U.S. v. Michael

• Citation: 645 F.2d 252
• Decision Date: 11 May 1981
• Docket Number: No. 79-2679,79-2679
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Barry Dean MICHAEL, a/k/a Mike Thompson, a/k/a Mike Johnson, Defendant- Appellee.

Page 252

645 F.2d 252

UNITED STATES of America, Plaintiff-Appellant, v. Barry Dean MICHAEL, a/k/a Mike Thompson, a/k/a Mike Johnson,

Defendant- Appellee.

No. 79-2679.

United States Court of Appeals, Fifth Circuit.

May 11, 1981.

William S. Sutton, Asst. U. S. Atty., Atlanta, Ga., Ann T. Wallace, Appellate Sec., Criminal Div., Washington, D. C., for plaintiff-appellant.

Al Horn, Atlanta, Ga., for defendant-appellee.

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

Before GODBOLD, Chief Judge, and BROWN, AINSWORTH, CHARLES CLARK, RONEY, GEE, TJOFLAT, HILL, FAY, RUBIN, VANCE, KRAVITCH, FRANK M. JOHNSON, Jr., GARZA, HENDERSON, REAVLEY, POLITZ, HATCHETT, ANDERSON, RANDALL, TATE, SAMUEL D. JOHNSON, THOMAS A. CLARK, and JERRE S. WILLIAMS, Circuit Judges. ^*

AINSWORTH, Circuit Judge:

This criminal prosecution requires us to determine the appropriate standard for the warrantless installation of an electronic tracking device (a "beeper") on the exterior of a vehicle parked in a public place. The question remains one of first impression for this circuit because of our equally divided vote when considering the same issue in United States v. Holmes, 537 F.2d 227 (5th Cir. 1976) (en banc); see id. at 228 (Ainsworth, J., dissenting). As in Holmes, this case was placed en banc because of its exceptional importance. ¹

Defendant-appellee Barry Dean Michael was indicted on two counts: unlawfully manufacturing and possessing with the intent to distribute a Section II Controlled Substance, methylenedioxyamphetamine (MDA), and conspiring to distribute MDA in violation of 21 U.S.C. §§ 841(a)(1) & 846. Michael moved to suppress certain evidence as unconstitutionally seized. The district court, relying on the panel opinion in Holmes, ² granted Michael's motion to suppress with respect to evidence seized from a warehouse pursuant to a warrant, but which DEA agents had discovered through the warrantless installation of a beeper on the exterior of a van which Michael had rented. R. at 118-120. A panel of this court, relying both on its independent analysis and on the Holmes panel opinion, ³ affirmed the district court. United States v. Michael, 622 F.2d 744 (5th Cir. 1980). The court voted to rehear this case en banc, United States v. Michael, 628 F.2d 931 (5th Cir. 1980), thus vacating the panel opinion. See Fifth Circuit Local Rule 17. We reverse the judgment of the district court.

I. THE FACTS

In early 1978, an employee of Scientific Products, a chemical supply house in Atlanta, Georgia, notified Drug Enforcement Administration (DEA) agents that Andrew Welch was purchasing large quantities of glassware and equipment of the type used in clandestine drug laboratory operations. Upon further investigation, a team of agents led by Agent James Sweat learned that Welch was also purchasing chemicals from Burris Chemical Company in Atlanta. In particular, they discovered that Welch had purchased a barrel of acetone and a barrel of formic acid in December 1977. Both acetone and formic acid can be used to manufacture MDA.

On August 8, 1978, an employee of Burris Chemical Company notified the DEA that a "Mike Thompson" had purchased a large quantity of acetone, 20 gallons, that day and had made several previous purchases. About the same time, Agent Sweat learned that "Mike Thompson" had returned the empty acetone drum from Welch's December 1977 purchase and had directed the deposit be sent to Welch. Also early in August, Burris employees told Agent Sweat that on July 20 Welch had purchased some muriatic acid, another chemical used in the manufacture of MDA. ⁴ At this time, Agent Sweat told the Burris employee to let Sweat know if "Mike Thompson" ever ordered any more chemicals.

At lunch time on August 10, the Burris employee contacted Agent Sweat to tell him "Mike Thompson" had ordered another drum of acetone and that "Thompson" usually picked up his order within the hour. Agent Sweat and his partner arrived at Burris before "Thompson" and saw "Thompson" load the acetone into a van. ⁵ The agents followed the van by visual surveillance until "Thompson" parked in a lot adjoining a pizza restaurant and went inside. While "Thompson" was inside the restaurant, Agent Sweat's partner, Agent Smith, installed a beeper on the exterior of the van without first obtaining a warrant.

