# Petition for Writ of Certiorari — Butts v. United States

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_1437%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1986
- **Citation:** 476 U.S. 1140

## Text

es ee ee

CLERK

Supreme Court. UL"

ee a ae

85-1319 FEB 5 1986

—-._-____.__._____ NF

U

Be 4

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

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.

2

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

3

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

4

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.

5

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.

6.

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-

7

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.

8

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-

9

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.

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
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

10

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-

11

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.

12

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-

13

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

14

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.

15

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:

16

“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

17

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).

18

“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

19

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.

20

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

I

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.

II

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.

I.

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:

I.

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.

2

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,

V.

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

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_1437%3A1. Public record. Not legal advice.