Respondents Brief — United States v. Karo

No. 83-850

see 4

In The

Supreme Court of the United States |

EVAS

October Term, 1983

UNITED STATES OF AMERICA,

Pit

~

JAMES CONNORS KARO,

Ri neodeonts

{)-

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

BRIEF FOR RESPONDENTS KARO,

ROTH AND STEELE

NANCY HOLLANDER REBER BOULT

Freedman, Bovd & Daniels 14712 Lomas Blvd., N\W

Priv Albuquerque, NM 87104

20 First Plaza, Suite 212 303) 842-0392

\lbuquercue, NM 87102 : ,

; ind ge pe ¢ ’ ) 7, : }

503) 842-9960 Counsel for Respondent Roth

Counsel for Respondent Karo

JAMES BEAM

715 Tijeras, NW

Albuquerque, NM 87102

303) 842-5924

Counsel for Respondent Steele

CALE PRINTIAG C a31il I ig.as st mia OS.

TABLE OF CONTENTS

Pages

Statement of Facts WW. 1

Summary of Argument ...... 2

Argument:

I. Monitoring A Beeper Within A Place In Which

One Has A Reasonable Expectation of Privacy

Ts A Search Within The Meaning Of The Fourth

Amendment. ....... 5

TT. Any Search Within A House Or Private Stor-

age Locker Invades Legitimate Expectations of

Privacy. .... 9

ITI. Both Probable Canse And A Warrant Are Re-

quired To Monitor A Beeper Inside A House... 11

TV. Adopting A Standard Of Reasonable Suspicion

Of Criminal Activity In This Situation Would

Be A Violation Of The Fourth Amendment. ...._ 18

V. It Is Feasible To Secure A Warrant Prior To

Installing And Monitoring A Beeper.

VI. The Fourth Amendment Must Flex To Meet The

Challenge Of New Technology.

VII. Installation Of A Beeper Requires A Warrant. 30

VIII. The Decision Should Be Affirmed Because Of

The Government’s Outrageous Conduct. sss 34

Conclusion 40

TABLE OF AUTHORITIES

CasEs:

Arkansas v. Sanders, 442 U.S. 753 (1979) _W+_22E>E Sd

Berger v. New York, 388 U.S. 41 (1967) 25, 27, 30

Carroll v. United States, 267 U.S. 132 (1925) .ww_-++Sessid4

G.M. Leasing Corp. v. United States, 429 U.S.

F.. se 16

ii

TABLE OF AUTHORITIES—Continued

Pages

Illinois v. Andreas, 103 S. Ct. 3319 (1983) ooo. 8

Johnson v. United States, 333 U.S. 10 (1948) ow. 11,12

Katz v. United States, 389 U.S. 347 (1967) 3, 4, 15, 16,

25, 28, 32

Lopez v. United States, 373 U.S. 427 (1963) 0. 27

Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) 29

Marshall v. Barlow’s, Inc., 436 U.S. 307 (1978) .000.. 16

MeNabb vy. United States, 318 U.S. 332 (1943) w= 35

Michigan v. Clifford, 104 S. Ct. 641 (1984) w0000U.12

Michigan v. Long, 103 S. Ct. 3469 (1983) 19, 20

Miller v. United States, 357 U.S. 301 (1958) ou.

Mincey v. Arizona, 437 U.S. 385 (1978) 16, 30

Mooney v. Holohan, 294 U.S. 103 (1935) . 38

Napue v. Illinois, 360 U.S. 264 (1959) . . 388

New York v. Belton, 452 U.S. 454 (1981) 000.16

Payton v. New York, 445 U.S. 573 (1880) 00.

Rawlings v. Kentucky, 448 U.S. 98 (1980) . 3

Sony Corp. v. Universal City Studios, 104 S. Ct.

774 (1984) 28

Sorrells v. United States, 287 U.S. 435 (1932) wu... 38

Terry v. Ohio, 392 U.S. 1 (1968) 18, 19, 20

Texas v. Brown, 103 S. Ct. 1535 (1983) 26

United States v. Bailey, 628 F.2d 938 (6th Cir. 1980)... 9

United States v. Beale, 52 U.S.L.W. 2280 (9th Cir.

Oct. 24, 1983) 9

iii

TABLE OF AUTHORITIES—Continued

Pages

United States v. Butts, 710 F.2d 1139 (5th Cir.),

rehearing en banc granted, No. 82-1260 (Oct. 25,

a eae EE ee 24

United States v. Cassity, 720 F.2d 451 (6th Cir.

1983), petition for cert. pending, No. 83-1398 .............. 24

United States v. Chadwick, 433 U.S. 1 (1977)....16, 17, 27, 31

United States v. Chavez, 603 F.2d 148 (10th Cir.

1979) 24

United States v. Cortina, 630 F.2d 1207 (7th Cir.

1980) Esker ae a 5, 35

United States v. Cox, 449 F.2d 679 (10th Cir. 1971),

cert, denicd, 406 U.S. 934 (1972) .nncccnnerssnsenneennene 20

United States v. Donovan, 429 U.S. 413 (1977) WW... . 2

United States v. Hasting, 103 S. Ct. 1974 (1983) wo. =689

United States v. Hogan, 712 F.2d 757 (2d Cir. 1983) .... 39

United States v. Janis, 428 U.S, 433 (1976) 00... 37

United States v. Kahn, 415 U.S. 143 (1974) 00. . =

United States v. Karo, 710 F.2d 1433 (10th Cir.

1983) .......... passim

United States v. Knotts, 103 S. Ct. 1081 (1983) ...10, 29, 32,

33, 34

United States v. Leon, cert. granted, No. 82-1771

(June 27, 1983) 16

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

(1976) 19

United States v. Michael, 645 F.2d 252 (5th Cir.)

(en bane), cert. denied, 454 U.S. 950 Lh

United States v. New York Telephone Co., 484

U.S. 159 (1977) 35

iv

TABLE OF AUTHORITIES—Continued

Page

United States v. Payner, 447 U.S. 727 (1980) .0000....35, 36

United States v. Place, 103 S. Ct. 2637 (1983) ....... 13, 20, 21

United States v. Rettig, 589 F.2d 418 (9th Cir.

| sia edlgemalaelandlaldSctesaisilcaiash ccc keaticaaearaan te 39

16, 30

United States v. Salvucci, 448 U.S. 83 (1980) oo 1d

United Stutes v. Villamonte-Marquez, 103 S. Ct.

ih Sp RRP POREIIE ANIC PR See rameter 19

United States v. White, 401 U.S. 745 (1971) 32

Vale v. Louisiana, 399 U.S. 30 (1970) wo. 11, 12, 14

Wong Sun v. United States, 371 U.S. 471 (1963) oo. 33

OTHER AUTHORITIES:

Say Uy SNININI UE Ww acniprtteceitesinecnekentsiccemas passim

18 U.S.C. $2517 (5) (1976) erecnccesnnen scnhaciitbniampaiaee ae

ee Reta SCPC CRIED Gictectnitsecsieeeieneetanioeseninens . 2

1 W. LaFave, Search & Seizure (1978) ecccccccccsoccnmscnsenennemen 13

No. 83-850

In The

Supreme Court of the United States

October Term, 1983

4s.

cies.

UNITED STATES OF AMERICA,

Petitioner,

V8.

JAMES CONNORS KARO, et al.,

Respondents.

ry

Vv

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

ty.

ier

BRIEF FOR RESPONDENTS KARO,

ROTH AND STEELE

, ———

oe

STATEMENT OF FACTS

The government’s statement of facts is adequate ex-

cept for the following additions:

In a footnote to its Statement of Facts, the govern-

ment errs in describing Karo’s status (Brief 10 n.5'). A\l-

though it correctly notes that Karo had no connection

'The brief for the United States in this Court is cited here-

in as ‘Brief’; the appendix to the Petition for Certiorari is cited

as “Pet. App.”’; and the Joint Appendix, “J. App.”

1

with the Taos residence the government searched as the

culmination of the beeper activity (except that the search

of that residence was the fruit of the intrusion of the

beeper into Karo’s personal property and the monitor-

ing of it in his home), the government incorrectly claims

Karo’s fourth amendment interest depends solely on the

installation of the beeper in his ether. The government

also invaded Karo’s fourth amendment interests by moni-

toring the beeper in his home. The Court of Appeals

noted this, United States v. Karo, 710 F.2d 1433, 1437,

1440 (10th Cir. 1983), and it is supported by the record

(J. App. 54).

