Opposition — Crowell v. United States

No. 78-1022

In the Supreme Court of the United States

OCTOBER TERM, 1978

ALFRED DAVID CROWELL, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES

IN OPPOSITION

WabDE H. McCRrEE, JR.

Solicitor General

PHILIP B. HEYMANN

Assistant Attorney General

PATTY ELLEN MERKAMP

SAMUEL M. FORSTEIN

Attorneys

Department of Justice

Washington, D.C. 20530

INDEX

Page

COPUNOT BONO occisnserissssseseicerssssosecsicnitgioamnmenee |

PIN cisussensssisctscisvsasennvesmenrianiserenaranane |

Questions presented ..........cccccccccccccccccsccccccceccsoosocecosooees i

OME, vnsvscescivecaseitisiennistnestcmssacsensteeasveterrtemaeints 2

PPI seins stecisacsevesisssuresvntschicstnsedsnssésaatsnbanrentscneanios 6

ORION sess via raversensvessivanenccssessrparsentenesncsncsenvercorane 15

CITATIONS

Cases:

Abel v. United States, 362 U.S. 217 wcceecccccceees 6-7

Alderman v. United States, 394 U.S. 165 ......... 12

Brown v. United States, 411 U.S. 223... 9

Elkins v. United States, 364 U.S. 206 ..........cc0000 9

Hester v. United States, 265 U.S. 57 v..cccccecceeeeees 7

Jones v. United States, 362 U.S. 257 v..cceccccccceee 9

Katz v. United States, 389 U.S. 347 ........ 6, 8, 10

Magda v. Benson, 536 F. 2d INL ou... eee 6, 7

Margoles v. United States, 407 F. 2d 727,

Cert. Genied, 396 U.S. 833. .....ccccccoscsssssssssceseees 13

Rakas vy. Illinois, No. 77-5781, decided

December 5, 1978 ....cccccccrcsssssvesceee 6, 7, 8, 9, 10

Simmons v. United States, 390 U.S. 377 ........004. 9

United States v. Alden, 576 F. 2d 772 .......... 7

United States v. Basile, 569 F. 2d 1053,

Cert. Gemied, 436 U.S. 920 ...cccccccoscescoccccscsesecseee 7

United States v. Chadwick, 433 U.S. w.ceeccceeeee 8

United States v. Dzialak, 441 F. 2d 212,

Cert. Gented, 404 U.S. BBS ...cccrcccccccccssesccseseseeses 7

Cases—Continued:

United States v. Frazier, 538 F. 2d 1322,

cert. denied, 429 U.S. 1046 ....................

United States v. Gibson Specialty Co.,

ea ME EE * ccscutdndd scchateeansdaeasiceceioonvnns

United States v. Hankish, 502 F. 2d 71. ....

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

aff'd en banc by evenly divided court,

PEE Se EY edcsdbuisabernveniavitielsmistenestinvens

United States v. Hufford, 539 F. 2d 32,

cert. denied, 429 U.S. 1002 ................0.00

United States v. Hunt, 505 F. 2d 931, cert.

SI, RE TEE Fe esikewsivcsecccssrscsvoccvecics

United States v. Hutchinson, 488 F. 2d

484, cert. denied, 417 U.S. 915 ooo...

United States v. Jones, 542 F. 2d 186 .......

United States v. Kahan, 350 F. Supp.

784, aff'd in part and rev'd in part, 479

F, 2d 290, rev'd, 415 U.S. 239 wo

United States v. Lisk, 522 F. 2d 228, cert.

GONG, Ge TW. FFD iccovkcncncosexesscntsaaceess

United States v. Minker, 312 F. 2d 632,

Cert. Genied, 372 U.S. G53 crccccocccccevccscesees

United States v. Moore, 562 F. 2d 106 .....

United States v. Mustone, 469 F. 2d 970 ..

United States v. Pomponio, 511 F. 2d

953, cert. denied, 423 U.S. 874 ...........00..

