Petition for Writ of Certiorari — Butts v. United States

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IN THE

Supreme Court of the United States

OCTOBER TERM, 1985

HAROLD DEAN BUTTS,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

GERALD H. GOLDSTEIN

ROBERT B. HIRSCHHORN

GOLDSTEIN, GOLDSTEIN & HILLEY

29th Floor Tower Life Building

San Antonio, Texas 78205

Attorneys for Petitioner,

Harold Dean Butts

A RS SE ERED OA TOE <<

Alpha Law Brief Co., Inc.—5606 Parkersburg—Houston, Texas 77036—223-3003

QUESTIONS PRESENTED

SHOULD OFFICERS WHO ARE ENTITLED TO

RELY UPON JUDICIALLY AUTHORIZED WAR-

RANTS, UNDER LEON, BE COMPELLED TO

COMPLY WITH THE EXPRESS DIRECTIVES

CONTAINED IN THOSE WARRANTS?

The issues presented by this Application have divided

the en banc Court of Appeals for the Fifth Circuit:

I. Whether the government may offer evidence ob-

tained in direct violation of the express written command

of the very judicial warrant that allowed the officers to

break into the interior of an aircraft to install an elec-

tronic tracking device where it is undisputed that the

evidence was obtained as the result of their monitoring

the transponder after the officers had been expressly

ordered to remove same?

II. Whether the warrantless monitoring of a trans-

ponder secreted within a zone of privacy violates the

Fourth Amendment?

TABLE OF CONTENTS

QUESTIONS PRESENTED ......ccssescccescnsvesss

OFFICERS WHO ARE ENTITLED TO RELY UPON

JUDICIALLY AUTHORIZED WARRANTS, UNDER

LEON, SHOULD BE COMPELLED TO COMPLY

WITH THE EXPRESS DIRECTIVES CONTAINED

IN THOSE WARRANTS ....cccccssvecenctausasess

TABLE OF CUNTENES oc ccasccwcccesccadeusasenss

piipy 3 ics: See errr rare ee yr

CITATIONS TO OPINIONS BELOW .... ws cccccaccces

SUBSEQUENT FEISTORY 2. .ccscccuccccsssunveeseess

FURR EUS Seas icncesskucancthetehsaee nau yaeen

CONSTITUTIONAL PROVISIONS INVOLVED .......

THE MAJORITY EN BANC OPINION CONFLICTS

WITH THIS COURT RULING IN KARO ..........

STATEMENT OF RELEVANT FACTS .......ccceces;

WARRANT OBTAINED TO INSTALL BEEPER ......

INITIAL PERIOD OF MONITORING REVEALED NO

hit 3) vs rrr re rere rey ye

EXTENSION OF ORIGINAL AUTHORIZATION

CONTAINED AN EXPRESS JUDICIAL DIRECTIVE

TO REMOVE TRANSPONDER FROM AIRCRAFT

UPON EXPIRATION OF THIRTY (30) DAYS .....

NO ATTEMPT MADE TO COMPLY WITH COURT

ORDER REQUIRING REMOVAL OF _ TRANS-

PONDER ON AUGUST 18, 1981 ......cccccccccensss

MAGISTRATE NOT INFORMED OF NON-COMPLI-

ANCE NOR WAS A SECOND EXTENSION SOUGHT

ELECTRONIC BEEPERS DON’T KNOW WHEN TO

CNT vv cvaca caxnnvgsansntenscnec

COULD NOT HAVE SURVEILLED THIS AIRCRAFT

WITHOUT “BEBPER” occ iccsscccnnnatncaeevases

TARGET TRACKED AFTER THE OFFICERS HAD

BEEN DIRECTED TO REMOVE “BEEPER” ......

wren = 2

Ill

I MS csc kkk b ees ascnesecccess

REASONS FOR GRANTING THE PETITION ........

I. OFFICERS WHO ARE ENTITLED TO RELY UPON

JUDICIALLY AUTHORIZED WARRANTS, UNDER

LEON, SHOULD BE COMPELLED TO COMPLY

WITH THE EXPRESS DIRECTIVES CONTAINED

IN WARRANTS THEY SOUGHT AND UPON

I E MRMEMGRIED cc casssasscsssncccceces

II. SUPPRESSION OF EVIDENCE PROPER WHERE

WARRANT AUTHORIZING INSTALLATION AND

MONITORING BEEPER SECRETED WITHIN

ZONE OF PRIVACY HAD, BY ITS OWN TERMS,

ESA EEGE ENG nieces bass sssesacescscces

“PROBABLE CAUSE” NOT “REASONABLE SUSPT-

CION” THE STANDARD WHERE GOVERNMENT

AGENTS SEEKS TO SURREPTITIOUSLY ENTER

INTERIOR OF AIRCRAFT TO INSTALL TRANS-

USE EL URGERS GGA Gh ese acbacnsercecccesees

MONITORING A SIGNAL EMITTED FROM A ZONE

CCPC CER GORGES bb hand ancennsnccceces

RECENT DECISIONS OF THIS COURT DO NOT

ge 8 Ge 4” 0) By

DURATION OF TRACKING DEVICE MUST BE

LIMITED TO ASSURE THAT THERE IS NO ABUSE

I CR GG GA Gh esa se nncessesenssercese

SRN IAM RPRMIPMEPELMEPRREUIING cy ccc ecccsncccaces

TECHNOLOGICAL ADVANCES HEIGHTEN NEED

FOR JUDICIAL INTERVENTION AND PROTEC-

ERM UREUEN GSE ASG SACK ac uassccrenseccccses

AUTHORITIES

CASES Page

Clinton v. Virginia, 377 U.S. 158 (1964) ...........508. 14

Dalia v. United States, 441 U.S. 238 (1979) .........05. 15

Johnson v. United States, 333 U.S. 10 (1948) .......-.-- 16

Mapp v. Ohio, 367 U.S. 643 (1961) ........ cee eee eens 11

McNabb v. United States, 318 U.S. 332 (1943) ......... 10

Rovinsky v. State, 605 S.W.2d 578 (Tex. Civ. App. 1980) 13

Silverman v. United States, 365 U.S. 505 (1961) ......... 14, 16

United States v. Bailey (6th Cir. 1980) 628 F.2d 938 .... 14,17

United States v. Brock (9th Cir. 1982) 687 F.2d 1311 .... 17

United States v. Butts (5th Cir. 1983) 710 F.2d 1139 .... 3,14

United States v. Cady (Sth Cir. 1981) 651 F.2d 290 ...... 13

United States v. Cofer (W.D. Tex. 1978) 444 F.Supp. 146 17

United States v. Curtis (9th Cir. 1977) 562 F.2d 1153 .... 17

United States v. Flynn (5th Cir. 1982) 664 F.2d 1296 .... 13

United States v. Gant, 702 F.2d 1341 (11th Cir. 1983) ... 13

United States v. Hufford (9th Cir. 1976) 539 F.2d 32 .... 13

United States v. Karo, __U.S.__, 104 S. Ct. 3296, (1984)

<i Ka xaen uk oka eet hee eke Cae e wk CARAReLe Nee 3,4, 12, 16, 17, 18

United States v. Knotts, 460 U.S. 276, 103 S. Ct. 1081

t., ') BRPPPYT PEPE ET TT eT RL ere ee 12,15, 16,17, 18

United States v. Kupper (5th Cir. 1982) 693 F.2d 1129... 17

United States v. Leon, _U.S.__, 104 S. Ct. 3405 (1984) .. 9,10

United States v. Moore (1st Cir. 1977) 562 F.2d 106..... 14,17

United States v. Padilla, 520 F.2d 536 (1st Cir. 1975) .... 13

United States v. Parks (5th Cir. 1982) 684 F.2d 1078 .... 17

United States v. Pretzinger (9th Cir. 1976) 542 F.2d S17 . 13

United States v. Reyes (5th Cir. 1973) 595 F.2d 275 ..... 7

United States v. Sheikh (5th Cir. 1981) 654 F.2d i057 .... 14

United States v. Whitley (5th Cir. 1982) 670 F.2d 617 .... 13

Zurcher v. Stanford Dailey, 436 U.S. 547, 56 L-Ed.2d 525,

fee me. Ni... Rr rrie tt 18

NO.

IN THE

Supreme Court of the TMnited States

OCTOBER TERM, 1985 >

HAROLD DEAN BUTTS,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

The Petitioner, HAROLD DEAN BUTTS, petitions

for a writ of certiorari to review the judgment of the

United States Court of Appeals for the Fifth Circuit in

this case.

CITATION TO OPINIONS BELOW

The opinion of the en banc Court of Appeals (App.

infra, A-1-A-38) is reported at 729 F.2d 1514. The

panel opinion of the Court of Appeals (App. infra, B-1 -

B-36) is reported at 710 F.2d 1139. The opinion of the

District Court (App. infra, C-1-C-12) is not reported.

The opinion of the Fifth Circuit (App. infra, G-1 - G-2)

is not reported.

SUBSEQUENT HISTORY

This Court on a previous occasion denied certiorari

based upon a Memorandum of the Solicitor General

contending that there is no authority for an accused to

reach certiorari review from this Court of the Govern-

ment’s interlocutory appeal of an order suppressing evi-

dence, suggesting instead that:

“Whatever the merits of petitioner’s contentions

they are not presently ripe for review by this Court.

The Court of Appeals’ decision places petitioner in

precisely the same position he would have occupied

if the district court had denied his motion to suppress.

If . . . petitioner is convicted [following remand

and trial on the merits] and his conviction affirmed

on appeal, he will then be able to present his present

contention to this Court . . . in a petition for a

writ of certiorari seeking review of a final judgment

against him . . . review by this Court of the Court

of Appeals’ decision would be premature at this

time.” Memorandum in Opposition (App. infra, E-3 -

E-4).

As predicted by the Solicitor General, Petitioner has

been convicted on remand and his appeal affirmed. As

suggested by the Solicitor General, Petitioner now comes

before this Court for review.

JURISDICTION

The judgment of the en banc Court of Appeals was

entered on April 23, 1984. A suggestion for reconsidera-

tion and rehearing of en banc opinion was denied on May

22, 1984 (App. infra, D-1). Certiorari was denied by

this Court on September 18, 1984 (App. infra, F-1). The

subsequent judgment of the Court of Appeals was entered

November 15, 1985. The jurisdiction of this Court is

invoked under 28 U.S.C. § 1254(1). Petitioner timely

seeks review by this Court.

CONSTITUTIONAL PROVISION INVOLVED

The Fourth Amendment provides: “The right of the

people to be secure in their persons, houses, papers, and

effects, against unreasonable searches and seizures, shall

not be violated, and no warrants shall issue, but upon

probable cause, supported by oath or affirmation, and

particularly describing the place to be searched, and the

persons or things to be seized.”

THE MAJORITY EN BANC OPINION

CONFLICTS WITH THIS COURT

RULING IN KARO

The District Court’s suppression of the evidence was

affirmed by a divided panel of the Fifth Circuit. A sharply

divided en banc Fifth Circuit reversed the panel opinion.

The Fifth Circuit majority’s en banc decision is in con-

flict with the Court’s recent decision in Karo in holding

that “no Fourth Amendment right was infringed” by

monitoring a beeper installed within the interior of an

aircraft after the agents had been ordered to remove same.

U.S. v. Butts (Sth Cir. 1984) 729 F.2d 1514, 1518.

This position was adopted by the government in Karo

but rejected by this Court:

“The government argues that the traditional justi-

fications for the warrant requirement are inapplicable

in beeper cases, but to a large extent that argument

is based upon the contention, rejected above, that

the beeper constitutes only a minuscule intrusion on

protected privacy interests. . . . Requiring a warrant

will have the salutary effect of insuring that use of

beepers is not abused, by imposing upon agents the

requirement that they demonstrate in advance their

justification for the desired search. . . . [a]nd the

length of time for which beeper surveillance is re-

quested.” U.S. v. Karo, ___U.S..___, 104 S. Ct.

3296, 3304-3305 (1984).

STATEMENT OF RELEVANT FACTS

WARRANT OBTAINED TO INSTALL BEEPER

On June 19, 1981, United States Customs Pilot Law-

rence Nichols swore out an affidavit seeking judicial

authorization to surreptitiously enter and install a trans-

ponder’ within the interior instrument panel of an aircraft

bearing Registration Number N4926B.

On the basis of information contained in the affidavit,

a warrant was issued to install a beeper within the interior

of the aircraft and monitor same for a period not to ex-

ceed thirty (30) days. [Rec. at p. 104, 191-192).

INITIAL PERIOD OF MONITORING

REVEALED NO INFORMATION

During the initial thirty (30)-day monitoring period,

the functioning beeper failed to detect any movement or

nefarious activity associated with the suspect aircraft.

Furthermore, during the same period of time, there was

no additional information supplied to any law enforce-

ment officer regarding the activities of the aircraft, its

owner, or any other individual associated with it.

—

1. The transponder, also referred to as a “beeper” or “beacon”,

is a miniature, radio transmitter that operates off the aircraft power

system, and emits a signal at a set frequency.

EXTENSION OF ORIGINAL AUTHORIZATION

CONTAINED AN EXPRESS JUDICIAL DIREC-

TIVE TO REMOVE TRANSPONDER FROM

AIRCRAFT UPON EXPIRATION OF

THIRTY (30) DAYS

On July 21, two days after the initial warrant had ex-

pired by its own terms* [Rec. 104, 1.8 -p. 104, 1.6], the

same customs agent appeared before the Magistrate and

“sought an extension of thirty days” of the now termin-

ated warrant [Rec. 104, !.8-11]. Testimony of the agent

at the Motion to Suppress hearing revealed that no affi-

davit setting out additional probable cause was filed, and

instead, the agent chose to rely solely on the prob-

able cause used to obtain the original warrant. Never-

theless, an extension of the original Order was granted but

with an explicit and express condition: the transponding

device was to be removed not later than thirty (30) days

from the expiration of the original Court Order.

“YOU ARE HEREBY GRANTED an extension

forthwith on the above described Beechcraft B-50

aircraft, bearing registration number N4926B, a

transponder signaling device to remain on aircraft

for a period of 30 days. You are also directed to

remove the transponder from aircraft N4926B no

later than 30 days from the expiration of the original

court order [expiration date 07/19/81] that author-

ized the instal'ation of the electronic equipment.”

[emphasis supplied].

2. The origiral Court order expired on Sunday, July 19, 1981.

For purposes of computing when the order expired under Fed. R.

Crim. F. 45(a), same would have been not later than Monday, July

20, 1981. The agent sought and received an extension of the expired

order on July 21, 1981, the following day.

NO ATTEMPT MADE TO COMPLY WITH COURT

ORDER REQUIRING REMOVAL OF TRANS-

PONDER ON AUGUST 18, 1981

Despite the explicit Court Order, the Agents failed to

take any action on August 18, 1981, as required by the

express terms of the Court Order [Rec. p. 92, 1.14-16].

In fact, no agent even made an “attempt to remove the

beeper before that date.” [Rec. p. 107, 1.14-16].

Agent Weatherman testified that he was out of the

State “on active duty” at the time and wes unable to re-

move the device himself. However, the Agent acknowl-

edged that at least two other qualified individuals were

authorized to install and remove such beepers in the San

Antonio, Texas, office alone [Rec. p. 106, 1.18-21], and

that he knew well in advance [some five months before

he even sought the warrant] that he would be unavailable

on August 18, 1981 [Rec. p. 105, 1.14-p. 106, 1.17].

While the officers acknowledged their agency has “a

procedure for [them] to remove [the] beeper on or before

the date . . . the warrant provides that [they] should re-

move it” [Rec. p. 146, 1.3-6], no attempt was made to

do so herein.

MAGISTRATE NOT INFORMED OF NON-

COMPLIANCE NOR WAS A SECOND

EXTENSION SOUGHT

Not only did the Agenis fail to comply with the Magis-

trate’s directive to remove the beeper, they failed to ap-

prise the Magistrate of their disobedience to his directive

or make any attempt to obtain a second extension. Fur-

thermore, at the Motion to Suppress hearing, the Govern-

ment stipulated “that the actual surveillance and ultimate

search took place a few days after the extension order

had expired.” [Rec. p. 193, 1.9-11].

ELECTRONIC BEEPERS DON’T KNOW

WHEN TO QUIT

It was also acknowledged by the Government that once

installed, this type of transponder has no way of turning

itself off [Rec. p. 146, 1.7-15], and “the only way the

Customs Service has . . . of complying with the Court

Order telling it to [cease] monitoring is to go in and take

the beeper out.” [Rec. p. 146, 1.16-19].’

COULD NOT HAVE SURVEILLED THIS

AIRCRAFT WITHOUT “BEEPER”

The officers testified they needed the “transponder or

tracking device because without it [they] would not be

able to maintain surveillance of this particular aircraft”

due to [its] range and speed. [Rec. p. 197, 1.5-25].

TARGET TRACKED AFTER THE OFFICERS

HAD BEEN DIRECTED TO

REMOVE “BEEPER”

Four days after the authorization had thus expired and

the agents had been ordered to remove the device, a

“target” was picked up by an air officer on his radar

screen at “Houston Control”, heading in a Southerly

direction [Rec. p. 4, 1.17-19]. For the first time since

the beeper had been surreptitiously installed, Customs

3. For example, in U.S. v. Reyes, 595 F.2d 275 (Sth Cir. 1973),

the court noted that there “the transponder by which the aircraft

. tracked had been installed fourteen months earlier by govern-

ment agent.” At p. 278.

Agents went to the location where the “beeper” had been

installed, the Seguin Airport, and found the airplane was

not there [Rec. p. 24, 1.19-22].

An aircraft was again picked up some ten (10) hours

later, 106 miles into the interior of Mexico, heading in a

Northerly direction.

ARREST OF APPELLEE

The Customs Pilots landed immediately after Peti-

tioner’s aircraft touched down in Castroville, Texas. The

Agents blocked the runway, ordered the Appellee out of

the plane he was piloting and placed him under arrest.

A search of the airplane revealed approximately eight

pounds of marijuana.