The government’s statement of facts notes that while

under visual surveillance Karo took the ether to his house

and then returned to the informant, Muehlenweg’s resi-

dence. The government fails to mention, however, that

when Karo returned to Muehlenweg’s house, it was with-

out the ether, a fact the agents learned when, through the

use of their beeper, they determined that the ether con-

tainer remained in Karo’s house (J. App. 54).

—

——

SUMMARY OF ARGUMENT

The Court of Appeals correctly ruled that both the

installation of a beeper in a private property and the

monitoring of a beeper inside a home are searches within

the meaning of the fourth amendment and require prob-

able cause and search warrants. The government asserts

the rather remarkable proposition that “neither the lang-

uage nor the history of the Fourth Amendment reflects

any intention to require warrants as a condition to a ly~

ful search or seizure” (Brief 14). Although some searches

do not require warrants,

“(sJearches conducted outside the judicial process,

without prior approval by judge or magistrate, are

per se unreasonable under the Fourth Amendment—

subject only to a few specifically established and well-

delineated exceptions.”

United States v. Ross, 456 U.S. 798, 825 (1982) (quoting

Katz v. United States, 389 U.S. 347, 357 (1967)).

The point of departure in the government’s argument

is that the use of beepers does not constitute a search be-

cause the beeper only says ‘‘Here I am.’’ (Brief 36). The

premise to which the government continuously returns

misconstrues the true role of the beeper as a surveillance

tool. In our case the DEA agents secreted the beeper

in a container of ether. Just as a police agent might enter

a home to search for and possibly seize evidence, so these

DEA agents turned on their receivers and searched until

they found the beeper-laden container inside homes and

storage lockers. Barring limited exigent circumstances,

a police officer could never cross the threshold of a home

without a warrant. The use of a beeper to search a home

for a particular piece of evidence (here the ether con-

tainer) is exactly the same kind of search.

Installation of the beeper inside the sealed ether con-

tainer violated legitimate expectations of privacy of the

three respondents who owned the container. The ether

did not in any meaningful sense belong to the informant.

Three of the respondents had the real interest in it. Any

technical application of property law that would give the

informant the ability to invade the respondents’ expecta-

tions of privacy in their property would be inconsistent

4

with the fourth amendment’s protection of “people, not

places.” Katz v. United States, 389 U.S. 347, 351 (1967).

It would be like giving the government, acting through its

informant, the right to plant a listening device on the

respondents, to remain in place after the informant had

departed.

The government argues here that the installation and

monitoring of beepers should, even inside private homes

and inside private personal property, join the exceptions

commonly known as exigent circumstances that do not re-

quire warrants. These proposed new ‘‘beeper” exceptions

are nothing more than attempts to avoid the warrant re-

quirement so clearly a part of the fourth amendment. The

government would evade the warrant provision by:

1. Asserting that use of a beeper is never a search

(Brief 17, 23);

2. Destroying the distinction between searches with-

in a home and searches in other non-private locations

(Brief 26-27) ;

3. Claiming that, if probable cause is required, a

warrant is not (Brief 38);

4. Lowering the standard from probable cause to

reasonable suspicion (Brief 31);

5. Asserting the absurd proposition that it is im-

possible or unfeasible to obtain a warrant for a beeper

(Brief 42-46); and

6. Ignoring the import of changes in modern tech-

nology (Brief passim).

Finally, the fact that government agents lied to a

judge to obtain the warrant in this case is an independent

ground for suppression based on due process and the

courts’ supervisory power. Federal courts ‘‘must draw

the line at misconduct occurring within our own house[s].’’

United States v. Cortina, 630 F.2d 1207, 1217 (7th Cir.

1980).

ry

Vv

ARGUMENT

I. Monitoring A Beeper Within A Place In

Which One Has A Reasonable Expectation Of Pri-

vacy Is A Search Within The Meaning Of The

Fourth Amendment.

The beeper is a surveillance tool used to search for

the object into which it_is placed. When this search oc-

curs within a place where one has a reasonable expectation

of privacy, it constitutes a fourth amendment search. The

government describes the intrusion of a beeper as de

minimis because the beeper only announces its presence

(Brief 36) (and, more importantly, the presence of the

container in which it is secreted), but does not give any

information regarding the whereabouts of the defendants.

The government’s arguments concerning what,a beeper

is, what it does, and what it can do are disingenuous, in-

consistent, and not supported by the record. It calls a

beeper ‘‘merely a radio transmitter’? (Brief 25). Un-

equivocally a beeper, like many electronic surveillance de-

vices, is a radio transmitter; however, ‘‘merely” is hard-

ly a correct adjective for a device that transmits informa-

tion from within-the privacy of homes and other areas

protected by the fourth amendment.

According to the government, the beeper does not

disclose its ‘‘exact location” (Brief 25) when ‘‘monitored

from a distance.” (Id.). Neither the government’s brief

nor the record, however, tells us what ‘‘distance’’ is nec-

essary to destroy the capability of exactly locating it. In

this age of electronics it is a simple matter to get extreme-

ly accurate fixes using electronic devices. Many of these

devices are ‘‘merely” radio transmitters and receivers.

Furthermore, neither the record nor the brief explains

the ‘‘usual case’’ in which police agents ‘‘cannot determine

its precise resting place without exposing themselves to

detection.” (Id.). We may assume that under cover of

night or disguise the agents can usually get close enough

to the resting place to precisely determine its location.

The government does not contend that this case is not

‘*usual’’; it does state that here, at least, the beeper did

disclose that ‘‘the ether was inside private premises” at

the most crucial time. (Jd. n.9).

This reference to the ether being inside private prem-

ises diverges from the government brief’s consistent posi-

tion that the beeper only discloses its own |ocation. Ob-

viously, the beeper does disclose the location of its con-

tainer and of that container’s contents. And it is normally

the location of such items that police officers are trying

to determine when they search private premises. More-

over, in the case of a physical search, it is usually much

more important to determine that the item was within the

premises than it is to ascertain exactly where it was lo-

cated within the premises. For example, a police officer

commonly seeks a search warrant so he can enter a home

and search for a particular piece of evidence. Similarly,

a policeman turns on his receiver and uses his beeper to

‘‘search’’ for a particular piece of evidence, perhaps find-

ing it in a home, as happened here. The information

7

that the beeper discloses is, therefore, the same as the in-

formation disclosed by other searches subject to the war-

rant and probable cause requirements of the fourth amend-

ment.

The government acknowledges, moreover, that some

beepers even disclose what is happening to their contain-

ers while in these premises. (Id. n.10). The government

stops short of asking this Court to bottom its decision on

the kind of beeper employed, undoubtedly aware of the

trend in recent fourth amendment cases to establish clear

and unvarying rules that do not require policemen to in-

dulge in complex analyses depending upon factual nuances.

See, e.g., United States v. Ross, 456 U.S. 798, 821, 822

(1982). Such distinctions among these kinds of electronic

transmitting devices would plunge the courts and law en-

forcement officers into a hopeless technological quagmire.

The government attempts to justify use of the beeper

and at the same time deny that it is used to search on

the grounds that it really does not help all that much.

It claims everything the beeper discloses, the agents could

discover by constant surveillance. (Brief 37). At the

same time, the government maintains that it is a sorely

needed law enforcement tool. (Brief 28 n.12). The gov-

ernment concedes, as it must given the facts in this case,

that the beeper gives it capabilities it absolutely could not

have even with a veritable army of visual surveillance

agents.? In addition to the location and activity within

the opaque walls of a house, the possibility is more actual

than ‘‘theoretical” (Brief 28 n.12) that measures that

?The Court of Appeals found that, “[t]he beeper gave

law enforcement officials information that could not be dis-

covered by ordinary visual surveillance, even had that sur-

veillance been constant.” 710 F.2d at 1439.

8

would not be detected by lawful visual surveillance, would

have vo effect on electronic surveillance. In this case the

agents followed Karo visually only to discover later that

he had left the beeper and ether in his house. (J. App. 54).

