Petition — United States v. Cassity

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In the Supreme Court of the United States

OCTOBER TERM, 1983

UNITED STATES OF AMERICA, PETITIONER

LARRY WAYNE CASSITY, BILLY SworRD

AND STEPHEN GORDON LENK

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Rex E. Lee

Solicitor General

Department of Justice

Washington, D.C. 20530

(202) 683-2217

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violates

2. If so,

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TABLE OF CONTENTS

Page

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Constitutional provision involved .............. 3

PE DUE c two nsnins AAT 3

Reasons for granting the petition.............. 7

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D tiene ok dvaced ante cates stems 48a

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TABLE OF AUTHORITIES

Cases:

Berger v. New York, 388 U.S. 41 ......... 8

„ eee Pink, 317 U.S.

TJ ͤ ᷣͤ 9 hase eterws 2

JJC 2

NLRB v. Brown & Root, Inc., 206 F. ad 73 2

United States v. Bailey, 628 F. 2d 988 .. 5, 6, 7, 8

United States v. Healy, 376 U.S. 75....... 2

United States v. Karo, 710 F. ad 1433, cert.

granted No. 83-850, (Jan. 16,

1984) .......... n 2, 3, 6, 7, 8, 9

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

United States v. | 458 F.2d 197,

n J

cert. 409 U.S. : Ks 8 KE

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ite Agee,

2 *

Constitution, statutes and rule:

U.S. Const. Amend. IV ...

21 U.S.C, 841(aX1) .......

21 U.S.C. 8%ũ/t˙ 1

Sup. Ct. R:

neee

Fed. R. App. F.

f Fed. R. Crim. P.:

Miscellaneous:

Stern & Gressman, Supreme Court Pructice

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No.

UNITED STATES OF AMERICA, PETITIONER

LARRY WAYNE CASSITY, BILLY SworD

AND STEPHEN GORDON LENK

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The Solicitor General, on behalf of the United States,

mn! bogey dee Sacomatnend me a

23, 1983 (App., infra, 50a). The jurisdiction of

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

this Court’s disposition of United States v. Karo, cert.

granted, No. 83-850 (Jan. 16, 1984), was denied on De-

cember

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177155 111.

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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

reer be

an cularly desc the place to

dent Cassity was sentenced to three years’ imprison-

ment, to be followed by a two-year special parole term.

Court should treat the motion as a petition for rehearing for

;

litt

‘

respondents at trial (App., infra, la-14a).

1. The evidence showed that, from April to August

1977, Special Agent John Graetz of the Drug Enforce-

ment Administration posed as a supplier of precursor

chemicals and laboratory equipment to Jay Cody, who

;

warrants issued by a United States

none of the warrants contained a provision limiting

period of surveillance. Id. at 3a.

Agent Graetz delivered to Cody a container of

cals containing a beeper on July 11, 1977. By

toring the beeper’s signals, DEA agents

spondent Sword’s home. On July 28, Agent Graetz

livered which

were

the

traced to Sword’s home. On August 11, 1977

agents ascertained that the beepers had been moved to

Cassity

fruits of the beeper surveillance. He contended that

requires

warrant in order to install and monitor beepers,

that the beeper warrants in this case were constitu-

deficient because of the absence of a time limi-

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sue beyond the scope of the remand order (App., infra,

12a-13a).

REASONS FOR GRANTING THE PETITION

The decision of the court of appeals in this case raises

an important question of Fourth Amendment law iden-

tical to one of the questions now before the Court in

United States v. Karo, cert. granted, No. 83-850

(Jan. 16, 1984). That question is whether the warrant-

less monitoring of a beeper violates the Fourth Amend-

ment when the monitoring occurs while the beeper is

located within a home or other private area. Both here

and in Karo, federal law enforcement agents

ok” Sele,

sonableness of the search it purports to authorize”

. Pe Po

—

ed nature of the information transmitted by a beeper,

cause—must ordinarily be procured before the agents

as appropriate in light of that decision

Respectfully submitted

Rex E. LEE

Solicitor General

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Nos. 81-1565, 81-1566, 81-1567

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,

LARRY WAYNE CASSITY, (81-1565)

BILLY SWORD, (81-1566)

STEPHEN GORDON LENK, (81-1567)

DEFENDANTS-APPELLANTS.

On Appeal from the United States District Court

for the Eastern District of Michigan

Decided and Filed October 31, 1983

Before: MARTIN and JONES, Circuit Judges; and

Brown, Senior Circuit Judge.

Boyce F. MARTIN, JR., Circuit Judge. This case, be-

fore us for the second time, raises important fourth

amendment issues. When first confronted with this

case, this court was asked to consider, inter alia,

whether the monitoring of an electr mie homing trans-

mitter (beeper) could ever amount to a search and sei-

zure in fourth amendment terms. Citing United States

tutional searches. It declined to suppress evidence

gleaned as a result of these searches, however, holding

that the rule announced in Bailey should not be given

retroactive effect. Accordingly, it affirmed the convic-

tions. That decision is before us on appeal. We now re-

verse that decision.

The facts are succinctly summarized in Cassity J.

Among the chemicals and equipment Agent

Graetz delivered to Cody at various times were se-

and one was hidden in a heating mantle. All three

beepers were installed pursuant to search warrants

issued by a United States Magistrate. However,

none of the warrants contained a time limit.

Agent Graetz delivered the first beeper on July

11, 1977. By monitoring the beeper’s signals, DEA

agents traced the chemicals to defendant Cassity’s

home at 2803 Stair Street in Detroit. On July 15,

the beeper’s signals indicated the chemicals had

been moved to defendant Sword’s home at 1494

Calvary in Detroit. On July 28, nt Graetz deliv-

ered the other two beepers, which also were moni-

tored to Sword’s home. On August 11, 1977, all

three beepers were located in the basement of de-

fendant Dean’s home at 6344 Hanson in Detroit.

DEA agents monitored the beepers’ signals until

sm aye 17. They observed all five defendants and

y enter and leave the house at 6344 Hanson at

various times during the monitoring. On three oc-

casions during the beeper surveillance, Cody deliv-

ered samples of amphetamine allegedly produced

by the conspirators.

On August 17, 1977, DEA nts executed a

search warrant at 6344 Hanson. In the basement,

they found a complete laboratory which expert tes-

timony established was capable of producing am-

phetamine. The agents did not, however, find any

trace of amphetamine on the Investiga-

tion revealed that a number of chemical containers

and pieces of laboratory equipment bore the finger-

. of defendants Lenk, Sword, Dean and

The defendants were indicted, along with Cody,

al sem aren Red icwrmepe ry Pa

„ U.S.C. §§ 841(aX

indictment also charged Cody with

ten counts of possessing and distributing ampheta-

mine. However, Cody remained a fugitive and was

not tried with the appellants.

The case went to trial on July 18, 1978. The Gov-

ernment’s case against the appellants consisted pri-

marily of testimony that all the appellants had been

observed in and around the laboratory’s location

(Dean’s home) the day of the search; that Cassity

and Sword previously had stored precursor chemi-

cals and laboratory equipment in their homes; that

Hines had picked up chemicals and glassware left

in a rented van by Agent Graetz; that Lenk was in

the laboratory at the time of the search; and that

fingerprints of four of the appellants were found on

glassware in the laboratory. In addition, the Gov-

ernment introduced tape recordings of Cody’s nu-

merous telephone conversations with Agent

Graetz, as well as the samples of amphetamine

Cody had delivered to Graetz.

The jury convicted all five appellants of conspir-

acy and manufacturing amphetamine.