United States v. Pretzinger, 542 F. 2d 517

United States v. Prince, 529 F. 2d 1108,

cert. denied, 429 U.S. 838 ......cccccsccccscccees

Page

Page

Cases—Continued:

United States v. Prueitt, 540 F. 2d 995,

cert. denied, 429 U.S. 1063 w..ccccccccccceeeeeeeeeeeeeees )

United States v. Riquelmy, 572 F. 2d 947 .......... 9

United States v. Rizzo, 418 F. 2d 71, cert.

Gonied,: S57 UB. FOF sscnivstierssssousihvcsscssssetvavene 10

United States v. Shelby, 573 F. 2d 971 c.ccccceeeeees 7

Constitution and statutes:

Fourth Amendment .............00068 7, 8, 9, 12, 14

BG UGC. FOCI wvesancnsavncrsdcnitaassescnsetesnniinsies 2

21 U.B.C. GORI) ORE BOR vivcccdsvccsecesecssecetenisces: 2

In the Supreme Court of the United States

OCTOBER TERM, 1978

No. 78-1022

ALFRED DAVID CROWELL, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES

IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. la-17a)

is reported at 586 F. 2d 1020.

JURISDICTION

The judgment of the court of appeals was entered on

November 17, 1978. The petition for a writ of certiorari

was filed on December 18, 1978. The jurisdiction of this

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

QUESTIONS PRESENTED

1. Whether evidence seized from petitioner's trash after

the trash collector had removed it from petitioner's

property should have been suppressed at trial.

(1)

2. Whether the government infringed petitioner's

privacy interests under the Fourth Amendment when it

searched premises neither owned nor leased by petitioner.

3. Whether petitioner had a right to individual voir dire

of the jury concerning trial publicity.

4. Whether petitioner was entitled to a hearing to

determine whether, contrary to the government's asser-

tions, “beepers” attached to petitioner’s airplane and to a

car belonging to another for the purpose of monitoring

their movements actually functioned as intended and

produced evidence.

STATEMENT

Following a jury trial in the United States District

Court for the District of Maryland, petitioner was

convicted on one count of conspiracy to manufacture,

distribute, or dispense, or possess with intent to

manufacture, distribute, or dispense phencyclidine (PCP),

a controlled substance, in violation of 21 U.S.C. 841(a)(1)

and 846, and on four counts of traveling in interstate

commerce in aid of a racketeering enterprise, in violation

of 18 U.S.C. 1952(a)(3) (Pet. App. 2a).! He was sentenced

to terms of incarceration totaling 15 years, a five-year

special parole term, and a fine of $10,000. The court of

appeals affirmed (Pet. App. la-17a).

The evidence at trial consisted primarily of the

observations of agents who had conducted surveillance,

the fruits of several searches, and testimony of people

involved in the conspiracy. It proved a scheme to

manufacture PCP, initially at petitioner's home, where he

and a co-defendant refined a process they derived largely

'Two co-defendants were also convicted by the jury, other co-

defendants pleaded guilty, and one co-defendant’s motion for

judgment of acquittal was granted at the close of the government's

case.

from United States Patent Office records (Tr. 13-14, 23-

24). As the enterprise grew in number of persons involved

and in volume of PCP produced, remote secret labo-

ratories were established and chemicals were brought

in from various States (Tr. 104-105, 109-110).

1. PCP seized from a search of trash obtained from

petitioner’s residence in Montgomery County, Maryland,

was admitted into evidence at trial. On April 3, 1975, an

employee of a private trash disposal company went on

petitioner’s premises to collect the trash (P.H. Tr. 22).?

Upon leaving the premises, the collector was approached

by two police officers who were standing on the street

(P.H. Tr. 22, 25). On request, the collector turned the bag

over to them (ibid.). A few days later, the collector was

once again approached in the street by an officer and

again turned over a bag of petitioner’s trash (P.H. Tr. 26).

2. Premises in Virginia, West Virginia, and Maryland,

were searched pursuant to several warrants; these

searches resulted in the seizure of chemicals and

apparatus used by the conspirators in manufacturing PCP

(Pet. App. 9a). Petitioner did not own or lease any of the

premises, nor was he present when they were searched

(Pet. App. 10a). He nevertheless moved to suppress the

seized evidence, arguing that he must have had a

possessory interest in the premises used to manufacture

PCP and store chemicals. He supported this contention

with argument by counsel concerning what the govern-

ment could be expected to seek to prove at trial. He did

not testify or present any other witnesses (J.A. 242-276).?