The Government stipulated at the Motion to Suppress

hearing “that they are relying upon the warrant and the

affidavit” [Rec. p. 193, 1.13-19] and “that the actual

surveillance and ultimate search took place a few days

after the extension order had expired” [Rec. p. 193,

1.9-11].

REASONS FOR GRANTING THE PETITION

This case presents two substantial questions. The

narrow question is whether officers who see. and obtain

warrants should be required to abide by the explicit and

unambiguous directives contained in those judicial orders.

The broader issue raised by this petition is whether

the installation, maintenance, and monitoring of an elec-

tronic transponder from within the “zone of privacy” of

the interior passenger compartment of a conveyance re-

quires a warrant for a specific and reasonable period of

time. The majority decision of the en banc Court of Ap-

peals directly conflicts with the decisions of this Court

and other courts of appeals. Accordingly, review by this

Court is warranted to resolve the conflicts on these im-

portant questions of substantive law.

OFFICERS WHO ARE ENTITLED TO RELY UPON

JUDICIALLY AUTHORIZED WARRANTS, UNDER

LEON, SHOULD BE COMPELLED TO COMPLY

WITH THE EXPRESS DIRECTIVES CONTAINED

IN WARRANTS THEY SOUGHT AND UPON

WHICH THEY RELIED

The teaching of this Court’s recent opinion in U.S. v.

Leon, U.S , 104 S. Ct. 3405 (1984) is that

police officers are entitled to act in reliance upon even an

erroneously issued judicial warrant because of the desire

to encourage warrant practice and the fact that “[P]enal-

izing the officer for the magistrate’s error, rather than his

own, cannot logically contribute to the deterrence of

Fourth Amendment violations.” U.S. v. Leon, supra

(emphasis supplied). If under Leon an officer is entitled

to rely upon a warrant lacking in probable cause, then

surely that officer should be required to comply with

the written directives contained therein.

When acting pursuant to a Court Order that is unam-

biguous on its face, it is assumed that officers will follow

its commands. This Court in Leon made clear that law

officers have “a sworn duty to carry out” the provisions

of a judicial warrant.

“A warrant is a judicial mandate to an officer to

conduct a search or make an arrest, and the officer

has a sworn duty to carry out its Provisions,” (em-

phasis supplied) U.S. v. Leon, supra.

We are confronted here with the maintenance of a

transponder and gathering of evidence in direct violation

of the very Court authorization upon which the Govern-

ment originally relied. If ever there should be a case

where the full force of this Court's supervisory powers

should be felt it should be in such instances of flagrant

disregard of judicial authority:

“Judicial supervision of the administration of crimi-

nal justice in the federal courts implies the duty of

establishing and maintaining civilized standards of

procedure and evidence. Such standards are not satis-

fied merely by observance of those minimal historic

safeguards for securing trial by reasons which are

summarized as “due process of law” .. . A demo-

cratic society, in which respect for the dignity of all

men is central, naturally guards against the misuse

of the law enforcement process. Zeal in tracking

down crime is not in itself an assurance of soberness

of judgment. Disinterestedness in law enforcement

does not alone prevent disregard of cherished liber-

ties. Experience has therefore counseled that safe-

guards must be provided against the dangers of the

overzealous as well as the despotic. The awful instru-

ments of the criminal law cannot be entrusted to a

single functionary. The complicated process of crimi-

nal justice is therefore divided into different parts,

responsibility for which is separately vested in the

various participants upon whom the criminal law

relies for its vindication.” McNabb v. U.S., 318 US.

332, 340, 343 (1943).

If this Court were to sanction searches conducted with-

out probable cause based upon an officer’s claimed reli-

ance on a judicially issued warrant, without at the same

time requiring that officer to abide by the express terms

of that warrant, same would amount to a total abdiction

of the judiciary’s role in supervising the police and en-

forcing the fourth amendment. Who then will protect us

from our protectors?

More importantly, allowing Government agents to defy

judicial directives would breed an air of contempt, cir-

cumvent the necessity to resort to the judicial process,

and impermissibly expand the power and authority of law

enforcement agencies.

As the Supreme Court wrote over twenty (20) years

ago:

“Nothing can destroy a government more quickly

than its own failure to observe its own laws, or

worse, its disregard of the character of its own

existence. . . . Our government is the potent, the

omnipresent teacher for good or for ill, it teaches the

whole people by its example . . . If the government

becomes a law breaker, it breeds contempt for the

law; it invites every man to become a law unto

himself: it invites anarchy.” Mapp v. Ohio, 367 U.S.

643, 659 (1961).

Can it be that the state of Fourth Amendment law has

come to the point where an officer may rely upon the

terms of a search warrant regardless whether that docu-

ment establishes probable cause, while at the same time,

if it serves his purpose, ignore the magistrate’s express

directives with impunity? Having determined that officers

may act in good faith reliance upon determinations by

a magistrate, this Court should at least require that those

same officers abide by the judicial orders they have sought.

II.

SUPPRESSION OF EVIDENCE PROPER WHERE

WARRANT AUTHORIZING INSTALLATION AND

MONITORING BEEPER SECRETED WITHIN

ZONE OF PRIVACY HAD, BY ITS

OWN TERMS, EXPIRED

The recent decisions in U.S. v. Knotts, 460 U.S. 276,

103 S. Ct. 1081 (1983), and U.S. v. Karo, ____U.S.___.,

104 S. Ct. 3296 (1984), make it clear that the installa-

tion, maintenance, and monitoring of a beeper from

within the interior passenger compartment’s “zone of

privacy” requires a warrant. This case is ripe for con-

sideration by this Court as it would complete the “beeper

trilogy” and answer the critical questions left unresolved

in Knotts and Karo: whether a warrant is required to

install and monitor a beeper secreted within a zone of

privacy. See, U.S. v. Karo, supra, at p. 5105 n.5.

“PROBABLE CAUSE” NOT “REASONABLE

SUSPICION” THE STANDARD WHERE

GOVERNMENT AGENT SEEKS TO

SURREPTITIOUSLY ENTER IN-

TERIOR OF AIRCRAFT TO

INSTALL TRANSPONDER

In U.S. v. Karo, the Government argued that a showing

of reasonable suspicion rather than probable cause should

be the appropriate standard for beeper monitoring. Since

that issue was not before this Court, it was not addressed.

U.S. v. Karo, supra. Here, this issue is squarely before

the Court.

Although this Court has not addressed the appropriate

standard to be applied, several lower courts have uniform-

ly held that entry into the “interior” of a vehicle to install

the beeper constitutes a search since it involves an in-

trusion into an area where there is a “reasonable expecta-

tion of privacy.” United States v. Whitley (Sth Cir. 1982)

670 F.2d 617 [Aircraft]; United States v. Flynn (5th Cir.

1982) 664 F.2d 1296 [entry into aircraft]; United States

v. Cady (Sth Cir. 1981) 651 F.2d 290 [entry into air-

craft]; United States v. Pretzinger (9th Cir. 1976) 542

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

F.2d 32; U.S. v. Padilla, 520 F.2d 536 (1st Cir. 1975),

recording device installed in room was illegal and does not

fall within the consensual recording exception which would

have permitted a recording device on agent’s person.

Contra: U.S. v. Gant, 702 F.2d 1341 (11th Cir. 1983).

See also: Rovinsky v. State, 605 S.W.2d 578 (Tex. Civ.

App. 1980). The implanting of a tracking device inside a

vehicle requires government agents to invade the pas-

senger compartment or cabin by opening a door or break-

ing a lock. Thereafter, the device is affixed to the interior

of the vehicle where it remains for a potentially infinite

period of time. As was observed in the now withdrawn

panel opinion in this case:

“In a very real sense the beeper serves as a surrogate

police presence that remains within the vehicle’s in-

terior and converts the area into a covert broad-

castimg station. Given the capacity of such devices

to impart information, the introduction of these gov-

ernment controlled objects into an area in which an

individual legitimately retains an expectation of

privacy constitutes an offensive invasion of fourth

amendment values. The government via its electronic

counterpart remains physically present within the

interior of the vehicle from the moment its agents

enter until the tracking device ceases to function.

In this age of electronic wizardry it is not too much

to suppose that beepers soon will have virtually un-

limited lifespans. The continuing intrusion of such

a device into a privacy-cloaked area, an intrusion

that could potentially last from here to eternity,

mandates greater protections . . . U.S. v. Butts (Sth

Cir. 1983) 710 F.2d 1139, 1149.

MONITORING A SIGNAL EMITTED

FROM A ZONE OF PRIVACY

There should be little question that if an individual

has a sufficient privacy interest in an area to require a

warrant for surreptitious entry into that area to install

an electronic transmitting device, such privacy expecta-

tion should be sufficient to require judicial scrutiny of

any prolonged monitoring of the signal emitted from

within that zone of privacy. See: Silverman v. United

States, 365 U.S. 505 (1961) [where the Supreme Court

held a warrant was required to install and monitor a

microphone imbedded into an adjoining wall on the

grounds that same was accomplished by means of an

authorized physical penetration” constituting “an actual

intrusion into a constitutionally protected area”]; Clinton

v. Virginia, 377 U.S. 158 (1964).

This concept of monitoring from a “zone of privacy”

has been recognized by a number of courts, U.S. v.

Bailey (6th Cir. 1980) 628 F.2d 938, at p. 944; U.S.

v. Moore (\st Cir. 1977) 562 F.2d 106, at p. 113. In

United States v. Sheikh (Sth Cir. 1981) 654 F.2d 1057,

the Fifth Circuit noted there was a heightened privacy

concern where the Government was monitoring from a

“place hidden from public view.” United States v. Sheikh,

supra, at p. 1071. However, because the container there

contained “known contraband” the Court did not reach

this issue.

Furthermore, the warrant requirement for monitoring

a transmission from within an area of expected privacy

is underscored by the Supreme Court's decision in Dalia

v. United States, 441 U.S. 238 (1979) where, considering

the inverse proposition, the court held that a warrant to

monitor from within a constitutionally protected area

presupposed the right to physically penetrate that area

to install such a device, indicating that the paramount

concern with electronic surveillance into a protected area

is its continuing nature rather than the initial intrusion.

RECENT DECISIONS OF THIS COURT DO

NOT COMPEL CONTRARY RESULT

United States v. Knotts, 460 U.S. 276, 103 S. Ct. 1081,

75 L.Ed.2d 55 (1983) does not compel a contrary result

since the Court in Knotts was not confronted with the

issue of monitoring a beeper signal emitted from a “zone

of privacy”.

“Respondent Knotts, as owner of the cabin and sur-

rounding premises to which Petsaker drove, undoubt-

edly had the traditional expectation of privacy within

dwelling place insofar as the cabin was concerned

. .. But no such expectation of privacy extended to

the visual observation of Petcher’s automobile ar-

riving on his premises after leaving a public high-

way; nor to movements of objects such as the drum

of chloroform OUTSIDE THE CABIN IN THE

‘OPEN FIELDS’. [citation omitted].” (emphasis sup-

plied) United States v. Knotts, ___U.S..__, 103

S. Ct. 1081, 75 L.Ed.2d 55, at p. 62 (1983).

Indeed, Justices Brennan and Marshall indicated that

if this Court had been considering a case of beeper moni-

toring from within a zone of privacy, the Fourth Amend-

ment may have compelled a different result:

“Cases such as Silverman v. United States, 365 U.S.

505, 509, 512 (1964), however, hold that when the

Government does engage in physical intrusion of a

constitutionally protected area in order to obtain

information, that intrusion may constitute a viola-

tion of the Fourth Amendment even if the same

information could have been obtained by other

means.” United States v. Knotts, ——U.S...__, 75

L.Ed.2d 55, at p. 65 (1983) (Brennan joined by

Marshall concurring in judgment).

In short, Knorts would be dispositive only if in Knotts

the Government, rather than placing the “beeper” in the

chloroform cannister with the consent of the distributor

who owned and had possession of it, had waited until

after Mr. Knotts purchased the cannister and then broken

into his vehicle to insert the device inside the passenger

compartment within the cannister therein.

Similarly, this Court’s recent decision in Karo is not

dispositive of the issue herein. In Karo, this Court re-

jected the Government’s contention that it was unneces-

sary to resort to obtaining a warrant since “the beeper

constitutes only a minuscule intrusion on protected priv-

acy interests.” U.S. v. Karo, supra. Instead, this Court

expressly recognized the necessity of a warrant to enter

and monitor a transponder from within a recognized

zone of privacy:

“The primary reason for the warrant requirement

is to interpose a neutral and detached magistrate”

between the citizen and “the officer engaged in the

often competitive enterprise of ferreting out crime.”

Johnson v. United States, 333 U.S. 10, 14 (1948).

Those suspected of drug offenses are no less entitled

to that protection than those suspected of non-drug

offenses. Requiring a warrant will have the salutary

effect of ensuring that use of beepers is not abused,

by imposing upon agents the requirement that they

demonstrate in advance their justification for the

desired search.” U.S. v. Karo, supra.

Furthermore, there is a critical distinction between Karo

and the instant case: in Karo, this Court held that the

search warrant affidavit contained sufficient information

to furnish probable cause “after striking the facts about

monitoring the beeper.” (emphasis supplied). U.S. v.

Karo, supra. In the Petitioner’s case, the sum total of

evidence against him was based solely on the tainted

information obtained from the warrantless monitoring.

DURATION OF TRACKING DEVICE MUST BE

LIMITED TO ASSURE THAT THERE IS NO

ABUSE OF THE BEEPER

The continued presence of a tracking device inust be

subject to judicial scrutiny so as to assure citizens that

the duration of the beeper’s life will not be unreasonable.*

In Knotts, this Court spoke of the potential abuse of

beepers:

4. See Kupper, 693 F.2d 1132, 1134, n.2 (noting that magistrate’s

order authorizing beeper installation “was limited in duration’’);

Parks, 684 F.2d at 1085 (characterizing beeper’s presence in aircraft

interior as ‘continuing physical intrusion or trespass’); United States

v. Brock (9th Cir. 1982) 687 F.2d 1311, 1322. (“[T]he [c]Jourt can-

not countenance the potentially unlimited duration of this type of

surveillance ‘[location beepers]’” (quoting with approval United

States v. Cofer (W.D. Tex. 1978) 444 F.Supp. 146, 149-150; Bailey,

628 F.2d at 945 & n.12 (due to absence of termination date in

iuthorizing warrant, beeper’s presence could have continued ‘ad

infinitum’); United States v. Curtis (9th Cir. 1977) 562 F.2d 1153,

1156 (expressing need for reasonable time limitations and other rea-

sonable restrictions on beeper use); United States v. Moore, 562 F.2d

106, 113, n.4 (noting that duration of beeper use was limited and

cautioning that additional safeguards might be required for extensive

periods of beeper installation).

“Respondent expresses the generalized view that the

result of the hoiding sought by the government would

be that “twenty-four hour surveillance of any citizen

of this country will be possible, without judicial

knowledge or supervision.” Br, for Resp. at 9 (foot-

note omitted). But the fact is that the “reality hardly

suggests abuse,” Zurcher v. Stanford Daily, 436 U.S.

547, 566, 56 L.Ed.2d 525, 98 S. Ct. 1970 (1978);

if such dragnet type law enforcement practices as

respondent envisions should eventually occur, there

will be time enough then to determine whether dif-

ferent constitutional principles may be applicable.”

U.S. v. Knotts, supra at p. 63.

The reality of the instant case suggests the very abuse

envisioned by Respondent Knotts. Here, the Government

kept appellee’s aircraft under 24 hour surveillance not

only without judicial supervision or knowledge, but in

flagrant and outright defiance of a judicial order. Here,

the Government’s conduct evinces the “dragnet type law

enforcement” that Respondent Knotts complained of.

Supra at p. 63. Accordingly, this Court must now “deter-

mine whether different constitutional principles may be

applicable” and in light of the facts in this case, must

address the issue expressly left unresolved by the Supreme

Court in Knotts. Uni.ed States v. Knotts, supra, at p. 63.

The Karo decision reiterated and reaffirmed this Court’s

concern for the potential abuse of electronic transponders:

“Requiring a warrant will have the salutary effect of ensur-

ing that the use of beepers is not abused... .” U.S. v.

Karo, supra. Additionally, this Court held that monitor-

ing without a warrant may violate the Fourth Amend-

ment, /7d., and, that the affidavit must describe the “object

into which the beeper is placed, the circumstances that

lead agents to wish to install the beeper, and length of time

for which beeper surveillance is requested.” Id. (emphasis

supplied )

Here, the agents’ callous indifference tu the Magistrate's

express mandate re juiring removal of the transponder

within a specified period exacerbates the very reason

underlying judicial intervention; to minimize the abuse

of such sophisticated gadgetry.

Ill.

POLICY CONSIDERATIONS

TECHNOLOGICAL ADVANCES HEIGHTEN NEED

FOR JUDICIAL INTERVENTION

AND PROTECTION

This decade has demonstrated that law enforcement

has responded to the technological onslaught by efficiently

utilizing and implementing surveillance devices unimagin-

able twenty years ago. The Government today can much

more efficiently and surreptitiously invade that which

citizens could have reasonably expected to be private

a few short years ago. It can, completely without detec-

tion, electronically, very neatly and discretely “appear”

in any man’s home, automobile or aircraft conveying

te human listeners perhaps entire conversations or mere

Singular, but private facts, such as physical presence.

As the technology of surveillance hardware advances

by geometric progressions, the citizen’s right to privacy

will necessarily diminish in inverse proportions, unless

clear safeguards have been established. In this electronic

age the citizens may be in need of more, not less

protection.

CONCLUSION

In light of the substantial issues raised, Petitioner re-

spectfully prays that this Court grant his Petition for

Writ of Certiorari.

Dated: February 5, 1986.