Illinois v. Andreas, 103 S. Ct. 3319 (1983), does not

support the government’s argument. The Court decided

that case on the rationale of the plain view doctrine:

[OJnece a container has been found to a certainty

to contain illicit drugs, the contraband becomes like

objects physically within the plain view of the police,

and the claim to privacy is lost.

Id. at 3324 (footnote omitted).

The Court reasoned that it was nearly impossible in the

short period that the container was out of sight of the

police for its contraband contents to have been changed;

consequently its reopening was not a search. Jd. Here,

the container was behind closed doors for extended pe-

riods of time.

A search is not any less a search because the resourc-

es used cannot relay total information. A search that dis-

closes facts about a piece of closed personal property is

a search. ‘‘{[T]he Fourth Amendment provides protec-

tion to the owner of every container that conceals its con-

tents from plain view.’’ United States v. Ross, 456 US.

798, 822-23 (1982). It is outreageous to describe a sur-

veillance tool, used for five months, invading four resi-

dences and two storage lockers as a de minimis intrusion.

An intrusion is not de minimis if it violates an indi-

vidual’s legitimate expectation of privacy. The Gov-

ernment’s argument that the beeper surveillance is

too minor an intrusion to constitute a search begs

the question: the intrusion is minor only if it does

not violate protected individual privacy.

9

United States v. Bailey, 628 F.2d 938, 940 (6th Cir. 1980)

(footnote omitted). Another Court of Appeals has noted

that the ‘‘unintrusiveness of a search does not reduce, or

have any effect on, the basic expectation of privacy in the

thing searched.’’ United States v. Beale, 52 U.S.L.W.

2280 (9th Cir. Oct. 24, 1983).

II. Any Search Within A House Or Private

Storage Locker Invades Legitimate Expectations

Of Privacy.

Nothing has been so firmly rooted in the constitutional

history of this country and indeed of the English common

law has the right to privacy inside one’s home. William

Pitt, (the Elder) Ear! of Chatham, said it most eloquently

when he addressed the House of Commons in March 1763:

“The poorest man may in his cottage bid defiance

to all the forces of the Crown. It may be frail; its

roof may shake; the wind may blow through it; the

storm may enter; the rain may enter; but the King

of England cannot enter—all his force dares not cross

the threshold of the ruined tenement!”

Quoted in United States v, Ross, 456 U.S. 798, 822 n.31

(1982). See also Miller v. United States, 357 U.S. 301,

307 (1958). This Court has never failed to affirm this

fundamental constitutional right. ‘‘In terms that apply

equally to seizures of property and to seizures of persons,

the Fourth Amendment has drawn a firm line at the en-

trance to the house. Absent exigent circumstances, that

threshold may not reasonably be crossed without a war-

rant.’”’ Payton v. New York, 445 U.S. 573, 590 (1980).

In defiance of this clear historical mandate, the gov-

ernment seeks to erase the major premise of the fourth

amendment, leaving nothing but an empty shell.

[GJiven the limited information conveyed by a beeper

and the limited uses to which such information may

10

be put, it is wholly arbitrary to differentiate for con-

stitutional purposes between beeper signals that em-

anate from inside rather than from outside private

premises.

(Brief 26-27).

This crucial constitutional distinction remained firmly

intact in the only beeper case this Court has decided,

United States v. Knotts, 103 8. Ct. 1081 (1982).

Respondent Knotts, as the owner of the cabin and

surrounding premises to which Petschen drove, un-

doubtedly had the traditional expectation of privacy

within a dwelling place insofar as the cabin was con-

cerned.

Td. at 1085.

Each respondent in this case had the same ‘‘tradi-

tional expectation of privacy within a dwelling place’’ that

Knotts affirmed. Without benefit of a warrant, DEA

agents monitored their beeper inside houses and storage

lockers owned by or occupied by each respondent in this

ease. No accepted exigent circumstance existed to avoid

the warrant requirement.‘

3in another section of its brief, the government refutes

this argument that it is “wholly arbitrary” to differentiate be-

tween the inside of a house and the outside (Brief 27) by con-

ceding that a warrant rdhig ory to go into a house to replace

* the batteries in a beeper (Brief 44, n.19). But this warrant re-

quirement would be just as arbitrary if the agent truly confined

himself to replacing the batteries. Indeed, it is more illogical

because the hypothetical agent who confines himself to the

batteries, searches for and seizes nothing while in the house,

whereas the beeper tells the government that its container is

= = house, i.e., it searches the house for the container and

nds it. “

‘The government has not argued below that any exigent

circumstances existed to avoid the warrant requirement. Given

the fact that the government did get a warrant here, albeit a

defective one, the argument is specious.

‘

11

The government argues that the information gained

from monitoring the beeper is the same whether the beep-

er is inside or outside a home, making the resultant

searches indistinguishable. (Brief 26). This is clearly not

the case. For instance, the police may seize a marijuana

plant sitting by the curb without a warrant but cannot

seize that same plant located inside a house unless by

proper warrant. Similarly, an officer can lift a finger-

print from an outside fencepost but must have a warrant

to enter a suspect’s home to search for or seize a finger-

print from an inside window. The filzw in the govern-

ient’s analysis is that the protection of the fourth amend-

ment does not turn on the type of information gathered.

The focus, rather, is on the subject’s interest in the place

searched or the property seized. E.g., United States v.

Salvucci, 448 U.S. 83 (1980). The beeper is in reality a

tiny, yet ubiquitous, government agent hiding inside the

house, continuously searching to determine that its con-

tainer remains in the home and broadcasting this informa-

tion to agents on the outside.

III. Both Probable Cause And A Warrant

Are Required To Monitor A Beeper Inside A

House.

Without explicitly saying it, the government advances

here for the first time in this litigation the proposition

that this Court should overrule the long-standing princi-

ples of cases such as Johnson v. United States, 333 U.S. 10

(1948)5, and Vale v. Louisiana, 399 U.S. 30 (1970). The

government contends that even if probable cause is re-

SThe government cites Johnson in support of its argument

against the need for a warrant (Brief 41). The defendants

rach eg agree with the implications of the government's quo-

tation from that case, that the conclusion as to whether prob-

(Continued on next page)

12

quired, a warrant should not be. (See Brief 38-46). This

contention flies directly in the face of well-established,

fundamental requirements of the fourth amendment to

require both a showing of probable cause and a warrant.

Any assumption that evidence sufficient to support

a magistrate’s disinterested determination to issue a

search warrant will justify the officers in making a

search without a warrant would reduce the Amend-

ment to a nullity and leave the people’s homes secure

only in the discretion of police officers.

Johnson, 333 U.S. at 14 (footnote omitted). And:

our past decisions make clear that only in ‘‘a few

specifically established and well-delineated” situa-

tions . .. may a warrantless search of a dwelling

withstand constitutional scrutiny, even though the

authorities have probable cause to conduct it.

Vale, 399 U.S. at 34.

In Michigan v. Clifford, 104 S. Ct. 641 (1984), this

Court reaffirmed the viability of the warrant requirement

where houses are involved. Although there was some dis-

agreement over the exigenvy of the circumstances and over

the standards for an administrative search, the Court was

unanimous that absent consent or exigency a warrant is

required when government agents enter a house to gather

evidence of criminal activity. 7d. at 646 (plurality opin-

ion), 652 (Stevens, J., concurring), 653 (Rehnquist, J.,

(Continued from previous page)

able cause exists should “ ‘be drawn by a neutral and detached

magistrate instead of being judged by the officer engaged in

the often competitive enterprise of ferreting out crime’ ” (id.,

quoting 333 U.S. at 14). This case is a perfect illustration of this

need. Here, the law enforcement officials, including an As-

sistant United States Attorney, were so swept up in their “com-

petitive enterprise” that they lied to the “neutral and detached

magistrate.” (. App. 156).

13

dissenting, but agreeing with the majority that either a

warrant issued upon probable cause or exigent circum-

stances is required). With some exceptions not relevant

either there or here, ‘‘the nonconsensual entry and search

of property is governed by the warrant requirement of

the Fourth and Fourteenth Amendments.” 7d. at 646.

