “the totality

of all the surrounding circumstances,” Frazier’s consent was “the

* Following cross-examination, the following dialogue took place

between Frazier and the court:

THE COURT: Mr. Frazier, were you under the influence of

drugs or alcohol or anything else?

A. No, sir, | wasn’t, Your Honor.

THE COURT: Have you ever been in a mental institution

any time?

A. No, sir, Your Honor.

THE COURT: You just don’t remember what happened?

A. No, sir, I do not.

THE COURT: Okay.

ee i a OT Ae a enn 88

ee |

An SUR ee ee Ae os

— A-ll —

product of an essentially free and unconstrained choice.”

Schneckloth vy Bustamonte, supra, at 225, 226. The mere fact

that the defendant was in custody at the time he gave his con-

sent is insufficient, standing alone, to demonstrate the presence

of official coercion. United States v. Watson, 423 U.S. 411, 424

(1976). Accordingly, we hold that the defendant freely and

voluntarily consented to the searches of his automobile and resi-

dence, and that the searches therefore did not violate his con-

stitutional rights.

AFFIRMED.

A true copy.

Attest:

Clerk, U. S. Court of Appeals, Eighth Circuit.

7 Elden Marie Frazier, defendant’s wife, also signed a consent to

search form with respect to defendant’s house. Since we have con-

cluded that the defendant’s consent was voluntarily given, we needn't

consider the validity of Mrs. Frazier’s consent.

—<.

APPENDIX B

United States Court of Appeals

For the Eighth Circuit

No. 77-1195 September Term, 1976

United States of America, _ ) Appeal from the

. Fy, United States Dis-

+ trict Court for the

Eastern District of

John D. Frazier, . '

Missouri.

Appellant. |

The Court having considered petition for rehearing en banc

filed by counsel for appellant and, being fully advised in the

premises, it is now here ordered that the petition for rehearing

en banc be, and it is hereby, denied.

Considering the petition for rehearing en banc as a petition

for rehearing, it is now here ordered that the petition for re-

hearing also be, and it is hereby, denied.

August 29, 1977

ee a nee as ete we Ts Re me

mie: et aes

ne ee eee ae

— A-13 —

APPENDIX C

United States Court of Appeals

For the Eighth Circuit

No. 77-1195 September Term, 1976

United States of America, ) Appeal from. the

Appellee, United States Dis-

™ trict Court for the

| Eastern District of

John D. Frazier, naar

Appellant.

On motion of Appellant, it is now here ordered that the

issuance of the mandate herein be, and the same is hereby,

stayed for a period of thirty days from this date. If within that

time there is filed with the Clerk of this Court a certificate of the

Clerk of the Supreme Court of the United States that a petition

for writ of certiorari has been filed, the stay hereby granted shall

continue until the final disposition of the case by the Supreme

Court.

September 12, 1977

—_—

APPENDIX D

(Reported at 97 Sup. Ct. 751)

Jonn D. FRAZIER, petitioner v. United States

No. 76-5447

Facts and opinion, 538 F.2d 1322.

Petition for writ of certiorari to the United States Court of

Appeals for the Eighth Circuit.

Jan. 10, 1977. Denied.

— A-15 —

APPENDIX E

(Reported at 538 F.2d 1322)

United States Court of Appeals

For the Eighth Circuit

No. 76-1297

United States of America, »

Appellant,

John D. Frazier,

Appellee. ,

Appeal from the United

States District Court

for the Eastern Dis-

trict of Missouri.

Submitted: June 15, 1976

Filed: July 16, 1976

Before Heaney, Ross and Stephenson, Circuit Judges.

Stephenson, Circuit Judge.

The sole issue raised in this appeal is whether the district

court' erred in partially sustaining appellee’s motion to sup-

press the introduction into evidence of certain articles obtained

1 The Honorable James H. Meredith, Chief Judge, United States

District Court for the Eastern District of Missouri.

— A-16 —

by the government as a result of the attachinent of a tracking

device to appellee’s automobile. We conclude that the govern-

ment’s action did not constitute an illegal intrusion violative

of the Fourth Amendment. Accordingly, we reverse.

