U.S. v. Frazier

• Citation: 538 F.2d 1322
• Decision Date: 27 August 1976
• Docket Number: No. 76-1297,76-1297
• Parties: UNITED STATES of America, Appellant, v. John D. FRAZIER, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 1322

538 F.2d 1322

UNITED STATES of America, Appellant, v. John D. FRAZIER, Appellee.

No. 76-1297.

United States Court of Appeals Eighth Circuit.

Submitted June 15, 1976.

Decided July 16, 1976.

Rehearing Denied Aug. 27, 1976.

Richard E. Coughlin, Asst. U. S. Atty. (argued), Barry A. Short, U. S. Atty., St. Louis, Mo., on brief, for appellant.

Leonard J. Frankel (argued), Clayton, Mo., on brief, for appellee.

Before HEANEY, ROSS and STEPHENSON, Circuit Judges.

STEPHENSON, Circuit Judge.

The sole issue raised in this appeal is whether the district court ¹ erred in partially sustaining appellee's motion to suppress the introduction into evidence of certain articles obtained by the government as a result of the attachment of a tracking device to appellee's automobile. We conclude that the government's action did not constitute an illegal intrusion violative of the Fourth Amendment. Accordingly, we reverse.

On November 24, 1975, Mr. James Clayton, a supervisor for McDonnell Douglas Corporation, received an anonymous telephone call from a person suggesting an undescribed opportunity for Clayton to earn $50,000. Clayton reported the call to the FBI, which immediately began an espionage investigation, since Clayton's position with McDonnell Douglas involved the handling of classified documents. Subsequently, Clayton received similar calls, which frequently were recorded by the FBI, and on November 25, 1975, the caller disclosed an extortion scheme designed to obtain money from a wealthy, but unidentified, resident of Ladue, Missouri. More specifically, an explosive belt was to be attached to the victim with the removal of the belt contingent upon the payment of a significant sum of money.

On November 30, 1975, the caller was initially identified as appellee John D. Frazier through his automobile license number when he was observed at the Sheraton Airport Motor Inn. Stephen Kettner, a special agent for the FBI, then informed Clayton of Frazier's identity, and Clayton realized for the first time that he knew the suspect. Clayton described Frazier as a retired naval officer who was an explosives expert. On December 1, 1975, at approximately 2:00 p. m. the FBI first became aware of the name and address of the intended victim of the extortion plan, Clarence Barksdale, president of the First National Bank in St. Louis. This occurred during yet another telephone call placed by Frazier to Clayton. As a result of this call, the agents also learned that the extortion attempt would be made the next day. Shortly afterward, between 4:30 and 5:00 p. m. on December 1, 1975, the various FBI agents who were involved in the investigation convened for a conference to decide what course of action should be taken. At this conference it was concluded that a "bumper beeper" should be installed on Frazier's automobile in order to monitor his movements. ²

On December 1, 1975, at approximately 6:30 p. m. Warren Wyman, another special agent for the FBI, attached the "bumper beeper" to Frazier's 1972 green Thunderbird while it was located in a public parking lot at the Sheraton Inn. No application for a search warrant was prepared or submitted to a magistrate prior to the utilization of the device.

During the course of the extortion attempt on December 2, 1975, the FBI agents learned that the extortion money was supposed to be delivered to the upper deck parking lot at Lambert International Airport. Although the agents planned to make an arrest when the money was to be picked up, no pickup attempt was made. Following an additional FBI conference at the airport, two of the agents proceeded to prepare an arrest warrant for Frazier while other agents were under instructions to arrest Frazier as soon as he could be found. Special Agent William Ahler conducted a search for Frazier by helicopter and through the use of the "bumper beeper" eventually located Frazier and accomplished his arrest in O'Fallon, Missouri, at approximately 3:30 p. m. on December 2, 1975.

Immediately following Frazier's arrest the agents, by search of his person, obtained from his possession two business cards containing the name and address of Clarence Barksdale and a page of the telephone book bearing the name of James Clayton. ³ Appellee was indicted on December 11, 1975, for the attempted extortion of the First National Bank in St. Louis. Prior to trial, appellee filed a motion to suppress all evidence obtained by the government as a result of the installation of the electronic tracking device. The district court after a hearing on the motion held that the evidence obtained from Frazier's automobile and residence need not be suppressed because of the voluntary consent given by appellee and his wife to the searches. The trial court found there was probable cause to arrest appellee without a warrant. However, because the arrest was expedited through the use of the "bumper beeper" attached to appellee's car, the court sustained the motion to suppress the evidence taken from appellee's personal possession without his consent. The district court concluded that the installation of the "bumper beeper" without a warrant constituted an illegal search. See United States v. Holmes, 521 F.2d 859 (5th Cir. 1975), rehearing en banc granted, 525 F.2d 1364 (January 5, 1976).