Respectfully submitted,

GOLDSTEIN, GOLDSTEIN & HILLEY

2900 Tower Life Building

San Antonio, Texas 78205

GERALD H. GOLDSTEIN

Bar No. 08101000

ROBERT B. HIRSCHHORN

Bar No. 09719700

Attorneys for Petitioner,

Harold Dean Butts

CERTIFICATE OF SERVICE

I, GERALD H. GOLDSTEIN, hereby certify that on

this 5th day of February, 1986, copies of this Petition for

Writ of Certiorari were mailed, first class, postage p-epaid

to the Solicitor General, Department of Justice, Washing-

ton, D.C. 20530. I further certify that all parties required

to be served have beei served.

GERALD H. GOLDSTEIN

Counsel for Petitioner,

Harold Dean Butts

APPENDIX

A-1

APPENDIX A

UNITED STATES OF AMERICA,

Plantiff-Appellant,

-V,

HAROLD DEAN BUTTS,

Defendant-Appellee.

No. 82-1260

United States Court of Appeals,

Fifth Circuit.

April 23, 1984.

Defendant was charged with importing marjuana, pos-

session of marijuana with intent to distribute, and with

carrying a firearm during commission of felony. The

United States District Court for the Western District of

Texas, Dorwin W. Suttle, J., granted defendant’s motion

to suppress evidence obtained as result of monitoring of

electronic beeper installed inside aircraft defendant was

piloting, and the Government appealed. The Court of

Appeals, 710 F.2d 1139, affirmed. On rehearing en banc,

the Court of Appeals, Clark, Chief Judge, held that

monitoring by customs officials of signal that disclosed

presence of aircraft in public airspace was not unconsti-

tutional search or seizure under the Fourth Amendment

because terms of warrant authorizing signalling device

required it to be removed before its signal was recorded.

Reversed and remanded.

A-2

Garwood, Circuit Judge, filed an opinion concurring

in the result.

Goldberg, Circuit Judge, filed a dissenting opinion in

which Politz and Tate, Circuit Judges, joined.

E. Grady Jolly, Circuit Judge, filed a dissenting opinion

in which Goldberg, Politz, Tate and Jerre S. Williams,

Circuit Judges, joined.

Sidney Powell, Asst. U.S. Atty., San Antonio, Tex., for

plaintiff-appellant.

Gerald Goldstein, Robert B. Hirschhorn, Ralph A.

Lopez, San Antonio, Tex., for defendant-appellee.

Appeal from the United States District Court for the

Western District of Texas.

Before CLARK, Chief Judge, BROWN, GOLDBERG,

GEE, RUBIN, REAVLEY, POLITZ, RANDALL,

TATE, JOHNSON, WILLIAMS, GARWOOD, JOLLY,

HIGGINBOTHAM and DAVIS, Circuit Judges.

CLARK, Chief Judge:

[1] Was the monitoring by customs officials of a

signal that disclosed the presence of an aircraft in public

airspace an unconstitutional search or seizure under the

Fourth Amendment because the terms of the warrant

authorizing the signaling device required it to be removed

before its signal was recorded? We hold it was not. The

warrant violation did not change the detection of the

defendant’s public activity into a Fourth Amendment

violation. The evidence obtained by such monitoring

should not have been suppressed.

A-3

On June 19, 1981, a United States Customs Agent filed

an affidavit seeking court authorization to install an elec-

tronic tracking device, commonly called a beeper, inside

a designated aircraft. In the affidavit, the agent alleged

that probable cause existed to believe the aircraft would

be used to import marijuana into the United States. Based

on this affidavit, a United States Magistrate authorized

the installation. The warrant required the beeper to be

removed within thirty days after its installation. During

the night of June 19, a customs agent installed the beeper

in the interior of the aircraft, which was parked at a

Seguin, Texas, airport.

On July 21, two days after expiration of the thirty-day

time limit, a customs agent sought and was granted an

extension of the original authorization. No further entry

of the aircraft was made at that time. The extension order

directed that the beeper be removed no later than August

19, which was thirty days from the date of the original

expiration date. The installing agent was not on duty on

August 19, and the beeper was not removed as the war-

rant required.

On August 22, customs officials began monitoring an

aircraft emitting signals from a customs beeper. The

target aircraft was periodically monitored by radar, sighted

and followed by customs pilots, and intercepted when it

landed. Customs officials then arrested Butts, the pilot

of the target aircraft. Marijuana and other evidence was

found on the aircraft.

Butts was charged with importing marijuana into the

United States, 21 U.S.C. §§ 960(a)(1), 952(a), with

possession of marijuana with intent to distribute it, 21

A-4

U.S.C. $$ 960(a)(1), 952(a), with possession of mari-

juana with intent to distribute it, 21 U.S.C. § 841(a) (1),

and with carrying a firearm during the commission of a

felony, 18 U.S.C. § 924(c)(2). Before trial, Butts moved

to suppress all evidence obtained by customs agents as a

result of their monitoring of the beeper on August 22 and

23, the two days on which Butts was piloting the aircraft.’

The district court granted Butt’s motion after conducting

an evidentiary hearing. The government appealed the dis-

trict court’s order pursuant to 18 U.S.C. § 3731. |

A divided panel of this court affirmed the suppression

order of the district court. United States v. Butts, 710

F.2d 1139 (Sth Cir. 1983). This holding was vacated by

our action granting rehearing en banc. 5th Cir. Local

R. 41.3.

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

19 L.Ed.2d 576 (1967), the Supreme Court developed

the principles that currently control Fourth Amendment

analysis:

{T]he Fourth Amendment protects people, not

places. What a person knowingly exposes to the

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

i. The government did not challenge the district court’s conclu-

sion that Butts had standing to contest the installation of the beeper

The physical description of the pilot in the affidavit filed in support

of the warrant matched Butts. The district court also found that

butts had possession and control of the aircraft sufficient to confer

standing. We do not decide whether Butts had standing to challenge

the admission of any incriimnating evidence derived from the installa-

tion of the beeper because his standing, or lack of it, does not affect

the legality of the monitoring of the beeper or the applicability of

the exclusionary rule—the only issues we reach today.

A-5

subject of Fourth Amendment protection. [Citations

omitted.] But what he seeks to preserve as private,

even in an area accessible to the public, may be con-

stitutionally protected

Id. at 351, 88 S.Ct. at 511. The Court recently summar-

ized these principles:

Consistently with Kaz, this Court uniformly has

heid that the application of the Fourth Amendment

depends on whether the person invoking its protec-

tion can claim a “justifiable,” a “reasonable,” or a

“legitimate expectation of privacy” that has been

invaded by government action. [Citations omitted. ]

This inquiry, as Mr. Justice Harlan aptly noted in

his Katz concurrence, normally embraces two dis-

crete questions. The first is whether the individual,

by his conduct, has “exhibited an actual (subjective)

expectation of privacy,” 389 U.S., at 361 [88 S.Ct.

at 516],—-whether, in the words of the Katz majority,

the individual has shown that “he seeks to preserve

[something] as private.” Jd. at 351 [88 S.Ct. at 511].

The second question is whether the individual’s sub-

jective expectation of privacy is “one that society

is prepared to recognize as ‘reasonable,’” id., at

361 [88 S.Ct. at 516],—whether, in the words of

the Katz-majority, the individual’s expectation,

viewed objectively, is “justifiable” under the cir-

cumstances. /d., at 353 [88 S.Ct. at 512]. [Citations

omitted. ]

Smith v. Maryland, 442 U.S. 735, 740-41, 99 S.Ct. 2577,

2580, 61 L.Ed.2d 220 (1979) (footnote omitted).

In United States v. Knotts, ___U.S.___., 103 S.Ct.

1081, 75 L.Ed.2d 55 (1983), the Supreme Court applied

these principles to the use of a beeper as a law enforce-

ment surveillance technique. In Knotts, officers acting

A-6

without a warrant arranged with a chemical company

to place a beeper inside a container of chloroform, which

the company sold to a suspected illicit drug manufacturer.

The officers then followed the vehicles in which the con-

tainer was successively placed, maintaining contact both

by visual surveillance and by monitoring the beeper. The

officers lost the signal from the beeper for about an hour,

but later relocated the signal, which was by then station-

ary at a site determined to be in or near Knott’s cabin.

The beeper was not used after officers determined that its

signals indicated it had become stationary.

After watching for several days the cabin near which

the beeper signals had come to rest, the officers used the

tracking and beeper information to secure a search war-

rant for the cabin and round a drug factory. 7d. at 1083-

84. The district court denied Knott’s motion to suppress

the evidence based on the warrantless monitoring, and

Knotts was convicted. On appeal, the Eighth Circuit re-

versed the conviction, concluding that the Fourth Amend-

ment prohibited the warrantless monitoring. The Supreme

Court reversed the Eighth Circuit.

The controlling significance of Knotts is that the Court’s

analysis of Knotts’s Fourth Amendment rights separated

its focus on the legality of the monitoring from the legality

of the warrantless installation. The Court noted that

Knotts did not challenge the installation because he be-

lieved he lacked the standing necessary to make such a

challenge. In passing, it observed that some circuits, in-

cluding ours, had approved warrantless beeper installa-

tions. Then, without resolving whether the Knotts beeper

was placed in the vehicle in an unconstitutional manner,

the Court moved directly to the issue of monitoring. It

A-7

concluded that because “[a] person travelling in an auto-

mobile on public thoroughfares has no reasonable expec-

tation of privacy in his movements from one place to

another,” the use of a beeper to aid in monitoring or

observing those movements was neither a search nor a

seizure under the Fourth Amendment. /d. at 1085, 1087.

The beeper used in Knotts revealed no more than could

have been learned by visual surveillance. The monitoring

of the beeper did, however, enable police to determine the

whereabouts of the item to which the beeper was attached

after visual surveillance had failed. As to the ability of

the officers to recapture the lost contact, the Court ob-

served that “scientific enhancement of this sort raises no

constitutional issues which visual surveillance would not

also raise.” Jd. at 1087.

[2] Knotts teaches us here that monitoring signals

from an electronic tracking device that tells officers no

more than that a specific aircraft is flying in the public

airspace does not violate any reasonable expectation of

privacy. Because this is so, ne Fourth Amendment viola-

tion results from such public detection. The movement of

an airplane in the sky, like that of an automobile on a

highway, is not something in which a person can claim

a reasonable expectation of privacy. As the Eighth Cir-

cuit stated in United States v. Bruneau, 594 F.2d 1190

(8th Cir.), cert. denied, 444 U.S. 847, 100 S.Ct. 94, 62

L.Ed.2d 61 (1979):

[W]hat is one’s reasonable, subjective expectation of

privacy in the airborne location of an airplane?

There can be but one answer: none. Today as our

airways become more congested, it is imperative

that the location of all airborne planes, of every size

and type, be carefully monitored. It is risking col-

A-8

lision for an aircraft to surreptitiously venture forth

into unassigned air space. For this reason, we do not

believe anyone flying an airplane today can reason-

ably expect that he has a right to keep his flying,

landing, or take off location private.

594 F.2d at 1196.°

Knotts deliberately left unanswered not only the ques-

tion of whether the police conduct that made the monitor-

ing possible violated the Fourth Amendment, but also the

question of how such conduct, if illegal, will be dealt with.

Butts does challenge the police conduct that made the

monitoring of his aircraft possible. In doing so, however,

he does not challenge the warrant or its extension. Instead,

he bases his motion to suppress on the failure of an officer

to carry out the magistrate’s command to re-enter the

aircraft on or before August 19 to remove the beeper.

The panel majority asserted that this failure to remove

the beeper within the period specified by the magistrate

tainted the monitoring of the signal and that this taint

invokes the exclusionary rule to bar all evidence obtained

from tracking the aircraft to its landing site. 710 F.2d

at 152. This position is untounded.

[3-5] The purpose of the exclusionary rule is to deter

improper police conduct that violates a person’s reason-

able expectation of privacy under the Fourth Amend-

2. The Supreme Court recently granted certiorari in United States

v. Karo, 710 F.2d 1433 (10th Cir. 1983), cert. granted, _—iUS..

____, 104 S.Ct. 972, 79 L.Ed.2d 211 (1984). Kara concerns the

warrantless installation and monitoring of a beeper attached to an

object that was tracked onto premises where the defendant had a

reasonable expectation of privacy. We need not withhold the decision

in this case for the resolution of Karo since the surveillance by elec-

tronic signal of the interior of a private dwelling in that case is

altogether distinguishable from the detection of the public travel

identified here.

A-9

ment.® It does not purport to reach all illegal conduct by

officers and is not applicable in the circumstances pres-

ent here.* The action of the officer in installing the beeper

did not result in discovery of any evidence at issue. Both

the installation of and the failure to remove the beeper

were unknown to Butts; therefore, neither the installation

nor the noniemoval could have influenced Butt’s decision

to fly the aircraft in the public airspace. The signal from

the then unwarranted beeper did nothing more than en-

hance the customs official’s legal right to observe the air-

craft’s public movements. No Fourth Amendment right

was infringed.*

3. Judge Jolly’s dissent emphasizes the deterrent effect of the

exclusionary rule. At the same time, it concedes that had the beeper

been attached to the aircraft without a warrant, the evidence would

be admissible. This necessary concession would encourage an officer

to act without securing a warrant to avoid any hazard of exclusion.

This reasoning would not only subvert deterrence, but also directly

conflict with Supreme Court precedent that prefers ‘‘police action

taken under a warrant as against searches and seizures without one.”

United States v. Ventresca, 380 U.S. 102, 107, 85 S.Ct. 741, 745,

13 L.Ed.2d 684 (1965).

4. We deal in this case with a signal device that remained in-

stalled for only two days beyond the warrant-permitted period before

it was monitored. As did the Supreme Court in Knotts, we pretermit

any ruling on worst-case situations that may involve persistent, ex-

tended, or unlimited violations of a warrant’s terms. Seee Knotts,

102 S.Ct. at 1086.

5. Judge Goidberg’s dissent asserts that even if the actions of the

customs officers were not a Fourth Amendment violation, the district

court could have excluded the marijuana under its supervisory powers.

The district court did not so rule and, in any event, should not have.

All cases in which the use of such power has been approved have

required a balancing of competing interests. See United States v.

Hasting, US. , 103 S.Ct. 1974, 1979, 76 L.Ed.2d 96

(1983). Our balancing of interests in today’s case produces a result

opposite from Judge Goldberg’s.

On the one hand, we have the public deprived of truthful evidence

that a smuggler has brought a prohibited substance into the country.

—————

A-10

16, 7] No comparable application of the exclusionary

rule is found in the precedent of the Supreme Court or

this circuit. Cases tracing the taint of illegal police con-

duct all concern situations in which an effect of the

original illegality provokes the defendant to a subsequent

surrender of his Fourth Amendment rights or situations

in which illegally obtained evidence enables police to

collect private facts. For example, if an illegal arrest

causes a defendant to give up other incriminating informa-

tion before the effect of the prior arrest is attenuated, the

exclusionary rule applies. See Wong Sun v. United States,

371 U.S. 471, 484-87, 83 S.Ci. 407, 415-17, 9 L.Ed.2d

441 (1963). If officers illegally obtain evidence of crimi-

nal conduct and then use that information in an affidavit

that causes a warrant to issue for a search or seizure, the

ostensibly legal, warranted invasion of privacy falls under

the exclusionary rule. See Alderman v. United States, 394

U.S. 165, 176-77, 89 S.Ct. 961, 968-69, 22 L.Ed.2d 176

(1969). However, if following an illegal arrest the de-

In addition, we have the evidence discovered not from any invasion

of Butts’s privacy but from detection of his public conduct. Elkins

v. United States, 364 U.S. 206, 216, 80 S.Ct. 1437, 1443, 4 L.Ed.2d

1669 (1960), describes the ‘general need -for untrammeled disclosure

of competent and relevant evidence in a court of justice.” United

States v. Payner, 447 U.S. 727, 736, 100 S.Ct. 2439, 2447, 65 L.Ed.

2d 468 (1979), speaks of the resulting detrimental effect of excluding

such evidence.

On the other hand, we have proof that for two days past the time

limit fixed by the magistrate a legally installed device remained in-

side an aircraft. We do not know precisely why it was not removed.

The dissent describes the non-removal as “blatantly illegal” and “par-

ticularly egregious” conduct that evidences ‘‘complete disregard for

a court order’ and “reprehensible scorn for judicial authority.” The

record does not support these pejoratives. The installing agent testi-

fied he was absent from the area on Nationa] Guard duty when the

warrant expired. We can know only that the beeper was not removed

when the warrant required that it be. For all this record tells us, the

presence of the beeper beyond the time limit well could have been

due to illness, accident, inadvertence, or bureaucratic bungling.

A-11

fendant commits another criminal act in a public area,

an officer who would not have seen the defendant but for

the illegal arrest may testify to the criminality he later

observes in a public place. The officer may also lawfully

seize evidence derived from the commission of the subse-

quent criminal act. See, e.g., United States v. Bailey, 691

F.2d 1009, 1016-17 (11th Cir. 1982), cert. denied,

USS. , 103 S.Ct. 2098, 77 L.Ed.2d 306 (1983);

United States v. Nooks, 446 F.2d 1283, 1287-88 (Sth

Cir.), cert. denied, 404 U.S. 945, 92 S.Ct. 299, 30

L.Ed.2d 261 (1971).

[8] The exclusionary rule does not apply to deter

wrongful or neglected official conduct that does not in-

volve a breach of the Fourth Amendment. See Stone v.

Powell, 428 U.S. 465, 486, 96 S.Ct. 3037, 3048, 49

L.Ed.2d 1067 (1976); United States v. Calandra, 414

U.S. 338, 347, 94 S.Ct. 613, 619-20, 38 L.Ed.2d 561

(1974). This is illustrated by the Supreme Court’s latest

search and seizure case. In Michigan v. Clifford, U.S.

