Petition — United States v. Karo

ts Office - Supreme Court, U.S.

83-8590 | Tr

No. - 1

NOV 22 1983

ALEXANDER L. STEVAS,

Jn the Supreme Court of the Bnikes-soestes—

OCTOBER TERM, 1983

UNITED STATES OF AMERICA, PETITIONER

Uv.

JAMES CONNORS KARO, ET AL.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

REX E. LEE

Solicitor General

STEPHEN S. TROTT

Assistant Attorney General

ANDREW L. FREY

Deputy Solicitor General

ELLIOTT SCHULDER

Assistant to the Solicitor General

VINCENT L. GAMBALE

Attorney

Department of Justice

Washington, D.C. 20530

(202) 633-2217

QUESTIONS PRESENTED

1. Whether warrantless installation of a beeper in-

side a container of chemicals with the consent of the

original owner violates the Fourth Amendment rights

of a suspect in a drug manufacturing scheme to whom

the container is subsequently transferred.

2. Whether the warrantless monitoring of signals

from a beeper installed inside a container of chemicals

that law enforcement authorities reasonably believe

will be used to manufacture illegal drugs violates the

Fourth Amendment when the monitoring occurs while

the beeper is located within a home or other “private”

area (such as a commercial storage locker).

(1)

(II)

PARTIES TO THE PROCEEDING

In addition to the parties listed in the caption,

Richard Miles Horton, William Robertson Harley, Mi-

chael Gaylord Steele and Evan Roth are respondents in

this Court. Gene R. Rhodes was a party to the proceed-

ings below but is not a respondent herein.

TABLE OF CONTENTS

Page

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Constitutional provision involved .............. 2

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Reasons for granting the petition.............. 9

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TABLE OF AUTHORITIES

Cases:

United States v. Abel, 548 F.2d 591, cert.

Gieted, 431: OF. GER cali swede ade cisides 11

United States v. Bailey, 628 F.2d

DUP oo eV ca eneb tone baeebanisveke 9, 11, 13, 17

United States v. Bernard, 625 F.2d 854 . 9, 10, 14

United States v. Brock, 667 F.2d 1811, cert.

denied, No. 81-6922 (Mar. 7, 1983)....... 14

United States v. Bruneau, 594 F.2d 1190,

cert. denied, 444 U.S. 847 .............. 10-11

~United States v. Cheshire, 569 F.2d 887,

cert. denied, 487 U.S. 907 .............. 11

United States v. Curtis, 562 F.2d 1153, cert

Gemted, 50-U 35. B80 ss ci csvessccarvtcics 11

(m1)

uf + —,

Sg ee

‘

(Iv)

Cases:—Continued Page

United States v. Devorce, 526 F. Supp. 191, aff'd

sub nom. United States v. Lombardo, 697

F.2d 299, cert. denied, No. 82-5259 (Mar. 7,

POs x b%b bax ne~ caniueate kedudicarenetientos 11

United States v. Dubrofsky, 581 F.2d 208...... 14

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

SR Ee ak GRU S) ch acs chuieeneueecnes 11

United States v. Knotts, 662 F.2d 515, rev'd,

No. 81-1802 (Mar. 2, 1983) ..............005- 11

United States v. Knotts, No. 81-1802 (Mar. 2,

Pt aU vdes vc deacee keds vounerkes 67 3, 8, 9,

10, 12, 14, 15

United States v. Lewis, 621 F.2d 1382, cert.

SR, GO AL UE i hint 400k 00a ots dhdaaas 10

United States v. Martinez-Fuerte, 428 U.S. 543 15

United States v. Mendenhall, 446 U.S. 544 .... 15

United States v. Miroyan, 577 F.2d 489, cert.

Sea OD TO GN a hse vob obnd édedeces 11

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

GAG, Gee en hn ind cus 0000s eedivens 9, 13

United States v. Place, No. 81-1617 (June 20,

EE rans cd abc cdcen be cd ahaenstbneethy eae 16

Constitution and statutes:

U.S. Const. Amend. IV ........ 2, 7, 8, 9, 10, 12,

13, 14, 15

Svs, SED 5 ou be Nhdos.c¥weese nem 4

BE A CER sn cc ncecvevesdocessnus 2

BW Roms NO a ova bh ckc cou getusa vas beaees 2

‘ ‘ , ma

In the Supreme Court of the Anited States

OCTOBER TERM, 1983

No.

UNITED STATES OF AMERICA, PETITIONER

Vv.

JAMES CONNORS KARO, ET AL.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

The Solicitor General, on behalf of the United States,

petitions for a writ of certiorari to review the judgment

of the United States Court of Appeals for the Tenth

Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals (App. infra,

la-15a) is reported at 710 F.2d 1433. The opinion of the

district court (App. infra, 16a-22a) is not reported.

JURISDICTION

The judgment of the court of appeals (App. infra,

23a) was entered on June 20, 1983. A petition for re-

hearing was denied on August 26, 1983 (App. infra,

24a). On October 17, 1983, Justice White extended the

time within which to file a petition for a writ of certio-

rari to and including November 24, 1983. The jurisdic-

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

(1)

eee

4

.

CONSTITUTIONAL PROVISION INVOLVED

The Fourth Amendment provides:

The right of the people to be secure in their per-

sons, houses, papers, and effects, against unrea-

sonable searches and seizures, shall not be vio-

lated, 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

In an indictment filed in the United States District

Court for the District of New Mexico, respondents and

co-defendant Gene R. Rhodes were charged with con-

spiracy to possess cocaine with intent to distribute it, in

violation of 21 U.S.C. 846. Respondents Horton,

Harley, Steele and Roth were also charged with posses-

sion of cocaine with intent to distribute it, in violation

of 21 U.S.C. 841(a)(1). In addition, the indictment

charged respondent Karo with possession of cocaine

with intent to distribute it and distribution of cocaine,

both in violation of 21 U.S.C. 841(a)(1).

1. Prior to trial, respondents filed a joint motion to

suppress evidence seized in a warrant-authorized

search of a house in Taos, New Mexico. Respondents

contended that the search warrant for the Taos resi-

dence was invalid because it was based on information

derived from allegedly unlawful beeper surveillance.

The evidence at the suppression hearing showed that

on March 3, 1980, in Albuquerque, New Mexico, Drug

Enforcement Administration (DEA) agents conducted a

judicially authorized search of a storage locker rented

amphetamines. containing laboratory

equipment and chemicals bore shipping labels ad-

dressed to Carl Muehlenweg of Graphic Photo Design

eae 2.

3

in Albuquerque. H. Tr. 46-47, 167-169, 307. Approxi-

mately six weeks later, DEA agents executed search

warrants at Graphic Photo Design, which turned out to

be Muehlenweg’s residence, and at T & M Research,

where Muehlenweg worked. At those locations, the

agents discovered invoices and statements reflecting

that Muehlenweg had ordered and obtained laboratory

glassware and chemicals that had been found in Logan’s

locker. H. Tr. 47-48, 165, 177.

Shortly thereafter, Muehlenweg acknowledged to the

DEA that Logan had ordered chemicals and laboratory

glassware through him, and he agreed to become a

DEA informant (H. Tr. 42-43, 126, 167-168, 308-309).*

Muehlenweg also apprised the agents that he had previ-

ously ordered ether for respondents Karo, Horton, and

Harley for their use in the production of cocaine. In late

August 1980, Muehlenweg told DEA Agent Richard

Rottinger that he had ordered a 50-gallon shipment of

ether for Karo, Horton, and Harley, which they

planned to use to extract cocaine from clothing that had

been imported into the United States. H. Tr. 124-130,

178, 191, 196, 257-258. Agent Rottinger confirmed that

Muehlenweg had ordered and paid for ten five-gallon

cans of ether from BWR Scientific, Inc., for delivery in

September 1980 (H. Tr. 48-50, 143-146).

Prior to the arrival of that shipment, the government

obtained a court order authorizing the installation and

monitoring of a beeper? in one of the cans of

1 A few weeks later, after being tipped off by Muehlenweg,

agents observed Logan pick up chemicals and equipment from

Muehlenweg, but Logan shot and killed himself when the agents

moved in to arrest him (H. Tr. 91, 125-126, 169, 309-310).

2 “A beeper is a radio transmitter, usually battery operated,

which emits periodic signals that can be picked up by a radio re-

ceiver.” United States v. Knotts, No. 81-1802 (Mar. 2, 1983),

slip op. 1. 3

4

ether that had been ordered by Muehlenweg.* With

Muehlenweg’s permission, the DEA picked up the ship-

ment from the common carrier, substituted a can con-

taining a beeper for one of the cans in the shipment, re-

painted the cans so that they would all look alike, and

then delivered them to Muehlenweg’s residence. H. Tr.

