Petition — Allen v. United States

Office -Supreme C =

80-21 25 “FILED

ee

In_the

JUN 15 1981

¢L. STEVAS,

arat

Supreme Court of the Unit

Ocroser Term, 1980. -

ARTHUR A. ALLEN, PETER A. DIFFENDERFER,

KEVIN T. KERR, WILLIAM P. KOLANDER,

DEREK S. SHERMAN, SPENCER C. SHERMAN,

AND GARY L. THERIAQUE,

PETITIONERS,

7)

UNITED STATES OF AMERICA,

RESPONDENT.

Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit.

Josern S. Oren

Maatin G. WEINBERG,

Juprrn H. Mizner,

Oren! & WrINBERC,

10 Post Office Square,

Boston, Massachusetts 02109.

(617) 227-3700

Attorneys for Petitioners Peter A.

Diffenderfer, Kevin T. Kerr,

Derek S. Sherman, Spencer C.

Sherman and Gary L. Theriaque

Davin L. SLapEn,

555 Oregon National Building,

610 S.W. Alder,

BATEMAN & SLADE, INC. BOSTON, MASSACHUSETTS

Question Presented.

Whether law enforcement use of technologically sophisti-

cated vision-enhancing devices to conduct intensive, extensive

surveillance of the interior areas of secluded, private property,

manifesting every indicia of privacy short of enclosure within

an opaque bubble, constitutes a search within the meaning of

the Fourth Amendment, where it was only the use of those in-

trusive instruments that enabled the officers to make informa-

tion-producing observations that could not have been made by

the unassisted eye from any vantage point outside the proper-

ty?*

* In addition to petitioners, Gerald E. Maggiacomo was initially a party to

the proceedings below. His appeal was dismissed pursuant to his motion

prior to the court’s decision.

Table of Contents.

Introductory statement 2

Opinions below 4

Jurisdiction 5

Constitutional provision involved 5

Statement of the case 6

Reasons why the writ should be granted 10

Conclusion 19

Appendices: follows page 19

Appendix A — Opinion of the United States Court of

Appeals for the Ninth Circuit la

Appendix B — Order of the United States Court of

Appeals for the Ninth Circuit 22a

Table of Authorities Cited.

CAsEs.

Brown v. Texas, 443 U.S. 47 (1979) 16

Camara v. Municipal Court, 387 U.S. 523 (1967) 10

Coolidge v. New Hampshire, 403 U.S. 443 (1971) 14n, 15n

Delaware v. Prouse, 440 U.S. 648 (1979) 10

Hester v. United States, 265 U.S. 57 (1927) 14n

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

4, 10, 13n, 14n, 16 et seq.

Marshall v. Barlow’s, Inc., 436 U.S. 307 (1978) 10, 13n

Michigan v. Tyler, 436 U.S. 499 (1978) 10n

Mincey v. Arizona, 437 U.S. 385 (1978) 10n, 12n, 14

ii TABLE OF AUTHORITIES CITED.

Rakas v. Illinois, 439 U.S. 128 (1978) 15n, 18n

Terry v. Ohio, 392 U.S. 1 (1968) 10n, 14n, 16, 17

United States v. Chadwick, 433 U.S. 1 (1977) 2, 16n

United States v. Taborda, 491 F.Supp. 50 (E.D. N.Y.),

vacated and remanded on other grounds, 635 F.2d

131 (2d Cir. 1980) 17

United States District Court for the Eastern Division of

Michigan, Southern Division, 407 U.S. 297 (1972) 16

United States ex rel. Gedko v. Heer, 406 F.Supp. 609

(W.D. Wis. 1975) 15n

CONSTITUTIONAL PROVISION.

United States Constitution

Fourth Amendment 2, 3, 4, 5, 10 et seq.

STATUTES.

18 U.S.C. § 2 4n

21 U.S.C.

§ 841 4n

§ 846 4n

§ 960 4n

§ 963 4n

28 U.S.C. § 1254(1) 5

No. <- .

In the

Supreme Court of the United States.

Ocroser Term, 1980.

ARTHUR A. ALLEN, PETER A. DIFFENDERFER,

KEVIN T. KERR, WILLIAM P. KOLANDER,

DEREK S. SHERMAN, SPENCER C. SHERMAN,

anp GARY L. THERIAQUE,

PETITIONERS,

v.

UNITED STATES OF AMERICA,

RESPONDENT.

Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit.

Arthur A. Allen, Peter A. Diffenderfer, Kevin T. Kerr,

William P. Kolander, Derek S. Sherman, Spencer C. Sherman

and Gary L. Theriaque petition for a writ of certiorari to

review the judgments of the United States Court of Appeals for

the Ninth Circuit entered in this case on November 5, 1980

and April 16, 1981.

2

Introductory Statement.

Does the future course of the Fourth Amendment lie in a

steady recession in the face of advancing technology until it

vanishes in an Orwellian sea of sophisticated surveillance de-

vices capable of intruding into any place at any time? Or will

it continue to be construed “to safeguard fundamental values

which . . . far outlast the specific abuses which gave it birth”

(United States v. Chadwick, 433 U.S. 1, 9 (1977))? The

choice — and the fate of the Fourth Amendment — is the

critical issue presented in this petition.

“Suspecting” that secluded private coastal property — bear-

ing every possible indicia of an effort to maintain privacy short

of enclosing its 200 acres within an opaque bubble — might be

the site of an attempt to import marijuana, law enforcement

officers photographed its interior with cameras equipped with

telephoto lenses during aerial surveillance flights and con-

ducted prolonged (more than three weeks), extensive (up to 24

hours/day) surveillance with night scopes, night goggles and

spotting scopes from a vantage point in the hills 1%-2 miles

away. All of these activities were initiated without warrants

and without a factual predicate rising to the level of reason-

able suspicion, much less probable cause.

Faced with the conflict between an individual's efforts to

maintain his privacy and criminal investigative use of in-

trusive, sophisticated sense-enhancing devices capable of obvi-

ating that privacy without physical intrusion, the court below

avoided the complex unresolved problems in establishing and

applying standards for determining when the use of such de-

vices to obtain and record information, otherwise unobtain-

able through observations by the unassisted eye from any point

outside the property, is an intrusicn proscribed by the Fourth

Amendment as constitutionally “unreasonable.” Relying pri-

marily on the technological availability of sense-enhancing

3

devices capable of routinely penetrating virtually any

unenclosed area from above, the routine Coast Guard aerial

presence in the area, and a conclusion that petitioners should

have expected the officers to use readily available intrusive

devices from the air, the court held that the intrusions did not

violate a “reasonable expectation of privacy” in regard to the

places, objects and activities monitored and recorded, With-

out violation of a reasonable expectation of privacy, the intru-

sions were not “searches” subject to any constitutional regula-

tion. Accordingly the court did not reach the question of

whether they were constitutionally “unreasonable.”

This ill-conceived analysis eviscerates the independence of

the Fourth Amendment, leaving the scope of its protection of

individual privacy to the virtually unfettered discretion of the

government, constrained only by the limits of technology and

any self-imposed restrictions it voluntarily deems appropriate.

The spectre of unregulated monitoring and recording of the

most intimate private activities by an omniscient, omnipresent

“big brother,” now only within the realm of science fiction,

can become a reality when scientific and technological ad-

vances produce sense-enhancing — indeed, sense-replacing —

devices able to penetrate the densest opaque material and

monitor and record activities and objects within any fully

enclosed structure, from any exterior location, with or without

light.

Applying the rationale employed below, once such devices

are readily available and the government is routinely in a posi-

tion to use them, an individual who should be aware of this

availability and potential has no reasonable expectation of

privacy from their unregulated use. Accordingly, their use

does not constitute a search within the meaning of the Fourth

Amendment and the government need not justify its actions as

constitutionally “reasonable.” It is free to ignore any barriers

placed in its path and to intrude anywhere at will, including

the heretofore inviolate innermost recesses of the home.

4

In disavowing the imposition of any objective limitations on

unregulated government intrusions without regard for the

technological feasibility of transgressing such established

limits, the decision below overrules, sub silentio, this Court's

decision in Katz v. United States, 389 U.S. 347 (1967), and

conflicts with the well established analysis guiding this Court's

interpretation of the Fourth Amendment, Its flawed analysis

must be rejected now if, in the future, privacy is not to become

merely an extinct remembrance of the past.

Opinions Below.

On March 28, 1978, petitioners were charged in a supersed-

ing indictment with various marijuana-related offenses in the

United States District Court for the District of Oregon, arising

from the December 31, 1977 seizures of a large quantity of

marijuana from secluded, private coastal property and on the

ocean. After lengthy pre-trial hearings, petitioners’ motions

to suppress were denied in a perfunctory order, issued without

findings of fact or conclusions of law. The case was subse-

quently transferred to the Northern District of California.

Following a jury-waived trial before Judge Samuel Conti,

petitioners were found guilty and sentenced as set forth below

inn.*. Their convictions were affirmed by the United States

* All petitioners were convicted of conspiracy to possess with intent to

distribute marijuana (count 1) and possession with intent to distribute mari-

juana (count 3), in violation of 21 U.S.C. §§ 841, 846, and 18 U.S.C, § 2—

with the exception of petitioner Kolander who was convicted on count 3 on-

ly. Petitioner Allen was also convicted of conspiracy to import marijuana in

violation of 21 U.S.C. §§ 960, 963 (count 2).