631 F.2d at 462-63.

Several issues are presented here. Defendants argue

that the district court exceeded its mandate on remand

when it considered the question of the retroactive appli-

cation of the Bailey decision to the facts of this case.

Moreover, they argue that the manner in which the

court resolved the question was erroneous. The govern-

ment disagrees and, additionally, asserts that the lower

court erroneously concluded that defendants Sword,

Lenk, and Cassity had successfully proven legitimate

expectations of privacy in those areas subject to beeper

monitoring

Shortly before oral argument in this case, the Su-

preme Court delivered on opinion in United States v.

Knotts, ___ U.S. , 75 L.Ed.2d 55 (1983). Because

Knotts concerned warrantless beeper monitoring, we

asked the parties to brief the decision. We have re-

ceived those briefs, considered the question, and.now

hold, as a preliminary matter, that Knotts does not af-

fect our decisions in either Bailey or Cassity I or con-

trol our resolution of the issues here.

In Knotts, the police utilized electronic beeper sur-

veillance to track the movement of chemicals in an auto-

mobile on an open highway and, when highway surveil-

lance was interrupted, to locate the chemicals under a

barrel outside a cabin on private property. The Court,

reversing the court of appeals, held that the monitoring

did not invade any legitimate expectation of privacy on

the defendant’s parts and, therefore, that there was

neither a search nor a seizure in fourth amendment

terms.

Although the opinion contains some sweeping lan-

guage suggesting a broad expansion of search and sei-

zure law, read as a whole Knotts does little more than

apply established doctrine to an unconventional type of

search. The majority relies on the “automobile excep-

tion” to the fourth amendment, see Cardwell v. Lewis,

417 U.S. 583 (1974), and the open fields doctrine, sce

Hester v. United States, 265 U.S. 57 (1924), to validate

could have revealed.

Visual surveillance from public places along

Knotts’

not alter the situation. No in the Fourth

Amendment prohibited the po from aug-

at birth with such enhancement as science and

technology afforded them in this case.

75 L.Ed.2d at 63.

The use to which the police may put a beeper without

first obtaining a warrant is “limited”, however. Id. at

64. Nothing in the Court’s opinion abrogates the sanc-

tity of a private home or dwelling place. Although “no

... expectation of privacy extended to the visual obser-

vation of [the defendants’] automobile arriving on his

premises after leaving a public highway, nor to move-

Wisconsin. Admittedly, because of the failure of

the visual surveillance, the beeper enabled the law

enforcement officials in this case to ascertain the

ultimate resting place of the chloroform when they

would not have been able to do so had they relied

solely on their naked eyes. But scientific

ment of this sort raises no constitutional

which visual surveillance would not also

the naked eye from outside the cabin. Just as no-

tions of physical trespass based on the law of real

property were not dispositive in Katz, supra, nei-

ther were they dispositive in Hester v. United

States, 265 U.S. 57 (1924).

Id. at 64 (emphasis added).

In Bailey, we said “beeper surveillance of non-con-

traband personal property in private areas trenches

upon legitimate expectations of privacy and constitutes

a search or seizure within the meaning of the fourth

amendment.” 628 F.2d at 944. Nothing in Knotts

erodes that principal as it applies to monitoring beepers

located in areas in which the subject of the search ex-

hibits a legitimate expectation of privacy. See Katz v.

United States, 389 U.S. 347 (1967); Bailey, 628 F.2d at

940; United States v. Karo, — F. 2d , 52

U.S.L.W. 2106 (10th Cir. August 23, 1983). We come

back, then, to the question we posed on remand—

namely, whether defendants Lenk, Sword, or Cassity,

had exhibited a legitimate expectation of privacy in

those places into which they carried the chemicals con-

taining the beepers. Cassity I, 631 F.2d at 464-65. The

district court held that they had. We agree.

Because fourth amendment rights are “personal,”

Rakas v. Illinois, 439 U.S. 128, 140 (1978), the central

inquiry in any suppression hearing is whether the de-

fendant challenging the admission of evidence has

shown a legitimate expectation of privacy in the place

searched or the thing seized. United States v.

Salvucci, 448 U.S. 83 (1980). Whether a legitimate ex-

pectation of privacy exists in a particular item or place

is a determination to be made on a case-by-case basis,

Brown, 635 F.2d at 1211. That question in turn entails

a two-part inquiry: (1) whether the individual defendant

has exhibited an actual subjective expectation of priva-

States, 389 U.S. 347, 362 (1967) (Harlan, J. concurring);

Smith v. Maryland, 442 U.S. 735, 740-41 (1979);

United States v. Brown, 635 F.2d 1207 (6th Cir. 1980);

United States v. Bailey, 628 F.2d 988, 940-41 (6th Cir.

1980).

“Legitimation of expectations of privacy by law must

have a source outside of the Fourth Amendment, either

by reference to concepts of real or personal property

law or to understandings that are recognized and per-

mitted by society.” Rakas, 439 U.S. at 143 n.12. To

identify which expectations merit fourth amendment

protection, the courts have pointed to a number of fac-

tors. Most obvious among these is an individual’s pos-

sessory or proprietary interest in the place or thing.

However, a property right alone is not determinative of

whether the individual reasonably expected “freedom

from governmental intrusion.” Mancusi v. Forte, 352

U.S. 364, 368 (1968). In United States v. Haydel, 649

F.2d 1152 (6th Cir. 1981), rehearing denied, 664 F.2d

84, cert. denied, 455 U.S. 1022 (1982), the Fifth Circuit

identified other factors anyone of which or any combi-

nation of which could, in the circumstances of a specific

case, signify legitimacy.

nor the end of ... [the] inquiry.” United States v.

Salvucei, 448 U. S. 88, 92, 100 S.Ct. 2547, 2553, 65

L.Ed.2d 619, 628 (1980) (citation omitted). Other

whether he was legitimately on the premises. See

Id.; Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct.

2556; 65 L. Ed. 2d 633 (1980); Rakas v. Illinois, 439

U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). As

the very listing of these factors demonstrates, the

ex tion must be based on considerations out-

side of the fourth amendment. Rakas v. Illinois,

439 U.S. at 142-145 n.12, 99 S.Ct. at 430-31, n.12,

58 L.Ed.2d at 400-402 n.12.

Id. at 1154-55.

In Bailey, this court held that defendants who had

stored chemicals containing a beeper transmitter in a

locked storage room in the basement of an apartment

complex had “exhibited an expectation of privacy in the

location of the chemicals which, but for the beeper sur-

veillance, would have been entirely justified.” Jd. at

944. See United States v. Carriger, 541 F.2d 545 (6th

Cir. 1976) (tenants of apartments may have the same

expectation of privacy in their apartments as home-

owners in their homes). There is little difference be-

tween that situation and the situation presented by

Cassity and Sword’s claims here. Sword resided at 1494

Calvary Street, a three- or four-unit? apartment com-

plex with his girlfriend, a child, and cotenants. The

chemicals containing the beeper were kept in the locked

basement to which only Sword and a friend had the

key. It was not a common area accessible to public and

tenants alike. See Fixed v. Wainwright, 492 F.2d 480,

484 (5th Cir. 1974). There is no evidence that his friend

consented to the search. See United States v. Matlock,

415 U.S. 164 (1974); United States v. Sumlin, 567 F. 2d

10a

intents and purposes, it was his home. We think it in-

disputable that Cassity had an expectation of privacy

which was legitimate in the Starr Street address. See

Haydel, 649 F. 2d at 1155 (son had a legitimate expecta-

tion of privacy in gambling records kept in parents’

home although he did not reside there regularly). More-

over, that expectation reasonably extended to all parts

of the home, including the garage. See United States v.