On November 24, 1975, Mr. James Clayton, a supervisor

for McDonnell Douglas Corporation, received an anonymous

telephone call from a person suggesting an undescribed op-

portunity for Clayton to earn $50,000. Clayton reported the

call to the FBI, which immediately began an espionage in-

vestigation, since Clayton’s position with McDonnell Douglas

involved the handling of classified documents. Subsequently,

Clayton received similar calls, which frequently were recorded

by the FBI, and on November 25, 1975, the caller disclosed

an extortion scheme designed to obtain money from a wealthy,

but unidentified, resident of Ladue, Missouri. More specifi-

cally, an explosive belt was to be attached to the victim with

the removal of the belt contingent upon the payment of a sig-

nificant sum of money.

On November 30, 1975, the caller was initially identified

as appellee John D. Frazier through his automobile license

number when he was observed at the Sheraton Airport Motor

Inn. Stephen Kettner, a special agent for the FBI, then in-

formed Clayton of Frazier’s identity, and Clayton realized for

the first time that he knew the suspect. Clayton described

Frazier as a retired naval officer who was an explosives expert.

On December 1, 1975, at approximately 2:00 p.m., the FBI

first became aware of the name and address of the intended

victim of the extortion plan, Clarence Barksdale, president of

the First National Bank in St. Louis. This occurred during yet

another telephone call placed by Frazier to Clayton. As a

result of this call, the agents also learned that the extortion

attempt would be made the next day. Shortly afterward, be-

tween 4:30 and 5:00 p.m. on December 1, 1975, the various

FBI agents who were involved in the investigation convened

oe ee

Se ee

—_~<,

for a conference to decide what course of action should be

taken. At this conference it was concluded that a “bumper

beeper” should be installed on Frazier’s automobile in order

to monitor his movements.*

On December 1, 1975, at approximately 6:30 p.m. Warren

Wyman, another special agent for the FBI, attached the

“bumper beeper” to Frazier’s 1972 green Thunderbird while it

was located in a public parking lot at the Sheraton Inn. No

application for a search warrant was prepared or submitted to

a magistrate prior to the utilization of the device.

During the course of the extortion attempt on December 2,

1975, the FBI agents learned that the extortion money was

supposed to be delivered to the upper deck parking lot at Lam-

bert International Airport. Although the agents planned to

make an arrest when the money was to be picked up, no

pickup attempt was made. Following an additional FBI con-

ference at the airport, two of the agents proceeded to prepare

an arrest warrant for Frazier while other agents were under

instructions to arrest Frazier as soon as he could be found.

Special Agent William Ahler conducted a search for Frazier

by helicopter and through the use of the “bumper beeper”

eventually located Frazier and accomplished his arrest in O’Fal-

lon, Missouri, at approximately 3:30 p.m. on December 2,

1975.

Immediately following Frazier’s arrest the agents, by search

of his person, obtained from his possession two business cards

containing the name and address of Clarence Barksdale and

a page of the telephone book bearing the name of James Clay-

* The “bumper beeper,” a battery-operated device, emits periodic

signals which can be picked up on a radio frequency. These signals

can establish the approximate location of the object to which the

beeper is attached by providing a line of position, to the left or to the

right between the transmitter and the intercepting equipment.

— A-18 —

ton.* Appellee was indicted on December 11, 1975, for the

attempted extortion of the First National Bank in St. Louis.

Prior to trial. appellee filed a motion to suppress all evidence

obtained by the government as a result of the installation of

the electronic tracking device. The district court after a hear-

ing on the motion held that the evidence obtained from Fra-

zier’s automobile and residence need not be suppressed because

of the voluntary consent given by appellee and his wife to the

searches. The trial court found there was probable cause to

arrest appellee without a warrant. However, because the arrest

was expedited through the use of the “bumper beeper” attached

to appellee's car, the court sustained the motion to suppress

the evidence taken from appellee’s personal possession with-

out his consent. The district court concluded that the installa-

tion of the “bumper beeper” without a warrant constituted an

illegal search. See United States v. Holmes, 521 F.2d 859 (5th

Cir. 1975), rehearing en banc granted, 525 F.2d 1364 (Janu-

ary 5, 1976).

In this appeal the government contends that the district court

erred in suppressing the evidence taken from appellee's im-

mediate possession. Essentially, the government asserts that the

installation of the “bumper beeper” tracking device does not

constitute a search within the ambit of the Fourth Amendment.

See United States v. Carpenter, 403 F. Supp. 361, 364-65 (D.