In this appeal the government contends that the district court erred in suppressing the evidence taken from appellee's immediate possession. Essentially, the government asserts that the installation of the "bumper beeper" tracking device does not constitute a search within the ambit of the Fourth Amendment. See United States v. Carpenter, 403 F.Supp. 361, 364-65 (D.Mass.1975). Secondarily, assuming the existence of a search, the government regards the intrusion to have been justified by either probable cause or exigent circumstances or both. In contrast, appellee contends that the use of the electronic "bumper beeper" is a search which was unreasonable under the circumstances of the instant case. See United States v. Martyniuk, 395 F.Supp. 42, 44-45 (D.Or.1975).

Whether the installation of an electronic tracking device on a motor vehicle is a search or seizure within the protection of the Fourth Amendment is a difficult question. At a minimum, the attachment of such a device, without consent or judicial authorization, is an actual trespass. Although only a limited intrusion, it is one which raises a concern that the government could plant a tracking device on a person's car and follow its movements whenever and wherever it is being driven. See United States v. Martyniuk, supra, 395 F.Supp. at 44-45. In contrast, it is at least questionable whether a person has a reasonable expectation of privacy with regard to his movements on public roads. See Cardwell v. Lewis, 417 U.S. 583, 588-92, 94 S.Ct. 2464, 41 L.Ed.2d 325 (1974); United States v. Carpenter, supra, 403 F.Supp. at 364-65. Cf. Katz v. United States, 389 U.S. 347, 350-59, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). In any event, the issue need not be resolved in this appeal since we are convinced the intrusion committed in the instant case, assuming arguendo that it is a search or seizure within the ambit of the Fourth Amendment, was justified by probable cause and exigent circumstances.

The search of a motor vehicle, especially its exterior, is less intrusive and implicates a lesser expectation of privacy than otherwise applies under the general warrant requirement. See Cardwell v. Lewis, 417 U.S. 583, 589-91, 94 S.Ct. 2464, 41 L.Ed.2d 325 (1974); Almeida-Sanchez v. United States, 413 U.S. 266, 279, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973) (Powell, J., concurring). If there is probable cause, an automobile, because of its mobility, may be searched without a warrant in circumstances that would not justify a warrantless search of a house or office. Chambers v. Maroney, 399 U.S. 42, 48-51, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Carroll v. United States, 267 U.S. 132, 158-59, 45 S.Ct. 280, 69 L.Ed. 543 (1925); United States v. Brown, 424 F.2d 535, No. 75-1863 (8th Cir. 1976). Probable cause exists when the facts and circumstances within a police officer's knowledge would " 'warrant a man of reasonable caution in the belief that' an offense has been or is being committed." Brinegar v. United States, 338 U.S. 160, 175-76, 69 S.Ct. 1302, 1311, 93 L.Ed. 1879 (1948), quoting from Carroll v. United States, 267 U.S. 132, 167, 45 S.Ct. 280, 65 L.Ed. 543 (1925).

The FBI agents in the instant case were conducting an investigation of an ongoing extortion scheme. On November 25, 1975, through a telephone call placed to James Clayton, the agents learned that an unidentified person intended to place an explosive belt on a wealthy individual with its removal contingent upon payment of a sum of money. Further, on November 30, 1975, the agents identified the telephone caller as John Frazier when he was seen at the Sheraton Airport Motor Inn. It is, of course, notable that James Clayton described Frazier as an expert with explosives. This factual basis, obtained through telephone calls placed to James Clayton, was sufficient to provide the FBI with probable cause for the installation of the tracking device on the bumper of appellee's automobile located in the public parking lot at the Sheraton Inn. See Chambers v. Maroney, supra, 399 U.S. at 48-51, 90 S.Ct. 1975. Terry v. Ohio, 392 U.S. 1, 20-27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); United States v. Powers, 439 F.2d 373, 375-76 (4th Cir. 1971). Cf. Coolidge v. New Hampshire, 403 U.S. 443, 458-64, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) (car parked on private property).

These same facts also suggest the existence of exigent circumstances justifying the limited intrusion conducted in the instant case. See Warden v. Hayden, 387 U.S. 294, 298-300, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967); United States v. Weaklem, 517 F.2d 70, 72 (9th Cir. 1975); Virgin Islands v. Gereau, 502 F.2d 914, 928-29 (3d Cir. 1974). The tracking...