U.S. v. Cassity

• Decision Date: 31 October 1983
• Docket Number: 81-1566 and 81-1567,Nos. 81-1565,s. 81-1565
• Citation: 720 F.2d 451
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Larry Wayne CASSITY (81-1565), Billy Sword (81-1566), Stephen Gordon Lenk (81-1567), Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 451

720 F.2d 451

UNITED STATES of America, Plaintiff-Appellee, v. Larry Wayne CASSITY (81-1565), Billy Sword (81-1566), Stephen Gordon Lenk (81-1567), Defendants-Appellants.

Nos. 81-1565, 81-1566 and 81-1567.

United States Court of Appeals, Sixth Circuit.

Argued March 23, 1983.

Decided Oct. 31, 1983.

Edward Wishnow, Southfield, Mich. (court-appointed), for Cassity.

Thomas Rosender, argued, Pontiac, Mich. (court-appointed), for Sword.

Edward Wishnow, Southfield, Mich. (court-appointed), for Lenk.

Leonard R. Gilman, U.S. Atty., Maura D. Corrigan, Asst. U.S. Atty. (argued), Detroit, Mich., for plaintiff-appellee in all cases.

Before MARTIN and JONES, Circuit Judges, and BROWN, Senior Circuit Judge.

BOYCE F. MARTIN, Jr., Circuit Judge.

This case, before us for the second time, raises important fourth amendment issues. When first confronted with this case, this court was asked to consider, inter alia, whether the monitoring of an electronic homing transmitter (beeper) could ever amount to a search and seizure in fourth amendment terms. Citing United States v. Bailey, 628 F.2d 938, 943 (6th Cir.1980), a decision reached in the interim between trial and appeal of this case, we answered affirmatively. United States v. Cassity, et al. (Cassity I), 631 F.2d 461 (6th Cir.1980). Simultaneously we considered and answered the question of the validity of the warrants obtained by the police prior to the installation and monitoring of the beeper transmitters. We held the warrants invalid due to lack of time limits. However, finding ourselves without the benefit of an evidentiary record on the issue of the individual defendants' expectations of privacy and therefore unable to determine whether the challenged warrantless monitoring impinged upon the defendant's constitutional rights, we remanded the case to the lower court for further fact-finding.

On remand, the district court, 546 F.Supp. 611, after hearing evidence on the defendants' expectations of privacy, determined that three ¹ of the four had been the victims of unconstitutional searches. It declined to suppress evidence gleaned as a result of these searches, however, holding that the rule announced in Bailey should not be given retroactive effect. Accordingly, it affirmed the convictions. That decision is before us on appeal. We now reverse that decision.

I.

The facts are succinctly summarized in Cassity I.

These cases arose from the undercover investigative efforts of Special Agent John Graetz of the Drug Enforcement Administration (DEA). From April to August 1977, Agent Graetz posed as a supplier of precursor chemicals and laboratory glassware to Jay Cody, who is alleged to be the central figure in the conspiracy. Cody apparently coordinated the conspirators' operations, arranged to obtain necessary chemicals and equipment and delivered samples of amphetamine manufactured in the conspirators' clandestine laboratory.

Among the chemicals and equipment Agent Graetz delivered to Cody at various times were secreted three electronic homing devices, or beepers. Two were located in cans of precursor chemicals and one was hidden in a heating mantle. All three beepers were installed pursuant to search warrants issued by a United States Magistrate. However, none of the warrants contained a time limit.

Agent Graetz delivered the first beeper on July 11, 1977. By monitoring the beeper's signals, DEA agents traced the chemicals to defendant Cassity's home at 2803 Stair Street in Detroit. On July 15, the beeper's signals indicated the chemicals had been moved to defendant Sword's home at 1494 Calvary in Detroit. On July 28, Agent Graetz delivered the other two beepers, which also were monitored to Sword's home. On August 11, 1977, all three beepers were located in the basement of defendant Dean's home at 6344 Hanson in Detroit.

DEA agents monitored the beepers' signals until August 17. They observed all five defendants and Cody enter and leave the house at 6344 Hanson at various times during the monitoring. On three occasions during the beeper surveillance, Cody delivered samples of amphetamine allegedly produced by the conspirators.

On August 17, 1977, DEA agents executed a search warrant at 6344 Hanson. In the basement, they found a complete laboratory which expert testimony established was capable of producing amphetamine. The agents did not, however, find any trace of amphetamine on the premises. Investigation revealed that a number of chemical containers and pieces of laboratory equipment bore the fingerprints of defendants Lenk, Sword, Dean and Hines.