Allen was sentenced to 5 years incarceration with a special parole term of 5

years on each count, with the sentences on counts 1 and 3 to be served con-

Court of Appeals for the Ninth Circuit on November 5, 1980,

The court's opinion is reported at 633 F.2d, 1282, and

reproduced in the Appendix at pp. la-2la. In an order of

April 16, 1981, the court denied a petition for rehearing and

suggestion for rehearing en banc and amended certain para-

graphs of its original opinion. The order, not yet officially re-

ported, is reproduced in the Appendix at pp. 22a-24a.

Jurisdiction.

The original judgment of the Court of Appeals was entered

on November 5, 1980. A petition for rehearing and suggestion

for rehearing en banc was denied on April 16, 1981. The

jurisdiction of this Court is invoked pursuant to 28 U.S.C.

§ 1254(1).

Constitutional Provision Involved.

The Fourth Amendment to the United States Constitution

provides:

secutively, and the sentence on count 2 to be served concurrent with that of

count 1,

Derek Sherman was sentenced to consecutive terms of 5 years incarcera-

tion with a special parole term of 5 years on counts 1 and 3,

Diffenderfer was sentenced to consecutive term of 4 years incarceration

with a special parole term of 5 years on counts 1 and 3.

Kerr was sentenced to consecutive terms of 5 years incarceration with a

special parole term of 5 years on counts 1 and 3.

Theriaque was sentenced to consecutive terms of 3 years incarceration

with a special parole term of 5 years on counts 1 and 3.

Spencer Sherman was sentenced to consecutive terms of 3 years incarcera-

tion with a special parole term of 3 years (count 1) and 2 years incarceration

with a special parole term of 3 years (count 3).

Kolander was sentenced to a term of 4 years incarceration with a special

parole term of 2 years on count 3.

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

houses, papers, and effects, against unreasonable sear-

ches and seizures, shall not be violated, and no Warrants

shall issue, but upon probable cause, supported by Oath

or affirmation, and particularly describing the place to be

searched, and the persons or things to be seized. ,

Statement of the Case. *

In the summer of 1977, petitioner Arthur Allen purchased

200 acres of coastal property (referred to as the Allen ranch)

near Coos Bay, Oregon. It ran parallel to the ocean, but was

separated from it by a narrow strip of federal property admini-

stered by the Bureau of Land Management (BLM) (A. 2a).

The ranch was private and secluded: fenced, surrounded by

thick underbrush, and located in a valley rendering the in-

terior of the property not visible to the unassisted eye, even

from a vantage point in the hills to the east (A. 2a-3a; Tr. 103,

105, 367-369). To further enhance its privacy, Allen put up a

gate across the main access road to the ranch, posted “No

Trespassing” signs around its perimeter, and, unlike the prior

owner, refused to permit local fishermen and hunters to cross

the ranch to reach the BLM land on the ocean side (A. 2a).

On November 6, 1977, the U.S. Customs Bureau opened a

new office in Coos Bay. Shortly thereafter, the officer in

charge, Larry Gano, began an investigation of Allen — in-

* The district court made no findings of fact in denying petitioners’ mo-

tions to suppress. Petitioners submit that the facts set forth in the opinion

and amendments of the Court of Appeals are not complete. Accordingly,

this statement of facts is based on the transcript of the suppression hearing,

referred to as “Tr.,” as well.

7

spired by complaints of non-access from local residents (id.).

However, Gano had suspicions of marijuana importation from

the outset, which he communicated to the local sherriff’s of-

fice and the Drug Enforcement Administration (DEA) be-

tween November 6-21, 1977 (Tr. 26, 27, 109-110).*

On November 22, 1977, Gano arranged with the Coast

Guard for a helicopter overflight of the ranch** in order to

observe and photograph what he could not see from outside

the property (A. 2a; Tr. 16, 30, 112, 114). During the flight

on December 5, he took photographs with a camera equipped

with a telephoto lens. When blown up, they disclosed a new

extension on the barn and large wide tracks to and from the

barn (A. 2a-3a).

As a result of these observations, Gano intensified his inves-

tigation on the following day by accompanying two BLM offi-

cers seeking an easement across the property to the Allen

ranch. He did not disclose his identity (A. 3a). Gano’s pur-

pose was concededly criminal investigative — to search for

evidence, decide if his investigation should be intensified, and

the feasibility of perimeter surveillance (Tr. 123-125,

128).

His suspicion increased by his observations (A. 3a), Gano

implanted seismic sensors (devices permitting the monitoring

of vehicular traffic from a distance (id.)) in and around the

ranch two days later. On that date he also instituted nearly

constant surveillance of the ocean, beach, and interior por-

tions of the ranch by officers situated in the hills approximate-

ly 1%-2 miles east of the ranch and using vision-enhancing

* His investigation during that period revealed only that Allen had no

criminal record, had a California driver's license and address, and drove a

car registered in California to another individual (Tr. 105, 106, 113-115).

** The Coast Guard routinely flew over or near private coastal property

on training flights and for other purposes.

devices — including night vision scopes and goggles as well as

spotting scopes (A. 3a; Tr. 44-45, 169-170).

Increased vehicular activity was observed on the night of

December 18 (A. 3a-4a); the next day Gano met with the

sheriff and Coast Guard officials to develop a contingency

plan to interdict the suspected marijuana importation (A. 4a).

On December 21, Gano made a second helicopter-photo-

graphy overflight. Although he observed a van on the ranch

with binoculars, it was not until the photographs were de-

veloped and blown up that he saw a semi-trailer parked

beneath the trees (A. 4a; Tr. 54-55). As a result of that obser-

vation, surveillance was stepped up to 24 hours/day and the

sheriff's office and Coast Guard were put on alert (A. 4a;

Tr. 181-182). A third flyover, without photography, was con-

ducted on December 24 (Tr. 182, 934).

On December 29, at approximately 10:00 p.m:, the sur-

veillance team saw lights flashing in the ocean and the sil-

houette of an unlighted vessel just offshore (A. 4a). An hour

later Gano alerted the Coast Guard and sheriff's office to ac-

tivate the pre-arranged plan (A. 4a), and, shortly before mid-

night, the assembled officers were divided into two teams — a

beach team to enter from the parking lot on the beach side of

the ranch, the other to wait outside the inland gate (Tr. 63-65,

199). Before the instructions could be followed, the boat was

observed drifting off (Tr. 65-66). Nonetheless, pursuant to

Gano’s instructions, the beach team entered and conducted a

two-hour search of the parking lot (A. 4a).* Assuming that an

offload would be attempted the following night, Gano

directed all personnel to regroup then (A. 4a).

The beach team reentered the Allen parking lot by 9:30 p.m.

on December 30 (Tr. 209-210). At approximately 10:30 p.m.,

* They found fresh orange peels and suspected amphibious vehicle tracks,

and smelled the odor of diesel fuel (Tr. 204-205, 340-342, 382).

9

a vessel without lights was observed just offshore by the sur-

veillance team in the hills (A. 4a). At 1:00 a.m., the beach

team observed an amphibious vehicle on the beach; it entered

the water and proceeded to the ship shortly thereafter (id.).

Convinced that a full-scale search would occur later

(Tr. 219-220), Gano went to a private residence to telephone

the Coast Guard and effectuate the contingency plan. He also

telephoned the DEA (A. 4a; Tr. 216).

After the first amphibious vehicle returned to shore at 3:00

A.M., the beach team heard the sound of boxes being unloaded

and people congratulating each other (A. 4a-5a). When the

vehicles returned from a second trip to the vessel at 4:45 a.M.,

a flare was ignited, signalling the start of the operation: heli-

copters moved in with their “night sun” search lights; teams of

officers swarmed all over the property (A. 5a; Tr. 907). The

people on the beach scattered. The parking lot — containing

the two amphibious vehicles, a semi-trailer and a van (all sta-

tionary and unoccupied) — was secured (A. 5a). Although

tightly sealed and in a fully guarded area, one of the metal

boxes (boxes had been found in the trailer and on the amphi-

bious vehicles and the beach) was cut open, disclosing mari-

juana (A 5a). The vehicle interiors and their contents were

searched .4. 5a). At the same time, also pursuant to the con-

tingency plan, the residence on the ranch was secured and

searched for suspects (A. 5a). Within the next few hours a

vessel was seized offshore.

On the suspicion that not all the participants had been ar-

rested,* a law enforcement bulletin was issued shortly after

the initial raid to check anybody in the vicinity of the Allen

ranch who was wet/cold and without identification (A. 5a-

* Petitioner Diffenderfer, the only person found on the parking lot, had

been immediately arrested. Other suspects had been arrested in the woods

and in other areas of the beach (A. 5a).

10

6a). Petitioners Kolander, Kerr, Allen, and Spencer Sherman

were arrested during this roundup.

Reasons Why the Writ Should Be Granted.

The Fourth Amendment safeguards “‘a right of the people

which is basic to a free society’” (Camara v. Municipal Court,

387 U.S. 523, 528 (1967)) —“* the privacy and security of in-

dividuals against arbitrary invasions by government of-

ficials.’"” Marshall v. Barlow’s, Inc., 436 U.S. 307, 312 (1978).

See, also, Delaware v. Prouse, 440 U.S. 648 (1979). This peti-

tion raises critical questions concerning the scope of that basic

right — and its future — in a technologically sophisticated

society.