Petitioner also claimed that he had a possessory interest

in the items seized and that he had “automatic standing to

*“P.H. Tr.” refers to the transcript of a pretrial hearing conducted

on August 9, 1976,

“J.A.” refers to the joint appendix filed in the court of appeals.

challenge the searches.” The district court ruled that

petitioner did not have standing to contest the searches

and seizures and characterized petitioner's possessory or

proprietary interest in the premises as “speculative at

best” (J.A. 276).

3. Before trial, petitioner moved for a continuance,

severance, and change of venue because of an article in a

Baltimore newspaper (V. Tr. 3-7; J.A. 140-141).4 The trial

judge denied the motions, indicating that voir dire would

suffice to determine whether the prospective jurors had

been prejudicially infected by the publicity (V. Tr. 12-14).

During voir dire, the trial judge questioned the veniremen

about publicity, struck for cause one who had read the

newspaper piece, and admonished the group not to read

or listen to anything concerning the case (V. Tr. 17-29).

After the initial voir dire, the trial judge discussed the

subject at the bench with counsel, and no one raised any

objections to any of the questions regarding publicity (V.

Tr, 29-32). When counsel requested the judge to again

question the veniremen about exposure to publicity, he

promptly did so (V. Tr. 32).

After the petit jury was selected and sworn, the judge

admonished its members at length not to read about or

discuss the case with anyone (V. Tr. 43-46). At the lunch

break, at the close of the first day of trial, and on a num-

ber of occasions during the trial the judge instructed the

jurors to consider only the evidence at trial and to report

immediately any exposure to other information concern-

ing the case (see, e.g., V. Tr. 47; Tr. 90, 285-286, 503-504,

673, 745-746). During trial, petitioner's counsel twice

brought to the district judge’s attention the appearance of

articles in Baltimore newspapers, and the second time he

requested a mistrial. On each occasion, the judge inquired

“V. Tr.” refers to the transcript of the voir dire of the jury panel.

of the jury collectively concerning whether they had been

exposed to publicity, and no jury member responded (Tr.

97-98. 513; J.A. 7-12). After receiving no juror response to

his inquiry on the second occasion, the district judge

denied the motion for a mistrial (J.A. 12).

4. During the investigation of this case, a beeper was

installed on petitioner's airplane pursuant to affidavit and

court order, and another beeper was installed without a

court order on a car belonging to a co-defendant’s wife

(Pet. App. 12a). After petitioner’s counsel was furnished

the affidavit and court order during pretrial discovery, he

moved for a hearing and for suppression of the results of

all surveillance utilizing the beepers. During a motions

hearing, an Assistant United States Attorney represented

to the court that “no evidence [was] derived from the

utilization of [the] bumper beepers” because contact was

lost with both the plane and the car after the beepers were

installed (J.A. 37). Thus no surveillance was conducted

and no evidence was gathered. The prosecutor also stated

that there was no electronic surveillance other than the

bumper beepers (J.A. 35-38). Based on these representa-

tions, the court denied the request for a hearing. It did,

however, allow petitioner’s counsel to question the case

agent in the prosecutor’s presence about the beeper (J.A.

41), but counsel never availed himself of this opportunity.

5. In affirming petitioner’s conviction, the court of

appeals specifically addressed all of his contentions

respecting the searches (Pet. App. 6a-12a) and _ his

contentions respecting prejudicial publicity (Pet. App. 5a-

6a) and the installation of bumper beepers (Pet. App. |2a-

13a). In deciding the search issues, the court of appeals,

inter alia, agreed with the district court that petitioner

lacked standing to contest searches of a farmhouse in

Spotsylvania County, Virginia, and of a shed ona farm in

Essex County, Virginia, near Tappahannock (Pet. App.

