U.S. v. Dubrofsky

• Decision Date: 09 August 1978
• Docket Number: No. 77-3738,77-3738
• Citation: 581 F.2d 208
• Parties: UNITED STATES of America, Appellee, v. Leonard Joel DUBROFSKY, Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 208

581 F.2d 208

UNITED STATES of America, Appellee, v. Leonard Joel DUBROFSKY, Appellant.

No. 77-3738.

United States Court of Appeals,

Ninth Circuit.

Aug. 9, 1978.

Rehearing Denied Aug. 31, 1978.

Christopher Jon Cole (argued), San Francisco, Cal., for appellant.

Robert Dondero, Atty. (argued), San Francisco, Cal., for appellee.

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

Before KILKENNY, TRASK and SNEED, Circuit Judges.

SNEED, Circuit Judge:

Leonard Dubrofsky was convicted of importing heroin in violation of 21 U.S.C. § 952 and possessing heroin with intent to distribute in violation of 21 U.S.C. § 841(a)(1), and sentenced to a 15-year prison term for each violation, each term to run consecutively. He brings this appeal, challenging the use of an electronic tracking device, the admission of evidence from two searches, and several aspects of the sentencing decision. We affirm the conviction.

I.

Facts.

On May 13, 1977, a package mailed from Thailand addressed to "Francis Schneider, P.O.B. 276, Brookdale, California, 95007 U.S.A." arrived at the San Francisco Airport Customs Air Mail Facility. A lawful customs search revealed ten plastic bags containing heroin in the hollowed out walls of the package. On May 16 agents of the Drug Enforcement Administration removed these bags and replaced them with six bags of white powder and two bags of heroin. In addition, electronic surveillance devices were placed inside the parcel. These devices emitted beeping signals that allowed agents to follow the parcel. The beep changed tone if the parcel was opened.

The package was resealed and sent to the post office for a controlled delivery. On May 17 Dubrofsky picked up the parcel and drove to the residence of Ms. Cheryl Lovejoy in Santa Cruz. He was followed by federal agents and local police.

Soon after Dubrofsky entered Lovejoy's house the beeper changed tones, indicating that the package had been opened. Six or seven officers approached the residence and requested entry. Ms. Lovejoy admitted them, was informed of their purpose, and indicated that Dubrofsky was in the basement. The agents went there and discovered that the basement was locked from the outside. They obtained the combination from Ms. Lovejoy, opened the door, and ordered Dubrofsky to come out. Dubrofsky obeyed and was arrested.

After the arrest, Ms. Lovejoy was informed that she was a suspect in the investigation. She was given a Miranda warning, and her consent was requested to search the basement. Although a written consent was apparently given after the search, evidence at the suppression hearing indicates that Ms. Lovejoy gave a valid oral consent prior to the search. The package, heroin, heroin substitute, and the beepers were found in the basement.

Later that day a warrant was obtained to search Dubrofsky's home in Boulder Creek. The warrant was issued in San Francisco and telephonically relayed to an agent waiting at Dubrofsky's home. The agent performing the search never saw the warrant nor was informed of the specific items authorized to be seized. A passport, an alien registration card, a small amount of heroin, narcotics paraphernalia, a phone bill, a plane ticket, and a loan document were discovered in the search.

II.

Installation and Use of the Electronic Surveillance Devices.

Dubrofsky contends that the installation and subsequent use of the electronic surveillance devices was a search falling within the Fourth Amendment's protections. We disagree.

A two-step analysis is required for problems presented by the use of electronic surveillance devices in law enforcement activities. First, it must be determined if the Fourth Amendment was violated when the device was installed. United States v. Pretzinger, 542 F.2d 517, 520 (9th Cir. 1976) (per curiam). If installation of the device was proper, the court must then determine if the continued surveillance by the device violates a reasonable expectation of privacy. United States v. Hufford, 539 F.2d 32 (9th Cir.), Cert. denied, 429 U.S. 1002, 97 S.Ct. 533, 50 L.Ed.2d 614 (1976); Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).

There is no question that the initial opening of the package by customs agents was lawful. Customs officials are authorized to inspect incoming international mail when they have a "reasonable cause to suspect" that the mail contains contraband. United States v. Ramsey, 431 U.S. 606, 97 S.Ct. 1972, 52 L.Ed.2d 617 (1977). "Reasonable cause to suspect" is a considerably milder standard than probable cause. 431 U.S. at 612-13, 97 S.Ct. 1972. Substantial quantities of narcotics are imported into the United States from Thailand, and it is reasonable to suspect that a crated package like the one in controversy contains contraband. Therefore, the package was lawfully opened, and the mere insertion of the devices did not violate any Fourth Amendment right. Such rights, we recognize, easily can be violated by the installation of beepers, but this is not such a case.