In Katz v. United States, 389 U.S. 347 (1967), this Court re-

focused the inquiry used to determine when an intrusion is a

search subject to constitutional regulation. Holding that the

electronic interception and recording of telephone conversa-

tions made from a public phone booth, without physical intru-

sion into the booth, constituted a search subject to regulation

by the Fourth Amendment, it rejected the requirement of a

physical intrusion into a particular enclosure designated a

“constitutionally protected area.” A search was defined as a

government intrusion that “violated the privacy upon which

{an individual] justifiably relied. . .” Id., at 353.

In the last 13 years this Court has analyzed the scope and

content of this “reasonable expectation of privacy” in varying

contexts.* It has not yet addressed its parameters in the situa-

*See, e.g., Terry v. Ohio, 392 U.S. 1 (1968) (stop and frisk on street);

Mincey v. Arizona, 437 U.S. 385 (1978) (residential search/ homicide investi-

gation); Michigan v. Tyler, 436 U.S. 499 (1978) (residential search/arsem in-

vestigation).

1]

tion presented by this case — concededly “extensive” (A. 9a)

warrantless surveillance of secluded private property for

criminal investigative purposes conducted — without physical

trespass — by means of officers equipped with sophisticated

sense-enhancing devices. These surveillances included heli-

copter overflights during which the officer made observations

with binoculars and photographed the area with a camera

equipped with a telephoto lens. As recognized by the court

below, not only was he unable to obtain any of the informa-

tion he derived during the flights from unassisted visual

surveillance from any point, either on land or at sea, but, in

addition, the blown up photographs revealed information he

had not obtained during his own airborne observations

(A. 9a-10a). The government also conducted intensive visual

surveillance of the interior areas of the property from a com-

mand post in the hills approximately 1-2 miles away by of-

ficers equipped with night scopes, night goggles and tele-

scopes. Again the equipment afforded observations not visible

to the unassisted eye from any position outside the property.

Despite the success of the well manifested indicia of privacy

in preserving the interior of the Allen ranch against intrusion

from the unassisted eye’s seeking to observe from any land- or

sea-based vantage point outside the property, the court below

held that the technologically assisted surveillances here “did

not violate any reasonable expectation of privacy” (A. 9a),

and, therefore, were not searches subject to the restrictions of

the Fourth Amendment. The court concluded that there was

no objective reasonable expectation of privacy, focusing first

on the site of the surveillance as unenclosed and, therefore,

like virtually all such areas today, subject to airborne surveil-

lance utilizing the readily available photographic vision-en-

hancing devices produced by today’s technology. It also relied

on the government’s routine use of helicopter flights over the

area, providing a position from which to conduct these air-

12

borne intrusions. Finally, it found the suspicion of future

unlawful activity, justifying the concentration of surveillance

at that area, to be relevant.* Petitioners had no reasonable

subjective expectation of privacy either. They should have

known that the government routinely flew over the area.

Moreover, as coastal residents, they should also have been

aware that such flights involved sea coast patrol and surveil-

lance. Accordingly, they could expect that the officers would

avail themselves of sense-enhancing equipment.

The analysis failed to consider whether the Fourth Amend-

ment protects the right to have certain expectations of privacy

as well as the expectations themselves, or whether it affords a

degree of protection from arbitrary government intrusions at

the discretion of the officer in the field that cannot be judicial-

ly or governmentally abrogated — thereby creating an expec-

tation of privacy that remains reasonable regardless of the

availability and public awareness of intrusive devices capable

of transgressing those objectively established limits.

It also ignored the degree and intensity of intrusiveness ef-

fected by the probing devices employed here. They were not

simply sense-enhancing devices; rather, they served as sense-

replacement instruments, replacing the officers’ natural vision

with a superior, artificial viewing potential providing the sole

* Petitioners submit that the reliance on a suspicion of future unlawful ac-

tivity as relevant to an assessment of the existence of a reasonable expectation

of privacy is totally misplaced. While factual support for a conclusion of

unlawful activity is relevant to determining whether a search is constitu-

tionally reasonable, it bears no relationship, logical or otherwise, to the in-

itial determination of whether an intrusion is a search within the meaning of

the Fourth Amendment — a question which focuses on the existence of a

reasonable expectation of privacy and not whether there is a reasonable basis

for intrusion into that expectation. Moreover, reliance on this criteria con-

flicts with this Court's ruling in Mincey v. Arizona, 437 U.S. 385, 391 (1978),

that an individual does not forfeit a reasonable expectation of privacy in a

place because he has committed an offense.

13

predicate for the observations their natural senses were totally

unable to obtain, absent physical intrusion.

Petitioners submit that in holding that the technological

capability and availability of intrusive devices, law enforce-

ment ability to readily utilize those instruments, and the in-

dividual’s awareness of the existence, scope and availability of

this intrusive potential* negated petitioners’ reasonable expec-

tation of privacy despite their manifestly successful efforts to

exclude the unaided senses from the areas surveilled, the de-

cision below not only elevates the interest in effective law en-

forcement above the individual rights protected by the

Amendment — in disregard of this Court’s warning that “the

mere fact that law enforcement may be made more efficient

* The analysis employed below in examining the individual's subjective ex-

pectation of privacy is misdirected. First, subjective expectation is one prong

of a two-part test. The question is not whether the subjective expectation is

reasonable, but whether it «xists; whether a person “ha/[s] exhibited an actual

(subjective) expectation of privacy ....” Katz v. United States, supra, 389

US. at 361 (Harlan, J., concurring) (emphasis added). Petitioners submit

‘Sat a subjective expectation was unequivocally manifest. Moreover, even if

the reasonableness of a subjective expectation were relevant, the analysis

below is flawed.

In holding that if an individual should be aware that his privacy can and

might be invaded he can have no reasonable subjective expectation of

privacy, the court has left the scope of the protections of the Fourth Amend-

ment to the discretion of the government. By publicizing its ability and in-

tent to intrude, the government could nullify any expectation of privacy and

with it, the protections of the Fourth Amendment. Finally, the analysis also

ignores this Court’s recognition that an individual may retain an expectation

of privacy reasonable in regard to one type of intrusion that is not reasonable

in regard to another. Just as an individual may hold a reasonable expecta-

tion of privacy in regard to intrusion by government agents but not in regard

to intrusion by others (Marshall v. Barlow's, Inc., 436 U.S. 307, 315-316

(1978)), so here, petitioners submit they had a reasonable expectation that

the Coast Guard helicopters would not serve as platforms for telephoto-

graphic anc binocular intrusions even if they could not reasonably expect

that the Coast Guard would not fly over the property during its sea coast

patrol.

14

can never by itself justify disregard of the Fourth

Amendment” (Mincey v. Arizona, 437 U.S. 385, 393 (1978))

— but, critically, employs an analysis which effectively

reduces the Fourth Amendment to a nullity — essentially

limiting its protection of individual privacy and security tc

that which the government is willing to bestow. Bounded on-

ly by the limits of technological development and the volun-

tary exercise of its own discretion, the government is free to ig-

nore even the most determined efforts to maintain objects and

activities private and away from prying eyes if the state of

technology is known to permit it to do so.

Today, the court below limits itself to removing unenclosed

areas subject to technologically feasible surveillance from

those intrusions regulated by the Fourth Amendment. Al-

though it implies that sense-enhanced invasion of a dwelling is

different from such intrusion, * the validity of its distinction is

* Petitioners submit that in light of the extensive measures taken to ensure

the privacy of the unenclosed interior area of the ranch, the court below

placed excessive reliance on its unenclosed nature as vitiating an expectation

of privacy. It is well settled that the protections of the Fourth Amendment

are not limited to the interior of a physical structure. It safeguards an in-

dividual’s reasonable expectation of privacy wherever it may be — in a

public phone booth (Katz v. United States, supra); on the street (Terry v.

Ohio, supra); in his car (Coolidge v. New Hampshire, 403 U.S. 443 (1971)).

While this Court has stated that the protections of the Fourth Amendment

do not extend to sights in the “open fields” (Hester v. United States, 265 U.S.

57 (1927)), in light of the subsequent analytical shift from sole reliance on

concepts of trespass and protected areas to a focus on reasonable expectations

of privacy as determinative of the scope of the Fourth Amendment (see, e.g.,

Katz v. United States, supra), petitioners submit that the “open fields” doc-

trine can no longer be found to stand for the unadorned proposition that

unless there has been an intrusion into the area traditionally defined as the

“curtilege” of the home, there has been no search within the meaning of the

Fourth Amendment. Today, Hester must be construed as meaning only that

“open fields” were not traditionally areas in which individuals harbored a

reasonable expectation of privacy but that a determination of the scope of the

protections of the Fourth Amendment must turn on close scrutiny of all the

15

negated by extending the logic of its analysis. If the

technological feasibility and availability of an intrusion and

individual awareness of that intrusive capacity are the criteria

determining whether an intrusion is subject to the strictures of

the Fourth Amendment, as tomorrow’s scientific and techno-

logical advances produce and make commonplace sense-

enhancing/replacing instruments with well-publicized in-

trusive capabilities far beyond those currently available, the

individual’s reasonable expectation of privacy — and the type

of government intrusions within the reach of the Fourth

Amendment — will shrink accordingly. The final Orwellian

vision will become constitutionally permissible with the

development of visual and aural monitoring and recording de-

vices with a known ability to intrude into the innermost

recesses of the home without physical penetration — regard-

less of any measures employed to preclude such intrusion. The

last traditional inner sanctum of privacy will disappear, leav-

facts, including the locus of the search. The phrase “open fields,” like the

word “automobile,” is not “a talisman in whose presence the Fourth Amend-

ment fades away and disappears.” Coolidge v. New Hampshire, supra, 403

U.S. at 461-462. It may remain the shorthand term used when an intrusion

on private property outside the traditional “curtilege” is found to be constitu-

tionally permissible, but it can no longer mean that all such intrusions are, by

definition, constitutionally permissible. See, e.g., United States ex rel.