Mass. 1975). Secondarily, assuming the existence of a search,

the government regards the intrusion to have been justified by

either probable cause or exigent circumstances or both. In

contrast, appellee contends that the use of the electronic

“bumper beeper” is a search which was unreasonable under

the circumstances of the instant case. See United States v.

Martyniuk, 395 F. Supp. 42, 44-45 (D. Ore. 1975).

* Appellee’s automobile and residence were also searched follow-

ing his arrest and some additional items were seized. The search of

the automobile and the home were conducted with the appellee’s

and his wife's consent, and the propriety of the seizure of these addi-

tional items is not at issue in this appeal.

— A-19 —

Whether the installation of an electronic tracking device on

a motor vehicle is a search or seizure within the protection of

the Fourth Amendment is a difficult question. At a minimum,

the attachment of such a device, without consent or judicial

authorization, is an actual trespass. Although only a limited

intrusion, it is one which raises a concern that the government

could plant a tracking device on a person’s car and follow its

movements whenever and wherever it is being driven. See

United States v. Martyniuk, supra, 395 F. Supp. at 44-45. In

contrast, it is at least questionable whether a person has a rea-

sonable expectation of privacy with regard to his movements

on public roads. See Cardwell v. Lewis, 417 U.S. 583, 588-92

(1974): United States v. Carpenter, supra, 403 F. Supp. at

364-65. Cf. Katz v. United States, 389 U.S. 347, 350-59

(1967). In any event, the issue need not be resolved in this

appeal since we are convinced the intrusion committed in the

instant case, assuming arguendo that it is a search or seizure

within the ambit of the Fourth Amendment, was justified by

probable cause and exigent circumstances.

The search of a motor vehicle, especially its exterior, is less

intrusive and implicates a lesser expectation of privacy than

otherwise applies under the general warrant requirement. See

Cardwell v. Lewis, 417 U.S. 584, 589-91 (1974); Almeida-

Sanchez v. United States, 413 U.S. 266, 279 (1973) (Powell,

J., concurring). If there is probable cause, an automobile, be-

cause of its mobility, may be searched without a warrant 1n cir-

cumstances that would not justify a warrantless search of a

house or office. Chambers v. Maroney, 399 U.S. 42, 48-51

(1970); Carroll v. United States, 267 U.S. 132, 158-59 (1925);

United States v. Brown, No. 75-1863 (8th Cir., May 5, 1976).

Probable cause exists when the facts and circumstances within a

police officer's knowledge would “ ‘warrant a man of reason-

able caution in the belief that’ an offense has been or is being

committed.” Brinegar v. United States, 338 U.S. 160, 175-76

—*

(1948), quoting from Carroll v. United States, 267 U.S. 132,

167( 1925).

The FBI agents in the instant case were conducting an investi-

gation of an ongoing extortion scheme. On November 25, 1975.

through a telephone call placed to James Clayton, the agents

learned that an unidentified person intended to place an ex-

plosive belt on a wealthy individual with its removal a condition

to payment of a sum of money. Further, on November 30,

1975, the agents identified the telephone caller as John Fraizer

when he was seen at the Sheraton Airport Motor Inn. It is, of

course, notable that James Clayton described Fraizer as an ex-

pert with explosives. This factual basis, obtained through tele-

phone calls placed to James Clayton, was sufficient to provide

the FBI with probable cause for the installation of the track-

ing device on the bumper of appellee’s automobile located

in the public parking lot at the Sheraton Inn. See Chambers vy.

Maroney, supra, 399 U.S. at 48-51; Terry v. Ohio, 392 US. 1.

20-27 (1968); United States v. Powers, 439 F.2d 373, 375-76

(4th Cir. 1971). Cf. Coolidge v. New Hampshire, 403 USS.

443. 458-64 (1971) (car parked on private property).

These same facts also suggest the existence of exigent cir-

cumstances justifying the limited intrusion conducted in the in-

Stant case. See Warden v. Hayden, 387 U.S. 294, 298-300

(1967); United States v. Weaklem, 517 F.2d 70, 72 (9th Cir.

1975); Virgin Islands v. Gereau, 502 F.2d 914, 928-29 (3d

Cir. 1974). The tracking device was attached to appellee's

automobile at approximately 6:30 p.m. on December 1, 1975.

Although the FBI investigation was iniggted as early as Novem-

ber 24, 1975, and the general nature “of the extortion scheme

was known on November 25, the agents did not identify Fraizer

until November 30. Even then, it was suspected that Fraizer

was acting in concert with other unknown individuals.

