521 F.2d 859 (5th Cir. 1975), 74-2419, United States v. Holmes

Docket Nº:74-2419.
Citation:521 F.2d 859
Party Name:UNITED STATES of America, Plaintiff-Appellant, v. Jeffrey Leonard HOLMES et al., Defendants-Appellees.
Case Date:October 08, 1975
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 859

521 F.2d 859 (5th Cir. 1975)

UNITED STATES of America, Plaintiff-Appellant,

v.

Jeffrey Leonard HOLMES et al., Defendants-Appellees.

No. 74-2419.

United States Court of Appeals, Fifth Circuit

October 8, 1975

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[Copyrighted Material Omitted]

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William Stafford, U. S. Atty., Stewart J. Carrouth, Asst. U. S. Atty., Tallahassee, Fla., Mervyn Hamburg, App. Sec., Crim. Div., U. S. Dept. of Justice, Washington, D. C., for plaintiff-appellant.

Joseph S. Oteri, Martin G. Weinberg, Boston, Mass., for Ashley, Willy and Green.

Selig I. Goldin, Gainesville, Fla., for Holmes, Okus, Moody, Moody, DeWitt and Williams.

Appeal from the United States District Court for the Northern District of Florida.

Before TUTTLE, COLEMAN and SIMPSON, Circuit Judges.

SIMPSON, Circuit Judge:

The United States appeals from a district court order granting motions to suppress evidence. The appellees, Jeffrey Holmes, Gail Moody, Norman Moody, Jr., Anthony Okus, Terrence DeWitt, Gregory Williams, Charles Ashley, Jr., Thomas Willy and Johnny Green, filed motions to suppress evidence seized on property owned by the Moodys and evidence seized from a motor van occupied by DeWitt and Williams and owned by Holmes. They contended that government agents conducted an illegal search which led to the discovery of this evidence by attaching an electronic beacon to Holmes' van. They challenged on independent grounds the searches of the Moody property and of Holmes' van. The district judge held that the installation and use of the beacon was an illegal search and granted all motions to suppress, holding also that agents conducted an illegal search of the Moody property.

On appeal the government contends that no illegal searches and seizures were conducted and challenges the standing of certain appellees to contest the legality of the various searches which occurred.

We affirm as to appellees Holmes, DeWitt, Williams, Gail Moody, Norman Moody and Okus. We affirm in part and reverse in part as to appellee Ashley. We reverse as to appellees Willy and Green.

THE UNDERLYING FACTS

In late July and early August of 1973, appellee Holmes negotiated the sale of 300 pounds of marijuana to a state undercover agent, Steve Cox. 1 In the early evening of August 3, Cox met with Holmes at a lounge in Gainesville, Florida, in the Northern District of Florida, in order to display the $45,500 cash needed to complete the transaction. While the two were inside the lounge another agent by use of a magnet attached an electronic surveillance device under the right rear wheel of Holmes' van, parked on a lot outside the lounge.

The battery-operated device, called a beacon or "beeper", emits periodic signals which can be picked up on radio frequency. These signals establish the approximate location of the object to which the beacon is attached by providing a line of position, to the left or to the right, between the transmitter and the intercepting equipment.

The agents admittedly used the beacon in order to locate the source of the marijuana in the event visual surveillance of the van was lost. They did not attempt to obtain a warrant.

The agents then began what was to have been constant visual surveillance of Holmes and his van. During the early morning hours of Sunday, August 5, 1973, however, the van was moved without their being aware. When he learned of the van's disappearance, the officer in charge of the joint state/federal surveillance operation, agent Ginley, ordered a plane into the air to track it.

The pilot of the plane was never able to spot the van visually, but by 9:15

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A.M., he was able to determine from the electronic beacon's transmission that it had stopped at Federal Point, a sparsely settled rural area 60 miles to the east of Gainesville on the St. Johns River in Putnam County. Putnam County is in the Middle District of Florida. The pilot did not pinpoint the exact location of the van, in part because he feared that flying low would alert the driver to the aerial surveillance and in part because the area was heavily wooded, but he was able to place it within a rectangular area of about one hundred by two hundred yards adjacent to the river.

The rectangle was bounded to the north by a large barn, to the south by a church, and to the west by the river. The Moody home was near the center of the rectangle, facing east. North of the barn lay a large, open field. The area to the south was heavily wooded. Immediately behind the home was a small yard. A Franklin motor home was parked ten yards to the rear of the house, in thick trees. A shed was located ten yards to the rear of the motor home, twenty yards from the house. From behind the shed, extending to the river's edge, the area was heavily wooded, with dense undergrowth.