9a). It held that standing could not be predicated on

ownership of the articles seized unless possession of those

articles was an element of the crime charged, and it noted

that possession was not an element of the crimes charged

here (Pet. App. 9a-10a). The court acknowledged that

petitioner's “assertion of a possessory interest in the

premises searched, if sustained by the proof, would confer

standing on him” (Pet. App. 10a), but it concluded that

petitioner had not made the necessary showing in support

of his motion to suppress (Pet. App. 10a-12a).

ARGUMENT

1. Petitioner’s claim that the district court should have

suppressed evidence seized during the search of his trash

is without merit. Petitioner had placed his trash outside

his house for collection by a private trash disposal

company. After it had been collected and removed from

petitioner's property, the police obtained possession of it

from the collector. Although the collector did not have

petitioner’s permission to give the trash to the police, no

evidence was presented that he was instructed to dispose

of the trash in any particular manner. Petitioner thus had

no legitimate expectation of privacy in his trash. See

Rakas v. Illinois, No. 77-5781, decided December 5, 1978;

Katz v. United States, 389 U.S. 347, 353 (1967). That a

person has a “legitimate” expectation of privacy entails

more than a subjective expectation that his trash will not

be disturbed. See Rakas v. Illinois, supra, slip op. 15 n.12.

Both courts below (Pet. App. 8a) properly found that at

the time the private collector had removed the trash from

petitioner’s premises petitioner had abandoned the items

in his trash can and no longer had an interest in them.°

See Abel v. United States, 362 U.S. 217, 241 (1960);

SA district court's finding of abandonment is based on factual

findings regarding action and intent and should not be overturned

unless clearly erroneous. United States v. Alden, 576 F, 2d 772, 777

(8th Cir. 1978); Magda v. Benson, 536 F. 2d 111, 112 (6th Cir, 1976).

United States v. Alden, 576 F. 2d 772, 777 (8th Cir. 1978);

United States v. Shelby, 573 F. 2d 971, 973-974 (7th Cir.

1978); Magda v. Benson, 536 F. 2d 111 (6th Cir. 1976);

United States v. Mustone, 469 F. 2d 970, 972-973 (Ist

Cir. 1972); United States v. Dzialak, 441 F. 2d 212, 215

(2d Cir.), cert. denied, 404 U.S. 883 (1971); United States

v. Minker, 312 F. 2d 632, 634-635 (3d Cir. 1962), cert.

denied, 372 U.S. 953 (1963). See also Hester v. United

States, 265 U.S. 57 (1924); United States v. Basile, 569 F.

2d 1053, 1056 (9th Cir.), cert. denied, 436 U.S. 920

(1978).6

. 2. Regarding the other searches, petitioner challenges

in this Court only the searches of premises in Spotsylvania

County, Virginia, and Essex County, Virginia (Pet. 10-

19). He bases his contention that he had standing to

challenge these searches on (1) his assertion of an interest

in items seized (chemicals and apparatus used in the

manufacture of PCP) (Pet. 10-16), (2) “automatic”

standing, which he alleges was conferred by the nature of

the federal charges and by pending state charges of illegal

possession (Pet. 17-19), and (3) a possessory interest in the

premises searched (Pet. 19). The court of appeals correctly

held that these claims either were inadequate on their face

to establish standing or were not supported by sufficient

proof for that purpose. In the terms employed by this

Court in Rakas v. Illinois, supra, slip op. 5, petitioner

failed to show an infringement of his personal Fourth

Amendment rights.

The only federal case petitioner cites on his behalf is United Stat

v. Kahan, 350 f°. Supp. 784 (S.D.N.Y. 1972), aff'd in part and rev'd in

part, 479 F, 2d 290 (2d Cir. 1973), rev'd, 415 U.S. 239 (1974), in which

abandonment was considered only at the district court level. In any

event, that case is inapposite because it involved a search of a

wastepaper basket within a private office, performed before the

contents of the basket had been removed from the office.

a. The Fourth Amendment confers the right to be

protected against both unreasonable searches and un-

reasonable seizures. The proper test for determining

whether a defendant's rights have been infringed by an

unreasonable search is whether he had “a legitimate

expectation of privacy in the invaded place.” Rakas v.