In addition, the particular nature of the extortion scheme

planned in the instant case accentuates the exigency of the cir-

— A-21 —

cumstances surrounding the FBI investigation. The extortion

plan endangered the life of an unknown individual who was not

identified as Clarence Barksdale until approximately 2:00 p.m.

on December 1, 1975. Simultaneously. it was learned that the

plan was intended to be executed on the following morning.

Only a few hours later, between 4:30 and 5:00 p.m., the many

FBI agents who were involved in various aspects of the investi-

gation held a conference to decide on a course of action. It was

shortly afterward, at approximately 6:30 p.m. on December 1,

that the “bumper beeper” was attached. We believe the need

to insure the safety of Clarence Barksdale, the concomitant re-

quirement for constant surveillance of the appellee, and the

limited time frame within which the FBI agents were operating

provided sufficient exigent circumstances for the attachment of

the tracking deviice in the instant case. “The Fourth Amend-

ment does not require police officers to delay in the course of an

investigation if to do so would gravely endanger their lives or

the lives of others.” Warden v. Hayden, supra, 387 U.S. at

298-99.

Appellee contends that probable cause to search the car ex-

isted for some time prior to the attachment of the “bumper

beeper” and that, therefore, there were no exigent circumsiances.

Even assuming that probable cause previously existed, it has

been recognized that the reasonableness of searching or seizing

an automobile under exigent circumstances is not “foreclosed

if a warrant was not obtained at the first practicable moment.”

Cardwell v. Lewis, supra, 417 U.S. at 595.

In summary, the governmental attachment of the tracking

device in the instant case constituted a relatively minimal in-

vasion of privacy which was reasonable under the circumstances.

Reversed.

4 Parenthetically, it chould be noted that, even if the agents had

obtained a search warrant, they would not have been able to serve

the warrant without hindering the investigation.

—

ROSS, Circuit Judge, Concurring.

I agree.with the result reached by Judge Stephenson, and if

the issue of whether the installation of a “beeper” constitutes a

search is not to be reached, I concur in what he has written.

However the court, in my opinion, should squarely meet the

issue: whether the installation of the tracking device was a

“search” under the fourth amendment. This issue is an im-

portant and recurring one' and this disposition would give

needed direction to the district courts, prosecutors and law en-

forcement authorities within the Circuit. I would hold that the

use of the “beeper” was not a “search” within the meaning of

the fourth amendment.

The basic inquiry in this case concerns the effect of the in-

trusion on the defendant's right of privacy. As Mr. Justice

Blackmun has stated, “* * * insofar as Fourth Amendment pro-

tection extends to a motor vehicle, it is the right to privacy that

is the touchstone of our inquiry.” Cardwell v. Lewis, 417 US.

583, 591 (1974) (plurality opinion).

The intrusion on defendant's right of privacy in this case, if

any can be said to exist, was decidedly abstract and theoretical.

No invasion of the interior of the car occurred. The “beeper”

did not permit the agents to “enter” the car's interior and search

or seize anything therein—either intangible or tangible. The

sole purpose of the “beeper” was to permit the agents to surveil

the location of the defendant's automobile. The intrusion on

defendant's privacy was no greater here than an intrusion cre-

ated by manual, visual surveillance of the car’s location, which

is clearly permissible irrespective of fourth amendment con-

siderations.

' The Fifth Circuit has recently heard arguments on this issue by

the court

Cir 1976) bane. United States v. Holmes, 525 F.2d 1364 (Sth

— A-23 —

Two courts have held that the use of a tracking device is a

“search” within the meaning of the fourth amendment. See

United States v. Holmes, 521 F.2d 859 (Sth Cir. 1975), rehear-

ing en banc granted, 525 F.2d 1364 (January 5, 1976, United

States v. Martyniuk, 395 F.Supp. 42 (D. Ore. 1975. Both cases

rely heavily on Katz v. United States, 389 U.S. 347 (1967). In

Katz, government agents attached an electronic listening and

recording device to the outside of a public telephone booth from

which petitioner placed incriminating phone calls. The Court

held that the eavesdropping was an invasion of the petitioner's

privacy upon which he justifiably relied and, notwithstanding

the absence of physical penetration into the enclosed phone

booth, constituted an unreasonable “search and seizure” within

the meaning of the fourth amendment.

