U.S. v. Karo
| Decision Date | 20 June 1983 |
| Docket Number | 81-1902,Nos. 81-1899,s. 81-1899 |
| Citation | 710 F.2d 1433 |
| Parties | UNITED STATES of America, Plaintiff-Appellant, v. James Connors KARO, Richard Miles Horton, William Robertson Harley, Michael Gaylord Steele, Evan Roth, Gene R. Rhodes, Defendants-Appellees. to 81-1906. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Richard J. Smith, Asst. U.S. Atty., Albuquerque, N.M. (Don J. Svet, William L. Lutz, U.S. Attys., Albuquerque, N.M., and James F. Blackmer, Asst. U.S. Atty., Albuquerque, N.M., with him on the briefs), for plaintiff-appellant.
Nancy Hollander of Freedman, Boyd & Daniels and Reber Boult, Asst. Federal Public Defender, Albuquerque, N.M. (James Beam and Roger Bargas, Albuquerque, N.M., with them on the briefs), for defendants-appellees Karo, Steele, Roth, and Rhodes.
Charles Louis Roberts, El Paso, Tex. (William Marchiondo, Albuquerque, N.M., and Joseph Abraham, Jr., El Paso, Tex., with him on the briefs), for defendants-appellees Horton and Harley.
Before McWILLIAMS, LOGAN and SEYMOUR, Circuit Judges.
This appeal arises from an action in which defendants James Karo, Richard Horton, William Harley, Michael Steele, Evan Roth, and Gene Rhodes were charged with conspiracy to possess cocaine with intent to distribute it, a violation of 21 U.S.C. Sec. 846, and all defendants except Rhodes were charged with possession of cocaine with intent to distribute it, in violation of 21 U.S.C. Sec. 841(a)(1). The defendants filed a joint motion to suppress evidence against them, claiming that the evidence was obtained in violation of their Fourth Amendment rights. The government had obtained an order authorizing the installation of an electronic tracking beacon (beeper) in a can of ether ordered by Karo, Horton, and Harley through a government informant. Government agents had installed the beeper and tracked the ether over a period of five months, during which the can had come to rest in four homes and two rented storage lockers. Using the information obtained from beeper and other surveillance, government agents obtained a search warrant for the last residence to which the ether was taken, where they seized substantial incriminating evidence. The district court held that the order authorizing the installation of the beeper was invalid because the government made deliberate misrepresentations in the affidavits seeking the order. The court suppressed all the evidence obtained from the search of the residence as fruit of illegal monitoring.
The issues on appeal are (1) whether the government's appeal was timely filed; (2) whether the government was required to obtain a search warrant to install the beeper and use it to monitor movements of the can of ether; (3) if the warrantless use of the beeper was illegal, whether the evidence seized under the search warrant for the residence must be suppressed; and (4) whether the district court erred in suppressing the evidence as to all defendants.
The government must file its notice of appeal within thirty days after entry of the judgment or order from which it appeals. "A judgment order is entered within the meaning of this subdivision when it is entered in the criminal docket." Fed.R.App.P. 4(b). A motion to reconsider extends the time for filing a notice of appeal only if the motion is filed within the thirty days allowed for filing a notice of appeal. The notice of appeal must then be filed within thirty days after the denial of the motion to reconsider. United States v. Martinez, 681 F.2d 1248, 1253 (10th Cir.1982).
In the instant case the judge stated in open court on May 12, 1981 that the motion to suppress would be granted. A notation of the ruling was made on the docket that day. The judge followed with a written order suppressing the evidence; the written order was dated and noted on the docket on May 22, 1981. The government's motion for reconsideration was timely if measured from May 22, but was not timely if measured from May 12. The time allowed for appeal begins to run " '[w]hen the trial judge acts in a manner which clearly indicates his intention that the act shall be the final one in [the] case, and a notation of the act has been entered on the docket.' " United States v. Martinez, 681 F.2d at 1252 (quoting Rubin v. United States, 488 F.2d 87, 88 (5th Cir.1973)). We believe that the May 22 entry rather than the May 12 entry controls because when the judge made his oral declaration he stated that a written order would be entered. See United States v. Santia-Manriquez, 609 F.2d 1162 (5th Cir.1980); United States v. Samango, 607 F.2d 877, 880 (9th Cir.1979); United States v. St. Laurent, 521 F.2d 506, 511 (1st Cir.1975), cert. denied, 423 U.S. 1049, 96 S.Ct. 775, 46 L.Ed.2d 637 (1976); see also Carnes v. United States, 279 F.2d 378 (10th Cir.1960). Therefore, the government's motion to reconsider and subsequent notice of appeal were timely.
