U.S. v. Bruneau

• Decision Date: 01 March 1979
• Docket Number: Nos. 78-1526,78-1550,s. 78-1526
• Citation: 594 F.2d 1190
• Parties: UNITED STATES of America, Appellee, v. Dale David BRUNEAU, Appellant. UNITED STATES of America, Appellee, v. Jeffrey Charles KOHNER, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1190

594 F.2d 1190

57 A.L.R.Fed. 632

UNITED STATES of America, Appellee, v. Dale David BRUNEAU, Appellant.

UNITED STATES of America, Appellee, v. Jeffrey Charles KOHNER, Appellant.

Nos. 78-1526, 78-1550.

United States Court of Appeals,

Eighth Circuit.

Submitted Nov. 13, 1978.

Decided March 1, 1979.

Rehearing and Rehearing En Banc Denied March 21 and 27, 1979.

Andre J. Zdrazil, St. Paul, Minn., for appellant Bruneau.

Joseph S. Friedberg, Minneapolis, Minn., for appellant Kohner.

Richard E. Vosepka, Jr., Asst. U. S. Atty., Minneapolis, Minn., for appellee; Andrew W. Danielson, U. S. Atty., Minneapolis, Minn., on the brief; Jennifer Wellner, Legal Intern, on the brief in No. 78-1526.

Before STEPHENSON, HENLEY and McMILLIAN, Circuit Judges.

McMILLIAN, Circuit Judge.

Appellants, Dale David Bruneau and Jeffrey Charles Kohner, appeal from their convictions of conspiracy to import marijuana into the United States in violation of 21 U.S.C. §§ 952(a) and 963. Appellant Bruneau also appeals his conviction of importing For reversal Bruneau argues that the trial court erred: (1) in denying him standing to challenge the warrantless search of the Commander airplane; (2) in denying his motion to suppress the evidence secured by the transponder placed on the Commander airplane; and (3) in denying his motion to disclose the identity of the informants who testified as government witnesses at trial. Appellant Kohner argues that there was insufficient evidence to support the jury's conclusion that he was a member of the conspiracy to import marijuana. We find no basis for any of these allegations of error and affirm the judgments of conviction entered by the district court. ²

marijuana in violation of 21 U.S.C. § 952(a). ¹

Between May 1975, and May 1976, William Lloyd David Cooper masterminded an extensive scheme to import large quantities of marijuana from Mexico into the United States. Single and twin engine airplanes, which could carry up to one ton of marijuana, were used for the smuggling. Cooper hired numerous individuals as pilots and arranged for the airplanes, loaded with marijuana cargo, to land in various locations including Phoenix, Arizona; El Paso, Texas; Sandstone, Minnesota; and Alaska.

On February 17, 1976, an Aero Commander airplane, allegedly flown by Bruneau, was found at the Sandstone, Minnesota, airport with marijuana debris scattered in and around it. Federal complaints and arrest warrants were issued that day and on May 17, 1976, a twenty-eight count indictment was returned against fifteen defendants, including Cooper, Bruneau and Kohner. Cooper pled guilty to three counts of the indictment including conspiracy to import marijuana. Prior to sentencing, however, Cooper became a fugitive and remains so to date. The joint trial of Kohner, Bruneau and three other defendants commenced on April 10, 1978. All were convicted of conspiring to import marijuana (and in Bruneau's case, of importing marijuana). Only Kohner and Bruneau appeal their convictions.

DALE DAVID BRUNEAU

Appellant Bruneau's first allegation of error is that the trial court improperly denied him standing to challenge the February 17, 1976, warrantless search of the Commander by Federal Drug Enforcement Administration (DEA) agents. As stated, on February 17, DEA agents found the Commander at the Sandstone Airport with warm engines and with marijuana debris scattered about. This evidence was used to support the importing marijuana count against Bruneau.

In order to maintain a motion to suppress evidence on the ground that the evidence was seized in an illegal search, a defendant must have a recognizable interest in the premises searched. The Supreme Court has identified these interests as: (1) being "on the premises at the time of the contested search and seizure," (2) having a "proprietary or possessory interest in the premises," and (3) being "charged with an offense that includes, as an essential element of the offense charged, possession of the seized evidence at the time of the contested search and seizure." Brown v. United States, 411 U.S. 223, 229, 93 S.Ct. 1565, 1569, 36 L.Ed.2d 208 (1973); Simmons v. United States, 390 U.S. 377, 390, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); Jones v. United States, 362 U.S. 257, 261, 80 S.Ct. 725, 4 L.Ed.2d 697 (1959). Bruneau attempts to bring himself within these guidelines by alleging that he has a possessory interest in the Aero Commander.

