U.S. v. Bailey

• Decision Date: 31 July 1980
• Docket Number: No. 79-5092,79-5092
• Citation: 628 F.2d 938
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Clark BAILEY and Carolyn Gomez, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 938

628 F.2d 938

UNITED STATES of America, Plaintiff-Appellant, v. Clark BAILEY and Carolyn Gomez, Defendants-Appellees.

No. 79-5092.

United States Court of Appeals Sixth Circuit.

Argued Oct. 9, 1979.

Decided July 31, 1980.

James K. Robinson, U. S. Atty., James E. Papelian, Asst. U. S. Atty., Detroit, Mich., for plaintiff-appellant.

Eric L. Clay, Detroit, Mich., Daniel Blank, Birmingham, Mich., for defendants-appellees.

Before CELEBREZZE and KEITH, Circuit Judges, and PHILLIPS, Senior Circuit Judge.

HARRY PHILLIPS, Senior Circuit Judge.

This case of first impression for our Circuit requires us to review a district court's order suppressing evidence in a drug prosecution where the Government used a "beeper" ¹ to monitor the location of a drum of chemicals. Although the beeper does nothing more than reveal its own location, we conclude that its use, on the facts of this case, violated the fourth amendment.

I

On April 25, 1978, in Hartford, Connecticut, an informer advised a Drug Enforcement Administration (DEA) agent that Carolyn Ann Gomez was attempting to purchase chemicals in order to manufacture phencyclidine, or PCP, a Schedule II Controlled Substance. The informer subsequently introduced DEA undercover Agents Terrence Sprankle and Gary Sloboda who posed as suppliers of precursor chemicals to Carolyn Gomez. After a number of conversations, both in person and by telephone, the agents agreed to deliver the requested chemicals to Ms. Gomez on Sunday, May 7, 1978, in Detroit, Michigan. These chemicals were the property of the Government.

On May 5, 1978, the Government filed an affidavit with a United States Magistrate of the Eastern District of Michigan concerning the aforementioned dealings. The Magistrate issued a warrant authorizing DEA to install a beeper in one of the drums of chemicals to aid in the surveillance and investigation of the suspected clandestine laboratory. The beeper was installed before the chemicals were delivered to Ms. Gomez on May 7, 1978.

Immediately after the delivery, defendant Gomez was surveilled visually to an apartment complex at 7010 E. Warren, Detroit, Michigan. DEA agents observed two males take the chemicals into the apartment complex. Monitoring of the beeper confirmed that the drum was within this apartment complex.

Two days later during a routine check, an agent discovered that no signal was being transmitted from the Warren complex. On the following day, May 11, the device was located in another apartment building at 11750 Martindale North, Detroit, Michigan. DEA agents gained access to this building through a ruse and found the signal was emanating from a locked storage room in the basement of the complex. ²

From May 11, 1978, to July 14, 1978, without entering the apartment complex, agents made daily checks of the signal. These checks indicated no movement of the transmitter from the Martindale address.

By July 14 the beeper's signal was weakening. The Government filed an affidavit and obtained a second warrant authorizing agents to enter the Martindale complex, pinpoint the location of the drum, search the identified room or area, and seize the homing device and chemicals. The search warrant was executed on July 17, 1978.

Defendants Clark Bailey and Carolyn Ann Gomez were indicted for conspiracy to manufacture phencyclidine (PCP), a Schedule II Controlled Substance, a violation of 21 U.S.C. §§ 841(a)(1) and 846. Defendants filed a joint motion to suppress evidence discovered as a result of the beeper surveillance, on the ground that both warrants were invalid because they contained no time limits. On February 20, 1979, the District Court, the Honorable James P. Churchill presiding, granted defendants' motion to exclude the evidence, holding that warrants without time limitations violate federal statutory authority implementing the fourth amendment. ³ The memorandum opinion of Judge Churchill is published at 465 F.Supp. 1138 (E.D.Mich.1979).

The Government appeals the order of Judge Churchill granting the motion to suppress the evidence. We affirm.

II

The starting point for the fourth amendment analysis in this case is Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Katz presented the question whether warrantless electronic monitoring of an individual's telephone conversations violates the fourth amendment. The Government had persuaded the Ninth Circuit that there was no violation because federal agents did not intrude physically into the telephone booth from which Katz made the calls. The Supreme Court rejected this trespass analysis, saying:

For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. See Lewis v. United States, 385 U.S. 206, 210 (87 S.Ct. 424, 427, 17 L.Ed.2d 312); United States v. Lee, 274 U.S. 559, 563 (47 S.Ct. 746, 748, 71 L.Ed. 1202). But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected, 389 U.S. at 351, 88 S.Ct. at 511.