The government concludes its argument with a quota-

tion from Professor LaFave’s treatise which seemingly

supports a contention that the warrant clause might not

apply. (Brief 46). It omits, however, two pertinent facts

about this quotation: (1) The sentence immediately before

the quotation shows the professor is discussing ‘‘the use

of trained dogs to sniff out drugs or explosives.” 1 W. La-

Fave, Search and Seizure, § 2.2, at 289 (1978). (2) The

sentence immediately following the government’s quota-

tion is: ‘‘However, this position has not as yet received

attention from the courts.’’ 7d. at 290. In his supplement

the author discusses this Court’s approval of some uses of

‘‘canine sniffs” in United States v. Place, 103 8. Ct. 2637

(1983). Zd. at 80-85 (Supp. 1984). He notes that the use of

the dog approved in Place ‘‘disclosed only criminality and

’ id. at 80, and “no intrusion upon an inno-

nothing else,’

cent person’s privacy interest occurs,’’ id. at 81. Here the

beeper disclosed the location of noncriminal materials

within the home and invaded at least one innocent person’s

privacy interests. The beeper discloses a great deal more

than criminality and is thus more like a traditional physi-

cal search than the “sui generis’’ dog sniff. 103 S. Ct. at

2644.

14

Even if it were appropriate to consider the issue for

the first time in this Court,® there is no valid reason to

make beepers an exception to the warrant clause. Counsel

have found no cases requiring probable cause yet dispens-

ing with the warrant requirement for searches except in

situations involving exigent circumstances or consent.’ The

government, in fact, never advances a clear rationale for

creating a beeper exception to the warrant re juirement.

It complains that the Court of Appeals’ “holding will force

avents to obtain warrants in every beeper case... .” (Brief

39). The obvious rejoinder is to ask what is so terrible

about obtaining a search warrant, at least when, as is

usually the case with beepers and was the case here, there

‘The facts upon which the government relies for probable

cause are not facts that it included in its affidavits for warrants

in this case. The trial judge specifically found that “[o]nce

the incorrect and misleading portions of the affidavit are purged

... the remaining content is not sufficient to establish prob-

able cause’ (Pet. App. 22a). The trial judge never made a

factual finding a the facts the government now states

constitute probable cause because he ruled that “the law is

clear as far as the probable cause, you can’t go outside of the

affidavit .. .”” (J. App. 156). Even the limited fact finding done

by this Court in constitutional cases would not be appropriate

here because the credibility of the witnesses upon whom the

government is relying for the facts has already been ques-

tioned by the trial court (J. App. 156). Furthermore, while the

government asserts that “(t]he court of appeals did not ques-

tion the existence of probable cause in this case” (Brief 39),

the government did not claim before that court that it had

probable cause.

"Vale refers to the consent exception and breaks the exi-

gent circumstances into several categories: response to an

emergency, hot pursuit, goods in the process of destruction

or about to be removed from the jurisdiction. 399 U.S. at

35. Carroll v. United States, 267 U.S. 132, 151, 153 (1925), makes

clear that the automobile exception to the warrant requirement

is based on exigent circumstances—the moveability of the ve-

hicle makes it impractical to get a warrant.

15

is ample time to do so. And of course exigent cireum-

stances can sometimes excuse failure to comply with the

warrant requirement. More fundamentally, the govern-

ment’s complaint betrays its hostility to search warrants

and to the Constitution. The government expounds on its

hostility to the Constitution by complaining that a “war-

rant requirement would necessitate compliance with vari-

ous procedural technicalities ....” (Brief 45). This is

said to raise the specter that the evidence could be sup-

pressed and to “trivialize the Warrant Clause.” (Jd. 46).

The government never explains how this is different from

other situations where a warrant is required. The “vari-

ous procedural technicalities” are nothing more than the

requirements of the fourth amendment’s Warrant Clause;

to call them technicalities does not enlighten the argument

although this terminology in itself may be said to “trivia-

lize” the fourth amendment. The government’s position

here goes beyond the argument the government made, and

the Court rejected, in Katz:

The Government does not question these basic

principles [of the fourth amendment]. Rather, it

urges the creation of a new exception to cover this

case. It argues that surveillance of a telephone booth

should be exempted from the usual requirement of ad-

vance authorization by a magistrate upon a showing

of probable cause. We cannot agree. Omission of

such authorization “bypasses the safeguards provided

by an objective predetermination of probable cause,

and substitutes instead the far less reliable procedure

of an after-the-event justification for the... search,

too likely to be subtly influenced by the familiar short-

comings of hindsight judgment.” Beck v. Ohio, 379

U.S. 89, 96 (1964).

389 U.S. 347, 358 (1967) (footnote omitted).

16

In presenting the specter of suppression, the govern-

ment argues the case that is not before the Court. It refers

to the possibility “of an inadvertent failure to observe

some procedural technicality associated with the warrant

requirement.” (Brief 45). As we are all aware, there are

and have been other cases pending before this Court in

which the effect of “inadvertent failure” is in issue. See

United States v. Leon, cert. granted, No, 82-1771 (June 27,

1983). But here there was nothing inadvertent: the gov-

ernment deliberately lied to the judge.

The government also invokes the car search exception

to the warrant requirement. To the great detriment of

respondent Rhodes, the Court of Appeals gave the car

search exception its greatest scope: every time the beeper

entered a car, the respondents lost not only the protection

of the warrant clause but the entire protection of the

fourth amendment for whatever monitoring occurred while

the beeper was in the car. 710 F.2d at 1441. The only

reason to raise car searches here is to attempt to expand

the car search exception into the home.

The requirement of a warrant “subject only to a few

specifically established and well-delineated exceptions” is

fundamental.’ See, e.g., United States v, Ross, 456 U.S.

798, 825 (1982); New York v. Belton, 453 U.S. 454, 457

(1981) ; Mincey v. Arizona, 437 U.S. 385, 390 (1978) ; Mar-

sha'l v. Barlow’s, Inc., 436 U.S. 307 (1978); United States

v. Chadwick, 433 U.S. 1 (1977); G.M. Leasing Corp. v.

United States, 429 U.S. 338 (1977). Whatever exceptions

may have been made to the warrant requirement, it clearly

8Katz v. United States, 389 U.S. 347, 357 (1967).

17

retains its full validity in homes and offices (and, neces-

sarily, in such home/office type areas as private storage

lockers). See, e.g., the government’s argument in United

States v. Chadwick, 433 U.S. 1, 6-7 (1977) that the warrant

requirement for searches in homes, offices, and private

communications lies “at the core of the Fourth Amend-

ment.” In Chadwick the Court was emphatic in holding

that the government’s view that the fourth amendment’s

warrant requirement was limited to these places was far

too narrow. See id. at 6-11, 16-17 (Brennan, J., concur-

ring), 17 (Blackmun, J., dissenting). Although the dis-

senting opinion in Chadwick noted that this unduly narrow

argument “served to distract the Court from the more im-

portant task,” id., here the government is taking an even

narrower view by contending that some ron-exigent inva-

sions of the home are not protected by the fourth amend-

ment generally or the warrant clause particularly.

The government returns again and again to an argu-

ment that some balance should be struck that will allow it

to intrude beepers into homes without a warrant and with-

out probable cause. But:

“The warrant requirement has been a valued part of

our constitutional law for decades, and it has deter-

mined the result in scores and scores of cases in courts

all over this country. It is not an inconvenience to be

somehow ‘weighed’ against the claims of police effi-

ciency.”

Arkansas v. Sanders, 442 U.S. 753, 758 (1979) (quoting

Coolidge v. New Hampshire, 403 U.S. 448, 481 (1971)).

This very case provides an example of the indiscrimi-

nate effect these devices can have on those who are not

involved in or who are not the targets of the surveillance.

~

18

Here, for example, the beeper went into the home of the

father of one of the respondents. (J. App. 54, 76-77). It

takes little imagination to envision the inherent potential

in these devices for unrestrained intrusion in the lives of

innocent people. The government, in arguing for a bal-

ance that would allow it to use these devices at will, free

of judicial restraint, seeks to load the balance by stressing

only their utility in catching drug manufacturers and

dealers. Whether this narrow focus is an intentional ap-

peal to the emotional issue of drug trafficking, it certainly

understates the capabilities, potential uses, and potential

misuses of the devices. The government, like the ancient

Greeks, is using the drug trade as a Trojan Horse to con-

ceal its soldiers inside the home.