The defendants were indicted, along with Cody, for conspiring to manufacture and manufacturing amphetamine in violation of 21 U.S.C. Secs. 841(a)(1) and 846. The indictment also charged Cody with ten counts of possessing and distributing amphetamine. However, Cody remained a fugitive and was not tried with the appellants.

The case went to trial on July 18, 1978. The Government's case against the appellants consisted primarily of testimony that all the appellants had been observed in and around the laboratory's location (Dean's home) the day of the search; that Cassity and Sword previously had stored precursor chemicals and laboratory equipment in their homes; that Hines had picked up chemicals and glassware left in a rented van by Agent Graetz; that Lenk was in the laboratory at the time of the search; and that fingerprints of four of the appellants were found on glassware in the laboratory. In addition, the Government introduced tape recordings of Cody's numerous telephone conversations with Agent Graetz, as well as the samples of amphetamine Cody had delivered to Graetz.

The jury convicted all five appellants of conspiracy and manufacturing amphetamine.

631 F.2d at 462-63.

Several issues are presented here. Defendants argue that the district court exceeded its mandate on remand when it considered the question of the retroactive application of the Bailey decision to the facts of this case. Moreover, they argue that the manner in which the court resolved the question was erroneous. The government disagrees and, additionally, asserts that the lower court erroneously concluded that defendants Sword, Lenk, and Cassity had successfully proven legitimate expectations of privacy in those areas subject to beeper monitoring.

Shortly before oral argument in this case, the Supreme Court delivered an opinion in United States v. Knotts, --- U.S. ----, 103 S.Ct. 1081, 75 L.Ed.2d 55 (1983). Because Knotts concerned warrantless beeper monitoring, we asked the parties to brief the decision. We have received those briefs, considered the question, and now hold, as a preliminary matter, that Knotts does not affect our decisions in either Bailey or Cassity I or control our resolution of the issues here.

In Knotts, the police utilized electronic beeper surveillance to track the movement of chemicals in an automobile on an open highway and, when highway surveillance was interrupted, to locate the chemicals under a barrel outside a cabin on private property. The Court, reversing the court of appeals, held that the monitoring did not invade any legitimate expectation of privacy on the defendant's parts and, therefore, that there was neither a search nor a seizure in fourth amendment terms.

Although the opinion contains some sweeping language suggesting a broad expansion of search and seizure law, read as a whole Knotts does little more than apply established doctrine to an unconventional type of search. The majority relies on the "automobile exception" to the fourth amendment, see Cardwell v. Lewis, 417 U.S. 583, 94 S.Ct. 2464, 41 L.Ed.2d 69 (1974), and the open fields doctrine, see Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924), to validate the electronic tracking. Common to both concepts is the notion of diminished expectation of privacy in those things otherwise open to public inspection. The beeper, said the Court, revealed nothing more to the police than constitutionally permissible visual surveillance could have revealed.

Visual surveillance from public places along Petschen's route or adjoining Knotts' premises would have sufficed to reveal all of these facts to the police. The fact that the officers in this case relied not only on visual surveillance, but on the use of the beeper to signal the presence of Petschen's automobile to the police receiver, does not alter the situation. Nothing in the Fourth Amendment prohibited the police from augmenting the sensory faculties bestowed upon them at birth with such enhancement as science and technology afforded them in this case.

--- U.S. at ----, 103 S.Ct. at 1086, 75 L.Ed.2d at 63.

The use to which the police may put a beeper without first obtaining a warrant is "limited", however. Id. --- U.S. at ----, 103 S.Ct. at 1086, 75 L.Ed.2d at 64. Nothing in the Court's opinion abrogates the sanctity of a private home or dwelling place. Although "no ... expectation of privacy extended to the visual observation of [the defendants'] automobile arriving on his premises after leaving a public highway, nor to movements of objects such as the drum of chloroform outside the cabin in the 'open fields' ", id. --- U.S. at ----, 103 S.Ct. at 1085, 75 L.Ed.2d at 62, the defendant "undoubtedly had the traditional expectation of privacy within a dwelling place insofar as the cabin was concerned." Id.

As we have noted, nothing in this record indicates that the beeper signal was received or relied upon after it had indicated that the drum containing the chloroform had ended its automobile journey at rest on respondent's premises in rural Wisconsin. Admittedly, because of the failure of the visual surveillance, the beeper enabled the law enforcement officials in this case to ascertain the ultimate resting place of the chloroform when they would not have been able to do so had they relied solely on their naked eyes. But scientific enhancement of this sort raises...