Further investigation by the DEA established that "Mike Thompson" was an alias used by appellee Barry Dean Michael. Subsequent monitoring of the beeper placed on Michael's van ultimately led the DEA agents to a warehouse where, pursuant to a warrant, they seized the chemicals, equipment, and quantities of MDA which are the subject of Michael's suppression motion.

II. THE LAW

We look to the fourth amendment to determine whether the facts in this case, as related above, provide a sufficient basis for the warrantless installation of a beeper on Michael's van. The fourth amendment, in pertinent part, protects people's "persons, houses, papers, and effects, against unreasonable searches and seizures." Although originally viewed as protecting property rights of individuals, the Supreme Court has now rejected the idea that fourth amendment coverage turns on "arcane distinctions developed in property ... law." Rakas v. Illinois, 439 U.S. 128, 143, 99 S.Ct. 421, 430, 58 L.Ed.2d 387 (1978). Instead, the fourth amendment protects individuals from violations of their legitimate or reasonable expectations of privacy. See id.; Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 516, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring); Jones v. United States, 357 U.S. 493, 498, 78 S.Ct. 1253, 1256, 2 L.Ed.2d 1514 (1958). Expectation of privacy analysis is especially appropriate in cases like the instant one which involve an individual's rights with respect to an automobile. ⁶ In Cardwell v. Lewis, 417 U.S. 583, 591, 94 S.Ct. 2464, 2470, 41 L.Ed.2d 325 (1974) (plurality opinion), Justice Blackmun stated, "(I)nsofar as Fourth Amendment protection extends to a motor vehicle, it is the right to privacy that is the touchstone of our inquiry."

In addition, fourth amendment cases have recognized that the degree of intrusion into a suspect's privacy is relevant in deciding whether any of the suspect's constitutional rights have been infringed. Thus, "intrusions into the human body," because of their extremely invasive nature, require more justification to satisfy the fourth amendment, ⁷ than does a limited stop and frisk. ⁸ Likewise, the ransacking of a suspect's house in search of evidence requires more justification for the intrusion ⁹ than does the examination of a suspect's automobile to discover its vehicle identification number. ¹⁰ Applying this dual privacy and intrusiveness analysis to the facts of the instant case, we hold that the minimal intrusion involved in the attachment of a beeper to Michael's van, parked in a public place, was sufficiently justified so as to satisfy any of Michael's fourth amendment expectation of privacy concerns.

III. APPLICATION

We note that some members of the majority would hold that the installation of the beeper on the van is not a search or seizure at all, and thus does not implicate any fourth amendment interests. While we do not reject this view, we feel that under the facts presented, the installation of the beeper was permissible even if we assume the installation was a search. ¹¹ The facts known to the DEA agents at the time they placed the beeper were enough to give them a reasonable suspicion that Michael was engaged in criminal activity. That is to say, specific and articulable facts, together with rational inferences from those facts, reasonably warranted the agents in the belief ¹² that Michael was involved in the illicit manufacture of MDA. The agents had been told that Michael and Welch were associated. The agents had probable cause to believe Welch was manufacturing MDA, United States v. Michael, 622 F.2d 744, 745 n.4 (5th Cir. 1980), and the agents knew Michael had purchased chemicals consistent with the manufacture of MDA on several occasions. We are supported in our view that the facts establish reasonable suspicion in light of the panel's similar conclusion. Id. However, the district court found, "The evidence that was seized from the warehouse was the product of an unlawful search and therefore subject to exclusion," (R. at 118) since the DEA agents obtained no warrant to install the beeper which led them to the evidence. Likewise, the panel would have allowed warrantless use of the beeper only if both probable cause and exigent circumstances existed. United States v. Michael, supra at 752. We disagree with the district court and the panel and hold that reasonable suspicion is adequate to support warrantless beeper installation. ¹³

A. Privacy

First, as we have said, Michael's fourth amendment rights in this case turn upon his reasonable expectations of privacy. However, search and seizure cases involving vehicles have recognized that an individual's expectation of privacy in his automobile is less than in other property. The Supreme Court has stated:

But this Court has recognized significant differences between motor vehicles and other property which permit warrantless searches of automobiles in circumstances in which warrantless searches would not be reasonable in other contexts.

....

The answer lies in the diminished expectation of privacy which surrounds the automobile....

United States v. Chadwick, 433 U.S. 1, 12, 97 S.Ct. 2476, 2484, 53 L.Ed.2d 538 (1977); see also United States v. Foskey, 636 F.2d 517 (D.C. Cir. 1980). In this case, Michael's van was parked in plain view, in a public place. Michael drove the van on public roads during the daytime. As the Supreme Court said in Cardwell:

A car has little capacity for escaping public scrutiny. It travels public thoroughfares where its occupants and its contents are in plain view. (citation omitted) "What a person knowingly exposes to...