48-54. On September 20, 1980, agents observed

resondent Karo pick up the ether from Muehlenweg’s

house and, using visual and beeper surveillance, fol-

lowed Karo as he transported the ether to his residence

in Muehlenweg’s automobile. Still under surveillance,

Karo then returned the automobile to Muehlenweg’s

residence. App. infra, 4a; H. Tr. 58-59, 181-182, 275.

By monitoring the beeper later that day, the agents

ascertained that the ether had been transferred to re-

spondent Horton’s house. The ether’s presence at that

location was confirmed by a DEA agent who walked

along the sidewalk and smelled the odor of ether

5 The affidavit in support of the application for the beeper au-

thorization order falsely indicated that Muehlenweg was a tar-

get of the DEA investigation relating to the ether shipment,

and did not state that he was cooperating with the DEA as a

confidential informant. According to the testimony of the prose-

cutor involved, the affidavit was drafted in that manner in order

to preserve Muehlenweg’s usefulness as a confidential informant

and to protect his safety in the event the targets of the investi-

gation obtained copies of the warrant applications. H. Tr.

232-236, 254. The prosecutor was concerned that the targets

might ultimately obtain the applications if the district court

adopted target notification procedures analogous to those con-

tained in the federal wiretap statute, 18 U.S.C. 2518(8)(d) (H.

Tr. 237-238). The prosecutor and Agent Rottinger testified,

however, that at the time the application was made, on eee.

cutor orally advised the issuing judge that Muehlenweg was

tually cooperating in the investigation, mrlvrrece casi. deserve

the judge that that information had been omitted from the war-

rant application to preserve Muehlenweg’s confidential inform-

ant status (H. Tr. 208-209, 237, 246).

: - Es <r

ve p> keinkh * + re i. Si et a

Ne See) ae te

5

emanating from Horton’s residence. App. infra, 4a-5a;

H. Tr. 59-60, 182-183. Subsequent monitoring of the

beeper two days later, on September 22, 1980, revealed

that the ether had been moved to the home of Horton’s

father. The following day, the agents traced the ether

by means of the beeper to a commercial self-storage fa-

cility in Albuquerque. The beeper did not enable the

agents to identify the particular locker that contained

the chemical; however, the agents detected the odor of

ether emanating from locker 143 and ascertained that

respondents Horton and Harley had rented that locker.

On October 8, 1980, the agents obtained an order

authorizing installation of an entry tone alarm in that

locker. During installation of the alarm on the following

day, the agents saw the cans of ether inside the locker.

The alarm malfunctioned, however, and the agents did

not learn that the ether had been removed by respon-

dent Horton until October 16, 1980, when they were so

notified by the manager of the storage facility. App.

infra, 5a; H. Tr. 60-61, 62-73, 182-184, 216-217.

Three days later, on October 19, the agents picked up

the beeper signal at another self-storage facility in

Albuquerque. With the permission of the storage facili-

ty’s manager, the agents installed a closed circuit video

camera that was focused on the door of locker 15, which

had been rented under an alias by respondents Horton

and Harley. On December 31, 1980, agents monitoring

the camera observed respondents Horton and Harley

enter the locker, and on February 6, 1981, they ob-

served co-defendant Rhodes and an unidentified woman

remove the cans of ether and load them into Horton’s

pickup truck. By means of both visual and beeper sur-

veillance, agents followed the truck to Rhodes’ resi-

dence, where it was parked in the driveway. App.

infra, 5a-6a; H. Tr. 82-85, 97-108, 155.

6

Later that day, DEA agents followed the truck con-

taining the ether to a residence in Taos, New Mexico

rented by respondents Horton, Harley, and Steele.

During their surveillance of the Taos residence, the

agents monitored the beeper to determine its continued

presence at the house. App. infra, 6a; H. Tr. 100-103,

111-112, 120, 135-138, 156-158. Relying on information

obtained in the course of their investigation, including

information derived through the use of the beeper re-

garding the various locations to which the ether had

been transported, the agents secured a search warrant

for the Taos residence. On February 10, 1981, the war-

rant was executed, cocaine and laboratory equipment

were seized, and respondents Horton, Harley, Steele

and Roth were arrested. App. infra, 6a.

2. The district court granted respondents’ motion to

suppress the evidence seized at the Taos residence

(App. infra, 25a). The court concluded that the order

authorizing the installation of the beeper was invalid

because the government had made deliberate misrepre-

sentations in the warrant application, and that the evi-

dence in question was the fruit of the improperly au-

thorized beeper surveillance (Tr. 331-334). Thereafter,

the district court denied the government’s motion to re-

consider its suppression ruling, rejecting the argument

that the installation and monitoring of the beeper did

not require a warrant (App. infra, 16a-22a, 26a).

3. On appeal, the government did not challenge the

district court’s finding that the order authorizing the

beeper was invalid (App. infra, 3a).4 Rather, the gov-

* Because the inaccuracies in the written warrant application

were not designed to mislead the magistrate, the true facts

were revealed to the magistrate prior to issuance of the beeper

warrant, and the variation between the written statement and

the oral disclosure could not have affected the finding of proba-

ble cause, we believe the district court erred in invalidating the

7

ernment contended that the Fourth Amendment does

not require a warrant for the installation and moni-

toring of a beeper, that the defendants lacked “stand-

ing” to contest the use of the beeper, and that the evi-

dence seized pursuant to the search warrant for the

Taos residence was not the fruit of the beeper

surveillance.

The court of appeals affirmed the suppression order

except as to co-defendant Rhodes (App. infra, la-15a).5

At the outset, the court rejected the argument that the

defendants could not have had any legitimate expecta-

tions of privacy in the can of ether because the ether

was intended for use in the manufacture of contraband

(id. at 3a-4a). The court then concluded (id. at 6a-9a)

that Karo’s Fourth Amendment rights were violated at

the time he picked up the can of ether from

Muehienweg because the installation of the beeper in

the can had not been authorized by a valid warrant. In

so concluding, the court expressly refused to follow the

holdings of other courts that have ruled that no warrant

is required to install a beeper in a container with the

consent of the owner (id. at 6a-7a). The court explained

(id. at 7a-9a) (footnotes and citation omitted):

Although the physical installation of the beeper in

the can takes place before the new owner picks it

up, we believe an intrusion occurs at the time the

item comes into his possession. All a have

a legitimate expectation of pri

coming into thee right, rightful o omy iat

electronic devices attached to them, devices that

beeper warrant. That issue, not having been preserved on ap-

peal, is not presented here.

5 The court held that Rhodes, who transported the ether from

Albuquerque to Taos, failed to establish that his legitimate ex-

pectations of privacy had been violated by the beeper surveil-

lance or the search of the Taos residence. App. infra, 14a-l5a.

8

would give law enforcement agents the opportunity

to monitor the location of the objects at all times

and in every place that the objects are taken, in-

cluding inside private residences and other areas

where the right to be free from warrantless gov-

ernment intrusion is unquestioned. * * * The in-

stallation of a beeper on an item of personal prop-

erty gives the government the capability of tracing

every movement of the object on which the beeper

is placed. * * * We believe that individuals have a

reasonable and legitimate expectation that the gov-

ernment will not engage in such activity without

the protections afforded by resort to the judicial

process. * * * Thus, regardless of the consent ob-

tained when the beeper i is physically installed, an

infringement of the new owner’s Fourth Amend-

ment rights begins at the time the object comes

into his control. The consent of the owner to have a

beeper installed cannot suffice to continue the in-

stallation once the item belongs to someone else

any more than the consent of a previous owner of a

suitcase could suffice to permit the police to period-

ically open and search the suitcase after it comes

under the ownership of another.

The court also held that the monitoring of the beeper

without a valid warrant violated the Fourth Amend-

ment (App. infra, Qa-lla). It sought to dis-

tinguish this Court’s decision in United States v.

Knotts, No. 81-1802 (Mar. 2, 1983), on the following

9

for substantial periods of time and much of the tracing

of the ether to new locations was possible only by use of

the beeper. App. infra, 9a-10a. Relying on United

States v. Moore, 562 F.2d 106, 113 (1st Cir. 1977), cert.

denied, 435 U.S. 926 (1978), and United States v. Bai-

ley, 628 F.2d 938, 940 (6th Cir. 1980), while expressly

rejecting the contrary ruling in United States v.

Bernard, 625 F.2d 854, 861 (9th Cir. 1980), the court

concluded (App. infra, 10a) that “the warrantless use

of a beeper to monitor the location of noncontraband

withdrawn from public view inside private residences

or similarly protected places is an unconstitutional

search or seizure.”®

REASONS FOR GRANTING THE PETITION

Last Term, in United States v. Knotts, No. 81-1802

(Mar. 2, 1983), this Court held that the use of a beeper

by law enforcement officers to trace a can of chemicals

® Rejecting the argument that the evidence seized pursuant

to the search warrant for the Taos residence was not the fruit of

any illegal beeper surveillance, the court of appeals found a di-

rect link between the beeper monitoring and the information

that the ether was at the Taos residence (App. infra, 1la-12a).