Bauerman, 552 F.2d 61, 64-65 (2d Cir. 1977) (lessees of

a commercial building who had expectation of privacy in

offices could also legitimately expect privacy in the

garage).

The government argues that neither Cassity nor

Sword can establish even a subjective expectation of

privacy in the chemicals because neither admitted to

ownership of or knowledge of the containers. This argu-

ment misconstrues the basis for finding that Cassity

and Sword have “standing” to object to the govern-

ment’s actions in this case. Whether beeper monitoring

in a private home is characterized as a search or a sei-

zure is unimportant. Bailey, 628 F.2d at 940. What is

important is that it entails governmental intrusion into

an area when privacy can most legitimately be ex-

pected. See United States v. Weeks, 232 U.S. 383

(1941); Bailey, 628 F.2d at 944. It is this fact the in-

lla

(1978), argues that Lenk may not object to the search

because “no one, at least no non-resident, could derive

rights that society should be prepared to recognize as

legally justified from his work in a clandestine drug lab-

oratory.” Government brief, p. 41. The government

misses the point, however. It is Lenk’s status as a

guest of Dean’s and not his presence as a chemist in a

clandestine drug laboratory which gives him a subjec-

tive expectation of privacy the police were not privi-

leged to infringe.

In Jones v. United States, 362 U.S. 257 (1960), the

Supreme Court advanced “the unremarkable proposi-

tion that a person can have a legally sufficient interest

in a place other than his own home so that the Fourth

Amendment protects him from unreasonable gx vern-

mental intrusion into that place.” Although in subse-

quent decisions, the Court has narrowed somewhat the

sweeping provisions of Jones, it remains the law that

one who resides at a private residence with permission

of the owner as a guest or invitee may demonstrate an

expectation of privacy in the premises legally sufficient

to support a challenge to a police search. See Rakas,

439 U.S. at 141-142. Like the defendant in Jones, Lenk

was at the Dean home with permission of the owner,

came and went freely, and kept his personal belongings

there. He testified that he expected privacy. These

facts are sufficient to establish a legitimate, reasonable

expectation of privacy protected by the Fourth

Amendment.

Clayborne ic easily distinguishable. The court’s opin-

ion is predicated explicitly on the commercial nature of

the building, which, it said, “was susceptible not only to

outside viewing, but also to ingress and egress of the

public.” Id. at 350 (footnote omitted). “Strict privacy,”

the court continued, “as in a home was not to be prop-

erly expected here.” Jd. In contrast, the Hanson Street

location was a private home where the homeowner,

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Dean, and his guest Lenk, could properly expect free-

dom from uninvited intrusions. The fact that part of the

home was used for illegal purposes does not obviate this

conclusion. As the district court stated, when the Jones

Court held that “wrongful” presence at the scene of the

search would preclude the legitimacy of the privacy ex-

pectation, “wrongful” was used to refer to the occupan-

cy of the premises, not its use. See Rakas, 439 U.S. at

141 n.9. We also agree with the district court’s determi-

nation that the facts that the monitoring began before

Lenk arrived and that a warrant was obtained prior to

the search of the house do not save the government’s

case. Whether or not Lenk was in the house as a guest

when the illegal monitoring began is irrelevant. When

he arrived, the monitoring was still in progress. There-

fore what we have already found to be Lenk’s legiti-

mate expectation of privacy in the premises was

infringed. In effect, he steps into the shoes of the home-

owner, whose ongoing interest in the privacy of his

home permits him to challenge any intrusion, regard-

less of whether he was present or not.

The government also argues that because it obtained

a search warrant prior to entering the Hanson Street

address the search and any evidence seized were legal.

We disagree. The location of the Hanson Street build-

ing was ascertained through illegal beeper monitoring.

Once located, additional evidence arguably sufficient to

show probable cause was otherwise legally gathered

through visual surveillance and other means. However,

the fact remains that but for the beeper, the opportuni-

ty to gather other evidence might not have arisen. This

additional evidence, therefore, is fruit of the initial ille-

gal search. See Wong Sun v. United States, 371 U.S.

471 (1963).

Having concluded that Lenk, Sword and Cassity had

shown legitimate expectations of privacy which the

government’s warrantless beeper monitoring had in-

13a

fringed, the district court went on to consider and re-

solve in the negative the issue of whether Bailey

should be applied retoractively to exclude the tainted

evidence. To reach that issue was error. In Cassity I.

we explicitly stated that the scope of the court’s task on

remand was limited to determining “whether the beep-

er surveillance by the Government invaded ... [the de-

fendant’s] ... legitimate expectation of privacy.” To

that end, thé court was to hold “suppression hearings,”

and if it found such an invasion, to grant the suppres-

sion motion. That the court was not then to proceed to

consider the retroactivity issue was equally obvious

from other language in Cassity I making it plain that

this court had already considered and resolved the is-

sue. Id. at 464-465 (“Given our Bailey decision...; As

our Bailey decision makes clear .. On remand the dis-

trict court should undertake the analysis outlined in

Bailey.”)

To conclude, because we affirm the district court’s

findings that Lenk, Sword, and Cassity each had legiti-

mate expectations of privacy in the respective locations

subjected to beeper monitoring, monitoring without a

warrant violated the Fourth Amendment. Evidence

gleaned as a result of the monitoring should be sup-

pressed. We vacate the lower court’s decisions on the

question of Baileys retroactivity, that issue having

been improperly considered. Of course, should the gov-

ernment elect to retry these defendant’s the exclusion

of evidence need not be complete for all defendants.

For example, evidence seized from Hanson Street,

while inadmissible against Lenk because its seizure vio-

lated a legitimate privacy interest of his, is admissible

for any relevant purpose against either Sword or

Cassity, neither of whom have legitimate expectations

of privacy in that house. Because all the evidence was

admitted in a joint trial, however, we are unable here

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APPENDIX B

UNITED STATES COURT OF APPEALS,

SIXTH CIRCUIT

Nos. 78-5426 to 78-5430.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,

LARRY WAYNE CASSITY, STEPHEN GORDON LENK,

BILLY SWORD, TERRY GENE HINES AND RAYMOND

LEE DEAN,

DEFENDANTS-APPELLANTS.

Argued and Submitted Dec. 13, 1979

Decided Oct. 16, 1980.

Before LIVELY and Boyce F. MARTIN, JR., Circuit

Judges, and PHILLIPS, Senior Circuit Judge.

HARRY PHILLIPS, Senior Circuit Judge.

United States v. Bailey, 628 F. 2d 988 (1980).

16a

Cody apparently coordinated the conspirator’s opera-

tions, arranged to obtain necessary chemicals and

equipment and delivered samples of amphetamine man-

ufactured in the conspirators’ clandestine laboratory.

Among the chemicals and equipment Agent Graetz

delivered to Cody at various times were secreted three-

electronic homing devices, or beepers. Two were lo-

cated in cans of precursor chemicals and one was hidden

in a heating mantle. All three beepers were installed

pursuant to search warrants issued by a United States

Magistrate. However, none of the warrants contained a

time limit.

Agent Graetz delivered the first beeper on July 11,

1977. By monitoring the beeper’s signals, DEA agents

traced the chemicals to defendant Cassity’s home at

2803 Stair Street in Detroit. On July 15, the beeper’s

signals indicated the chemicals had been moved to de-

fendant Sword’s home at 1494 Calvary in Detroit. On

July 28, Agent Graetz delivered the other two beepers,

which also were monitored to Sword’s home. On Au-

gust 11, 1977, all three beepers were located in the

basement of defendant Dean’s home at 6344 Hanson in

Detroit.