—___., 104 S.Ct. 641, 78 L.Ed.2d 477 (1984), the Court

dealt with the admissibility of physical evidence obtained

by arson squad investigators who arrived at a burned

home well after firefighters, who had extinguished the

Llaze and departed, and as the house was being boarded

up by persons employed by the homeowner’s insurance

company. Without a warrant, the arson squad entered the

premises. They took possession of three gasoline cans and

some pieces of ignition apparatus. The Michigan Court of

Appeals excluded all the evidence as the product of illegal

activity. Id. at €45. The Supreme Court affirmed the state

court’s holding that the arson squad was acting illegally

in entering the defendant’s property and searching his

home at the time it did without a warrant. Despite the

A-12

illegality of the arson squad’s presence on defendant’s

premises, the Court reversed the exclusion of one of the

gasoline cans. This one can had earlier been found in the

house by firefighters, but had been removed from the

structure and placed in the driveway by a side door.

Without detailing whether the can was visible from the

public street, the Court held that the defendant’s reason-

able expectation of privacy in that can had been lost and

that the arson squad could seize it for introduction in

evidence. If the arson squad had not gone upon the prem-

ises illegally, they could not have taken possession of this

can. Despite this “if,” the Court reversed the exclusion

of the evidence in which the defendant had no expectation

of privacy, calling it “plain view” material both as with

regard to its discovery by the firefighters and its subse-

quent seizure by the arson squad. /d. at 649-50.

REVERSED and REMANDED.

GARWOOD, Circuit Judge, concurring:

I concur in the result. While I agree with most of Chief

Judge Clark’s persuasive opinion, 1 write separately to

emphasize that the case before us does not present a situ-

ation where the party seeking suppression was the owner

or lessee of the airplane or had any significant proprietary

interest in it.

Though the Government has not expressly challenged

the district court’s determination that Butts had “standing”

to seek suppression of the evidence obtained by the track-

ing and subsequent search of the plane, this does not

require us to treat the case as if the record reflected a

state of facts which it plainly does not. The evidence

shows that Butts piloted the plane on a trip from Castro-

A-13

ville to Seguin on June 18 and once again, over sixty days

later, on a trip from Mexico into Castroville in the late

evening of August 22 and early morning of August 23,

and that when he was arrested on the latter occasion he

“said he was ferrying this aircraft for someone from

Seguin.” There is no evidence, nor any concession by the

Government here or below, that Butts ever was, or even

claimed to be, the owner or lessee of the plane or that

he had any proprietary interest in it.* Since Rakas v.

Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387

(1978), “standing is not a discrete question, separable

from the substantive issues, in this character of case.

Rather:

“|. definition of . . . [Fourth Amendment] rights

is more properly placed within the purview of sub-

stantive Fourth Amendment law than within that

of standing. .. .

“

“Analyzed in these terms, the question is whether

the challenged search or seizure violated the Fourth

Amendment rights of a criminal defendant who seeks

to exclude the evidence obtained during it. That

inquiry in turn requires a determination of whether

the disputed search and seizure has infringed an

interest of the defendant which the Fourth Amend-

ment was designed to protect.” Id. at 140, 99 S.C.

at 428-29.

As the Court said in Rawlings v. Kentucky, 448 U.S. 98,

106, 100 S.Ct. 2556, 2562, 65 L.Ed.2d 633 (1980),

* I note in passing that testimony by an accused at a suppression

hearing cannot be used against him at trial on the merits save pos-

sibly for impeachment purposes. See Simmons v. United States, 390

U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); United States v.

Salvucci, 448 U.S. 83, 93-94, 100 S.Ct. 2547, 2553-54, 65 L.Ed.2d

619 (1980).

A-14

“[a]fter Rakas” the standing and substantive issues “merge

into one.” And, in Rakas the Court likewise made clear

that “[t]he proponent of a motion to suppress has the

burden of establishing that his own Fourth Amendment

rights were violated by the challenged search or seizure.”

Id. 439 U.S. at 130 n.1, 99 S.Ct. at 424 n.1.

The only substantial ground urged in support of Butts’

motion to suppress is that the “beeper,” which allowed the

plane to be tracked when Butts flew it from Mexico to

Castroville, had by then remained in the plane two or

three days after the date by which the warrant extension

order had directed that it be removed. Thus the sole

question posed is whether the tracking of the plane under

these circumstances “has infringed an interest of” pilot

Butts “which the Fourth Amendment was designed to

protect.” Rakas at 140, 99 S.Ct. at 429. I would hold

that it has not.

In Rakas the Court observed that “[l]egitimation 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 or permitted by society.” Jd. at 143 n.12,

99 S.Ct. at 430 n.12. Whatever may be the case with

respect to monitoring what is present, said or done on

board an aircraft, I do not believe that “understandings

that are recognized or permitted by society” serve to

“legitimate” the expectations of a pilot, having no pro-

prietary interest in the aircraft, that its movements through

the public airways will not be tracked by an unauthorized

device affixed to the interior of the plane. The presence

of such tracking device may invade the property rights,

and perhaps the legitimate expectations of privacy arising

A-15

therefrom, of one having a proprietary interest in the

plane, but that is not the situation before us.

In the analogous case of United States v. Parks, 684

F.2d 1078 (Sth Cir. 1982), we stated:

“But even if [the pilot] Holloway had been legiti-

mately piloting the plane and in possession of its key

on April 27, any illegality in the maintenance and

monitoring of the beeper would not have infringed

any interest of his that the Fourth Amendment was

designed to protect.

“

“The lawlessness vel non of the physical presence of

the beeper affects the legitimation of Holloway’s ex-

pectation of privacy only insofar as such expectation

can be said to have a source in his property rights.

But Holloway has not established that he had any

ownership or proprietary rights sufficient for such

purpose. Holloway must accordingly base the legiti-

mation of his expectation of privacy on ‘understand-

ings that are recognized and permitted by society.’

Rakas v. Illinois, supra. . . . [Those understandings

do not furnish a legitimate expectation of privacy

in the movements of an airplane through the public

airways.” Id. at 1085, 1087.

In my view, such an approach does not give undue

significance to property rights. Rakas, though refusing to

allow “arcane distinctions developed in property and tort

law” to “control” for Fourth Amendment purposes, id.

439 U.S. at 143, 99 S.Ct. at 430, nevertheless recognizes

that:

“. . . by focusing on legitimate expectations of priv-

acy in Fourth Amendment jurisprudence, the Court

has not altogether abandoned use of property con-

A-16

cepts in determining the presence or absence of the

privacy interests protected by that Amendment. No

better demonstration of this proposition exists than

the decision in Alderman v. United States, 394 U.S.

165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969), where

the Court held that an individual’s property interest

in his own home was so great as to allow him to

object to electronic surveiliance of conversations

emanating from his home, even though he himself

was not a party to the conversations.” Id. at 143-44

n.12, 99 S.Ct. at 431 n.12.

And, while it is of course true, as Justice Stewart stated

for the Court in Katz v. United States, 389 U.S. 347,

351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576 (1967), that

“the Fourth Amendment protects people, not places,”

nevertheless it is also true that what it protects people

from is invasion of “[t]he right . . . to be secure in their

persons, houses, papers, and effects, against unreasonable

searches and seizures.” U.S. Const. amend. IV (emphasis

added). Moreover, Justice Stewart was likewise careful

to state in Katz that the protections of the Fourth Amend-

ment are neither limited to nor as extensive as the pro-

tection of privacy:

“

. the Fourth Amendment cannot be translated

into a general constitutional ‘right to privacy.’ That

Amendment protects individual privacy against cer-

tain kinds of governmental intrusion, but its protec-

tions go further, and often have nothing to do with

privacy at all. Other provisions of the Constitution

protect personal privacy from other forms of govern-

mental invasion.” Jd. at 351, 88 S.Ct. at 511 (em-

phasis added, footnotes omitted).

The “wrong” or “infringement” here is the agents’ fail-

ure to comply with the requirement of the warrant ex-

A-17

tension order that the “beeper” be removed by not later

than August 19. Butts never claimed, nor was shown, to

have ever had any proprietary interest in the plane.

Therefore, as stated by the panel dissent, “Butts was not

a victim of that infringement.” United States v. Butts,

710 F.2d 1139, 1154 (Sth Cir. 1983). Accordingly,

Butts’ Fourth Amendment rights were not violated, and

his motion to suppress should not have been granted. We

need decide no more.

GOLDBERG ,Circuit Judge, with whom POLITZ and

TATE, Circuit Judges, join dissenting:

The majority apparently hears the death knell of the

exclusionary rule; today’s holding swiftly propels that part

of our jurisprudence towards its final demise. But I will

not be a pallbearer yet—not until the Supreme Coroners

have plainly pronounced the exclusionary rule dead. Con-

tinuing to adhere to the original panel decision in this

case, I retract not a syllable from that original opinion.

And, while I wholeheartedly concur in the dissent of my

brother, Judge Jolly, my disagreement with the majority’s

result and reasoning extends further than his. I pause,

therefore, to express a few more paragraphs in support

of the ideas articulated in the panel opinion and to pro-

vide an alternative rationale for the panel’s result.

The en banc court’s majority holding, as expressed in

the first two sentences of the opinion, is not especially

troubling. Under the facts of this case the act of monitor-

ing the beeper’s signal did not itself constitute an unrea-

sonable search or seizure. The legitimate 4th Amend-

ment inquiry, however, does not end there. This case

A-18

involves much more than an act of monitoring. Questions

concerning the physical presence of the device within a

zone of privacy call out loudly for our attention. In order

to make possible the tracking of an airplane by means

of an electronic device, a customs agent intruded into the

interior of a plane and installed a beeper. A warrant

authorized that intrusion, but the beeper remained inside

the plane past the time that the warrant allowed. Elec-

tronic tracking of the plane, in the period after the war-

rant’s expiration, produced evidence that was used to

prosecute Butts.

As we held in the panel opinion, the beeper’s continued,

unauthorized, physical presence inside the plane violated

the defendant’s 4th Amendment rights. Individuals should

be able to reasonably expect that monitoring instrumen-

talities of the state will not be present in their protected

zones of privacy. For a beeper is more than just the sig-

nal that it emits. It is both tangible and symbolic. It con-

stitutes a continuing, constructive presence of the state.

The federal officer’s initial intrusion into the vehicle in-

terior, required to affix the tracking device, endured as

long as the beeper remained.

Today’s majority fails to come to grips with, indeed

fails to even address, this assault on 4th Amendment pro-

tections. This failure flows from a singular emphasis on

the United States v. Knotts, US. , 3 SA

1081, 75 L.Ed.2d 55 (1983), and that case’s limited

approval of warrantless beeper monitoring. Coupled with

the majority’s narrowing of Wong Sun v. United States,

371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), and

the poisonous fruits doctrine, the emphasis on the act of

monitoring produces what I believe is an incredible result.

A-19

Three major flaws exist in the majority’s train of reason-

ing. First, the majority’s analysis fails to recognize that

the various procedures necessary for gathering beeper evi-

dence all work to achieve a single end. While these pro-

cedures are indeed separable into installation, mainten-

ance and monitoring components for purposes of some

Fourth Amendment analyses,’ the activities are not separ-

able in terms of their real-world, law enforcement func-

tion. Beeper procedures serve a single goal each time they

are implemented—1.e., the gathering of evidence that will

lead to the arrest and conviction of suspected criminals.

A constitutional violation in any of the procedures taints

the beeper evidence; for without each procedure the evi-

dence cannot be obtained. Any meaningful constitutional

review of the gathering of evidence through the use of

beepers must take account of all component procedures.

The violation of the Constitution in this case arose out of

the maintenance component. Maintaining the beeper in-

side the plane past the period permitted by the warrant

was just as necessary to the law enforcement objectives

as was the act of monitoring. Failure to recognize the

single, overarching function of beeper procedures and

failure to scrutinize each procedure for possible illegality

has today allowed a constitutional violation to pass with-

Out redress.

The majority’s reasoning is also flawed because the

scope of the exclusionary rule and the poisonous fruits

doctrine is not nearly so narrow as today’s decision paints

it. Wong Sun v. United States, supra, commands the ex-

clusion of evidence “come at by the exploitation” of ille-

gality. 371 U.S. at 488, 83 S.Ct. at 417 (1963). In this

case, there exists both a casual relationship and a link of

1. See Majority Opinion p. 1516.

A-20

purposive behavior by law enforcement officers connect-

ing the illegality to the evidence at issue. But for the

installation and continued illegal presence of the beeper,

agents would not have come into possession of the track-

ing information or the physical evidence seized on Butts’s

arrest. Knotts’s comparison of beeper monitoring to visual

surveillance, to decide an issue concerning the act of

monitoring, does not deny the reality that beepers allow

police to obtain evidence that they would otherwise be

unable to obtain. Much more than just a “but for” re-

lationship, however, exists between illegal beeper pro-

cedures and the evidence at issue. The specific purpose

of the entire beeper tracking process was realized in

Butts’s arrest and the seizure of evidence. Moreover,

nothing—no passage of time, no act by the defendant,

no act by law enforcement officers—-appears to purge the

illegality tainting that evidence. Indeed, it is hard to

imagine a more direct or solid link between the customs

official’s violation of the law and the evidence at issue.

Precedent, relied on by the majority in narrowing Wong

Sun, has a very different import in my mind. The analogy

drawn between the circumstances in this case and those

in United States v. Bailey, 691 F.2d 1009, 1016-17 (11th

Cir. 1982), cert. denied, US. , 103 S.Ct. 2098,

77 L.Ed.2d 306 (1983) and United States v. Nooks, 446

F.2d 1283, 1287-88 (Sth Cir.), cert. denied, 404 U.S.

945, 92 S.Ct. 299, 30 L.Ed.2d 261 (1971), will not with-

stand analysis. Both of the latter cases admit evidence

obtained subsequent to an illegal arrest. In each case,

though, the link between police illegality and the eviden-

tiary fruits was attenuated by the defendant’s commission

of a second crime. In fact, Bailey distinguishes a line of

cases that suppress evidence and depend in part on “but

A-21

for” causation between police illegality and discovery of

evidence. Bailey actually acknowledges the “but for”

causality factor as relevant in Wong Sun analyses. 691

F.2d at 1014 n.3. Despite the existence of a “but for”

link in Bailey, Judge Anderson found that the commission

of a new crime mandated an exception to the traditional

Wong Sun analysis. In explaining the rationale of its

ruling and rationale of this circuit’s decision in Nooks,

supra, the court declared:

Unlike the situations where in response to the un-

lawful police action the defendant merely reveals a

crime that already has been or is being committed.

extending the fruits doctrine to immunize a defend-

ant from arrest for new crimes gives a defendant

an intolerable carte blanche to commit further crimi-

nal acts so long as they are sufficiently connected

to the chain of causation started by the police mis-

conduct. This result is too far reaching and too high

a price for society to pay in order to deter police

conduct.

Id. at 1017. The “high price” incurred when a suspect

commits further criminal acts is not relevant in the instant

case. Rather, this case parallels closely the cases dis-

tinguished in Bailey, where the Fifth Circuit suppressed

fruits of police misconduct. See United States v. Beck,

602 F.2d 726 (Sth Cir. 1979) (The court suppressed

evidence where an illegal stop of a vehicle resulted in

defendant’s tossing marijuana out of the window); Fletch-

er v. Wainwright, 399 F.2d 62, 64-65 (Sth Cir. 1968).

(That stolen jewelry was found in a public area was ir-

relevant and did not render the search outside of the

Fourth Amendment. The jewelry had been thrown from

a motel window into the courtyard in response to an

A-22

illegal entry into the defendant’s motel room.) It is United

States v. Beck and Fletcher v. Wainwright, rather than

Bailey or Nooks, that control the instant case.? The evi-

dence aganist Butts was the fruit of illegal law enforce-

ment conduct. It was properly suppressed by the court

below.

A third flaw in the majority’s analysis derives from

the emphasis on information conveyed by the beeper.

Focusing only upon the incriminating evidence itself, this

kind of reasoning reveals an ironic fetishism. Under the

majority's interpretation of Wong Sun, unless the evi-

dence exudes a special aura that places it into a class

of protected matter, the exclusionary rule does not apply.

Such an approach turns the exclusionary rule on its head,

making the rule appear as an end rather than as a means

2. Michigan v. Clifford, US. , 104 S.Ct. 641, 78 L.Ed.

2d 477 (1983) is not to the contrary. That case holds that the exis-

tence of reasonable privacy interests in a fire damaged home impose

a warrant requirement on post-fire arson investigations inside the

home. The Supreme Court upheld exclusion of evidence found during

a warrantless search of the home’s basement and upper areas. The

Court did not require suppression of a fuel can, discovered by fire-

fighters and subsequently placed in plain view in the home’s driveway.

With regard to that can, the Court’s comments were brief:

One of the fuel cans was discovered in plain view in the Clif-

ford’s driveway. This can was seen in plain view during the

initial investigation by the firefighters. It would have been ad-

missible whether it had been seized in the basement by the fire-

fighters or in the driveway by the arson investigators. Exclusion

of this evidence should be reversed.

Id. at , 104 S.Ct. at 649-50.

I can find no discussion to support the Butts majority’s conclusion

that “if the arson squad had not gone upon the premises illegally,

they could not have taken possession of this can.” Majority Opinion

at 1519. Furthermore, I cannot read this cryptic passage by Justice

Powell (joined by Justices Brennan, Marshall and White) as making

the substantial reduction in Fourth Amendment protections suggested

by today’s majority. Had the Court intended to impose such a sweep-

ing change in the Wong Sun doctrine, it surely would have been

much more explicit.

A-Z5

to an end. The exclusionary rule exists primarily to ensure

compliance with the Fourth Amendment. And, the Amend-

ment’s purpose is plain from its language: to protect

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

houses, papers, and effects, against unreasonable searches

and seizures.” Losing sight of the constitutional value to

be protected and the law’s role in protecting that value

can lead nowhere but to a wrong result. The costs of that

wrong result are today visited upon defendant Butts and

upon the whole of society.

II.

Constitutional values aside, but not forgotten a second

justification exists for the district court’s suppression of

the evidence in this case. Based on his inherent super-

visory power, the district judge acted properly in ex-

ciuding the beeper evidence. The magistrate who had

authorized installation of a beeper in the airplane in-

cluded a clear and unequivocal command in the warrant:

“You are also directed to remove the transponder from

the aircraft no later than 30 days from the expiration of

the original court order.” While the customs agent sought

and received one extension of this 30 day limit, he failed

to carry out the warrant’s instruction after that extension

expired. The magistrate’s command, carrying the force

of law, gave the defendant a legal interest in removal

of the beeper. As a direct result of violating federal law,

and in derrogation of the defendant’s interest, officers

were able to obtain evidence against Butts.