The court noted (id. at 14a n.6) that, even though there were

breaks in the monitoring between the initial delivery of the

ether to Karo and the tracking of the ether to Taos, there was

no break between the monitoring of the beeper while it was in

the second storage locker and its transfer to the Taos residence.

In addition, the court rejected the argument that respondent

Roth (who was a visitor at the Taos residence and had

there for several days prior to the search) and Karo (who had no

connection with that residence, but whose rights allegedly were —

infringed by the installation of the beeper) lacked “standing” to

seek suppression of the evidence (App. infra, 18a-14a).

We do not here raise the fruits and “standing” issues, except

insofar as a favorable resolution of the first question

would establish that there was no violation of respondent Karo’s

Fourth Amendment rights.

10

from its place of purchase to the defendant’s residence

did not violate the defendant’s legitimate expectations

of privacy and thus did not constitute a “search” or “sei-

zure” within the meaning of the Fourth Amendment.

This case presents two important and recurring Fourth

Amendment questions relating to beeper surveillance

that the Court did not specifically resolve in Knotts.

The first question is whether, as the court of appeals

held, the mere installation of a beeper in a container

with the consent of the original owner amounts to a

search or seizure that, unless authorized by a valid war-

rant, infringes the new owner’s Fourth Amendment

rights at the time the container comes into his posses-

sion. The second question is whether the warrantless

monitoring of a beeper’s signals violates the Fourth

Amendment whenever, at the time of monitoring, the

container in which the beeper has been installed is situ-

ated inside a home or other “private” area. The hold-

ings of the court of appeals on both of these questions

are in direct conflict with the decisions of other courts

of appeals. Accordingly, review by this Court is war-

ranted to resolve the conflicts on these important ques-

tions of Fourth Amendment law.

1. Cases involving the permissibility of beeper use

ordinarily raise two distinct issues, one relating to the

installation of the beeper in a package or conveyance,

the other relating to the monitoring of signals trans-

mitted by the beeper. Although the Court in Knotts

recognized this distinction, it did not pass on the instal-

lation issue because Knotts did not challenge the war-

rantless installation of the beeper in his case. The Court

noted, however, that several courts of appeals have ap-

proved warrantless installations. Knotts, slip op. 3 n.*,

citing United States v. Bernard, 625 F.2d 854, 860 (9th

Cir. 1980); United States v. Lewis, 621 F.2d 1382, 1388

(5th Cir. 1980), cert. denied, 450 U.S. 935 (1981);

United States v. Bruneau, 594 F.2d 1190, 1194 (8th

11

Cir.), cert. denied, 444 U.S. 847 (1979); United States

v. Miroyan, 577 F.2d 489, 493 (9th Cir.), cert. denied,

439 U.S. 896 (1978); United States v. Cheshire, 569

F.2d 887, 889 (5th Cir.), cert. denied, 487 U.S. 907

(1978); United States v. Curtis, 562 F.2d 1158, 1156

(9th Cir. 1977), cert. denied, 489 U.S. 910 (1978);

United States v. Abel, 548 F.2d 591, 592 (5th Cir.),

cert. denied, 431 U.S. 956 (1977); United States v.

Hufford, 539 F.2d 32, 34 (9th Cir.), cert. denied, 429

U.S. 1002 (1976). See also United States v. Knotts, 662

F.2d 515, 517 n.2 (8th Cir. 1981), rev’d on other

grounds, No. 81-1802 (Mar. 2, 1983); United States v.

Bailey, 628 F.2d 938, 943 (6th Cir. 1980); United States

v. Devorce, 526 F. Supp. 191, 199-200 (D. Conn. 1981),

aff'd sub nom. United States v. Lombardo, 697 F.2d

299 (2d Cir. 1982) (table), cert. denied, No. 82-5459

(Mar. 7, 1983). Indeed, in this case, the court of appeals

expressly acknowledged (App. infra, 6a-7a) that other

courts have upheld the warrantless installation of a

beeper inside a container with the consent of the origi-

nal owner. This clear conflict requires resolution by this

Court.

We believe the holding of the court of appeals is

plainly incorrect. As is evident from its own analysis of

the installation issue (App. infra, 7a-9a), the intrusion,

if any, into legitimate expectations of privacy occa-

sioned by beeper surveillance occurs when a beeper is

monitored to ascertain the location of the container in

which it has been installed. No search or seizure of any

sort occurs when the beeper is placed inside the con-

tainer with the consent of the original owner or when

the container is transferred to the suspect purchaser.

Unless the beeper is activated and its signals moni-

tored, the beeper tells nothing about the whereabouts

of the container. Thus, the court’s analogy to a previous

owner of a suitcase consenting to subsequent searches

of the suitcase (id. at 8a-9a) is totally inapposite. Al-

12

though the owner of a container generally has a legiti-

mate expectation of privacy in the contents of the con-

tainer, a beeper does not disclose the container’s con-

tents, which are already known to the agents when

they install the beeper with the original owner’s con-

sent. Instead, the beeper discloses only the present lo-

cation of the container. As the Court held in Knotts,

however, there is no legitimate expectation of privacy

with respect to this information, at least where the con-

tainer’s location could have been ascertained by visual

surveillance of the suspect’s vehicle while it travelled

over public roads.

Here, respondent Karo certainly had no greater pri-

vacy interest in the location of the container than did

the defendant in Knotts. There, the beeper was used to

ascertain the arrival of a can of chemicals on the de-

fendant’s premises. Because this same information

could have been obtained through constant visual sur-

veillance, the Court concluded that the use of the

beeper did not implicate Fourth Amendment concerns.

Jn this case, insofar as respondent Karo is concerned,

the beeper revealed only that Karo transported the

container of ether in Muehlenweg’s automobile from

Muehlenweg’s residence to his own home. As was the

case in Knotts, this same information could have been

obtained by direct visual surveillance. Moreover, as the

court of appeals conceded (App. infra, 18a), Karo could

not establish a legitimate expectation of privacy in the

locations at which the beeper was monitored after it left

his house, including the Taos residence where the

warrant-authorized search uncovered an illicit drug

manufacturing laboratory. The court nevertheless con-

cluded that Karo could move to suppress the evidence

seized from that residence by virtue of his challenge to

the installation of the beeper (id. at 14a; see also id. at

6a n.1). Under the ruling below, therefore, even where

a defendant’s legitimate expectations of privacy are not

infringed by beeper monitoring, the defendant may still

13

object to the use of the beeper by challenging its instal-

lation. The effect of the court of appeals’ decision is to

limit Knotts to cases in which the defendant’s lawyer

fails to object to insertion of the beeper.

2. The court of appeals’ ruling on the monitoring is-

sue also warrants review. To begin with, the question

whether the Fourth Amendment is violated by the

warrantless monitoring of a beeper while it is located

inside private premises is one on which the courts of ap-

peals are sharply divided. The holding of the court of

appeals that a warrant is required in these circum-

stances is in accord with the decisions of the First and

Sixth Circuits, but conflicts with decisions of the Ninth

Circuit.

In United States v. Moore, 562 F.2d 106 (1st Cir.

1977), cert. denied, 435 U.S. 926 (1978), the court ac-

knowledged that “the limited data transmitted by a

beeper [is) far less revealing than the conversation re-

corded in Katz” and “the level of intrusion * * * less

severe.” 562 F.2d at 113. The court nevertheless con-

cluded that when the defendants took inside their house

a box of chemicals which, unbeknownst to them, con-

tained a beeper, “they had every right to expect that

their activities inside the house which they sought to

preserve as private would be free from warrantless in-

trusion by the Government.” bid.

Relying on Moore, the Sixth Circuit, in United

States v. Bailey, 628 F.2d 938, 944 (1980), concluded

that “[bJeeper surveillance of non-contraband personal

property in private areas trenches upon legitimate ex-

pectations of privacy and constitutes a search or seizure

within the meaning of the fourth amendment.” Al-

though the agents in Bailey had obtained a warrant

authorizing the use of the beeper, the court held that

the warrant was invalid because it contained no provi-

sion limiting the duration of the surveillance. /d. at

945-946. Accordingly, it suppressed evidence obtained

as a result of the beeper surveillance.

14

The Ninth Circuit, on the other hand, has consistent-

ly held that the Fourth Amendment permits the war-

rantless monitoring of a beeper attached to a container

that has been taken inside private premises. See

United States v. Brock, 667 F.2d 1311, 1318-1322

(1982), cert. denied, No. 81-6922 (Mar. 7, 1983); United

States v. Bernard, 625 F.2d 854, 860-861 (1980);

United States v. Dubrofsky, 581 F.2d 208, 211 (1978).