DEA agents monitored the beepers’ signals until Au-

17a

The defendants were indicted, along with Cody, for

conspiring to manufacture and manufacturing ampheta-

mine in violation of 21 U.S.C. §§ 841(a)(1) and 846. The

indictment also charged Cody with ten counts of pos-

sessing and distributing amphetamine. However, Cody

remained a fugitive and was not tried with the

appellants.

The case went to trial on July 18, 1978. The Govern-

ment’s case against the appellants consisted primarily

of testimony that all the appellants had been observed

in and around the laboratory’s location (Dean’s home)

the day of the search; that Cassity and Sword previous-

ly had stored precursor chemicals and laboratory equip-

ment in their homes; that Hines had picked up chemi-

cals and glassware left in a rented van by Agent

Graetz; that Lenk was in the laboratory at the time of

the search; and that fingerprints of four of the appel-

lants were found on glassware in the laboratory. In ad-

dition, the government introduced tape recordings of

Cody’s numerous telephone conversatons with Agent

Graetz, as well as the samples of amphetamine Cody

had delivered to Graetz.

The jury convicted all five appellants of conspiracy

peals from the convictions.

Appellants’ first assignment of error concerns the de-

cision of the district court to admit Cody’s recorded tel-

ephone conversations under the coconspirator exception

to the hearsay rule. Specifically, the appellants argue

the court erred by admitting Cody’s out of court state-

ments conditionally, subject to the requirement that

ent evidence to support the court’s preponderance of

the evidence finding of conspiracy. Finally, the appel-

2 ve»

5 *

18a

lants argue, even if the evidence did establish a conspir-

acy, only Cody’s statements made after they joined the

conspiracy were admissible against them. We reject

each of these contentions in turn.

First, the procedure followed by the district court for

dealing with the co-conspirator statements clearly was

permissible. When the defendants objected to the at-

tempt by the Government to introduce Cody’s recorded

telephone conversations, the district court adopted the

following procedure: The recorded conversations would

be admitted conditionally; if the preponderance of the

evidence did not establish that each defendant had been

a member of Cody’s conspiracy, the court would dismiss

the conspiracy count and instruct the jury to disregard

the tapes. In United States v. Vinson, 606 F.2d 149,

153 (6th Cir. 1979), cert. denied, 444 U.S. 1074, 100

S.Ct. 1020, 62 L.Ed.2d 756 (1980), this court specifical-

ly authorized trial courts to deal with hearsay objec-

tions to co-conspirator statements by admitſting] the

hearsay statements subject to later demonstration of

their admissibility by a preponderance of the evidence.”

17 raid. Appellant Lenk was present in the laboratory

when the search took place. Even disregarding the sub-

stance of Cody’s recorded statements, which the dis-

trict court could have considered under the decision by

this court in Vinson, supra, 606 F.2d at 153, there was

ample evidence to support the preliminary finding of

conspiracy by the court.

Finally, we reject the argument by appellants that

only those co-conspirator statements made after they

joined the conspiracy are admissible against them. The

argument rests upon a part of one sentence from

United States v. Petrozziello, 548 F.2d 20, 23 (1st Cir.

1977), quoted by this court in United States v. Enright,

579 F.2d 980, 986 (6th Cir. 1978): “if it is more likely

than not that the declarant and the defendant were

members of a conspiracy when the hearsay statement

was made,” the hearsay may be admissible. (Emphasis

added.) In Petrozziello, the First Circuit adopted the

preponderance of the evidence test for determining ad-

missibility of co-conspirators’ statements. Neither

Petrozziello nor Enright concerned the time at which

the co-conspirator statements were made. The quoted

phrase from Petrozziello on which appellants rely is

mere dictum and does not represent the law of this Cir-

cuit. We are bound by the ruling of the Supreme Court

in United States v. United states Gypsum Company,

333 U.S. 364, 393, 68 S.Ct. 525, 541, 92 L.Ed. 746

(1948):

With the conspiracy thus fully established, the dec-

larations and acts of the various members, even

though mode or done prior to the adherence of

some to the conspiracy, become admissible against

all as declarations or acts of co-conspirators in aid

of the conspiracy. (Footnote omitted.)

See also United States v. Ramirez, 482 F. 2d 807, 816

(2d Cir.), cert. denied, 414 U.S. 1070, 94 S.Ct. 581, 38

L.Ed.2d 475 (1973); United States v. Sarno, 456 F.2d

875, 878 (Ist Cir. 1972).

The appellants also challenge their convictions on the

ground the Government’s evidence against them is the

fruit of illegal search and seizure and, therefore, should

have been suppressed. We remand the cases to the dis-

trict court to conduct hearings on the suppression issue.

Before trial, defendant-appellant Cassity moved to

suppress all evidence the DEA acquired directly or in-

directly through the beeper surveillance. He argued

that the fourth amendment requires the Government to

obtain a warrant to install and monitor beepers, and

that the warrants the Government obtained in this case

were invalid because unlimited in duration. Conse-

quently, Cassity urged, monitoring the beepers was an

illegal search whose fruits must be suppressed. The dis-

trict court rejected Cassity’s argument, holding the use

of a beeper is no more than a sophisticated substitute

for visual surveillance and does not require a warrant.

Our decision in United States v. Bailey, supra, 628

F. 2d 938 (6th Cir. 1980), undercut this ruling of the dis-

trict court by holding beeper surveillance may invade

an individual’s legitimate expectations of privacy and,

therefore, require a warrant. Furthermore, in Bailey

we held a warrant containing no time limit does not

meet fourth amendment requirements and so cannot le-

gitimate an otherwise invalid search. In Bailey we also

decided that suppressing the fruits of the monitoring is

the appropriate judicial response to illegal beeper

surveillance.

Given our Bailey decision, the only remaining issue

lance does not require a warrant, he found it unneces-

sary to hear evidence on the expectation of privacy is-

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Cassity’

finding by the district court.

Because the remaining appellants did not join in

Cassity’s pre-trial motion to suppress, their suppres-

sion arguments before this court are more troublesome.

The Government urges us to hold Lenk, Sword, Hines

and Dean waived their fourth amendment objections to

22a

the beeper surveillance by failing to raise them before

trial as required by Fed.R.Crim.P. 41(f), 12(b)(3), and

12(f), Although this court ordinarily refuses to consider

search and seizure claims not raised by a pre-trial mo-

tion, we conclude under the peculiar facts and circum-

stances of this case the failure of the other appellants to

join Cassity in moving to suppress does not bar appel-

late consideration of their arguments.

As the Supreme Court has recognized, the rule re-

quiring criminal defendants to make their suppression

motions before trial “is a crystallization of deicsions .. .

requiring that procedure, and is designed to eliminate

from the trial disputes over police conduct not immedi-

ately relevant to the question of guilt.” Jones v. United

States, 362 U.S. 257, 264, 80 S.Ct. 725, 782, 4 L.Ed.2d

697 (1959), overruled on other grounds, United States

v. Salvucci,— U.S. , 100 S.Ct. 2547, 65

L.Ed.2d 619 (1980). The rationale usually given for

removing suppression questions from the trial itself is

that “interrupt[ing] the course of the trial for such aux-

iliary inquires impedes the momentum of the main pro-

ceeding and breaks the continuity of the jury’s atten-

tion.” Nardone v. United States, 308 U.S. 338, 342, 60

S.Ct. 266, 268, 84 L.Ed.307 (1989). See Giacona v.

