U.S. v. Holmes

• Decision Date: 20 August 1976
• Docket Number: No. 74-2419,74-2419
• Citation: 537 F.2d 227
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Jeffrey Leonard HOLMES et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 227

537 F.2d 227

UNITED STATES of America, Plaintiff-Appellant, v. Jeffrey Leonard HOLMES et al., Defendants-Appellees.

No. 74-2419.

United States Court of Appeals Fifth Circuit.

Aug. 20, 1976.

William Stafford, U. S. Atty., Stewart J. Carrouth, Asst. U. S. Atty., Tallahassee, Fla., Mervyn Hamburg, Appellate 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 & Williams.

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

Before BROWN, Chief Judge, TUTTLE, GEWIN, THORNBERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, DYER, SIMPSON, MORGAN, CLARK, RONEY, GEE, TJOFLAT and HILL, Circuit Judges. ^*

PER CURIAM:

I.

The holdings of the United States District Court for the Northern District of Florida in United States of America, Plaintiff, v. Jeffrey Leonard Holmes, et al., Defendants, Gainesville Criminal No. 73-27, contained in its Order of April 25, 1974, regarding the installation of the battery-operated beacon or "beeper" in the early evening of August 3, 1973, under the right rear wheel of the appellee Jeffrey Holmes' van, while it was parked on a lot outside a lounge in Gainesville, Florida, to-wit: (1) that the use of the beacon to monitor the movements of the van was a search subject to the Fourth Amendment, (2) that such search was illegal because of the failure to obtain a warrant for its installation, (3) that an application for a warrant would have been rejected because no probable cause existed to justify its installation, (4) that no evidence at the Moody property would have been discovered, nor would the van with its contraband have been intercepted without the aid of the beacon, and (5) the suppression of evidence as the "fruit" of the initial search, as to such issues ¹ are each affirmed by an equally divided court. See, e. g., School Board of City of Richmond v. State Board of Education, 1973, 412 U.S. 92, 93 S.Ct. 1952, 36 L.Ed.2d 771; Rice v. Sioux City Cemetery, 1954, 348 U.S. 880, 75 S.Ct. 122, 99 L.Ed. 693, on rehearing, 1955, 349 U.S. 70, 73, 75 S.Ct. 614, 99 L.Ed. 897; Carter v. United States, 5 Cir., 1963, 325 F.2d 697, cert. denied 1964, 377 U.S. 946, 84 S.Ct. 1353, 12 L.Ed.2d 308; 5 Am.Jur.2d, Appeal and Error, § 902, pp. 338, 339.

II.

As to each of the remaining issues involved in said appeal ² the court en banc adopts the panel opinion.

AFFIRMED in Part; REVERSED in Part.

AINSWORTH, Circuit Judge, dissenting, with whom Chief Judge BROWN and Judges GEWIN, RONEY, GEE, TJOFLAT and JAMES C. HILL join:

I. INSTALLATION AND USE OF THE ELECTRONIC BEACON

This is a search and seizure case of first impression, placed en banc because of its exceptional importance. The Court in its en banc consideration divided 8 to 8, on a determination of whether installation and use of an electronic radio tracking device affixed under the fender of defendant Holmes' van by a government agent without a warrant, constituted an illegal search in violation of the Fourth Amendment.

Thus, by this Court's evenly divided vote, the District Court's decision is affirmed, and the large quantity of contraband evidence (marijuana) seized by government agents is suppressed as the "fruit" of the initial placing of the beeper. See Part I of the en banc per curiam.

I register my disagreement and dissent with the result reached by the Court. In my view the Court should have held that installation of the beacon or beeper was not an illegal search, and was entirely reasonable under the circumstances presented, either under a determination of reasonable suspicion or probable cause.

It is appropriate also to record disappointment with the failure of a majority of the Court to approve the use of developing electronic means of investigative surveillance, such as the beeper under the circumstances here, for the apprehension of persons engaged in criminal activity. Modern science has provided the device and law enforcement officers should be allowed to use it under the facts of this case.

The question presented is whether use of the beeper was reasonable under the facts and circumstances. The Government does not seek a ruling that its agents may indiscriminately place a beeper on vehicles and persons. It does not ask that the Court consent to the "unrestrained" use of the beeper. Its position is that if reasonable suspicion or probable cause are present, use of the beeper is proper.

Thus the Government does not contend that it should be allowed to invade the rights of privacy of the people by attaching "beepers" or "bugs" as and when it pleases. Such a case is not presented here.