The government does not appeal the district court's finding that the order authorizing the beeper was invalid; therefore, the activity in this case must be treated as warrantless installation and monitoring. The government argues that no warrant was needed. Two claims are advanced by the government to support this argument: that the defendants had no expectation of privacy in the can of ether to which the beeper was affixed because the ether was contraband, and that any intrusion from the installation or monitoring of the beeper was too minimal to implicate the warrant requirement.
Ether is not a controlled substance, but the government argues that because the ether was to be used to produce cocaine it can be considered contraband. While courts generally recognize that a person does not have a reasonable expectation of privacy in or right to possess contraband, see, e.g., United States v. Washington, 586 F.2d 1147, 1154 (7th Cir.1978); United States v. Pringle, 576 F.2d 1114, 1119 (5th Cir.1978); United States v. Emery, 541 F.2d 887, 889 (1st Cir.1976), they have been unwilling to extend this rule to objects that are rightfully possessed but are suspected of use in criminal activity, see, e.g., United States v. Knotts, 662 F.2d 515, 517 (8th Cir.1981), rev'd on other grounds, --- U.S. ----, 103 S.Ct. 1081, 75 L.Ed.2d 55 (1983); United States v. Bailey, 628 F.2d 938, 944 (6th Cir.1980); United States v. Moore, 562 F.2d 106, 111 (1st Cir.1977), cert. denied, 435 U.S. 926, 98 S.Ct. 1493, 55 L.Ed.2d 521 (1978). We agree that the suspicion that noncontraband material might be used in criminal activity does not turn it into contraband. Therefore, the defendants had a legitimate expectation of privacy in the can of ether.
The government's claims that the installation and monitoring of the beeper were not unlawful searches or seizures are much more difficult issues. Three of the defendants--Karo, Horton, and Harley--ordered ten five-gallon cans of ether from a government informant, Carl Muehlenweg. Muehlenweg alerted Drug Enforcement Administration agents about the shipment and told the agents that the ether would be used in the production of cocaine. With Muehlenweg's consent government agents substituted their own can with a beeper installed in it for one of the cans in the shipment. The can containing the beeper was delivered to Muehlenweg's residence in Albuquerque, New Mexico. On September 20, 1980 Karo picked up the ether from Muehlenweg's residence. Using both visual and beeper surveillance, DEA agents traced the ether to Karo's home. An agent subsequently monitored the beeper to verify that the ether was still in Karo's residence. Later that same day the ether was transferred to Horton's home in the same city. No agent saw the transfer; the new location was ascertained by use of a direction finder, which picked up the beeper signal. A DEA agent also walked the public sidewalk near Horton's residence and smelled the odor of ether in the immediate vicinity of the house.
Two days later, monitoring revealed that the ether was no longer at Horton's house. DEA agents had not observed any movement. They used the direction finder to locate the ether can in a third residence, the home of Horton's father. The following day, the beeper was no longer transmitting from Horton's father's home. By using the direction finder, the agents were able to trace the can to a commercial self-storage facility in Albuquerque. When they could not trace the can to a particular locker, they obtained a subpoena and determined that Horton and Harley shared the rental expenses on locker 143. The agents verified that locker 143 contained the ether by walking to the front of that locker and sniffing the odor emanating from the cans. On October 8, 1980, DEA agents obtained an order authorizing installation of an entry tone alarm into the door jamb of locker 143. While opening the door of that locker to install the alarm they observed the cans containing the ether. Thereafter the agents apparently relied upon the entry tone alarm, which malfunctioned. They did not learn of the removal of the contents of the locker until October 16, when the manager of the storage facility informed them that the cans had been removed.
Using their direction finder, the agents picked up the beeper signal three days later at another self-storage facility in Albuquerque. Through discussions with the facility manager, the can of ether was traced to locker 15, which had been rented by Horton and Harley using an alias. The agents obtained an order permitting the installation of an entry tone alarm for this locker, but instead, with the permission of the manager, installed in a separate locker a closed circuit video camera focused on the door of locker 15. This camera was monitored by DEA agents, who observed Horton and Harley visiting the locker. During this time the order authorizing the beeper lapsed and was extended by court order a few days later. Finally, on February 6, 1981, DEA agents observed by means of the video camera that the...
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