United States, 257 F.2d 450, 455 (5th Cir.), cert.

denied, 358 U.S. 873, 79 S.Ct. 113, 3 L.Ed.2d 104

(1958). Furthermore, a pre-trial decision whether the

challenged evidence is admissible gives the Government

the time and flexibility to change its theory of the case,

to develop or place greater reliance upon untainted evi-

dence or otherwise to modify its trial strategy in re-

sponse to an adverse ruling. See United States v.

Rollins, 522 F.2d 160, 166 (2d Cir. 1975), cert. denied,

424 U.S. 918, 96 S.Ct. 1122, 47 L.Ed.2d 324 (1976);

United States v. Sisca, 508 F.2d 1337, 1348 (2d Cir.),

cert. denied, 419 U.S. 1008, 95 S.Ct. 328, 42 L.Ed.2d

283 (1974).

23a

In applying the pre-trial motion rule, “we are dealing

with and carrying out an im portant social policy and not

a narrow, finicky procedural requirement.” Jones v.

United States, supra, 362 U.S. at 264, 80 S.Ct. at 782.

Where the rule’s underlying policy is not implicated, its

technical requirements should not be allowed to prevail

over constitutional rights.

In the present case, consideration of the remaining

appellants’ fourth amendment claims does not jeopard-

ize the Government’s interests. Cassity’s pre-trial no-

tice raised the beeper issue in timely fashion. The trial

court heard evidence and argument about the beeper

surveillance and its fourth amendment implications.

Had the court granted Cassity's motion to suppress,

the remaining defendants presumably would have filed

similar motions. These also could have been dealt with

before trial without impairing the flexibility of the Gov-

ernment in proceeding with the prosecution. However,

meaning of the fourth amendment. Additional fourth

amendment challenges by the other appellants raising

the identical legal issue would neither have altered the

court’s ruling nor served the purposes of the pre-trial

motion rule. Under these circumstances, we hold the

remaining appellants did not waive their fourth amend-

ment objections by 3

and purely formal act of joining Cassity in moving to

suppress. See United States v. Love, 472 F. 2d 490, 498

n.4, 496 (5th Cir. 1973); United States v. Lefkowitz, 284

F.2d 310, 313 n.1 (2d Cir. 1960).

the

sonal, Rakas v. Illinois, 439 U.S. 128, 183-34, 99 S.Ct.

24a

421, 425, 58 L.Ed.2d 387 (1978), the district court

should consider the claim of each appellant separately.

The court shall order a new trial for, and grant the sup-

pression motion of, each appellant whose legitimate ex-

pectations of privacy are found to have been violated by

the beeper surveillance. See United States v. Bailey,

supra. Any appellant whose fourth amendment rights

were not violated has no right to a new trial, and his

conviction should be reinstated. Cf. Rakas v. Illinois,

supra, 439 U.S. at 134, 99 S.Ct. at 425; United States

v. Hunter, 550 F.2d 1066, 1074-75 (6th Cir. 1977).

25a

APPENDIX C

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

Criminal Action No. 77-80932

UNITED STATES OF AMERICA, PLAINTIFF

LARRY WAYNE CASSITY, RAYMOND LEE DEAN,

TERRY GENE HINES, STEPHEN GORDON LENK, AND

BILLY SWORD, DEFENDANTS.

OPINION

Defendants successfully challenged their 1978 convie-

tions for conspiring to manufacture and manufacturing

amphetamine, a controlled substance, on the grounds

that the evidence by which they were convicted was the

fruit of illegal electronic surveillance. The United

States Court of Appeals for the Sixth Circuit held that

the search warrants pursuant to which the beepers

were installed in two cans of chemicals and a heating

mantle did not meet the requirements of the Fourth

Amendment because they contained no expiration date

or time limit, See United States v. Cassity, 631 F.2d

461 (6th Cir. 1980), and remanded the case to me for an

evidentiary hearing on whether beeper (i.e., electronic

homing device). surveillance violated each defendant’s

reasonable and legitimate expectation of privacy. I

have been instructed to undertake the analysis set forth

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

1980), to determine whether the evidence seized as a

result of the beeper surveillance should be suppressed.

At an evidentiary hearing, defendant Cassity testi-

fied that he had resided at 2803 Stair, Detroit, for

26a

twenty to twenty-five years with his mother and fa-

ther. His girlfriend also resided at this address and

shared a bedroom with him. Cassity acknowledged that

he had stored a green can of chemicals in the garage at

the residence, although the can of chemicals was not

his. The garage was kept locked and, even though other

members of the residence had access to the garage,

Cassity expected privacy when he placed the chemicals

there for storage.

Defendant Hines testified that he drove a yellow van

from Eight Mile and Greenfield Roads to a parking lot

at the request of Cody, an alleged co-conspirator. Hines

alleges that he had no knowledge there was a blue can

of chemicals and a heating mantle in the rear of the van

as there was an immovable partition behind the driver

and passenger seats which precluded any view into the

rear compartment. Similarly, no windows allowed a

view of the contents of the compartment. Hines con-

tends that he had a reasonable expectation of privacy in

the van even though the van had been rented and he

had been requested to move it by someone other than

the owner.

The 1494 Calvary, Detroit, address is a quadruplex,

part of which was rented by defendant Sword and his

friend. Sword lived there with his girifriend and his

friend, the friend’s wife, and child. Only Sword and his

friend had a key to the basement, which was normally

kept locked and where at least one of the cans of chemi-

cals was located. Other individuals were permitted ac-

cess to the basement, including his friend’s mother-in-

law who lived next door. Sword maintains that he

27a

guest in that house for four days prior to its search on

August 17, 1977. Lenk shared meals at the residence,

kept his personal belongings there during his stay, and

had the right to come and go when he so desired. Lenk

contends that he reasonably expected privacy at that

address by virtue of his guest status.“

In this case, since the Court of Appeals has held that

the search warrants secured for the installation of the

beepers in the cans of precursor chemicals and the heat-

ing mantle were invalid because they contained no ter-

mination date, United States v. Cassity, supra, at

464, the intrusion and searches must be analyzed as

warrantless searches.

Warrantless searches may be valid if they are not

“unreasonable”. A search is unreasonable if it violates a

person’s reasonable, legitimate expectation of privacy.

The United States Supreme Court has indicated that a

reasonable expectation of privacy is determined by a

two-pronged test. Katz v. United States, 389 U.S. 347,

361 (1967) (Harlan, J., concurring); Smith v.

Maryland, 442 U.S. 735 (1979). Accord, United States

v. Bailey, supra, at 941. First, the defendant must ex-

hibit a subjective expectation of privacy, defined from

1 An indictment against defendant Dean on the same charges

was dismissed at the evidentiary hearing held on the motion to

2 I note as a matter of clarification that Search Warrant No.

5 5 8 pe 7 2

2 2 a ee ee Ee ag ee et

r r

28a

an examination of the totality of the circumstances.

Rawlings v. Kentucky, 448 U.S. 98, n.3 at 104 (1980).

Second, the expectation must be one that society is pre-

pared to recognize as legitimate, a more objective test.

Rakas v. Illinois, 489 U.S. 128 (1978).

Legitimation of expectations of privacy by law

must have a source outside of the Fourth Amend-

ment, either by reference to concepts of real or

personal property law or to understandings that

are recognized and permitted by society. One of

the main rights attaching to property is the right

to exclude others, see W. Blackstone, Commentar-

ies, Book 2, ch. 1, and one who owns or lawfully

possesses or controls property will in all likelihood

have a legitimate expectation of privacy by virtue

of this right to exclude. Expectations of privacy

protected by the Fourth Amendment, of course,

need not be based on a common-law interest in real

or personal property, or on the invasion of such an

interest. ... But by focusing on legitimate expecta-

tions of privacy in Fourth Amendment jurispru-

dence, the Court has not altogether abandoned use

of property concepts in determining the presence

or absence of the privacy interests protected by

that Amendment.