The supervisory power is a well established means by

which federal courts deter violation of noaconstitutional

law. See United States v. Payner, 447 U.S. 727, 736 n. 7,

n. 8, 100 S.Ct. 2439, 2446-47 n. 7, n. 8, 65 L.Ed.2d

A-24

468 (1980); Rea v. United States, 350 U.S. 214, 217-

218, 76 S.Ct. 292, 294-95, 100 L.Ed. 233 (1956);

McNabb vy. United States, 318 U.S. 332, 341-42, 63

S.Ct. 608, 613-14, 87 L.Ed. 819 (1943); Exercise of

that power frequently takes the form of excluding evi-

dence from use in criminal trials. See, e.g., Elkins v.

United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d

1669 (1960); Mesarosh v. United States, 352 U.S. 1, 77

S.Ct. i, 1 L.Ed.2d 1 (1956); McNabb v. United States,

supra, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819; United

States v. Cortina, 630 F.2d 1207 (7th Cir. 1980); United

States v. Valencia, 541 F.2d 618 (6th Cir. 1976); see

generally “Thirteenth Annual Review of Criminal Pro-

cedure: United States Supreme Court and Court of Ap-

neals 1982-83,” 72 Geo. L.J. 355 (1983). In McNabb

v. United States, supra, 318 U.S. at 341-342, 63 S.Ct.

at 613-14, the Supreme Court declared:

The principles governing the admissibility of evi-

dence in federal criminal trials have not been re-

stricted . . . to those derived solely from the Con-

stitution. In the exercise of its supervisory authority

over the administration of criminal justice in the

federal courts, this Court has, from the very be-

ginning of its history, formulated rules of evidence

to be applied in federal criminal prosecutions. . . .

Quite apart from the Constitution, therefore, we

are constrained to hold that the evidence elicited

from the petitioner in the circumstances disclosed

here must be excluded. For in the treatment of the

petitioners, the arresting officers assumed functions

which Congress has explicitly denied them.

The circumstances in which the statements admitted

in evidence against the petitioners were secured re-

vealed a plain disregard of the duty enjoined by

Congress upon federal law officers. . . .

A-25

[T]o permit such evidence to be made the basis of

a conviction in the federal courts would stultify the

policy which Congress has enacted into law [citations

omitted].

318 U.S. at 341-45, 63 S.Ct. at 613-15.

A situation similar to the one that produced the Mc-

Nabb decision exists in the case at bar. An individual

has been prosecuted with evidence obtained in violation

of federal! law. The only difference is that the instant case

involves a command from the judicial branch rather than

a command of Congress. That difference hardly man-

dates a different result than the one reached in McNabb.

Respect for and enforcement of court made law con-

stitutes an important value, as worthy of protectioa as

the mandates issuing from a coequal branch of govern-

ment. See Rea v. United States, supra, 350 U.S. at 217-18,

76 S.Ct. at 294-95. (Discussing a violation of the Federal

Rules of Criminal Procedure the Court declared that,

“federal courts sit to enforce federal law” and “federal

law extends to the process issuing from those courts.”)

Admittedly, in recent cases the Supreme Court has

cautioned against overzealous use of the supervisory power

in reversing criminal convictions, For example, United

States v. Payner, supra, 447 U.S. at 735, 100 S.Ct. at

2446, noted that the supervisory power should be applied

“with some caution,” carefully weighing the interests in

preserving judicial integrity and in deterring illegal con-

duct against the societal interest in presenting probative

evidence to the trier of fact. However, in the same case

the Supreme Court observed that its decision “does not

limit the traditional scope of the supervisory power in

A-26

any way; nor does it render that power ‘superfluous.’ ”

Id. at 735-36 n. 8, 100 S.Ct. at 2446-47 n. 8.°

I believe that the balancing process in this case requires

us to uphold the exclusion of evidence. On one side weighs

the important interest always relevant in questions of ex-

clusion: putting probative evidence of the defendant’s

guilt, the confiscated marijuana, before the trier of fact.

But, against that we balance the deterrence of blatantly

illegal conduct by law enforcement officers. Here the

conduct to be deterred is particularly egregious. A cus-

toms agent failed to obey the direct and unequivocal com-

mand of a federal magistrate. His actions manifested a

complete disregard for a court order. Good faith on the

part of that official was notably absent. See United States

v. Williams, 622 F.2d 830, 841 (1980), cert. denied,

449 US. 1127, 101 S.Ct. 946, 67 L.Ed.2d 114. (A good

faith belief must be grounded in objective reasonable-

ness.)* Overall, in view of the necessity of discouraging

such reprehensible scorn for judicial authority, the scale

tips towards excluding the evidence. We should uphold

the district court’s suppression of the evidence.

3. The holding of Payner is not controlling in today’s case. Payner

held that the balance of values titlted towards admission of the

“tainted” evidence when the defendant was not himself the victim

of the challenged practices.

Nor does the Court’s recent decision in United States v. Hasting,

US. , 103 S.Ct. 1974, 76 L.Ed.2d 96 (1983) suggest that

invocation of the supervisory power in this case would be inappropri-

ate. Hasting noted that the existence of “means more narrowly

tailored” than exclusion of evidence to deter illegality cut against

exclusion. However, the decision actually rested upon the fact that

no as at issue constituted harmless error in the defendant’s

trial.

4. The existence of good faith, in fact, has been found to be

controlling in previous balancings to determine the appropriateness

of exclusion. United States v. Caceres, 440 U.S. 741, 757-58, 99

S.Ct. 1465, 1474-75, 59 L.Ed.2d 733 (1979).

A-27

Adapting our Fourth Amendment jurisprudence to con-

stantly evolving, high technology techniques of law en-

forcement presents a difficult challenge. We must not

close our eyes to possible illegality in such methods just

because certain of their component procedures do not

violate the law. The potential for seriously eroding respect

for the law may well lurk in the other procedures neces-

sary to implementing these ultra-modern police techniques.

Today’s decision shirks the challenge before us. It beckons

a future in which the citizenry’s rights to privacy and

security will lie atrophied beyond recognition. I must

respectfully dissent.

E. GRADY JOLLY, Circuit Judge, with whom GOLD-

BERG, POLITZ, TATE and WILLIAMS, Circuit Judges,

join, dissenting:

To me, the facts of this case upon first reading, left

the impression, immediately and intuitively, that the evi-

dence should be suppressed under the general principles

of the exclusionary rule. Yet, the panel’s analysis, scholar-

Jy though it is, gave the impression of a hunt in which

the quarry had eluded the hunters. Now we have. a ma-

jority opinion which is, oddly, so very right and so very

wrong—right that the fourth amendment, under the cur-

rent jurisprudence, does not directly protect the emission

of the electronic signal here;’ wrong that that issue is

central at all to a determination of whether the marijuana

is unconstitutionally tainted.

1. While the actual monitoring of the signal is not subject to

proscriptions of the fourth amendment, it is evidence which may

be tainted, and hence inadmissible, as a result of its emanation from

a “poisonous tree.”

A-28

The issue, I think, is simple and straight-forward. The

marijuana is the fruit of a fourth amendment wrong com-

mitted by the government, that is, the breach of the search

warrant. The seizure of the marijuana was brought about

by the government’s exploitation of its wrong; and it is

equally clear that the seizure of the marijuana is not so

“attentuated” from the breach of the warrant that the

taint of the fourth amendment wrong is “dissipated.”

Il.

A search warrant was sought by the government agent to

permit an intrusion into the cockpit of the airplane for the

purpose of the installation of the transponder based on

probable cause that the plane was being used in narcotics

traffic. The district court issued a search warrant au-

thorizing the search, but providing several conditions to

the search, among them that the “[t]ransponder or beeper

to remain in aircraft for a period not to exceed thirty

days.”* On the basis of this search warrant, one night

2. I assume, since the majority does not contest the proposition,

that there is no disagreement that Butts had a reasonable expecta-

tion of privacy in the cockpit of the plane and that the search war-

rant obtained was necessary to invade that privacy to “search and

install” the transponder behind the instrument panel.

It is true that Butts did not own the plane. A person, however,

may have a legitimate expectation of privacy in a place or object

he does not own. United States v. Salvucci, 448 U.S. 83, 92, 100

S.Ct. 2547, 2553, 65 L.Ed.2d 619, 629 (1980); United States v.

Reves, 595 F.2d 275, 278 (Sth Cir. 1979). Butts met his burden

of showing that his exercise of possession and control of the plane

evidenced a legitimate expectation of privacy which was infringed

by the installation and continued presence of the beeper. Moreover.

on appeal, there was no contention that Butts lacked standing to

complain of the use of the beeper.

3. Whether the intrusion into the cockpit of the plane for the

purpose of installing a beeper is a search, seems to be answered here,

as a matter of fact, by this particular search warrant which com-

A-29

shortly after its issuance, at about 9:00 p.m., two govern-

ment agents went to the airport where the plane was

parked and in the cover of night, opened the main cabin

door of the aircraft, entered into the cockpit of the air-

plane, and installed the transponder—all under the au-

thority of the search warrant.

Under the terms of the warrant, the transponder was

to be removed on July 19, 1981. The agents allowed the

warrant to expire without removing that transponder.

Two days after the thirty-day period had elapsed, customs

agents, on July 21, 1981, asked the magistrate to extend

the original warrant. This second warrant specifically

ordered the agents: “You are also directed to remove the

transponder from aircraft N4926B no later than 30 days

from the expiration of the original court order (expiration

date 07/19/8i) that authorized the installation of the

electronic equipment.” At the end of this second thirty-

day period, notwithstanding the explicit command of the

court, the transponder remained inside the plane as an

active tracking device in violation of the explicit condi-

tions of the warrant which had authorized the search.

As a result of the transponder’s remaining in the air-

craft in violation of the conditions of the warrant, evi-

dence of the plane’s location was obtained, the plane was

tracked into Mexico and back into the United States,

and upon return, shortly after landing, its pilot was ar-

rested by customs officials who seized the bale of mari-

juana upon which this prosecution is based.

mands the government agent to “search and install said transponder

and/or tracking beacon (beeper) .. .” in the airplane. (Emphasis

added. )

A-30

ITI.

In determining whether the marijuana in this case must

be excluded as the inadmissible fruit of the poisoned tree,

we turn first to the progenitor of this doctrine, Wong Sun

v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d

441 (1963) and examine the facts in that case. There

the federal narcotics agents arrested Hom Way, finding

heroin in his possession. He stated that he had bought

heroin from Blackie Toy. The agents, without probable

cause, invaded Toy’s bedroom and arrested him. He de-

nied selling narcotics, but implicated Johnny Yee as

someone who had sold the contraband. The agents then

entered Yee’s residence and he voluntarily surrendered

to them an ounce of heroin in his possession. Yee was

arrested, and along with Toy, taken to the office of the

Bureau of Narcotics where they implicated Wong Sun

as a Seller of heroin. Toy, Yee and Wong Sun were duly

charged, arraigned and released on recognizance. Within

a few days each was interrogated at the bureau where

they gave incriminating statements.

When considered by the Supreme Court, at issue was

the admissibility of: (1) the statements made by Toy

in his bedroom, (2) the heroin obtained at Yee’s apart-

ment, (3) Toy’s post-arrest statement, and (4) Wong’s

post-arrest statement. The Court held that Toy’s state-

ment made in his bedroom was the fruit of the unconstitu-

tional invasion into his living quarters and was thus in-

admissible. The Court further held that the exclusion of

Toy’s bedroom declaration required the exclusion of the

narcotics taken from Yee as the fruit of the unlawful

invasion into Toy’s living quarters and could not be used

against Toy. In holding that the narcotics were the fruit

niall

A-31

of the unlawful invasion into Toy’s quarters, the Court

noted that the prosecutor had admitted that the drugs

would not have been found except for the help provided

by Toy in his bedroom declaration. The Court specifically

noted that under these facts it could not be said that the

narcotics were evidence derived from an independent

source, nor was it a case in which the connection between

the police misconduct and the evidence had become so

attentuated as to dissipate the taint.

In evaluating the evidence that follows illegal police

misconduct, the test to apply is not, Justice Brennan

wrote, whether the evidence would have come to light

“put for” the illegal actions of the police; rather, the

question to be determined is whether the evidence results

from exploitation of the illegality or whether it results

from means sufficiently distinguishable from the illegality

so as to be free of the initial taint. Applying that test,

the Court concluded that the narcotics surrendered by

Yee were the poisonous fruit of the unlawful invasion

of Toy’s living quarters. The narcotics were, the Court

held, the result of the exploitation of that original illegality

and could not be introduced into evidence against Toy.

Turning to the two remaining issues of the post-arrest

statements, the Court found it unnecessary to rule whether

Toy’s post-arrest statement was the fruit of the illegal

arrest. Regarding Wong, however, the Court, while agrce-

ing with the lower court that his initial arrest was illegal,

held that his confession, made several days later while

free on his own recognizance, was properly admitted.

Since he was on his own recognizance and had voluntarily

returned to the bureau several days later to make the

statements, the connection between his initial arrest and

A-32

the subsequent confession had “become so attentuated as

to dissipate the taint.” /d. at 419.

Whether the connection between the illegal conduct

and the questioned evidence is attenuated is largely a

fact question to be determined and evaluated in each case.

Our court, however, has undertaken such an evaluation

on two rather recent occasions, and provided some factors

to be considered. In United States v. Brookins, 614 F.2d

1037 (Sth Cir. 1980), Judge Vance (now of the Eleventh

Circuit) wrote extensively on the subject. He pointed out

that Wong Sun, supra, barred the fruits of the poisonous

tree only if the fruit is sufficiently connected to the

“illegal tree” Brookins, 614 F.2d at 1041. He outlined

three forms of insufficient connection: where the link

between the illegal conduct and the subject evidence had

become attenuated; where the evidence had an indepen-

dent source apart from the illegal conduct; and where

the evidence inevitably would have been discovered dur-

ing the police investigation without the aid of the illegal

source. It was the court’s task in Brookins to evaluate

the attenuation of the connection between illegal police

conduct and a witness whose name was adduced in the

illegally obtained statement and whose testimony the de-

fendant sought to suppress. Among the factors considered

were whether the testimony was the act of the witness’s

own free will; whether substantial time periods had

elapsed between the illegal conduct and police contact

with the witness; whether the identity of the witness would

have been discovered by the police in a routine investi-

gation, and whether the illegal conduct of the police in

the first place was innocent or wilful. Even if the con-

sideration of these factors indicated that the evidence

was not attenuated from the illegal conduct, the court

A-33

must weigh the application of the exclusionary rule against

the social costs of suppressing the evidence, and in par-

ticular, the court should determine whether the applica-

tion of the exclusionary rule provided some deterrent

effect on the behavior of police officers. Jd. at 1043.*

Obviously, most of these factors do not fit the facts of

the case we consider here today, and simply underscore

our earlier statement that whether the subject evidence

has become so attenuated from the illegal conduct of the

police is a fact question to be evaluated in each case.

Perhaps of more significance to our consideration is the

emphasis that Judge Vance gave, in the context of apply-

ing the fruit-of-the-poisoned-treet doctrine, to the general

purpose of the exclusionary rule. He noted that recent

Supreme Court decisions make it clear that the exclu-

sionary rule does not rest upon the Constitution, but rather

is a judicially created remedy to be applied only when it

advances its judicial purpose. 7d. at 1046. He further

noted that the single and distinct purpose of the exclusion-

ary rule is deterrence of police violations of that consti-

tutional protection against unreasonable searches and

seizures. Id. at 1047.

A second recent case dealing with the subject we dis-

cuss today is United States v. Tookes, 633 F.2d 712 (Sth

Cir. 1980). Tookes was an individual known to police

as a convicted felon and drug offender. When the police

approached him, he ran, was caught by the police, frisked

4 In delineating the three forms of inadequate connection between

fruit and tree, Judge Vance relied on four Supreme Court decisions:

United States v. Ceccolini, 435 U.S. 268, 98 S.Ct. 1054, 55 L.Ed.2d

268 (1978); Nardone v. United States, 308 U.S. 338, 60 S.Ct. 266,

84 L.Ed. 307 (1939); Silverthorne Lumber Co. v. United ‘States,

251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920); and Brewer v.

Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977).

A-34

from head to toe, found clean, but arrested anyway. The

police officer began searching the area for anything that

Tookes could possibly have thrown away while being

chased. The officer’s search took him back to the vicinity

of Tookes’ truck where he observed from the outside and

in plain view on the seat next to the driver, a semi-auto-

matic pistol. The defendant was then placed under arrest

again, this time for possession of a firearm by a felon. At

trial, Tookes moved to suppress the gun as the fruit of

the illegal first arrest. Judge Roney, writing for the court,

held that the connection between the unlawful arrest and

the seizure of the gun was not attentuated. He noted three

factors to be considered in determining whether there was

sufficient connection between the illegal conduct and the

questioned evidence: (1) the proximity of the two in

time and distance; (2) the presence of intervening cir-

cumstances between the arrest and the discovery of the

evidence, and (3) the circumstances under which the

arrest was made. He noted that the discovery of the evi-

dence was soon after the arrest had been made and that

there had been no sifinificant intervening circumstances.

He emphasized that the arrest was a gross violation of

legal processes and the taint could not thus easily be re-

moved. He admitted that the gun was in plain view and

conceivably could have been discovered in the absence

of the arrest but found that the “temporal” and “spatial”

proximity of the illegal conduct and the discovery of the

evidence made it clear that the two were interrelated.

Id. at 716.°

5. This same method of determining whether evidence falls with-

in the yeneral exclusionary bar against use of the fruits of an un-

lawful search, arrest, or seizure was used in United States v. Miller,

666 F.2d 991, 995 (Sth Cir. 1982).

A-35

IV.