In Dubrofsky, for example, the court upheld the war-

rantless monitoring of a beeper transmitting from in-

side a package after it had been taken into a residence,

reasoning that a device that continually broadcasts

“here I am” constitutes only a “slight” intrusion and “is

not an impermissible search.” 581 F.2d at 211. The

court explained (ibid.) (footnote omitted):

Transmitting the package’s location is merely an

aid to what can be accomplished by visual surveil-

lance. Permissible techniques of surveillance in-

clude more than the five senses of officers and their

unaided physical abilities. Binoculars, dogs that

track and sniff out contraband, searchlights, fluo-

rescent powders, automobiles and airplanes, bur-

glar alarms, radar devices, and bait money contrib-

ute to surveillance without violation of the Fourth

Amendment in the usual case. On the other hand,

wiretaps, breaking and entering, and many other

searches and seizures fall on the other side of the

line. The issue before us is whether the mere pres-

ence of the beeper, it having been attached without

violating the Fourth Amendment, sufficiently re-

sembles a wiretap to require the “antecedent justi-

fication” that a warrant would provide. We hold

that it does not.

Moreover, although the instant case may be factually

distinguishable from Knetts, the decision below seems

to us inconsistent with the principle underlying Knotts.

Under the teaching of Knotts, the use of a beeper to

monitor the movement of a container from one location

15

to another does not disclose information as to which

there is a legitimate expectation of privacy, even

though each location may itself be private premises, be-

cause the actual movement—which is all that the

beeper reveals—takes place over public roads. Similar-

ly, the information revealed by the beeper—that it has

arrived at a particular location—is the same regardless

whether it is broadcasting its signals from a position in-

side the premises (as here) or outside the premises (as

in Knotts). The beeper tells nothing about the interior

of the premises into which it has been taken other than

the fact that it is there. Because, under Knotts, respon-

dents had no legitimate privacy expectations with re-

spect to the arrival of the container at any particular lo-

cations, it is immaterial that the beeper was actually

situated inside private residences or storage lockers at

the time its signals were monitored.

Even if the monitoring of a beeper in circumstances

such as those present here may be deemed a search or

seizure within the contemplation of the Fourth Amend-

ment, the court of appeals erred in imposing a warrant

requirement.’ In determining the reasonableness of law

enforcement actions in particular contexts, “the Court

has weighed the public interest against the Fourth

Amendment interest of the individual.” United States

v. Martinez-Fuerte, 428 U.S. 543, 555 (1976). There

can be little doubt that the governmental interest

served by the beeper surveillance in this case was sub-

stantial, if not compelling. See United States v.

Mendenhall, 446 U.S. 544, 561-562 (1980) (Powell, J.,

concurring). As this case illustrates, a beeper is an ex-

tremely useful investigative tool in uncovering illegal

drug manufacturing operations. By the same token, a

beeper is capable of conveying only strictly limited in-

7 We have set forth these arguments at length in our brief in

Knotts, copies which we are sending to counsel for respondents.

16

formation and poses little threat of revealing to govern-

ment agents any lawful private activity. See United

States v. Place, No. 81-1617 (June 2¢ 1983), slip op.

10-11. Because the substantial societal concern with

drug enforcement outweighs the limited intrusion, if

any, on privacy interests resulting from beeper surveil-

lance, use of a beeper to locate a source of illegal drugs

is fully justified on the basis of reasonable suspicion

that criminal activity is afoot.

If reasonable suspicion is sufficient to justify use of a

beeper, it follows that a warrant (which may only be is-

sued on probable cause) is not required under the

Fourth Amendment. But even if probable cause is re-

quired (and probable cause was clearly present here),

the monitoring of a beeper should not require a

warrant.

We note that, as a practical matter, by imposing a

warrant requirement whenever a beeper is taken into a

private area, the court of appeals has made it necessary

for agents to obtain a warrant in every investigation in

which a beeper is used, since they will not know in ad-

vance whether the beeper will be inside a private area

at the time its signals are monitored. But requiring a

warrant simply because a beeper may be monitored

while it is inside a private area ignores the lack of sub-

stantial privacy concerns implicated by beeper surveil-

lance. The marginal benefits of antecedent judicial con-

trol of the limited intrusions affected by beepers are

outweighed by the significant costs that would be en-

tailed by a warrant requirement.® In short, the decision

®* Certain technical requirements associated with warrants

are difficult, if not impossible, to satisfy in connection with the

use of beepers. For instance, the violation of privacy that is

supposed to exist in this case is the “search” of the private

premises in which the beeper-laden container is located, yet it is

plainly impossible to specify in the warrant application the place

to be searched (that is precisely what the beeper monitoring it-

17

below needlessly hampers the ability of law enforce-

ment authorities to employ an extremely effective de-

vice in uncovering illegal drug operations.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

Rex E. LEE

Solicitor General

STEPHEN 8. TROTT

Assistant Attorney General

ANDREW L. FREY

Deputy Solicitor General

ELLIOTT SCHULDER

Assistant to the Solicitor General

VINCENT L. GAMBALE

Attorney

NOVEMBER 1983

self discloses). Additionally, because long delays between the

procurement of the chemicals and the illicit manufacturing oper-

ation are common modus operandi of offenders like respondents,

beeper warrants are not amenable to temporal limitation like

other warrants. But see United States v. Bailey, 628 F.2d at

945-946.

la

APPENDIX A

UNITED STATES OF AMERICA, PLAINTIFF-APPELLANT,

Vv.

JAMES CONNORS KARO, RICHARD MILES HORTON,

WILLIAM ROBERTSON HARLEY, MICHAEL GAYLORD

STEELE, EVAN ROTH, GENE R. RHODES,

DEFENDANTS-APPELLEES.

Nos. 81-1899, 81-1902 to 81-1906.

United States Court of Appeals,

Tenth Circuit.

June 20, 1983.

Before MCWILLIAMS, LOGAN and SEYMOUR, Circuit

Judges.

LOGAN, Circuit Judge.

This appeal arises from an action in which defendants

James Karo, Richard Horton, William Harley, Michael

Steele, Evan Roth, and Gene Rhodes were charged

with conspiracy to possess cocaine with intent to dis-

tribute it, a violation of 21 U.S.C. § 846, and all defend-

ants except Rhodes were charged with possession of co-

caine with intent to distribute it, in violation of 21

U.S.C. § 841(aX(1). The defendants filed a joint motion

to suppress evidence against them, claiming that the

evidence was obtained in violation of their Fourth

Amendment rights. The government had obtained an

order authorizing the installation of an electronic

tracking beacon (beeper) in a can of ether ordered by

Karo, Horton, and Harley through a government in-

formant. Government agents had installed the beeper

and tracked the ether over a period of five months, dur-

2a

ing which the can had come to rest in four homes and

two rented storage lockers. Using the information ob-

tained from beeper and other surveillance, governmert

agents obtained a search warrant for the last residence

to which the ether was taken, where they seized sub-

stantial incriminating evidence. The district court held

that the order authorizing the installation of the beeper

was invalid because the government made deliberate

misrepresentations in the affidavits seeking the order.

The court suppressed all the evidence obtained from

the search of the residence as fruit of illegal monitoring.

The issues on appeal are (1) whether the govern-

ment’s appeal was timely filed; (2) whether the govern-

ment was required to obtain a search warrant to install

the beeper and use it to monitor movements of the can

of ether; (3) if the warrantless use of the beeper was il-

legal, whether the evidence seized under the search

warrant for the residence must be suppressed; and (4)

whether the district court erred in suppressing the evi-

dence as to all defendants.

The government must file its notice of appeal within

thirty days after entry of the judgment or order from

which it appeals. “A judgment order is entered within

the meaning of this subdivision when it is entered in the

criminal docket.” Fed.R.App.P. 4(b). A motion to re-

consider extends the time for filing a notice of appeal

only if the motion is filed within the thirty days allowed

for filing a notice of appeal. The notice of appeal must

then be filed within thirty days after the denial of the

motion to reconsider. United States v. Martinez, 681

F.2d 1248, 1253 (10th Cir. 1982).

In the instant case the judge stated in open court on

May 12, 1981 that the motion to suppress would be

granted. A notation of the ruling was made on the dock-

et that day. The judge followed with a written order

suppressing the evidence; the written order was dated

3a

and noted on the docket on May 22, 1981. The govern-

ment’s motion for reconsideration was timely if meas-

ured from May 22, but was not timely if measured from

May 12. The time allowed for appeal begins to run

“‘'wjhen the trial judge acts in a manner which clearly

indicates his intention that the act shall be the firal one

in [the] case, and a notation of the act has been entered

on the docket.’ ” United States v. Martinez, 681 F.2d at

1252 (quoting Rubin v. United States, 488 F.2d 87, 88

(5th Cir. 1973)). We believe that the May 22 entry rath-

er than the May 12 entry controls because when the

judge made his oral declaration he stated that a written

order would be entered. See United States v. Santia-

Manriquez, 609 F.2d 1162 (5th Cir. 1980); United

States v. Samango, 607 F.2d 877,880 (9th Cir.1979);

United States v. St. Laurent, 521 F.2d 506, 411 (lst

Cir.1975), cert. denied, 423 U.S. 1049, 96 S.Ct. 775, 46

L.Ed.2d 637 (1976); see also Carnes v. United States,

279 F.2d 378 (10th Cir. 1960). Therefore, the govern-

ment’s motion to reconsider and subsequent notice of

appeal were timely.