439 U.S. at 144, n.12. In undertaking the analysis of

each defendant’s professed expectation of privacy in

this instance, I must bear in mind the admonition of the

Supreme Court in its discussion of Fourth Amendment

[T]he Fourth Amendment protects people, not

places. What a person to the

knowingly exposes

public, even in his own home or office, is not a sub-

ject of Fourth Amendment protection. But what he

seeks to preserve as private, even in an area acces- .

sible to the public, may be constitutionally 5

protected.

Katz v. United States, supra, at 351 (citations

With these precepts in mind, I now turn to each indi-

vidual defendant’s claim.

I find that Cassity has a reasonable subjective expec-

tation of privacy in his parents’ house and, therefore,

the garage. Cassity need not have a possessory interest

in the house to assert a reasonable expectation of priva-

cy therein, nor does he need to own the chemicals.

These are merely factors to consider when determining

if a person has established a sufficient interest to be

protected pursuant to the Fourth Amendment. A per-

son can have a legally sufficient interest in a place so

that the Fourth Amendment protects him from unrea-

sonable governmental intrusion into that place. Jones

v. United States, 362 U.S. 257, 263 (1960). Cassity tes-

tified that he had resided with his parents for twenty to

twenty-five years at the Stair Street address. He has

reason to expect that his parents’ home and, corre-

spondingly, his own interest in it would remain pro-

tected from unreasonable searvhes in the absence of ex-

igent circumstances or consent. See United States v.

Matlock, 415 U.S. 164 (1974). Similarly, Cassity’s ex-

pectation of privacy is legitimate. Possession of the

chemicals was not illegal since they are not contraband

per se. See United States v. Bailey, supra. Likewise,

they were not being used for an illegal purpose nor was

there probable cause at the time of the intrusion to sus-

pect Cassity of participation in a conspiracy to manufac-

since he never admitted ownership or knowledge of the

cans and there was no evidence that he stored the cans

in a “protected” area of the house.

Absent consent or exigent circumstances, entry into

a person’s home to conduct a search has consistently

been held to be unreasonable under Fourth Amend-

ment protections unless it is conducted pursuant to a

warrant. Steagald v. United States, 49 U.S.L.W. 4418

(1981); Payton v. New York, 445 U.S. 573 (1980);

Johnson v. United States, 333 U.S. 10 (1948). The de-

gree to which Fourth Amendment protections are ex-

tended to apartments and shared dwellings is less cer-

tain. The Court of Appeals for the Sixth Circuit has

held, however, that tenants have the same expectation

of privacy in their apartments as homeowners in their

houses. United States v. Carriger, 541 F.2d 545,

550-552 (6th Cir. 1976). The Court referred to

McDonald v. United States, 335 U.S. 451 (1948), and

Fizel v. Wainwright, 492 F.2d 480 (5th Cir. 1974),

when it held:

“But it seems to me [Jackson, J., co ing] that

each tenant of a building, while he has no right to

exclude from the common hallways those who en-

ter lawfully, does have a personal and constitution-

ally protected interest in the integrity and security

of the entire building against unlawful breaking

and entry. ...”

[McDonald v. United States}, 335 U.S. at 458-59,

69 S.Ct. at 194-195.

...The officer’s entry into this locked apartment

building without permission and without a warrant

of any kind was an illegal entry and violated appel-

lant’s Fourth — —

lan's Fourth Amendment rights

entry should have been suppressed.

*2*

... There can be no difference in the tenant’s sub-

jective expectation of privacy, and no difference in

31a

the degree of privacy that the Fourth Amendment

protects.

* * *

Contemporary concepts of living such as multi-

unit dwellings must not dilute Fixel’s right to pri-

vacy any more than is absolutely required.

[Fixvel v. Wainwright], 492 F.2d at 484 (footnote

omitted).

541 F.2d at 550-552. Similarly, though less directly, the

United States Supreme Court in Jones v. United

States, supra, at 266, sanctioned the protection of the

Fourth Amendment rights for apartment dwellers and

others by refusing to distinguish among terms of such

“gossamer strength” as lessee, licensee, invitee and

guest.

The tenets expressed in these cases clearly support

defendant Sword’s claim. It is irrelevant that Sword

lived in an apartment. Moreover, the fact that the

rooms were shared with four other persons is of no sig-

nificance. Homeowners may reside in houses with

others and expect no less privacy than if they resided

alone. I find no reason to hold that apartment dwellers

have any less expectation of privacy. In either case the

principal resident—homeowner or lessee—risks the

consent of another resident to a search of the home.

See, e.g., United States v. Matlock supra, (a third per-

son, other than the defendant, may give valid consent

to search the defendant’s premises or effects if that

third person has common authority over them). Ac-

cord, United States v. Sumlin, 567 F. 2d 684 (6th Cir.

32a

stored. Furthermore, Sword also maintained a legiti-

mate expectation of privacy. The chemicals were not

contraband per se and the possession of them, absent

probable cause to link them and their owner with a spe-

cific drug manufacturing scheme, is not illegal. United

States v. Bailey, supra, at 944. There is no evidence

that the government obtained consent to search the

quadruplex from an occupant and thére is no independ-

ent evidence to indicate that Sword participated in the

overall drug conspiracy at the time that the beepers

were monitored in the quadruplex. Therefore I hold

that the monitoring of the beepers at 1494 Calvary vio-

lated Sword’s reasonable and legitimate expectation of

privacy.

Stephen Lenk contends that he had a reasonable ex-

pectation of privacy in the residence of Raymond Dean,

particularly in the basement of the house. Lenk was ar-

rested in the basement when it was searched. He had

33a

stances in which a visitor could object to a search of a

house.

For example, applied literally, this statement [le-

gitimately on the premises] would permit a casual

visitor who has never seen, or been permitted to

visit, the basement of another’s house to object to a

search of the basement if the visitor happened to

be in the kitchen of the house at the time of the

search. ... The ... visitor would have absolutely

no interest or legitimate expectation of privacy in

the basement ... and it advances no purpose

served by the Fourth Amendment to permit ...

him] to object to the lawfulness of the search."

"This is not to say that such visitors could not contest

the lawfulness of the seizure of evidence or the search if

their own property were seized during the search.

439 U.S. at 142 & n.11. Furthermore, although the

court in Rakas rejected the automatic standing doc-

trine of Jones v. United States, supra, it recognized

34a

that “wrongful” presence at the scene of the search

would preclude the legitimacy of the expectation.

Jones, supra, at 267. However, implied in the term

“wrongful”, as used by the court in Jones and Rakas,

is not the legality of the wse of the place searched but

the occupancy of the place.“ See Rakas, supra, at 141

n.9. If one recalls that the Fourth Amendment protects

“persons, not places”, the logic of the analysis is

obvious.

I am not persuaded by the government’s assertion

that a clandestine laboratory is not within the scope of

the Fourth Amendment protections pursuant to United

States v. Clayborne, supra. With due respect, I con-

Fourth Amendment specifically requires probable cause

to precede the search and it is not to be discovered as

the results of one.“

The government contends that the evidence seized as

a result of the search of the basement is admissible be-

cause the monitoring of the house began before Lenk

arrived and a warrant was obtained for the search of

the house.“ The monitoring was done at all times with-

35a

lance of the Hanson Street residence has not been

tainted by the previous monitoring of the beepers at

the other addresses., It relies for this contention on

United States v. Stephenson:

In the instant case the beeper surveillance evi-

dence within the house and that within the labora-

tory do not come together as one connected trans-

action. The agents lost contact with the device

following the movement from the house. An inde-

pendent effort was necessary to establish contact.