IV. Adopting A Standard Of Reasonable

Suspicion Of Criminal Activity In This Situation

Would Be A Violation Of The Fourth Amendment.

The government asks this Court to adopt a standard

of “reasonable suspicion that criminal activity is afoot” in

all cases utilizing beepers, regardless of the intrusion in-

volved. (Brief 37). It argues that even if monitoring the

beeper under the facts of this case constituted a search or

seizure under the fourth amendment, the beeper use should

be considered “reasonable” if based upon reasonable suspi-

cion as opposed to probable cause. The government cites

Terry v. Ohio, 392 U.S. 1 (1968) and this Courts’ recogni-

tion that not all police actions that qualify as fourth

amendment searches or seizures are so intrusive that they

require probable cause. The government cites no autho-

rity in support of its position that search or seizure into

private storage lockers and private residences over an

unlimited period of time is “reasonable” under the fourth

19

amendment when supported by a mere reasonable suspi-

cion of criminal activity.

The instant case is not subject to the application of

Terry principles. Terry involved the narrow authority of

police officers to undertake investigative action on a pub-

lic street, a limited physical intrusion for a brief period of

time. The Court found even this limited “frisk” in Terry

to constitute a “search” under the fourth amendment. The

sole justification for the “search” in Terry was the pro-

tection of the officer, a justification not remotely arguable

under the facts of the present case.

The recent decisions of this Court do not support ap-

plication of Terry principles to the searches and seizures

encountered here. United States v. Martinez-Fuerte, 428

U.S. 543 (1976), dealt with routine vehicle stops at fixed

checkpoints on the public roadways and detention for a

few minutes. United States v. Villamonte-Marquez, 103 S.

Ct. 2573 (1983), sanctioned the suspicionless boarding of

vessels on waterways open to the sea to examine the ves-

sel’s documentation. Both involved the exigent circum-

stances of mobility intertwined with the customs search

rationale. Neither of these exigencies are present here.

Michigan v. Long, 103 S. Ct. 3469 (1983), applying

Terry principles to a weapons search of a vehicle during a

lawful stop, reiterated that the allowance of searches and

seizures based on reasonable and articulable suspicion is

severely limited. The Terry “stop and frisk” doctrine

comes into play only when police officers are in danger

and exigent circumstances preclude resort to the judiciary.

Cases decided prior to Long showed that only “protection

of police and others can justify protective searches when

20

police have a reasonable belief that the suspect poses a

danger.” Jd. at 3480. The search in Long was “restricted

to those areas to which Long would generally have imme-

diate control, and that could contain a weapon”. Id, at

3481.

None of these cases presented a factual situation an-

alogous to the present case. None addressed governmental

intrusions into private areas of traditional constitutional

sanctity that individuals enjoy in their homes. None ad-

dressed governmental intrusions virtually unlimited in

duration. All involved exigencies that prevented access

to a magistrate. The government now asks this Court to

remove the traditional constitutional! protections of privacy

afforded the individual in a home and place him in the

same position as if he were walking a public street, driving

a public roadway or traveling through a public airport.

This Court has traditionally rejected such attempted in-

roads and should do so here.

Perhaps the most remarkable of the government’s

analogies is to United States v. Place. 103 S. Ct. 2637

(1983). Although Place extended the Terry doctrine to a

seizure of luggage, the touchstone of Place was a reaffir-

maiton of the Terry requirement that the detention must

be brief.

The length of the detention of respondent’s luggage

alone precludes the conclusion that the seizure was

reasonable in the absence of probable cause. Al-

though we have recognized the reasonableness of

seizures longer than the momentary ones involved in

Terry, Adams (v. Williams, 407 U. S. 143 (1972)], and

[United States v.] Brignoni-Ponce [422 U.S. 873

(1975)], see Michigan v. Summers, [452 U.S. 692

(1981) ], the brevity of the invasion of the individual’s

21

Fourth Amendment interests is an important factor

in determining whether the seizure is so minimally in-

trusive as to be justifiable on reasonable suspicion.

United States v. Place, 103 S. Ct. at 2645.

The government also equates the five-month-long

monitoring of the beeper from within storage lockers and

homes in this case with the minimal intrusion involved in

the “canine sniff” of a traveler’s luggage in a public air-

port. (Brief 30). The Place decision did not question .

that detention of personal luggage upon reasonble suspi-

cion of drug-trafficking was an intrusion on an individ-

ual’s persona! security but held that exposure of the lug-

gage, located in a public place, to a trained narcotics detec-

tion dog did not constitute a “search” within the meaning

of the fourth amendment. Therefore, no warrant was re-

quired for the canine sniff of the luggage in the first in-

stance.

In making its determination in Place, the Court noted

that the canine sniff of the luggage in a public place did

not require opening the luggage nor did it expose noncon-

traband items “that otherwise would remain hidden from

public view.” 103 S. Ct. at 2644. The sniff disclosed only

the presence or absence of the odor of narcotics, a contra-

band item, outside of the luggage.

The principles of the canine sniff have no application

to this case. The canine sniff involves the suspected

presence of only contraband items whereas the present

case involves tracking a noncontraband substance removed

from public view. The canine sniff generally pertains to

luggage or packages located in a public place whereas the

intrusions in the present case were directed into private

storage lockers and homes. The canine sniff is extremely

22

limited in duration whereas the present case allowed in-

trusions into private areas for extended periods of time.

The canine sniff involves a reaction to the odor of con-

traband present on the outside of the item, permitting

the deduction that contraband is present inside the

item, whereas in the present case the governmental pres-

ence, through its beepers, extended directly into areas tra-

ditionally associated with legitimate privacy expectations.

The canine sniff generally involves the exigencies incident

to the movement of travelers and their luggage through

public areas such as airports, whereas the present case

demonstrates no such exigencies. Moreover, the dogs

themselves in these cases were never placed inside homes,

private luggage and other protected places in order to

obtain information unavailable without such an inside

“detector.”

In United States v. Michael, 645 F.2d 252 (5th Cir.)

(en banc), cert. denied (apparently because of prematur-

ity), 454 U.S. 950 (1981), Judge Tate’s dissent prophesied

the government’s argument here.

The standard that reasonable suspicion of criminal

activity is a justification for a warrantless search is

newly created in this case. No case is cited to support

it. In oral argument government counsel were asked

to supply cases supporting this theory. Counsel could

come up with nothing. Sitting en bane we have the

power to create this new rule subject to Supreme

Court review. But there should be some better basis

than the mischaracterization of the intrusion as a

nickel and dime trespass, and the fact that the police

were trying to catch illegal drug manufacturers. As

surely as the sun rises, reasonable suspicion will now

be urged as justification for intrusions that even the

majority would accept as serious, and searches here-

tofore barred by the Fourth Amendment will be urged

ht hn ah

a aa . pray a e a

a

23

as valid because done in pursuit of all types of sus-

pected criminal activity. In fact, few searches are

made for any reason other than attempts to catch

suspected law violators.

645 F.2d at 272-73 (footnote omitted).’

What Judge Tate feared has happened. The govern-

ment now asks this Court to apply the standard of reason-

able suspicion to this case where there have been several

serious intrusions into the respondents’ homes, into pri-

vate storage units leased for the purpose of securely stor-

ing personal belongings and into their activities for a

five month period. If the government is permitted to ex-

cise the entire second clause requiring probable cause

and a warrant prior to a serch, precious little will remain

of the fourth amendment.

V. It Is Feasible To Secure A Warrant Prior

To Installing And Monitoring A Beeper.

The government argues that the use of beepers should

be considered a special—new—exigent circumstance be-

cause it is not feasible to secure a warrant prior to install-

ing or monitoring them (Brief 38). The facts in this case

belie that contention. Here, the government did seek and

secure a warrant. 710 F.2d at 1435. That warrant author-

ized the installation of a beeper into a five gallon can of

ether for thirty days. The government is now before this

Court arguing that a warrant is unnecessary and imprac-

tical, not because it could not secure one in this case but

rather because it presented the judge with an affidavit

%in Michacl there was no physical intrusion into a home

or even into a container—the agents attached the beeper to

the outside of an automobile.