Gedko v. Heer, 406 F.Supp. 609 (W.D. Wis. 1975).

Examining the facts here, petitioners submit, compels the conclusion that

the secluded interior of the privately-owned Allen ranch was not a constitu-

tionally unprotected “open field.” As this Court noted in Rakas v. Illinois,

439 U.S. 128, 143-144 n.12 (1978), “[o}ne of the main rights attaching to

property is the right to exclude others, . . . and one who owns. . . property

will in all likelihood have a legitimate expectation of privacy by virtue of this

right to exclude.” Since the interior here was not exposed to the

technologically unassisted view of the observer outside the property, and

since the ranch was fenced and posted with “No Trespassing” signs, the ex-

pectation of privacy arising from the right to exclude remains intact and the

technologically-enabled intrusion into that area must be defined as a search.

16

ing the individual without an enclave he may reasonably ex-

pect to maintain as private — unless the government informs

him that he will be permitted to do so.

Petitioners submit that it flies in the face of law, logic and

policy to allow the government the discretion, bounded only

by the limits of technology, to define the scope of a provision

expressly intended to restrict and regulate its own actions. As

a provision mandated to effectuate fundamental individual

rights, the Fourth Amendment must possess, and has been

construed by this Court as possessing, substantive independent

content.

It is beyond dispute that in determining whether a search or

seizure is “reasonable,” law enforcement officers are not per-

mitted to define the constitutionality of their own actions. The

Fourth Amendment, as interpreted by this Court, imposes ob-

jective criteria by which the officer’s actions are judged. See,

e.g., Terry v. Ohio, 392 U.S. 1 (1968); Katz v. United States,

supra; Brown v. Texas, 443 U.S. 47 (1979). As this Court

stated in United States District Court for the Eastern District

of Michigan, Southern Division, 407 U.S. 297, 317 (1972),

“unreviewed executive discretion may yield too readily to

pressures to obtain incriminating evidence and overlook

potential invasions of privacy and protected speech.”* For

the same reasons, the determination as to when an intrusion is

to be defined as a search cannot be left to the discretion of the

investigating officer, but must be defined by objective criteria.

Indeed, this Court has so held in Katz v. United States, supra.

* In the context of discussing the warrant requirement, this Court has often

emphasized the necessity for interposing a neutral magistrate between the of-

ficer and the citizen to provide a “more reliable safeguard against improper

searches” than the judgment of the investigating officer, Unitec States v.

Chadwick, 433 U.S. 1 (1977). Again, this demonstrates that the scope of the

Fourth Amendment's protections cannot be left to the discretion of the of-

ficers in the field.

17

This Court further held in Katz that the Fourth Amend-

ment provides the right to hold certain expectations of privacy

inviolate from unregulated government intrusion and estab-

lishes a degree of protection which cannot be abrogated by the

technological capability to do so or individual awareness of

that intrusive potential. Thus, in Katz, although the govern-

ment undeniably possessed the technological capability of

intercepting oral communications without physically invading

the locations from which the communications were either in-

itiated or received, and although this potential was public

knowledge, preservation of the fundamental rights and liber-

ties protected by the Fourth Amendment mandated the im-

position of limitations on govermental use of that intrusive

device. Like a traditional physical intrusion into a home, elec-

tronic interception of oral communications constituted a

search within the meaning of the Fourth Amendment which

must be regulated by the strictures of reasonableness and the

warrant clause. See, also, United States v. Taborda, 491

F.Supp. 50, 53 (E.D. N.Y.), vacated and remanded on other

grounds, 635 F.2d 131 (2d Cir. 1980); Terry v. Ohio, supra

(rejecting suggestion that a “frisk” is not a “search” within the

meaning of the Fourth Amendment and discussing the in-

dividual’s right to expect such intrusion not to be lightly

undertaken and the need for establishing standards governing

police in conducting frisks).*

* Examining the surveillance conducted here in light of the principles,

policies and standards set forth by this Court in Katz v. United States, supra,

and its progeny, petitioners submit that they present paradigmatic examples

of the type of law enforcement intrusions which must be defined as

“searches” within the meaning of the Fourth Amendment if the scope of its

mandated protections is not to be defined solely in terms of the current state

of technology.

The Allen ranch manifested all indicia of efforts to maintain the privacy of

activities conducted within its interior and prevent intrusion by even a

18

In ignoring the existence of this objectively established right

to maintain certain expectations of privacy regardless of the

technological capability for intrusion or individual awareness

of that capability, and in employing an analysis that leaves the

government as the final arbiter of the scope and availability of

the protections of the Fourth Amendment, constrained only by

the limits of technological availability, the decision below

overrules, sub silentio, this Court's decision in Katz and should

be reversed. *

curious passerby. As the court below recognized, these measures were not

merely symbolic — they were, in fact, effective in excluding all but the

technologically enhanced eye. The subjective expectation of privacy was

manifest.

Protection of this expectation is objectively reasonable. Before law en-

forcement officers engaged in a criminal investigation can be permitted to

place an individual's activities — conducted within the confines of his own

property, an area which normally gives rise to a recognized expectation of

privacy (see Rakas v. Illinois, supra) — under intensive scrutiny ranging

from 16-24 hours/day for a three-week period, and before the government

can be permitted to conduct aerial surveillance using a camera equipped

with a telephoto lens, it must be required to submit the facts justifying its in-

trusive, pervasive conduct to a neutral magistrate. An individual should

have the right to assume that “big brother” cannot arbitrarily single him out

and monitor his activities in the interior of his own domain.

*If, as petitioners submit, the government intrusions must be deemed

searches within the meaning of the Fourth Amendment, they must be found

to be classically unreasonable. The factual predicate for a finding of prob-

able cause to search was patently absent. Nor, assuming, solely for the sake

of argument, that probable cause existed, was there the slightest justification

for the failure to comply with the warrant requirement at any stage of the

series of warrantless searches conducted here — including the final search on

December 31 when the officers invaded the property pursuant to a pre-

arranged contingency plan.

19

Conclusion.

For all the foregoing reasons, this petition for a writ of cer-

tiorari should be granted.

Respectfully submitted,

JOSEPH S. OTERI,

MARTIN G. WEINBERG,

JUDITH H. MIZNER,

OTERI & WEINBERG,

10 Post Office Square,

Boston, Massachusetts 02109.

(617) 227-3700

Attorneys for Petitioners Peter A.

Diffenderfer, Kevin T. Kerr,

Derek S. Sherman, Spencer C.

Sherman and Gary L. Theriaque

DAVID L. SLADER,

555 Oregon National Building,

610 S.W. Alder,

Portland, Oregon 97205.

(503) 248-0731

Attorney for Petitioner

Arthur A. Allen

DANIEL A. BACON,

Del Webb Building,

Suite 606,

2220 Tulare Street,

Fresno, California 93721.

(209) 268-8531

Attorney for Petitioner

William P. Kolander

la

Appendix A.

UNITED STATES of America,

Plaintiff-Appellee,

v.

Arthur A. ALLEN, Peter A. Diffenderfer, Kevin T. Kerr,

William P. Kolander, Derek S. Sherman, Spencer C. Sher-

man, and Gary L. Theriaque, Defendants-Appellants.

Nos. 79-1059, 79-1060 and 79-1063

to 79-1067.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted Dec. 10, 1979.

Decided Nov. 5, 1980.

Rehearing Denied Dec. 31, 1980.

Martin Weinberg, Boston, Mass., Marcus S. Topel, San

Francisco, Cal., argued for defendants-appellants; Oteri &

Weinberg, Boston, Mass., Robert F. Collins, Troy & Collins,

Dorchester, Mass., on brief.

David Smith, Crim. Div., Washington, D. C., for plaintiff-

appellee.

Appeal from the United States District Court for the North-

ern District of California.

Before KenNepy, TANG and ALarcon, Circuit Judges.

KENNEDY, Circuit Judge.

After customs interdiction of an amphibious operation to

import over eight tons of marijuana, the participants were

2a

convicted of federal offenses. These appeals followed. Appel-

lants allege the prosecution used evidence resulting from

unlawful surveillance and illegal seizures and arrests, that the

evidence was insufficient, and that the sentences were im-

proper. We reject these contentions and affirm.’

I. Facts

In the summer of 1977, Arthur Allen purchased 200 acres of

coastal property near Coos Bay, Oregon. The property was

located in a secluded area. It came to be known as the Allen

Ranch. The ranch was parallel to the ocean for about one

mile, but it was separated from the beach by a narrow strip of

federal property. Shortly after purchasing the property, Allen

posted “No Trespassing” signs at points around the perimeter

of the property and constructed a gate across the main access

road to the ranch. Allen also terminated the previous owner's

practice of permitting local fishermen and hunters to cross the

property to reach the federal property on the ocean side.