Finding the Government's activities violated Katz's justifiable expectation of privacy, the Court held the warrantless eavesdropping was a search for fourth amendment purposes.

Under Katz, the question whether Government activities in a case constitute a search or seizure is inextricably intertwined with the question whether they violate an individual's legitimate expectation of privacy in that particular case. If the individual legitimately expected the information or material the Government acquired to remain private, the act of the Government acquiring that information or material constitutes a search or seizure for fourth amendment purposes. Conversely, unless it invades protected individual privacy, a governmental intrusion is not a search or seizure.

We consider it irrelevant whether a particular governmental intrusion is classified as a "search" or as a "seizure." What matters is whether it violates an individual's legitimate expectation of privacy. Therefore, it is not necessary to speculate whether a beeper "searches" or "seizes" anything. Furthermore, the fourth amendment does not overlook de minimis intrusions. An intrusion is not de minimis if it violates an individual's legitimate expectation of privacy. ⁴ The Government's argument that beeper surveillance is too minor an intrusion to constitute a search begs the question: the intrusion is minor only if it does not violate protected individual privacy.

The concurring opinion of Justice Harlan in Katz summarized the two part standard the Court has used to analyze the privacy interest of an individual in a particular situation:

As the Court's opinion states, "the Fourth Amendment protects people, not places." The question, however, is what protection it affords to those people. Generally, as here, the answer to that question requires reference to a "place." My understanding of the rule that has emerged from prior decisions is that there is a twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as "reasonable." Thus a man's home is, for most purposes, a place where he expects privacy, but objects, activities, or statements that he exposes to the "plain view " of outsiders are not "protected" because no intention to keep them to himself has been exhibited. On the other hand, conversations in the open would not be protected against being overheard, for the expectation of privacy under the circumstances would be unreasonable. Cf. Hester v. United States, (265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898) supra.

389 U.S. at 361, 88 S.Ct. at 516. (Harlan, J., concurring). (Emphasis added.)

Under the decisions of the courts after Katz, the fourth amendment challenge of an individual may fall short in either of two situations. First, where he knowingly has exposed information to public scrutiny, the fourth amendment does not apply. See, e. g., United States v. Miller, 425 U.S. 435, 442-43, 96 S.Ct. 1619, 1623-1624, 48 L.Ed.2d 71 (1976) (bank records); Cardwell v. Lewis, 417 U.S. 583, 94 S.Ct. 2464, 41 L.Ed.2d 325 (1974) (paint sample taken from the exterior of a car parked in a public lot); Reporters Comm. for Freedom of the Press v. American Tel. & Tel., 593 F.2d 1030 (D.C.Cir.1978), cert. denied, 440 U.S. 949, 99 S.Ct. 1431, 59 L.Ed.2d 639 (1979) (records of long distance telephone calls); United States v. Crowell, 586 F.2d 1020 (4th Cir. 1978), cert. denied, 440 U.S. 959, 99 S.Ct. 1500, 59 L.Ed.2d 772 (1979) (garbage). Second, even where an individual has exhibited a subjective expectation that certain information will remain private, the fourth amendment will not apply unless society is prepared to recognize that expectation as legitimate. See, e. g., Rakas v. Illinois, 439 U.S. 128, 143, 99 S.Ct. 421, 430, 58 L.Ed.2d 387 (1978), where the Court said in note 12:

Obviously, however, a "legitimate" expectation of privacy by definition means more than a subjective expectation of not being discovered. A burglar plying his trade in a summer cabin during the off season may have a thoroughly justified subjective expectation of privacy, but it is not one which the law recognizes as "legitimate".

See, also, United States v. Botero, 589 F.2d 430 (9th Cir. 1978), cert. denied, 441 U.S. 944, 99 S.Ct. 2162, 60 L.Ed.2d 1045 (1979) (beeper in illegal drugs); United States v. Washington, 586 F.2d 1147, 1154 (7th Cir. 1978) (same). A defendant who asserts a fourth amendment challenge must meet both the subjective expectation and the legitimacy criteria.

Katz provides an analytic framework that is readily adaptable to the beeper problem. Two main questions need to be asked: (1) Did the Government violate the defendant's legitimate expectation of privacy when it installed the beeper? (2) Did monitoring the beeper violate the...