The government does not appeal the district court’s

finding that the order authorizing the beeper was inval-

id; therefore, the activity in this case must be treated

as warrantless installation and monitoring. The govern-

ment argues that no warrant was needed. Two claims

are advanced by the government to support this argu-

ment: that the defendants had no expectation of privacy

in the can of ether to which the beeper was affixed be-

cause the ether was contraband, and that any intrusion

from the installation or monitoring of the beeper was

too minimal to implicate the warrant requirement.

Ether is not a controlled substance, but the govern-

ment argues that because the ether was to be used to

produce cocaine it can be considered contraband. While

courts generally recognize that a person does not have

4a

a reasonable expectation of privacy in or right to pos-

sess contraband, see, e.g., United States v. Washing-

ton, 586 F.2d 1147, 1154 (7th Cir. 1978); United States

v. Pringle, 576 F.2d 1114, 1119 (5th Cir. 1978); United

States v. Emery, 541 F.2d 887, 889 (1st Cir. 1976), they

have been unwilling to extend this rule to objects that

are rightfully possessed but are suspected of use in

criminal activity, see, e.g., United States v. Knotts, 662

F.2d 515, 517 (8th Cir. 1981), rev'd on other grounds,

___._ U.S. —_, 108 S.Ct. 1081, 75 L.Ed.2d 55 (1983);

United States v. Bailey, 628 F.2d 938, 944 (6th Cir.

1980); United States v. Moore, 562 F.2d 106, 111 (1st

Cir.1977), cert. denied, 435 U.S. 926, 98 S.Ct. 1498, 55

L.Ed.2d 521 (1978). We agree that the suspicion that

noncontraband material might be used in criminal activ-

ity does not turn it into contraband. Therefore, the de-

fendants had a legitimate expectation of privacy in the

can of ether.

The government’s claims that the installation and

monitoring of the beeper were not unlawful searches or

seizures are much more difficult issues. Three of the

defendants—Karo, Horton, and Harley—ordered ten

five-gallon cans of ether from a government informa-

tion, Carl Muehlenweg. Muehlenweg alerted Drug En-

forcement Administration agents about the shipment

and told the agents that the ether would be used in the

production of cocaine. With Muehlenweg’s consent gov-

ernment agents substituted their own can with a

beeper installed in it for one of the cans in the ship-

ment. The can containing the beeper was delivered to

Muehlenweg’s residence in Albuquerque, New Mexico.

On September 20, 1980 Karo picked up the ether from

Muehlenweg’s residence. Using both visual and beeper

surveillance, DEA agents traced the ether to Karo’s

home. An agent subsequently monitored the beeper to

verify that the ether was still in Karo’s residence. Lat-

er that same day the ether was transferred to Horton’s

5a

home in the same city. No agent saw the transfer; the

new location was ascertained by use of a direction find-

er, which picked up the beeper signal. A DEA agent

also walked the public sidewalk near Horton’s residence

and smelled the odor of ether in the immediate vicinity

of the house.

Two days later, monitoring revealed that the ether

was no longer at Horton’s house. DEA agents had not

observed any movement. They used the direction finder

to locate the ether can in a third location, the home of

Horton’s father. The following day, the beeper was no

longer transmitting from Horton’s father’s home. By

using the direction finder, the agents were able to trace

the can to a commercial self-storage facility in

Albuquerque. When they could not trace the can to a

particular locker, they obtained a subpoena and deter-

mined that Horton and Harley shared the rental ex-

penses on locker 143. The agents verified that locker

143 contained the ether by walking to the front of that

locker and sniffing the odor emanating from the cans.

On October 8, 1980, DEA agents obtained an order

authorizing installation of an entry tone alarm into the

door jamb of locker 143. While opening the door of that

locker to install the alarm they observed the cans con-

taining the ether. Thereafter the agents apparently

relied upon the entry tone alarm, which malfunctioned.

They did not learn of the removal of the contents of the

locker until October 16, when the manager of the stor-

age facility informed them that the cans had been

removed..

Using their direction finder, the agents picked up the

beeper signal three days later at another self-storage

facility in Albuquerque. Through discussions with the

facility manager, the can of ether was traced to locker

15, which had been rented by Horton and Harley using

an alias. The agents obtained an order permitting the

installation of an entry tone alarm for this locker, but

6a

instead, with the permission of the manager, installed

in a separate locker a closed circuit video camera fo-

cused on the door of locker 15. This camera was moni-

tored by DEA agents, who observed Horton and

Harley visiting the locker. During this time the order

authorizing the beeper lapsed and was extended by

court order a few days later. Finally, on February 6,

1981, DEA agents observed by means of the video cam-

era that the ether cans were being removed from the

locker by Rhodes. Using both visual! and beeper sur-

veillance, the agents followed the ether to Rhodes’ resi-

dence. The record indicates that the ether remained in

a truck parked in the driveway of Rhodes’ residence.

That same day agents followed the truck to a residence

in Taos, New Mexico rented by Steele, Horton, and

Harley. The beeper was used to monitor the can of

ether while it was inside the Taos residence. Three

days later, the government obtained a search warrant

for the residence, which was executed the following

day. Horton, Harley, Steele, and Roth were arrested at

the residence, and cocaine and laboratory equipment

were seized in the search.

We first address the question whether the

warrantless installation of a beeper in the can of ether

designated to go to Karo was constitutionally permis-

sible. The government argues that because its inform-

ant, Muehlenweg, consented to placing the ether in the

can containing the beeper, no warrant was required.

This argument, which some courts have adopted, see,

e.g., United States v. Knotts, 662 F.2d 515, 517 n. 2

1 In United States v. Knotts, _. U.S. —___.,, 108 S.Ct. 1081,

75 L.Ed.2d 55 (1989), the Court did not consider the validity of

the warrantless installation because it was not challenged in

that case. Jd. at ___n. *, 103 S.Ct. at 1082 n. *. Here Karo’s

right to object to the admission of the evidence seized from the

Taos house depends upon the validity of the installation, which

he did challenge.

Ta

(8th Cir. 1981), rev’d on other grounds, ___. U.S. ___.,

103 S.Ct 1081, 75 L.Ed.2d 55 (1983); United States v.

Bailey, 628 F.2d 938, 943 (6th Cir. 1980), rests on the

assumption that what happens to an object before it

comes into the ownership of the defendant cannot be

complained of by the defendant. Before Karo took con-

trol of the ether, the can with the beeper was the prop-

erty of the DEA and the ether was the property of

Muehlenweg. At that time, the DEA and Muehlenweg

presumably could do with the can and ether whatever

they liked without violating Karo’s rights. But we do

not think that the analysis should end at this rudimen-

tary level. Although the physical installation of the

beeper in the can takes place before the new owner

picks it up, we believe an intrusion occurs at the tine

the item comes into his possession. All individuals have

a legitimate expectation of privacy that objects coming

into their rightful ownership do not have electronic de-

vices attached to them, devices that would give law en-

forcement agents the opportunity to monitor the loca-

tion of the objects at all times and in every place that

the objects are taken, including inside private resi-

dences and other areas where the right to be free from

warrantless governmental intrusion is unquestioned. In

United States v. Lewis, 621 F.2d 1382, 1388 (5th Cir.

1980), the court noted that “[t]here arguably is a right

to enjoy the use of goods without the possibility of

uninvited monitoring that [even] an unactivated beeper

would create.” The installation of a beeper on an item of

personal property gives the government the capability

of tracing every movement of the object on which the

beeper is placed. Since items of personal property sel-

dom travel on their own accord, the installation also al-

lows the tracing of movements of the person or persons

a regardless of the relationship of

that person to the information sought by the govern-

ment. We believe that individuals have a reasonable

8a

and legitimate expectation that the government will not

engage in such activity without the protections afforded

by resort to the judicial process. See Katz v. United

States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19

L.Ed.2d 576 (1967).2 Thus, regardless of the consent

obtained when the beeper is physically installed, an in-

fringement of the new owner’ Fourth Amendment

rights begins at the time the object comes into his con-

trol.? The consent of one owner to have a beeper in-

stalled cannot suffice to continue the installation once

the item belongs to someone else any more than the

consent of a previous owner of a suitcase could suffice

2 In United States v. Shovea, 580 F.2d 1382, 1387-88 (10th

Cir.), cert. denied, 439 U.S. 986, 99 S.Ct. 581, 58 L.Ed.2d 659

(1978) and 440 U.S. 908, 99 S.Ct. 1216, 59 L.Ed.2d 456 (1979),

this Court held that police could affix a beeper to the outside of

an automobile if they had probable cause to believe that it would

lead to evidence of a crime and exigent circumstances prevented

them from obtaining a warrant. Shovea recognizes the

instrusive nature of the presence of a beeper on personal prop-

erty; its rule accounts for the lessened expectation of privacy

genera!ly associated with automobiles. See also United States v.