We find his argument incredulous. According to appellant Bruneau, he gave Bill Cooper $10,000 to purchase an airplane for him, and Cooper purportedly used this money to help purchase the Commander. Although Bruneau was able to document Appellant Bruneau's second allegation of error is that the trial court improperly denied his motion to suppress the evidence secured by the transponder which was placed in the Aero Commander airplane used by Cooper and his pilots.

that he obtained a $10,000 loan from his bank, he could not show who this money went to or for what. Bruneau's alleged interest in the airplane is not shown on any of the ownership papers for the airplane. Because any reasonable person doing legitimate business would insist upon at least this indicia of his investment, we cannot believe Bruneau's assertion of ownership. Therefore, we affirm the trial court's finding that Bruneau does not have standing to challenge the search of the Commander. ³

On February 4, 1976, a Special Agent of the DEA submitted an Affidavit and Statement of Probable Cause to the United States Magistrate in Phoenix. ⁴ The DEA requested and secured an order authorizing placement of a transponder in the Commander on the ground that the Commander was being used to facilitate crimes against the United States. The DEA agents installed the transponder with the permission of its present owner-seller before Cooper paid the balance of the purchase price or took possession of the plane. Using the transponder, the agents were able to track the Commander as it made trips from Minnesota to the United States-Mexican border and into Mexico, during the period of February 12-17, 1976.

Appellant Bruneau challenges the above statement of probable cause on the ground that the informants supplying information about Cooper's activities were not reliable and on the ground there was no evidence that the Commander was being used for illegal activities. The question underlying this challenge is whether installation and use of a transponder to trace an airplane is a search within the fourth amendment. If it is not a search, there is no requirement of a court order supported by probable cause. Because we hold that tracking an airplane with a transponder is not a search within the fourth amendment, we do not address the alleged problems appellant Bruneau raises in the statement of probable cause.

A transponder is an electronic tracking device commonly known as a "beeper." It is "a small radio transmitter that broadcasts only a signal; it does not record any sounds or transmit conversations. ( ⁵ The In addressing the issue of whether use of a transponder constituted a search, we adopt the Ninth Circuit's "bifurcated analytical framework" which examines the fourth amendment implications of the installation or attachment of the beeper separately from the fourth amendment implications of monitoring its signals. United States v. Miroyan, 577 F.2d 489, 492 (9th Cir. 1978); See also Note, "Electronic Tracking Devices & Privacy: See No Evil, Hear No Evil, But Beware of Trojan Horses," 9 Loy.Chi.L.J. 227, 236 (1977).

signal that the beeper emits can be monitored by directional finders, thereby enabling officers to determine the beeper's location." Carr, "Electronic Beepers", 4 Search & Seizure L.Rep., No. 4 (April 1977).

We agree with the Ninth Circuit that the installation or attachment of a beeper could potentially violate the fourth amendment. No fourth amendment rights were violated by the installation in the present case, however, because "(t)he record clearly establishes that the transponder was installed with the express consent of the aircraft's owner while the airplane was within his complete dominion." United States v. Miroyan, supra, 577 F.2d at 493. On February 4, 1976, DEA Agents installed the transponder with its present owner's permission. On February 5, 1976, Cooper assumed ownership.

The next question, however, whether monitoring the location of an airplane by Use of a transponder is a search within the fourth amendment, is more difficult. Numerous courts have addressed this issue in various contexts, such as placement of a transponder on automobiles, on aircraft, and in packages sold or given to defendants. ⁶

The Ninth Circuit stands alone in holding that use of a beeper to follow an automobile or an airplane is not a search within the fourth amendment. United States v. Miroyan, supra, 577 F.2d at 492 (airplane); United States v. Curtis, 562 F.2d 1153, 1156 (9th Cir. 1977) (airplane); United States v. Pretzinger, 542 F.2d 517, 520 (9th Cir. 1976) (airplane); United States v. Hufford, 539 F.2d 32, 34 (9th Cir.), Cert. denied 429 U.S. 1002, 97 S.Ct. 533, 50 L.Ed.2d 614 (1976) (automobile). Thus far, the only courts to explicitly rule to the contrary in published opinions are two district courts and these decisions have been discredited somewhat on appeal. United States v. Bobisink, 415 F.Supp. 1334, 1337 (D.Mass.), Aff'd sub nom. United States v. Moore, 562 F.2d 106 (1st Cir. 1976); United States v. Martyniuk, 395 F.Supp. 42, 44 (D.Or.1975), Aff'd in part and rev'd in part sub nom. United States v. Hufford, supra, 539 F.2d 32. This court in United States v. Frazier, 538 F.2d 1322, 1324 (8th Cir. 1976), ⁷ and the Fifth Circuit Although it did not explicitly say so, the First Circuit apparently holds that, at least when the transponder is used on an automobile, the "automobile exception" to the warrant requirement applies. United States v. Moore, supra, 562 F.2d at 112-113....