Opposition — Frazier v. United States

No. 77-487

In the Supreme Court of the Hnited States

OCTOBER TERM, 1977

JOHN D. FRAZIER, PETITIONER

Vv,

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE EIGHTH CIRCUIT

BRIEF FOR THE UNITED STATES

WADE H. McCreE, JR.,

Solicitor General,

BENJAMIN R. CIVILETTI,

Assistant Attorney General,

WILLIAM G. OTIs,

WILLIAM C. Brown,

Attorneys,

Department of Justice,

Washington, D.C. 20530.

In the Supreme Court of the Hnited States

OCTOBER TERM, 1977

No. 77-487

JOHN D. FRAZIER, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE EIGHTH CIRCUIT

BRIEF FOR THE UNITED STATES

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. Al-Al1)

is reported at 560 F. 2d 884. The earlier opinion of the

court of appeals (Pet. App. AI5-A24), reversing the

district court’s suppression order, is reported at 538 F. 2d

1322. The district court opinion (Pet. App. A26-A28) is

unreported.

JURISDICTION

The judgment of the court of appeals was entered on

August 5, 1977. A petition for rehearing was denied on

August 29, 1977. The petition for a writ of certiorari was

filed on September 28, 1977. The jurisdiction of this Court

is invoked under 28 U.S.C. 1254(1).

(1)

2

QUESTIONS PRESENTED

1. Whether conduct within the plain language of the

Hobbs Act (18 U.S.C. 1951) is nonetheless not proscribed

by that Act unless it is also proven to constitute

“racketeering.”

2. Whether the warrantless placement of an electronic

tracking device (a “beeper”) upon the exterior of

petitioner’s automobile by FBI agents acting on probable

cause and under exigent circumstances, or the subsequent

monitoring of the signals emitted by the device as

petitioner drove on public roads, violated petitioner's

Fourth Amendment rights.

STATEMENT

A one-count indictment filed December | 1, 1975, in the

United States District Court for the Eastern District of

Missouri charged petitioner with attempted extortion, in

violation of the Hobbs Act, 18 U.S.C. 195!. Prior to trial

petitioner moved to suppress certain evidence seized with

the aid of an electronic tracking device that government

officers had attached to his automobile (Pet. App. A29-

A30). After a hearing, the district court ordered the

evidence suppressed (Pet. App. A26-A28). The court of

appeals reversed (Pet. App. AI5-A24; 538 F. 2d 1322),

and this Court denied a petition for a writ of c.rtiorari

(Pet. App. Al4; 429 U.S. 1046). Following a jury trial,

petitioner was convicted and sentenced to ten years’

imprisonment. The court of appeals affirmed (Pet. App.

Al-All).

The evidence at trial and at the hearing on the motion

to suppress established that on November 24, 1975, James

Clayton received a telephone call from an unidentified

individual who spoke vaguely of an opportunity for

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Clayton to earn $50,000 (H. Tr. 22: Tr. 4-5).!' Clayton

reported this conversation to the Federal Bureau of

Investigation, consented to the monitoring of his

telephone calls, and agreed to feign compliance with the

caller’s requests. On November 25, the anonymous caller

telephoned Clayton again, this time revealing his plan to

chain a belt containing explosives to a wealthy individual

(whom the caller did not identify) and to remove the belt

only upon payment of a large sum of money (H. Tr. 27-

30, 38).

On November 30, the FBI identified petitioner as the

caller (H. Tr. 24; Tr. 67, 162). Clayton then realized that

he knew petitioner as a retired -naval officer who was an

explosives expert (H. Tr. 25; Tr. 15). That evening

petitioner and his car were seen at a motel near the

airport.

At 2:00 p.m. on December |, petitioner telephoned

Clayton and named Clarence Barksdale, president of the

First National Bank in St. Louis, Missouri, as his in-

tended victim (Pet. 7; Pet. App. A2). Petitioner also re-

vealed that the extortion plan was to be executed the next

morning (Pet. App. A2; H. Tr. 29-31, 37-39). At a

meeting held at 4:30 p.m. on that afternoon, the

investigating agents decided to attach a battery-operated

electronic tracking device (a “beeper”) to petitioner’s car

in order to assist in monitoring his movements. At ap-

proximately 6:30 p.m. an agent attached the beeper to

the exterior of petitioner’s automobile while it was parked

in a motel parking lot (H. Tr. 5-6; Tr. 55-57).

That evening petitioner provided Clayton with the

explosive belt (upon later examination it was found to

contain no actual explosives) (Tr. 76, 86-93, 97). On the

'“H. Tr.” refers to the transcript of the suppression hearing. “Tr.”

refers to the trial transcript.

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morning of the following day Clayton pretended to carry

out his part in the plot by driving te Barkdale’s house and

going through a charade of placing the belt around an

FBI agent impersonating the victim (Tr. 32, 41, 94).

Petitioner was seen in the area of the house but did not

contact anyone at that time (Tr. 33).

Later that morning petitioner telephoned Barksdale at

the bank and demanded that $150,000 be taken to the

local airport (H. Tr. 44; Tr. 113). Bank bags stuffed with

paper and topped with approximately $105 in currency

were taken to the designated location (Tr. II1, 114).

The agents had planned to arrest petitioner when he

picked up the money. Petitioner was seen at the airport,

but he departed without attempting to take possession of

the bank bags (H. Tr. 46; Tr. 61, 64, 73, 84, 120, 163,

174). Two agents were then dispatched to obtain an arrest

warrant, while others sought to locate petitioner (H. Tr.

47). With the aid of a helicopter equipped with a device to

monitor the signals transmitted by the beeper, petitioner's

car was located on a street in O’Fallon, Missouri (H. Tr.