Moore, 562 F.2d at 112-13 (applying probable cause standard for

automobiies but requiring warrant for monitoring of box of

chemicals).

3 Even cases relying strictly on the physical intrusion of in-

stallation prior to ownership recognize the concept of intrusion

that underlies our holding.

“(S]ince the Government owned the chemicals at the time it

installed the beeper, its consent obviated any potential

warrant requirement. However, ... the consent of the

Government could not satisfy the fourth amendment after

ownership and control of the chemicals passed to the de-

fendants. See United States v. Moore, , 562 F.2d at

111; United States v. C: » » F.2d [346] at

349 & n. 1 ((10th Cir. The Govenmnent’s waneeed |

expansion of the consent exception would allow

warrantless installation and of the beepers or

United States v. Bailey, 628 F.2d at 948 n. 7.

9a

to permit the police to periodically open and search the

suitcase after it comes under the ownership of another.

Therefore, we hold that before the government agents

could transfer the can of ether containing a beeper to

Karo, they had to obtain an authorizing warrant.

We also must determine whether the defendants’ le-

gitimate expectations of privacy were violated by the

action of the goverment in monitoring the beeper. In

United States v. Knotts, _. U.S. —_. , 108 S.Ct.

1081, 75 L.Ed.2d 55 (1983), officials tracked a drum of

chloroform containing a beeper from the place of its

purchase, through an automobile trip, to its burial un-

der a barrel outside a cabin owned by one of the defend--

ants. The Court held that no unlawful search or seizure

had occurred because no legitimate expectation of pri-

vacy of the defendants had been invaded. Jd. at ___ ,

103 S.Ct. at 1087. In reaching that conclusion the Court

relied in large part on the reduced expectation of pri-

vacy enjoyed by travelers on public roads. The Court

noted that nothing in the record indicated that the

beeper was used after the drum had been located in the

area of the cabin. It emphasized that visual surveillance

from public places along the route or adjoining the

premises would have revealed all of the same facts to

the police: the beeper was not used “in any way to re-

veal information ... that would not have been visible to

the naked eye from outside the cabin.” Jd. at ____ , 108

S.Ct. at 1087.

In the case before us the beeper was monitored while

the can was within private residences and storage lock-

ers. The beeper gave law enforcement officials informa-

tion that could not be discovered by ordinary visual sur-

veillance, even had that surveillance been constant. The

* While we only discuss Karo’s interest in the can of ether, we

do not foreclose the possibility that others also may have legiti-

mate expectations of privacy in the object at the time of

transfer.

10a

Knotts case involved surveillance over only a few days;

monitoring in the instant case took place over five

months. In Knotts the drum was never inside a resi-

dence; here the ether was inside four residences. In

Knotts the officers lost track of the automobile carrying

the drum once on the public highway; here the officers

lost track on the ether can for significant periods of

time, after the ether had come to rest in residences and

a rented locker. In the instant case, most of the tracing

to new locations was possible ony by use of the direc-

tion finder to locate the beeper.

The monitoring of the beeper in the instant case was

a different type of intrusion than that in Knotts, touch-

ing upon privacy interests that historically have been

protected by the Fourth Amendment. We hold that the

warrantless use of a beeper to monitor the location of

noncontraband withdrawn from public view inside pri-

vate residences or similarly protected places is an un-

constitutional search or seizure. We agree with the

statement of the court in United States v. Moore, 562

F.2d 106 (1st Cir. 1977), cert. denied, 435 U.S. 926, 98

S.Ct. 1498, 55 L.Ed.2d 521 (1978):

“When defendants withdrew from the public view,

taking the box of chemicals with them, they had

every right to expect that their activities inside the

house which they sought to preserve as private

would be free from warrantless intrusion by the

Government. Doubtless the limited data trans-

mitted by a beeper was far less revealing than the

conversation recorded in Katz; the level of intru-

sion was less severe. Still, as the chemicals con-

taining the transmitter were not contraband or

otherwise wrongfully in appellees’ possession, the

Government had no right to determine their con-

tinued presence in the house by use of warrantless

electronic surveillance.”

Id. at 113; see also United States v. Bailey, 628 F.2d

988, 940 (6th Cir. 1980) (“If the individual legitimately

lla

expected the information or material the Government

acquired to remain private, the act of the Government

acquiring that information or material constitutes a

search or seizure for fourth amendment purposes.”);

United States v. Clayborne, 584 F.2d 346, 351 n. 3

(10th Cir. 1978). Contra United States v. Bernard, 625

F.2d 854, 861 (9th Cir. 1980). Legitimate expectations

of privacy were violated by the monitoring of the

beeper while the can of ether with the beeper attached

was located in the defendants’ private residences and

storage lockers. That the can also traveled by motor ve-

hicle and may not have been protected during such

travel does not require a different result. The district

court correctly concluded that the government’s con-

duct in monitoring the beeper without a valid warrant

was unlawful.

Ividence seized pursuant to the search warrant for

the Taos residence may be suppressed only if that evi-

dence is tainted by the prior illegal conduct of the gov-

ernment. The test for determining whether evidence

derived from prior illegal conduct of the government

must be suppressed pursuant to the exclusionary rule

was set forth in Wong Sun v. United States, 371 U.S.

471, 838 S.Ct. 407, 9 L.Ed.2d 441 (1963):

“We need not hold that all evidence is ‘fruit of the

poisonous tree’ simply because it would not have

come to light but for the illegal actions of the po-

lice. Rather, the more apt ara in such a case is

‘whether, granting establishment of the primary il-

legality, the evidence to which instant objection is

pally oryineteud by nseep aaiicuatly datingelah

ity or instead by m 8 n inguish-

able to be purged ar te tolenes taint’ m

Id. at 488, 83 S.Ct. at 417. The government contends

that the evidence from the search of the Taos residence

was obtained by means independent of the beeper in-

12a

stallation and monitoring. The government argues that

during some of the time the beeper was being moni-

tored, the defendants were also under physical surveil-

lance. This argument would be convincing if the gov-

ernment could show that the location of the ether had

been determined at all times without the aid of the

beeper. This it has not alleged nor could it. The record

makes clear that several times during the monitoring of

the beeper the government agents lost track of the

ether and ascertained its location only by use of the

beeper. The claim that the agents could smell the ether

while it was locked within the residences and the stor-

age lockers is similarly unpersuasive: the agents were

in a position to smell the ether only because the beeper

had revealed its location.

To the extent that the affidavit filed in support of the

search warrant for the Taos residence relied on infor-

mation supplied by the illegal conduct of the govern-

ment, there is a link between the prior illegality and

the search warrant. The evidence seized from the

search of the residence is directly tied to the prior ille-

gal monitoring: without that illegal monitoring the gov-

ernment agents would not have arrived at the Taos res-

idence or known that the ether was within the house.

When that information is excised, the search warrant

for the Taos residence must fall.

IV

The government contends that even if the

warrantless installation and monitoring of the beeper

was unlawful, the court’s order suppressing the evi-

dence seized from the Taos residence as to all the de-

fendants was in error. The government claims that not

all of the defendants have demonstrated the invasion of

a legitimate expectation of privacy.

The district court held that each defendant experi-

enced the invasion of a legitimate expectation of pri-

vacy and could suppress the evidence seized from the

».

a ad

¥ 3%

13a

Taos residence.5 We agree that the Fourth Amendment

rights of Karo, Horton, Harley, Steele, and Roth were

violated. The beeper was monitored within the Taos

residence jointly rented by Steele, Horton, and Harley.

One has a legitimate expectation of privacy within one’s

home, Mancusi v. DeForte, 392 U.S. 364, 369, 88 S.Ct.

2120, 2124, 20 L.Ed.2d 1154 (1968), as well as within a

residence shared with others, United States v. Rettig,

589 F.2d 418, 423 (9th Cir. 1978). Roth did not rent the

Taos house with Steel, Horton, and Harley, but he was

a visitor at the house when the search warrant was exe-

cuted. He had resided there for several days and nights

and he had unrestricted access to the house. He there-

fore had a legitimate expectation of privacy in the

house. See Rakas v. Illinois, 489 U.S. 128, 140, 149, 99

S.Ct. 421, 428, 433, 58 L.Ed.2d 387 (1978); Jones v.