Illinois, supra, slip op. 15, citing Katz v. United States,

389 U.S. 347 (1967). A defendant without such an

expectation of privacy in the place searched suffers no

infringement of his Fourth Amendment rights from the

“invasion” inherent in that search and therefore cannot

challenge the validity of the search, even though it results

in the disclosure or seizure of evidence that may be used

against him at a criminal trial.

If property belonging to a defendant is seized from an

area in which he has no legitimate personal expectation of

privacy, a distinction must be drawn between his

“standing” to challenge the search and his right to

challenge the lawfulness of the seizure of his property. He

may be heard only with respect to claims based upon

alleged illegality of the seizure itself, not with respect to

claims attacking the means by which his property came

into the plain view of the searching officers. See United

States v. Lisk, 522 F. 2d 228, 230 (7th Cir. 1975) (Stevens,

J.), cert. denied, 423 U.S. 1078 (1976).’

Petitioner has not claimed that the seizure of items—

mainly PCP and instruments and compounds used in its

manufacture—from the Spotsylvania farmhouse or the

Essex County shed were vulnerable to challenge for any

reason apart from his challenge to the right of officers to

’This is not a meaningless right. As in the case of any articles seized

under the plain view doctrine, such seizures must be based on

probable cause. Moreover, seizure of articles contained in a locked

suitcase or similar container could be challenged by their owner if the

container were opened without a separate warrant. See United States

v. Chadwick, 433 U.S. | (1977).

search the premises; and since, as we show below, he

failed to prove that he had a legitimate expectation of

privacy in the premises, he clearly has shown no

infringement of his own Fourth Amendment rights.

b. Petitioner’s claim of “automatic standing” fails to

support his challenge to the search for the same reason

that his claim of possession of the items seized fails, even

if we assume that the automatic standing rule of Jones v.

United States, 362 U.S. 257 (1960), survives this Court's

decision in Simmons v. United States, 390 U.S. 377 (1968)

(see Rakas vy. Illinois, supra, siip op. 7 n.4).8 Moreover,

petitioner lacks automatic standing under Jones because

he was not charged with a possessory offense. Brown v.

United States, 411 U.S. 223, 229 (1973).% Petitioner was

charged first with conspiracy which, as the court of

appeals noted (Pet. App. 10a), “is not a possessory crime,

even where the conspiracy is one to manufacture and

posses a controlled substance.” See United States v.

Riquelmy, 572 F. 2d 947, 951 (2d Cir. 1978); United

States v. Prueitt, 540 F. 2d 995, 1004 (9th Cir. 1976), cert.

denied, 429 U.S. 1063 (1977), United States v. Hutchin-

son, 488 F. 2d 484, 492 (8th Cir. 1973), cert. denied, 417

U.S. 915 (1974), He was also charged with traveling in

interstate commerce in aid of a racketeering enterprise,

but, again, that kind of offense does not require pos-

session. See United States v. Prince, 529 F. 2d 1108,

I111-1112 (6th Cir.), cert. denied, 429 U.S. 838 (1976);

United States vy. Pomponio, 511 F, 2d 953 (4th Cir), cert.

“We disagree with the view expressed by the court of appeals

(Pet. App. 9a-10a) that standing to challenge the search could be

predicated on Ownership of the items if a possessory offense were

charged.

*The mere fact that petitioner may have “automatic standing” in a

State court to contest the search in Virginia, where he is charged with

a possessory offense, does not confer standing on him in federal

court. See kikins v, United States, 364 U.S. 206, 224 (1960).

10

denied, 423 U.S. 874 (1975); United States v. Gibson

Specialty Co., 507 F. 2d 446 (9th Cir. 1974); United States

Vv. Rizzo, 418 F. 2d 71, 74 (7th Cir. 1969), cert. denied, 397

U.S. 967 (1970).

c. Petitioner’s contention that he had standing to

contest the searches of the premises in question by reason

of a possessory or proprietary interest in those premises

was properly rejected by the disirict court for failure of

proof. As noted, to prove the requisite interest in the

premises, petitioner was obligated to show a “legitimate

expectation of privacy in the invaded place.” Rakas v.

Illinois, supra, slip op. 15, citing Katz v. United States,

supra, 389 U.S. at 353. He showed no such interest either

in the Spotsylvania County farmhouse or the Essex

County shed.