In my view, the Katz case is clearly distinguishable. There,

the invasion of privacy was substantial because the government

was surveilling private conversations. In this case, the govern-

ment used the “beeper” to surveil only the location of the de-

fendant’s automobile. Katz itself admonishes us that “[w]hat a

person knowingly exposes to the public, even in his own home

or office, is not subject of Fourth Amendment protection.”

Katz v. United States, 1d., 389 U.S. at 351.

In Cardwell v. Lewis, supra, 417 U.S. at 588-592, a plurality

of the Court concluded that the warrantless examination of the

exterior of an automobile parked in a public parking lot invaded

no privacy right. The examination revealed incriminating paint

scrapings and tire treads. Mr. Justice Blackmun, writing for the

plurality, noted that the evidence derived from the warrantless

examination of the car’s exterior was “* * * not the product

of a ‘search’ that implicates traditional considerations of the

owner's privacy interest.” /d. at 588-589.

I comprehend no meaningful difference between the invasion

of the defendant's privacy in this case and the invasion in Card-

—_*

well. That the objective of surveilling the location of defendant's

automobile was accomplished by electronic means does not en-

large any expectation of privacy. The use of an electronic de-

vice is no talisman for invoking fourth amendment protections.

United States v. Carpenter, 403 F.Supp. 361, 364 (D. Mass.

1975).

For the reasons enumerated above, I agree that the order

suppressing the evidence obtained as a result of the use of the

“beeper” must be reversed.

A true copy.

Attest:

Clerk, U. S. Court of Appeals, Eighth Circuit.

—

APPENDIX F

United States District Court

Eastern District of Missouri

Eastern Division

United States of America, }

Plaintiff,

” No, 75-339 Cr (1)

John D. Frazier,

Defendant. |

Order

A memorandum dated this day is hereby incorporated into

and made a part of this order.

It Is Hereby Ordered that the evidence seized from the de-

fendant at the time of his arrest, the business card with the

handwritten notation of the telephone number and address of

Clarence Barksdale and the page from the telephone directory

containing the telephone number of James Clayton, be and the

same are suppressed.

It Is Further Ordered that the evidence seized as a result of

the search of the automobile and the home of defendant Frazier

are not suppressed.

Dated this 29th day of March, 1976.

/s JAMES H. MEREDITH

United States District Judge

— A-26 —

United States District Court

Eastern District of Missouri

Eastern Division

United States of America,

Plaintiff,

VS.

» No. 75-339 Cr (1)

John D. Frazier,

Defendant.

Memorandum

This matter is pending on motion of the defendant to sup-

press evidence. The facts are that on November 30, 1975, FBI

agents identified defendant Frazier as a person who was at-

tempting to extort money from the president of the First Na-

tional Bank in St. Louis by means of an explosive device. On

that day, the agents also discovered where the defendant lived.

On December 1, 1975, the FBI agents learned that defend-

ant expected money to be delivered on the following day. The

agents were unaware of whether or not defendant had any ac-

complices. At approximately 6:30 p.m., on December 1, 1975,

they installed a beeper on defendant's 1972 Ford Thunderbird,

which they had identified as being the car which defendant used

and was parked in his garage at his home.

On December 2, 1975, a fake money package was deposited

at a certain spot in the airport parking garage in St. Louis

County, Missouri, at a time requested by the defendant. De-

fendant was in the garage with his automobile, but did not pick

up the money package. The FBI agents lost visual contact

with the defendant and defendant's automobile, and through

the use of the beeper, they did locate the defendant's where-

abouts in O'Fallon, Missouri, about thirty miles away, by means

— <<

of a helicopter. This information was conveyed to FBI agents

in automobiles on the ground and they pulled up behind de-

fendant’s automobile and observed him at a telephone booth.

When defendant emerged from the telephone booth, they arrested

him, and on his person they found two pieces of evidence—

a business card with the handwritten notation of the telephone

number and address of Clarence Barksdale, president of the

First National Bank in St. Louis, and a page from a telephone

book containing the telephone number of James Clayton, the

citizen witness who was contacted by the defendant John D.

Frazier in an effort to obtain Clayton's assistance in the ex-

tortion scheme.