United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d

697 (1960); United States v. Robertson, 606 F.2d 853,

858 n. 2 (9th Cir. 1979). The evidence seized from the

Taos residence should be suppressed as to Horton

Harley, Steele, and Roth.

Neither Karo nor Rhodes has demonstrated a legiti-

mate expectation of privacy in the Taos residence; they

5 In ruling that all of the defendants could challenge the con-

duct of the government, the district judge stated:

“Now, as far as standing, in my view, the installation of a

beeper is a continuing search. It’s not just a search when

it’s put on the can on the loading dock, or wherever, it’s a

search wherever that can is tracing. And that’s the pur-

pose of the whole thing, is—and as is evident in this case,

it did a job. I say, accordingly, I think each person

has standing, has demonstrated standing to challenge, ex-

cept maybe the Defendant Roth is the only one I have a

question about in that regard. Everyone else has demon-

strated some connection with, or expectation of privacy

where the can was intruded. Some have demonstrated

ownership or possession of it. But rather than further com-

plicate the situation, I will just grant the motion to sup-

press as to all of the Defendants.”

l4a

can seek suppression of the evidence seized from that

residence only if they can demonstrate that that evi-

dence is tainted by prior illegal conduct violating their

rights. Karo’s right to own and possess the ether with-

out the presence of electronic devices was violated by

the illegal installation. The installation of the beeper is

inextricably intertwined with the later illegal moni-

toring of the beeper, including that monitoring directly

tied to the search of the Taos residence. Therefore, the

evidence seized from that house is tainted by prior ille-

gality infringing on the rights of Karo, and the suppres-

sion order for the evidence seized at that house was

correct as to him.®

While the district court held that Rhodes could chal-

lenge the conduct of the government, the court made no

factual findings from which we can review that determi-

nation. The record does not establish that the beeper

was monitored in any place in which Rhodes had a legit-

imate expectation of privacy. Rhodes did not establish

any possessory interest in the ether violated by the in-

*The government, relying on United States v. Clayborne,

584 F.2d 346 (10th Cir. 1978), claims that a break in the moni-

toring served to purge the evidence seized of the taint of the

primary illegality. The government asserts that this break

occurred when it lost contact with the beeper. However, we do

not read Clayborne to declare that a simple lapse in monitoring

would purge searches occurring thereafter from the taint of ille-

gal monitoring occurring prior to the lapse. That would afford

too little protection to the right to be free from warrantless

beeper surveillance in places protected by the Fourth Amend-

ment. Law enforcement officials could simply create a lapse by

periodically turning off the monitoring device; police would have

unfettered discretion in determining when to monitor the inside

of private residences and how to redress warrantless moni-

toring. Further, in the instant case the government cannot

point to a break between the illegal monitoring of the second

storage locker and the Taos house. Consequently, all evidence

obtained subsequent to the illegal monitoring of the second stor-

age locker is tainted in any event.

15a

stallation of the beeper. Therefore, on the basis of this

record, the evidence cannot be suppressed as to

Rhodes.

We reverse the district court’s suppression of evi-

dence as to Rhodes. In all other aspects, the judgment

of the district court is AFFIRMED.

16a

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

UNITED STATES OF AMERICA, PLAINTIFF,

Us.

JAMES CONNORS KARO, ET AL., DEFENDANTS.

CRIM NO. 81-21

[Filed Jul 10 1981]

MEMORANDUM OPINION

This matter comes before the Court on the motion of

the United States to reconsider and set aside the Order

of May 22, 1981 granting defendants’ motion to sup-

press evidence. All evidence which was the fruit of the

installation of an electronic king device to follow a

quantity of ether pursuant to the Order of September

10, 1980 was thereby suppressed. Included as fruit of

the electronic tracking device was evidence derived

from the installation of “entry tone alarms” in storage

lockers in Albuquerque, New Mexico and the search of

a house in Taos, New Mexico.

The Court has considered the motion and the memo-

randa filed in support of, and opposing, the motion to

reconsider and finds that it is not well taken. It will

therefore be denied.

The Government bases its motion to reconsider on

two grounds. One of its contentions is that, in this case,

the installation of an electronic tracking device (a

“beeper”) on the ether container was not an intrusion

which required the authority of a warrant issued upon a

sworn showing of probable cause. As authority for that

17a

proposition, the Government cites United States v. Mi-

chael, 645 F.2d 252 (5th Cir. 1981).

In Michael, the Fifth Circuit found no violations of a

defendant’s Fourth Amendment rights from the instal-

lation of a warrantless beeper installed on the exterior

of his van. The Court held the “minimal intrusion in-

volved in [the] attachment of a beeper to [a defendant’s]

van, parked in a public place, was sufficiently justified

so as to satisfy any of [his] fourth amendment expecta-

tion of privacy concerns.” Jd. at 256. The Fifth Circuit’s

position is not unique, however. Other Circuits, includ-

ing the Tenth, have also adopted the position that

warrantless beeper surveillance for the purpose of mon-

itoring vehicles along public roads is valid. See, e.g.,

United States v. Shovea, 580 F.2d 1382 (10th Cir. 1978),

cert. den., 440 U.S. 908 (1979); United States v. Moore,

562 F.2d 106 (1st Cir. 1977). As the Fifth Circuit noted

in Michael, the United States Supreme Court has rec-

ognized “significant differences between motor vehicles

and other property which permit warrantless searches

of automobiles in circumstances in which warrantless

searches would not be reasonable in other contexts.”

645 F.2d at 257, citing United States v. Chadwick, 433

U.S. 1, 12 (1977).

The beeper surveillance in this case went far beyond

the monitoring of a vehicle along a public road. The evi-

dence adduced at the suppression hearing established

that a beeper was installed in a container of ether which

had been ordered by some of the defendants; the ether

was subsequently taken by various defendants into at

least three private homes, two storage lockers rented

by the defendants and finally to a residence in Taos,

New Mexico. United States v. Michael is therefore in-

apposite to the facts present here.

The First Circuit, however, has had occasion to con-

sider the question before this Court in United States v.

Moore, 562 F.2d 106 (1977). In that case, federal agents

18a

had installed a beeper in a cardboard box containing

chemicals ordered by the defendants. A second beeper

was attached to the defendants’ van after they took de-

livery of the chemicals. Using those beepers in part,

the agents followed the defendants to a house and then

used the beeper in the box of chemicals to monitor the

presence of the chemicals in that house. The agents

subsequently obtained a search warrant; the search re-

vealed a number of chemicals and apparatus used in

manufacturing controlled substances.

The Court distinguished between the use of a beeper

to track a vehicle «nd the use of one to monitor the con-

tinued presence of chemicals in a private home. Finding

that once the defendants left the vehicle and entered

the house a right of privacy existed free from warrant-

less intrusion by the government, the Court held that

the use of the beeper to monitor the presence of chemi-

cals in the house was an invasion of the privacy of the

home. /d. at 113.

The Tenth Circuit faced a similar question in United

States v. Clayborne, 584 F.2d 346 (1978). There, DEA

agents installed a warrantless beeper on the inside of a

drum of ether ordered’ by one of the defendants. The

defendant subsequently took delivery of the drum and

transported it to his house. The agents were able to pe-

riodically monitor its presence in his home. During one

of those periodic checks, the agent found that the drum

was no longer at the defendant’s home; independent ef-

fort (i.e airplane surveillance) was necessary to re-

establish contact. The beeper signal was located at a

commercial premises leased by a second defendant and

used by defendants as an illicit drug laboratory.

The Tenth Circuit upheld the trial court’s decision

not to suppress evidence seized from the laboratory. In

so during the Court distinguished its decision from that

of the First Circuit in United States v. Moore. Citing

the special facts before it in Clayborne, the Tenth Cir-

19a

cuit held that only a slight intrusion, which did not con-

stitute a per se violation of the Fourth Amendment,

had occurred and that the use of the beeper without a

warrant in that case was not invalid. Jd. at 351. The

Court based its holding on its finding that the beeper

surveillancé of evidence within the house and that with-

in the laboratory were not connected transactions.

Thus, the laboratory contact was not tainted by the

surveillance within the house. Moreover, the Court

found that the privacy to be expected in the laboratory,

located in a commercial establishment susceptible to

outside viewing as well as public ingress and egress,

was not the same as properly would be expected in a

home. /d. at 350.