In determining the admissibility of the marijuana in

this case, we turn to Wong Sun as the primary authority

for our analysis. Wong Sun tells us that the facts are not

to be analyzed pursuant to. the approach that “but for the

illegal conduct the evidence would never have been ad-

duced”; rather, we are to determine whether the evidence

here arises from the government’s exploitation of the

warrant’s breach and whether the connection between the

warrant’s breach and the marijuana is so attenuated that

the illegal taint has become dissipated. Both Brookins,

supra, and Tookes, supra, though in parts irrelevant to

the facts we must examine today, are helpful in giving

us some understanding of how we have discussed and

applied the Wong Sun doctrine in other cases in this

circuit.

First, we compare the fourth amendment wrong in

Wong Sun and in our case. In Wong Sun, the fourth

amendment wrong was the unlawful invasion into his

living quarters without a search warrant and without

probable cause to believe that Wong Sun had committed

a crime. In our case, there were no exigent or emergency

circumstances, and the government agents properly went

to the magistrate and applied for a search warrant. The

court issued the search warrant permitting the agents to

intrude into the cockpit of the plane at nighttime to “search

and install said transponder and/or tracking beacon

(beeper).” The terms of the warrant expressly provided

that “[t]ransponder or beeper to remain in aircraft for a

period not to exceed thirty days.” A thirty-day extension of

the warrant was granted. In granting the extension, the

court specifically directed the customs agents to remove

A-36

the transponder at the end of that period. The court said in

effect, to the government agents: it is reasonable to sur-

reptitiously enter the plane, go into the cockpit, and install

the transponder if you allow it to remain no longer than

thirty days; if the tracking device remains in the plane

longer than thirty days, this invasion scheme, which you

seek to use as an investigative tool, is unreasonable.

The second thirty-day period expired on August 19,

1981. Three days later the transponder emitted the evi-

dence leading to the location and seizure of the marijuana.

Giving the term “exploit” its commonly accepted meaning

of “taking advantage of” or “using,” there should be no

quibbling that the government agents exploited their fail-

ure to act in accordance with the terms of the warrant.

The government agents had been ordered by the court to

remove the transponder, they had failed to act according

to the terms of the warrant; because they had breached

the terms of warrant, evidence, i.e., electronic emissions

indicating the plane’s location, came into their possession;

they immediately began acting on that evidence by track-

ing the plane; and ultimately, based on the evidence

emitted in violation of the warrant, that is, emitted after

the expiration of the thirty-day period, they located the

marijuana. This conduct is exploitation of a fourth amend-

ment wrong, in the clearest sense.

Furthermore, when we compare the chain of evidence

in this case with that set out in Wong Sun, it is clear

here that between the fourth amendment wrong and the

evidence seized there is no attenuation which can be said

to dissipate the taint. The chain of evidence is almost

identical to that in Wong Sun. In Wong Sun, heroin was

obtained from Yee because his location was known be-

cause of a statement that was given by Toy which resulted

A-37

from the fourth amendment wrong of the police. Here, the

marijuana was seized because the police knew of its loca-

tion because of the electronic signal which resulted from

a fourth amendment wrong of government agents. Thus,

from the juxtaposition of the facts in this case with those

in Wong Sun, it is clear that the authority of that case is

“on all fours” that the subject evidence here was not

attenuated from the breach of the warrant and the mis-

conduct of the government in failing to remove the trans-

ponder.

While certainly it is clear that we need go no further

than the authority of Wong Sun, we do note in passing

that, when applying the relevant criteria noted in Brook-

ins, supra, and Tookes, supra, the evidence here does not

fit into any of the categories which should be expected

from the fruit-of-the-poisonous-treé doctrine. There was

no significant amount of time which passed between the

fourth amendment violation and the seizure of the evi-

dence; there is no indication whatsoever in our case that

the evidence would have been discovered by the police

in the absence of the breach of the warrant; the breach

of the warrant did not result from innocent activity on

the part of the police who were, at best, wilfully negli-

gent in complying with the terms of the warrant.

Finally, Brookins emphasizes as a major consideration

the effect the exclusion of the evidence will have on dis-

couraging illegal conduct on the part of law enforcement

officers. In this regard the exclusion of the evidence here

serves a major purpose. The majority opinion allows

police to ignore the conditions of reasonableness imposed

on their conduct by court-issued search warrants without

adverse consequence. Under the court’s ruling today,

A-38

police officers may, with immunity, allow transponders

to track the comings and goings of an individual indefi-

nitely, notwithstanding what the judge says. Court en-

forcement of protections against invasions through elec-

tronic devices is difficult enough to control effectively

without further diluting the relevance of the fourth amend-

ment as does the holding of the majority today. Thus, to

me, application of the exclusionary rule to the marijuana

in this case is all the more important for the effect it will

have on future police conduct.

In conclusion, | must dissent from the majority's

opinion. I should make it clear that I do not disagree that

the fourth amendment does not protect Butts from the

monitoring of the transponder in his airplane. I agree that

Butts had no expectation of privacy to be free of the

tracking of his plane in the airways. If the transponder

had been warrantlessly attached to the exterior of the

planz, | would have no occasion to complain about the

admissibility of the evidence here in question. But the

majority does not only focus on the monitoring as the

source of the marijuana, it treats the monitoring as though

it were an isolated, independent act without a history pre-

ceding it. The majority ignores that the monitoring and

the recovery of the marijuana resulted from an exploita-

tion of a fourth amendment wrong, the failure of the

agents to comply with the specific conditions and terms

of the search warrant. That is my difference with the

majority, and that is why I dissent.

B-1

APPENDIX B

UNITED STATES of America,

Plaintiff-Appellant,

Harold Dean BUTTS,

Defendant-Appellee.

No. 82-1260.

United States Court of Appeals,

Fifth Circuit.

Aug. 1, 1983.

Opinion on Granting of Rehearing En Banc

Oct. 25, 1983.

Government appealed from an order of the United

States District Court for the Western District of Texas,

Dorwin W. Suttle, J., which suppressed evidence obtained

as a result of monitoring of beeper installed inside air-

craft defendant was piloting. The Court of Appeals, Gold-

berg, Circuit Judge, held that: (1) physical attachment

of electronic “beeper” to interior of aircraft constituted

a “search” within meaning of Fourth Amendment, and

(2) where beeper installed inside aircraft pursuant to

valid search warrant remained present in aircraft after

expiration of court order authorizing its installation and

maintenance, evidence obtained as a result of beeper’s

continued presence inside aircraft after warrant expired

was properly suppressed, since beeper’s presence was then

unlawful.

Affirmed.

Clark, Chief Judge, dissented and filed an opinion.

B-2

Sidney Powell, Asst. U.S. Atty., San Antonino, Tex.,

for plaintiff-appellant.

Gerald H. Goldstein, Robert B. Hirschhorn, San An-

tonio, Tex., for defendant-appellee.

Appeal from the United States District Court for the

Western District of Texas.

Before CLARK, Chief Judge, GOLDBERG and PO-

LITZ, Circuit Judges.

GOLDBERG, Circuit Judge:

Use of the electronic tracking device, or “beeper,”

raises novel and difficult fourth amendment problems.

This case presents such an issue. The government appeals

from the district court’s grant of a motion to suppress

all evidence obtained from a beeper installed and main-

tained in the interior of a plane beyond the time limit

set in a court order. We affirm.

1. FACTS AND PROCEEDINGS BELOW

A. Facts

On June 19, 1981, U.S. Customs pilot Lawrence R.

Nichols executed an affidavit requesting court authoriza-

tion to install and maintain an electronic tracking device

within a twin-engine Beechcraft bearing the registration

number N4926B. The affidavit included allegations in-

dicating that the aircraft might be used to import mari-

juana into the United States from a foreign country. On

the basis of the information contained in the affidavit,

U.S. Magistrate Jamie Boyd issued a warrant authorizing

the installation. The warrant provided as follows:

B-3

You are hereby commanded to search forthwith and

to install appropriate electronic aircraft tracking

equipment, limited to a transponder and/or beeper,

in the aforedescribed aircraft serving this warrant

and complying with this order at any time of the

day or night within ten days and to return this war-

rant specifying the date of installation. Transponder

or beeper to remain in aircraft for a period not to

exceed thirty days.

Record on Appeal, Government Exhibit 6. Pursuant to

this warrant, U.S. Customs pilot Gerald Weatherman

installed the beeper in the aircraft. At 10:45 p.m. on

June 19, 1981, while the aircraft was parked at the air-

port in Seguin, Texas, Weatherman entered the cabin of

the aircraft and secreted the beeper in its interior.

The original warrant authorizing installation and main-

tenance of the beeper expired on July 19, 1981. Two days

later, on July 21, 1981, Weatherman appeared before

Magistrate Boyd seeking an extension of the original

authorization. In requesting the extension, Weatherman

executed no additional affidavit and relayed no additional

material facts to the court. Nevertheless, Magistrate Boyd

granted the extension request. The extension order pro-

vided as follows:

YOU ARE HEREBY GRANTED an extension

forthwith on the above described Beechcraft B-50

aircraft, bearing registration number N4926B, a

transponder signaling device to remain on aircraft

N4926B for a period of 30 days. You are also

directed to remove the transponder from aircraft

N4926B no later than 30 days from the expiration

of the original court order (expiration date 07/19/

81) that authorized the installation of the electronic

equipment. You are also directed to make any neces-

B-4

Sary repairs to said equipment in the 30-day period,

aS appropriate for proper maintenance.

Record on Appeal, Government Exhibit 7. Thus, under

the extension order, the government was directed to re-

move the beeper no later than August 19, 1981.’

Despite the explicit directive in the extension order

that the beeper be removed, the government failed to do

so. Although the removal date came and went, the gov-

ernment sought no further extension period from Magis-

trate Boyd and made no attempt to comply with the order

requiring the beeper’s removal. Accordingly, the still-

operative tracking device remained inside the aircraft past

August 19, 1981.

On August 22, 1981, the Houston Control Center

began tracking an aircraft emitting the special frequency

signal associated with U.S. Customs beepers. U.S. Customs

officer Bobby Richardson monitored the airplane’s move-

ments on a radar scope and directed the effort to intercept

the target craft. Aided by Richardson’s electronic sur-

veillance, other Customs officials manning Customs air-

craft sighted the target craft and followed it to its desti-

nation. The target craft, a twin-engine Beechcraft bearing

the registration number N4926B, landed at Castroville,

Texas, at approximately 2:20 a.m.; Customs officials im-

mediately arrested its pilot, appellee Harold Dean Butts,

and searched the airplane. The search produced a quantity

of marijuana and various other items of evidence.

1. The original court order encompassed the 30-day period fol-

lowing June 19, 1981. This period would have ended on July 19,

1981, a Sunday. Under Fed. R. Crim. P. 45(a), however, the original

authorization arguably did not expire until Monday, July 20, 1981.

Thus, the extension order expired on August 19, 1981.

B-5

B. Procedural History

Appellee Butts was charged with importing marijuana

into the United States from Mexico, in violation of 2]

U.S.C. §§ 960(a)(1), 952(a) (1976), possession of

marijuana with intent to distribute it, in violation of

21 U.S.C. § 841(a)(1) (1976), and carrying a firearm

during the commission of a felony, in violation of 18

U.S.C. § 924(c)(2) (1976). Appellee moved to sup-

press all evidence obtained as a result of the monitoring

of the beeper installed inside the aircraft he was piloting

on August 22 and 23, 1981. Following a lengthy hearing

on the matter, the United States District Court for the

Western District of Texas granted the motion to suppress.

Noting that the Fifth Circuit had never considered the

legality of a warrantless installation of a beeper inside

a vehicle, the district court held that “in the absence of

an applicable exception to the warrant requirement, in-

Stallation of a beeper requiring physical entry into an

aircraft demands a search warrant.” Record on Appeal,

Vol. II at 14. The court noted that in this case the gov-

ernment had obtained a search warrant to install the

beeper, but also observed that the government had failed

to obey the magistrate’s directive to remove the beeper

by a particular date. Jd. Thus, the district court framed

the issue as follows:

The tracking of Aircraft N4926B on August 22

and 23, 1981, and the seizing of all evidentiary items

from the aircraft on August 23, 1981, were made

possible solely because the beeper remained on board

past the expiration date of August 19, 1981. Should

the failure to have removed the beeper by August

B-6

19 require the suppression of al! evidence obtained

from monitoring the beeper after that date?

Id.’

By analogy to the wiretapping provisions of Title III

of the Omnibus Crime Control and Safe Streets Act, 18

U.S.C. §§ 2510-2520 (1976), the district court deter-

mined that in this case surveillance of the aircraft after

the termination date set forth in the court order was

unlawful.

Not only had the order authorizing installation of

the beeper expired, but Customs failed to obey an

affirmative directive to remove the beeper no later

than August 19, 1981.

. . . [W]hen such beepers are installed inside an

airplane under court order, there must be some guide-

line to dictate by what time they must be removed.

Record on Appeal, Vol. II at 15. Accordingly, the court

suppressed all evidence obtained as a result of the beep-

er’s continued presence in the airplane past the termina-

2. Before turning to the merits of this question, the district court

addressed the issue of Butts’ standing to contest the installation and

monitoring of the beeper. First, the court held that Butts’ status as

the pilot of the target craft during its August 22 and 23 flight ade-

quately established his standing to complain of the monitoring of the

beeper. Record on Appeal, Vol. II at 14. Second, in evaluating Butts’

standing with respect to the installation of the beeper, the court

referred to the government affidavit executed to obtain the original

warrant. The affidavit described the pilot of the subject aircraft with

some particularity; the description matched that of appellee Butts.

Accordingly, the court found that Butts had possession and control

of the aircraft at the time of installation sufficient to confer standing

to challenge that installation. Jd. at 10 n. 1, 14-15. Neither party

disputes these conclusions on appeal.

*B7

tion date of the warrant. The government appeals from

the district court’s order, pursuant to 18 U.S.C. § 3731

(1976).

Il. ISSUES GN APPEAL

The government argues that the district court’s sup-

pression of evidence was in error. Viewing this as essenti-

ally a beeper monitoring case, the government relies

heavily upon the recent United States Supreme Court

decision in United States v. Knotts, _._U.S.____, 103

S.Ct. 1081, 75 L.Ed.2d 55 (1983). Basically, the gov-

ernment claims that its failure to remove the beeper as

required by the court order does not invalidate the stop

and search of the airplane, because warrantless monitor-

ing of beeper signals is permissible under Knotts.

Our approach to this case is somewhat different from

that urged by the government. We begin with a bit of

background about beepers, including a short history of

Fifth Circuit “beeper jurisprudence” and a review of the

development of a bifurcated analysis in beeper cases.

We continue by applying that bifurcated analysis, exam-

ining the installation of the beeper and its subsequent

monitoring as discrete issues. With respect to warrantless

beeper monitoring, we consider the applicability of Knotts

to the case at bar. With respect to beeper installation—

the aspect of this case that commands most of our atten-

tion—we evaluate the attachment and maintenance of a

beeper in the interior of a vehicle in terms of the fourth

amendment and the protections it affords. We now turn

to our discussion of these issues.

B-8

Ill. JEEPERS CREEPERS, WHERE'D YOU GET

THOSE BEEPERS?: ELECTRONIC TRACKING

DEVICES AND THE FOURTH AMENDMENT

A. A Bit of Background About Beepers®

An electronic tracking device—also called a “beeper,”

“beacon,” or “transponder’—is a miniature, battery-

powered radio transmitter that emits a recurrent signal

at a set frequency. When monitored by directional finders,

the beeper provides information as to the location and

movement of the object to which it is attached. A beeper

is incapable of transmitting conversation or recording

sounds. See United States v. Bailey, 628 F.2d 938, 939

n. | (6th Cir. 1980).* For this reason, beepers do not

fall within the definition of wiretapping devices. See Om-

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

§ 2510(5) (1976). Predictably, the use of beepers by

law enforcement officials to locate and track individuals

suspected of criminal activity has generated a significant

amount of litigation.

3. See generally Carr, Electronic Beepers, 4 Search & Seizure L

Rep. No. 4 (1977); Dowling, “Bumper Beepers” and the Fourth

Amendment, 13 Crim. L. Bull. 266 (1977); Marks & Batey, Elec-

tronic Tracking Devices: Fourth Amendment Problems and Solutions,

67 Kv. L. J. 987 (1978); Note, Electronic Tracking Devices &

Privacy: See No Evil, Hear No Evil, But Beware of Trojan Horses,

9 Loy. U. Chi. L. J. 227 (1977); Note, Finders Keepers, Beepers

Weepers: United States v. Knotts—A Realistic Approach to Beeper

Use and the Fourth Amendment, 27 St. Louis U. L. J. 483 (1983);

Note, Tracking Katz: Beepers, Privacy, and the Fourth Amendment,

86 Yale L. J. 1461 (1977); Annot., 57 A.L.R. Fed. 646 (1980).

4. For a description of the technical aspects of a beeper’s opera-

tion, see Dowling, supra note 3.

< a

B-9

1. Beepers in the Courts

a. Fifth Circuit®

The Fifth Circuit first addressed the fourth amendment

problems associated with beeper use in United States v.

Holmes, 521 F.2d 859 (Sth Cir. 1975). In Holmes, gov-

ernment agents attached an electronic tracking device

under the right rear wheel of Holmes’ van, without first

obtaining a warrant. Subsequent monitoring of the beeper

led to the seizure of 1200 pounds of marijuana and the

arrest of nine persons. The Holmes panel held that the

installation of the electronic tracking device was a search

under the fourth amendment and affirmed the district

court’s suppression of the evidence obtained as a result

of monitoring the beeper. Jd. at 864, 867. The govern-

ment’s application for rehearing en banc was granted,

however, thus vacating the panel opinion. United States

v. Holmes, 525 F.2d 1364 (Sth Cir. 1976); see Sth Cir.