On November 6, 1977, the United States Customs Bureau

opened an office in Coos Bay. The officer in charge, Larry

Gano, almost immediately became aware of complaints from

local residents who had been refused permission to cross the

Allen Ranch. A check on Allen’s background led Gano to sus-

pect that the ranch might be a drug-smuggling base. On De-

cember 5, 1977, Gano accompanied members of the Coast

Guard on a helicopter flight past the ranch. According to the

Government, the Coast Guard routinely flew over private

property on the Oregon coast for training flights and other

purposes, including law enforcement. Using a telephoto lens,

'The related appeal of Gerald E. Maggiacomo, 79-1062 has been dis-

missed on motion of the appellant.

3a

Gano took photographs of the ranch property. The photos re-

vealed unusually wide tire tracks leading to and from a barn

and a new extension built on the barn.

The next day, Gano accompanied two officials of the

Bureau of Land Management (BLM) to the ranch. In

response to the number of complaints they had received from

fishermen and hunters, the officials sought to obtain a public

easement across the ranch. As the men approached the ranch

house, Allen appeared at the door and told them to leave. Af-

ter one of the BLM officers identified himself and stated that

they wanted to talk about obtaining a public easement across

the property, Allen allowed them to approach. When Allen

asked to see their identification, the BLM officials produced

theirs, but Gano, not wanting to reveal his identity as a cus-

toms official, said his was at home. While on the property,

Gano noticed that it was not being used as a farm and that

Allen’s hands were not calloused.

Because his observations increased his suspicion, Gano de-

cided to monitor vehicular activity in and out of the property

by implanting seismic sensors at the entrances. The sensors

detect vibrations which vehicles cause as they pass by. Ac-

cording to the Government, they are capable of distinguishing

people and animals from vehicles. These sensors emit a series

of beeps recorded or monitored at a unit some distance away.

Gano also set up a command post in the hills directly east of

the Allen Ranch. While planting the sensors on federal land

near the ranch, a customs officer noticed tire tracks 78 inches

wide running from a river to a road which led to the ranch.

The tracks were wider than those made by a dune buggy or

other such vehicles. Beginning on December 8, 1977, the

ocean, beach, and a small portion of the ranch were kept

under nearly constant surveillance by officers using a variety

of vision-enhancing devices. On the night of December 18,

the officers noticed a significant increase in vehicular activity

4a

on the ranch; although they could not actually see any

vehicles, they could see the glare of moving lights.

The next day, Gano, strongly suspecting that a conspiracy

to import marijuana was under way, met with the local sheriff

and Coast Guard officials to develop a contingency plan for in-

terdicting the operation. Two days later, on December 21,

Gano made a second helicopter overflight. An officer looking

through binoculars saw a large van and semi-trailer parked on

the property. As a result of this discovery, Gano put the

Sheriff's department and Coast Guard on the alert and inten-

sified the surveillance.

At approximately 10:00 p.m. on December 29, after the sur-

veillance team saw light signals passing between the beach and

an unlighted vessel positioned just offshore, Gano alerted the

Coast Guard and Sheriff's department to prepare for action

pursuant to the pre-arranged plan. It soon appeared, how-

ever, that the suspected smuggling operations had been called

off due to bad weather. Some of the officers, at Gano’s re-

quest, then entered Alien’s property and searched a graveled

clearing, described as a “parking lot,” on the west end of the

ranch. According to the Government, the officers found

nothing of any use to the investigation. Assuming that the

vessel would attempt to offload the following night, Gano di-

rected all personnel to regroup then.

At approximately 10:30 p.m. on December 30, the officers

at the command post saw an unlighted vessel just offshore,

near the Allen property. At approximately 11:45 p.m. a team

stationed by the beach saw a flash of light from the vessel. At

1:00 a.m. the beach team saw an amphibious vehicle. Shortly

thereafter it entered the water and proceeded to the ship.

Gano telephoned the Coast Guard and put the contingency

plan into effect.

At 3:00 a.m. the first amphibious vehicle returned to shore

and the beach team overheard the sound of boxes being unload-

5a

ed and people congratulating each other. At 4:45 a.m., when

the vehicles returned from a second trip out to the vessel, the

officers ignited a flare as a signal to begin the arrests. The

men on the beach were ordered to freeze, but they scattered as

soon as the flare went out. At the same time, the vessel was il-

luminated by a Coast Guard helicopter. Waiting teams of of-

ficers then swarmed the property. The beach team secured

the amphibious vehicles, the van and semi-trailer parked near-

by, and they looked into all the vehicles. The officers

discovered boxes in the trailer, on the beach, and in the am-

phibious vehicles. They cut one open and found marijuana in-

side. The officers then inventoried the contents of the trailer

and van, including unlocked luggage and attache cases. While

these operations were performed on land, the ship was tracked

by the use of radar and helicopters.

One of the arrestees told officers that there were a few un-

armed men in the ranch house. The officers then entered the

house to secure it and conducted a brief search, but found no

one inside. Apparently the officers proceeded to most parts of

the house. While there, the officers observed radio equip-

ment. They so testified at trial.

At approximately 5:00 a.m. the ship, which was about eight

miles offshore, was illuminated again by the Coast Guard heli-

copter and ordered to stop and identify itself. It identified

itself as the Cigale, of Panamanian registry. The crew of the

vessel was either in the process of, or then began, throwing

boxes over the side. The Coast Guard later boarded the vessel,

which by that time had been abandoned by its crew and was

flooded with water. The Coast Guard, fearing that the Cigale

would sink, seized some documents from it. The Coast Guard

retrieved 174 boxes from the water, two of which had burst

open revealing the contents to be marijuana.

Because it was suspected that some of the participants had

fled in the darkness, a law enforcement bulletin was issued to

6a

check anybody in the vicinity of the Allen Ranch who was wet

or cold and without identification. At approximately 11:30

a.m. on December 31 (about seven hours after some suspects

fled from the beach), a Coos Bay police officer saw Kolander

sitting in a field a few miles from the beach. The police officer

stopped to question him. The officer noticed a bulge in

Kolander’s pocket and that he was wet. The officer frisked

him, found a pair of pliers similar to a pair seen at the Allen

Ranch, and arrested him. Kerr was apprehended walkirg

along the highway in a full skindiver’s wetsuit at 5:30 p.m.

that day. Spencer Sherman was arrested at 9:00 p.m. that

evening while he was hitchhiking on the highway near the

ranch,. wearing soaking wet clothes covered with sand. Allen

was arrested at 6:00 p.m. on January 2, 1978 .approximately

37 hours after the suspects fled from the beach) after he was

seen coming out of the bushes into the road. Solely on the

suspicion engendered by his presence in the area, a deputy

sheriff ordered Allen to lie on the ground, frisked him, and

handcuffed him. He was identified by the search as Arthur

Allen and placed under formal arrest.

Shortly before appellants’ trial was to begin, the trial judge

became unavailable, and Judge Conti of the Northern District

of California was designated to hold court in the district of

Oregon. After the defense moved for change of venue based

on pretrial publicity, Judge Conti transferred the case to his

own court in the Northern District of California. All appel-

lants were convicted of possession of marijuana with intent to

distribute, in violation of 21 U.S.C. § 841(a)(1); Allen, Dif-

fenderfer, Kerr, Derek Sherman, Spencer Sherman, and

Theriaque were convicted also of conspiracy to possess mari-

juana with intent to distribute, in violation of 21 U.S.C.

§ 846; Allen was convicted also of conspiracy to import mari-

juana, in violation of 21 U.S.C. § 963.

7a

Appellants make numerous fourth amendment challenges to

their convictions. They contend that the warrantless surveil-

lance of the Allen Ranch prior to the full-scale interdiction

operation on December 31 was a series of unlawful searches.

They object to the helicopter overflights, to the use of seismic

sensors and vision-enhancing devices, and to Gano’s posing as

a BLM official. They also contend that the enforcement

operations on December 31, both on land and sea, violated the

fourth amendment, and that the subsequent arrests of

Kolander, Kerr, Sherman, and Allen were illegal. Appellants

also challenge the sufficiency of the evidence supporting their

conviction. Finally, they claim that the assignment, trial, and

sentencing proceedings were prejudicial in various ways.

II. FourtH AMENDMENT IssuEs

Under Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19

L.Ed.2d 576 (1967), the controlling question for most of the

search issues here is whether the government agents intruded

upon the defendants’ reasonable expectation of privacy. Sever-

al courts have expressed concern about unregulated use by

police of sophisticated electronic surveillance devices. See,

e.g., United States v. Curtis, 562 F.2d 1153, 1156 (9th

Cir. 1977)*; United States v. Moore, 562 F.2d 106 (lst Cir.

*“The three judges here concerned wish to make * clear that in this age of

ever-advancing sophistication in the development of electronic eaves-

dropping devices, they are not insensitive to unjustifiable intrusions on the

right of privacy, a right that is deemed to be most precious to the American

people. Law enforcement agencies should not have carte blanche power to

conduct indiscriminate surveillance for unlimited periods of time of varying

number of individuals. Our conclusion as to the propriety of the installation

and use of the transponder in this case is predicated upon [the fact that] here

the officers, prior to the installation, had been given reliable information

. . » that the plane was being utilized in the pursuit of criminal activity.”

562 F.2d at 1156.

8a

1977)*; United States v. Solis, 536 F.2d 880 (9th Cir. 1976)‘;

United States v. Cofer, 444 F.Supp. 146, 149 (W.D. Tex.

1978)°; United States v. Kim, 415 F.Supp. 1252, 1255-56

(D.Haw.1976)*; Phelan v. Superior Court, 90 Cal.App.3d

1005, 153 Cal.Rptr. 738 (1979); People v. Sneed, 32 Cal. App.

