U.S. v. Abel, 76-2819
| Decision Date | 11 March 1977 |
| Docket Number | No. 76-2819,76-2819 |
| Citation | 548 F.2d 591 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Joseph E. ABEL, Sr., Larry Neal Whittington, James Glenn Gibson, Alfred Ephrem Lavoie and John Frederick Steuber, Jr., Defendants-Appellants. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Arthur B. Parkhurst, Fort Lauderdale, Fla., for defendants-appellants.
Robert W. Rust, U.S. Atty., Karen L. Atkinson, C. Wesley G. Currier, Asst. U.S. Attys., Miami, Fla., for plaintiff-appellee.
Appeals from the United States District Court for the Southern District of Florida.
Before JONES, COLEMAN and TJOFLAT, Circuit Judges.
C.I.M. Associates, Inc., was the owner of a DC-3 aircraft. Henry Maierhoffer was its president and executive officer and owned all of its capital stock. Earl Jordan had the use of the aircraft through an ownership or other interest. The appellant, Abel, had used the aircraft several times pursuant to an arrangement with Jordan. Agents of the Drug Enforcement Agency suspected that the aircraft was being used in the smuggling of contraband and asked Maierhoffer for permission to install an electronic tracking device, known as a beeper, on the plane. Consent was given and the beeper was affixed to the aircraft. Earl Jordan was informed by Maierhoffer of the installation of the beeper. Sometime later the aircraft took off on a nighttime flight from Fort Lauderdale, Florida. A customs aircraft, guided by the beeper, followed. The DC-3 went first to an airfield near Freeport in Grand Bahama for a short stop, then to an airfield at Palatka, Florida where another brief stop was made. The end of the trip was Lakeland, Florida, where the plane was searched by the agents and fragments of marijuana were found. The occupants of the plane, appellants here, were arrested. After an indictment for conspiracy to import marijuana the appellants filed a motion to suppress the contraband material found on the aircraft on the ground that the tracking by the beeper and the search which disclosed the marijuana constituted an unlawful search and seizure.
The United States Attorney was apparently convinced that electronic surveillance by using a beeper was an unlawful search and so he stipulated with appellants' counsel that the beeper led to the discovery of the contraband, that if the "beeper search" was invalid the resulting evidence should be suppressed, "that the only issue the government raises as an exception to the requirement...
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...curiam) (employee with authority to consent), cert. denied, 420 U.S. 996, 95 S.Ct. 1433, 43 L.Ed.2d 676 (1975). Compare United States v. Abel, 548 F.2d 591 (5th Cir.), cert. denied, 431 U.S. 956, 97 S.Ct. 2678, 53 L.Ed.2d 273 (1977), with People v. Smith, 67 Cal.App.3d 638, 136 Cal.Rptr. 76......
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...v. Miroyan, 577 F.2d 489, 493 (9th Cir.) (same), cert. denied, 439 U.S. 896, 99 S.Ct. 258, 58 L.Ed.2d 243 (1978); United States v. Abel, 548 F.2d 591, 592 (5th Cir.) (same), cert. denied, 431 U.S. 956, 97 S.Ct. 2678, 53 L.Ed.2d 273 34. If the Government alleges a statement does not relate t......
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