So the laboratory contact is not tainted by the sur-

veillance within the house.

490 F. Supp. at 624, citing United States v. Clayborne,

supra, at 349-50 (emphasis supplied in Stephenson).

Underlying this reasoning is the premise that there was

no expectation of privacy in a clandestine laboratory.

I find two flaws in this argument. First, I previously

stated that discovery of a clandestine laboratory as the

result of a warrantless search is insufficient to justify

the initial intrusion. Hence I do not agree that the mere

interruption of beeper surveillance is enough to purge

the taint of the initial warrantless search (see Wong

Sun v. United States, 371 U.S. 471 (1965)), since both

the laboratory and the homes in this case are subject to

Fourth Amendment protections. Second, the presence

or absence of an individual from the premises cannot

used to validate an otherwise illegal search. I must

sume that Dean expected his home to be

125

tained a of privacy in the Hanson

Street residence ſor the reasons that I have previously

discussed. A guest may risk his host’s consent to gov-

ernmental searches just as an individual who shares his

full-time residence with others may so do. See United

’

36a

Terry Hines argues that he has a reasonable expecta-

tion of privacy in the rented van in which the benzene

and heating mantle were transported. The van was

rented by the government, the items were placed in the

rear of the van by Drug Enforcement Agency (“DEA”)

special agents and Hines testified that he had no knowl-

edge that the chemicals or heating mantle were present

in the van because of the manner in which the rear com-

partment was constructed.

The test that I must use to determine Hines’ reason-

able expectation of privacy combines the question of

“standing” to challenge the search and the substantive

claim of a legitimate expectation of privacy into wheth-

er governmental officials violated any legitimate expec-

tation of privacy held by petitioner. Rawlings v.

Kentucky, supra, at 106. Only those persons whose

Fourth Amendment rights have been violated are enti-

tled to the protection of the exclusionary rule. United

States v. Salvucci, 448 U.S. 83, 86 (1980); Rakas,

supra, at 134. Hines has stated that he expected the

van to be free from governmental intrusion, i.e., he ex-

hibited a subjective expectation of privacy.

I find Hines’ position untenable. It is helpful to ana-

lyze subjective expectations of privacy in terms of the

pre-Rakas notions of “standing” with relation to Fourth

Amendment rights.

An individual has standing to sue if the challenged ac-

tion has caused him injury in fact and the injury was to

an interest “arguably within the zone of interests to be

protected” by the violation. United States v. Students

Challenging Regulatory Agency Procedures (SCRAP),

412 U.S. 669 (1973); Association of Data

Service Organizations, Inc. v. Camp, 397 U.S. 160

(1970); Barlow v. Collins, 397 U.S. 159 (1970). Obvi-

ously, a potential conviction will inure harm to Hines.

However, it is difficult for me to understand Hines’ con-

7s ee Mitel

yO ae Ee yet HONS, yee

37a

tention that he is within the zone of Fourth Amend-

ment protection.

The Fourth Amendment protects an individual from

unreasonable searches or seizures. It also protects the

individual and not the locus of the search or seizure.

See Katz v. United States, supra. Therefore, Hines

must expect to be protected, not just blithely exist in

an insular environment. An individual normally and

overtly manifests expectations of privacy in certain as-

pects of his daily life. He does not expect his telephone

to be tapped nor his bedroom to be bugged. A closed

compartment generally may be assumed to contain

items not intended for general knowledge. An individu-

al’s car, however, is not subject to the same expecta-

tions because its contents are generally open to view

and it is inherently mobile. United States v. Chadwick,

433 U.S. 1 (1977); South Dakota v. Opperman, 428

U.S. 364 (1976); United States v. Martinez-Fuerte, 428

U.S. 543, 561 (1976); Chambers v. Maroney, 399 U.S.

42 (1970); Cooper v. California, 386 U.S. 58 (1967). A

car that does not belong to an individual but is either

rented or loaned to him may be subject to even a lesser

degree of privacy. See United States v. McConnell, 500

F.2d 347 (5th Cir. 1974), cert. denied, 420 U.S. 946

(1975).

In McConnell, the Court of Appeals held that the de-

fendant lacked standing to contest a search of a rented

38a

The relationship between Hines and the van in this is

even more attenuated than in McConnell. Hines did

not rent the vehicle, the government did. He testified

that his only purpose in driving the van was to move it

from one parking lot to another. He also attested to the

fact that he did not know that there were chemicals or a

heating mantle within the van. It is inconceivable that

any person having such a transient interest in a vehicle

can manifest a subjective or legitimate expectation of

privacy.“ Hence I hold that the search of the vehicle

was not a violation of Hines’ Fourth Amendment

rights.

III.

Defendants urge suppression of the evidence seized

from 6344 Hanson as fruits of an illegal search. I have

concluded that Hines showed no reasonable expectation

of privacy in the van and, therefore, the evidence

Wong Sun v. United States, supra, at 491-92. The re-

maining defendnats, Cassity, Sword and Lenk, have as-

serted that the same evidence should be suppressed.’ I

need not reach this issue for the reasons set forth in

Part IV.

2 ere YS alte rs 18

39a

IV.

Having decided that Cassity, Sword and Lenk have

demonstrated a reasonable expectation of privacy in the

various locations where a beeper was monitored, I now

must decide if I should grant the motion to suppress

with regard to the evidence seized at 6344 Hanson.

The Court of Appeals stated that “if either the instal-

lation or the monitoring of the beeper violated the de-

fendant’s legitimate expectations of privacy, the court

ordinarily should grant the motion to suppress.”

United States v. Cassity, supra, at 465 (emphasis

to the privacy 1

......

cannot be restored. Reparation comes too

1 381 U.S. 618, 687 (1965).

40a

_ way—by removing the incentive to disregard

e v. United States, 364 U.S. 206, 217 (1960).

In sum, the rule is a judicially created remedy de-

signed to safeguard Fourth Amendment

generally through its deterrent effect, — 4 —

a personal constitutional right or the party

aggrie ved.

United States v. Calandra, 414 U.S. 338, 348 (1973).

The application of the exclusionary rule as a prospec-

tive remedy has evolved away from traditional

Blackstonian notions that judges discover the law that

has always been in existence and do not create new

lav.“ The Constitution does not specifically provide for

the retroactive or nonretroactive application of any of

its clauses or protections. Johnson v. New Jersey, 384

U.S. 719 (1966). However, constitutional rules of crimi-

nal procedure may be made “prospective ... where the

exigencies of the situation require such an application.”

Johnson v. New Jersey, supra, at 726-27; Tehan v.

Shott, 382 U.S. 406 (1966); Linkletter v. Walker,

supra. The criteria to be used in the determination of

retroactive application is based on the purpose to be

served by the new standards, the extent of reliance by

law enforcement officers on the old standards, and the

effect on administration of justice of the new standards.

Stovall v. Denno, 388 U.S. 298, 297 (1967); Linkletter

v. Walker, supra. Accord, United States v. Black, 480

F.2d 504 (6th Cir. 1973). The most important factor in

this trio is the purpose to be served by the new

standard.

criminal trial that substantially impairs its truth-

* See Kuhn v. Fairmont Coal Co., 215 U.S.

(Holmes, J., “Judicial decisions have had retrospee-

tive operation for a thousand years.”

4la

about the accuracy of guilty verdicts in past trials,

the new rule has been given completely retroactive

Williams v. United States, 401 U.S. 646, 653 (1971).