This Court’s May 22, 1981 Order suppressing the evi-

dence discovered and subsequently seized as a result of

the warrantless electronic surveillance of the ether con-

tainer in the case at bar is in accord with United States

v. Clayborne. The crucial difference between that case

and this one is that, in the instant case, the beeper sur-

veillance within the private homes to which the contain-

er of ether was taken and that within the storage lock-

ers and the house in Taos are all one “connected

transaction.” Clayborne, 584 F.2d at 349. Consequent-

ly, all contacts with the can of ether which occurred af-

ter it was picked up by one of the defendants and taken

inside the first private home are tainted. The container

1 In United States v. Moore, the First Circuit held that the

fact that the defendants initially had no rights in the containers

of chemicals was of no significance because they later obtained

lawful possession and the agents sought to use electronic

surveillance devices after the defendants o that posses-

sion. Moore, 562 F.2d at 111. It is noteworthy, in light of this

Court’s holding to that effect at the conclusion of the suppres-

sion hearing, that in Clayborne the Tenth Circuit indicated that

proposition been argued, it would have taken the

same on that point as did the First Circuit. Clayborne,

584 F.2d at 349 n.1.

4

z

20a

of ether in question here was monitored for a period of

several months. During that period the ether was taken

into at least three private residences and two storage

lockers rented by one or more of the defendants before

ultimately being taken to the residence at Taos where

the laboratory equipment and drugs were seized. The

warrantless electronic surveillance of the houses was

impermissible, because the Fourth Amendment clearly

protects interiors of private homes from such intru-

sions. Jd. at 351. A valid warrant was therefore re-

quired in this case to monitor the electronic beeper’s

signals after ownership and possession had passed to

the defendants. United States v. Bailey, 628 F.2d 938

(6th Cir. 1980).

The United States also contends that the Court erred

in its oral ruling on May 12, 1981 when it found that a

conflict existed between the testimony of the witnesses

DEA Agent Rottinger and Assistant United States At-

torney Blackmer over whether the issuing Judge was

apprised of the fact that Carl Muehlenweg was a coop-

erating witness rather than a suspect at the time the

application for the order authorizing the use of a beeper

was made. At the time of the hearing, the . ourt was of

the impression that there were basic conflicts in the

testimony of the-DEA Agent and the Assistant United

States Attorney as to that point. On that basis, the

Court indicated that if it were important, the Court

would find that the issuing Judge was not told. How-

ever, a review of the transcript reflects that the testi-

mony of the Agent and the United States Attorney

were in general agreement as to that point; both indi-

cated that the Judge had been advised of Muehlenweg’s

status.

That fact, even if assumed to be true, is of no signifi-

cance in this case. The affidavit was incorrect on its

face. It identified Carl Muehlenweg and other unnamed

confederates as targets of the investigation. Moreover,

2la

without identifying the incidents as such, the affidavit

described the execution of two previous search war-

rants on drug laboratories which were in no way con-

nected with the then current investigation of the target

suspects. The evidence adduced at the suppression

hearing estabished that those searches occurred several

months earlier and were unrelated to this investigation.

That fact appears nowhere on the face of the affidavit.

Although the testimony of Rottinger and Blackmer is in

agreement that the issuing Judge was told of Muehlen-

weg’s cooperation, the evidence established that those

statements, if made, were not sworn to or recorded. An

affidavit cannot be so corrected. Unsworn and

unrecorded testimony of an affiant before the issuing

Judge cannot be considered in determining probable

cause for the issuance of a search warrant. See United

States v. Hittle, 575 F.2d 799 (10th Cir. 1978);

Fed.R.Crim.P. 41(c).

It must be clearly noted that the Court is not finding

that the off-the-record statements claimed to have been

made by the Assistant United States Attorney and the

DEA Agent were in fact made to the issuing Judge.

Such a determinination is unnecessary under the law.

Were such a determination necessary, however, the

Government has, by pursuing-this course of action, cre-

ated the untenable situation where the facts as to what

transpired could only be resolved by the testimony or

affidavit of the issuing Judge.? Such a situation cannot

even be comtemplated, for it would create the impossi-

ble situation where one Judge would be called on to

pass on the credibility of another.

It is therefore concluded that the affidavit contains

material false and misleading statements and that it

was made knowingly and intentionally. Irf'so finding,

2 Indeed in this case the defendants offered to obtain a state-

ment or affidavit from the issuing Judge, which offer was re-

fused by the Court.

22a

the Court is mindful of the admonition that affidavits be

judged in a “common sense and realistic manner, and

warrants issued thereon should not be interpreted

hypertechnically.” United States v. Berry, 423 F.2d

142, 144 (10th Cir. 1970). No matter how worthy its

original intentions in proceeding in this manner, as the

architect of this dilemma the Government must suffer

the consequences of its own error in judgment. On its

face the afidavit is false. Once the incorrect and mis-

leading portions of the affidavit are purged, Franks v.

Delaware, 438 U.S. 154 (1978); United States v.

Axselle, 604 F.2d 1330 (10th Cir. 1979), the remaining

content is not sufficient to establish probable cause.

While this is a classic case demonstrating the harshness

of the exclusionary rule, the result is clear. The evi-

dence must be suppressed.

/s/ HOWARD C. BRATTON

Chief Judge

23a

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

MAY TERM - June 20, 1983

Before Honorable Robert H. McWilliams, Honorable

James K. Logan and Honorable Stephanie K. Seymour,

Circuit Court Judges.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLANT,

v8.

JAMES CONNORS KARO, RICHARD MILES HORTON,

WILLIAM ROBERTSON HARLEY, MICHAEL GAYLORD

STEELE AND EVAN ROTH, DEFENDANTS-APPELLEES.

JUDGMENT

Nos. 81-1899, 81-1902, 81-1903, 81-1904, 81-1905

(D. C. # CR 81-21)

This cause came on to be heard on the record on ap-

peal from the United States District Court for the Dis-

trict of New Mexico, and was argued by counsel.

Upon consideration whereof, it is ordered that the

judgment of that court is affirmed.

/s/ Howard K. Phillips

HOWARD K. PHILLIPS, Clerk

24a

APPENDIX D

JULY TERM - August 26, 1983

Before Honorable Oliver Seth, Honorable William J.

Holloway, Jr., Honorable Robert H. McWilliams, Hon-

orable James E. Barrett, Honorable William E. Doyle,

Honorable Monroe G. McKay, Honorable James K.

Logan, and Honorable Stephanie K. Seymour, Circuit

Judges

UNITED STATES OF AMERICA, PLAINTIFF-APPELLANT,

vs.

JAMES CONNORS KARO, ET AL,

DEFENDANTS-APPELLEES.

No. 81-1899, 81-1902, 81-1903, 81-1904, 81-1905, 81-1906

This matter comes on for consideration of the petition

for rehearing filed by Appellee Gene H. Rhodes in case.

No. 81-1906, and appellant’s petition for rehearing and

suggestion for rehearing in banc in the captioned cause.

Upon consideration whereof, the petitions for rehear-

ing are denied by the panel that rendered the decision

sought to be reheard.

The petitions for rehearing having been denied by

the panel to whom the case was argued and submitted,

and no member of the panel nor judge in regular active

service on the court having requested that the court be

polled on rehearing in banc, Rule 35, Federal Rulés of

Appellate Procedure, the suggestion for rehearing in

banc is denied.

/s/ Howard K. Phillips

HowaARD K. PHILLIPs, Clerk

25a

APPENDIX E

IN THF UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

UNITED STATES OF AMERICA, PLAINTIFF,

vs.

JAMES CONNORS KARO, RICHARD MILES HORTON,

WILLIAM ROBERTSON HARLEY, MICHAEL GAYLORD

STEELE, and EVAN ROTH, DEFENDANTS.

Criminal No. 81-21

[Filed May 22 1981]

ORDER

Upon consideration of the defendants’ motions to sup-

press evidence, and after hearing evidence and argu-

ment thereon, and upon the basis of the findings made

in open court,

IT IS ORDERED that all evidence which is the fruit

of the installation of an electronic tracking device to fol-

low a quantity of ether pursuant to the Order of Sep-

tember i0, 1980, be and it is hereby suppressed as evi-

dence as to all defendants.

Included in the above order as fruit of the electronic

tracking device is evidence derived from the installation

of “entry tone alarms” in storage lockers in Albuquer-

que, New Mexico and the search of a house in Taos,

New Mexico,

/s/ HOWARD C. BRATTON

Chief Judge

26a

APPENDIX F

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

UNITED STATES OF AMERICA, PLAINTIFF,

vs.

JAMES CONNORS KARO, ET‘AL., DEFENDANTS.

CRIM NO. 81-21

[Filed Jul 10 1981]

ORDER

This matter comes before the Court on the motion of

the United States to reconsider and set aside the Order

of May 22, 1981 granting defendants’ motion to sup-

press evidence. The Court has considered the motion

and entered a Memorandum Opinion herein, and con-

cludes that the motion is not well taken. It will there-

fore be denied. NOW, THEREFORE,

IT IS ORDERED that the motion of the United

States to reconsider and set aside the Court’s Order of

May 22, 1981 be, and hereby is, denied.

/s/ HOWARD C. BRATTON

United States District Judge