R. 17. On rehearing en banc, the court divided equally

on the electronic tracking issue. United States v. Holmes,

537 F.2d 227, 227-28 (5th Cir. 1976) (en banc). Thus,

although the district court’s suppression of the evidence

was affirmed, the fourth amendment questions presented

by government use of tracking devices remained un-

answered.

In decisions subsequent to Holmes, the Fifth Circuit

generally avoided the potential fourth amendment issues

5. Due to the nature of the case at bar, we confine our review

of the Fifth Circuit literature to cases involving beepers attached

to vehicles. Beepers also are commonly installed in containers and

contraband. See, e.g., United States v. Sheikh, 654 F.2d 1057 (Sth

Cir. 1981): United States v. Lewis, 621 F.2d 1382 (Sth Cir. 1980);

United States v. Pringle, 576 F.2d 1114 (Sth Cir. 1978); United

States v. Bishop, 530 F.2d 1156 (Sth Cir. 1976); United States v.

Perez, 526 F.2d 859 (Sth Cir. 1976).

B-10

presented by the use of beepers. For example, in United

States v. Abel, 548 F.2d 591 (Sth Cir.), cert. denied,

431 U.S. 956, 97 S.Ct. 2678, 53 L.Ed.2d 273 (1977),

the owner of an aircraft expressly consented to the gov-

ernment’s installation of a tracking device on his plane.

The government stipulated that the attachment of the

beeper was a search, but the court held that the search

was reasonable because the plane’s owner had consented.

Id. at 592. See also United States v. Cheshire, 569 F.2d

887, 888 (Sth Cir. 1978) (if search occurred, owner’s

consent to placement of beeper came within the third-

party consent exception to warrant requirement). In

United States v. Reyes, 595 F.2d 275 (Sth Cir. 1979),

the court pretermitted consideration of the appellants’

objections to the installation and use of a transponder in

an aircraft for fourteen months, holding that the appel-

lants lacked standing to object to the putative search.

Id. at 278-79. Thus, prior to 1980, no binding Fifth

Circuit authority squarely addressed the fourth amend-

ment considerations of beeper use.

Then came United States v. Michael, 645 F.2d 252

(Sth Cir.) (en banc), cert. denied, 454 U.S. 950, 102

S.Ct. 489, 70 L.Ed.2d 257 (1981). Michael involved

the warrantless installation and monitoring of an electronic

tracking device attached to the exterior of a van. Using

the beeper, government agents located a warehouse where.

various evidence of criminal activity was found. The

district court suppressed the evidence as fruit of the

warrantless installation of the beeper, holding that the

government’s failure to obtain a search warrant prior to

installation violated the fourth amendment. A panel of

the Fifth Circuit affirmed the district court’s suppression

of the evidence. United States v. Michael, 622 F.2d 744

B-11

(Sth Cir. 1980). On rehearing, however, the court en

banc reversed the district court. United States v. Michael,

645 F.2d 252 (Sth Cir. 1981) (en banc).

The en bane court in Michael held that reasonable

suspicion alone was adequate to support the warrantless

installation and monitoring of a beeper attached to the

exterior of an automobile. The court began by assuming

that the installation of the beeper was a search.® /d. at

256. The court then applied a “dual privacy and intru-

siveness analysis” to the facts of the case. Jd. The court

first recognized that an individual’s expectation of privacy

in an automobile is less than in othe: property, emphasiz-

ing that “Michael’s expectation of privacy with respect

to the movements of his automobile was substantially re-

duced.” Jd. at 258 (emphasis added; footnote omitted).

Second, the court observed that the intrusion occasioned

by the placement of the beeper was minimal. Specifically

noting that the interior of the van had not been searched,

the court commented that “[t]he actual installation of the

beeper was much less intrusive than the typical stop and

frisk.” Id. Accordingly, the court held that the govern-

ment agents’ reasonable suspicion that Michael was en-

gaged in criminal activity justified the installation of the

beeper. /d. Turning to the monitoring aspect of the case,

the court concluded that monitoring the beeper did not

violate Michael’s reasonable expectation of privacy be-

cause the van was exposed to public view as it traveled

over public roads. Therefore, the court held that govern-

6. The court noted the view of seven specially concurring judges

that the installation of the beeper on the van was not a search or

seizure and therefore did not implicate any fourth amendment in-

terests. 645 F.2d at 256. See id. at 259-60 (Clark, J., concurring).

The court’s ultimate determination that the installation of the beeper

was permissible made resolution of the “search” question unnecessary.

B-12

ment agents did not violate Michael’s fourth amendment

rights by monitoring the beeper, because they had reason-

able suspicion to believe that he was conspiring to manu-

facture a controlled substance. /d. Stating that the govern-

mental interest in eliminating illegal drug traffic was a

persuasive reason for permitting such a minimally intru-

sive practice, the court concluded that neither the installa-

tion nor the monitoring of the beeper attached to the ex-

terior of Michael’s van violated the fourth amendment.

Id. at 259.

Michael clearly held that government agents need not

obtain a warrant prior to installing an electronic tracking

device to the exterior of a vehicle. As later cases have

recognized, however, the propriety of warrantless beeper

installation in the interior of a vehicle is a question that

remains open. In United States v. Cady, 651 F.2d 290

(5th Cir. 1981), cert. denied, 455 U.S. 919, 102 S.Ct.

1274, 71 L.Ed.2d 459 (1982), the court assumed with-

out deciding that a beeper installation requiring physical

entry of an aircraft was an act sufficiently intrusive to be

deemed a search. The court in United States v. Flynn,

664 F.2d 1296 (Sth Cir.), cert. denied, 456 U.S. 930,

102 S.Ct. 1979, 72 L.Ed.2d 446 (1982), did not addess

the legality of warrantless beeper installation inside a con-

veyance because it held that the government’s intrusion

into the aircraft there was justified by a valid warrant.

The Flynn court read Michael as “suggest|ing], at least

inferentially, that its holding is limited to cases in which

attachment of the beeper involves no physical intrusion

into the conveyance.” /d. at 1300 n.9. Likewise, in United

States v. Parks, 684 F.2d 1078 (Sth Cir. 1982), government

agents entered a plane’s interior through a closed door and

affixed a beeper tothe plane’s interior. Specifically noting

B-13

that the Michael decision was not dispositive of the legal-.

ity of the installation, maintenance, and monitoring of the

beeper in Parks, the court held that the appellants lacked

standing to challenge the beeper-related issues. 7d. at 1083

& n.6. Most recently, in United States v. Kupper, 693

F.2d 1129 (Sth Cir. 1982), this court held that the in-

stallation of a beeper inside an airplane pursuant to a

limited court order was permissible because the authoriza-

tion order was supported by probable cause. The court

commented that “[t]his case does not present a still un-

decided issue in our Circuit: whether the installation of

an electronic beeper to the interior of an aircraft is a

‘search’ within the meaning of the Fourth Amendment.”

Id. at 1130 nl.

As these references to the scope of Michael’s holding

illustrate, Michael does not govern all situations involv-

ing use of electronic tracking devices. In particular, post-

Michael cases indicate a distinct hesitancy to extend that

holding to beeper installations inside conveyances. Until

now, however, no Fifth Circuit case has squarely pre-

sented the situation these cases have foreshadowed.

b. The Supreme Court

The Supreme Court recently addressed the issue of

beeper monitoring in United States v. Knotts, ___U.S.

—___., 103 S.Ct. 1081, 75 L.Ed.2d 55 (1983). In Knotts,

law enforcement officers believed that certain individuals

were purchasing chloroform for use in the manufacture

of illegal drugs. The officers obtained the seller’s consent

to place a beeper inside a drum of chloroform that was

sold to the suspects. Using the beeper signals and visual!

surveillance, the officers ultimately traced the chloroform

to a secluded cabin. The officers then secured a search

SS EeeN»«_

B-14

warrant and searched the cabin, where they discovered a

drug laboratory. Afier the district court denied a motion

to suppress evidence based on the warrantless monitoring

of the beeper, Knotts was convicted for conspiring to

manufucture controlled substances. The Eighth Circuit

Court of Appeals reversed the conviction, holding that the

warrantless monitoring of the beeper was prohibited by

the fourth amendment because its use violated Knotts’

reasonable expectation of privacy. United States v. Knotts,

662 F.2d 515 (8th Cir. 1981).

The United States Supreme Court reversed the court

of appeals, holding that the monitoring of beeper signals

was neither a “search” nor a “seizure” within the con-

templation of the fourth amendment. 103 S.Ct. at 1987.

The Court was careful to note that the installation of the

beeper was not an issue in the case. “Respondent does not

challenge the warrantless installation of the beeper in the

chloroform container, suggesting in oral argument that he

did not believe that he had standing to make such a chal-

lenge. .. . [W]e have not before and do not now pass on

the issue.” Jd. at 1084 n.**.’ Turning to the potential

fourth amendment concerns raised by beeper monitoring,

the Court equated such surveillance with “the following

of an automobile on public streets and highways.” /d. at

1085. The Court then held that “[a] person traveling in

an automobile on public thoroughfares has no reasonable

expectation of privacy in his movements from one piace

to another.” /d. at 1085. The Court viewed the monitoring

of the beeper as no more than a sense-enhancement de-

7. Three concurring justices emphasized that Knotts had not

challenged the installation of the beeper in the drum. See 103 S.Ct.

at 1087 (Brennan, J., concurring): id. at 1088 (Stevens, J., concur-

ring)

B-15

vice, akin to a searchlight. /d. at 1086 (quoting United

States v. Lee, 274 U.S. 559, 563, 47 S.Ct. 746, 748, 71

L.Ed. 1202 (1927)). Accordingly, the Court held that

the monitoring of beeper signals was not a “search” or

“seizure” under the fourth amendment. 7d. 103 S.Ct. at

1087.°

2. A Bifurcated Analysis

Knotts clarified the present state of “beeper jurispru-

dence” in two respects. First, the Knotts Court employed

a bifurcated analytical framework for examining the

fourth amendment implications of beeper use, separating

the installation or attacnment of the tracking device from

the monitoring of its signals. Second, Knotts focused on

the monitoring aspect of beeper use and concluded that

monitoring—as distinguished from installation—impinged

upon no fourth amendment values.

The bifurcated framework adopted in Knotts has been

endorsed by courts and commentators alike. See United

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

States v. Bruneau, 594 F.2d 1190 (8th Cir. 1979);

United States v. Miroyan, 577 F.2d 489 (9th Cir.), cert.

denied, 439 U.S. 896, 99 S.Ct. 258, 58 L.Ed.2d 243

(1978); Marks & Batey, Electronic Tracking Devices:

Fourth Amendment Problems and Solutions, 67 Ky. L.J.

987 (1978); Note, Finders Keepers, Beepers Weepers:

United States v. Knotts—A Realistic Approach to Beeper

8. The Court emphasized that nothing in the record indicated

that the beeper signal was received or relied upon after it indicated

that the chloroform drum had reached the cabin. “[T]here is no in-

dication that the beeper was used in any way to reveal intormation

as to the movement of the drum within the cabin, or in any way

that would not have been visible to the naked eye from outside the

cabin.” 103 S.Ct. at 1087.

B-16

Use and the Fourth Amendment, 27 St. Louis U. L.J. 483

(1983); Note, Tracking Katz: Beepers, Privacy, and the

Fourth Amendment, 86 Yale L.J. 1461 (1977); Annot.,

57 A.L.R. Fed. 646 (1980). Our prior Fifth Circuit

cases also indicate an awareness of the distinction between

the physical act of attaching a tracking device to an

object and the use of the device, once attached, to monitor

the object’s location. See Parks, 684 F.2d at 1084;

Michael, 645 F.2d at 25€-58. In analyzing the case at

bar, we too will treat installaiion and monitoring as two

distinct questions. We now turn to our examination of

these issues.

B. Beeper Monitoring

In applying this bifurcated framework to the facts of

this case, we begin with the second branch of the analysis.

As discussed above, Knotts stands for the proposition

that the mere monitoring of an electronic tracking device

is not a “search” or “seizure” under the fourth amend-

ment, assuming that the installation of the device was

permissible. See also Parks, 684 F.2d at 1086 (“Absent

an invasion of ownership or proprietary rights, we hoid

that neither pilot nor passenger has a legitimate expecta-

tion of privacy in the movement of the plane through the

public airways.” (emphasis added)). We do not read

Knotts to say, however, that monitoring of a beeper is

permissible regardless of the circumstances surrounding

its installation. Even if monitorial use of a tracking device

does not constitute a search or seizure, the installation

and maintenance of the device may potentially violate

fourth amendment precepts. See Bruneau, 594 F.2d at

1194; Miroyan, 577 F.2d at 492. In our view, the ques-

tion presented in the instant case is not the propriety of

B-17

turning on the listening mechanism to monitor the beeper;

rather, the critical issue confronting us arises from the

government’s placing and leaving in place the sending

mechanism in the interior of the aircraft. Thus Knotts,

while informative, is not dispositive.

C. Beeper Installation

1. Search or Seizure?

Turning now to the first branch of our bifurcated analy-

tical framework, we consider the fourth amendment im-

plications of the installation and maintenance of an elec-

tronic monitoring device in the interior of an aircraft.

In our view, the term “installation” in this context, en-

compasses the government’s initial entry into the aircraft

for purposes of attaching the beeper, the actual physical

attachment of the device to the interior of the aircraft,

and the continued presence of the beeper inside the air-

craft for the period of its installation. The initia] ques-

tion presented is whether such installation of a tracking

device is a “search” or “seizure” within the meaning of

the fourth amendment.®

The starting point for our discussion is the fourth

amendment itself, which provides:

The right of the people to be secure in their

persons, houses, papers, and effects, against un-

reasonable searches and seizures, shall not be vio-

lated, and no Warrants shall issue, but upon prob-

able cause, supported by Oath or affirmation, and

9. As noted earlier, the court in Michael assumed without deciding

that the installation of a beeper on the exterior of an automobile was

a “search.” The court’s analysis in that case was directed to the issue

of the “reasonableness” of such a search.

B-18

particularly describing the place to be searched, and

the persons or things to be seized.

U.S. Const. amend IV. In determining whether this par-

ticular form of governmental intrusion rises to the level

of a fourth amendment “search” or “seizure,” we turn

to the benchmark case of Katz v. United States, 389 U.S.

347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Katz pre-

sented the question whether warrantless electronic moni-

toring of the contents of an individual’s telephone conver-

sations violated the fourth amendment. The government

argued that no violation had occurred because there was

no physical intrusion into the telephone booth from which

Katz placed the calls. The Court disagreed, noting that

“the Fourth Amendment protects people, not places.”

Id. at 351, 88 S.Ct. at 511. Finding that “(t]he Govern-

ment’s activities in electronically listening to and record-

ing the petitioner’s words violated the privacy upon which

he justifiably relied while using the telephone booth,”

id. at 353, 88 S.Ct. at 512, the Court held that the

warrantless eavesdropping “constituted a ‘search and seiz-

ure’ within the meaning of the Fourth Amendment.” 7d.

The Court restated the oft-cited Katz test in Smith v.

Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220

(1979).

Consistently with Katz, this Court uniformly has

held that the application of the Fourth Amendment

depends on whether the person invoking its protec-

tion can claim a “justifiable,” a “reasonable,” or a

“legitimate expectation of privacy” that has been

invaded by government action. E.g., Rakas v. Illinois,

439 U.S. 128, 143, 99 S.Ct. 421, 430, 58 L.Ed.2d

387, and n. 12 (1978); id., at 150, 151, 99 S.Ct.,

at 434, 435 (concurring opinion): id., at 164, 99

B-19

S.Ct., at 441 (dissenting opinion); United States v.

Chadwick, 433 U.S. 1, 7, 97 S.Ct. 2476, 2481, 53

L.Ed.2d 538 (1977); United States v. Miller, 425

U.S. 435, 442, 96 S.Ct. 1619, 1623, 48 L.Ed.2d 71

(1976): United States v. Dionisio, 410 U.S. 1, 14,

93 S.Ct. 764, 771, 35 L.Ed.2d 67 (1973); Couch

v. United States, 409 U.S. 322, 335-336, 93 S.Ct.

611, 619-620, 34 L.Ed.2d 548 (1973); United

States v. White, 401 U.S. 745, 752, 91 S.Ct. 1122,

1126, 28 L.Ed.2d 453 (1971) (plurality opinion);

Mancusi v. DeForte, 392 U.S. 364, 368, 88 S.Ct.

2120, 2123, 20 L.Ed.2d 1154 (1968); Terry v.

Ohio, 392 US. 1, 9, 88 S.Ct. 1868, 1873, 20 L.Ed.

2d 889 (1968). This inquiry, as Mr. Justice Harlan

aptly noted in his Katz concurrence, normally em-

braces two discrete questions. The first is whether

the individual, by his conduct, has “exhibited an

actual (subjective) expectation of privacy,” 389 U.S.,

at 361, 88 S.Ct. at 516—whether, in the words of

the Katz majority, the individual has shown that

“he seeks to preserve [something] as private.” /d.,

at 351, 88 S.Ct., at 511. The second question is

whether the individual’s subjective expectation of

privacy is “one that society is prepared to recognize

as ‘reasonable,’” id., at 361, 88 S.Ct., at 516—

whether, in the words of the Katz majority, the indi-

vidual’s expectation, viewed objectively, is ‘“justifi-

able” under the circumstances. /d., at 353, 88 S.Ct.

at 512. See Rakas v. Illinois, 439 U.S., at 143-144

n. 12, 99 S.Ct., at 430; id., at 151, 99 S.Ct., at 434

. (concurring opinion); United States v. White, 401

a U.S., at 752, 91 S.Ct., at 1126 (plurality opinion).

Id. at 740-41, 99 S.Ct. at 2580 (footnote omitted).