24

that was “phony as a three dollar bill” (J. App. 156). As-

suming the government had been capable of making a

showing of probable cause without resort to lies, it could

have secured a warrant prior to installing its beeper.

There was ample time not only to obtain the warrant but

for the officers to fully consult with the prosecuting at-

torney regarding each element of the use of the beeper.

In several other Court of Appeals cases involving

beepers, the government secured warrants or warrant

equivalents prior to installing its beepers. See, e.g., United

States v. Cassity, 720 F.2d 451 (6th Cir. 1983), petition for

cert. pending, No. 83-1393; United States v. Butts, 710 F.

2d 1139 (5th Cir.), rehearing en banc granted, No. 82-1260

(Oct. 25, 1983); United States v. Chavez, 603 F.2d 143

(10th Cir. 1979).

In fact, because government agents must have suffici-

ent time to clandestinely seize the object into which they

will secrete their beeper, as well as time to return this

object without the suspects knowledge, there will always

be enough time to secure a warrant.'°

The government also argues that a warrant is not

feasible for a beeper because it cannot fashion one that

will comply with the particularity clause of the fourth

amendment (Brief 12, 42). The most readily apparent de-

fect in this argument is that it suggests throwing out the

baby with the bath water. Assuming it were impossible

to comply with the particularity clause (it is not), this

would hardly be justification for abandoning the applica-

Rule 41 of the Federal Rules of Criminal Procedure con-

tains a ision for a telephone warrant making it even easier

and taking almost no time.

25

tion of the fourth amendment altogether. Although there

are numerous lower court decisions dealing with the rela-

tionship between beepers and the fourth amendment, the

government has not cited a single decision that has con-

cerned itself with the purported difficulty in complying

with the particularity clause.

The government is aware that the decisions concern-

ing electronic eavesdropping on conversations provide

some analogy (see brief 41 n.15),'' but fails to examine

that analogy in this context. United States v. Donovan,

429 U.S. 413, 427-28, 436-37 (1977), applied the particn-

larization requirements of Katz v. United States, 389 U.S.

347, 354-56 (1967) and Berger v. New York, 388 U.S. 41,

58-60 (1967 to conversations intercepted without having

been particularized in the warrant. The Court concluded

that the inability to par‘ticularize did not invalidate the

interception. There is no intimation that the warrant re-

quirement of Berger and Katz should be disregarded al-

together because of an inability to particularize. In United

States v. Kahn, 415 U.S. 1438, 155 n.15 (1974), the Court

held that the constitutional and resultant statutory re-

quirements” were “satisfied by identification of the tele-

‘This analogy is actually more helpful to the defendants

than to the government. The government argues that a war-

rant should not be required because the warrant could not

fulfill its notice function if the surveillance were to be carried

out surreptitiously. Footnote 15 of the government's brief

recognizes that the notice function is equally absent in war-

rants for electronic eavesdropping on conversations. Never-

theless, a warrant is required for that type of electronic eaves-

dropping.

‘ he U.S.C. § 2518(1) (b) (1976). See Donovan, 429 U.S.

at :

26

phone line to be tapped and the particular conversations

to be seized.” Donovan, 429 U.S. at 426 n.15. There is

obviously no particularization problem associated with the

installation of the beeper. Regarding the monitoring, it

may be said that the locations of the beeper’s container

are the fourth amendment’s “things to be seized.” The

“seizure” is the ascertainment of these locations.

Another possible solution is to analogize the situation

to the procedure prescribed in 18 U.S.C. § 2517(5) (1976).

That subsection allows interception and use of wiretap

information relating to offenses other than those speci-

fied in the wiretap order, subject to judicial approval.

The constitutionality of this subsection was considered in

United States v. Cox, 449 F.2d 679, 684-87 (10th Cir. 1971),

cert. denied, 406 U.S. 934 (1972). There the court first

relied somewhat hesitantly on an analogy to the plain

view doctrine. Jd. at 686. More recent decisions, such as

Texas v. Brown, 103 S. Ct. 1535 (1983), should dispel this

hesitancy by making the scope of the doctrine clearer. The

Coz Court also applied a simple reasonableness analysis:

It would be the height of unreasonableness to disting-

uish between information specifically authorized and

that which is unanticipated and which develops in the

course of an authorized search... .

If wiretapping is to be validated . . . then the inter-

ception and use of information which is so related

to the original search is not to be excluded.

Id. at 687.

In any event this Court has vever read the fourth

amendment to require throwing out the baby with the

bath water:

27

The requirements of the Fourth Amendment are not

inflexible, or obtusely unyielding to the legitimate

needs of law enforcement.

Lopez v. United States, 373 U.S. 427, 464 (1963) (Bren-

nan, J., dissenting) quoted with approval in Berger v.

New York, 388 U.S. 41, 63 (1967).

The government also argues that an exigency is cre-

ated because their agents cannot know at the time they

seek the initial warrant authorizing installation where

the beeper will travel or for how long. Assuming the

agents obtain a proper warrant in the first place, it should

be a relatively simple matter to seek modifications or

extensions as the investigation progresses."

Finally, the government argues that “[a]s a practical

matter” it does not improperly use beepers (Brief 32). In

other words: “Trust us”. Its case for trust is not convinc-

ing when, only four years after being rebuked for taking

an “extreme view of the Fourth Amendment,” by saying

it only applies to the home", the government now comes

into court and takes the even more extreme position that

the fourth amendment does not even apply in the home.

The Court previously has spoken to this contention:

It is apparent that the agents in this case acted with

restraint. Yet the inescapable fact is that this re-

straint was imposed by the agents themselves, not by

a judicial officer. They were not required, before

13indeed that is precisely what happened here. The record

is replete with supplemental applications for beeper orders,

requests for entry tone alarms and finally, an application for

a search warrant (J. App. 35-41).

“United States v. Chadwick, 433 U.S. 1, 16 (1977) (Bren-

nan, J., concurring); see p. 17 supra.

28

commencing the search, to present their estimate of

probable cause for detached scrutiny by a neutral

magistrate.

Katz v. United States, 389 U.S. 347, 356 (1967).

The fourth amendment was adopted by people who

did not invariably trust their own government to restrain

itself from improper searches. If tines or circumstances

hav« changed to the point that we should invest the gov-

ernment with this trust, then the appropriate response is

to change the fourth amendment, not to rely on assur-

ances that government agents are normally to be so

trusted.

This argument is especially difficult to swallow here

where the very government agents we are being asked to

trust made false statements under oath (uJ. App. 156).

VI. The Fourth Amendment Must Flex To

Meet The Challenge Of New Technology.

Beepers present the courts with the problem of ap-

plying established legal concepts to revolutionary tech-

nology. But there is a critical difference between the

beeper situation and the other technological issues that

have recently confronted this Court. A fitting contrast is

provided by Sony Corp. v. Universal City Studios, 104 8S.

Ct. 774 (1984).

It may well be that Congress will take a fresh look

at this new technology, just as it so often has exam-

ined other innovations in the past. But it is not our

job to apply laws that have not yet been written.

Id. at 796.

Here, the law, the fourth amendment, has already been

written. Its application to the new technology is for the

29

judicial branch, not for the legislative branch. Cf. Mar-

bury v. Madison, 5 U.S. (1 Cranch) 137 (1803). This

Court should set the limits now.

As Justice Rehnquist said in Knotts in response to

the respondeut’s concerns that beepers would become in-

struments of 24 hour surveillance, ‘‘if such dragnet type

law enforcement practices as respondent envisions should

eventually occur, there will be time enough then to deter-

mine whether different constitutional principles may be

applicable.” 103 S. Ct. at 1086 (1983). That time has come.

In Knotts the government tracked three defendants, two

automobiles and one can of chloroform for one afternoon.

The government, according to the evidence in that case,

could have visually followed the subject container without

the beeper. In our case, the government, after invading

a closed container to install the same kind of beeper, con-

tinuously invaded the private activities of six defend-

ants, an undetermined number of uninvolved people, four

houses and two storage lockers for five months. Further-

more, here the government tried and failed to keep up

with the ether without the beeper.’

The government makes much of the truism that

police efficiency does not equate with unconstitutionality.