Petitioner introduced no evidence to establish his

interest in the searched premises, but instead relied on

argument by counsel to the effect that the government

would seek to prove at trial that petitioner was the

“kingpin” of the PCP manufacturing operation, that he

was responsible for setting up manufacturing operations

in the Essex County farmhouse and the Spotsylvania

County shed, that he had access to and control over both

buildings, and that the shed had been rented by his

agent. With one exception, petitioner did not even support

these assertions with references to specific documents or

testimony; and, as noted, he did not testify at the

suppression hearing, nor did he present any other

witnesses (J.A. 242-276).

Regarding the Essex County shed, petitioner's counsel,

who also represented co-defendant Byron Earl Fountaine,

argued at the hearing that “investigative reports” provided

to him by the government during discovery indicated that

the government believed that “this was at least Foun-

taine’s shed, * * * at least Fountaine’s operation” (J.A.

252) and that government “allegations” indicated that the

shed was Fountaine’s, along with “the keys * * * to the

lock on the door and the goods * * * inside” (J.A. 267).

He also asserted, without specific reference to evidence,

that both petitioner and Fountaine had a “possessory or

proprietary interest in the shed” and “free access in and

out of the shed” (J.A. 252-253). The Assistant United

States Attorney denied that the government believed

petitioner had any “proprietary or possessory right in the

premises” of the house in Spotsylvania County, which he

noted “was rented by two women” and owned by a person

other than petitioner (J.A. 261). The Essex County shed,

he stated, was owned by “another person” and rented by

“another person”—not petitioner or Fountaine (J.A. 263).

The district court properly concluded that petitioner

had not carried his burden of proving possessory interests

in the premises merely by “visiting” them and “alleging

some control,” since his claims regarding his interest in

the premises were “speculative at best” (J.A. 275, 276).

The correctness of the court’s ruling was borne out by

the evidence at trial. Sandra Swoboda, a tenant in the

Spotsylvania farmhouse, testified that petitioner and

another person, Andrew Narel, had brought seven boxes

into the house sometime in March 1975, that Narel had

asked permission to store them in her attic, and that she

had reluctantly agreed (Tr. 330-334). Petitioner used

contents of the boxes to manufacture PCP in her kitchen,

she stated (Tr. 334-335). She further testified, however (Tr.

353), that she told petitioner and Narel “three days and

they had to be out” (Tr. 353), and that the two men

actually moved the boxes out sometime in the middle of

March (Tr. 336-337).

It was stipulated that a Deputy Sheriff for Spotsylvania

County would testify that he executed the search warrant

for that house on April 5, 1975, and seized from “the

12

residence” only a single glass bottle and eight newspaper

sections containing “white crystals” and two tablespoons

containing “white crystalline materials” (Tr. 546-547). It

was further stipulated that a chemist would testify that the

contents of these iterns were either PCP or an in-

termediate product appearing during its manufacture

(Tr. 546).

It is thus apparent that even if petitioner had at one

time enjoyed a legitimate expectation of privacy in the at-

tic storage area, that expectation ended after he removed

the seven boxes. There was nothing to indicate he had any

reason to expect that materials he may inadvertently have

left behind somewhere in the residence would be un-

disturbed.

As to the Essex County shed, it was stipulated that the

owner would testify that “Butch Walton, Byron Earl

Fountaine, and othe’ unidentified individuals” came onto

his premises and placed boxes and paint cans “into a shed

on his property” and that he had “observed Byron Ear!

Fountaine on his property on various occasions” (Tr. 688-

689). It is conceivable that this would support a Fourth

Amendment challenge to the search by Fountaine;'? but it

is clear that it indicates no cognizable interest on the part

of petitioner.

Certainly one cannot, as petitioner suggests (Pet. 19),

claim a personal Fourth Amendment right on the basis of

rights enjoyed by one’s co-conspirators «1 the theory that

they are one’s agents. United States v. /lunt, 505 F. 2d

931 (Sth Cir. 1974), cert. denied, 421 U.S. 975).!! See

also Alderman vy. United States, 394 U.S. 165, 171 (1968).

'Fountaine pled guilty to one count of the indictment.