The agents, with the aid of the pilot's directions by radio, arrived at Federal Point between 11:00 and 11:30 A.M. and surrounded the location. At 11:30, unable to sight the van, they asked the pilot to verify the van's position and were told that it had departed and was moving west toward Gainesville.

After learning of the van's departure, agent Ginley sent two agents, Sedalas and Vipperman, between 12:00 and 12:30 P.M., to the back of the Moody property. Sneaking through the thick growth they spotted the shed and motor home. Agent Vipperman, under dense cover, came close to the shed and, admittedly looking for evidence of marijuana, peered into a large hole in its rear. From this vantage point, he smelled marijuana and was able to see burlap bags of a type commonly used to pack it. Two individuals were in the shed, but he could see only the lower part of their bodies. He reported these findings to agent Ginley.

In the meantime, around 11:30 A.M., Holmes had called Cox and told him the van had been picked up and would return with the marijuana at about noon. Lt. McGraw, of the Gainesville Police Department, then left for Federal Point with the State Attorney and an investigator for the State Attorney's office. Twenty-five miles east of Gainesville, they passed a van which they believed to be Holmes'. They turned to follow it and verified it as his by a license check. After it went over railroad tracks without bouncing, indicating its heavy load, and observing that it was curtained, they stopped the van and searched it. They seized 1200 pounds of marijuana and arrested its two occupants, appellees DeWitt and Williams. 2 Agent Ginley was notified of the arrests and seizures. This was at a time after he had sent Sedalas and Vipperman into the woods behind the Moody property.

At 1:00 P.M., now knowing that marijuana was in the shed and that a large quantity had been seized from the van, Ginley sent agent Henderson to the Putnam County seat, Palatka, to obtain a search warrant. About 2:45 P.M., before the warrant arrived, agent Adams from the airplane radioed agent Ginley of movement on a dock by the river. Although no agent had seen any activity on the Moody premises, agent Ginley ordered the premises secured. 3 Appellees Gail and Norman Moody, and appellee Okus, on the porch of the house, were arrested. The shed, the house and the motor home were entered, not for purposes of a search, but solely to determine if anyone else was present. At 4:15 P.M. agent Henderson returned with a warrant issued by the County Judge of Putnam

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County authorizing a search of the house, barn, shed, and motor home. The agents seized 1200 pounds of marijuana in the shed and small amounts of marijuana and related paraphernalia in the house. Sweepings of the substance were found in the carpet of the motor home. In the glove compartment of the motor home the agents found a lease contract naming appellee Ashley as its lessee. Later followup of this lead led to the arrests of appellees Ashley, Willy and Green. 4

THE INDICTMENT AND THE MOTIONS TO SUPPRESS

A Northern District of Florida grand jury returned a four-count indictment. Count One charged Gail and Norman Moody, Okus, Holmes, DeWitt, Williams, Ashley, Willy, Green and two others with conspiracy to possess with intent to distribute marijuana, in violation of Title 21, U.S.C., Section 846. Count Two charged the two Moodys, Okus, Holmes, DeWitt and Williams with possession with intent to distribute marijuana, occurring on August 5, 1973, in violation of Title 21, U.S.C., Section 841(a)(1) and Title 18, U.S.C., Section 2. Counts Three and Four, not involved on this appeal, charged Holmes with using a telephone on August 4, 1973 and August 5, 1973, to facilitate the commission of the conspiracy and substantive offenses, in violation of Title 21, U.S.C., Section 843(b). 5

All nine appellees filed motions, pursuant to F.R.Crim.P. 41(e), to suppress, alleging that the attachment of the beacon to the van was an illegal search and that all evidence seized from the Moody property and the van was subject to suppression as "fruit of the poisonous tree". See Wong Sun v. United States, 1963, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441. They also contended that agent Vipperman conducted an illegal search of the shed, requiring suppression of all evidence seized on the Moody property. Finally, they argued that the warrant was invalid because the source of the information contained in the affidavit was not set forth. 6

THE RULINGS APPEALED FROM

The district judge, after a lengthy evidentiary hearing, held that the use of the beeper to monitor the movements of the van was a search subject to the Fourth Amendment, and that the search was illegal because of the failure to obtain a warrant for its installation. He found further that an application for a warrant would have been rejected because no probable cause existed to justify its installation. 7 He ruled that no...

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