3d 535, 108 Cal.Rptr. 146 (1973) (use of helicopter to obtain

otherwise unobtainable observations of marijuana plants

growing on a twenty-acre ranch “unreasonable governmental

intrusion”). On the other hand, this circuit has indicated in

several contexts that the police may observe people or places

aided through use of a variety of tools which materially ea-

hance or assist the senses, without first having to secure a

search warrant. In United States v. Dubrofsky, 581 F.2d 208,

211 (9th Cir. 1978), for example, the court said: “Permissible

*The court in Moore expressed concern about use of electronic beepers,

and it distinguished beepers from “magnification of the observer's senses [ by]

use of a helicopter, binoculars, radar, or the like.” 562 F.2d at 112.

*The court in Solis said:

Aids such as flashlights or binoculars raised no great problem and at

one time the line between legal observation and illegal invasion was

drawn at physical trespass within a protected area. However, the use

of sophisticated modern mechanical or electronic devices and the

frightening implications of their possible development have led to

abandonment of the test of physical trespass within the protected area

and a broadening of protection to cover a “reasonable expectation of

privacy.” This we take to be the test, to be applied to the circum-

stances of each case.

536 F.2d at 882 (citations omitted).

5“[T]Jhe Court cannot countenance the potentially unlimited duration of

this type of surveillance [electronic beepers]. Citizens have a right to think

that the government will not track them for months on end by resort to the

latest electronic gadgetry.” 444 F.Supp. at 149.

*“It is inconceivable that the government can intrude so far into an in-

dividual’s home that it can detect the material he is reading and still not be

considered to have engaged in a search.” 415 F.Supp. at 1255-56.

9a

techniques of surveillance include more than just the five

senses of officers and their unaided physical abilities. Bino-

culars, dogs that track and sniff out contraband, search-lights,

fluorescent powders, automobiles and airplanes, burglar

alarms, radar devices, and bait money contribute to

surveillance without violation of the Fourth Amendment in

the usual case.” See also United States v. Solis, supra, 536

F.2d at 882 (use of trained dogs to smell marijuana inside a

trailer from place twenty-five yards away and accessible to the

public not a fourth amendment violation); United States v.

Bronstein, 521 F.2d 459, 461-63 (2d Cir. 1975) (marijuana

smelling dogs at airport); United States v. Minton, 448 F.2d

37, 38 (4th Cir. 1973) (binoculars may be used without war-

rant); People v. Superior Court, 37 Cal.App.3d 836, 112 Cal.

Rptr. 764 (1974) (use of helicopter without warrant upheld);

Dean v. Superior Court, 35 Cal.App.3d 112 (1973) (same).

We conclude that while the police surveillance in this case was

extensive, it did not violate any reasonable expectation of pri-

vacy which the defendants had with regard to the objects,

places, and activities viewed.

A. Helicopter Surveillance

The defendants’ contend, and the Government does not

show otherwise, that the objects pictured in the photographs

— the various vehicles parked on the grounds, the wide tracks

from the barn, and the new extension built on the barn —

could not be observed from any land or sea based vantage

7In light of our disposition, we need not decide which of the defendants

would have an expectation of privacy in the objects and places observed by

the Government based on their differing interests in the property and goods.

United States v. Salvucci, U.S. ____., 100 S.Ct. 2547, 65 L.Ed.2d

619 (1980); Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387

(1978).

10a

point outside the boundaries of the property. Although the

record is equivocal, it appears further that normal cameras

would not have disclosed the objects seen in the blow-ups of

the photos. From these facts defendants seek to establish a

legitimate expectation that these areas were to remain private.

We agree with the defendants that a person need not con-

struct an opaque bubble over his or her land in order to have a

reasonable expectation of privacy regarding the activities oc-

curring there in all circumstances. Given the sophistication of

electronic photographic devices today, there probably are few

unenclosed locations which could not be observed from some

airborne location. We are not presented with an attempt to

reduce, by the use of vision-enhancing devices or the incidence

of aerial observation, the privacy expectation associated with

the interiors of residences or other structures. Cf. United

States v. Taborda, 491 F.Supp. 50 (E.D.N.Y.1980) (surveil-

lance of defendants’ living room window by means of high-

powered telescope from apartment across street is search re-

quiring compliance with fourth amendment).

[{1, 2] Coast Guard helicopters routinely traversed the area

near the Allen Ranch for several reasons, including law en-

forcement. Moreover, officer Gano already had some facts

which justified a suspicion that the ranch might be used for

drug smuggling. If there is some justification for concen-

trating a surveillance on a particular place, as opposed to ran-

dom investigation to discover criminal activity, that factor is

weighed in the balance and contributes to justification for the

surveillance. This proposition is an appropriate implementa-

tion of our precedents in resolving the difficult question con-

cerning when devices can be used to aid the senses to observ

activity occurring in open or public places consistently with

the fourth amendment. See United States v. Curtis, supra,

lla

562 F.2d at 1156.° In addition, at least some courts have ap-

proved warrantless surveillance from helicopters. See, e.g.,

People v. Superior Court, supra; Dean v. Superior Court,

supra. But see People v. Sneed, supra. Although the issue is

not entirely free from doubt, we conclude that the defendants

did not have a reasonable expectation that the extension on the

barn, the presence of the vehicles, and the tracks leading from

the barn would not be noticed and recorded by officers in the

Coast Guard helicopter.

Several factors distinguish this case from others and reduce

the ranch residents’ reasonable expectation of privacy. The

Allen Ranch is virtually on the United States sea-coast border,

see United States v. Stanley, 545 F.2d 661, 666 n.6 (9th Cir.

1976) (en banc), cert. denied, 436 U.S. 917, 98 S.Ct. 2261, 56

L.Ed.2d 757 (1978), and Coast Guard helicopters routinely

traversed the nearby air space for several reasons, including

law enforcement. The residents of the Allen Ranch would, no

doubt, have been aware of these routine flights and any

reasonable person, cognizant of the ranch’s proximity to the

coastline and the Coast Guard’s well-known function of sea-

coast patrol and surveillance, could expect that government

officers conducting such flights would be aided by sophisti-

cated electronic equipment. As such, the residents could not

reasonably bear a subjective expectation of privacy from the

Coast Guard’s airborne telephotographic scrutiny, particular-

ly where, as here, the objects observed were large scale modifi-

cations of the Allen Ranch landscape and barn.

* We recognize that the rule we state here, and the rationale of the Curtis

case, blur somewhat the usual fourth amendment analysis, which first

distinguishes between searches and less intrusive police conduct, and then re-

quires that the former be supported by probable cause and, except in unusual

cases, by a warrant as well. Dunaway v. New York, 442 U.S. 200, 99 S.Ct.

2248, 60 L.Ed.2d 824 (1979). The rationale of this case and the rationale of

Curtis do not mean that activity which is indisputably a search can be

justified by less than probable cause.

12a

B. Seismic Sensors

[3] Although the record is unclear on the point, placement

of the seismic sensors could raise a potentially complex fourth

amendment issue insofar as entry upon the Allen property and

maintaining the sensors on that property in an operating con-

dition may constitute distinct types of trespass with different

fourth amendment consequences. See, e.g., United States v.

Dubrofsky, 581 F.2d 208 (9th Cir. 1978); United States v.

Basile, 569 F.2d 1053 (9th Cir.), cert. denied, 436 U.S. 920, 98

S.Ct. 2268, 56 L.Ed.2d 761 (1978); United States v. Hufford,

539 F.2d 32 (9th Cir.), cert. denied, 429 U.S. 1002, 97 S.Ct.

533, 50 L.Ed.2d 614 (1976); United States v. Capps, 435 F.2d

637 (9th Cir. 1970). We need not resolve this question, how-

ever, because appellants have pointed to no evidence obtained

by use of the sensors not already known from other sources,

and therefore any fourth amendment violations are harmless

error and produced no tainted evidence.

C. Surveillance from the Hill

[4] This circuit has held that the use of aids to the senses

such as binoculars does not convert unobjectionable sur-

veillance into a prohibited search. See Dubrofsky, supra, 581

F.2d at 211; Solis, supra, 536 F.2d at 882. Surveillance of the

open fields on the ranch from the hill observation site and use

of binoculars violated not reasonable expectation of privacy of

the defendants.°

D. Physical Intrusions

(5, 6] The December 6 entry by Gano while accompanying

the BLM officers was unobjectionable. The other officers had

* United States v. Curtis, 562 F.2d 1153 (9th Cir. 1977) does not require a

different result.

13a

a right to enter to discuss the possibility of granting an ease-

inent through the ranch to the federal property on the other

side, and Gano did not violate the fourth amendment by con-

cealing his identity as a Customs Bureau official. Lewis v.

United States, 385 U.S. 206, 87 S.Ct. 424, 17 L.Ed.2d 312

(1966); United States v. Glassel, 488 F.2d 143, 145 (9th Cir.

1973). Although the treaspass by officers on the night of De-

cember 29 onto the parking lot area may present constitutional

questions, see, e.g., Wattenburg v. United States, 388 F.2d

853 (9th Cir. 1968), no evidence was taken, and none appears

tainted, as a result of the officers’ actions. We doubt that

these trespasses violated the fourth amendment, see, e.g.,

Basile, supra, 569 F.2d at 1056; United States v. Williams, 569

F.2d 823 at 826; United States v. Capps, 435 F.2d 637, 640

(9th Cir. 1970), but since no evidence resulted from the actions

we need not further consider the matter. Cf. United States v.