After the arrest. the agents conveyed defendant Frazier in

the agents’ car to Frazier’s home and another agent drove the

defendant’s automobile to defendant's home. Enroute to de-

fendant’s home, the agents advised defendant of his rights and

prepared a voluntary consent to search his automobile, which

defendant signed on his arrival at his home. The agents also

obtained a voluntary consent from the defendant and from his

wife to search the house after both defendant and his wife

were advised of their rights not to have their house searched

without a warrant.

The Court finds that the consent to search the defendant's

automobile was voluntarily given by defendant after being fully

advised of his rights even though the defendant now contends

he has no recollection of what happened during the date of

December 2, 1975.

The Court further finds that the defendant and his wife's

consent to search the house was voluntarily given by both of

them after being fully advised that the agents had no right to

search the house without a warrant.

In addition, the Court finds that the FBI agents had probable

cause to arrest the defendant at the time he was arrested, even

though they did not have a warrant.

— A-28 —

The question presented to the Court here is whether or not

placing a beeper on defendant's car without a warrant was a

search and, accordingly, illegal.

The Court finds that it was a search and that a warrant

should have been obtained. United States v. Holmes, 521 F.2d

859 (Sth Cir. 1975); United States v. Martyniuk, 395 F.Supp.

42 (D.Ore 1975).

Other FBI agents were waiting at defendant's home when

those agents with the defendant arrived at defendant's home.

The FBI agents had learned that defendant was an electronics

expert and an expert in the use of explosives. Their primary

concern was to protect the safety of the bank president, Clar-

ence Barksdale, and in order to do this they needed to keep

defendant Frazier under constant surveillance and this beeper

was an aid in doing so. However, the Court finds that the in-

stallation of the beeper without proper court authority con-

stitutes a search and the arrest of the defendant was expedited

by the use of the beeper. Whether or not defendant would have

had the page of the telephone directory and the business card

with the address and telephone number of Barksdale on his per-

son at a later time is problematical. Accordingly, that evidence

will be suppressed even though the agents had probable cause

to make the arrest, since Frazier had been identified as the mover

in the extortion scheme.

However, the voluntary consent to search the automobile

and the voluntary consents to search the home of defendant

Frazier do not require that the evidence obtained from the

automobile and the evidence obtained from the home be sup-

pressed.

Dated this 29th day of March, 1976.

s JAMES H. MEREDITH

United States District Judge

eee ere

ove. Ries ad em

test teins eS

APPENDIX G

In the United States District Court

Eastern District of Missouri

Eastern Division

United States of America,

Plaintiff,

VS. - No. 75-339 CR(1)

John D. Frazier,

Defendant. |

Motion to Suppress Evidence

Now comes the Defendant and moves the Court to suppress

as evidence all books, papers, documents, money and other

tangible objects in the possession of the government and ob-

tained as a result of an arrest without a search warrant or as a

result of the installation of an electronic tracking device on De-

fendant’s automobile and all such evidence obtained as a result

of leads supplied by such searches and seizures and arrests, for

the following reasons:

1. The said evidence was obtained by means of searches

and seizures without any warrant or other lawful authority.

2. The said evidence was not obtained as an incident of a

lawful arrest of Defendant but was obtained by means of

searches and seizures which followed an unlawful arrest without

any warrant or other lawful authority.

3. That the installation of an electronic tracking device on

Defendant's automobile constituted a trespass on Defendant's

property, an invasion of his right to privacy and was a search

—s =

in violation of the Fourth Amendment. See, U.S. v. Holmes (5

Cir., 1975), 521 F.2d 859 and U.S. v. Martyniuk, (D.C. Ore-

gon, 1975) 395 F. Supp. 42.

4. The arresting and searching officers had ample and ade-

quate opportunity to apply for arrest and search warrants prior

to the arrest of Defendant but failed to do so.

By reason of the foregoing, Defendant states that the searches,

seizures and arrest were unreasonable and unlawful and in viola-

tion of the right to be secure against unreasonable searches and

seizures as guaranteed by the provisions of the Fourth Amend-

ment to the Constitution of the United States, and in violation

of the rights against self-incrimination and not to be deprived

of liberty or property without due process of law as guaranteed

by the provisions of the Fifth Amendment to the Constitution

of the United States.

LEONARD J. FRANKEL

Attorney for Defendant

8019 Forsyth

Clayton, Missouri 63105

725-8019

Copy of the foregoing Motion

eee

1976, to United States Attorney,

1114 Market Street, St. Louis,

Missouri 63101.

abe

wR ar <nttle Mott

oa,

- Pe

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