The actual use of the devices, providing continued surveillance of the package and indicating when it was opened, presents a different problem. Electronic tracking devices continually broadcast "here I am" and when appropriate "the package has been opened." United States v. Holmes, 521 F.2d 859, 865 n.12 (5th Cir. 1975), Aff'd en banc by an evenly divided court,537 F.2d 227 (5 Cir. 1976). This intrusion, though, is slight and is not an impermissible search. Transmitting the package's location is merely an aid to what can be accomplished by visual surveillance. Permissible techniques of surveillance include more than the five senses of officers and their unaided physical abilities. Binoculars, dogs that track and sniff out contraband, searchlights, fluorescent powders, automobiles and airplanes, burglar alarms, radar devices, and bait money contribute to surveillance without violation of the Fourth Amendment in the usual case. ¹ On the other hand, wiretaps, breaking and entering, and many other searches and seizures fall on the other side of the line. The issue before us is whether the mere presence of the beeper, it having been attached without violating the Fourth Amendment, sufficiently resembles a wiretap to require the "antecedent justification" that a warrant would provide. We hold that it does not. We acknowledge that a beeper which said "the package is being opened" And related much more might well be considered equivalent to a wiretap. However, a beeper which says no more than "the package is being opened" does not constitute an intrusion entitled to the protection of Katz. It is but another surveillance aid previously affixed to the package without violating the Fourth Amendment. It no more violates the Fourth Amendment than would the use of binoculars designed for night by an officer located on the roof of a building whose owner had given him permission to enter, ascend, and survey.

III.

Lovejoy's Consent to Search the Basement.

Dubrofsky contends that Ms. Lovejoy did not voluntarily consent to the search of her basement and that she had no authority to consent to that search. We disagree with both these arguments.

It was found at the suppression hearing that Ms. Lovejoy gave a knowing and voluntary consent to search the basement. Findings of fact made at a suppression hearing will be overturned on appeal only if clearly erroneous. United States v. Chase, 503 F.2d 571, 572-73 (9th Cir. 1974), Cert. denied, 420 U.S. 948, 95 S.Ct. 1332, 43 L.Ed.2d 427 (1975). See also Campbell v. United States, 373 U.S. 487, 493, 83 S.Ct. 1356, 10 L.Ed.2d 501 (1963); United States v. Welp, 469 F.2d 688 (9th Cir. 1972). We find nothing in the record to indicate that the findings of the magistrate at the suppression hearing are clearly erroneous, and therefore hold that Ms. Lovejoy's consent was voluntary.

Dubrofsky's argument that Ms. Lovejoy had no authority to consent to the search also fails. Authority justifying consent to search need only rest on mutual use of the property. United States v. Gulma, 563 F.2d 386, 389 (9th Cir. 1977). A party who has a key to the premises and access throughout the residence can also give a valid consent to search. United States v. Green, 523 F.2d 968 (9th Cir. 1975). See also United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974). As the permanent resident of the house, Ms. Lovejoy more than meets these minimum requirements for authority to consent to a search.

Dubrofsky urges that Chapman v. United States, 365 U.S. 610, 81 S.Ct. 776, 5 L.Ed.2d 828 (1961) and Stoner v. California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964) are controlling. These cases involved hotel and apartment searches authorized by clerks and landlords and have no effect here. There the focus was on an owner relinquishing control over a section of the premises to a business tenant. The facts here are very different. Ms. Lovejoy never relinquished control over the basement. She had valid authority to consent to the search.

IV.

Sufficiency of the Affidavit Supporting the Search Warrant.

Dubrofsky next argues that the warrant to search his house was invalid because it was insufficiently supported by Special Agent Stewart's affidavit.

Special Agent Stewart's affidavit supporting the request for the warrant recited the details of Dubrofsky's arrest and the events surrounding it. An additional sworn deposition requested that the warrant also include a search for heroin or other controlled substances, narcotics paraphernalia, passports, and evidence of Dubrofsky's residence. A warrant was issued authorizing a search and seizure of these items at Dubrofsky's home.

A search warrant may not rest upon mere affirmance or belief without disclosure of supporting facts or circumstances. Nathanson v. United States, 290 U.S. 41, 47, 54 S.Ct. 11, 78 L.Ed. 159 (1933). Affidavits in support of a warrant, however, should be...