(Brief 28 n.12). That truism, though, is not inconsistent

with the more pertinent observation:

Some may claim that without the use of such devices

crime detection in certain areas may suffer some de-

lays since eavesdropping is quicker, easier, and more

certain. However, techniques and practices may well

SThe government, although attempting to argue to the

contrary, accepts this proposition when it says that the beeper

was indispensable (Brief 36).

30

be developed that will operate just as speedily and

certainly and—what is more important—without at-

tending illegality.

Berger v. New York, 388 U.S. 41, 63 (1967).

It is also pertinent that, in a case involving the

heroin-related murder of a police officer, the Court has

said;

(T]he mere fact that law enforcement may be made

more efficient can never by itself justify disregard of

the Fourth Amendment. Cf. Coolidge v. New Hamp-

shire, [403 U.S. 443, 481 (1971)]. The investigation

of crime would always be simplified if warrants were

unnecessary. But the fourth amendment reflects the

view of those who wrote the Bill of Rights that the

privacy of a person’s home and property may not be

totally sacrificed in the name of maximum simplicity

in enforcement of the criminal law.

We decline to old that the seriousness of the offense

under investigation itself creates exigent circum-

stances of the kind that under the fourth amendment

justify a warrantless search.

Mincey v. Arizona, 437 U.S. 385, 393-94 (1978).

VII. Installation Of A Beeper Requires A

Warrant.

The Court of Appeals held in this case that ‘‘before

the government agents could transfer the can of ether

containing a beeper to Karo, they had to obtain an au-

thorizing warrant.’’ 710 F.2d at 1433, 1439 (1983). There

can be no doubt that the can of ether was an item in

which respondents Karo, Horton, and Harley had legiti-

mate expectations of privacy. It was a sealed container

no different from a purse or a suitcase. See United States

31

v. Ross, 456 U.S. 798, 822 (1982). The container be-

longed to these defendants. 710 F.2d at 1437. ‘‘There is

. a strong historical connection between the Warrant

Clause and the initial clause of the Fourth Amendment,

which draws no distinctions among ‘persons, houses,

papers, and effects’ in safeguarding against unreasonable

searches and seizures.” United States v. Chadwick, 433

U.S. 1, 8 (1977).

The Court of Appeals held that ‘‘regardless of the

consent obtained when the beeper is physically installed,

an infringement of the new owner’s Fourth Amendment

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

trol.’’ 710 F.2d at 1438 (footnote omitted). That Court’s

analogy to a suitcase is appropriate. Otherwise, what is

there to stop government agents from installing their

beepers into any object they know will go into a potential

subject’s possession, including books, tape recorders, or

letters, that a suspect might carry with him?

The government argues that the informant’s consent

to installation of the beeper makes the entire search

consensual because ‘‘a beeper discloses no information

about the container’s contents that was not already known

to the agents when the beeper was installed and it dis-

closes nothing about what a third party might have taken

from or placed into the container after it came into his

possession.” (Brief 21,22). The Court of Appeals re-

sponded appropriately to this simplistic analysis:

We do not think that the analysis should end at this

rudimentary level. Although the physical installa-

tion of the beeper in the can takes place before the

new owner picks it up, we believe an instrusion occurs

at the time the item comes into his possession. All

individuals have a legitimate expectation of privacy

32

that objects coming into their rightful ownership do

not have electronic devices attached to them, devices

that would give law enforcement agents the oppor-

tunity to monitor the location of the objects at all

times and in every place that the objects are taken,

including inside private residences and other areas

where the right to be free from warrantless govern-

mental intrusion is unquestioned.

710 F.2d at 1438.

We would not dispute the informant’s right to notify

the government of the whereabouts of the ether, nor would

we dispute his right to follow the container around on

public streets. See, e.g., United States v. Knotts, 103 S.

Ct. at 1085. Similarly, we would not dispute his right to

strap a tape recorder under his coat and record any

conversation he may have with the respondents. See, e.g.,

United States v. White, 401 U.S. 745 (1971). But we

strenuously dispute his right to place an electronic eaves-

dropping device inside their property or inside their

homes. The fourth amendment prohibits such activity.

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

informant could not have tapped the telephone booth that

Mr. Katz used and then reported to the government on

Katz’ conversations, so an informant cannot consent to

install a beeper on these respondents’ property nor inside

their homes so that police officers can search these areas.

The government misapprehends this argument when it

states that ‘‘the decision in Knotts would be a dead letter

except in those cases in which the defendant’s lawyer fails

to object to installation of the beeper.’’ (Brief 23). This

very case refutes the government’s assertion: the objeo-

tions of the lawyers for defendants who did not own the

ether (Roth, Rhodes, and Steele) were to no avail. See,

33

e.g., Rawlings v. Kentucky, 448 U.S. 98 (1980). Knotts

still allows warrantless monitoring of beepers on the

highway, at least when there has been no invasion of the

privacy interest of the driver. It follows traditional

fourth amendment analysis in holding that the automobile

exception and the open fields exception do not require

warrants. This is consistent with the analysis of fourth

amendment interests in Wong Sun v. United States, 371

U.S. 471 (1963). Defendants who have a privacy interest

in the place of the primary illegality—the can of ether—

can challenge the use of its fruits. Likewise, defendants

who have an interest in the place of seizure—the Taos

house—can challenge the fruits of that seizure. See 371

U.S. at 477-88.

The government also misconstrues the Court of Ap-

peals’ decision when it asserts that Respondent Karo’s

fourth amendment claim arises solely from the installation

of a beeper without a warrant. (Brief 8, 10, 22, 23). This

was dictum or, at most, an alternative rationale for a

decision in the Court of Appeals as to Karo only. The

Court of Appeals noted that Karo suffered the same in-

into his home as did the other four respondents. See 710

F.2d at 1437, 1440.'° The government ignores these

facts when it states “here, respondent Karo certainly had

no greater privacy interest in the location of the container

than did the defendant in Knotts.” (Brief 22). The con-

tainer with the beeper never went inside Knotts’ residence.

103 S. Ct. at 1987. In our case ‘‘the signal [was] received

16The Court of Appeals correctly held that the search and

seizure at the Taos house was the fruit of prior illegality, in-

cluding both the installation and the monitoring of the beeper

in private residences.

34

from the Karo residence, 1108 Monroe.’’ (Testimony of

DEA Agent Richard Rottinger, J. App. 120).

Furthermore, there is absolutely no evidence in this

case that “as was the case in Knotts, the same informa-

tion could have been obtained by direct visual surveil-

lance.’’ (Brief 22). In fact, the evidence is to the con-

trary. According to the affidavit for search warrant the

officers used visual surveillance to follow Karo to his

home with the ether. Although visual surveillance con-

tinued, it ceased to be effective at that point.

After about an hour, we observed the vehicle (in

which the cans were located 19-20 September 1980 in

the public street) as it returned to the vicinity of

Graphic Photo Design, and we no longer saw the cans

of ether in the vehicle. Additionally, using a “beeper”

locator (direction finder) we determined that at least

the can with five gallons of ether in the beeper can

was located at 1108 Monroe, SE, Albuquerque. [Karo’s

residence}.

(J. App. 54).

Therefore, as to Karo, Horton and Harley, there

were two fourth amendment violations: First, when the

sealed ether can containing personal property belonging

to the three of them came into their possession they were

entitled to receive it in a private condition without the

beeper. Second, they, along with the other respondents,

were entitled to freedom from warranteless invasions

into their homes and private storage lockers.

VIII. The Decision Should Be Affirmed Be-

cause Of The Government's Outrageous Conduct.

Although the courts below have not yet ruled on it,

respondents have consistently insisted that the evidence

35

should be suppressed because of the misconduct of the

government in coming into a Federal District Judge’s

chambers and lying to obtain a search warrant. This con-

tention has been based on the due process concept of out-

rageous government conduct and on the inherent super-

visory powers of the courts. It is appropriate for con-

sideration here ‘‘because the prevailing party may defend

a judgment on any ground which the law and the record

permit that would not expand the relief it has been

granted.” United States v. New York Telephone Co., 434

U.S. 159, 166 n. 8 (1977).