Cella, 568 F.2d 1266, 1284-86 (9th Cir. 1977); United States v.

Cales, 493 F.2d 1215, 1215-16 (9th Cir. 1974) (where govern-

ment investigation already focused, illegal search producing

some intensification of surveillance does not taint evidence

subsequently obtained if search does not direct investigation to

the specific evidence sought to be suppressed).

E. The December 30 Arrest at the Allen Ranch

[7] The officers had probable cause to enter Allen’s prop-

erty and arrest the defendants on the night of December 30.

They observed the offloading activities from an unlighted

vessel in the middle of the night and the sound of people con-

gratulating each other, and these facts, together with all the

other information then available to them, justified a belief

that a crime was being or had just been committed. It was not

necessary for them to secure an arrest warrant for the arrest

made on Allen’s property but not in his home. United States

l4a

v. Santana, 427 U.S. 38, 42-43, 96 S.Ct. 2406, 2409, 49 L.Ed.

2d 300 (1976); United States v. Watson, 423 U.S. 411, 423-24,

96 S.Ct, 820, 827-828, 46 L.Ed.2d 598 (1976).

F. The December 30 Searches

[8] The search of the ranch house did not violate the fourth

amendment. The officers had surprised an unknown number

of people suspected of importing a large quantity of drugs in

the middle of the night. They were told by one arrestee that

there were some men in the ranch house. The agents were not

obliged to believe the arrestee’s statement that the men in the

house were unarmed. These facts, plus the distinct possibility

of destruction of evidence or armed defendants inside the

house, constitute exigent circumstances which justify the

search without a warrant. See United States v. Flickinger,

573 F.2d 1349, 1355-56 (9th Cir.), cert. denied, 439 U.S. 836,

99 S.Ct. 119, 58 L.Ed.2d 132 (1978); United States v.

Gaultney, 581 F.2d 1137, 1146-48 (5th Cir. 1978). The re-

maining searches are either justified by one of the exceptions to

the warrant requirement or constitute harmless error.

G. The Subsequent Search Warrants

{9} Following the arrest and searches on the night of the

30th, law officers returned to the ranch on December 31 with

a search warrant authorizing a search of the residence and out-

buildings of the ranch “for the narcotic drug marijuana and

papers and documents relating to the trafficking of

marijuana.” Two more similar searches were conducted in

January of 1978. Defendants challenge the warrants as defec-

tively overbroad.

The Supreme Court has expressed concern for warrants au-

thorizing seizure of papers and documents, Andresen v. Mary-

15a

land, 427 U.S. 463, 480-83, 96 S.Ct. 2737, 2748-49, 49 L.Ed.

2d 627 (1976), but warrants with language comparable to that

involved here have been upheld. See United States v. Dubrof-

sky, supra, 518 F.2d at 213; United States v. Prewitt, 553 F.2d

1082, 1086 (7th Cir. 1977). See generally United States v.

Johnson, 541 F.2d 1311 (8th Cir. 1976). In any event, the

items sought to be suppressed are two small amounts of mari-

juana and a receipt identifying defendant Kerr as the pur-

chaser of the red Ford van. Both items are mejely cumulative

evidence of facts proved through other evidence as well.

H. Stopping and Boarding of Cigale

(10] The stopping of the Cigale, the arrest of its crew, and

the coincident seizure of evidence can be sustained on either of

two grounds. First, as we understand the record, the Coast

Guard kept contact with the ship by radar and helicopter, and

the helicopter crew that ordered the ship to stop was in radio

contact with ground units on the beach. If this is correct,

there was probable cause to stop the ship and arrest its crew,

since it was established that it had accomplished a nighttime

offloading followed by actions on the beach, including flight

of the suspects.

Even on the assumption, however, that Coast Guard units

which stopped the Cigale and arrested its crew had not been in

constant contact with the ship, or did not know all that had

transpired on the beach, the furtive nighttime offloading had

been established. Since the Cigale was in the area, it was

proper for the Coast Guard to stop it for questioning. United

States v. Piner, 608 F.2d 358, 361 (€ch Cir. 1979); United

States v. Williams, 589 F.2d 210, 214 (5th Cir. 1979); United

States v. Odneal, 565 F.2d 598, 601 (9th Cir. 1977), cert.

denied, 435 U.S. 952, 98 S.Ct. 1581, 55 L.Ed.2d 803 (1978).

The reasonable suspicion to stop ripened into probable cause

16a

to search and arrest when the crew of the Cigale was observed

throwing boxes of cargo overboard and when the Cigale failed

to respond to further communications or to stop.

I. Arrests of Kerr, Kolander, and Allen

[11] There was probable cause to arrest Kerr, Kolander,

and Spencer Sherman. Each man was apprehended near the

Allen Ranch. Kerr was apprehended while wearing a wet suit

shortly after the unloading of boxes from the Cigale on amphi-

bious vehicles. Kolander was wet and had a noticeable bulge

in his pocket which provided reasonable suspicion for the of-

ficers to conduct a frisk. Pennsylvania v. Mimms, 434 U.S.

106, 111-12, 98 S.Ct. 330, 333-34, 54 L.Ed.2d 331 (1977);

Terry v. Ohio, 392 U.S. 1, 21-22, 88 S.Ct. 1868, 1879-80, 20

L.Ed.2d 889 (1968). When the officers found a pair of pliers

of the type used at the Allen Ranch, they had probable cause

to afrest Kolander. Sherman was arrested while hitchhiking

on a highway where hitchhiking was rare. He was wet and

his clothes were sandy, though the weather throughout the

state that day had been clear and dry. Sherman had no identi-

fication and no explanation for his presence on the highway or

his appearance.

[12-14] We agree, however, that Allen’s arrest was illegal.

The police, of course, had probable cause to arrest Allen, but

they did not know that the man they arrested was Allen until

after the arrest occurred. Nevertheless, an illegal arrest is not

a basis for reversing a conviction. Frisbie v. Collins, 342 U.S.

519, 522, 72 S.Ct. 509, 511, 96 L.Ed. 541 (1952). Allen con-

tends that his conviction should be reversed because the arrest

was necessary evidence of his presence at the ranch and his in-

volvement in the crime. We disagree. The only evidence ob-

tained from the arrest was a key taken from Allen’s wallet

which led the officers to Allen’s safe deposit box. In the box

17a

the office:s found defendant Theriaque’s certificate of owner-

ship for his dogs and the Allen Ranch purchase agreement.

This evidence was cumulative of the testimony of several of

the witnesses who testified at trial and its admission does not

amount to prejudicial error.

III. SurFFicieNcy OF THE EvIDENCE

The thrust of appellants’ arguments on the sufficiency of

evidence is that the evidence against them is circumstantial.

There is, nevertheless, more than enough evidence, direct,

testimonial, and circumstantial, to establish beyond a reason-

able doubt “an agreement to accomplish an illegal objective,

coupled with one or more overt acts in furtherance of the il-

legal purpose and the requisite intent necessary to commit the

underlying substantive offense.” United States v. Oropeza,

564 F.2d 316, 321 (9th Cir. 1977), cert. denied, 434 U.S. 1080,

98 S.Ct. 1276, 55 L.Ed.2d 788 (1978).

[15] The evidence of each appellant's role in the smuggling

will be discussed briefly. Allen bought the ranch, appeared to

be in charge, and was present for most of December. He

alone was convicted of count II — conspiracy to import mari-

juana, 21 U.S.C. §§ 812, 952(a), 960, 963 (1976). Kerr ar-

rived between December 16th and 20th, was found wearing a

wet suit of the type worn by those who transferred the contra-

band from the Cigale to the amphibious vehicle, and was

found carrying over $2,600 in cash. Derek Sherman bought

the ship Cigale in Germany for over $300,000, and was the

navigator from Thailand to the United States coast. Spencer

Sherman, Derek’s brother, traveled from the East Coast to

take part in the unloading operation, arriving between

December 16th and 20th. Theriaque bought the guard dogs

— appropriately named Bonnie and Clyde — and was found

18a

in a wet suit like Kerr’s, indicating involvement in the transfer

of contraband at sea. Diffenderfer arrived between the 16th

and 20th of December as well, and was seen running from the

semi-trailer during the sweep. All of these six men — Allen,

Kerr, Derek Sherman, Spencer Sherman, Theriaque, and Dif-

fenderfer — were convicted of count I, conspiracy to possess a

controlled substance with intent to distribute, 21 U.S.C.

§§ 812, 841(a)(1), 846, as well as count III, possession with in-

tent to distribute, 21 U.S.C. §§ 812, 841(a)(1); 18 U.S.C. § 2.

Kolander was convicted only of possession, count III. Ko-

lander was present at the ranch during December.