''Petitioner agrees that the Fifth Circuit decision in United States

v. Hunt is “viable” (Pet. 19), but he claims that it is “contrary to

the facts of the instant record” (ibid.). Petitioner articulates no

distinction, and we think that, at least on the question of agency,

Hunt is squarely in point.

13

3. Petitioner asserts that he was entitled during his trial

to individual voir dire of the jurors to determine whether

newspaper publicity had prejudiced them. This contention

is baseless. During the jury selection process, one

venireman was excused for cause because he had read

about the case. After the trial commenced, the district

judge advised the jury on many occasions to avoid

exposure to media reports about the case, and, if they

should read or hear something relevant, to inform the

court promptly. Following publication of two newspaper

stories relating to the case, the trial judge each time

inquired of the jurors whether they had been exposed to

publicity regarding the trial; on each occasion, no juror

responded. Since no juror had been exposed to trial

publicity, further inquiry was unnecessary. See United

States v. Jones, 542 F. 2d 186, 194-197 (4th Cir. 1976);

United States v. Hankish, 502 F. 2d 71, 77 (4th Cir. 1974);

Margoles v. United States, 407 F, 2d 727, 735 (7th Cir.),

cert. denied, 396 U.S. 833 (1969). The court of appeals

correctly concluded (Pet. App. 5a-6a) that the trial judge

did all that was necessary to ensure a fair trial.

4. Petitioner contends that he should have been

afforded a hearing on his claim that some of the

government's evidence might have been obtained through

the bumper beepers installed on a car and on his

airplane. But as an Assistant United States Attorney

explained to the district court, neither beeper functioned

and thus no evidence was obtained from them. None-

theless, the trial judge advised defense counsel that he

could question the case agent in the prosecutor's presence

concerning the beepers; defense counsel never took

advantage of this opportunity. Petitioner does not point

to any evidence that might have been obtained from the

beepers. Furthermore, petitioner had no possessory or

14

privacy interest in the car, which belonged to his co-

defendant’s wife, and therefore he could not have

challenged the admissibility of any evidence that might

have been obtained through surveillance of that vehicle.

Rakas v. Illinois, supra. The beeper on his airplane was

installed pursuant to court order, and since he makes no

claim in this petition that the order was defective or that

probable cause was lacking, he has not laid the necessary

groundwork for claiming a Fourth Amendment viola-

tion.'? In short, he has shown nothing that would en-

title him to a hearing.

'2The Ninth Circuit has held that the attachment of a beeper to the

exterior of a vehicle does not invade privacy interests protected by the

Fourth Amendment unless the attachment involves an intrusion

(e.g., entry onto private property) that would otherwise require a

warrant, since a beeper lawfully attached to monitor a vehicle's

location on the public highways or in the public airspace is simply an

aid to visual observations and scarcely more intrusive than other

visual surveillance aids, such as radar. United States v. Pretzinger,

542 F. 2d 517, 520 (9th Cir. 1976); United States v. Hufford, 539 F.

2d 32, 34 (9th cir.), cert. denied, 429 U.S. 1002 (1976). But see United

States v. Holmes, 521 F. 2d 859, 864-866 (Sth Cir. 1975), aff'd en

banc by evenly divided court, 537 F. 2d 227 (Sth Cir. 1976); United

States v. Frazier, 538 F. 2d 1322, 1324 (8th Cir. 1976) (dictum), cert.

denied, 429 U.S. 1046 (1977). The First Circuit, in United States

v. Moore, 562 F. 2d 106, 112-113 (1977), has held that, in light

of “the lessened expectancy of privacy associated with motor

vehicles,” law enforcement officers may install a beeper to monitor an

automobile’s movements without obtaining a warrant, although the

court stated that probable cause would be required, While we agree

with the Ninth Circuit's view of the matter, this case affords no

occasion to resolve any disparity in views among the circuits.

15

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

WADE H. MCCREE, JR.

Solicitor General

PHILIP B. HEYMANN

Assistant Attorney General

PATTY ELLEN MERKAMP

SAMUEL M. ForRSTEIN

Attorneys

MARCH 1979

DOJ. 1980-03