8-9, 48; Tr. 119-121). Petitioner was arrested there that

afternoon. A search of his person incident to the arrest

produced a page of a telephone book bearing the name of

James Clayton and a business card containing Barks-

dale’s name and address (Tr. 125-129)?.

ARGUMENT

1. Petitioner contends (Pet. 10-13) that conduct within

the plain language of the Hobbs Act (18 U.S.C. 1951)—

here, the attempted extortion of $150,000 from a national

?Other incriminating items were obtained from subsequent searches

of petitioner's automobile and home. The district court found that

petitioner and his wile consented to these searches (H. Tr. 77-78),

and the correctness of that determination is not in issue here.

— <7

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bank-——is nonetheless not proscribed by the Act unless it is

also proven to constitute “racketeering.” The propriety of

this construction of the statute is presently before the

Court in United States v. Culbert, No. 77-142, certiorari

granted October 3, 1977, which also involves an

attempted bank extortion. The Court should therefore

hold this petition pending the decision in Culbert and

then dispose of it accordingly.

2. Petitioner also contends (Pet. 13-20) that the war-

rantless use of an electronic beeper to locate his car vio-

lated the Fourth Amendment and that therefore the evi-

dence seized at the time of his arrest should have been

suppressed. The Court has twice recently declined to re-

view this issue.4 and there is no reason for a different

result here.

Measured against the Fourth Amendment’s guiding

standard of reasonableness, the agents’ conduct in this

case was not unlawful. They had probable cause to believe

that petitioner planned to extort money by endangering

someone’s life with explosives, and they feared that others

unknown to them might also have been involved (see Tr.

123). Petitioner had no reasonable expectation of privacy

in the exterior of his automobile while it was parked in

the public lot, or in his movement in his car on the public

roads. See Cardwell v. Lewis, 417 U.S. 583, 590. The

monitoring of the beeper neither captured private

conversations nor invaded any private sanctuary. See

Katz v. United States, 389 U.S. 347. Rather, it merely

‘We are sending petitioner a copy of our brief in Culbert.

4In addition to the denial of petitioners earlier petition, which

presented the same argument. see Hufford v. United States, 539

F. 2d 32 (C.A. 9). certiorart denied, 429 U.S. 1002.

6

enabled the agents to do more efficiently what they might

otherwise had done using their eyesight alone—i.e., follow

petitioner. In that respect, the use of the beeper was

similar to the use of other detection aids—such as radar

or tracking dogs—that may augment the senses of law

enforcement officials yet not impinge unreasonably upon

a suspect's legitimate expectation of privacy. Given the

exigencies of the circumstances and the minimal intrusion

on petitioner's privacy, it was reasonable for the agents to

install and monitor the beeper, and petitioner’s Fourth

Amendment rights were accordingly not violated.>

3. Contrary to petitioner's suggestion (Pet. 6), there is

no conflict among the circuits regarding the use of beepers

to monitor the location of automobiles. A panel of the

Fifth Circuit ruled that the warrentless use of a beeper

attached to an automobile bumper violated the Fourth

Amendment in United States v. Holmes, 521 F. 2d 859,

‘Even if it is assumed, contrary .o our view, that the warrant clause

applies here. the agents’ conduct was lawful under the exigent

circumstances doctrine, as the court below ruled (Pet. App. A9, n. 5;

A19-A20). See Chambers v. Maroney, 399 U.S. 42; Warden v.

Hayden, 387 U.S. 294; Carroll v. United Siates, 267 U.S. 132.

Petitioner argues that exigent circumstances did not exist because the

agents “had all day on December | to obtain the necessary warrant”

(Pet. 19). But it is settled that exigent circumstances do not dissipate

because agents do not obtain a warrant at the first practicable

moment. Cardwell v. Lewis, supra, 417 U.S. at 595; see United States

v. Mitchell, 538 F. 2d 1230, 1233 (C.A. 5) (en banc). In this case the

existence of exigency should be measured, not from the time the

agents learned of petitioner's identity and location on the evening of

November 30. but from the time of telephone conversations on the

next afternoon when the agents learned that the execution of the plot

was imminent. At that point the agents acted quickly (and upon

probable cause) to place the beeper on petitioner's car in order to

monitor its location. The crime and the investigation were con-

tinuing. and without prompt action petitioner's car could easily

have been moved to an area where attachment of the beeper might

have been impossible.

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but that decision was withdrawn and upon rehearing en

banc the Fifth Circuit divided evenly on the issue (537 F.

2d 227), a disposition having no precedential effect. See

Carter v. United States, 325 F. 2d 697, 698 (C.A. 5)

(Jones, J., concurring). In another Fifth Circuit case the

court upheld the placement and monitoring of a beeper

inside a package to be delivered to the defendant. United

States v. Perez, 526 F. 2d 859 (C.A. 5), certiorari denied,

429 U.S. 846.6 The only other circuits to have considered

the question have held that law enforcement officials

acting on probable cause are not required to obtain a

warrant before attaching a beeper to an automobile.

United States v. Moore, 562 F. 2d 106 (C.A. 1); United

States v. Pretzinger, 542 F. 2d 517, 520 (C.A. 9); Hufford

v. United States, supra.

CONCLUSION

The petition should be held pending the decision in

United States v. Culbert, supra, and then disposed of

accordingly.

Respectfully submitted.

WADE H. McCreE, Jr.,

Solicitor General.

BENJAMIN R. CIVILETTI,

Assistant Attorney General.

WILLIAM G. OTIS,

WILLIAM C. Brown,

Attorneys.

DECEMBER 1977.

‘Accord, United States v. Emery, 541 F. 2d 887, 889-890 (C.A. 1):

see also United States v. Bishop, 530 F. 2d 1156 (C.A. 5).

DOJ-1977-12