(16, 17] The appellants all offer similar arguments as to the

asserted inadequacy of the evidence.'® As to both count I,

conspiracy to possess with intent to distribute, and count III,

possession with intent to distribute, they reiterate that the con-

traband must be known by the defendants to be a controlled

substance for the convictions to stand. Appellants’ counsel im-

aginatively suggest that appellants could have thought the

“sealed and odorless metal boxes” contained “silk or some

other cargo.” While not completely out of the realm of

possibility, this suggestion is implausible enough in this context

that a rationale trier of fact could have believed it false beyond

a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 324-26,

99 S.Ct. 2781, 2792, 61 L.Ed.2d 560 (1979) (due process

standard of review on habeas petition). The appellants’ attack

on sufficiency of evidence concerning intent to distribute is

similarly baseless: personal consumption of 17,000 pounds of

anything, much less marijuana, is a staggering proposition suf-

ficient to compel disbelief, leaving commercial distribution as

the only realistic goal of the enterprise. There is testimony

© Although we view the reasoning set out above as adequate by itself to

establish the sufficiency of the evidence, we also accept and adopt the eviden-

tiary arguments made by the Government with respect to each defendant.

19a

that the fee for unloading this cargo — the work of a few hours

— was $10,000. The scale of the undertaking, and its secrecy,

indicate that no one would have been admitted to the enter-

prise who was not to be trusted completely with knowledge of

its criminal character. See United States v. Pentado, 463 F.2d

355, 362-63 (5th Cir.), cert. denied, 409 U.S. 1079, 93 S.Ct.

698, 34 L.Ed.2d 668 (1972).

[18, 19] Appellants also raise several times the argument

that they had insufficient dominion and control to be con-

victed of possession. This argument is irrelevant. They do not

even contest the government’s assertion that they aided and

abetted criminal possession, and it is a fundamental principle

of federal criminal law that one who aids and abets is punish-

able as a principal. 18 U.S.C. § 2 (1976). Count III of the

indictment specifically alleged violation of 18 U.S.C. § 2, and

the court’s judgments of count III violations read “in violation

of Title 21 U.S.C. Section 841(a)(1) and Section 846 as

charged in Count 3 of the indictment.” Record at 1248A (em-

phasis added). In other words, defendants-appellants’ argu-

ment that “[a]lthough defendants were charged with aiding

and abetting, the judgments reflect that they were convicted

of possession in violation of 21 U.S.C. § 841” rests on an ultra-

technical assertion that the judgment cannot validly incorpor-

ate 18 U.S.C. § 2 by explicit reference to the indictment in

which the aiding and abetting violation was specifically

charged. The argument is without merit.

IV. ASSIGNMENT, TRIAL, AND SENTENCING PROCEEDING

The procedural history of this case requires brief review.

Two judges from districts outside Oregon were to split the pre-

trial and trial portions of the case, sitting in Oregon by desig-

nation. Judge Tanner was assigned the former, Judge Fitz-

20a

gerald the latter. Upon Judge Fitzgerald’s indisposition,

Judge Conti of the Northern District of California was

designated. Defendants moved to change venue because of

publicity. The motion was granted, and the trial was moved

to the Northern District of California. Either to promote

economy of time and of effort, or because of Judge Conti's

familiarity with the case, Judge Conti was reassigned to the

trial by Chief Judges Browning and Peckham.

[20] During sentencing of the third defendant to be sen-

tenced, Maggiacomo, Judge Conti said that importing mari-

juana was a very serious crime that had a “cancer”-like effect

on society. Presumably this is but an innocuous and unexcep-

tionable paraphrase of congressional sentiment in passing the

criminal statutes in question. Nevertheless, Judge Conti's

statement inspired counsel for the fourth, seventh, and eighth

defendants to be sentenced (Kerr, Spencer Sherman, and

Theriaque) to move that Judge Conti recuse himself because of

prejudice. This sequence of events prompts three arguments,

each largely empty. First, appellants complain of the irregu-

larity of Judge Conti’s assignment to the case. They have no

basis, however, to advance as error any alleged violation of the

Northern District of California’s Random Assignment Plan

unless they can show actual prejudice. United States v. Rad-

lick, 581 F.2d 225, 230 (9th Cir. 1978); United States v.

Torbert, 496 F.2d 154, 156-57 (9th Cir.), cert. denied, 419

U.S. 857, 95 S.Ct. 105, 42 L.Ed.2d 91 (1974). As the remain-

ing discussion will indicate, they did not show this; we need

not therefore decide the question of conformity with the

Assignment Plan.

The prejudice issue entails the two other complaints, first,

that Judge Conti’s remarks on the danger of marijuana reveal

an impermissible appearance of partiality, see 28 U.S.C.

§ 455(a), and second, that Judge Conti evinced an impermis-

sibly fixed or mechanical view of sentencing.

2la

[21] As to the first, Judge Conti’s unexceptionable restate-

ment of a congressional purpose comes nowhere near the sort

of apparent ethnic, political, or personal animus at stake in the

cases appellants cite to support their point. See, e.g., Berger

v. United States, 255 U.S. 22, 41 S.Ct. 230, 65 L.Ed. 48)

(1931) (German Americans); Connelly v. United States Dis-

trict Court, 191 F.2d 692 (9th Cir. 1951) (Communists).

Neither the source nor the content of Judge Conti’s views on

marijuana smuggling indicate that recusal would have been

proper. See United States v. Sibla, 624 F.2d 864 (9th Cir.

1980) (as amended, April 28, 1980).

[22] The fixed or mechanical sentencing claim is answered

simply by pointing out that the sentences imposed here varied

from five to six to eight to ten years in the aggregate, and from

two to three to four to five years in respect to the same offense,

count III, with correspondingly varied parole terms for each

defendant. The sentences were all within the statute’s

prescription. The fixed view cases cited by appellants general-

ly are so extreme as to be irrelevant here. In one, the judge

sentenced all draft evaders to thirty months as a matter of

policy. United States v. Thompson, 483 F.2d 527, 528 (3d

Cir.), cert. denied, 415 U.S. 911, 94 S.Ct. 1456, 39 L.Ed.2d

496 (1973). Appellants’ reliance on United States v. Ward-

law, 576 F.2d 932, 936-38 (Ist cir. 1978), is similarly mis-

placed, in that there is here no showing that the court’s sole

motive in imposing the sentence was a general deterrence ob-

jective unrelated to the conduct of the defendants actually

before the court.

AFFIRMED.

22a

Appendix B.

United States Court of Appeals

for the Ninth Circuit

Filed

Apr. 16 1981

Richard H. Deane

Clerk, U.S. Court of Appeals

Unttep STATEs OF AMERICA, )

PLAINTIFF-APPELLEE ) Nos.

vs. ) 79-1059

ArtHur ANDREW ALLEN, ) 79-1060

Perer A. Dirrenperrer, Kevin T. ) 79-1063

Kerr, Denex S. SHERMAN, ) 79-1064

Spencer C. SHERMAN, AND ) 79-1065

Gary L. THERIAQUE, ) 79-1066

DEFENDANTS-APPELLANTS. ) 79-1067

ORDER

Before: KENNEDY, TANG, AND ALARCON, Circuit Judges.

The panel votes unanimously to deny the petition for re-

hearing. A majority of active judges not being in favor of tak-

ing the case en banc, the en banc suggestion is rejected.

The opinion is amended as follows:

1. 633 F.2d at 1286, replace third full paragraph with: “On

November 6, 1977, the United States Customs Bureau opened

an office in Coos Bay. The officer in charge, Larry Gano,

almost immediately became aware of complaints from local

residents who had been refused permission to cross the Allen

Ranch. A check on Allen’s background led Gano to suspect

that the ranch might be a drug-smuggling base. On Decem-

23a

ber 5, 1977, Gano accompanied members of the Coast Guard

on a helicopter flight past the ranch. According to the

Government, the Coast Guard routinely flew over or near

private property on the Oregon coast for training flights and

other purposes, including law enforcement. Although the

pilot’s testimony at the suppression hearing strongly suggests

that the helicopter avoided Allen’s airspace, this was not un-

equivocally established. Using a telephoto lens, Gano took

photographs of the ranch property. The photos revealed

unusually wide tire tracks leading to and from a barn and a

new extension built on the barn.”

2. 633 F.2d at 1289, replace first full paragraph with: “The

defendants’ contend, and the Government does not show

otherwise, that the objects pictured in the photographs — the

various vehicles parked on the grounds, the wide tracks from

the barn, and the new extension built on the barn — could not

be observed from any land or sea based vantage point outside

the boundaries of the property. It appears further that a lens

of normal focal length would not have disclosed the objects

seen in the blow-ups of the photos: the camera used was a 35

mm. format equipped with a 70-230 mm. zoom lense instead

of the standard 50 mm. lens. Such equipment is widely

available commercially and is not more sophisticated than

lenses generally available to the public. From these facts

defendants seek to establish a legitimate expectation that these

areas were to remain private.”

3. 633 F.2d at 1290, replace second full paragraph with:

“Several factors distinguish this case from others and reduce

the ranch residents’ reasonable expectation of privacy. The

Allen Ranch is virtually on the United States sea-coast border,

see United States v. Stanley, 545 F.2d 661, 666 n.6 (9th Cir.

1976) (en banc), cert. denied, 436 U.S. 917, 98 S.Ct. 2261, 56

L.Ed.2d 757 (1978), and Coast Goard helicopters routinely

traversed the nearby airspace for several reasons, including

24a

law enforcement. The residents of the Allen Ranch would, no

doubt, have been aware of these routine flights and any

reasonable person, cognizant of the ranch’s proximity to the

coastline and the Coast Guard’s well-known function of sea-

coast patrol and surveillance, could expect that government

officers conducting such flights would be aided by sense-

enhancing devices. As such, the residents could not reason-

ably bear a subjective expectation of privacy from the Coast

Guard’s airborn scrutiny of the objects observed here, large

scale modifications of the Allen Ranch landscape and barn.”