The Government does not request a broad and sweeping ruling. But if there is reasonable cause to believe that a crime is in progress or about to be committed, use of the beeper by government agents on the vehicle of the person involved, should be approved. That is all the Government desires.

The facts justifying use of the beeper in this case are unusually strong. Undercover Agent Cox had been negotiating with defendant Holmes for the purchase of a large quantity of marijuana (500 pounds originally, down to a final agreed amount of 300 pounds) for several days in the latter part of July, into early August. Holmes wanted to see the money. So a meeting was agreed to for the early evening of Friday, August 3, at the ABC Lounge in Gainesville where Cox would display the money, $45,500, for the purchase. A number of other agents in this joint federal/state case who were privy to Cox's information about his dealings with Holmes took up surveillance at the lounge before and during the meeting. The beeper was attached by one of the agents by use of a strong self-contained magnet to the underside of the fender of the Holmes van while Cox and Holmes were inside the lounge furthering their arrangements for purchase of the narcotics. It was placed on the van to secure evidence of crime by tracking the movements of the van.

To contend that in the present case the government agents had only "the merest of suspicions," or that their actions were based only "upon an unfounded suspicion" is to ignore the true facts of the case, which do not seem to be disputed. Yet the District Judge's opinion does not even mention Cox's meeting with Holmes on August 3 to display the money for the marijuana purchase, though he states that is the date the beeper was attached to the van. What Cox and Holmes were doing in the ABC Lounge at the time is critical to justification for the installation of the beeper. Agent Cox's display of the large sum of cash for the marijuana purchase from defendant Holmes, on that occasion, formed the reasonable basis for placing the beeper on the van then situated in the public parking lot of the lounge. Incredibly the District Judge must have thought these facts were of no importance since he did not even mention them in his written opinion suppressing the contraband evidence. The error is apparent.

The agents outside the lounge knew why Cox was meeting with Holmes. "Everybody was involved," testified Cox. They were aware of the whole transaction and were there to give support to Cox. After Holmes arrived in the van one of them attached the beeper in order to trace the van's movements. They knew that Holmes had said that the 300 pounds of marijuana in this purchase was only part of a large shipment which was expected to come into the Florida coastline. The van was suitable for the transportation of large amounts of marijuana. Obviously they were interested in seizing the entire quantity, wherever it might be.

Requiring a search warrant under the exigent circumstances presented here ignores the practicalities of the situation. The agents did not know when they might have another chance, if at all, to install the beeper on the vehicle. Installation of the beeper here was only a minimal intrusion. In the recent case of Cardwell v. Lewis, 417 U.S. 583, 94 S.Ct. 2464, 41 L.Ed.2d 325 (1974), the Supreme Court held that there was no violation of the Fourth Amendment where police having probable cause but without a warrant examined a tire on the wheel of defendant's automobile and took paint scrapings from the exterior of the vehicle left in a public parking lot, the Court stating, "(W)e fail to comprehend what expectation of privacy was infringed." Id., 417 U.S. at 591-592, 94 S.Ct. at 2470. The Court also said:

"The search of an automobile is far less intrusive on the rights protected by the Fourth Amendment than the search of one's person or of a building." Almeida-Sanchez v. United States, 413 U.S. 266, 279, 93 S.Ct. 2535, 2542, 37 L.Ed.2d 596 (1973) (Powell, J., concurring). One has a lesser expectation of privacy in a motor vehicle because its function is transportation and it seldom serves as one's residence or as the repository of personal effects. A car has little capacity for escaping public scrutiny. It travels public thoroughfares where its occupants and its contents are in plain view. See People v. Case, 220 Mich. 379, 388-389, 190 N.W. 289, 292 (1922). "What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection." Katz v. United States, 389 U.S. 347, at 351, 88 S.Ct. 507, at 511, 19 L.Ed.2d 576; United States v. Dionisio, 410 U.S. 1, at 14, 93 S.Ct. 764, at 771, 35 L.Ed.2d 67. This is not to say that no part of the interior of an automobile has Fourth Amendment protection; the exercise of a desire to be mobile does not, of course, waive one's right to be free of unreasonable government intrusion. But insofar as Fourth Amendment protection extends to a motor vehicle, it is the right to privacy that is the touchstone of our inquiry.

Id., 417 U.S. at 590-591, 94 S.Ct. at 2469-2470. See also Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69...