[1, 2] Applying the Katz analysis to this case, we

hold that the installation of an electronic tracking device

in the interior of a vehicle or conveyance is a “search”

within the meaning of the fourth amendment. The gov-

B-20

ernmental intrusion presented here was a probing quest

for evidence that entailed a physical invasion by law

enforcement officials into the cockpit of an aircraft,

physical attachment of a surveillance device to the interior

of that aircraft, and the continued presence of the track-

ing device within the cockpit for over sixty days. In our

view, an individual clearly has a legitimate expectation

that governmental agents will not encroach upon the in-

terior of a vehicle in such a fashion. Although recent

cases have alluded to the diminished expectation of priv-

acy associated with automobiles, none has held that an

intrusion into a vehicle’s interior is not a “search.” See,

e.g., United States v. Ross, 456 U.S. 798, 102 S.Ct.

2157, 72 L.Ed.2d 572 (1982); Cardwell v. Lewis, 417

U.S. 583, 94 S.Ct. 2464, 41 L.Ed.2d 325 (1974) (plur-

ality); Chambers v. Maroney, 399 U.S. 42, 90 S.Ct.

1975, 26 L.Ed.2d 419 (1970): Carroll v. United States,

267 U.S. 132, 45 S.Ct. 280, 69 L.Ed.2d 543 (1925).

We decline to do so now.”°

2. Fourth Amendment Protection

Having concluded that the interior installation of a

tracking device constitutes a “search,” we now consider

10. United States v. Johnson, 431 F.2d 441 (Sth Cir. 1970) (en

banc), is not to the contrary. The Johnson court held that the fourth

amendment was not violated by the opening of a car door by a police

officer to verify the identification number of a vehicle that he had

reasonable cause to believe was stolen. The court’s opinion was ex-

pressed in the alternative: either the challenged intrusion was not a

“search” within the meaning of the fourth amendment, or the inspec-

tion was reasonable under the fourth amendment. Unlike the intrusion

associated with the interior installation of a beeper, the inspection

that occurred in Johnson was limited in scope, purpose, and dura-

tion. Further, the police officer in Johnson performed the inspection

with the consent of the car owner’s wife. United States v. Johnson,

413 F.2d 1396, 1399 (Sth Cir. 1969) (panel opinion). Thus, Johnson

does not require a holding of “no search” in the instant case.

B-21

the fourth amendment requirements necessary to conduct

such a search. The fourth amendment generally has been

interpreted to include the requirement that searches

normally be performed pursuant to a search warrant

issued in compliance with the warrant clause. Arkansas

v. Sanders, 442 U.S. 753, 758, 99 S.Ct. 2586, 2589,

61 L.Ed.2d 235 (1979).

The Fourth Amendment proscribes all unreasonable

searches and seizures, and it is a cardinal principle

that “searches 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.” Katz v. United States,

389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d

576 (footnotes omitted).

Mincey v. Arizona, 437 U.S. 385, 390, 98 S.Ct. 2408,

2412, 57 L.Ed.2d 290 (1978). Thus, although a few

“jealously and carefully drawn’’*’ exceptions exist, in the

ordinary case search of private property must be reason-

able and must be made pursuant to a search warrant

based on probable cause. Sanders, 442 U.S. at 758, 99

S.Ct. at 2590. The question presented here is whether

the intrusion required to install a beeper in the interior

of an aircraft necessitates the interposition of the warrant

requirement.

We commence by considering the applicability of this

court’s en banc opinion in Michael to the question posed.

As noted above, Michael created a limited exception

to the warrant requirement for the installation of a beeper

11. Jones v. United States, 357 U.S. 493, 499, 78 S.Ct. 1253,

1257, 2 L.Ed.2d 1514 (1958).

B-22

on the exterior of an automobile. Assuming that the ex-

terior attachment of the beeper was a search, the court

held that reasonable suspicion alone was adequate to

support such a beeper installation. Michael, 645 F.2d

at 257. Because the government agents in Michael had a

reasonable suspicion that Michael was engaged in criminal

activity, the court held that the warrantless installation of

the beeper in that case did not violate the fourth amend-

ment. /d.

In evaluating the fourth amendment concerns associ-

ated with the exterior attachment of beepers, the Michael

court employed a “dual privacy and intrusiveness analysis.”

Id. at 256. First, the court examined the scope of the

individual’s expectation of privacy in his automobile. /d.

at 257-58.'* Second, the Court evaluated the degree of

intrusion occasioned by placement of the beeper. Jd. at

258. Considering the individual’s diminished expectation

of privacy in an automobile parked in a public place,

the minimal nature of the intrusion necessitated by exterior

attachment, and the governmental interest in eliminating

illegal drug traffic, the court determined that, in connec-

tion with exterior beeper installation, reasonable suspicion

alone satisfied the fourth amendment. Jd. at 256, 259.

Michael teaches that privacy and intrusion are the

measuring rods to be used in evaluating the fourth

amendment protections required for beeper installation.

In Michael, a “substantially reduced” expectation of

12. In this section of the opinion, the court’s treatment of the

installation of the beeper seems to have merged with its analysis

of beeper monitoring. For instance, the court noted that “Michael

drove the van on public roads during the daytime.” 645 F.2d at 257,

and ultimately held that ‘‘Michael’s legitimate expectation of privacy

with respect to the movements of his automobile was substantially

reduced.” Jd. at 258 (emphasis added).

B-23

privacy and the minimal nature of the intrusion permitted

the exterior installation and maintenance of a beeper

\yased on reasonable suspicion alone. Application of this

privacy/intrusiveness analysis to the circumstances sur-

rounding interior installation of tracking devices, however,

compels a different result.

In regard to the privacy element of the Michael analy-

sis, we acknowledge that an individual holds a diminished

expectation of privacy with respect to automobiles and

other conveyances. Diminished though it may be, how-

ever, an individual’s expectation of privacy with regard

to the interior of a vehicle is an interest worthy of pro-

tection. As the Supreme Court observed in Cardwell:

“This is not to say that no part of the interior of an auto-

mobile has Fourth Amendment protection; the exercise

of a desire to be mobile does not, of course, waive one’s

right to be free of unreasonable government intrusion.”

417 U.S. at 591. The passenger compartment or cabin

of a vehicle is an enclosed, self-contained area somewhat

sheltered from public view and unexposed to public con-

tact. Given these qualities, it seems self-evident that the

interior of a vehicle outranks its rear bumper and its

location on the privacy scale.’* A yacht, an ocean liner,

a mobile home, a camper, and Air Force One are all

vehicles, yet surely their interiors are cloaked by privacy’s

veil. Thus, we believe the interior installation of a track-

ing device implicates privacy interests more significant

than those considered in Michael.

13. In United States v. Hufford, 539 F.2d 32 (9th Cir. 1976),

government agents obtained a court order authorizing placement of

a beeper on the battery of a pickup truck. The court cautioned that

“{hjad the agents not resorted to a warrant, entrance into the garage

and the opening of the truck’s hood would have been an invasion of

an area in which Hufford had a reasonable expectation of privacy.”

Id. at 34.

B-24

Turning to the intrusion factor of the Michael analysis,

we are likewise persuaded that the nature and scope of

the intrusion occasioned by the installation of a tracking

device in the interior of a vehicle is more egregious than

that involved in Michael. In order to implant a tracking

device inside a vehicle, government agents first must

surreptitiously invade its passenger compartment or cabin,

by opening a door, forcing a lock, or using a “common

key.” Following this initial physical intrusion, the device

is affixed to the interior of the vehicle, where it remains

long after the agents who planted it have withdrawn. In

a very real sense, the beeper serves as a surrogate police

presence that remains. within the vehicle’s interior and

converts the area into a covert broadcasting station. Given

the capacity of such devices to impart information, the

introduction of these government-controlled objects into

an area in which an individual legitimately retains an

expectation of privacy constitutes an offensive invasion of

fourth amendment values. The government, via its elec-

tronic counterpart, remains physically present within the

interior of the vehicle from the moment its agents enter

until the tracking device ceases to function. In this age

of electronic wizardry, it is not too much to suppose

that beepers soon will have virtually unlimited lifespans.

The continuing intrusion of such a device into a privacy-

cloaked area, an intrusion that could potentially last from

here to eternity, mandates protections greater than those

afforded by Michael’s “reasonable suspicion” rule."*

14. In United States v. Parks, 684 F.2d 1078 (Sth Cir. 1982), a

government agent obtained a warrant authorizing installation of a

transponder inside an airplane for 30 days. When the warrant ex-

pired, the agent presented to the court an affidavit requesting an

extension of the original order. The judge notarized the affidavit but

failed to issue a written extension. The transponder remained inside

the plane and ultimately was used to track the aircraft and to obtain

B-25

[3] We reiterate our belief that the invasion of pro-

tected privacy caused by beeper installation in vehicle

interiors extends far beyond the initial entry required to

affix the tracking device; indeed, the intrusion endures

for the life of the beeper. See Berger v. New York, 388

U.S. 41, 59, 87 S.Ct. 1873, 1883, 18 L.Ed.2d 1040

(1967) (prolonged period of electronic surveillance equi-

valent to “series of intrusions, searches, and seizures’).

We are gravely disturbed by the prospect that such in-

trusions may continue ad infinitum, a concern echoed in

the opinions of this and other circuits.’* The surest way

to guarantee that such an intrusion does not exceed rea-

sonable bounds is to require. judicial supervision of the

evidence of criminal activity. Although the court decided the case

on standing grounds, it noted that the physical presence of the trans-

ponder device was arguably unlawful after the original warrant ex-

pired. Jd. at 1087. The court also stated that “[w]Jhere a beeper is

illegally preserft in the interior of a plane, we are reluctant to con-

clude that this continuing physical intrusion or trespass does not

- substantially infringe the property rights of the owner or other party

having a significant proprietary interest in the plane.” /d. at 1985.

Parks foreshadowed our holding today: the illegal presence of a

beeper in the interior of a plane does indeed infringe those rights

in a fashion that violates the fourth amendment.

15. See Kupper, 693 F.2d at 1132 n. 2, 1134 (noting that magis-

trate’s order authorizing beeper installation ‘was limited in dura-

tion”); Parks, 684 F.2d at 1085 (characterizing beeper’s presence

in aircraft interior as ‘continuing physical intrusion or trespass’) ;

United States v. Brock, 667 F.2d 1311, 1322 (9th Cir. 1982)

(“‘{T]he [c]ourt cannot countenance the potentially unlimited dura-

tion of this type of surveillance [location beapers].’” (quoting with

approval United States v. Cofer, 444 F:Supp. 146, 149-50 (W.D.

Tex. 1978)); Bailey, 628 F.2d at 945 & n. 12 (due to absence of

termination date in authorizing warrant, beeper’s presence could have

continued “ad infinitum”); United States v. Curtis, 562 F.2d 1153,

1156 (9th Cir. 1977) (expressing need for reasonable time limitations

and other reasonable restrictions on beeper’s use); United States v.

Moore, 562 F.2d 106, 113 n. 4 (noting that duration of beeper use

was limited and cautioning that additional safeguards might be re-

quired for extensive periods of beeper installation).

B-26

initial installation and continued rnaintenance of a tracking

device when it is secreted within a vehicle’s interior. Ac-

cordingly, we hold that in the usual case a warrant based

upon probable cause is required to install and maintain

an electronic tracking device within the interior of a

vehicle or other conveyance for an extended period of

time. The fourth amendment demands nothing less.*®

[4, 5] The fourth amendment requires warrants to

describe the place to be searched and the persons or

things to be seized. “It is too familiar to require citation

that resistance to the issuance of general warrants, un-

restrained as to persons, times, or places, supplied much

of the incentive for its adoption.” Cady, 651 F.2d at 291

(emphasis added). Requiring a warrant for only the

actual entry into a vehicle necessary for interior attach-

ment of a beeper would provide protection only against

the government’s initial intrusion into a protected area;

such a requirement would do nothing to safeguard against

the continual invasion of privacy associated with the

beeper’s presence. A warrant is necessary not only for

the entry irto the vehicle and the physical attachment

of the beeper in its interior, but also for its continued

presence for a period of time therein. To hold otherwise

would permit the government to install a tracking device

based on ephermeral probable cause and then to leave it

in place long after the probable cause became “stale.”

Therefore, to ensure that no beeper is maintained within

the interior of a vehicle for a period longer than that

16. We leave for another day resolution of the question whether

and in what circumstances various exceptions to the warrant require-

ment would apply. See Note, Tracking Katz: Beepers, Privacy, and

the Fourth Amendment, 86 Yale L.J. 1461, 1496-1502 (1977) (sug-

gesting that exceptions to warrant requirement should be available

only in rare cases).

B-27

reasonably necessary, the court order authorizing attach-

ment and maintenance must also impose a reasonable

time limitation on the beeper’s installation. See Bailey,

628 F.2d at 945-46; Curtis, 562 F.2d at 1156; United

States v. Cofer, 444 F.Supp. 146, 149-50 (W.D. Tex.

1978)."' Cf. Berger, 388 U.S. at 59-60, 87 S.Ct. at 1883-

1884 (electronic surveillance without time limit violates

fourth amendment); Omnibus Crime Control and Safe

Streets Act, 18 U.S.C. § 2518(5) (1976) (thirty-day

limit on electronic wiretapping). Our review of the cases

involving beeper installations reflects that such time limita-

tions are familiar restrictions. See e.g., Kupper, 693 F.2d

at 1131-32 n.2 (thirty-day limit); Parks, 684 F.2d at

1086 (same); United States v. Chavez, 603 F.2d 143,

144 (10th Cir. 1979) (sixty days); United States v.

Pretzinger, 542 F.2d 517, 519 (9th Cir. 1976) (thirty

days); Cofer, 444 F.Supp. at 149-50 (same).’*

We are well aware that our holding establishes a stand-

ard for interior beeper installation that is different from

that required under Michael for exterior attachment.

In drawing a distinction between the interior and the

17. See also Note, Tracking Katz: Beepers, Privacy, and the

Fourth Amendment, 86 Yale L.J. 1461, 1505 (1977) (“In order to

halt the beeper’s invasion of privacy . . . an issuing judge should

include in the warrant express provisions for regular review of the

progress of the search and should limit the absolute duration of the

search to the shortest period consistent with demonstrated police

needs.’’).

18. In Michael, the beeper attached to the van’s bumper remained

in place only from its installation on August 10 until it was removed

at the end of August. Michael, 622 F.2d at 746 (panel opinion).

Thus, the court did not need to discuss the potential problems that

could arise from prolonged beeper installation. The opinion suggests,

however, that installation and maintenance of a beeper on a vehicle’s

bumper is permissible for so long as “reasonable suspicion” continues

to exist.

B-28

exterior of a conveyance, we are guided in part by the

Supreme Court’s disposition of Cardwell v. Lewis, 417

U.S. 583, 94 S.Ct. 2464, 41 L.Ed.2d 325 (1974) (plu-

rality). In Cardwell, government agents acting without a

warrant took paint scrapings from and examined the tire

treads of a suspect’s car after it had been lawfully im-

pounded by the police. Although the Court permitted the

warrantless search based on probable cause, it was care-

ful to distinguish the minimal intrusion at issue with an

interior search. Jd. at 591, 94 S.Ct. at 2469 (“This is

not to say that no part of the interior of an automobile

has Fourth Amendment protection... .”); id. (“[NJothing

from the interior of the car .. . [was] searched or seized

and introduced in evidence.”); id. at 592 n. 8, 94 S.Ct.

at 2470 n. 8 (‘“Again, we are not confronted with any

issue as to the propriety of a search of a car’s interior.”).

We believe that both the degree of privacy inherent in the

invaded area and the nature, scope, and duration of the

government’s intrusion mandate the more stringent re-

quirements for interior installation and maintenance of

tracking devices that we impose.

D. The Butts Beeper

Having examined in the abstract the propriety of in-

terior beeper installations, we turn at last to the facts of

the case at bar. Initially, one of the agents involved in this

case appeared before a U.S. magistrate and obtained a

warrant authorizing the agent to install a beeper within

the subiect aircraft within ten days. The court order

further permitteed the beeper to be maintained inside the

aircraft for thirty days following its installation. During

the time period encompassed by this initial warrant, an

agent installed the tracking device inside the cabin of the

B-29

aircraft. Thirty-two days passed; presumably the warrant

had expired. Again an agent appeared before the magis-

trate, requesting an extension of the original order, al-

though he presented no new material facts to support the

extension. The magistrate then issued an extension order

for an additional thirty-day installation period. This second

order allowed the agents to re-enter the aircraft at any

time during the thirty-day extension period to make neces-

sary repairs to the beeper and directed its removal no later

than August 19, 1981. Nevertheless, the beeper remained

on board the aircraft past the court-ordered removal date.’®

On August 22 and 23, 1981, after the period specified

in the extension order had expired, the beeper was used

to track the aircraft and Butts, its pilot; ultimately the

beeper’s use led to the discovery of various evidentiary

items.

[6] The agent’s actual entry into the cabin of the

aircraft and the physical attachment of the beeper to the

interior of the plane were undertaken pursuant to a valid

warrant. The problem arises some sixty-four days later,

when the beeper remained present in the aircraft after

the expiration of the court order authorizing its installa-

tion and maintenance. For the reasons stated above, we

hold that the continued presence of the beeper inside the

plane beyond the time limit specified in the warrant vio-

lated the fourth amendment.”® The court authorized the

19. The careless practices of the law enforcement agents in this

case are particularly disconcerting. The government has offered no

explanation for the agents’ failure to apply timely for an extension

order, nor for their disobedience of the court order requiring the

beeper’s removal. In the words of the government attorney who

appeared at oral argument, “They botched it.” We cannot condone

such deliberate disregard for an order of the court.

20. United States v. Conroy, 589 F.2d 1258 (Sth Cir. 1979) does

not compel a different result. Conroy involved a confidential DEA

B-30

intrusion for a particular fixed period of time; when the

beeper remained in place beyond that period, its presence

became constitutionally impermissible. The fruits of this

constitutional violation were the signals emitted by the

unlawfully placed beeper. Thus, by exploiting the illegal-

ity, the government agents were able to track the plane

and locate the marijuana and other evidence. Accordingly,

the district court properly suppressed the seized evidence.

Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407,

9 L.Ed.2d 441 (1963).”’

The government argues that the beeper’s installation in-

side the plane beyond the court-ordered time limit is of

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