See also Ivan v. City of New York, 407 U.S. 208 (1972);

United States v. Black, supra, at 509.

The purpose of the imposition of the exclusionary

rule in Bailey was based on the holding that beeper

surveillance of non-contraband personal property in pri-

vate areas “trenches upon legitimate expectations of

privacy’. Bailey, supra, at 944. Hence, a warrant that

included a “reasonable” termination date is required to

protect the defendants’ Fourth Amendment rights.

Bailey, supra, at 945-46. In applying the Williams

42a

New York wiretap statute authorizing two-month sur-

veillance periods because each two-month period could

be based on a single showing of probable cause, two-

month extensions could be obtained without a new

showing, and no termination date was required even

though the sought-after conversation was seized. Ac-

cord, United States v. Lamonge, 458 F.2d 197 (6th

Cir.), cert. denied, 409 U.S. 863 (1972). Wiretapping

constitutes an actual invasion into an individual’s priva-

cy by monitoring conversations and affirmative actions

of an individual. See Katz v. United States, supra.

However, beepers have often been construed as exten-

sions of visual surveillance that enhance the physical

senses of law enforcement officers. United States v.

Dubrofeky, 581 F.2d 208, 211 (9th Cir. 1978); United

States v. Moore, 562 F. 2d 106, 112 (Ist Cir. 1977), cert.

denied sub nom. Bobisink v. United States, 485 U.S.

Crime Control and Safe Streets Act, 18 U.S.C.

$§ 2510-20 since the “device does not hear sound and

therefore does not accomplsih any ‘interception’ of wire

communications as that term is defined by 18 U.S.C.

§ 2510(4).” United States v. Giordano, 416 U.S. 506,

piesa cfd ae concurring in part and dis-

in part); United States v. New York Tel.

434 U.S. 159, 165-168 (1977); Michigan Bell Tel. Co.

United States, 565 F.2d 385, 388 (6th Cir. 1977).

cases. He further intepreted Fed.R.Crim.P.

41(cX4), limiting a search warrant to ten days, to re-

quire an expiration date on all warrants. At most, I

would interpret this theory to indicate that the warrant

expires in ten days, not that the warrant is entirely

valid.

. a * eee 5 Fre * ; >

r ö

44a

the agents were justified in their reliance on the old

standard and exercised good faith when they secured

warrants for the beeper surveillance.

The Supreme Court in Michigan v. Tucker, 417 U.S.

433, 447 (1974), held:

The deterrent purpose of the exclusionary rule nec-

which has deprived the defendant of some right.

By refusing to admit evidence gained as a result of

such conduct, the courts hope to instill in in those

417 U.S. at 447. Not only are the officers in this case

justified in their reliance on the old rule but application

of the exclusionary rule would serve little benefit.

beeper surveillance is used. I have some doubt that the

outcome of each defendant’s trial in this case would be

affected by retroactive application, since there was

other substantial evidence of guilt, although justice for

45a

process, the Court has concluded that any such

new constitutional principle would be accorded only

prospective application. Linkletter v. Walker, 381

U.S. 618 (1965); Johnson v. New Jersey, 384 U.S.

719 (1966); Stovall v. Denno, supra; Fuller v.

Alaska, 393 U. S. 80 (1968); Desist v. United

States, 394 U.S. 244 (1969); Jenkins v. Delaware,

395 U.S. 213 (1969); William v. United States,

supra; Hill v. California, 401 U.S. 797 (1971).

We think that these cases tell us a great deal

integrity,” Elkins v. United States, 364 U.S. 206,

222 (1960), although the Court has relied principal-

ly upon the deterrent purpose served by the exclu-

sionary rule. (Citations omitted).

officials in good-faith compliance with then-

prevailing constitutional norms did not make the

courts “accomplices in the willful disobedience of a

Constitution they are sworn to uphold.” Elkins v.

United States, supra, at 223.

46a

422 U.S. at 535-37. Accord, United States v.

Calandrella, 605 F.2d 236 (6th Cir.), cert. denied sub

nom. Kaye v. United States, 444 U.S.991 (1979).

47a

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

Criminal Action NO. 77-80932

UNITED STATES OF AMERICA, PLAINTIFF,

LARRY WAYNE CASSITY, RAYMOND LEE DEAN,

TERRY GENE HINES, STEPHEN GORDON LENK, AND

BILLY SWORD, DEFENDANTS

ORDER DENYING

DEFENDANTS’ MOTIONS TO SUPPRESS

At a session of said Court, held in the Federal

Building and United States Courthouse, City

of Detroit, County of Wayne, State of

Michigan, on the twenty-seventh day of Au-

IT IS ORDERED that the motions to suppress evi-

dence in the above-entitled case be, and the same here-

a . : - ;

8 8 8 St SS Sy . Rac an Fe

* rr ea eS

48a

APPENDIX D

United States of America v. Larry Wayne Cassity,

et al., Criminal Action No. 7-80982.

Proceedings before United States District Court for

the Eastern District of Michigan (Feikens, J.), July 18,

1978:

ses *

[61] THE COURT: I am inclined, Mr. Wishnow, to

agree with Mr. Parker. Even if in this situation no

search warrant had been obtained, I would find it diffi-

cult to follow your argument because, it seems to me

that a beeper, unlike wiretap activity, is a sophisticated

surveillance tool. And to say that in this day and age

law enforcement officers may not use the best we have

to detect crime would be foolish.

To say that they would have to use the more clumsy

24-hour visual technique rather than a more modern

homing device, it seems to me would be to say that we

were all bereaved of our common sense.

In this case they sought the procedure, the independ-

ent judgment of a judicial officer as to whether or not

No, I can’t even see this as a close case, Mr.

49a

APPENDIX E

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 81-1565°1-1566; 81-1567

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE

LARRY WAYNE CASSITY (81-1565), BUY SworD

(81-1566), STEPHEN GORDON LENK (81-1567),

DEFENDANTS-APPELLANTS

Before: MARTIN AND JONES, Circuit Judges; and

Brown, Senior Circuit Judge.

JUDGMENT

ON APPEAL from the United States District Court

for the Eastern District of Michigan.

THIS CAUSE came on to be heard on the record

from the said District Court and was argued by

counsel.

ON CONSIDERATION WHEREOF, It is now here

ordered and adjudged by this court that the judgment

of the said District Court in this case be and the same is

ENTERED BY ORDER OF THE COURT

John P. Hehman, Clerk

50a

APPENDIX F

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Nos: 81-1565-6-7

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,

LARRY WAYNE CASSITY, (81-1565) BILLY Swonb, 1

(81-1566) STEPHEN GORDON LENK, (81-1567) M

DEFENDANT-APPELLANTS J

ORDER 2

Upon consideration of the appellees motion to hold 4

the cause in abeyance pending a decision in a related

United States Supreme Court case, and the response

thereto;

It is ORDERED that the motion be and hereby is

ENTERED BY ORDER OF THE COURT

7 yg

Joun P. HEHMAN,

Clerk

Filed December 23, 1983

5la

APPENDIX G

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Nos, 81-1565/6/7

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,

v8.

LARRY WAYNE CASSITY, (81-1565) BILL Sworp,

(81-1566) AND STEPHEN GORDON LEXX, (81-1567)

DEFENDANTS-APPELLANTS.

Upon consideration of the apellee’s motion for an or-

der nune pro tune treating earlier motion to hold case in

abeyance as a for rehearing;

It is O that the motion be and hereby is

1 ENTERED BY ORDER OF THE COURT

JOHN P. HEHMAN, CLERK

Filed January 25, 1984

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.