The supervisory power of the federal courts permits

them “to supervise ‘the administration of criminal jus-

tice’ among the parties before the bar.” United States v.

Payner, 447 U.S. 727, 735 n.7 (1980) (citation omitted).

This power includes the exclusion of evidence taken from

a defendant by the “willful disobedience of law.” McNabb

v. United States, 318 U.S. 332, 345 (1943).

Here the district judge found:

As far as the affidavit, I will say possibly there are

not too many outright blatant falsehoods, but as a

result of half-truths, innuendos, deliberate attempt

to create an impression other than the actual fact,

my view is that the original affidavit, as putting it

bluntly, is as phony as a three dollar bill. And then

you have not only that, that it was deliberately con-

ceived to give a false impression, and I might add,

a good job was done in that regard. Reading of that

affidavit, you come out with a far different impres-

sion of the facts than the actual truth.

(J. App. 156.)

In United States v. Cortina, 630 F.2d 1207 (7th Cir.

1980), as here, the government lied in its application for

Wi Zi

36

a search warrant, although the United States Attorney’s

Office did not directly participate in the lie. The holding

there will be quoted at length because it well states the

argument:

Our holding is therefore simple—we will not allow

or condone reckless or deliberate misrepresentations

made to magistrates. But we note that our holding

is not based merely on abhorrence of Agent Brown’s

conduct, for that would not justify use of our power

to suppress the evidence. United States v. Payner,

... 100 S.Ct. at 2444. We recognize that the federal

supervisory power does not give “the federal judici-

ary a ‘chancellor’s foot’ veto over law enforcement

practices of which it [does] not approve.” United

States v. Russell, 411 U.S. 423, 485... (1973). But we

do not merely disagree with the method of law en-

forcement attempted here; rather, we are preventing

the court from condoning a fraud perpetrated wpon

it. To allow this evidence to be used at trial would

make the federal courts “accomplices in the willful

disobedience of a Constitution they are sworn to

uphold.” Elkins v. United States, 364 U.S. at 223....

There should be no compromise with the prin-

ciple that agents of the United States cannot be per-

mitted to manipulate the judicial system to circum-

vent constitutional requirements... .

The recent decision of United States v. Payner,

... 100 8. Ct. 24389 . . . (1980), does not mandate a

different result. In fact, upon analysis, the Payner

decision supports the conclusion we have reached.

The Supreme Court emphasized that its decision

in Payner “does not limit the traditional scope of the

supervisory power in any way.”... 1008S. Ct. at 2446.

The cornerstone of Payner was that the evidence was

seized from “a third party not before the court.”...

100 S. Ct. at 2446 0.8...

37

By invoking the doctrine of legitimate expectation

of privacy under our circumstances, the government

would interpret Payner to hold that the scope of the

supervisory power is identical to that of the Fourth

Amendment. But had it so held, Payner would have

rendered the supervisory power superfluous in cases

involving searches and seizures, a result the Supreme

Court expressly rejected. . . . Application of the

supervisory power is limited to situations where there

has been a fraud upon the court im addition to a

violation of the defendant's rights... .

The need for deterrence of illegal conduct is, in

one sense, greater here than it was in Payner, for

[FBI Agent] Brown’s offense was committed within

the sancity of the court itself. The violation here is

particularly insidious because it is difficult to uncover

misrepresentations in an affidavit underlying a search

warrant, The information needed to prove such as-

sertions false is peculiarly within the hands of the

government... .

The call to protect our judicial integrity, the sec-

ond interest to be weighed, is particularly strong here

because Brown’s misconduct compromised judicial pro-

cedures mandated by the Constitution. ... Unless offi-

cers of the law know that the consequences of deliber-

ate misrepresentations will be the suppression of the

evidence, “lawless or reckless misconduct” will not

only be encouraged, but invited. ... Courts must act

in their own self-defense against brazen violations of

their procedures. We must draw the line at miscon-

duct occurring within our own house.['’].

Weighed against these two interests is the detri-

mental effect of excluding the evidence. The Court

in Payner expressed concern that “unbending appli-

cation of the exclusionary sanction to enforce ideals

of governmental rectitude would impede unacceptably

Cf. United States v. Janis, 428 U.S. 433, 458-59 n.35 (1976)

(‘courts must not... encourage violations of the constitution.”’)

38

the truth-finding functions of judge and jury.” .. . 100

S.Ct. at 2445-46. Here, however, it is that truth-find-

ing function itself which has been corrupted, not be-

cause of suppression, but because of the lies told to

the magistrate. The truth-finding functions of that

magistrate are vindicated, not impeded, by suppres-

sion, here.

Our standard is plain: when the government lies to

the magistrate in securing a warrant to the extent

that there is no probable cause for the search, and

when that search results in the seizure of evidence, this

Court will suppress the evidence.

630 F.2d at 1214-17 (footnotes omitted, emphasis added).

It has long been the rule that the prosecution’s know-

ing use, at trial, of perjured testimony will require re-

versal of the conviction. See Mooney v. Holohan, 294 U.S.

103, 112 (1935). This is so even when the government

merely allows an unsolicited falsehood to go uncorrected.

Napue v. Illinois, 360 U.S. 264, 269 (1959). These rules

are based on the due process clause. If for any reason

this Court felt the supervisory power would be inapplicable

in this case, then due process should require affirmance.

It is difficult to distinguish between the situation where

the prosecution lies to the judge and the situation where

the prosecutor allows a witness to lie to the jury. If a

difference exists, it is more reprehensible here where the

prosecutor directly participated in the lie. Chief Justice

Hughes referred to “the duty of the court to stop the pros-

ecution in the interest of the Government itself, to protect

it from the illegal conduct of its officers and to preserve

the purity of its courts.” Sorrells v. United States, 287

U.S. 435, 446 (1932).

The fraud in this case included wording the affidavits

so it would appear to the Court that the focus of the search

39

was an amphetamine laboratory. (J. App. 43-44). In fact,

the agents knew from the very beginning of their investi-

gation that they would be attempting to find a laboratory

where cocaine would be extracted from clothing. (J. App.

103). This is similar to the factual setting in United

States v. Rettig, 589 F.2d 418, 422 (9th Cir. 1978) where

failure to accurately describe these circumstances to the

judicial officers, in essence, created a general search be-

cause the court could not determine its proper scope.

The judge is more important to the functioning of the

courts than is the grand jury. Yet a conviction was set

aside in Unite? States v. Hogan, 712 F.2d 757 (2d Cir.

1983) because ine Assistant United States Attorney parti-

cipated in misleading the grand jury. “Taking advantage

of his special position of trust, the AUSA impaired the

grand jury’s integrity as an independent body.” Id. at

762. United States v. Hasting, 103 S. Ct. 1974 (1983),

with its emphasis on harmless error, did not prevent the

exercise of supervisory power because without the mis-

leading presentation “appellants might not have been in-

dicted.” 712 F.2d at 762 n.2.

Hasting leaves the doctrine fully available here. Ju-

dicial integrity is much more at stake when a federal

agent, with the help and guidance of an Assistant United

States Attorney, lies under oath to a judge. Suppression,

a remedy more narrowly tailored than dismissal, is an

appropriate deterrent. Each defendant has a personal due

process right not to have his prosecution initiated by de-

liberate governmental fraud upon the judiciary. Cf. 103

S. Ct. at 1978.

40

Thus, even if this Court agrees with the government

that one or all of these defendants have not exhibited a

legitimate expectation of privacy, two unmistakable facts

remain: an egregious fraud has been perpetrated on the

federal judiciary and these defendants’ rights have been

violated by that fraud. This Court, in the interest of pre-

serving the integrity of the judiciary, should affirm the

suppression of this evidence.

CONCLUSION

The judgment of the Court of Appeals should be

affirmed.

Respectfully submitted,

NANCY HOLLANDER REBER BOULT

Freedman, Boyd & Daniels, 1412 Lomas Blvd., NW

P.A. Albuquerque, NM 87104

20 First Plaza, Suite 212 (505) 842-0392

Albuquerque, NM 87102 Counsel for Respondent Roth

(505) 842-9960

Counsel for Respondent Karo

JAMES BEAM

715 Tijeras, NW

Albuquerque, NM 87102

(505) 842-5924

Counsel for Respondent Steele